1. Plaintiff 1 is the husband and the suits have been filed for a declaration that the deeds in question, although taken in the name of his wife, the defendant, were benami for himself and that the beneficial interest vests in him. The lower Courts have decreed the suits, but in my opinion their judgments are vitiated by a clear error. The source from which the money comes, as I observed in a recent judgment, furnishes undoubtedly a valuable test, but to regard it as the sole or conclusive criterion, is clearly wrong. (S.A. No. 1148 of 1929). This is precisely the misbake which the lower] Courts have made. In the case I have just referred to, I was dealing with Section 81, Trusts Act, but the provision that directly applies to the facts here is Section 82 which runs thus:
Where property is transferred to one parson for a consideration paid or provided by another person, and it appears that such, other person did not intend to pay or provide such consideration for the benefit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration.
2. I must accept the finding of the lower Courts that the consideration both for the sale and the mortgages was supplied by the husband, but is that fact conclusive on the question of ownership as the lower Courts have regarded it? True, under the Indian law there is no presumption of advancement, but still the relationship of the parties and the motives that operated are factors which must be taken into consideration. Section 82 in the light of the decisions of the Judicial Committee, as I understand it, means this : if nothing more is shown than that, the transferor paid the consideration, there is a resulting trust in his favour; but as evidence of intention several circumstances may be proved; for, after all, the question is one of intention : See Mahomed Sadiq Ali Khan v. Fakr Jahan Begam 1932 P.C. 13. The facts in the present case are these: Plaintiff 1, who was about 45 years old, married the defendant, a young girl of the ago of eight, as his fourth wife. About seven or eight years after the marriage, the transactions in question came into existence. According to the plaintiff's own admission, his reason for taking the deeds in the name of the defendant was his hostility to his third wife and her son, at whose instance he apprehended suits for maintenance and partition. In such a case it has been held by the Judicial Committee that it is wrong to regard the transaction as benami:
The tact, therefore, remains that the properties purchased by the sale proceeds were purchased no doubt in Haflz Boo's name, but were purchased out of funds emanating from her mother's estate. This circumstance, no doubt, if taken alone, affords evidence that the transaction was benami, but there is in their Lordships' opinion, enough in the facts of the case to negative any such inference. It seems clear that what was done in 1889 was prompted by hostility to the son, and was with a purpose of excluding him from inheritance, an object which could not have been attained by any benami transaction : Ismail Mussajee v. Hafiz Boo (1906) 33 Cal. 773.
3. These words of their Lordships describe the position of affairs in the case in hand. There ware strong reasons for the deeds having been taken in the name of the defendant. The plaintiff, who married a young wife, would natural, be anxious to make provision for her. Than, there is the additional fact that his intention was to exclude his senior wife and her son from participation in the property. The transactions, therefore, far from being benami, were intended to be real. In Nawab Azimut Ali Khan v. Hurdwaree Mull (1869) 13 M.I.A. 395 the Judicial Committee made similar observations and applied a similar rule. There it was found that the funds which purchased the properties were exclusively the funds of the Nawab, but the conveyance was taken in the name of his son. IE nothing further had bean shown, the case would have fallen, their Lordships observe, within gopeekrist Gosain v. Gungapersaud Gosain (1854-57) 6 M.I.A. 53. But from the Nawab's own explanation, the Court inferred, that a motive existed for the conveyance in the state of his family, the existence of daughters and his desire as expressed to vary the rule of succession between sons and daughters in his family.
4. It was held that the transaction could not be regarded as a mere naked benami conveyance," but that the beneficial interest passed to the son. I must, therefore, holding that the plaintiff's suits fail, allow the second appeals and dismiss the suits with costs throughout in this Court. I allow counsel's fee-one set.