1. This is a plaintiff's second appeal arising out of a suit under O. 21, R. 63 of the CPC for a declaration that certain fields in the Buldana District are not liable to attachment and sale in execution of a decree obtained by the defendant against the plaintiff's son. The fields were acquired by the plaintiff in the name of his son alone between 1898 and 1921 at a total expenditure of Rupees 2,620, the area of the fields being 73½ acres. It has been held and is now admitted, that the fields were acquired by the plaintiff out of his own money. The lower appellate Court has held that the fields were therefore the self-acquired property of the plaintiff but that he had treated them as joint family property, and that they therefore became the joint family property of himself and his son Martand, so that a half share in the fields is liable to attachment and sale in execution of the decree against Martand. Against that decision the plaintiff has appealed, and the defendant has filed a cross-objection, contending that he is entitled to attach and sell the entire property.
2. The plaintiff stated in his pleadings that he purchased the fields in the name of his son Martand as Martand was his only son and was to own the property of the plaintiff in future, but in the course of his evidence he stated that he was in Government service until 1901 and that for this reason he acquired the property in the name of his son.
3. For whatever reason he acquired the property in the name of his son, once it is established that the property was purchased with the plaintiff's own money and not with the joint family money, the presumption is that he intended to make the purchase for his own benefit and not for the benefit of his son. At p. 629, 9th Edn. of Mayne's Hindu Law and usage it is stated;
The rule is well established, that in all cases of asserted benami the best, though not the only, criterion is to ascertain from whose funds the purchase money proceeded. Whether the nominal owner be a child or a stranger, a purchase made with the money of another is prima facie assumed to be made for the benefit of that other.
4. In 6 MIA 53(1) their Lordships of the Privy Council decided a case in which property was bought by a father in the name of his only son, and the gist of that decision is summed up in the head-note which runs as follows:
Where a purchase of real estate is made by a Hindu in the name of one of his sons, the presumption of the Hindu law is in favour of its being a benami purchase, and the burthen of proof lies on the party in whose name it was purchased, to prove that he was solely entitled to the legal and beneficial interest in such purchased estate.
5. Mariana was born in 1885, and be and his father lived together so that the other criteria of distinguishing a benami purchase from other purchases, such as the possession of the property or the possession of the documents of title, do not assist us. The fact that the fields were recorded in the Record of Rights in 1914 in the name of Martand is equally consistent with either a purchase benami on behalf of a father or a purchase on behalf of the son. In the circumstances of this case it seems to me clear that it must be taken that the plaintiff purchased the fields on behalf of himself benami in the name of his son, and that the lower Courts were correct in holding that the property was his self-acquired separate property. The next question is whether that property became joint family property because, as held by the lower appellate Court, it was voluntarily thrown by the plaintiff into the common family stock. There is no pleading to that effect. The defendant's case was that the property was acquired by Martand on his own account and that Martand was the sole owner of the property from the date of purchase. Whether the property was thrown into the common stock is a question partly at least of fact, and no facts showing that it was thrown into the common stook have been pleaded. I am therefore of opinion that this plea must fail. The only evidence to show that it was thrown into the common family stook and treated as joint family property is that the income from these fields was used by the plaintiff to support himself and his son and that from 1905 onwards Martand was earning Rs. 15 a month at first and afterwards Rs. 25 a month and contributed this to the household expenses. The plaintiff had supported Martand throughout his life largely out of the income of these fields and he continued to do so after Martand came of age and earned an income of his own. I do not think that this is sufficient to show that the plaintiff intended to waive his separate rights to his self-acquired property. His behaviour in using the income in this way might well be due to natural family affection, and, in my opinion, it would be unfair to assume merely from this that he had intended to give up all his rights to that property. I therefore hold that the property in suit is the self, acquired property of the plaintiff, and that Martand has no share in it. The fad that the plaintiff took a deed of relinquishment from Martand in 1928 is consistent with this view, for the plaintiff might have thought it safer to have such a deed of acknowledgment from the person in whose name the property stood.
6. The last point is urged that the plaintiff is estopped by his conduct from pleading that the property in suit is not the property of Martand. The conduct of the plaintiff, on which the defendant relies, is the purchase of the property in name of Martand and the recording of that property in the name of Martand in the Record of Rights. The lower Courts have held that the other facts on which the plea of estoppel is based have not been established. The only facts therefore on which the defendant can now rely are the acquisition and the recording of the property in the name of Martand. It is com mon practice for a father to acquire property in the name of his son, and the defendant probably knew, and certainly would have known if he had made any inquiry, that the fields in suit were acquired by the plaintiff out of his own money and that Martand was never in a position to acquire such a property. I therefore agree with the finding that there has been no estoppel. The appeal is therefore allowed, and there will be a decree in the plaintiff's favour declaring that the fields in suit are not liable to attachment and sale in execution of the decree in Civil Suit No. 237 of 1929. Costs of both parties throughout will be paid by the defendant. The defendant's cross-objection is dismissed with costs.
D.S/R.K
7. Appeal allowed.