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183.1.

GOSAIN

V.

BAUD Gosaix.

Knight Bruce: In Murless v. Franklin (a), the Court GOPEEKRIST held that to rebut the presumption of advancement,

evidence of the father's intention must be contemGUNGA PER

poraneous with the purchase. )--The Appellant, on whom the burthen rested, has failed to prove that the Respondent is not solely entitled to the legal and beneficial estate in this tilook. There never has been any agreement express or implied between them to treat the talook as part of the joint estate.

The Lord Justice KniguT BRUCE: In this appeal two questions of importance arise, one of fact, material only to the particular parties to this litigation; the other of law, interesting, not only to them, but to society at large among the natives of India, at least among the natives of Bengal. The questions arise in this way: A wealthy native of the name of Rogoram Gosain, employed as a Banian, at Calcutta, and having also mercantile concerns of his own, made at different periods of his life purchases of immovable property in other names than his own; some of these purchases being made in the names of his sons, and some in the name of his son-in-law and of his brother. It is very much the habit in India to make purchases in the names of others, and, from whatever cause or causes the practice may have arisen, it has existed for a series of years, and these transactions are known as “ Benamee transactions; " they are noticed, at least, as early as the year 1778, in Mr. Justice Hyde's notes, where, in a case that came before him in that year, Doe dem. Tilluck Seal v. Gour Hurry Day (Morton's Dec. 249), the practice is thus mentioned : “In mere personal demands, such as Ben

ai Swanst. 13.

1861.

GOSAIN

SAUD GOSAIN,

a

gal bonds, the Courts have upon consideration determined that the action may be brought in the name GOPEEKRIST of the person whose name is on the instrumenit, though it should be proved that he had no real in- GUNG APERterest in it. And the Court has so far complied with the very general practice in this country of using the names of other persons in mere personal demands, that in many cases the Plaintiff had recovered on notes not in his own name, but in some other name, giving evidence that the transaction was really his; such for instance, that the money lent was his, and that he took the Bond in the name of another." Then he speaks thus in reference to real estate : “but it cannot be allowed to be both ways; in the case of a dispute of land, without directly contradicting those former decisions of the Court."

In a much more recent case, which occurred in Sir Edward Ryan's time, Maha Rance Bussnut Comaree v. Bullobdeb and others, reported in Fulton, 383, which report Sir Edward Ryan informs us is substantially accurate, it is said, “ As far as the evidence

6
goes, for there was no proof of the deed, the trang-
action is a simply benamee one, in the name of the
complainant, but in truth for the benefit of Rajah
Tez Chunder. It may be for religious purposes, but
the question raised, whether the Court will recognise
a benumee trusteeship, or a trust upon a trust, does
not arise. It being once established, then, that the
transaction is ' benamee,' the circumstance of the re-
ceipts being in the name of the complainant proves
nothing, that being in accordance with benamee usages.
The complainant, therefore, has no title to call for
the account, and the bill must be dismissed.”

Other cases were mentioned in the course of the
VOL. VI,

J

1854.

GOSAIN

v.

BAUD GOSAIN,

argument, which came before the Suilder and other Gopeekrist Courts, to the same effect. The law upon this subject

was recognised by the Judicial Committee, in 1843, in GUNG APER- the case of Dhurm Das Pandey v. Mussumat Shama

Soondri Dibial (3 Moore's Ind. App. Cases, 229), where Lord Campbell, in delivering the opinion of the Court, at page 240, says, “We have heard from the highest authority, from the authority of Sir Edward East and Sir Edward Ryan (whose most valuable assistance we have in this case, and it gives me a confidence that I should not otherwise have felt), that the criterion in these cases in India is to consider from what source the money comes with which the purchase-money is paid. Here there has been no evidence given that the Appellant had any separate property, or that it was from his funds that any part of the purchase-money was paid ; therefore, I think, that so far on this part of the case no difficulty can be entertained, and that the whole of the property must be considered as joint property.”

It is clear, and their Lordships are confirmed by the opinion of Sir Edward Ryan, that the knowledge and assent of the person in whose name the purchase is made is immaterial : to repeat the language of Lord Campbell, the criterion is, the quarter from which the money comes, and in the greater number of instances of benamee purchases they are made in the names of persons ignorant at the time of their being so made. In the present instance there is no question but that all the money was provided by Rogoram Gosain ; that is indisputable. I do not allude now to whether the anoney was the joint property of Rogoram Gosain and his brother. It is clear it was not the money of the individual in whose name the purchase was effected.

1854.

GOSAIN

SAUD GOBAIN.

If then the person in whose name the purchase was effected had been a stranger in blood, or only a dis- GOPEEKRIST tant relative, no question could have arisen; he would have been primâ fucie a trustee, and if he de- GUXGAPERsired to contend that the prima fucie character of the transaction was not its real character, the burthen would have rested on him; but the individual in whose name the present purchase was effected was the son, and at that time the only son, of the person who made the purchase, and whose money it was, and it has been contended that that circumstance changes the presumption, and that what would be the presumption in the case of a stranger does not exist between father and son; that the presumption is advancement, and that, therefore, the burthen of proof is shifted. Now, on this, as far as their Lordships can learn, there is no authority in Indian law, no distinct case, or dictum, establishing or recognising such a principle, or such a rule. It is clear that in the case of a stranger the presumption is in favour of its being a benamee transaction, that is a trust; but it is clear also that in this country, where the person in whose name the purchase is made is one for whom the party making the purchase was under an obligation to provide, the case is different; and it is said that that ought to be deemed the law of India also, not because it is the law of England, but because it is founded on reason and the fitness of things, if I may use the expression, or natural justice, that on such grounds it ought to be considered the law of India. Now, their Lordships are not satisfied that this view of the rule is accurate, and that it is not one merely proprii juris. Probable as it may be, that a man may wish to pro

1854.

GOSAIN

v.

.

vide for his son to a certain extent, and though it GOPEErrist may be his duty to do so, yet there are other consi

derations belonging to the subject; among others, a GUNGA PER- man may object to making his child independent of

him in his lifetime, placing him in such a position as to enable him to leave his father's house and to die, leaving infant heirs, thus putting the property out of the control of the father. Various reasons may be urged against the abstract propriety of the English rule. It is merely one of positive law, and not required by any rule of natural justice to be incorporated in any system of laws, recognising a purchase by one man in the name of another, to be for the benefit of the real purchaser. Their Lordships, therefore, are not prepared to act against the general rule, even in the absence of peculiar circumstances; but in India there is what would make it particularly objectionable, namely, the impropriety or immorality of making an unequal division of property among children. This might be more striking where there were more sons than one; but if the objection exists, it does not become less where there is only one son, for the father may have others, and in such a case the same objectionable consequences would follow as where several sons were in being. The note on this subject is clearly stated in W. H. Macnaghten's “Principles of Hindu Law,” which we learn from Sir Edward Ryan is cited as an authority in the Courts of Bengul. In the first volume, p. 2, he says, “ The most approved conclusion appears to be, that the inchoate right arising from birth, and the relinquishment by the occupant (whether effected by death or otherwise) conjointly create this right, the inchoate right which previously existed becoming perfected by the removal of the obstacle,

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