Judgment :- 1. Defendants 2 and 4 in O.S. No. 28 of 1971 in the court of the Subordinate Judge, Nagapattinam, are the appellants. Ganapathi Mudaliar, the 1st defendant is the father of the plaintiff. Defendants 2 to 7 are her brothers. Ganapathi Mudaliar married one Meenakshi Ammal who died on 23rd October 1955. The plaintiff and defendants 2 to 6 are the issues of the said Meenakshi Ammal, He married Thiyalnayaki as his second wife through whom the 7th defendant was born. He has a third wife by name Dhanalakshmi, The plaintiff filed the present suit for possession alleging that the suit property belonged to Meenakshi Ammal, who died prior to coming into force of the Hindu Succession Act and that she (the plaintiff) was the Streedhana heir of the said Meenakshi Ammal. She alleged that the first defendant had taken all the suit properties and moveables including jewels, that she was married on 7th March 1965 where after she was living with her husband and that even after attaining her majority on 30th March 1969 the first defendant continued to look after the properties on her behalf. She found that defendants 1 to 7 had divided the suit properties among themselves as if they were the joint family properties during her absence from parental residence after her marriage. She, therefore, brought the present suit for recovery of possession, for rendition of accounts of the rents and profits realised from 23rd October 1955 and for future mesne profits. 2. The first defendant in his written statement admitted that the suit properties belonged to his first wife, Meenakshi Ammal, that he was under the impression that they belonged to all the heirs of Meenakshi Ammal including her sons and that under such wrong impression he effected certain settlement and also a partition. As he now found that the plaintiff was the sole heir to the properties of Meenakshi Ammal, he was prepared to abide by any decree that might be passed regarding the suit properties. He, however, disclaimed any liability to account. 3. The 3rd defendant more or less adopted the same attitude as the 1st defendant and he stated that he was in possession of the properties on the bona fide belief that he was entitled to them and that he was willing to surrender possession to the plaintiff. He, however, disclaimed any liability to account. 3. The 3rd defendant more or less adopted the same attitude as the 1st defendant and he stated that he was in possession of the properties on the bona fide belief that he was entitled to them and that he was willing to surrender possession to the plaintiff. He contended that he was not liable to render any account in regard to past and future profits. 4. Defendants 5 to 7 were minors and they were represented by their guardian. They stated that if the plaintiff proved her title to the properties they would be willing to submit to a decree without costs and without any liability for accounting. After attaining the majority, defendants 5 and 6 took up the same stand in their joint written statement filed subsequently. It is defendants 2 and 4 who stated that the properties never belonged to Meenakshi Ammal, that some of the properties, viz, items 3 and 6 to 11 of a total extent of 6.921/2 acres were granted by a settlement deed, dated 22nd June, 1961, executed by the 1st defendant in favour of the 2nd defendant and that he was in possession of those items. They took up the stand that Meenakshi Ammal was only a benamidar, as the 1st defendant was away in Kaulalampur and Singapore and as he had some motive to purchase the properties in the name of Meenakshi Ammal, It was pointed out that one of the settlement deeds was in favour of the plaintiff herself and that to the subsequent partition deed, dated 30th December, 1966, the plaintiff was a party through her husband and guardian. According to them the 1st defendant wanted a reconveyance of about 3 acres from each one of them, viz., defendants 2 and 4 and as defendants 2 and 4 refused, the 1st defendant had caused the plaintiff to file the present suit and was himself conducting it. They stated that the properties were not streedhana properties so that the plaintiff could be the sole heir on the death of Meenakshi Ammal. 5. The learned Subordinate Judge held that the properties stood in the name of Meenakshi Ammal, that they had not been purchased by the 1st defendant benami in the name of Meenakshi Ammal and that the partition under Ex. 5. The learned Subordinate Judge held that the properties stood in the name of Meenakshi Ammal, that they had not been purchased by the 1st defendant benami in the name of Meenakshi Ammal and that the partition under Ex. B 7 could not be treated as a bona fide arrangement so as to be binding on the plaintiff and others. He, therefore, granted a decree in favour of the plaintiff for recovery of possession of the suit properties and directed the defendants to render proper accounts for the profits realised from the properties in their respective possession. As regards mesne profits, he directed that it would be gone into in accordance with O. 20, rule 12, C.P.C. Defendants 2 and 4 have come forward with the present appeal. 6. Two points arise out of the contentions taken before me on behalf of defendants 2 and 4 as appellants and the plaintiff as the contesting respondent, and they are— 1. Whether the properties were the absolute proper-ties of Meenakshi Ammal, and 2. Whether Ex. B. 7 could be treated as a family arrangement binding on all the parties? 7. On the question as to whether the properties belonged to Meenakshi Ammal, a few more facts required to be set out. Out of the properties under consideration, those covered by Exs. A. 1 to A. 16 were acquired between June 1948 and November 1949. The other properties covered by Ex. A. 4 to A. 16 were acquired between April 1947 and June 1952. The purchases under Ex. A. 19, A. 20 and A. 32 were on 30th September 1936, 8th March 1940, and 25th August 1947, respectively. On 13th June, 1950, some of the properties that had originally been purchased in the name of Meenakshi Ammal were exchanged in favour of others covered by the document Ex. A. 5. Thus, it may be seen that the earliest purchase was effected in 1936 and the last of them in July 1953. The first defendant, went away to Kaulalampur and according to the second defendant, started a maligai business, which had failed. Thereafter, he went over to Singapore and was employed. Thus, the purchases, according to the defendants, would fall into two categ ories, viz., those that were effected between 1936 and 1940 and those subsequeut to 1947. It is in evidence under Ex. Thereafter, he went over to Singapore and was employed. Thus, the purchases, according to the defendants, would fall into two categ ories, viz., those that were effected between 1936 and 1940 and those subsequeut to 1947. It is in evidence under Ex. B9, that the 1st defendant started a business called ‘Thiagesan and Co’ in textiles on 23rd September, 1940 in Singapore and it continued till about 1959. Whatever may have been the position regarding the business in Kaulalampur, the Singapore business has not been stated to have run into bad weather. Even as regards Kaulalampur business, there are no details about it, and there is no proof that it had ended in any loss so as to require the 1st defendant to make purchases in the name of his wife to keep the said properties beyond the reach of the creditors. The court below has found that reasons set up by the 2nd defendant for the 1st defendant purchasing the properties benami in the name of his wife had not been established. In other words, there is nothing to show that the first defendant was in involved circumstances so as to screen the properties by purchasing them in his wifes name. I do not find any justification for differing from this conclusion of the court below. It is, therefore, clear that the properties were purchased by the 1st defendant out of his own resources, which he earned abroad. It is not contended on behalf of the plaintiff-respondent that these properties were acquired out of any individual resources traceable to Meenakshi Ammal. The common case of the parties is that the properties were purchased by the first defendant out of his own resources in the name of Meenakshi Ammal. The only question is whether these purchases were intended for the benefit of Meenakshi Ammal or whether the properties were purchased benami only in her name. 8. It is settled law that the person alleging that the property standing in the name of a person does not belong to him, but to some one else, has to prove it. It is first necessary to examine whether the relationship between the first defendant and Meenakshi Ammal, as the husband and wife would have any significance. 8. It is settled law that the person alleging that the property standing in the name of a person does not belong to him, but to some one else, has to prove it. It is first necessary to examine whether the relationship between the first defendant and Meenakshi Ammal, as the husband and wife would have any significance. In English Law, where a person buys land in the name of another, and pays the consideration money, the land will generally be held by the grantee in trust for the person who so pays the consideration money. The principle is that he who supplies the money means the purchase to be for his own benefit, rather than for that of another and the conveyance in the name of another only is a matter of convenience and arrangement between the parties for a collateral purpose. This presumption is, however, not applicable to cases where the person in whose name the conveyance of the legal estate is taken is the wife or child of the purchaser. In such a case, there is a presumption of advancement, which is, however, rebuttable by an intention on the part of the purchaser to keep the beneficial interest for himself. This doctrine of advancement has not been applied to India. However, S. 82 of the Trusts Act recognises that money may have been contributed by another towards a purchase with the intention of giving a be neficial interest to the person in whose name the purchase is made. S. 82 of the Indian Trusts Act 1882 in so far as it is material runs as follows— “82. Where property is transferred to one person 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 benenfit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration”. The above provision shows that whether a purchase by one is for the benefit of another is a matter of intention. 9. In Sitamma v. Sitapati Rao A.I.R. 1938 Mad. The above provision shows that whether a purchase by one is for the benefit of another is a matter of intention. 9. In Sitamma v. Sitapati Rao A.I.R. 1938 Mad. 8=46 L.W. 651 Varadachariar and King, JJ., observed that the relationship of a husband and wife between the person who contributes the money and the person in whose name the sale is taken will be a very important factor in determining whether the transaction was really meant for the benefit of the wife or not and that where the motive alleged for a benami transaction itself suggested that the pose in view could be served only by a genuine transfer and not by a mere benami transaction, the more reasonable inference would be that the transfer was intended to be operative as a transfer of beneficial interest and not as a mere benami transaction. As already seen, in the present case, there was no motive as there is no proof that the first defendant was in involved circumstances when he effected the purchases between 1936 and 1953 in the name of Meenakshi Ammal. The later purchases in those after 1946 were admittedly made when he was in affluent circumstances. Thus, there could have been no motive in keeping the properties under a genuine transfer in the name of Meenakshi Ammal. As pointed out by the Supreme Court in Krishnanand v. State of M.P. A.I.R. 1977 S.C. 796 the essence of benami is the intention of the parties. See also: Ponnuswami Nadar v. Narayanan Nadar 1956 S.C.R. 691 and also C.A. 1739 1740 of 1968. 10. The Supreme Court has also indicated another test to be applied to such cases and that is to examine who actually enjoyed the benefits of the transfer. See: Meenakshi Mills Madurai v. Commissioner of Incometax, Madras 1956 S.C.R. 691 and also C.A. 1739 1740 of 1968 Union of India v. Moksh Builders and Financiers Ltd , Judgment Dt. 26-10-1976 (Since reported in A.I.R. 1977 S.C. 409=90 L.W. 111 (S.N.) (unreported judgment of the Supreme Court dated 26-10-1976). 11. The Supreme Court in Kanakaratnammal v. Loganatha Mudaliar 1964 6 S.C.R. 1 considered a case where the property was purchased with the help of the money gifted by the husband and took into account the subsequent conduct in the shape of the wifes own dealing in respect of the property. 12. 11. The Supreme Court in Kanakaratnammal v. Loganatha Mudaliar 1964 6 S.C.R. 1 considered a case where the property was purchased with the help of the money gifted by the husband and took into account the subsequent conduct in the shape of the wifes own dealing in respect of the property. 12. Though various tests are propounded in the decided cases for the purposes of ascertaining the character in which the properties are held by a person who did not pay for it, still essentially, the question is one of fact and has to be determined in the light of the particular facts and surrounding circumstances of each case. In the present case, the intention of the first defendant could have been brought out if he had appeared in the witness box. Apart from filing a written statement, he did not really contest the case. Even in his written statement, he had practically sided with the plaintiff. In fact, it is alleged by the learned counsel for the appellants that the 1st defendant has been engineering the present proceedings as defendants 2 and 4 did not accede to his requests for reconveying 3 acres of land his their possession. This contention cannot be rejected as bereft of substance. 13. In Jagannath v. Shrinath A.I.R. 1934 P.C. 55=39 L.W. 295, one Mathura, Prasad, who was blind and deaf on account of old age, alienated some property in order to pay off some old debts. The deed was attested by Ram Pratap, his son and Bhairam Nath, his grandson. Ram Pratap, and Bhairam Nath were entitled to one half of the joint family properties. Mathura prasad came forward with a suit contending that he was induced to execute a sale deed in favour of one Jagannath for an inadequate consideration. In the said suit Rampratap and Bhairamnath had been impleaded as defendants. The defendant, Jagannath, the alienee, contended that the property was not the joint family property and that in any event, the sale deed had been executed by Mathura Prasad for discharge of antecedent debts. Rampratap and Bhairam, though impleaded in the suit as defendants did not go into the witness box. The Privy Council held that their conduct afforded ample corroboration of the other evidence that the sale was effected for necessary family purposes. The inference was drawn from their keeping away from the witness box. Rampratap and Bhairam, though impleaded in the suit as defendants did not go into the witness box. The Privy Council held that their conduct afforded ample corroboration of the other evidence that the sale was effected for necessary family purposes. The inference was drawn from their keeping away from the witness box. In the present case also the way in which the first defendant and the other defendants, who sided with him, have entered on their defence, goes to show that they virtually did not contest the suit and that they sided with the plaintiff, It is difficult in a case like this to get any actual evidence of collusion; but the facts are such that the inference of collusion between the first defendant and the plaintiff can safely be drawn. The courts have not unoften taken the view that even the burden of proof is not to be insisted upon and adverse inference may be drawn if a party witholds evidence in his possession which can throw light on the facts and issues. It has been observed that it is not a sound practice for those desiring to rely upon a certain state of affairs to withhold from the court the best evidence in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. See: Gopal Krishnaji Ketkar v. Md.Haji Latif 1968 3 S.C.R. 862. This principle would be applicable to the present case, because it is clear that the first defendant has been supporting the case of the plaintiff by reason of his illwill against the appellants, and that he kept away from the witness box because he would be embarrassed by his own conduct from supporting the case of the plaintiff. It is not necessary to rest the decision merely on adverse inferences. 14. I may examine the question of intention behind the first defendant financing these purchases in the name of Meenakshi Ammal in the light of the documentary evidence in this case. The learned counsel for the plaintiff relied on the execution of a power of attorney in favour of the first defendant by Meenakshi Ammal under Ex.A-21 dated 2nd June 1950. It was contended that the execution of the power would be unnecessary if really the first defendant intended that the properties should be his. The learned counsel for the plaintiff relied on the execution of a power of attorney in favour of the first defendant by Meenakshi Ammal under Ex.A-21 dated 2nd June 1950. It was contended that the execution of the power would be unnecessary if really the first defendant intended that the properties should be his. In a case of benami transaction, the purchaser would insist on a conveyance by the apparent owner. Therefore, the execution of the power of attorney in favour of the 1st defendant, to execute the documents on her behalf cannot be taken as indicating any intention to confer absolute benefit on Meenakshi Ammal with reference to the property purchased in her name. 15. It was next contended that Ex A-5 it a deed of exchange between Meenakshi Ammal and Kalyanasundara Padayachi on 13th June 1950 and that the said document had been executed by 1st defendant as the agent of Meenakshi Ammal. In the document there is a recital in respect of the properties till then standing in the name of Meenakshi Ammal as if they belonged to her. The contention urged is that the 1st defendant had actually accepted the position of Meenakshi Animals ownership of the said property. Ex.A-5 could not have contained any other recitals. I would not, therefore, attach any importance to the recitals in Ex.A-5 also. 16. Reference was then made to Ex. A22, dated 1st July 1953 which is a registration copy of a sale deed executed by the 1st defendant as the agent of Meenakshi Ammal in favour of one Kalyani Ammal. Even here, as observed already as Meenakshi Ammal was an ostensible owner of the properties, they have to be dealt with only in that manner. Similar is the position with reference to Ex. A23 dated 25th February 1954 executed by the 1st defendant as the agent of Meenakshi Ammal in favour of Krishnammal and also Ex. A34 dated 30th September 1954 in favour of Sri Vedavinayakar. In Ex. A24 Meenakshi Ammal has herself signed the document, while the 1st defendant has attested it. The way in which the 1st defendant himself had been acting on behalf of Meenakshi Ammal in all these transactions or has appended his signature as an attestor appears to me to show that he was all along keeping the properties under his own control and that nothing happened without his active part or consent. The way in which the 1st defendant himself had been acting on behalf of Meenakshi Ammal in all these transactions or has appended his signature as an attestor appears to me to show that he was all along keeping the properties under his own control and that nothing happened without his active part or consent. There is absolutely no evidence to show that Meenakshi Ammal was actually in enjoyment of the inco me from these properties. It is not in dispute that the 1st defendant had been remitting moneys from abroad. The properties that had been purchased in the name of Meenakshi Ammal were substantial. If really the income was available in her hands, it is not likely that they would have been spent away. Even the marriage of the plaintiff had been performed only by the first defendant spending a sum of Rs. 10,000, after the death of Meenakshi Ammal. There was no earlier occasion on which Meenakshi Ammal had to spend any moneys. The absence of any substantial amount in her hands at the time of her death shows that she was not in actual receipt of the rents and profits in the land so that she could have accumulated the income. 17. I shall now consider the way in which the first defendant himself has dealt with these properties. Ex.B-3, dated 13th December 1957, is a registered settlement deed executed by the 1st defendant in favour of the second defendant settling certain properties on the second defendant. These properties were in the name of Meenakshi Ammal till her death. However, on 24th November, 1959 under Ex. A 28, the first defendant revoked the settlement under Ex. A 3. The first defendant had executed Exs. B 1 and B-2 settlements on 16th February, 1956 in favour of the 4th defendant and the plaintiff herself after the death of Meenakshi Ammal. The Hindu Succession Act came into force only on 17th June, 1956. Ex. B-4 is another document, dated 21st February 1961 executed by the 1st defendant settling the properties covered by it on the second defendant. Ex. B-4 thus set right the affairs in so far as the second defendant was concerned, by reason of the revocation of the earlier settlement, Ex. B3 by Ex. A28. Thereafter under Ex. B-7, the properties were partitioned between the first defendant, his sons and daughter on 30th December 1966. Ex. B-4 thus set right the affairs in so far as the second defendant was concerned, by reason of the revocation of the earlier settlement, Ex. B3 by Ex. A28. Thereafter under Ex. B-7, the properties were partitioned between the first defendant, his sons and daughter on 30th December 1966. All these documents extending over a period of nearly a decade are consistent with the original intention of the first defendant to keep the properties in the name of Meenakshi Ammal only as a benamidar and not as a real owner. If the contrary is the intention, the 1st defendant would have gone into the witness box and spoken about it. 18. Learned counsel for the plaintiff vehemently contended that simultaneously with these purchases in the name of Meenakshi Ammal after 1947, there were purchases also in the name of the 1st defendant himself to the tune of more than Rs. 90.000/- and that if the first defendant wanted to purchase the properties for his own benefit, he could have easily purchased the suit properties also in his own name rather than in the name of Meenakshi Ammal. It is difficult to draw any inference of the first defendant intending the purchases in the name of Meenakshi Ammal as for her benefit merely because he simultaneously purchased the other properties in his own name. If he had gone into the witness box, he would have been in a position to explain why there were simultaneous purchases in his own name and the name of his wife Meenakshi Ammal. As he had not gone into the witness box, we have to draw the inference only on the basis of the other evidence available in the case, which, in my opinion, points out to Meenakshi Ammal having been intended only as a benamidar in respect of all these purchases. If she was only the benamidar and if the real title was in the first defendant, then there can be no dispute about the fact that the plaintiff would not be entitled to these properties and cannot recover possession from the defendants. 19. Even assuming that the first defendant entered into these transactions of purchase in the name of Meenakshi Ammal as ones for her own benefit, still it is necessary to examine the other question, viz, whether Ex. B7 could be taken as a family arrangement. 20. 19. Even assuming that the first defendant entered into these transactions of purchase in the name of Meenakshi Ammal as ones for her own benefit, still it is necessary to examine the other question, viz, whether Ex. B7 could be taken as a family arrangement. 20. The nature of a family arrangement has been described in Volume 18 of Halsburys Laws of England, 4th Edn. in paragraphs 304 and 305, as follows— “304. Family arrangements are governed by principles which are not applicable to dealings between strangers. When deciding the rights of parties, under a family arrangement or a claim to upset such an arrangement, the court considers what in the broadest view of the matter is most in the interest of the family and has regard to considerations which, in dealing with transactions between persons not members of the same family, would not be taken into account, Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements” “305. Considerations which will lead a court to support a family arrangement are that as a result of the family arrangement disputes are avoided in the family; the honour of the family is safeguarded, or various obligations, morally binding on a family, are provided for; or family property is continued in the family.” The Supreme Court in Kala v. Dy. Director of Consolidation A.I.R. 1976 S.C. 807 reproduced the corresponding passage in the third edition with approval. Their Lordships have set out six propositions in relation to the family settlement and it is enough for our purpose to extract the sixth proposition which is as follows:— “6. Even if boma fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equi-table, the family, arrangement is final and binding on the parties to the settlement.” It is not necessary in the case of a family arrangement that members who were parties to it must have some antecedent title or even a possible claim in the property, which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement had no title but under the arrangement the other party relinquished all its claims or titles in favour of such a person and acknowledged him to be the sole owner, then the antecedent title would be assumed and the family arrangement would be upheld and the courts would find no difficulty in giving assent to the same. See: proposition (5) at page 813. Judged by these propositions the partition in the present case can be treated as a family arrangement to which all the persons are the parties. The plaintiff herself was also a party to it. Thus, the plaintiff has not only accepted the settlement in her favour under Ex. B2, dated 16th December 1956 but she is also a party in the partition deed under Ex.B7. All these documents proceed on the basis that the 1st defendant was the real owner of the properties though they nominally stood in the name of Meenakshi Ammal. 21. I would, therefore, uphold the partition as a family arrangement between the parties. Therefore, the plaintiff cannot be held to be entitled to the suit properties on the basis that she was the sole streedhana heir of Meenakshi Ammal. The result would be that the plaintiffs suit would have to be and is dismissed. The appeal is allowed. However, there will be no order as to costs.