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PETITIONER: KANAKARATHANAMMAL

       Vs.

RESPONDENT: V.   S. LOGANATHA MUDALIAR AND ANOTHER

DATE OF JUDGMENT: 18/12/1963

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SUBBARAO, K. WANCHOO, K.N. AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.

CITATION:  1965 AIR  271            1964 SCR  (6)   1  CITATOR INFO :  R          1974 SC 658  (14)  RF         1978 SC1362  (35)

ACT: Hindu Law Women’s Rights Act (Mys. 10 of 1933), s.  10(2)(b) -Scope of Practice-Necessary parties-Who are.

HEADNOTE: The appellant in a suit against respondents claimed recovery of  possession of the properties in Schedules 1, 2 and 3  as the  sole heir of her mother.  She claimed these  properties exclusively,  under  s. 12(1) (i) of the  Mysore  Hindu  Law Women’s  Rights  Act, 1933.  On challenge to  her  title  by respondents  she relied on a sale-deed created in favour  of her  mother for a consideration of Rs. 28,000.   Respondents ,set  up  title  in respect of the suit  properties  in  the appellant’s  father alleging that her father had executed  a will under which respondent I had been appointed an executor and as such, he got possession of the properties and  handed them  over  to  Respondent 2, as directed  under  the  will. Alternatively, they urged that even if the property belonged -to  the  appellant’s mother, she would not be  entitled  to claim exclusive title to it, because by succession it  would devolve  upon  the  appellant  and  her  brothers;  and  her failure. to join her brothers made the suit incompetent  for non-joinder of necessary parties.  The trial court dismissed the suit.  On appeal, the High Court confirmed the decree of -the  trial  court,  but  held that  the  main  property  in Schedule 1 did not belong to the appellant’s mother, but  to her father and the sale-deed in respect of the property  was taken  by her father in the name of her mother  benami.   On appeal by special leave, the appellant mainly contended that the  property in question would fall under s.  10(2)(b)  :of the  Act,  and  not under s.  10(2)(d)  as  respondents  had contended  and therefore, she would be exclusively  entitled to  it  and the plea of ,non-joinder of her  brothers  would fail. Held:     (Per,  P. B. Gajendragadkar, K. Subba Rao,  K.  N. Wanchoo  and  N.  Rajagopala  Ayyangar  JJ.).  It  would  be

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straining  the language of s. 10(2)(b) of the Act-  to  hold that the property purchased in the name of the wife with the money  gifted  to  her by her husband should  ’be  taken  to amount  to  a property gifted under s.  10(2)(b).   The  re- quirement  of s. 10(2)(b) is that the property which is  the subject-matter of devolution must itself be a gift from  the husband  to  the  wife.  In deciding under  which  class  of properties  specified  by cls. (b) and (d) of s.  10(2)  the present  property  falls,  it  would  not  be  possible   to entertain  the argument that the gift of the money  and  the purchase of the property must be treated as one  transaction and  held  on that basis that the property itself  has  been gifted by the husband to his wife. 134-159 S.C.-1. 2 The gift that is contemplated by s. 10(2)(b) must be a  gift of the very property in specie made by the husband or  other relations therein mentioned.  The trial court therefore, was right  in holding that even if the property belonged to  the appellant’s mother, her failure to implied her brothers  who would  inherit  the  property alongwith her  made  the  suit incompetent. In  the present case, the estate could be  represented  only when  all the three heirs were before the court.   When  the appellant persisted in proceeding with the suit on the basis that  she was exclusively entitled to the suit property  she took the risk and it was now too late to allow her to  amend the plaint by adding her brothers at this late stage. Naba Kumar Hazra v. Radheshyam Mahish, A.I.R. 1931 P.C., 225 followed. Per  Mudholkar J. (dissenting)-Upon the pleadings  there  is no,  scope for spliting up the transaction into  two  parts, ie., a gift of the money by the father to the mother in  the first  instance  and  the purchase by  the  mother  of  that property  subsequently with that money.  It was not even  an alternative   contention   of  the  respondents   that   the transaction was in two parts and that what the father gifted was  the money and not the property.  It would be indeed  an artificial way of looking at the transaction, as was done by the  trial court, as being constituted of two  parts.   Thus the  transaction was one indivisible whole and that is,  the father provided the money for acquiring the property in  the mother’s  name.  Therefore, in effect it was the father  who purchased the property with the intention of conferring  the beneficial   interest  solely  upon  the  mother.   Such   a transaction  must therefore amount to a gift.  In that  view the  property would not fall under cl. (d) of s. 10  of  the Act  but  under  cl. (b) of that  section.   Therefore,  the appellant would be the sole heir of her mother and the  non- joinder of her brothers would not defeat the suit so far  as she is concerned.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 528 of 1961. Appeal  by special leave from the judgment and decree  dated October 10, 1956 of the Mysore High Court in Regular  Appeal No. 171 of 1951-52. K.   P. Bhatt and R. Thiagarajan, for the appellant. S.   T.  Desai, K. Jayaram and R. Ganapathy Iyer for the respondents. 3 December, 18,  1963 The  Judgment of P. B. Gajendragadkar, K. Subba Rao,  K.  N.

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Wanchoo  and  N. Rajagopala Ayyangar JJ.  was  delivered  by Gajendragadkar, J. J. R. Mudholkar J. delivered a dissenting opinion. GAJENDRAGADKAR  J.-This appeal arises from a suit  filed  by the  appellant  Kanakarathanammal in the Court of  the  IInd Additional  District Judge, Bangalore (O.S. No. 39 of  1947- 48)  in  which  she claimed to  recover  possession  of  the properties  described  in  the  Schedules  attached  to  the plaint.  Schedules 1 and 2 consist of movable and  immovable properties,  while Schedule 3 refers to jewels  and  silver- ware.  The appellant laid a claim to these properties as the sole  heir  of  her mother Rajambal who  died  on  the  13th September,  1946.   Her case was that she  was  entitled  to these properties exclusively under sub-clause (i) of  Clause (1)  of  section 12 of the Mysore Hindu Law  Women’s  Rights Act, 1933 (No.  X of 1933) (hereinafter called the Act).   A gold belt which is an item of jewellery was described by her in Schedule 4 and the same was claimed by her on the  ground that  it had been presented to her by her father  before  he died on the 20th March, 1947. The case set out in the plaint showed that according to  the appellant,  the properties in Schedules 1, 2 and 3  belonged exclusively to her mother and when she made a claim  against the  respondents in that behalf, they challenged her  title. In that connection, the appellant relied on the fact that  a sale-deed  had been executed in favour of her mother on  the 1st  April,  1942 for a consideration of Rs. 28,000  by  Mr. Gibs  under which several pieces of land together  with  all buildings   and  erections  standing  thereon  and   movable property  consisting  of  articles of  furniture  and  other things  set out in the Schedules attached to  the  sale-deed (Exhbt.  F), were covered. Respondent No. 1 Loganatha Mudaliar alleged that on the 17th February,  1947, the father of the appellant had executed  a will under which he had been appointed an executor and  that as such executor, he obtained a probate under the said will, got possession of the properties and handed them 4 over to Respondent No. 2 Mudaliar Sangham, by its President, as directed under the will.  Respondents 1 and 2 thus set up a title in respect of the suit properties in the appellant’s father.  Alternatively, they urged that even if the property belonged  to  the  appellant’s  mother,  she  would  not  be entitled  to  claim  exclusive  title  to  it,  because   by succession   the  said  property  would  devolve  upon   the appellant  and her brothers; and the appellant’s failure  to join her brothers made the suit incompetent for  non-joinder of necessary parties.  The third respondent, Vasudeva  Setty & Sons, admitted that he was in possession of the gold  belt described  in  Schedule 4, but urged  that  the  appellant’s father  had given it to him for purpose of sale and  that  a sum  of Rs. 109-7-9 was due to him.  He pleaded that he  had no  objection  to  hand it over to  the  rightful  claimant, provided the amount due to him was repaid to him. On  these pleadings, the trial Court framed six  substantive issues,  three of which were important.  These three  issues were: ( 1) whether the appellant’s father or mother was  the real  owner of the property described in Schedules 1 and  2; (2) whether the will set up by respondents 1 & 2 was genuine and  valid  in  law;  and  (3)  whether  the  suit  was  not maintainable  on the ground that necessary parties  had  not been joined by the appellant.  The learned trial Judge  held that  the appellant’s mother was the owner of  the  property described  in  Sch. 1. Regarding the movable  property,  the trial Judge held with some variation that the items admitted

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by  the  respondents  also belonged to  the  appellant.   As regards  the jewels, he found that they had never gone  into the  possession of respondents 1 and 2, and so,  the  appel- lant’s claim in respect of the said jewels was rejected.  As to  the gold belt mentioned in Sch. 4, the decision  of  the trial  Court was that the appellant should recover the  same from  respondent  No.  3 on her paying to  him  Rs.  109-7-9 claimed  by him. Having found the title of  the  appellant’s mother proved, the  trial Judge came to the conclusion  that the will executed by     the appellant’s father was invalid. These  findings,  however,  did not  materially  assist  the appellant, because the learned Judge upheld the respondent’s plea  that  the suit was bad for  non-joinder  of  necessary parties.  In 5 the result, the appellant’s suit was dismissed in regard  to the main relief claimed by her. Against  this  decision, the appellant preferred  an  appeal before  the High Court of Mysore (R.A. No. 171  of  195152). The High Court has held that the main property described  in Sch.  I did not belong to the appellant’s mother, but to her father.   It  found  that the sale-deed in  respect  of  the property was taken by the appellant’s father in the name  of the appellant’s mother benami.  Having held that the  appel- lant had not established her title to the said property, the High  Court  did  not think it  necessary  to  consider  the validity  of the finding of the -trial Judge that  the  suit was  bad for non-joinder of necessary parties.  It also  did not think it necessary to consider whether the will had been proved or not.  The appellant, however, succeeded before the High  Court  in respect of one minor point and that  was  in relation to her claim for the gold belt.  The High Court has ordered  that Respondent No. 3 should return the  said  gold belt  to the appellant and that the appellant was not  bound to  pay to Respondent No. 3 the amount claimed by him.   The result was that with a very slight modification, the  decree passed  by  the  trial  Court was  confirmed,  though  on  a different  ground.   It  is against  this  decree  that  the appellant  has  come  to this Court by  special  leave.   It appears that respondents 1 & 2 had also preferred an  appeal in the High Court against a part of the decree passed by the trial  Judge, and the said appeal was dismissed.  With  that part  of  the  case, we are not  concerned  in  the  present appeal. The  first  point  which has been urged  before  us  by  the appellant  is  that the High Court was in error  in  holding that  the immovable property described in Sch.  I  had  been purchased by  the appellant’s father benami in the  name  of his wife.      Some facts material to this issue are not  in dispute.It has been found by both the Courts below that  the consideration  which  was  paid  for  the  sale  transaction proceeded  entirely from the appellant’s father; so that  in dealing  with  the question as to whether the title  to  the property vested in the appellant’s mother or not, we have to proceed on the basis that the whole of the consideration was paid  by the appellant’s father and not by her mother.   The case of the 6 appellant,  however, is that the subsequent conduct  of  the parties and particularly the correspondence produced by  the appellant   clearly  showed  that  the  appellant’s   father admitted  the  title of the appellant’s mother,  and  it  is urged  that  the High Court was in error  in  reversing  the finding of the trial Court that the property really belonged to the appellant’s mother.  In order to deal with the merits

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of  this argument, it is necessary to refer to the  material correspondence on which the appellant relies.  Exhibit B  is a   letter  written  by  the  appellant’s  father   to   her (appellant’s)  husband  on the 1st August,  1944.   In  this letter, the appellant’s father has used words which  clearly show that he, treated the property as belonging to his wife. He  says  "she (the appellant’s mother) tells  me  that  you almost  agreed to come and stay in the estate and  for  that purpose  she  has asked me not to let out  both  the  houses occupied by Iyer", and then he adds, "she says that she will give Rs. 50 a month with the above free quarters".  Then  on the  21st  June, 1945, a letter was addressed  to  the  Sub- Division Officer, Bangalore Sub-Division, Bangalore, by  the appellant’s  mother (Exbt.  H).  This letter is in  relation to  the properties with which we are concerned, and  it  has been  addressed clearly and unambiguously on the basis  that the  title to the property vests in the appellant’s  mother. In  the course of this letter, she says that about the  10th May,  1945,  the  authorities  of  the  Hindustan   Aircraft approached her through her husband for permission to put  up and install a few electric lights against the runway to  the length -of about 700 or thereabouts, and that she gave  them the permission on the strict understanding that the rest  of her plantation should not be disturbed. Similarly,  on  the 28th May, 1946, the  appellant’s  father wrote  to the Officer-in-charge Claims,  Bangalore,  acknow- ledging  receipt  of a cheque which had been issued  by  the said  Officer  in favour of the appellant’s mother  for  Rs. 2511-3-0.   On  the 23rd May, 1946, the  appellant’s  father wrote a letter to his wife, and some of the statements  made in  it clearly suggest that the appellant’s father  admitted his  wife’s  title  to the  properties  in  question.   "Mr. Loganatha Mudaliar," says the letter, "told me that you  had said  to write some Estate Will.  We have talked about  this already.  You ought not 7 to  have told him without telling me again ....  Money  also should be given along with estate.  I will see to all as per ,,convenience.   If you be without sorrow, you may come  out happily early." At this time, the appellant’s mother was ill and  was  presumably thinking of making a will  of  her  own properties.   In  that  context,  the  letter  sent  by  the appellant’s father to his wife is very significant. It  is true that the actual management of the  property  was done by the appellant’s father; but that would inevitably be so  having regard to the fact that in ordinary  Hindu  fami- lies, the property belonging exclusively to a female  member would also be normally managed by the Manager of the family; so  that the fact that the appellant’s mother did  not  take actual  part  in the management of the  property  would  not materially  affect  the appellant’s case that  the  property belonged  to her mother.  The rent was paid by  the  tenants ,and  accepted by the appellant’s father; but  that,  again, would  be  consistent with what ordinarily happens  in  such matters  in  an  undivided Hindu family.   If  the  property belongs to the wife and the husband manages the property  on her behalf, it would be idle to contend that the  management by  the husband of the properties is inconsistent  with  the title of his wife to the said properties.  What we have said about the management of the properties would be equally true about the actual possession of the properties, because  even if the wife was the owner of the properties, possession  may continue  with the husband as a matter of  convenience.   We are  satisfied  that  the  High  Court  did  not   correctly ;appreciate the effect of the several admissions made by the

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appellant’s  father in respect of the title of his  wife  to the  property  in question.  Therefore, we  hold  that  the- property had been purchased by the appellant’s mother in her own name though the consideration which was paid by her  for the  said  transaction  had been received by  her  from  her husband. As soon as we reach this conclusion, it becomes necessary to consider   whether  the  appellant’s  suit  must  fail   for nonjoinder  of necessary parties.  It is common ground  that the  appellant  has brothers alive, and even  in  the  trial Court respondents 1 and 2 took the alternative plea that  if the property was found to belong to the appellant’s  mother, under 8 the relevant Mysore law the appellant and her brothers would be entitled to succeed to that property and the  non-joinder of the brothers was, therefore, fatal to the suit.  In fact, as we have already indicated, the trial Court had  dismissed the appellant’s suit on this ground.  The decision about the question as to the appellant’s title to this property  would thus depend upon the construction of the relevant provisions of  the  Act.   Section  10 is  relevant  for  the  purpose. Section  10(1)  defines ’Stridhan’ as  meaning  property  of every  description belonging to a Hindu female,  other  than property  in which she has, by law or under the terms of  an instrument, only a limited estate.  Section 10(2) prescribes an  inclusive definition of the word ’Stridhan’  by  clauses (a)  to  (g).  The appellant contends that the  property  in question falls under s. 10(2) (b), whereas according to  the respondents it falls under s. 10(2) (d).  There is no  doubt that  if s. 10(2) (b) takes in the property,  the  appellant would  be  exclusively entitled to it and the plea  of  non- joinder  of her brothers would fail.  On the other hand,  if s.  10 (2) (d) applies to the property, the  appellant  will not be exclusively entitled to the property and her brothers would  be necessary parties to the suit.  In that  case  the plea  of non-joinder would succeed and the appellant’s  suit would  be  dismissed  on that account.   The  position  with regard  to  the  heirs  who  succeed  to  stridhan  property belonging  to  a  Hindu  female  dying  intestate  has  been provided for by s. 12 of the Act and there  is no dispute on that account.    Let  us, therefore, consider under which clause of s.  10 (2)  the  property in question falls.  Section  10  (2)  (b) refers  to  all  gifts  received by a  female  at  any  time (whether  before,  at or after her marriage)  and  from  any person   (whether  her  husband  or  other  relative  or   a stranger).   It is thus clear that all gifts  received  from the husband at any time would fall under s. 10(2) (b).   The appellant’s argument is that as soon as it is found that the consideration  for  the  sale  proceeded  solely  from   the appellant’s   father  it  must  follow  that  the   property purchased  with  the  said consideration is a  gift  by  the husband  to his wife.  The fact that the property  has  been purchased  in  the  name  of the  wife  does  not  make  any difference in substance.  Two transactions have taken place,                                     9 one a gift of the money by the husband to his wife, and  the other  purchase of the property with the said money  in  the name  of the wife.  Treating the two transactions  as  inte- grally connected, it should be held that the purchase itself was made by the husband in the name of his wife and that can hardly  be distinguished from the gift of the said  property to the wife. On  the other hand, the respondents contend that s.  10  (2)

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(b) can take in only gifts and not properties purchased with the assistance of the gifts.  If the appellant’s father gave to  his  wife  the  amount  with  which  the  property   was purchased, all that can be said is that the amount given  by the  husband  to his wife was a gift under s.  10  (2)  (b). What  the  wife  purported or chose to do  with  the  amount gifted to her by her husband is entirely a different matter. She  might  have purchased the property, or she  might  have kept the amount in bank.  If the amount had continued in the bank  and its identity was not in dispute, it may have  been impressed with the character of Stridhan as described in  s. 10 (2) (b).  But if the amount was utilised by the wife  for purchasing  the  property in her own name, the  purchase  is hers  and the purchased property cannot be said to  be  gift from the husband to his wife.  Section 10(2 ) (d) refers  to property  acquired by a female by purchase, agreement,  com- promise,  finding  or adverse possession.   The  respondents urged  that  one has merely to read clause  10(2)(d)  to  be satisfied  that  the purchase of the property in  this  case falls squarely under it. We have carefully considered the arguments thus presented to us  by the respective parties and we are satisfied  that  it would be straining the language of s. 10(2)(b) to hold  that the  property  purchased in the name of the  wife  with  the money gifted to her by her husband should be taken to amount to a property gifted under s. 10(2) (b).  The argument about the substance of the transaction is of no assistance in  the present  case,  because the requirement of s. 10(2)  (b)  is that the property which is the subject-matter of  devolution must itself be a gift from the husband to the wife.  Can  we say that the property purchased under the sale-deed was such a gift from the husband to his wife?  The 10 answer  to  this question must clearly be in  the  negative. With  what funds the property is purchased by the female  is irrelevant for the purpose of s. 10(2)(d); so too the source of  the title to the fund with which the said  property  was purchased.   All  that is relevant to enquire  is:  has  the property been purchased by the female, or has it been gifted to her by her husband?  Now, it seems clear that in deciding under which class of properties specified by clauses (b) and (d) of s. 10(2) the present property falls, it would not  be possible  to entertain the argument that we must  treat  the gift  of the money and the purchase of the property  as  one transaction and hold on that basis that the property  itself has  been  gifted by the husband to his wife.   The  obvious question to ask in this connection is, has the property been gifted by the husband to his wife, and quite clearly a  gift of  immovable property worth more +.ban Rs. 100 can be  made only  by  registered deed.  The enquiry as  to  whether  the property  was purchased with the money given by the  husband to the wife would in that sense be foreign to s. 10 (2)  (d) ;  gift  of money which would fall under s. IO  (2)  (b)  if converted  into another kind of property would not  help  to take  the property under the same clause, because  the  con- verted  property  assumes a different  character  and  falls under  s. 10(2) (d).  Take a case where the husband gifts  a house  to his wife, and later, the wife sells the house  and purchases  land  with the proceeds realised  from  the  said sale.  It is, we think, difficult to accede to the  argument that the land purchased with the sale-proceeds of the  house should, like the house itself, be treated as a gift from the husband   to  the  wife;  but  that  is  exactly  what   the appellant’s argument will inevitably mean.  The gift that is contemplated  by  s. 10 (2) (b) must be a gift of  the  very

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property  in specie made by the husband or  other  relations therein  mentioned.   Therefore, we are satisfied  that  the trial Court was right in coming to the conclusion that  even if  the  property belonged to the  appellant’s  mother,  her failure  to  implied  her brothers  who  would  inherit  the property  along with her makes the suit incompetent.  It  is true that this question had not been considered by the  High Court,  but since it is a pure point of law  depending  upon the  construction  of s. 10 of the Act, we do not  think  it necessary  to remand the case for that purpose to  the  High Court.  Facts which are necessary to 11 decide  the  question under s. 10 (2) have  been  found  and there  is no dispute about them.  The only point  to  decide is, on a fair construction of s. 10(2) (b) and (d) which  of the said two clauses takes in the property in question.   This  appeal  was argued before us on  the,  22nd  August, 1963.  At the said hearing, we had suggested to the  parties to  consider whether they could amicably settle the  dispute between  themselves.  Accordingly, we allowed the matter  to stand  over to enable the parties to negotiate  the  settle- ment, if possible.  Ultimately, on the 13th September, 1963, the  Appellant’s  counsel  reported to the  office  that  no settlement was possible.  However, in the meanwhile, on  the 6th  September,  1963,  the  appellant’s  counsel  filed  an application for leave to add the appellant’s two brothers T. Narayanaswamy  and  T.  Vasudevan as  co-plaintiffs  to  the plaint, or if they are not willing to join as co-plaintiffs, then  as defendants 4 and 5. This application is opposed  by respondents  1  and 2. That is how this  appeal  was  placed before the same Bench once again on the 13th December, 1963.    We  do not think there is any justification for  allowing the appellant to amend her plaint by adding her brothers  at this  late stage.  We have already noticed that the plea  of non-joinder had been expressly taken by respondents 1 and  2 in  the trial Court and a clear and specific issue had  been framed  in respect of this contention.  While the  suit  was being  tried, the appellant might have applied to the  trial ,Court  to  add her brothers, but no  such  application  was made.  Even after the suit was dismissed by the trial  Court on this ground, it does not appear that the appellant  moved the High Court and prayed that she should be allowed to join her  brothers even at the appellate stage, and so, the  High Court had no occasion to consider the said point.  The  fact that the High Court came to the contrary conclusion ,on  the question of title does not matter, because if the  appellant wanted to cure the infirmity in her plaint, she should  have presented  an application in that behalf at the  hearing  of the  appeal itself.  In fact, no such application  was  made even  to  this Court until the appeal was allowed  to  stand over after it was heard.  Under the circumstances, we do not 12 think  it  would be possible for us to  entertain  the  said application.   In the result, the application for  amendment is rejected. It  is  unfortunate  that the appellant’s claim  has  to  be rejected  on the ground that she failed to implead her  two, brothers  to  her suit, though on the merits we  have  found that  the  property  claimed  by her  in  her  present  suit belonged to her mother and she is one of the three heirs  on whom the said property devolves by succession under s. 12 of the  Act.  That, in fact, is the conclusion which the  trial Court  had  reached  and  yet no action  was  taken  by  the appellant to bring the necessary parties on the record.   It is true that under 0. 1 r. 9 of the Code of Civil  Procedure

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no  suit  shall be defeated by reason of the  misjoinder  or non-joinder  of parties; but there can be no doubt  that  if the parties who are not joined are not only proper but  also necessary parties to it, the infirmity in the suit is  bound to  be fatal.  Even in such cases, the Court can under 0.  1 r. 10, sub-rule 2 direct the necessary parties to be joined, but  all this can and should be done at the stage  of  trial and that too without prejudice to the said parties’ plea  of limitation.   Once  it  is held  that  the  appellant’s  two brothers are co-heirs with her in respect of the  properties left  intestate by their mother,, the present suit filed  by the  appellant  partakes  of the character  of  a  suit  for partition,  and in such a suit clearly the  appellant  alone would  not  be  entitled to claim  any  relief  against  the respondents.   The estate can be represented only  when  all the three heirs are before the Court.  If the appellant per- sisted in proceeding with the suit on the basis that she was exclusively entitled to the suit property, she took the risk and it is now too late to allow her to rectify the  mistake. In  Naba Kumar Hazra & Anr. v. Radheshyam Mahish  &  Ors.(1) the  Privy Council had to deal with a similar situation,  In the  suit  from which that appeal arose, the  plaintiff  had failed to implead co-mortgagors and persisted in not joining them despite the pleas taken by the defendants that the  co- mortgagors  were  necessary parties and in the end.  it  was urged  on his behalf that the said co-mortgagors  should  be allowed to be impleaded before the Privy Council.  In (1)  A.I.R 19 31 P.C. 229. 13 support of this plea, reliance was placed on the  provisions of O. 1 r. 9 of the Code.  In rejecting the said prayer, Sir George Lowndes, who spoke for the Board observed that  "they are unable to hold that the said Rule has any application to an  appeal before the Board in a case where the  defect  has been  brought to the notice of the party concerned from  the very  outset  of  the  proceedings  and  he  has  had  ample opportunity of remedying it in India." In  the  result,  the appeal fails and  is  dismissed.   The appellant has been granted special leave to file this appeal as a pauper.  In the circumstances of this case, however, we direct that she need not pay the Court-fees which she  would have hadto pay if she had not been allowed to appeal as  a pauper. There would be no order as to costs throughout. MUDHOLKARJ.-I  regret  my  inability  lo  agree  with   the conclusion  of my learned brother Gajendragadkar J.  on  the second point and consequently with the ultimate decision -of the  appeal  as proposed by him.  My reasons  for  taking  a different view are these: The  sale  deed  on which the  appellant  relies  admittedly ’stands  in  the  name of her mother.  It is  no  longer  in dispute that the consideration for the transaction proceeded not from her mother but from her father.  It was because  of this latter circumstance that the respondents contended that the transaction was benami.  After examining the entire evi- dence adduced by the parties,, the trial court negatived the respondent’s  contention.   Though  the High  Court  took  a -different  view,  my learned brother has held  and  in  ,my opinion rightly, that the conclusion of the High Court  -was wrong and that of the trial court was correct on this point. The  position, therefore, is that the property  in  question was  that  of  the appellant’s mother  at  her  death.   The respondents,  however, contended that even so the suit  must fail  because the appellant had failed to join her  brothers as  parties to the suit because they were co-heirs of  their mother  along with her.  That would be the correct  position

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under s. 12 of the Mysore Hindu Women’s Rights Act  provided the property is deemed to have been purchased by the  mother herself.  The short question, therefore, is whether 14 upon the findings that the property was not purchased by the appellant’s father benami in the name of her mother and that the  consideration for the transaction entirely flowed  from the  father,  the inference must be that  the  property  was purchased by the mother.  No doubt, the sale deed stands  in her  name.  But the fact remains that the consideration  did not  flow from her but from the appellant’s father.   It  is interesting to mention that on February 9, 1948 the  respon- dent’s  counsel made an application under 0. VI, rr.  5  and 11,  Code of Civil Procedure calling upon the  appellant  to furnish further particulars with regard to her claim to  the property  in question in view of s. 12 of the  Mysore  Hindu Women’s Rights Act.  She furnished the following particulars on February 17, 1948:               "The  property detailed in Schedules 1 and  11               was  all conveyed to Rajambal under  one  sale               deed  as stated in paragraph 5 of the  plaint.               She  stood  by her husband  in  his  adversity               sacrificing her possessions for him which  she               got as presents from her own parents.  He  was               deeply attached to her, and indeed they were a               loving  couple.   Out of love,  affection  and               gratitude  and with a view to make  her  self-               sufficient,  he provided the money to  acquire               the property for her own, absolute use,  which               she while alive had even decided and announced               to give away to the plaintiff ultimately." The  appellant’s  case,  therefore,  clearly  is  that   the purchase  money  was provided by her  father  for  acquiring property for the absolute use of her mother.  By  negativing the  finding  of  benami made by the High Court  we  are  in effect  holding  that  the  property  was  acquired  by  the appellant’s  father with his own money for her  mother.   In this  state  of  affairs; it is difficult  to  see  how  the transaction could be split up into two parts, i.e.,, a  gift of  the  money  by the father to the  mother  in  the  first instance  and  the purchase by the mother of  that  property subsequently  with  that money.  In my  judgment,  upon  the pleadings there is no scope for splitting up the transaction into  two  parts like this.  It is not even  an  alternative contention of the respondents that the trans- 15 action was in two parts and that what the father gifted  was the  money  and not the property.  It would  be  *indeed  an artificial way of looking at the transaction as was done  by the  trial  court as being constituted of  two  parts.   The transaction  in  my judgment is one indivisible  whole,  and that  is,  the father provided the money for  acquiring  the property in the mother’s name.  Therefore, in effect it  was the father who purchased the property with the intention  of conferring  the beneficial interest solely upon the  mother. Such  a transaction must therefore amount to - a  gift.   In that view the property would not fall under cl. (d) of s. 10 of  the Act but under cl. (b) of that  section.   Therefore, the appellant would be -the sole heir of her mother and  the non-joinder of her brothers would not defeat the suit so far as  she  is conceded.  In the result I would set  aside  the decree  of  the courts below in so far as  the  property  in question,  Beverly  Estates,  is concerned  and  decree  the appellant’s  suit  with  respect to it in  addition  to  the property  with respect to which she has already  obtained  a

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decree in the courts below.  I would further direct that the respondents will pay to the appellant proportionate costs in all the courts.                        ORDER BY COURT In accordance with the opinion of the majority the appeal is dismissed.   No order as to costs.  Appellant need  not  pay court fees.