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Judgment
Devadoss, J.—The first point argued in this Second Appeal, is that there is no evidence, for the finding of the Judge that the purchaser was
an undivided brother of the decree-holder; and secondly, there is no evidence that the purchase was benami for the decree-holder. There is no
evidence on record to show that the auction-purchaser is the undivided brother of the decree-holder. What is urged on the side of the respondents
is that in the written statement, the defendants pleaded that the purchaser was an undivided brother of the decree-holder and the plaintiff did not
deny the statement on oath. In the first place, there is no presumption that if there are two brothers they should be considered as members of a
joint Hindu family. Secondly, granting that they were members of a joint Hindu family, there is no presumption, that one brother must necessarily
buy property for the benefit of the other brother. Even if there was a joint family of which the decree-holder and the auction-purchaser were
members, the onus would be upon the defendants, to make out that the purchaser purchased the property, for the benefit of the other brother. The
decree-holder might have brought the property with his self-acquisition. There is absolutely no evidence as to the source of the money, or as to the
intention with which this purchase was made. On this point, I think the learned Judge has erred and the judgment of the lower Court cannot be
supported.
There are other points in the case, which it is unnecessary to deal with, in the view, I have taken of the first point.
The respondents contend that there is some mistake in the sale certificate. There is no dispute as to the identity of the property that was sold in
auction. In drawing up the sale certificate, North and South were transposed, evidently owing to a slip: that does not make the sale certificate an
invalid document.
In the result, the judgment of the lower Court is set aside and the judgment of the District Munsif restored, with costs in this Court, as well as in
the Court below.