JUDGMENT.
ZAFFAR HUSSAIN MIRZA, J.-=This is a certificated Letters Patent Appeal directed against the judgment of a learned Single Judge of the erstwhile High Court of Sind & Baluchistan, Karachi dated, 15-2-1971, whereby the second appeal filed by the respondents vita: allowed.
2. The controversy in this case relates to agricultural land bearing Survey No. 58 and 1/3 share in Survey No. 348/2 in Deh Arazi, Taluka Ghotki District Sukkur. The facts as disclosed in the judgment are that the respondents herein are the heirs and legal representatives of one Hussain Bakhsh.
Appellant No. 2 herein is the daughter of Hussain Bakhsh and Appellant No. 1 is the .Son of appellant No. 2: Therefore, appellant Dost A.I the grandson of the said Hussain Bakhsh. In the year 1959 the said Hussain Bakhsh filed a suit for declaration that be is the real owner of the aa,)resaid property and the entry in the Revenue records in the name of appellant Dost Muhammad alias Dost A.I is "benami". He also sought further relief of injunction to restrain the appellants from dispossessing him from the said land but during the pendency of the suit the prayer clause was amended substituting the prayer for injunction with a prayer for possession on the ground that pending the suit Hussain Bakhsh had been dispossessed by appellant Dost A.I. The case of Hussain Bakhsh was that he had acquired the lands in dispute by purchase from his own resources, but since he was in Government service at the relevant time the ownership of Dost A.I was ,Qhown in the official record as he was his grandson and he had no male issue. According to him 1/2 share in Survey No. 55 was purchased in the year 1926-27 from his father-in-law A.I and the other I was purchased by him in the year 1932 from the two Hindu co-sharers. As to the 1/3rd share in Survey No. 348/2 he alleged that it was purchased in the year about 1947. According to his version the sales in question were oral and were regularised in the year 1936 when the sellers at this instance made a statement before the concerned Mukhtiar kar admitting that the sales were made in favour of Dost A.I who was a minor at that time. The appellant resisted the suit denying the allegations that Hussain Bakhsh was the real owner of the suit property by purchase. According to their plea the land in question was purchased by Sachey Dino the father of appellant Dost A.I in the name of Dost A.I and that during his minority his father died and his uncle acting as his guardian looked after the land which was taken over by Dost A.I on attaining majority. It was alleged that the suit had been filed as a result of ill-will on account of the fact that Dost A.I had divorced Mst. Hajra belonging to the family of Hussain Bakhsh and his second marriage of a girl outside the family.
3.The learned Sub-Judge decreed the suit in favour of Hussain Bakhsh on a finding that the consideration for the purchase of the property was paid by Hussain Bakhsh and that Dost A.I was a mere Benamidar. In appeal the learned District Judge, Sukkur while agreeing with the finding of the first Court that the consideration for the purchase of the land in dispute had been provided by Hussain Bakhsh and repelling the defence theory that the purchase was made by the father of Dost A.I, nevertheless, reached the conclusion that the land had been purchased by Hussain Bakhsh for the benefit of Dost A.I and, therefore, the latter was not a Benamidar by real owner of the same. -In this view of the matter he allowed the appeal and dismissed the suit of Hussain Bakhsh.
The learned District Judge based his conclusion on what he considered to be an admission made by Hussain Bakhsh in his deposition that the entry in the Revenue Records was got made by him in the name of Dost A.I as the latter was his grandson and he (Hussain Bakhsh) had no male issue, therefore, he wanted that some property be in the name of Dost A.I. By this statement the learned District Judge was of the view that Hussain Bakhsh "gave away his case by clearly saying that although the land in suit was purchased by him, he purchased it for the benefit of his daughter's son Dost A.I who was a minor". In support of his conclusion the learned District Judge relied upon the fact that admittedly Hussain Bakbsh had purchased other land for his brother also. Additionally the learned District Judge found corroboration for this fact from Hussain Bakhsh's own witness Allah Rakhio whose inter--vention was sought at one stage -by the parties to resolve their dispute a one of the two arbitrators and in his deposition he had stated that Hussain Bakhsh had admitted that he got the land entered in the name of Dost A.I in the Revenue Records so that there should be some property with him when the (Hussain Bakhsh) dies. Basing his conclusion, on these facts the learned District Judge held that though the property in suit was purchased by Hussain Bakhsh with his own money he had clearly done so foe the benefit of Dost A.I whom he held to be beneficial owner of the property and not a benamidar.
4. In second appeal filed by the respondents in this Court the learned Single Judge reappraised the evidence on which reliance was placed by the learned District Judge and took a different view of the statements made therein, holding that the particular statement of Hussain Bakhsh read alongwith the next following statement contained in his deposition, the clear import of the relevant portion of the testimony of Hussain Bakhsh was that "he intended the properties purchased by him to stand in the name or names of male members of his family including Dost A.I by way of benami purchases as he was in Government service." As to the evidence of Allah Rakhio the view expressed by the learned Single Judge was that his evidence was given from memory and read as a whole was inconsistent. Accordingly the learned Single Judge came to the finding that since the property was purchased with the funds provided by Hussain Bakhsh he must be held to be the real owner of the property. Additionally the learned Single Judge has expressed the view that Dost A.I did not set up a case of advancement as was made out by the learned District Judge on his behalf which was not permissible in law. It was also found that the English principle of advancement was not applicable in Pakistan. For these reasons the learned Single Judge allowed the appeal of the respondents and set aside the judgment of the District Judge restoring the decree passed by the Single Judge.
5. It was urged before us on behalf of the appellants that the learned Singe Judge proceeded as a misconception of law in holding that the District Judge was wrong in deciding the case against Hussain Bakhsh on the ground that he had purchased the property for the benefit of Dost A.I. The submission was that the plaintiff had to prove his own case and cannot succeed on the weakness of the defendant's case. Counsel pointed out that the case of Hussain Bukhsh was that the transfer which ostensibly stood in the name of Dost A.I was a benami transaction and that he was the real owner. This allegation was denied by Dost A.I in his written statement. It was, therefore, for Hussain Bakhsh to establish his case and affirmatively prove the transaction to be benami. Now the evidence on record shows that the two survey numbers in dispute were purchased by oral transactions, and, therefore, no Registered Sale-deed was produced by either side for the acquisition of ownership. The only evidence of the transactions are the entries in the Revenue Records which show the name of Dost A.I as the purchaser. The fact that Dost A.I was a minor and related to Hussain Bakhsh by a close relationship being his grandson is also denied. It is also. On the record that Hussain Bakhsh had no male issue. Having regard these surrounding circumstances, it will be of advantage now to reproduce the statements of the two witnesses on the interpretation of which there is disagreement between the District Judge and the learned Single Judge. Hussain Bakhsh stated in his deposition as under :- "I got the Khata in the name of defendant Dost Mohammad. As the defendant was my grandson and I had no male issue and I had given other property to my brothers I wanted that some property be in the name of Dost Mohammad. Though the Khata was in the name of Dost Mohammad 1 was in possession and enjoyment of the produce of the land from the beginning till now."
Plaintiff's witness Allah Rakhio who was the arbitrator nominated by Dost A.I stated as follows :- "Haji Hussain Bakhsh replied that he made the land in question to be entered in the Khata of Dost A.I so that there should be some property with him, when he died."
Before considering the correctness of the conflicting conclusions arrived at by the District Judge and the learned Single Judge, 1 may first state the rule of determining the nature of a transaction alleged to be a benami transaction. The learned Single Judge has referred to the case of Ismail Dada Adam Soomar v. Shuhrat Bano (1) in which it was observed that the English principle of advancement does not apply to the Sub-continent and accepted the plea of the husband who had provided the consideration for the purchare of property wife the name of the wife to be the real owner. The test to determine the nature of the transaction can be found in the following words :- "The doctrine of the intended advancement in favour of the wife not being applicable in this country, there would be a resulting trust in favour of the husband who provided the purchase money in absence of proof of contrary intention. The question whether a transfer in the name of the wife for which the consideration was paid by the husband is a benami transaction or amounts to a gift is always one of Intention. And the intention to be determined is of the time when the transaction took place. The question which must be squarely answered is: Did the husband intend to make an absolute gift of the property to the wife? In determining true intention regard must naturally be, had to the surrounding circumstances, and the subsequent conduct in so far as it is relevant to the understanding of the initial intention."
It will plainly appear from the above passage that although the learned Judge rejected the application of the principle of advancement, he did not rule out completely that where the consideration flows from the husband, in a given case if it is shown that the intention of the husband was to make a gift in favour of the wife, the question- cannot be determined merely on the basis of the inapplicability of the principle of advancement. In such a case it will be obviously open to the Court after taking into consideration the surrounding circumstances and The subsequent conduct to hold that the transaction was a transaction of a gift in favour of the wife. In Sultan v. Mouladad (2) Noorul Arfin, J. (as he then .Was) enunciated the nature of a 'benami' transaction in the following words :- "A transaction of this nature really consists of two transactions. One is the agreement express or implied, between the ostensible owner and the 'benamidar', by which the latter agrees to purchase the property in his name but for the benefit of the person who advances. The consideration, i.e. the ostensible owner. The other is a transaction between the 'benamidar' and the 'seller' of the property, to which transaction the ostensible owner is not a privy."
(1) PLD 1960 Kar. 852(2) PLD 1969 Kar. 221 The learned Judge refused to enforce the transaction at the instance of the ostensible owner on the ground that its object was fraudulent and, therefore, the contract was not enforceable in view of section 23 of the Contract Act. It was laid down that the rule that an ostensible owner cannot enforce his right against the 'benamidar' if the object of the agreement betweenthe two parties its fraudulent, has been recognized in several decisions. It would, therefore, seem to me that where the benamidar is a minor, as in the present case there cannot be any question of there being a enforceable agreement between the ostensible other and the benamidar express or implied to hold the property for the benefit of the person who advances the consideration.
6. Be that as it may, I would now examine the evidence and the circumstances on record on the question of intention. In the first instance let me point out that the learned District Judge and the learned Single Judge have both omitted to take into consideration another important piece of evidence having a bearing on this question. Plaintiff Hussain Bakhsh also examined the other arbitrator P. W. 7 Mohammad Bakhsh who was nominated by Hussain Bakhsh himself. He stated as follows; "Haji Hussain Bakhsh claimed to have purchased the land in question from his own funds. He was in Government service and was not able to make the purchase. Hence he purchased it in the name of his grand maternal son. He disclosed that he purchased it with intention to give it over to Dost A.I at last. He said that due to some moral principles. He is not prepared to give the same to Dost A.I."
This witness also stated that according to the explanation of Moulvi a gift can be revoked by the donor. The aforesaid statement of this witness is a positive evidence of admission by Hussain Bakhsh that at the time of the purchase of the property in question his intention was to make a gift in favour of Dost A.I but he had subsequently changed his mind to revoke the gift on account of moral principles. In my view this lends support to the plea of Dost A.I that the suit was filed against him as he had divorced his wife belonging to the family and had married an outsider.
7. The learned District Judge has carefully examined the evidence relating to the payment of land revenue assessm ent by Hussain Bakhsh apparently relied upon in support of his claim that be had remained in possession of the land and reached the conclusion that land revenue was paid sometimes by Hussain Bakhsh when Dost A.I was out in connection with the Government service.
He observed that there is evidence on record also showing that Dost A.I himself too paid land revenue assessm ent for the land. Since Dost A.I at present is admittedly in possession the obvious inference is that he enjoyed the possession in the past. This aspect of the case was not adverted to by the learned Single Judge. - The other circumstances are that according to the plaint Hussain Bakhsh remained in Government service from the year 1909 and retired in 1945 and yet even after retirement, therefore, on his own admission he suffered the name of Dost A.I to continue to remain as the owner in the Revenue Records until the year 1958 when he set up a claim for the first time to be the real owner. He has admitted in the cross-examination that Dost A.I attained majority in 1946-47 and- entered service in 1949. The fact cannot be ignored that Dost A.I is the son of the daughter of Hussain Bakhsh and was a minor at the. Time of purchase and Hussain Bakhsh had no male issue. This circumstance tends very strongly to point to the intention of Hussain laakhsb to make a gift in favour of his minor grandson when his father left very little property. The learned Single Judge has taken the view that the admission made by Hussain Bakhsh in the first part of the passage quoted above becomes meaningless, firstly because in the next following sentence Hussain Bakhsh asserted that notwithstanding the entry in the name of Lost A.I he remained in possession and enjoyment of the produce of the land. We are unable, with all respect to the learned Judge, to understand the reasoning of this conclusion. We have perused the entire evidence of Hussain , Bakhsh and find that there is no unequivocal assertion in it that the land in dispute was purchased benami in the name of Dost A.I. The other reason assigned by ;he learned Single Judge is that Hussain Bakhsh had purchased lands in the names of his brothers which were not shown to be for their beneficial interest and, therefore, the present transaction was also not for the beneficial interest of Dost A.I. In the first instance, there is no proof on record that those transactions ostensible in the names of brothers of Hussain Bakhsh were really benami. It was for him to have produced evidence in this regard. Secondly there is nothing in the evidence that these transactions have been recognized by the ostensible owners to be benami and in favour of Hussain Bakhsb. The conclusion of the learned Single Judge from this circumstance that the transaction in dispute were also motivated by similar considerations is, therefore, not sustainable in law. We are sure that if the learned Single Judge was pointed out the admission made by Mohammad Bakhsh in his deposition, he would have reached a different conclusion. As held in Sadegur Rahman v. Abdul Bari (1) it is well settled that the onus probandi to prove the benami character of a transation lies upon him who alleges it. (See also AIR 1938 Mad. 8). On an overall consideration of all the aforesaid circumstances on record we have, therefore, reached the conclusion that Hussain Bakhsh failed to establish the benami character of the transac--tions and the evidence shows that his intention was to purchase the property for the beneficial interest of Dost A.I.
8. The only remaining point that requires consideration iswhether the Court can hold that Hussain Bakhsh had purchased the disputed property for the benficial interest of Dost A.I when in his pleadings he did not raise any such plea. As already pointed out the plea of Dost A.I in his written statement was that he is the owner of the disputed lands as the property was purchased by his father and after his death his name was entered in the Revenue Records as owner. He denied the allegation of Hussain Bakhsh that the latter had purchased the lands or that Hussain Bakhsh was the owner of the land. In para. 7 of the written statement he asserted that the Khata was mutated in his favour as a real purchaser and not as benamidar for Hussain Bakhsh. It is, therefore, clear that the case of Hussain Bakhsh that the transaction in question was in the nature of a benami purchase was denied by Dost A.I in his pleadings. In Jagdish Narain v. Ahmed Khan (2) the plaintiff sued for ejectment on the basis of title in the suit property. The defendant in the suit had denied the title of the plaintiff and claimed that absolute ownership of the property in suit vested in the widow of one Ahmed Khan who had made a, gift of the property to Mobammadi Begum who in turn mortgaged the same and finally it was sold by the Court at the instance of the mortgagee. The defendants claimed -the property as heirs of the purchaser at the Court Sale. The first Court dismissed the suit on the ground that the plaintiffs had failed to prove their title. The High Court, however, held that the defect in the title of the plaintiffs had not been pleaded by the defendant and expressed the view that the first Court had made out a case for the defendants which was not foreshadowed in the witness statement and was not set up at the trial. Their Lordships of the Privy Council disagreed with this view of the High Court on the ground that the plaintiffs could only succeed on the strength of their own title and that there was no obligation upon the defendants to plead possible defects in the plaintiffs' title which might manifest themselves when the title was disclosed. It was considered sufficient that in the written statement the defendants denied the plaintiffs' title and under this plea they could avail themselves of any defect which such title disclosed. The principle laid down in the cited judgment is applicable was that it was purchased by him ostensibly in the name of Dost A.I. The burden of proof was on Hussain Bakhsh to prove his case as pleaded by him and he cannot succeed on the weakness of the case of the defendant.
From the aforesaid discussion it will appear that Hussain Bakhsh failed to establish a case of benami transaction. The. Necessary consequence would be to hold that Dost A.I in whose name the property was entered as owner was the real owner. This is further fortified by the statutory presumption contained in section 135-J of the Sind Land Revenue Code, 1879 which requires that an entry in the Record of Rights and a certified entry in the Register of Mutation shall be presumed to betrue until the contrary is proved or a new entry is lawfully substituted there--for. It will be appreciated that the purchase in the name of Dost A.I was not by a registered document but on an oral statement of the vendor before the Revenue Officer, who made the entries in the Record-of- Rights. Unless, therefore, Hussain Bakhsh discharged the onus that lay on him to prove the incorrectness of the entries the statutory presumption that Dost A.I was the owner would operate in his favour.
(1) PLD 1971 Dacca 120(2) AIR 1946 P C59
9. For the foregoing reasons, we accept this appeal and set aside the judgment of the learned Single Judge and restore that of the District Judge, with no order as to costs.