' FAKHRUDDIN H. SHAIKH, J.--This L.P.A. Has been filed by the appellant Asgbari Begum wife of Muqeemuddin Ansari from the Judgment, dated 30th April, 1971 of a learned Single Judge of this Court in Suit No, 29 of 1967 filed by respondents Nos. 1 to 7 against her.
' The facts set up by the contesting parties in their pleadings are as under :
2. Muqeemuddin Ansari, the predecessor of the parties, was serving as Superintendent Survey of India from which post he retired in 1943. At that time he was drawing Rs, 1,500 per month as salary.
After retirement he was granted pension @ Rs, 583 per month. He had three sons and two daughters from his first wife Saeeda Begum, who died in 1941 in India. They are Akram Muqeem, Ahsan Muqeem (respondent No, 1), Azam Muqeem, (respondent No, 2), Mst. Aziza Muqeem (respondent No, 3) and Mst. Mehmooda Muqeem (respondent No, 8). Akram Muqeem died during the pendency of the suit, hence his widow, a son and two daughters were brought on record as his legal representatives. They are Mst. Noor Ilahi (respondent No, 4), Mst. Shagufta (respondent 5), Saleem Akram Ansari (respondent No, 6) and Nadeem Akram Ansari (respondent No, 7).
3. In 1943 Muqeemuddin contracted second marriage with appellant Asghari Begum when she was 15/17 while the former was 55. He had no issue from this second wife.
4. In the year 1947 Muqeemuddin migrated to Pakistan alongwith his whole family except Memooda Begum (respondent No, 8) who was married in India and is still residing there with her husband as an Indian national. They settled in Karachi.
5. Mr. Ghulam Sabir Ansari, brother of the appellant owned a Plot No, 36 measuring 1,500 sq. Yds. In Islamabad Co-operative Housing Society Ltd,, whose name was changd later as Musliimabad co- operative Housing Society Ltd. Karachi (hereinafter referred to as the `Society'). Muqeemuddin wanted to purchase this plot to construct a house of his own. It was alleged by the contesting respondents Nos. 1 and 7 in their suit that, according to Bye-laws of the Society, only those persons who were domicile of Sind, were entitled to become members of the Society. Muqeemuddin was not a domicile of Sind while his wife appellant Asghari Begum was. Hence be purchased the plot from Ghulam Sabir in the name of the appellant as Benamidar in the year 1949. On the letter of Ghulam Sabir to the Society, the latter transferred the plot in favour of the appellant. It is further alleged in the suit that Muqeemuddin engaged contractor Mir Gul of Mirsons for construction of a house on this plot, but he left the work incomplete, after having accepted Rs, 13,000 as advance.
Hence another contractor M/s. B. A. Siddiqui was engaged by him, who completed the bungalow in 1950-51, with the funds provided by Muqeemuddin.
6. It is further alleged by respondents Nos. 1 to 7 (plaintiffs) in their suit that Muqeemuddin died intestate in Karachi on 10th July, 1965. Till then the parties had been living jointly in the house, but in September, 1965 they were driven out of the house by the relations of the appellant. In fact only Azam Muqeem lived in this house with his father and the appellant, while Akram, Ahsan and Aziza had earlier shifted to other houses due to their marriage. However, since September, 1965 the appellant is in exclusive possession of this house and is claiming to be the real owner of the house.
7. Azam Muqeem, as attorney of other respondents, then filed the suit against Asghari Begum in January, 1967. Since Mehmooda Begum was in India and did not contest the suit, hence she was joined as formal defendant No, 2, Asghari Begum being defendant No,
1. Originally the suit was filed by Akram, Azam, Ahsan and Mst. Aziza only. After the death of Akram Muqeem, his wife, a daughter and two sons were joined as co-plaintiffs (who are respondents Nos. 4 to 7). As respondents Nos. 1 to 7 only are the contesting respondents, hence they only will be referred to hereinafter as the 'respondents', because Mst. Mehmooda Begum who is in India, had remained ex parte during the suit, and in the appeal also she has been joined as formal respondent. The respondents have sought following reliefs in the suit :- "(i) To hold and declare that late Mr. Muqeemuddin Ansari was the real owner of the property bearing No, 36, situated in Muslimabad Co-operative Housing Society Ltd., Karachi, with construction thereon and the defendant No, 1 is merely a Benamidar of the said Muqeemuddin Ansari ;
(ii) partition the property in question by metes and bounds in accordance with the shares of the parties under Muslim Law and allot to each of them their respective share in severalty ;
(iii) grant possession to the plaintiffs and the defendants of their respective allotments according to the shares of each in the property OR ' In case the partition of the property cannot be reasonably or conveniently made, the alternative direct that the property be put to sale by public auction or otherwise and shares of the plaintiffs be paid from out of the sale-proceeds ;
(v) grant such other relief and pass such other order as the Court may deem fit in the circumstances of the case ; and
(vi) grant cost of the suit."
8. In her written statement, the appellant refuted the claim of the respondents that the plot was purchased by her husband Muqeemuddin or that he had incurred all expenses for constructing the house on this plot. She claimed that the cost of the plot i,e, Rs, 15,000 was adjusted out of her dower money which was Rs, 20,000 and that she had financed the construction out of her own funds which she had received from her father at the time of her marriage and by way of inheritance and from her land. She further alleged that as she observed strict Purdah, hence her deceased husband only supervised the construction work on her behalf. The agreements with the contractors were also executed by the deceased on her behalf. In para. 10 of her written statement she states :- "Therefore, during construction at times her husband helped the answering defendant financially by giving her or the contractors etc. On her behalf some of the expenses of construction, but be always treated and declared the said plot and construction thereon to be the exclusive property of the answering defendant."
' Again in para. 19 she states as under : "19. That without prejudice and in furtherance and/or as an alternative to what is stated above it is submitted that whatever moneys, if any spent by late Mr. Muqeemuddin Ansari from his own funds were gifted away by him to the answering defendant and he always treated the said plot and construction thereon to be the exclusive property of the answering defendant."
' She, therefore, denies that she is holding this house as Benamidar, and claims to be the real owner thereof.
9. On the above pleadings following issues were framed by the learned Single Judge :-
(1) Whether the plaintiff No, 1, is the duly constituted attorney of the plaintiffs Nos. 2 to 4 and whether the suit is properly filed ? #TBS (3) #TBE
(2) Whether the membership of the Islamabad Co-operative Housing Society Limited was restricted to persons domiciled in the former Province of Sind ?
Whether the plot in question was secured and/or purchased by Muqeemuddin Ansari from his own funds ? If so whether it was purchased Benami in the name of defendant No, 1 ?
(4) Whether the bungalow in question was constructed out of the resources and funds of late Muqeemuddin Ansari ? If so what is its effect ?
(5) Whether the plaintiffs and/or the defendant No, 2, are entitled to have any share in the bungalow in question according to the Muslim Law as heirs of late Muqeemuddin Ansari ?
(6) Whether the court-fee paid by the plaintiffs is insufficient ?
(7) Whether the property can be conveniently and reasonably partitioned and if so bow the allotment be made to the respective sharers ?
(8) Whether the monies, if any, spent by late Muqeemuddin Ansari on the purchase of the plot and/or on constructions thereon were gifted away by him to the defendant No, 1 ?
(9) What should the preliminary decree be ?
(10) What should the final decree be ?
' Issues Nos. 1, 2, 6, 7 and 8 were not pressed by the parties, hence the learned Single Judge confined his findings to the remaining issues only.
10. After discussing the evidence of the appellant first, the learned Judge came to the conclusion that she did not have sufficient funds to purchase the plot and raise construction thereon. It was held that the price of the plot was paid by the deceased to Ghulam Sabir, as stated by the latter in his written statement in Suit No, 982 of 1951 (Exh. 53). This suit was filed by the deceased against Ghulam Sabir for Rs, 15,000 given to the latter as loan, on the basis of a receipt, which is not traceable, and is alleged to have been signed by Ghulam Sabir. He further held that the dower of the appellant was only Rs, 5,000 and not Rs,15,000, vide entry in the diary (Exh. 35) maintained by the deceased. He, further held that the deceased had sufficient funds to finance the construction of house on the plot in question.
11. The learned Single Judge further referred to the cases of Sura Lakshmi Ah Chetty and others v.
Koth and Arama Pillai (1), Mst. Siddiqa Begum v. Abdul Jabbar Khan and others (2), Tirthamayi Dassi v. Ati Kulla and another (3), Benoy Krishan Sadhukhan and others v. Panchanan Sadhukhan and others (4) and Kallash Pati Sahai v. Jagarnath Rai (5), in which principles relating to Benami transactions have been laid down. In the first case AIR 1925 P C 181 it has been held "that if an Indian husband purchases property in India in the name of his wife, then unless otherwise explained, the purchase is presumed to be a Benami transaction, by which the beneficial interest in the property is in the husband and the ostensible title in the wife. But the burden to prove that the transaction in `Benami' lies on the person asserting it to be so, though this burden is discharged upon the said person showing that the purchase money was provided by him or some one other than the person in whose name the transaction appears to be." The same view has been taken by Allahabad High Court in the second case. In the third case it was held by Calcutta High Court that "as `Benami' transactions are quite common, even slight quantity of evidence may suffice to show that the person in whose name the property appears to be is not the real owner thereof". In the last two cases it has been held that even direct evidence is not necessary to discharge this burden of proof (of transaction being Benami), particularly when the transaction is an old one. The learned Single Judge was, therefore, satisfied that
(1) AIR 1925 P C 181 (2) AIR 1942 All. 308
(3) A 1 R 1927 Cal. 140 (4) AIR 1935 Cal. 671
(5) AIR 1935 AIL 884 ' the respondents have proved their claim. Consequently a decree was passed in their favour to the following effects :- "(a) The disputed plot, namely, plot No, 36, measuring 1,00 sq. Yds. Situated within the area of Muslimabad Co-operative Housing Society Limited Karachi was acquired by the late Muqeemuddin Ansari from his own funds, but 'Bename in the name of his wife, defendant No, 1.
(b) The bungalow on the said plot of land was constructed by the late Muqeemuddin Ansari out of his own resources and funds and the first defendant held it only `Bename for her husband."
It was further directed that :- "Since there are several co-sharers, it would not be convenient to divide the disputed property between them by means and bounds. It is, therefore, directed under section 2 of the Partition Act, 1893 (Act No, IV of 1893) read with Order XX, rule 18 (2), C. P. C. That the property be sold and its sale-proceeds be distributed among the heirs of the late Muqeemuddin Ansari in the proportion specified above, but that it would be open to any co-sharer to apply to the Court under section 3 of the Partition Act, 1893 for leave to buy at a valuation, which may be determined by the Court, the share or shares of the party or parties asking for sale. As regards costs, the plaintiffs shall be reimbursed out of the sale proceeds of the said property."
12. Mr. Nizam Ahmed, learned counsel for the appellant has challenged the judgment of the learned Single Judge on, inter alia, following grounds :-
(i) That the learned Single Judge has omitted to take into consideration certain very important pieces of evidence which supported the appellant's case ;
(ii) The learned Judge admitted in evidence certain documents which were not admissible in evidence, or which were unstamped ;
(iii) That certain documents were wrongly relied upon under section 32 of the Evidence Act which was not applicable to the case ; and
(iv) That the learned Judge erred in discarding the evidence produced by the appellant.
13. Since the judgment of learned Single Judge has been impugned both on legal and factual grounds, hence it will be appropriate to refer to the evidence led by the parties in support of their respective claims.
14. The respondents (plaintiffs) have produced the following witnesses :-
(1) P.W. No, 1 Rais Ahmed (Exh. 19).-He is employee of the Cooperative Department and has produced copy of the Bye-laws (Exh. 21) of the Society, showing that bye-law r4o. 7 was amended on 13th May, 1952 so as to open the membership of the Society to all citizens of Pakistan. According to the unamended bye-law No, 7, the membership was restricted to bona fide residents of Sind only.
(2) P.W. No, 2 Feroz Khanewal (Exh. 24).-He is an employee of Sind Patent Tiles Co. He has produced six vouchers (Exhs. 25/1 to 25/6) issued by his Company to Mr. Muqeemuddin Ansari for purchase of tiles in connection with construction on Plot No, 36 in the Society.
(3) P.W. No, 3 Habibullah (Exh. 26).-Habibullah is -an employee of Lloyds Bank. He has produced statement of account of Muqeemuddin from 1952 onward. He has stated that from 27th February, 1956 the account was in the joint name of the Muqeemuddin and Mst. Asghari Begum, while before that it was exclusively in the name of the former. The statement of account in the name of Muqeemuddin is Exhs. 27/1-6, while the statement of joint account is Exhs. 28/1 to 17.
(4) P.W. No, 4 Azam Muqeem Ansari (Exh. 32). As he is the main witness in the case, hence his evidence needs to be discussed in detail. He is respondent No, 2 and holds power of attorney on behalf of other contesting respondents. He has given the facts as stated in the plaint, the substance of which has been narrated above. He has further given the details of the cash which the deceased had brought with him from India while migrating to Pakistan in November, 1947. He has deposed that his father had paid to Ghulam Sabir the value of the plot in question i. e. Plot No, 36 in 1949. But he does not say how much amount was paid nor does he claim to be present at the time of such payment. He has produced allotment letter in respect of plot No, 36 in favour of Mr. Ghulam Sabir as Exh. 36 and the letter of the Society transferring this plot in 1949 to the appellant Msr. Asghari Begum as Exh.
37. He has further produced following documents in support of his claim that the house was constructed by his deceased father and not by the appellant :
(i) Agreement between contractor Mir Gul and Muqeemuddin deceased for construction on Plot No, 36 (Exh. 38). (This is an unstamped document but was admitted in evidence subject to payment of prescribed penalty by the respondent's counsel who had undertaken to do the needful). i) Similar agreement of the deceased with another contractor B.A. Siddiqui (Exh. 39). This is also unstamped but was admitted on the same condition as were attached to the first agreement.
(tit) Two receipts for payments made by the deceased to the contractors on 22nd September, 1949 and 2nd July, 1949 as Exhs. 40 and 41, respectively.
(iv) Bills and letters addressed by contractor B. A. Siddiqui to the deceased as Exhs. 42 to 47.
(v) 47 Vouchers for building material purchased by the deceased as Exhs. 48/1 to 47. All this material was purchased during the year 1950 (These documents were admitted subject to objection of the defendant's (appellant's) counsel Mr. Nizam Ahmed that the persons who had issued the vouchers shall be examined).
(vi) 13 receipts for payments purported to have been made by the deceased to labourers as Exhs.
49/1 to 11 (These were also admitted subject to the same objection as above). It may be stated that neither the vouchers nor the receipts have any reference to construction on Plot No, 36.
(vii) Letter of Architect Zaheeruddin Pathan and the estimate of the construction left incomplete by the first contractor Mir Gul as'Exhs. 50 and 51.
(viii) Certified copies of documents from the record of Suit No, 982 of 1951 filed by the deceased against Ghulam Sabir for R s. 15,000 which was given as loan to the latter as Exhs. 52, 53, 54, 55 and 56, which are plaint, written statement, award, objections to the award filed by the deceased and order of the Court, dated 29th April, 1955 in that suit, respectiveiy.
(ix) Diary maintained by the deceased as Exh.
35. Besides the above documents, this witness was confronted in cross-examination with some other important documents relating to this house. These documents were produced by the appellant alongwith her written statement. These documents are as under
(a) Exh.
14. This is copy of a letter to Income-tax Officer written by the appellant, the last sentence of which is : have no taxable income. The expenses on the construction of my (torn) roomed house mentioned in the return were incurred out of my inherited money, I had brought with me from India'.
The witness admits that this letter is in the handwriting of his deceased father, but he cannot say if it bears signature of the appellant. This letter is dated 23rd September, 1963.
(b) Exh. 30/1.-This is a letter written by the appellant to the Secretary of the Society saying that 'after may death my share and interest in the Society may be transferred to a charitable institution or to a deserving girl student studying medicines. I leave the choice to the Managing Committee'.
This is dated 24th July, 1953."
' This is copy of the original letter and purports to have been signed by the appellant. The witness admits that this letter is in the handwriting of his deceased father.
' He further admits that the house was completed in 1950 or 1951 and that after the death of his father he lived in this house with the appellant upto September, 1956 and thereafter shifted to another house, leaving the appellant in exclusive possession of the house. He admits that the appellant was 23/24 at the time of her marriage with his father who was 52 at that time i,e, in 1943.
He admits that dower money in Ansari family is usually fixed at Rs, 5,000 but the dower of his sister Aziza was fixed as Rs, 10,000 because she was marred outside the Ansari family. About payment of price for the plot in question the witness says : "as far as I remember my father paid Rs, 3,000 for the plot."
(to Ghulam Sabir). He further says that some more amount was paid afterwards as`pugree'. This was Rs, 13,000 which was adjusted towards the loan taken by Mr. Ghulam Sabir from the deceased.
But be also admits that he was not present at the time of negotiation between his father and Ghulam Sabir about the plot in dispute. #TBS (5) #TBE P.W. No, 5 Abdul Aziz (Exh. 59).-The next witness is Abdul. Aziz. He was Secretary of the Society at one time, but does not know anything about transfer of the plot in dispute.
(6) P. W. No, 6 Qamaruddin (Exh. 60) -Qamruddin is Assistant Record Keeper of District Court, Karachi. He has produced the record of Suit No, 982 of 1951 (Muqeemuddin Ansari v. Ghulam Sabir) as Exh. 60/1.
(7) P.W. No, 7 Zafar Alam (Exh. 61). -Zafar Alam has proved three vouchers Exhs. 48/3 to 48/5 issued by him to the deceased for tiles etc. Purchased by the deceased from him.
(8) P.W. No, 8 Zaheeruddin Pathan (Exh. 62).-He is the Architect, who had prepared the estimate of the incomplete work done by Mir Gul. He has proved the documents Exhs. 50 and 51 already referred to above. In cross-examination he had made very significant statement which needs to be reproduced ad verbatim. It is as under : "I was introduced to Mr. Mokim Ansari by the late Mr. Usman Ali Ansari. I had found that very poor construction was being raised by Mr. Mokim Ansari on a good piece of land, and I pointed this out to Mr. Mokim Ansari, who told me that his wife could not afford more expenses."
(Underlining is ours).
' This is the entire evidence in support of the plaintiffs (respondents) claim that the plot and the house in question actually belonged to the deceased and that the appellant is only Benamidar and not the real owner thereof.
15. In the rebuttal the appellant has produced the following witnesses :- ' D.W. No, 1 Mst. Asghari Begum (Exh. 30) is the appellant who has reiterated the same facts as stated by her in her written statement. She admits that she was married to Muqeemuddin Ansari in 1943 in India and Rs, 20,000 was fixed as dower. She also admits that in Ansari family the dower is usually fixed at Rs, 5,000 and in the case of her own sister the dower was fixed as Rs, 5,000 but in her case due to vast difference between her age and that of her husband, the dower was fixed at Rs, 20,000 by way of security. In lieu of the dower she had received from her husband one diamond set worth Rs, 15,000 purchased in India through one Mehmooda Begum, and Rs, 5,000 in cash on 1st June, 1946 as per entry in the diary Exh. 35/1 (at page 13). Besides the above [Here in italics] ' property and cash, she claims to have received following amount and ornaments :
(1) Ornaments worth Rs, 3,000 to 4,000 received from her parents at the time of her marriage ;
(2) Rs, 500 per year as her share out of the income from the land left by her deceased father : and
(3) Rs, 800 to 1,000 as per share from the income of other properties of her father.
The diamond set was sold for Rs, 17,000 and the ornaments for Rs, 3,000 before coming to Pakistan.
She says that all the above cash was kept by her with her husband. She has produced the approved plan of the building as Exh. 18, which bears her name as owner of the plot No,
36. She has claimed to have spent Rs, 25,000 to 30,000 on the construction of the house, through her husband, who only supervised the construction work. She has produced 25 receipts as Exhs. 17/1 to 25 for water tax paid to K.M.C. All the receipts are in her name. She has produced following more documents relating to this house :- Letter of K.E.S.C. Regarding electric connection (Exh. 16) ; Three receipts for payments made to K.E.S.C. In connection with electric connection-(Exhs. 15/1 to 3) ; Contract with Karachi Gas Company for supply of Gas.(Exh. 11).
This document bears signatures of Mst. Asghari Begum as owner of the house and of Muqeemuddin as a witness ;
(1) Receipts 14 in number for payment of gas charges (Exhs. 13/1 to 13) and (Exh. 12) ;
(2) Letter to the Income-tax Officer, dated 23rd September, 1963 as Exh. 14, in which she has claimed that the house was built by her own money (P.W. Azam has admitted that this letter is in the hand of his father Muqeemuddin) ;
(3) Letter dated 24th July, 1953 to the Secretary of the Society saying that 'my share in the Society be transferred to any charit- able institution after her death'. (P.W. Azam has admitted that this letter is also in the handwriting of his father).
(4) Letter dated 17th October, 1965 of Secretary of the Society to the appellant, by which 5 share certificates of the face value of Rs, 250 were sent to her (Exh. 30/2). These are shares issued by the Society in favour of the appellant ; and
(5) Receipts for payment of electric dues four in number (Exhs. 30/8 to 9).
' All the above documents are in the name of the appellant.
' In cross-examination she states that her husband might have spent one or two thousand rupees over the construction, but he never mentioned it to her, nor claimed the same from her. No nikahnama was prepared at the time of her nikah. She admits that her brother Ghulam Sabir had taken a loan of Rs, 16,000 from her husband, who had filed suit against him for recovery of this amount. This suit was referred to arbitrators, ' D.W. No, 2 Mehmooda Begum (Exh. 31).-Mehmooda Begum wife of Syed Ahmed has deposed that when she was at Dehra Doon (India) in 1944-45 the appellant had purchased a diamond set belonging to one Sheela for Rs, 15,000 through her. The amount for the same was paid by Muqeemuddin and -a receipt was issued to him.
' D.W. No, 3 Mohammad Issa (Exh. 63).-He is Clerk of the District Court, Karachi. He has only produced three documents from Suit No, 982/1951 as Exhs. 63/1 to 3. This record contains a letter (Exh. 63/3) written by Ghulam Sabir to the Secretary of the Society saying that Plot No, 36 allotted to him be transferred to his sister Asghari Begum, and that Rs, 3,000 paid by him for the plot now belong to her. This letter is dated 22nd May, 1949 and its genuineness is not disputed by the respondents.
' D.W. No, 4 Shafiq Ahmed (Exh. 65) and D. W. No, 5 Faizan Azeem (Exh. 66).-They have deposed that in the year 1943 they bad participated in the marriage of the appellant with Muqeemuddin and that the dower was fixed at Rs, 20,000. The ceremony had taken place at Saharanpur. D.W.
Faizan Azeem is uncle of the appellant.
16. Before discussing the merits of the above evidence, it will be appropriate to refer to the cases relating to the question of Benami transactions. Besides the cases referred to by the learned Single Judge mentioned in para. 10 above, following further cases have been relied upon by learned counsel for the parties.
17. Mr. Nizam, learned counsel for the appellant has relied on the following cases :-
(1) Man Mohandas v. Ramdia and others AIR 1931 P C 175 ;
(2) Bhuban Mohinidasi and others v. Kamud Bala Dasi and others AIR 1934 Cal.
467.
(3) M/s. Shalimnr Ltd. Karachi v. Raisuddin and 3 others 1979 CLC 338.
(4) Dost Muhammad and others v. Mst. Satan PLD 1981 Kar. 339 ; and
(5) Muhammad Bibi and others v. Abdul Ghani and 2 others PLD 1975 Kar.
979.
18. Mr. Kunwar Mukhtar Ahmed, learned counsel for the respondents has relied on the following cases
(1) Promade Kumar and others v. Mudan Saha Pramanik and others AIR 1923 Cal. 228 ;
(2) Trithmoya Dassi v. Atikullah and others AIR 1927 Cal.
140.
(3) Shambhu Nath Shivpuri v. Pushkar Nath and others AIR 1945 P C 10 ;-and
(4) Ismail Dada Adam Soomar v. Shorat Banoo PLD 1960 Kar.
852.
19. In AIR 1931 P C 175 one Beharilal had gifted his share in a house to his wife by a deed in writing.
Subsequently he sold the same share to the appellants/purchasers. The latter challenged the deed of gift saying that it was a Benami transaction and sought declaration that the sale in their favour was valid. It was held by the Privy Council that "in order to determine the nature of the transaction, it is of assistance to consider ; ' `the surrounding circumstances, the position of the parties and their relations to one another, the motives which could govern their actions and their subsequent conduct', always remembering that the onus of proof rests upon the party impeaching the deed." The above quotation was taken from the case of Dalip Singh v. Nawal Kanwar (1).
' In the case of Promode Kumar Roy and others v. Madan Mohan Saha Pramanik and others (2), it was held as under by learned Judges of D.B. Of Calcutta High Court :- "As Benami transactions are very familiar in India practice, even a slight quantity of evidence to show that it was a sham transaction may suffice for the purpose. The person, who impugns its apparent character must not rely however solely on probabilities, but must show something definite to establish that it is a sham transaction, on the principle that the burden of proof lies upon the person, who claims contrary to the tenor of a deed and alleges that the apparent is not the real state of things. The most important test to be applied in these cases is the source whence the consideration came. Where, however, from the lapse of time, direct evidence of a conclusive or reliable character is not forthcoming, as to the payment of consideration, the case must be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts. If the evidence on neither side is wholly convincing as to the fundamental criterion, namely, the source of the purchase money, if the evidence given and withheld is open to adverse criticism, the Court must rely on the surrounding circumstances, the position of the parties and their relation to one another, the motives which could govern their actions and their subsequent conduct including their dealings with or enjoyment of the disputed property. We must further look to the substance of the transaction as evidence in the deeds of the parties, not permitting the real question to be obscured by exhibitions of the art of the conveyancer in the shape of recitals of obviously untrue statements introduced to import some additional solemnity to an instrument."
20. In the case of Mls. Shalimar Ltd. v. Raisuddin a learned Single Judge of this Court held that the criteria for determining Benami nature of a transaction is the intention of the party at the time of the transaction to be ascertained from different circumstances, the most important being the source of money. In taking this view the learned Judge had relied on the cases of Ismail Dada v.
Shorat Bano (3) and Mohammad Bibi v. Abdul Ghani (4).
21. In the case of Dost Muhammad v. Mst. Satan, one Hussain Bux had purchased land in the name of his grandson Dost Muhammad, who was minor at the time. In the litigation that followed, Hussain Bux claimed that he was the real owner while Dost Muhammad was only Benamidar in respect of the land. On the basis of some admission of gift made by Hussain Bux in favour of Dost Muhammad, the High Court observed that the sale in favour of Dost Muhammad was genuine being by way of gift. It was further held, with reference to
(1) 35 I A 104 (2) AIR 1923 Cal. 228
(3) PLD 1960 Kar, 852 (4) PLD 1975 Kar. 979 ' the case of Ismail Dada Adam v. Shorat Banoo (1) that although the English principle of advancement does not apply to the sub-continent, yet if it is shown in a given case where the consideration had flowed from the husband for the property which was purchased in the name of and was intended to be gifted to his wife, the claim of the wife cannot be rejected merely on the basis of inapplicable of the principle of advancement.
22. The last case cited by Mr. Nizam Ahmed is of Muhammad Bibi v. Abdul Ghani, in which it was observed by Fakhruddin G. Ibrahim, J. That :- "It is now well setteled that the source of purchase money is not conclusive in favour of the Benami character of a transaction though it is an important criterion. Where there are other circumstances showing that the purchaser intended the property to belong to the person in whose favour the conveyance was taken, the essence of Benami being the intention of the purchaser, the Court must give effect to such an intention.
' Where there are Benami transactions, and the question is who is the real owner, the actual possession of receipt of rents of the property is most important."
23. In the case of Bhuban Mohini Dasi v. Kumud Bala Dasi and others (2) relied upon by Mr. Kunwar Mukhtar Ahmed learned counsel for the respondents, learned JJ of D. B. Of Calcutta High Court have followed the rule laid down by the same Court. In the case of Promode Kumar Roy and others v. Madan Mohan Saha Pramanik and others quoted in para. 19 above and have elaborately dealt with the question of Benami transactions with reference to many other cases in the following words :- "But we are not unmindful that, in the words of Lord Hobhouse in Usman Prosad v. Gandharp Singh (1887) 15 Cal. 20 and of Lord Shaw in Muhammad Mahbub v. Bharatindu AIR 1981 P C 137, as Benami transactions are very familiar in Indian practice, even a slight quantity of evidence to show that it was a sham transaction may suffice for the purpose. The person who impugns its apparent character must not rely however solely on probabilities as Lord Buckmaster observed in Irshad All v.
Kariman AIR 1917 P C 169. He must show something definite to establish that it is a sham transaction, on the principle that the burden of proof lies upon the person who claims contrary to the tenor of a deed and alleges that the apparent is not the real states of things : Azimut v.
Hurdwaree (1870), 13 M I A 395, Faez Bukhsh v. Fukeerooden (1871) 14 M. I. A. 234, Suleiman v. Mehndi Begum (1897) 25 Cal. 473, Nirmal v. Mahomed (1898) 26 Cal. 11, Moti Lal v. Kundan Lal AIR 1917 P C 1.
The most important test to be applied in these cases is as observed by Mr. Ameer All in Nrithyamoni v. Lakhshman Chandra AIR 1916 P C 96, the source whence the consideration came. Sir George Farwell formulated the same test in different language, when he observed in Bilas Koer v. Deoraj AIR 1915 P C 96, that where it is asserted that an assignment in the name of one person, is really for the ' benefit of another person, the principle applies that the trust of the legal estate results to the man who pays the purchase money. To the same effect is the decision of the Judicial Committee in
(1) PLD 1960 Kar. 852 (2) AIR 1924 Cal. 467 ' Parbati v. Baikuntha (1913) 19 C. L. J. 129, which recalls the earlier pronouncements by Lord Campbell in Dhuram Das v. Shama Soondri (1843) 3 M. I. A. 229 and by Knight Bruce, L. J., in Copeekrist v. Gunga Persad (1854) 6 M. I. A.
53. Where, however, from the lapse of time, direct evidence of a conclusive or reliable character is not forthcoming as to the payment of consideration, the case must be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts. Sir Arthur Wilson emphasised this when he observed in Dalib Singh v. Ghaudhrain Nawal Kunwar (1908) 30 All. 258, that if the evidence neither side is wholly convincing as to the fundamental criterion, namely, the source of the purchase money, if the evidence given and withheld is open to adverse criticism, the Court must rely on the surrounding circumstances, the position of the parties and their relation to one another, the motives which could govern their actions and their subsequent conduct, including their dealings with or enjoyment of the disputed property ; see Upendra v. Purendra (1915) 21 C. W.
N.
280. We must further look to the substance of the transaction as evidenced in the deeds of the parties, not permitting the real question to be obscured by what Knight Bruce, L. J., calls in Hunooman v. Mt. Baboee Munraj (1855) 6 M. I. A. 393 the form of expression, the literal sense, nor by what Lord Macnaghten describes in Lal Achal Ram v. Raja Kazim (1905) 27 All. 871 as exhibitions of the art of the conveyancer in the shape of recitals of obviously untrue statements introduced to impart some additional solemenity to an instrument : Promod Kumar Ray v. Medan Mohan Saha AIR 1923 Cal. 228, Lalit Mohan v. Manoranjan AIR 1923 Cal. 13, Jasoda v. Balaram AIR 1922 Cal.
488."
24. In the case of Tirthmayan Dassi v. Atikuila and others, it was held that :- "as Benami transactions are very common in Indian practice, even slight quantity of evidence may suffice to show that it was a sham transaction".
' In the case of Shambhu Nath Shivpuri v. Pushkar Nath and others (1) it was held by Lord Porter :- "The deposit by a Hindu of his money in a bank in the joint names of himself and his wife and on terms that it is payable to either as survivor does not on his death constitute .a gift by him to his wife. There is a resulting trust in his favour in the absence of proof of a contrary intention, there being in India no presumption of an intended advancement in favour of a wife.
' The rule is not confined to assets in the joint names of the deceased man and his wife. It is of universal application whatever the property and whatever the relationship. The question of contrary intention is one of fact."
' This case does not help the respondents because the words "in absence of proof of a contrary intention" in the above observations suggest that there may be exception to the general rule as to non-applicability of the rule of advancement. In this case it was held, with reference to evidence therein, that the deposits made by the Hindu were for advancement and that those whose names were used were not merely nominees.
(1) A R 1945 P C 10
25. The last case relied upon by Mr. Kunwar Mukhtar Ahmed in this connection is of Ismail Dada Soomar v. Shorat Banoo, in which A. S. Farooqui, J. Held as under :- "The English principle of advancement does not apply to India (also Pakistan) no distinction has been made between the cases of Hindus and Muslims on this question. The doctrine of intended advancement in favour of the wife not being applicable in this country, there would be resulting trust in favour of the husband who provided the purchase money in the 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 al ways 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 the true intention regard must naturally he had to the surrounding circumstances, and the subsequent conduct in so far as it is relevant to the understanding of the initial intention."
' However, the learned Judge also referred to the case of Shambu Nath and did not rule out the possibility of exception to the general rule as indicated by the words "in the absence of proof of a contrary intention", quoted above in para. 20.
26. From the above cases following rules may be deduced :-
(1) Benami transactions are very common in sub-continent.
(2) One of the criteria to determine the nature of transaction is the source from which consideration had come, but this may not be conclusive, as the intention of the purchaser is also to be considered and given effect to.
(3) The burden of proving Benami character of a transaction is upon the person who asserts such character, but even slight quantity of evidence to indicate that the transaction was sham, will be sufficient to shift the burden upon the party who claims the transaction to be genuine. However, the question of 'slight quantity of evidence' is one of fact and is to be determined having regard to the circumstances, of each case, and mere 'probabilities' are not to be relied upon.
(4) If the evidence on neither side is wholly convincing as to the source of consideration, then the Court may rely on the surrounding circumstances, the petition of the parties and their relations to one another, the motive which would govern their actions and their subsequent conduct including their dealings with or enjoyment of the disputed property.
(5) The principle of English Law of advancement, is presumed to be inapplicable to the sub- continent, in the absence of proof of contrary intention. Hence exception to the general rule as to inapplicability of practice of advancement, in a given case may not be ruled out in Indo-Pak sub- continent.
(Underlining is ours).
27. In the light of the above legal position it is now to be seen how far the respondent's have succeeded in discharging their burden of proving [Here in italics] ' that the appellant is only a Benamidar of the house in question, the real owner being their deceased father Muqeemuddin Ansari. As the plea of Benami nature of the transaction i. e.
Purchase of plot No, 36 and cons,-A truction raised thereon, was taken by the respondents, hence the one a, proving this fact was also upon them.
28. The first document to be considered in this behalf is Exh. 63/3. It is a letter addressed by Ghulam Sabir to the Secretary of the Society saying that Plot No, ,36 may be transferred to his sister Asghari Begum. This document was produced by the D. W. Muhammad Isa from the record of Suit No, 982/1951. The genuineness of this document has not been challenged by the respondents, because it is their own case that this plot was originally allotted to Ghulam Sabir by the Society and that he had transferred it to the appellant. In this letter Ghulam Sabir also states that Rs, 3,000 paid by him to the Society now belong to his sister Asghari Begum. It is dated 22nd April, 1949.
29. So far as this document is concerned, Muqeemuddin Ansari does not come in the picture at all.
It corporates a transaction between Ghulam Sabir and Asghari Begum according to which the former is the transferor and the latter is the transferee. The claim of the respondents is that the consideration for this plot was paid to Ghulam Sabir by their father Muqeemuddin. There is no evidence on this point except the oral word of P. W. Azam (Exh. 32), but he admits that he was not present when negotiations had taken place between Muqeemuddin and Ghulam Sabir. Nor does be say that in his presence any amount was paid to Ghulam Sabir. Mr. Nizam Ahmad, learned counsel for the appellant has rightly argued that this document, is one of those, which were not considered by the learned Single Judge. The learned Single Judge has relied on certain admissions made by Ghulam Sabir in his written statement filed in Suit No, 982/1951, which has been produced by P. W. Azam in his evidence as Exh.
53. It has not been rightly argued that this document could not have been relied upon without examination of Gbulam Sabir, who alone was competent to prove the contents thereof. Mr. Nizam Ahmed has in this connection relied on the case of Ails.
Shalimar Ltd. v. Raisuddin Siddiqui (1) in which it has been held that much reliance cannot be placed on written statement unless the defendant appears as a witness. In taking this view Muhammad Zahoorul Hach J. Who had written the judgment of the D. B., had placed reliance on the Supreme Court decision in Mst. Khairun-Nisa and 6 others v. Malik Muhammad lshaq and 2 others (2). It was held by the Supreme Court in this case that written statement cannot be an exhibit in a case without the person filing the same being examined in Court. In this case the Supreme Court had also approved the view taken by Peshawar High Court in the case of Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (3) in which it was held :- "It is a settled law that it is the bounden duty of a party personally knowing the whole circumstances of the case to give evidence on
(1) 1979 CLC 338 (2) PLD 1972 SC 25
(3) PLD 1959 Pesb. 81 ' his behalf, and to submit to cross-examination. His non-:appearance as a witness would be the strongest possible circumstances going to discredit the truth of his case."
' There is further reason for not considering this document (written statemant) because Ghulam Sabir has refused to appear as a witness in spite of the fact that he was present in Court on 22nd April, 1971 (in connection with some other case). The learned Single Judge wanted to examine him with respect to his signature on the written statement (Exh. 53), but be declined to come in the witness-box. Under these circumstances, it must be held that the learned Single Judge should not have relied on this document. Thus, the admission made by Ghuiam Sabir in this document cannot he take into consideration. If this iocument is discarded, as it should be, then there remains no evidence whatsoever on the record in favour of the plea that Muqeemuddin had paid any amount to Ghulam Sabir by way of consideration for the plot in dispute. This being the case, the letter Exh.
63/3 must be taken on its face value as incorporating a transfer simplicitor of Plot No, 36 by Ghulam Sabir to his sister Mst. Asghari Begum. Since there is not the slightest evidence to the effect that Muqeemuddin had paid consideration for this plot to GhulaM Sabir, hence the burden of proving consideration did not shift upon the appellant.
30. It has been alleged by the respondents that the plot was purchased by Muqeemuddin Ansari in the name of his wife for the reason that according to bye-laws of the Society only persons domiciled in Sind were entitled to get plots in the Society, and that the appellant was a domicile of Sind, whereas Muqeemuddin was not. But from the evidence P. W. Rais Ahmad (Exh. 19) it is proved that the bye-laws were amended in May, 1952 and this restriction of domicile was removed.
According to the amended bye-law No, 7, every citizen of Pakistan was eligible to get a plot in this Society. In spite of this amendment, Muqeemuddin did not get the plot reconveyed to himself during his lifetime i,e, upto July, 1965. For about 13 years after the completion of the house in 1952, he did not take any overt action to indicate that he was the real owner of the house and that the appellant was only a benamidar for him. On the contrary he made certain admissions, oral as well as documentary, which will be discussed later, to indicate that the house was built by the appellant out of her own financial resources. We are, therefore, not inclined to believe that the deceased had purchased the plot in the name of his wife due to. Any restriction on non-domiciles of Sind. Had this been the reason,'" then immediately after May, 1952 he would have got the house recon-I veyed to himself before his death in July, 1965.
31. So far as the cost of construction of the house on Plot No, 36 is concerned, there is oral evidence of Mr. Azam Muqeem (Exh. 32). He has relied upon two arrangements (Exhs. 38 and 39) with contractors and some receipts and vouchers (Exhs. 40 to 49) for purchase of building material. All these documents are in favour of deceased Muqeemuddin. The plea of the appellant is that as she was Purdanashin lady and could not look After the construction work, hence she had asked her husband Muqeemuddin to supervise the construction. She has further stated that she had kept all her cash with the deceased and that the cost of the construction was met out of that cash. This plea of the appellant would appear to be plausible in view of admissions of the deceased, which will be discussed later. So far as the above documents are concerned, it will suffice to observe that they have not been proved by the persons who had executed or isssued the same, except three receipts (Exhs. 48/3, 4 and 5) issued by P.W. Zafar Alam (Exh. 61) which are for partly sums of Rs, 48.7, Rs, 134.1 and Rs, 19.56, respectively ; and 6 receipts (Exhs. 35/1 to 6) produced by D. W. Feroz Khanewal (Exh. 24), but he does not say that he himself had issued these receipts. None of these receipts bear his signature. The two agreements are unstamped and the same were admitted in the evidence subject to payment of stamp duty and penalty thereon. Till this day neither the stamp duty has been paid nor the penalty. It is not necessary to discuss the effect of non-payment of stamp duty, because these agreements, even otherwise, have not been proved by the persons who had executed them.
32. P. W. Habibullah (Exh. 26) has also been examined by the respondents to prove the bank account of the deceased. This witness has produced the account sheets as Exhs. 27 and 28/1, 2 which pertain to the period from 1952 to 1965. But the account upto 1952 only is relevant for the purpose of proving that the deceased had sufficient cash to meet the cost of construction.
However, the account sheet for 1952 shows that the deceased had only Rs, 9,000 to his credit during the period, P. W. Habibullah has deposed that after 1956 the account was joint in the name of the deceased and appellant. This fact further proves that the appellant used to keep her cash with the deceased. The Bank account of the deceased, therefore, does not prove that he had incurred all the expenses for construction of the house on the plot in question.
33. P. W. Azam has also stated that the deceased had brought with him from India Rs, 25,000 which was his Provident Fund and also Rs, 10,000 which he had received as earnest money from a Hindu for his house which he had agreed to sell to the Hindu. But it is also admitted that the deceased had married his two daughters and a son before constructing the house in question and that the deceased had also gone for Hajj with the appellant. If this is so then no amount must have been left with him to meet the cost of the construction.
34. P. W. Azam has further deposed that his father had filed claim for the property left by him in India and that the claim was verified to the extent of more than one lac of Rupees. But the claim was verified in the year 1956-57 i. e. Three or four years after the completion of the house. Hence, the verified claim is not relevant for proving financial position of the deceased at the time of construction of the house.
35. The next document which completely disproves the case of the respondents and which was not taken into consideration by the learned Single Judge is Exh.
14. It is a letter written by Mst. Asghari Begum to the Income-tax Officer Karachi on 23rd September, 1963 in reply to a notice. This letter has been admitted by P. W. Azam to be in the handwriting of Muqeemuddin Ansari. In the last sentence of this letter Asghari Begum clearly states that the house in question was constructed by her out of her own resources. Mr. K. Mukhtar Ahmed learned counsel, for the respondents has argued that Asghari Begum was mentioned as owner of this house in this letter only for the purpose of avoiding income-tax. There is no evidence on record as to the motive underlying this letter. This letter was produced by the respondents alongwith the written statement and was already on the record when P. W. Azam was examined as a witness. He has not stated anything about this letter except that it is in the handwriting of his deceased father. When Muqeemuddin himself writes in this letter that the house belongs to his wife and was constructed by her out of her inherited money, there is no reason to doubt the genuineness of the contents of the letter.
36. If the plea of Mr. K. Mukhtar Ahmed, that the misstatement in the letter (Exh. 14) about ownership of the house was made with intention to evade income-tax, is accepted, then it would mean that the Court should give advantage to Muqeemuddin or his heirs, of the misstatement or the fraud perpetrated by him upon the Income-tax Department. The Court will not give any relief to the person who is in delicto.
37. Another piece of evidence regarding ownership of the plot and house in question is the admission made by P. W. Zaheeruddin (Exh. 82) in his cross-examination. This witness was produced by the respondents themselves. In his cross-examination, he stated that on his inquiry from Muqeemuddin as to why such poor construction was being raised on a F good plot, Muqeemuddin replied that his wife could not afford more expenses. These would have come from the mouth of the witness which was produced by the respondents. He was not declared hostile by the respondents, therefore, there is no reason to doubt the correctness of the admission made by Muqeemuddin to Zaheeruddin Pathan. This admission before P. W. Zaheeruddin and anotherG admission in writing in the letter to Income-tax Officer (Exh. 14) are themselves quite sufficient to establish the claim of the appellant as to her real ownership of the plot and the house in dispute.
38. However, there are several other documents also to prove that the appellant had been asserting her title as an owner of the property in question with the knowledge of the deceased. One such document is Exh. 11, which is an application to Karachi Gas Company for supply of gas connection. This is signed by Asghari Begum and is dated 16th January, 1952. Below this application there is signature of Muqeemuddin Ansari as an attesting witness. The appellant has also produced 13 receipts for payment of gas charges Exhs. 13/1 to 13 which are in her favour. Yet another document, the genuineness of which is undisputed, is Exh. 30/I. It has been produced by the appellant in her evidence and it is addressed to Secretary of the Society. The subject of the letter is "Nomination of Heirs". The further contents of this letter are reproduced hereunder :- "Dear Sir, Subject :-Nomination of heirs.
After my death my share and interest in the Society may please be transferred to any charitable institution or to a deserving girl student studying medicine. I leave the choice to the Managing.
Committee.
Yours faithfully, (Sd.)
(Asghari Begum)"
P. W. Azam has, in his deposition, admitted that this letter is in the handwriting of his father Muqeemuddin. By this letter the appellant proposes to transfer her share and interest in the Society to a charitable institution. Although the words "share and interest" in the Society have not been elaborated, but it may be argued that the plot in question which is on 99 years lease with the appellant, is also her share or interest in the Society. If his view is correct ; then there can be no manner of doubt as to the fact that the appellant is exclusive owner of the house in question.
Muqeemuddin had drafted the letter (Exh. 30/1). Had he been the real owner and the appellant only Benamidar, then he would not have allowed the latter to transfer her share in the Society to a charitable institution and deprive his legal heirs of the property.
For the above reasons, we are satisfied that the respondents have totally failed to prove that the plot and the house in question belonged to their father Muqeemuddin or that Mst. Asghari Beg= was only a Benamidar for her husband. Consequently the appeal is allowed and the suit of the respondents is dismissed, with costs.