1. ' This is second appeal from the judgment of Additional District Judge dated 20th October 1971, in Ist Appeal No, 59/1968, whereby he had set aside the judgment of llnd Civil Judge First Class, Karachi, dated 23-12-1967, in Suit No, 1168/1967, and decreed the suit of the respondents against the appellants for declaration and permanent injunction.
2. ' The respondents are sons and daugtters of late Najmuddia. Appellant No, 1 Mst. Niaz Bano since deceased, was one of the three wives of late Dewan Najmuddin. Muhammad Yasin, appellant No, 2 is son of Mst. Niaz Bano from her previous husband. He is thus step-son of Dewan Najmuddin Khan.
3. After her death, her son Yasin remained the sole surviving heir of Mst. Niaz Bano, as the appellant.
4. ' Dewan Najmuddin Khan had filed suit before INith Civil Judge, Karachi claiming that the house situated on Plot No, 61 Block 'C' Model Colony Karachi was constructed by him after purchasing the plot by his own money through one Jamil Faridi, in the name of his wife Niaz Bano and step-son Muhammad Yasin. According to him Niaz Bano and Yasin appellants were only Benamidars of the house in question and that the real owner of the plot and the house was late Dewan Najmuddin Khan. After his death, the suit was continued by his sons and daughters who are respondents in the appeal. The respondents had also joined Dewan Shakil Ahmed, son of Dewan Najmuddin Khan and Najma Khatoon daughter of Dewan Najmuddin as defendants. It was alleged in the suit that the late Dewan Najmuddin was an employee of N.W. Railway as Assistant Commercial on a salary of Rs, 750 per month. On Partition he came to Pakistan and retired from service at Lahore in 1952. On his retirement he received Rs, 29,000 as Provident Fund. He came from Lahore to Karachi on 31-3- 1953 for construction of the house on Plot No, 61 which had already been purchased by him through Mr. Jamiluddin Faridi in the name of Niaz Bano and Muhammad Yasin.
5. ' It was alleged in the suit that as Dewan Najmuddin was in service at Lahore, therefore the work up to plinth level was got done through Mr. Faridi to whom Dewan Najmuddin used to send money from time to time. In March, 1953, Dewan Najmuddin came to Karachi and supervised work of construction himself out of the money he had received as his Provident Fund.
6. ' Mst. Niaz Bano was formerly married to one Noor Muhammad milk-seller. After getting divorce from him in India she was married to late Dewan Najmuddin Khan in 1944, at Banaras. She was divorced even by late Dewan Najmuddin after filing of the suit. The respondents are sons and daughter of late Dewan Najmuddin from his first wife. Dewan Shakil Ahmed and Najma Khatoon (defendants Nos. 3 and 4 in the suit) are son and daughter of Dewan Najmuddin from his second wife.
7. ' It was alleged in the plaint that after construction of the house Dewan Najmuddin Khan continued to reside in it along with Niaz Bano and her son Yasin. This Yasin is also married to Najma Khatoon (defendant No, 4) the daughter of Dewan Najumuddin.
8. ' It was further alleged in the plaint that Niaz Bano turned unfaith ful and started treating the house as her own property and also got inquiry conducted through Mukhtiarkar about the ownership of the house in suit. Hence the necessity arose of the suit. The deceased Dewan Najmuddin Khan (and after his death the respondents) had sought inter alia following reliefs in the suit:-
(a) "Declaration that the plaintiffs and defendants Nos. 3 to 4 being the legal representatives of the deceased are the real owners of the building and the Plots Nos. Old-C/59, Block 'C' and 61, Field Sheet No, 4 in the Model Colony Karachi with an area of 307-22 sq. yards and Mst. Niaz Bano, the defendant No, 1, was only the Benamidar and held that same as trustee on behalf of the deceased plaintiff and similarly her son Muhammad Yasin was also a Benamidar on behalf of the deceased plaintiff and the deceased plaintiff was the owner thereof and the order of the Mukhtiarkar dated 11-5-1960 is erroneous in law and in fact.
(b) Permanent injunction be issued against the defendants No, 1 and 2 and all persons acting through or under them from trans ferring or dealing with the said house and plots in any manner whatsoever or damaging the same house."
9. ' Niaz Bano and Muhammad Yasin filed joint written statement alleging that Niaz Bano used to work as mid-wife in India and that she had married with Dewan Najmuddin Khan after getting divorce from her former husban,d Noor Muhammad. She claims that the plot in question was purchased by her own money and that the house was also constructed by her out of her earnings as mid-wife. In para. No, 12 of the written statement she claimed that even her previous husband Noor Muhammad, was a businessm an of sufficient means, to suggest that she had received enough money from him also with which she could construct the house. It was further alleged that the suit was filed by Dewan Najmuddin Khan at the instance of his issues from his first wife.
10. ' After amendment of the plaint when Dewan Shakil Ahmed and Najma Khatoon were joined as defendants Najma Khatoon (defendant No, 4) had also filed written statement in which she had supported the claim of Niaz Bano and Muhammad Yasin appellants. Dewan Shakil Ahmed, who was defendant No, 3, in the plaint, did not file any written statement. On the pleading of the parties following issues were framed by the trial Court:-
(1) Did Diwan Najmuddin purchase the plots in suit in the name of the defendants 1 and 2 as pleaded in the plaint?
(2) Did Diwan Najmuddin raise construction on the plots in suit as pleaded in the plaint?
(3) Was Diwan Najmuddin in possession of the house in suit as pleaded in the plaint? If so or not, to what effect?
(4) Is the suit undervalued, and beyond the pecuniary jurisdiction of the District Courts and the court-fee paid is deficient as pleaded in the written statement of the defendants 1, 2-and 4? If so, its effect?
(5) Did Diwan Najmuddin restore during the pendency of this suit to the defendant, the portion of the house, whatsoever; in his occupation as pleaded in the written statement of the defendants 1, 2 and 4? If so, its effect?
(6) Is the suit bad, misconceived and non-maintainable as pleaded by the defendants 1, 2 and 4 in their written statement? If so, its effect?
(7) Is the defendant 1 one of the legal heirs of the late Diwan Najmuddin as pleaded by the defendants 1, 2 and 4 in their written statement? If so, its effect?
(8) To what amount of special damages, if any, are the defendants 1, 2 and 4 entitled?
(9) To what reliefs, if any, which of the parties are entitled?
11. ' In support of the above issues the plaintiff/respondents have examine vii P.W.
1. Habibullah, P.W. 2, Dewan Najmuddin Khan, P.W. 3, Gitulam Qadir, P.W. 4, Jan Muhammad, P.W. 5, Abdul Rashid Khan, P.W. 6, Bashir Ahmed, P.W. 8, M.A. Beg, P.W. 9 Shamsuddin, P.W. 10 itahim Bux Jaferi and P.W. 11 Inayatullah.
12. ' In rebuttal the appellants (defendants) examined D.W.1 S.Ibrahim D.W.2 Jamiluddin Faridi D.W.3 Manzoorul Bastin, D.W.4 Mohiuddin and D.W.5 Niaz Bano (deceased) appellant.
13. ' After considering the evidence, the trial Court came to the conclusion that "even if it he held that the construction of the house was done by Diwan Najmuddin from his own income yet the point remains for determination whether he constructed the house or purchased the plots in the names of defendant Nos. I and 2 for their benefit exclusively or he had intention to retain the property for himself. From the factsand circumstances of this suit it. isclear that the intention of Diwan ,Na muddin was that the art shown in the name of respective person shoul be hey them."
14. (underlining is mine).
15. ' In view of the above finding the learned trial Judge dismissed the suit of the respondents by order4 dated 23-42-1967.
16. ' The respondents filed appeal from the above judgment before District Judge which was transferred to 1st Additional District Judge, Karachi, who by his judgment dated 20-10-1971 held that the plot in dispute was purchased and the house constructed thereon by Dewan Najmuddin Khan out of his own money and that Niaz Bano and appellant Yasin were only Benamida Rs, The appellants have challenged the above decision by this second, appeal.
17. ' The principles governing Benami transactions were laid down by the Privy Council in the case of Sura Lakshmia Chetty v. Kothandarama Pillai AIR 1925 P C 181 in which it was hold as under:- "A purchase in India by a native of India of property in India in the name of his wife unexplained by other proved or admitted facts is to be regarded as a Beriami transaction by which the beneficial interest in the property is in the husband although the ostensible title is in the wife. The rule of the law of England that such a purchase by a husband in England is to be assumed to be a purchase for the advancement of the wife does not apply in India."
18. ' The same principles were reiterated in the case of Guran Ditta v. T. Ram Ditta AIR 1928 P C 172 in the following words:- "The general principle of equity, applicable both in England and in India, is that in the case of a voluntary conveyance of property by a grantor, without any declaration of trust there is a resulting trust in favour of the grantor, unless it can be proved that an actual gift was intended. An exception has, however, been made in English law, and a gift to a wife is presumed, where money belonging to the husband is deposited at a bank in the name of a wife, or where a deposit is made, in the joint names of both husband and wife. This exception has not, however, been admitted in Indian law.
19. ' Where, money was deposited by a husband in a bank in the name of himself and his wife "payable to either or survivor. "Held that the money belonged to the estate of the husband".
20. ' In the case of Mst. Siddiq Begun: v. Abdul Jabbar Khan A I It 1.942 All. 308, it has been held that one of the primary test of a Benami transaction, though not possibly the only test, has always been to establish the source of purchase money. In taking this view the learned Judges of the Allahabad High Court had relied on A I It 1928 P C 172 quoted hereinabove. It was further held in the Allahabad case AIR 1942 All. 308:- "The burden of proof that a transfer is Benami lies in the first instance upon the person asserting it to be so, but that burden is discharged upon the said person showing that the purchase money was provided by him or by some one other than the person in whose name the purchase was taken. Section 82, Trusts Act, has no bearing on the burden of proof and does not make it necessary for a person who alleges that the consideration for a transfer was paid or provided by some one other than the nominal transferee to show further that there was no intention upon the part of the person providing the money to pay or provide it for the benefit of the transferee.
21. Consequently, when it is proved that the purchase money was provided by some one other than the transferee, the Court has to consider whether that person intended it as a gift or not. It is at that point that the established doctrine of the resulting trust at once comes into full and immediate play, and, if there is no other evidence in the case, that doctrine must apply. In order to displace it, it becomes necessary, therefore, for the actual transferee to prove, if he can, that the money was intended as a gift. The position is, therefore, wholly unaltered by section 82. Trusts Act ' In the case of Devi Dayal v. Mst. Indomati A 1. It 1935 Lail. 770 it has been held that in deciding the question whether or not a particular transaction is Benami, the source from which the money came is no doubt a valuable test but to regard it as the sole and exclusive criterion is wrong. In the case of Sabhagibai v. Parkash Chanel Mulchand A I t 1940 Sind 173:- "In determining whether a transaction is Denami or not, all relevant factors must be taken into consideration, 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. The admissible evidence in such cases must, as in other cases, be looked as a whole. The plaintiff must establish his case, the source of money being an important criterion though not conclusive of the nature of the transaction."
22. ' In Muhammad Abdul Majid v. Muhammad Jainul Abedin PLD 1970 Dacc.'a 414 the same rule has been reiterated.
23. ' From the above decisions it would appear that the factors which should be considered for determining the question whether a transaction is Benami, are as under:-
(1) From whom came the consideration,
(2) Who has the custody of the original title deeds of property,
(3) Who is in possession of the property,
(4) Motive for Benami transaction and relationship of the parties.
(5) Surrounding circumstances, and
(6) Conduct of the parties after the transaction.
24. ' In the light of the above decisions it is to be seen as to whether the transaction, that is, purchase of the plot and construction of the house in the name of Mst. Niaz Bano and Yasin appellants was Benami and whether late Dewan Najmuddin Khan was the real owner of the property.
25. ' The learned trial Court had decided only issues Nos. 1 and 2 in favour of the appellants, while all other issues were decided in favour of the respondents. So far as the possession is concerned it has been held by the trial Court as well as the first appellate Court that the late Dewan Najmuddin Khan was in possession of the house on the date of filing of the suit. Thus on issue No, 3, in respect of factum of possession there is concurrent finding of both the Courts below.
26. ' The plea of the appellants had been that late Dewan Najmuddin Khan had during the pendency of the suit, restored possession of the house to them. This allegation was subject-matter of issue No, 4 which was also decided against the appellants by the trial Court and this finding was confirmed by the first appellate Court.
27. ' So far as the source of consideration is concerned the most important evidence is of Dewan Najmuddin himself who had deposed that on retirement in 1952 he 1.,ad received Rs, 29,000 as gratuity and Rs,4,000 as Provident Fund. P.W. Hafiz Sultan, Clerk in the National Grindlays Bank, Karachi, has produced the statement of account of the deceased from which it transpires that from April, 1953 to October, 1953 the deceased had withdrawn an amount of Rs, 21,786 from his account. The deceased has stated that he had withdrawn this amount for the purpose of construction of his house. First appellate Court has held that the deceased could not have withdrawn such huge amount from the bank within the period of seven months for the purpose of household expenses. He further concluded that this amount was withdrawn and spent on construction of the house. The evidence led by the appellants on this point, shows that Niaz Bano was not in position to spend more than Rs,10,000. It is doubtful if she could save so much money by her own earning. Although she had stated that she used to act as midwife in India, but she also deposed in her evidence that she stopped midwifery after she married with Dewan Najmuddin Khan in 1944. Again she stated in written statement that her former husband Noor Muhammad was well-to-do man, but in her deposition she stated that he was petty milk-seller who was also convicted in a criminal case where after she obtained divorce from him. As midwife also she was earning only Rs, 35 per month. She was therefore not in a position to construct the house.
28. ' Appellants have examined Mr. Jamiluddin Fareedi to prove that plot was purchased by Niaz Bano and the building was also constructed by Niaz Bano through him. But Mr. Faridi states that he had spent only Rs, 5,000 on behalf of Niaz Bano for construction of building up to plinth level. There is no evidence that any amount beyond Rs, 5,000 was spent by Niaz Bano on the construction of the house which, according to photograph produced in evidence, appears to be quite a big building.
29. Hence even if it is presumed that Niaz Bano spent Rs,5,000, it cannot be said that the whole building was constructed by her. The evidence of Dewan Najmuddin Khan and of the witnesses produced by him, sufficiently prove that he had spent more than Rs,21,000 on the building. The major expenditure having been incurred by him it shall be presumed that he was the real owner while the appellants were only BenamidaRs, ' Dewan Najmuddin Khan had also been prosecuted by Land Control Department for raising unauthorised construction of this very building. Notice was issued to him to show cause why he should not be prosecuted for raising unauthorized construction. This notice was in the name of Dewan Najmuddin Khan and the notice related to this very building. The deceased did not take the plea, in reply to the notice, that the building belonged to his wife and son and not to him. On the contrary he claimed to be owner of the building and also suffered conviction and sentence of Rs,100 for unauthorized construction. In one another criminal case the deceased Dewan Najmuddin Khan stood surety for an accused and had asserted that he was owner of the house in question.
30. Thus the conduct of Dewan Najmuddin Khan, after the construction of the building, also suggests that he treated himself to be the owner of the building while appellants were treated as Benamidars, ' The next factor which may be considered in this connection is the relationship of the parties. Mst.
31. Niaz Bano was third wife of deceased Dewan Najmuddin Khan. Hence it was quite natural for him to have love and affection for her. Although appellant Muhammad Yasin was son of Niaz Bano from her previous husband, he was married to the daughter of Dewan Najmuddin Khan, that is, Najma Khatoon. Hence it can be presumed that due to this relationship with Mst. Niaz Bano and Muhammad Yasin, he constructed the house in the name of appellants.
32. ' So far as the title deeds are concerned there are none except allotment order and receipt of Rs,50 for which the plot was purchased. These papers are insignificant, in view of the evidence produced by Dewan Najmuddin Khan to prove that the house was constructed mainly out of his money.
33. Moreover when the husband and wife are living together in the same house, the fact that the allotment order and the receipt in respect of the building, are with the appellants, shall not be material. See Ismail Dada Adam Soomar v. Shorat Banoo PLD 1960 Kar.
852. It has been held by both the Courts that Dewan Najmuddin Khan and the appellants had been living together in the house in dispute.
34. ' The first appellate Court had, after discussing evidence of the parties come to the conclusion that the house was built by Dewan Najmuddin Khan out of his own money. I have no reason to take exception to this finding of fact which is consistent with evidence on record. Even the trial Court had held that intention of Dewan Najmuddin Khan was to construct the house for the benefit of the applies. There is nothing on record to indicate that the deceased had such intention. The trial Court was thus of the view that the property was built by Dewan Najmuddin Khan for advancement of his wife and her son. But in the case of Ismail Dada Soomar v. Shorat Batioo PLD 1960 Kar. 852 it has been held:- "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 a 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 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 intent to make an absolute gift of the property to the wife? In determining the 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."
35. There is no evidence that the deceased intended to make a gift of the property in favour of the appellants.
36. ' I, therefore, agree with the first appellate Court that the house in dispute belongs to Dewan Najmuddin Khan, while the appellants were only Benamidars Consequently the appeal is dismissed with costs.