1. SHAFIUR RAHMAN, J,-Leave to appeal was granted to the two daughters and a son of Ch. Khushi Muhammad in their separate petitions, as an appeal as of right under Article 185(2) of the Constitution had been filed by another son of Ch. Khushi Muhammad against the same consolidated judgment of the Lahore High Court dated 10-1-1977 whereby four Regular first Appeals filed by respondent-Bank were allowed and the judgments and decrees of the trial Court in the four separate suits instituted by these appellants were set aside and their suits dismissed.
2. Ch. Khushi Muhammad, the father of the four appellants, the non-contesting defendant No. 2, on 5- 9-1949 approached the respondents --Bank for depositing in fixed account a sum of rupees eighty thousand tendered in cash. The account was to be operated by him. He was issued a fixed deposit receipt for this amount. He deposited in cash a further sum of rupees twenty thousand and when the balance in his account was of Rs. 1,02,334 he equally divided it, into two fixed deposit accounts in November 1951 in the names of his two minor sons. Habibullah and Tawakalullah each starting with deposit of Rs. 51,667. In opening these ,,:counts he made the following declarations :- "I desire you to open a Fixed Deposit Account in the name of Ch. Habibullah my son and send you herewith Rs. Fifty one thousand, six hundred and sixty-seven only (Rs. 51,667) for deposit in the same. He is a minor, His last birth day was on 10th August. 1951 when he was 11 years of age. I, Ch. Kltushi Muhammad son of Chandi, am the father of this minor and as such shall operate on the account. I have read the rules of the Bark and agree to abide b~ the same" (Exh. D. W. 1/43 at p. 31). `I desire you to open a Fixed Deposit Account in the name of Ch. Tawakalullah, my minor son and send you herewith Rs. Fifty-one thousand six hundred and sixty-seven only (in words) (Rs. 51,667)
3. (in figures) for deposit in the same. He is a minor. His last birthday was on 15th June, 1951 when he was 14 years of age. I, Ch. Khushi Muhamniad son of Ch. Chandi, am the father of this minor, and as such shall operate on the account. I have read the rules of the Bank and agree to abide by the same." (Exh. D. W. 1/7 page 118).
4. Ch. Khushi Muhammad continued operating these accounts till 1962-63 when the balance in the account of Ch. Habibullah was Rs. 59,587 and in that of Tawakalullah Rs. 42,4600.
5. On the 25th November, 195& Khushi Muhammad opened another account in the name of B.
6. Kalsoom addrcsslng the Manager in the following words :-- "I desire you to open a Fixed Deposit Account in the name of B. Kalsoom Begum my daughter and send you herewith Rs. Ten thousand for deposit in the same. She is a minor. Her last birthday was on the 10th August, 1958 when she was 14 years of age. I, Ch. Khushi Muhammad, am the father of this minor and as such shall operate on the account. I have read the rules of the Bank and agree to abide by the same." (Exh. D. W. 1/76, page 251).
7. There was opened another similar account by Khushi Muhammad but this time with Mst. Aziz Fatima which was joint to be operated jointly or severally. It started with a deposit of rupees v:n thousand but had in its balance Rs. 10,350 on 29-11-1962 while the account of hisi. Kalsoom had a balance of Rs. 16,068 in November, 1963.
8. Khushi Muhammad was shown in the bank account books to have overdrawn his account to the extent of Rs. 1,04,559.18 obtained by pledging the fixed deposit receipts of these foul- accounts. The Bank exercised its line by diverting the balance as follows :- Rs. 23,384.00on 25-11-1983 Rs. 59,587.04on 26-11-1983 Rs. 16,068.38on 26-11-1983 Rs. 5,519.76on 26-11-1,983 Rs. 1,04,559.18 The four appellants made efforts to make realizations of the amounts shown on their Fixed Deposit Receipts and when they failed, each instituted a separate civil suit for recovery of the amount shown in each with interest at stipulated rate for the period of F. D. Rs. And at 6 % thereafter.
9. Ch. Habibullah instituted the civil Suit (No. 202) on 28-3-1964 seeking recovery of Rs. 60,469.92. His case in the plaint was that the defendant Bank had issued to him for lawful consideration a F. D. R.
10. No. 53/63 dated 29-1 1-1962 for Rs. 57.572 at the rate of 3J% maturing on 25-11-1963. On 1-7-1963 the defendant-Bank ncknowledgcd the amount vide its Letter No. 249. When a demand for it was made the defendant: Bank "failed to do so on the plea that the amount due to the plaintiff under this fixed deposit receipt has been adjusted towards certain alleged account of defendant No. 2, the father of the plaintiff". It was denied that his father had ever contracted a loan, or lawfully pledged the F. D. R. The plaintiff claimed interest after the date of maturity at the rate of 6 % and fixed his entitlement on the date of institution of suit at Rs. 60,469.62.
11. Only defendant-Bank contested the suit and by an amendment in written statement challenged the jurisdiction of the civil Court. On merits, it was contended that the plaintiff never deposited any amount for obtaining F. D. R. It was defendant Khushi Muhammad, his father who had made the deposit, obtained the F. D. R. And had throughout operated the account. In 1954, he had secured a loan of Rs. 83,000 and executed the pronote and pledged the F. D. R. Finally, the balance of Rs.
12. 59,587.04 was adjusted towards the loan of defendant No. 2. It was claimed by defendant-Bank that "the plaintiff has no right to claim and cannot legally claim any amount of which he was only a Benamidar".
13. In the replication, the plaintiff claimed that the defendant No. 2, his father had gifted this amount to him and he had no authority to pledge the F. D. R. Or to act on his behalf treating him to be minor when even to the knowledge of the defendant-Bank, the plaintiff had since long ceased to be a minor.
14. On the same set of facts but on different Fixed Deposit Receipts, Mst. Kulsoom Begum (Suit No. 203) sought recovery of Rs. 16,309.09, Mst. Aziz Fatima (Suit No. 204) sought recovery of Rs. 10,875.25 and Tawakul Ullah (Suit No. 205) sought recovery of Rs. 44,61 1.59. The Bank pleaded the same defence as in the case of Habibullah and in their replications these plaintiffs also set up gifts of the amount in their favour, denying at the same time, any loan due to the defendant-Bank from Khushi Muhammad, their father.
15. The trial Court consolidated all the four suits and framed the following issues on the pleadings of the parties :- "(1) Whether the amounts standing in the name and accounts of all the four plaintiffs were in reality the property of Khushi Muhammad, defendant No. 2 and the accounts in the name of the plaintiffs were Benami ?
(2) Whether defendant No. 2 took no loan from defendant No. 1 amounting Rs. 83,000 and Rs. 20,000 ? (Onus objected to)
(3) Whether the defendant No. 2 did not pledge the accounts of Ch. Habibullah and Ch. Tawakal Ullah for these loans ? (Onus objected to).
(4) Whether the defendant No. 2 has any right or authority to pledge the accounts of Habibullah and Tawakalullah for the said loans (Onus objected to). .
(5) Whether defendant No. I was entitled to adjust the loans against the accounts of the plaintiff ?
16. (Onus objected to).
(6) Whether this Court has no jurisdiction to try the suit
(7) Relief."
17. Out of the four plaintiffs only Tawakulullah appeared as his own witness and as attorney of the other three. Their father Ch. Khushi Muhammad who as defendant did not file a written statement but appeared as P. W.
5. In defence, the Bank examined only one witness. The plaintiffs were allowed to inspect the account books of the Bank in original, admit or deny copies of a number of documents. The trial Court held that the plaintiffs were not mere Benamidars but real owners of the amounts for which F. D. Rs. Were held by them that loan of Rs. 83,000 and Rs. 20,000 against defendant No. 2 was not proved, defendant No. 2 had no authority to pledge the F. D. Rs. And the Bank was not entitled to adjust the loans from deposits by these F. D. Rs. The civil Court was found to have jurisdiction in the matter. Hence all the suits were decreed with costs and interest.
18. The defendant-Bank filed four separate appeals. The High Court while disposing of these appeals resettled the issues into the following two issues :- "(i) Whether the plaintiffs were only Benamidars ; and (ii)Whether the father had made valid gifts in favour of his sons and daughters ?"
19. The learned Judges examined the entire evidence afresh and came to the conclusion that the deposited amount belonged to Ch. Khushi Muhammad and that the plaintiffs were mere Benamidars. No gift of the; amount deposited in favour of the plaintiffs or the Fixed Deposit Receipt holders was found made out. Hence all the four appeals were allowed and the suits dismissed with costs.
20. The case of the appellants is that no doubt Ch. Khushi Muhammad, their father, was the original owner of all the sums deposited with the Bank but by opening an account in plaintiff's name separately he clearly intended and effected a gift in their favour. He continued to operate their account during minority being their natural and legal guardian but after they attained majority his intermeddling with their accounts was wholly unauthorized and the plaintiffs' rights could not be jeopardized by such unauthorized act Once the plaintiffs are recognized as owners of the amount, no question of its being lawfully pledged by someone else, even their own father would arise as all of them were major. Nor could the amount be adjusted towards the liabilities, even if existing, of their father.
21. There are certain admissions, or admitted facts on the record which clinch the issue on the factual plane. For example, Tawakulullah as his own witness and as attorney of his brothers and sisters, the other plaintiffs, made the following admission.
22. Besides, these Fixed Deposit Receipts were periodically renewed either by collecting interest or by reinvesting the principal amount along with the interest. This happened not once or twice but over a long period of dealings between the respondent-Bank and the father of the plaintiffs. This is sufficient to sustain the finding of fact recorded by the High Court that no gift as such was proved, that the plaintiffs were Benamidars and the beneficial ownership vested at all stages in Ch. Khushi Muhammad, their father.
23. Gift in favour of the two daughters sought to be proved by Ch. Muhammad Iqbal (P. W. 3) and Hafiz Abdul Hayee (P. W. 4) ha, rightly been disbelieved by the High Court because it is neither consistent with conduct of the donor nor of the donee. Rather, their conduct disproves any such gift.
24. The law on the subject is clear enough. In a case from N.-W. F. P., that of Gulam Ditta and another v.
25. T. Ram Ditta AIR 1928 P C 172) the law was summed up in the following words "The general principle of equity, applicable both in this country 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.
26. This exception has not been admitted in Indian law under the different conditions which attach to family life and where the social relation--ships are of an essentially different character. The p im:iple to be applied has been stated in Kerwick v. Kerwick AIR 1921 P C 56= 48 Cal. 260==47 I A 275 (P C).
27. The general rule and principle of the Indian law as to the resulting trusts differs but little, if at all, from the general rule of English law upon the same subject, but in their Lordships view it has been established by the decisions in the case of Gopeekrist v. Gungapersad (1854) 6 M.
1. A. 53=4 W. R.
28. 46=2 Suther. 13= 1 Sar. 493 (P.C.) and Uzhar Ali v. Bebee Ultaf Fatima (1869) 13 M. I. A. 232=4 B L R 1=13 W R 1 (P C) that owing to the widespiead and persistent practice which prevails amongst the native of India, whether Mahomedan or Hindu, for owners of property to make grants and transfers of it Benami for no obvious reason or apparent purpose, without the slightest intention of vesting in the donees any beneficial interest in the property granted or transferred as well as the usages which these natives have adopted and which have been protected by statutes, no exception has ever been engrafted on the general law of India negativing the presumption of the resulting trust in favour of the person, providing the purchase-money. Such as has, by the Courts of Chancery in the exercise of their equitable jurisdiction,. Been engrafted on the corresponding law in England in those cases, where a husband or father pays the money and the purchase is taken in the name of a wife or child. In such a case there is under the general law in India, no presumption of an intended advancement as there is in England."
29. In outlines of Muhammadan Law by Fyzee (1964 Edition) the follow--ing commentary exists at p.
30. 218 :- "Advancement, Joint account.-Where a Muslim died leaving deposits in the joint names of himself and his daughter, payable to either or survivor, such deposits did not constitute a gift in the nature of advancement to the daughter in the absence of proof of specific intention. There is a widespread practice in India to make transfers Benami, without the slightest intention to transfer the beneficial interest ; hence, the burden of proving the intention of an advance--ment is on the person who asserts it, though, in the case of close relatives, very little evidence is enough to establish the claim Mujtabai Begum v. Mahbub Rehman A I P. 1959 Madh. Pra. 359, 364."
31. In Paget, Law of Banking (6th Edn., page 123) the following comments on the subject exist :- "The truth is that the deposit receipt itself, whether it says so on its face or not, is not transferable, certainly not negotiable. The mere passing it to another person has no effect in transferring the deposit balance. But that which it represents, the money deposited, lent to the banker, is a debt or chose in action, independent of the receipt and despite any restriction on the transferability of that receipt. As shown by Re Griffin, Griffin v. Griffin, even the receipt itself may be utilised as the basis of an equitable assignment. The same has been held where the receipt was endorsed `Pay my son'. It makes no difference whether the debt is repayable at notice or at a fixed date, or that it cannot be claimed without returning the receipt. It is always there ; always a chose in action, with the attributes of such, including assignability. When Courts use the expression that there is no debt till the return of the receipt, they mean that there is no enforceable debt, no immediate cause of action, not that the debt is non-existent till then. Whether the debt has been assigned or not, the banker is no doubt entitled to the return of the receipt if he has stipulated for it, but he is not entitled to refuse to accept it from the hands of an assignee, whatever its terms."
32. Once it is found that Ch. Khushi Muhammad was the real owner/ depositor of the amounts in the Bank which stood in the name of the plaintiffs and he alone had been dealing with the respondent- Bank in respect of them, the principles contained in section 171 of the Contract Act get attracted. In Pollock and Mulla, the following observation with regard to Bankers' lien have been made :- "The rule of English Law that the Bank has a lien or more appro--priately a right to set off against all moneys of the customers in his hands has been accepted in India. The banker is at liberty to transfer the deposits of a customer to set off and liquidate debts due from the customer in whatever account the money may be, current or deposit whether they are in the same or different branches but mutuality must exist between the parties."
33. Finally, the question of Ch. Khushi Muhammad being indebted to the extent to justify the Bankers' lien over all these F. D. Rs/deposits. Khushi Muhammad did not file any written statement contesting his liability.. As a witness of the plaintiff he was most evasive and non-committal. He could not for certain say whether he owed any money to the bank or not. He could not identify his signatures on the documents. The statement of account of the bank D. W. l 172 at page 40 of the printed book shows his account in debit from 1954 till the 25th November, 1963. He owed to the Bank Rs. 1,02,697 on 29th June, 1963. Though the original promissory note was excluded from admissible evidence, the other docu--ments, fairly large number of them, taken note of by the High Court proved the loan satisfactory, as held by the High Court in the following words - "It is to be pointed out that all the objections hereinbefore raised from the side of the plaintiffs were merely of a technical nature or of total denial of loan. The plaintiffs and their learned counsel have not raised any objection regarding correctness of the figures and precise amounts worked out or mentioned in relevant documents, vouchers, letters and receipts etc. And nor have they set up any case to show that the figures or the amounts were different. Rather it is through all the aforesaid documents that it is connected and found out as to how the accounts mentioned in the last fixed deposit receipts were made out, from where and how. By relying on these figures (and rather balances) obviously the plaintiffs could not take objections to the earlier accounts of these receipts and deposits and rather by accepting the last figures they in a way took no objection to the transit history of the same and gave no counter- version or counter--figures about each item which went to make out the last figures. Similarly they led no evidence to rebut these figures and nor showed any cause or motive on the part of the bank in the execution and existence of the various vouchers, letters, receipts, accounts and other various transactions mentioned above."
34. It is clear to us from the discussion of the evidence and the law on the' subject that the decision of the High Court suffers from no infirmity and all these appeals must fail which are hereby dismissed with no order as t 'o costs.