' Respondent is the son of the petitioner. The latter filed a suit on 12-5-1983 seeking a declaration that he is the beneficial owner of the suit shop while the respondent is a Benami. According to the plaint, vide a sale-deed dated 18-9-1962, the petitioner acquired the suit shop for a consideration of Rs,4,000 but got the sale-deed executed in the name of respondent Benami. The respondent was a minor at that time and had no source of income and that consideration was paid by the petitioner. Since the respondent had started denying his title, the need to file the suit arose. In his written statement, the respondent came out with the plea that it was under some family arrangement that the petitioner is continuing in possession of the suit shop. No plea was taken that the consideration was paid by him, neither any source of income or consideration was disclosed.
Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit vide judgment and decree dated 28-2-1984. A first appeal filed by the respondent was heard by learned District Judge, Sargodha who allowed the same and dismissed the suit of the petitioner on 15-11-1984.
2. Learned counsel for the petitioner contends that the learned District Judge has misdirected himself while passing the impugned judgment and decree inasmuch as he has failed to read the evidence on record and has proceeded on erroneous legal premises. Learned counsel for the respondent has tried to support the impugned judgment and decree.
3. I have gone through the copies of the record appended with this civil revision. A bare look on the impugned judgment of the learned District Judge would show that he was unable to controvert the findings recorded by the learned trial Court and its approach to the evidence on record reflected in the judgment under appeal before the learned District Judge. What the learned District Judge has done is that he has assumed that the petitioner purchased the shop in the name of his son and the intention was that the shop will be owned by the respondent. In other words, the District Judge has proceeded to assume that it was some sort of a gift by the father to his son. The learned counsel for the petitioner is very right in urging that the said approach of the learned District Judge is not in consonance with law. He has proceeded to apply the doctrine of advancement provided for in the English Law which presumes that if a purchase made by a person in the name of a child or wife then the latter will be considered as purchasers for valuable consideration. However, this doctrine of advancement is not applicable in Pakistan. There is no such presumption in our law and the decision as to whether the transaction was a Benami or whether it amounts to a gift, is one of intention. Reference be made to the case of "Aftab Nasir v. Mst. Fazal Bibi and others" (PLD 1965 Lahore 550). On the other hand, a presumption in Pakistan and India is that where it is proved that the property was purchased in the name of the son by the father, the son is a Benami and the father is a real owner.
4. In any event, I find it to be a case of academic discussion because it was not even the plea of the respondent that his father had gifted away the shop to him or that was the intention while purchasing the shop in his name.
5. The learned trial Court had very rightly examined and analysed the evidence on record and proceeded to hold that all the criteria and tests laid down by the superior Judiciary to determine the nature of a transaction as to whether it is Benami or not, stand answered in favor of the petitioner. It has been proved that the money that was paid for shop came from the petitioner; that he is in possession of the shop and that he is in possession of the original sale-deed.
6. As a result of the above discussion, I find that the learned District Judge has acted with material irregularity in exercise of his jurisdiction while passing the impugned judgment and decree. It cannot, therefore, be sustained. Accordingly this Civil Revision is allowed. The judgment and decree dated 15-11-1984 of the learned District Judge, Sargodha is set aside while that dated 28-2-1984 of the learned trial Court is restored with costs throughout.