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Suit No. 29 of 1967, decided on 30th April 1971.

-Burden to prove benami---Lies on person asserting same-Burden could be discharged by showing that purchase money was provided by person other than one in whose name transaction appears to be---Even slight and indirect evidence enough to discharge burden.

If a husband purchases property 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 is "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. 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. Even direct evidence is not necessary to discharge this burden of proof, particularly when the transaction is an old one.

Sura Lakshmiah Chetty and others v. Kothandarama Pillai A I R 1925 P C 181 ; Mst. Siddiqa Begam v. Abdul Jabbar Khan and others A 1 R 1942 All. 308 ; Tirthamayi Dassi v. Atikulla and another A I R 1927 Cal. 140 ; Benoy Krishna Sadhukhan and others v. Panchanan Sadhukhan and others A I R 1935 Cal. 671 and Kailash Pati Sahai v. Jagarnath Rai A I R 1935 All. 884 ref.

S. 32(2)-Vouchers and receipts for building materials and agreements with building contractors ---Documents admissible in evidence under S. 32(2).

S. 23-Bye-laws of a Co operative Society-Do not have force of law and are only domestic matters-Transaction which has effect of evading such bye-laws Could not be treated as unlawful or fraudulent.

Sultan v. Nawab Mouladad P L D 1969JKar. 221 distinguished.

Hanmantrao Ramrao v. Wasudeo Khandero A I R 1926 Nag. 463 and Sm. Surasatibalini Debt v. Phanindra Mohan Majumdar AIR1965SC1364 ref.

O. XX, r. 18(2) Partition, suit for-Several co-sharers owning property not capable of being divided by metes and bounds-Property ordered to be sold and sale proceeds distributed amongst parties-Partition Act (IV of 1893), S. 2.

Kunwar Mukhtar Ahmed for Plaintiffs.

Niaam Ahmed for Defendants.

Dates of hearing : 18th August 9th October, 4th November, 9th December 1970 ; 2nd February, 16th March, 20th, 22nd and 30th April 1971.

This suit for declaration, partition and possession has been brought by some of the legal heirs of the late Moquimuddin Ansari. The plaintiffs are the three sons of the said deceased and one of his daughters all from his first wife. On the death of the original first plaintiff, namely, Akram Moquim Ansari, his legal heirs, that is, Mst. Noor Illahi (widow), Mst. Shagufta, Nasreen (daughter), Saleem Akram Ansari and Nadeem Akram Ansari (sons) were brought on record as plaintiffs. The defen dants are Mst. Asghari Begum Ansari, second wife of the said deceased and Mst. Mahmooda Moquim Ansari, the married daughter of the deceased from his first wife. The property in dispute is land and bungalow bearing No. 36, measuring 1500 sq. yds. situated within the area of Muslimabad Co-operative Housing Society Limited, Karachi. The case set out by the plaintiffs is that the late Moquimuddin Ansari, who, as Superintendent, Survey of India, was drawing a salary of Rs. 1,800.00 per month, married Mst. Asghari Begum Ansari, the defendant No. 1, in 1943 after the death of his first wife. Moquimuddin Ansari retired from service in 1945 and, in addition to receiving his provident fund, continued to draw Rs. 583.00 per month as his pension up to the date of his death, which is 10th July 1965. The said deceased migrated to Pakistan in 1947 or 1948. One Ghulam Sabir Ansari, the brother of Mst. Asghari Begum Ansari, the defendant No. 1, was then a member of Muslimabad Co-operative Housing Society Limited and held allotment in his name of a plot of land bearing No. 36, situated within the area, of the said Society. It is stated that at that time membership of the Muslimabad Co-operative Housing Society Limited was confined only to Muslims domi ciled in Sind. Consequently, Moquimuddin Ansari could not obtain any plot in the Society. But the original domicile of defendant No. 1 was in Sind, and therefore her brother, Ghulam Sabir Ansari, transferred the said plot to her on receipt of consideration from Moquimuddin Ansari who then built a bungalow thereon which was used by him as his residence. The plaintiffs maintain that this whole property as constructed with the funds of the deceased, but that the plot is held "Benami" by the first defendant, namely, Mst. Asghari Begum Ansari, and therefore the plaintiffs have claimed declaration that the deceased was the real owner of the said property, and for partition of the property or, in the alternative sale thereof and distribution of the sale proceeds amongst the legal heirs of the deceased in accordance with the rules of succession under Muslim Law. In her written statement, the defendant No. 1, who is the only contesting defendant, has denied these allegations and has pleaded that the said plot of land was acquired and construction raised thereon with the funds belonging to this defen dant herself. These funds, according to this defendant, included her "Mahr" in the sum of about Rs. 20,000.00 paid to her by her husband and the share received by this defendant from the estate of her father and her ornaments. The defendant, there fore, has denied her "Benami" character and has claimed that she is the real owner of the disputed property.

2. On these pleadings the following issues were settled by the Court with the consent of the parties:

(1) Whether the plaintiff No. 1 is the duly constituted attorney of the plaintiffs 2 to 4 and whether the suit is properly filed

(2) Whether the membership of the Islamabad Co-operative Housing Society Limited was restricted to persons domiciled in the former Province of Sind

(3) Whether the plot in question was secured and/or pur chased by Moquimuddin 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 of funds of late Moquimuddin 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 Moquimuddin Ansari

(6) Whether the court-fee paid by the plaintiffs is insuffcient

(7) Whether the property can be conveniently and reasonably partitioned and if so how the allotment be made to the respective shares

(8) Whether the monies, if any, spent by late Moquimuddin Ansari on the purchase of the plot and/or on construc tions 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

In addition to documentary evidence, the plaintiffs examined Rais Ahmad (P. W. 1), Feroze Khanawalla (P. W. 2), Habibullah (P. W. 3), Azam Moquim (P. W. 4), Abdul Aziz (P. W. 5), Qamaruddin (P. W. 6), Zafar Alam Siddiqi (P. W. 7), and Zaheeruddin Pathan (P. W. 8). The defendant No. 1, on her part, examined herself and Mst. Mahmooda Begum (D. W. 2), Muhammad Issa (D. W. 3), Shafiq Ahmed (D. W. 4) and Faizan Azimi (D. W. 5). At the hearing of the suit before me, the parties dropped issues 1, 2, 6, 7 and 8. Consequently, this judgment will be confined to the remaining issues.

3. The material issues in the case are issues 3 and 4, which in effect raise the question whether the property in dispute belongs to the defendant No. 1 in her own right or whether the said property was and is held by this defendant "Benami" for her deceased husband Moquimuddin Ansari. The law as to "Benami" transactions is laid down by the Judicial Committee of the Privy Council in Sura Lakshmiah Chetty and others v. Kothandarama Pillai (A I R 1925 P C 181), in which 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 is "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-See Mst. Siddiqa Begum v. Abdul Jabbar Khan and others (A I R 1942 All. 308). 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-See Tirthamayi Dassi v. Atikulla and another (A I R 1927 Cal. 140). Even direct evidence is not necessary to dis charge this burden of proof, particularly when the transaction is an old one---(See Benoy Krishna Sadhukhan and others v. Panchanan Sadkukhan and others (A I R 1935 Cal. 671) and Kailash Pati Sahai v. Jagarnath Rai (A I R 1935 All. 884). It is, therefore, in the light of this position in law that the question as to the real ownership of the disputed property has to be considered. It will be claim of the defendant No. 1. According to her, as stated by her in her written state ment and in her deposition, the cost of construction is nearly Rs. 30,000.00. The plot of land was transferred to her by her brother Mr. Ghulam Sabir Ansari for Rs. 15,000.00 received by him from the deceased Moquimuddin Ansari, as stated by Mr. Ghulam Sabir Ansari himself in his written statement in Suit No. 982 of 1951 filed by the late Moquimuddin Ansari against him for recovery of Rs. 15,000.00. Thus, the total cost of the disputed property would come to Rs. 45,000.00. The defendant No. 1, contended that the whole amount came from her in this way:--

(i) Ornaments given to the defendant No. 1 by her parents Rs. 3,000.00.

(ii) Defendant No. 1's share from the income of the estate left by her father for four years at the rate of Rs. 500.00 per year-Rs. 2,000.00.

(iii) Defendant No. 1's share in the estate left by her father- Rs. 1,000.00.

(iv) Ornaments given to the defendant No. 1 by her deceased husband Moquimuddin Ansari-Rs. 3,000.00.

(v) "Meter" paid by her husband to the said defendant Rs. 20,000.00.

With regard to the amount of "Meter", the defendant No. 1's case is that the "Meter" was fixed at Rs. 20,000.00 out of which her husband paid her Rs. 5,000.00 in cash on 1-6-1946 and for the balance of Rs. 15,000.00 bought a diamond jewellery set, which was sold for Rs. 17,000.0:1 when this defendant and her husband came over to Pakistan at the time of Partition. Now, as regards the ornaments alleged to have been given to this defendant by her father and by her late husband and/or their sale there is no proof whatsoever except the bare words of this defendant herself. Nor is there any proof of this defendant receiving any share from the estate of her father or from the income of his estate. This defendant could have examined her elder brother. Mr. Ghulam Sabir Ansari, on these points, but she failed to do so. Mr. Ghulam Sabir Ansari is an Advocate of this Court. He was present in Court on 22nd April 1971 (of course in connection with another case), when arguments in the present case were in progress. Since he was present in Court, I wanted to examine him, particularly with respect to his signature on his written statement referred to above which is Exh. 53. Though admitting his signature, Mr. Ghulam Sabir Ansari declined to come in the witness-box, as regards the "Meter", in my view this defendant has failed to prove that her "Meter" was fixed in the sum of Rs. 20,000.00. The defen dant examined two witnesses. One is D. W. Shafiq Ahmad (Exh. 65), who stated that he attended the marriage of this defendant with the late Moquimuddin Ansari, and that the "Meter" was fixed at Rs. 20,000.00, but he admitted that no "Nikahnama" was executed. He did not even recollect as to who performed the "Nikah" ceremony, nor did he know as to who were the Vakils for the defendants at the time of her 'Nikah'. He admitted that both the defendant as well as her late husband belonged to the Ansari community of Ambetha, District Saharanpur, and that the custom in this community is that "Meter" does not exceed Rs. 5,000.00. Further, this witness appears to be interested on behalf of the defendant. He acquired a shop from the Karachi Municipal Corporation near Gandhi Garden during the time when the defendant's brother, Mr. Ghulam Sabir Ansari, was a Municipal Councillor, and Chair man of the K. M. C.'s Works Committee, and, it was suggested, incharge of allotment of shops. The witness denied this sugges tion. However, the probability of this being so cannot be ruled out. The second witness examined by the defendant on her "Meter" is D. W. Faizan Ali (Exh. 66). But he is also interested on the defendants' behalf, as, according to his own admission, the defendant is his niece. Further, this witness also admitted that in the Ansari community of Ambetha, District Saharanpur, it was a custom that the "Meter" should not exceed Rs. 5,000.00. This witness also did not recollect as to who were the defendant's Vakils at the time of her 'Nikah' with the late Moquimuddin Ansari. Thus, both the witnesses examined by the defendant on the question of the "Quantum" of her "Meter" have failed to satisfy me that the defendant's "Meter" was fixed at Rs. 20,000.00. On the other hand, the evidence is that in the Ansari community of Ambetha, District Saharanpur, it was a well-established custom that the "Mehr" did not exceed Rs. another an entry in the hand of the late diary-cum-account book Exh. 35 (page 13), this way:

"Rs. 5,000 paid in cash to Asghari Begum on 1-6-46 on account of her Mehr in full.".

This entry has been admitted by the defendant No. 1 in the deposition to be in the hand of her late husband. There is no entry in the whole of this book that the late Moquimuddin Ansari bought any diamond jewellery set for the defendant by way of payment to her of the balance of "Mehr" amounting to Rs. 15,000.00. The defendant stated in her evidence that this diamond jewellery set had been bought through Mst. Mahmooda Begum, widow of Syed Ahmad at Dehradun. But in her cross examination she stated that she did not clearly remember the period or time when her husband was posted at Dehradun. She stated that this set belonged to one Sheela and the late Maquim uddin Ansari purchased the set through this witness. A receipt for this amount was given to late Moquimuddin Ansari. But the witness did not remember whether the defendant No. 1 was present or not. She admitted that he had never seen the defendant No. 1 wearing this diamond set. She also admitted her friendship with this defendant. I find it difficult to place any reliance on the statement of this witness. Admittedly she is very friendly with the defendant No. 1. Further, even if it be admitted that the late Moquimuddin Ansari purchased the diamond jewellery set for Rs. 15,000.00 then it has not been proved that this set was gifted to the defendant No. 1 by him. It would appear that the story as regards the diamond jewellery set has been put up to support the defendant No. 1's contention that her "Mehr" was fixed at Rs. 20,00100 and that the whole money for the disputed property came from her own resources. The evidence on record does not support defendant No. 1 in her contention that whole of the consideration, or any part thereof, for this property came from her. On the other hand, the evidence supports the plaintiff's case that the whole con sideration for this property came from the late Moquimuddin Ansari's own resources. It is the admitted position that the said deceased retired as Superintendent, Survey of India, in 1945, when he was drawing a salary of Rs. 1,800.00 per month. On retirement his pension was Rs. 583.00. He had a house in Dehradun, the claim in respect of which was verified in the sum of Rs. 1,22,600.00 under Exh. 33 and Exh. 34, which are orders of verification. The claim on account of rent of this property was verified at Rs. 22,000.00 under the same exhibits. Further, before coming over to Pakistan the deceased had agreed to sell this property to a local and received Rs. 10,000-00 as advance, which fact is noted in the order of verification, which is Exh. 33. The deceased's diary-cum-account book, Exh. 35, shows the following further assets of the deceased:

(i) Post office national saving certificates purchased by the deceased on 29-5-1946 in his name and in that of the defendant No. 1-Rs. 10,000'00.

(ii) Post office national saving certificates purchased by the deceased on 31-5-1946, in his name and in that of his son Ahsan Moquim Ansari---Rs. 4,000.00.

(iii) Post office national saving certificates purchased on 31-5-1946 by the deceased in his name and in that of his son Azam Moquim Ansari--Rs. 6,000.00.

(iv) Fixed deposit in the Imperial Bank of India, Dehradun made on 14-9-1947-Rs. 10,000.00.

(v) Loan to Mr. Ghulam Sabir Ansari, the brother of defendant No, 1--Rs. 5,000.00.

All these entries are in the hand of the late Moquimuddin Ansari, as admitted by the first defendant herself. Moreover, according to Azam Moquim Ansari, one of the plaintiffs, his father, the late Moquimddin Ansari, also brought with him from India the amount of his provident fund in the sum of Rs. 25,000.00. The plot on which the bungalow in dispute stands was originally in the name of Mr. Ghulam Sabir Ansari, who had acquired it for Rs. 3,OOJ.00 paid to the Muslimabad Co operative Housing Society Limited. I would believe P. W. Azam Ansari that the late Moquimuddin Ansari paid Rs. 3,000.00 to Mr. Ghulam Sabir Ansari in consideration of the latter trans ferring this plot to the name of the defendant No. 1 Mr. Ghulam Sabir Ansari also owed Rs. 15,000.00 to the late Moquirnuddin Ansari as admitted by him in his written statement Exh. 5.1 in Suit No. 982 of 1951 filed against hint by Moquimud din Ansari and in another document Exh. 63/1 signed by Mr. Ghulam Sabir Ansari on 24-5-1949. When Moquimuddin Ansari claimed this amount in Suit No. 982 of 1951, Mr. Ghulam Sabir Ansari's defence was that this amount had been adjusted against tile "Pagree" of the aforesaid plot, which he had transferred, at the instance of Moquimuddin Ansari, to the defendant No. 1. The dispute was referred to arbitration and under the award the late Moquimuddin Ansari was given only Rs. 2,000, out of his claim of Rs. 15,000,00. Thus, the consi deration, which Moquimuddin Ansari paid for the plot, comes to its. 16,000.00. Even tae documents relating to construction are all in the name of Moquimuddin Ansari. P. W. Feroze Khane wal, Manager of Sind Patent Tiles Company, produced order form and vouchers, Exhs. 25/1 to 25/6, showing sale of tiles to Moquimuddin Ansari for the disputed house. In the agree ments relating to construction, entered into with the contractor Gal Muhammad, which are Exhs. 38 and 39, Moquimuddin Ansari is shown as owner of the prop:rty in dispute. Their there are Exhs. 40 and 41, which are receipts of Messrs Mir Son,, Architects and Engineers, showing receipt of two amounts of Rs. 8,OOJ.00 and of Rs. 5,010.00 from the late Moquimud din Ansari by cheque drawn on the account of the said deceased. In Exhs. 50 and 51, which are estimates made by Koh-i-Noor Construction Company of the value of the construction on the said plot. Mr. Moquimuddin Ansari is again shown as owner of the property. In Exh. 58, the notice sent by Mr. Khalid M. Ishaq, an Advocate of this Court, to Mir Gul Muhammad, who was the first contractor engaged for construction of the disputed property, the late Moquimuddin Ansari is shown as owner of the property. The said deceased is also shown as owner of the property in several vouchers and receipts for purchase of building materials which are Exhs. 48/1 to 48/7 and 49/1 to 49/3. Then the bills of another contractor, B. A. Siddiqi, Exhs. 42 to 47, have been addressed to the deceased as owner of the said property. All this documentary evidence abundantly proves that the whole of the consideration for the said property came from the late Moquimuddin Ansari himself, and that the defendant No. 1 was only "Benamidar" for her late husband. Mr. Nizam Ahmad, the learned Advocate for the defendant No. 1, objected to the admissibility in evidence of some of the documents, that is, vouchers and receipts for building materials and agreements with contractors. But these objections are misconceived, as these documents are admissible in evidence under section 32 (2) of the Evidence Act, as the statements therein were made in the ordinary course of business by persons whose attendance could not be procured without undue delay and, expense.

4. Mr. Nizam Ahmad took up the contention that the purpose of Moquimuddin Ansari in acquiring the said property in the name of his wife was to defeat the bye-laws of the Muslimabad Co-operative Housing Society under which no person, who was not a Sindi Muslim, could become a member of the said Society or acquire any land therein. According to Mr. Nizam Ahmad, the purpose in acquiring the disputed land in defendant No. 1's name was, therefore, fraudulent and the heirs of the late Moquiumuddin Ansari should not be allowed to take advantage of their father's fraud. Mr. Nizam Ahmad placed reliance on my own judgment in Sultan v. Nawab Mouladad (P L D 1969 Kar. 221). But that judgment proceeded more on considerations of public policy, which was to prevent concentration of agricultural land in the hands of big Zamindars and instead to grant allotments of Barrage lands to landless 'Haris'. In the present case, the object would appear to be merely to evade the restric tion contained in the original Bye-law No. 7 of the Muslimabad Co-operative Housing Society Limited, which confined member ship of the Society to Muslims holding Sind domicile. The bye-laws of a Co-operative Society are only domestic matters and do not have the force of law so that the breach thereof may come within the mischief of section 23 of the Contract Act. This is the view taken in a Nagpur decision Hanmantrao Ramrao v. Wasudeo Khandero (A I R 1926 Nag. 463). Kunwar Mukhtar Ahmed, the learned Advocate for the plaintiffs, brought to my notice a decision of the Indian Supreme Court, Sm. Surasatibalini Debi v. Phanindra Mohan Majumdar (A I R 1965 S C 1364). In this case, an employee of the Court of Wards started a business "Benami" in the name of another against his service rules. In a suit to recover possession of this business it was held that the object of starting business "Benami" in the name of another by such a person could not be said to be fraudulent, as the service rules were not statutory rules. This decision would appear to follow the Nagpur view, which is to the effect that where rules are merely domestic matters, a transaction which has the object of evading such C rules, cannot be treated as unlawful or fraudulent. Moreover, as deposed by P. W. Rais Ahmad, Inspector of Co-operative Societies, Bye-law No. 7 of the Muslimabad Co-operative Housing Society was amended subsequently and the restriction confining the membership to Muslims of Sind domicile alone was removed and the membership of the society was thrown open to all Muslims holding Pakistan domicile. Thus this suit cannot be defeated merely on the ground that the late Moquim uddin Ansari acted to defeat the bye-laws of the Muslimabad Co-operative Housing Society Limited in acquiring the disputed land "Benami" in the name of his wife, the defen dant No. 1. Moreover, this particular objection was not raised in the written statement. An attempt was made to raise this question in the issues, and Issue No. 2 was accordingly framed to consider this point. But at the hearing of the suit before me this issue was dropped and the question cannot now be re agitated. In view of the above discussion the answer to Issues 3 and 4 is as follows:

(a) The disputed plot, namely, plot No. 36, measuring 1500 sq. yds. situtated within the area of Muslimabad Co-operative Housing Society Limited, Karachi was acquired by the late Moquimuddin Ansari from his own funds, but "Benami" in the name of his wife, defendant No. 1.

(b) The bungalow on the said plot of land was constructed by the late Moquimuddin Ansari out of his own resources and funds and the first defendant held it only "Benami" for her husband.

5. Issue No. S.---It is admitted that the plaintiff's and the Defendant No. 2 are heirs of the late Moquimuddin Ansar4. Accordingly, these persons, together with the defendant No. 1, are entitled to have shares in the disputed property, namely, land End bungalow herring No. 36, measuring 1500 sq. yds. situated within the area of Muslimabad Co-operative Housing Society Limited., Karachi.

6. Issues 9 and 10.---In view of the above conclusions and there being numerous co-sharers, it is a fit case for a decree declaring the rights of several parties interested in the disputed property and giving necessary directions with respect to the said property. Accordingly, the rights of the heirs of the late Moquimuddin Ansari in the said property are declared as follows:

K. B. A.Suit decreed.

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