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First Appeal No. 93 of 1951, decided by Third judge on 24th July, 1955, from the decree of Muhammad Afzal Khan, Additional Civil Judge, 1st Class, Pasrur, dated the 26th October, 1951.

S. 98 read with cl. 26, Letters Patent (Lahore)‑Judges differing on points of law as well as on points of fact‑Reference to third Judge ‑should be held to fall under cl. 26 of Letters Patent‑High Court (Lahore) Rules and Orders, Vol. V, Chapter 4‑H, Rule 5.

If two judges composing a Division Bench differ merely on a point of law, it is immaterial whether the reference is deemed to be one under section 98 C. P. C. or clause 26 of the Letters Patent. The result in either case would be identical. If, on the contrary, the judges differ on several points including some relating to questions of fact, the reference under rule 5 of Chapter 4‑H, Vol. V of High Court (Lahore) Rules and Orders would have to be under clause 26 of the Letters Patent and not under section 98 C. P. C. Read in this light, no incongruity is left between the rule and the position that obtains under the Letters Patent. Even if, therefore, the rule has statutory force, it does not lend much assistance to the argument that the present reference should be treated as one under section 98 C. P: C. The learned Judges in the present case differed on points of fact as well as of law and clause 26 of the Letters Patent is the appropriate provision under which the present reference should be held to fall.

The preponderance of authority has veered round in favour of the proposition that all appeals brought to the High Court, whether from inferior Courts or from orders passed by a Judge of the High Court on the original side, are regulated by the Letters Patent and not by section 98 C. P. C.

‑--Bank account in names of two persons ‑After death of one of them, his heir claiming the whole amount as exclusive property of the deceased while the other depositor claiming the whole amount as belonging to her alone‑Issue framed should be an open one, e.g., whether the money was exclusive property of the deceased or of the other joint depositor.

A Bank account stood in the names of a husband and his wife jointly. After the death of the husband, his son by a former wife claimed the whole amount as the property of his deceased father in which he had a certain share as his heir, whereas the wife claimed the whole amount as her own to the exclusion of her husband whose name, she pleaded, had been added to hers for operational convenience.

Held, with reference to the question of onus, that the issue on this part should have, been so framed as to make this position clear. In effect means that the issue should have been an open one and should have required the parties to show whether the money in question was the exclusive property of the husband or of the wife. If both the parties failed to prove their respective claims, the case should have been decided on the basis of the presumption of joint owner ship arising from the fact that the money stood jointly in the names of two persons.

Generally speaking, the onus rests on a party that would fail for want of evidence on a particular issue or point.

Wrongly placed‑Question may be agitated appeal‑Remand.

Siraj‑ud‑Din Ahmad and Muhammad Amin Khan, for Appellant.

Karam Elahi Chauhan, for Respondents.

The relevant facts of this first appeal lie within a narrow compass and may be briefly stated as follows. The dispute in this case relates to certain moneys that stood in the joint name of Chaudhri Ghulam Mustafa Khan, a deceased zamindar of Dullam, District Sialkot, Laid his second wife, Mst. Barkat Bibi respondent, in the Zamindara Central Co‑operative Bank, Pasrur. The deceased was survived by Mst. Barkat Bibi and two children, Muhammad Tufail and Mst. Rehmat Bibi, the issues from his first wife. The suit out of which the appeal has arisen was brought by Muhammad Tufail for a declaration that the money lying in this particular account as well as in another account (with which we are not now concerned as the claim in respect of it was given up) belonged exclusively to the deceased, Chaudhri Ghulam Mustafa Khan, and that as his heir, he was entitled to 7/12th share of the money under Muslim Law. Mst. Barkat Bibi ‑resisted the suit on the plea that the money belonged entirely to her and explained that her husband's name was brought in as a joint operator of her account for the sake of convenience she being a parda‑nashin lady. It may he mentioned that there was no child of the deceased from Mst. Barkat Bibi. The couple had; however, brought up Bashir Ahmad, a nephew of Mst. Barkat Bibi, almost as a son and he now figures as her mukhtar :r. this litigation. The trial Court framed the following issues :‑

(1) What is the amount, if any, of the deposit by Ghulam Mustafa Khan deceased with the Post Office Savings Bank, Zafarwal

(2) Whether the amount credited to the joint account of Ghulam Mustafa Khan and Mst. Barkat Bibi with the Zamindara Central Co‑operative Bank, Pasrur, was and is exclusive property of Mst. Barkat Bibi

(3) If the said amount was not the sole property of Mst. Barkat Bibi, did she become the sole owner of it on the death of Ch. Ghulam Mustafa Khan

(4) What is the plaintiff's share in the said amount

Issue No. 1 relates to the account in respect of which the plaintiff 'gave 'up his claim subsequently. It was actually decided by the trial Court against the plaintiff. On the other issues it was held that the entire amount standing to the credit of Ghulam Mustata Khan and Mst. Barkat Bibi jointly in the Zamindara Central Co‑operative Bank, Pasrur, was the property of Mss. Barkat Bibi alone, and that the plaintiff was nor entitled to any share in it. At the same time it was held that if the said amount was not the sole property of Mst. Barkat Bibi, she could not become the owner of it merely because she had the right to withdraw the entire sum on the death of Ch. Ghulam Mustafa Khan as the survivor of the two joint depositors. In consequence of these findings the plaintiff's suit was dismissed, but the parties were left to bear their own costs.

Feeling aggrieved by the judgment and decree of the trial Court, an appeal was brought to this Court by the plaintiff. This was heard by a Division Bench composed of Kaikaus and Akhlaque Husain, JJ. The learned judges differed on several points in the case. Akhlaque Husain, J. was inclined to uphold the judgment of the trial Court and to dismiss the appeal with costs. On the contrary, Kaikaus J. thought that the appeal should be allowed and the suit of the plaintiff decreed with costs throughout. The case has, therefore, come to me for decision on the points on which the learned judges have differed.

A preliminary objection was raised by Mr. Karam Ilahi Chauhan on behalf of the respondent, Barkat Bibi. It may be mentioned at this stage that Mst. Rahmat Bibi, the daughter of Ch. Ghulam Mustafa Khan deceased, was the second defendant in the trial Court, but, she apparently took no interest in this litigation and is also not represented before me. Mr. Karam Ilahi's position is that the appeal stands concluded by virtue of the provisions of section 98 C. P. C. This section provides that where an appeal is heard by a Bench of two or more judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority, if any, of those Judges. If no such majority is available, the decree shall be confirmed, provided that if the Bench hearing the appeal is composed of two Judges belonging to a Court consisting of more than two Judges and there is a difference of opinion between them on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only, by one or more of the other judges, and such point shall be decided according to the opinion of the majority (if any) of the judges who have heard the appeal, including those who first heard it. The contention of Mr. Karam Ilahi Chauhan is that the learned Judges have differed on a point of fact only and, therefore, the decree of the trial Court should be deemed to have been affirmed. This does not appear to be the correct position. I find that the learned judges have differed not only on a question of fact which is admittedly the main question in the case but also on certain points of law which have a material bearing on that question. The learned judges have not formulated the points of difference between them and have given no indication as to whether the case is to be referred to a third Judge under clause 26 of the Letters Patent or under section 98 of the Code of Civil Procedure. They Have merely recorded their own separate judgments which of course bring out clearly the points of difference between them. There is further an order of the then Chief Justice on the file, referring the case for decision to a third judge, namely, myself, under clause 26 of the Letters Patent. It is argued that High Court Rules and Orders contemplate reference to a third judge under section 98 C. P. C. as well as under the Letters Patent. My attention has been drawn in this connection to rule 5 of Chapter 4‑H, Volume V, High Court Rules and Orders, which may be quoted in extenso :

" When an appeal is heard by a Bench consisting of two judges and the judges composing the Bench differ on a point of law and refer the appeal under section 98 of the Code of Civil Procedure, the judges so differing shall each record his judgment on the appeal, and the appeal shall thereupon be laid before the Chief justice, who shall direct to which other judge or other Judges the appeal shall be referred. Similarly when the judges composing a Bench being equally divided in opinion as to the decision on a point state that point for reference to another Judge or judges under clause 26 of the Letters Patent, the case shall be heard on that point by one or more judges to be nominated by the Chief Justice. The Chief Justice may be such other Judge or one of such other judges."

Mr. Siraj‑ud‑Din Ahmad, on the contrary, has contended for the plaintiff‑appellant that after the amendment of section 98 C. P. C. in 1928, by the inclusion of subsection (3), the position has been altered and the provisions of the Letters Patent prevail over those, of this section so far as appeals heard in this Court are concerned. His position is that on a difference of opinion between two judges of a Division Bench of this Court, reference to a third judge must automatically be held to fall under clause 26 of the Letters Patent and not under section 98 C. P. C. Under clause 26, all points of difference and not merely a law point can be referred for decision to one or more of the other judges of the Court and the judgment has then to follow the opinion of the majority of the judges who have heard the case including those who first heard it. In this connection, Mr. Siraj‑ud‑Din Ahmad relies on clause 11 of the Letters Patent and points out that under that enactment, the High Court of Judicature at Lahore is constituted a Court of appeal from the Civil Courts of the Province and from all other Courts subject to its superintendence and is further empowered to exercise appellate jurisdiction in such cases as were, immediately before the date of the publication of the Letters Patent, subject to appeal to the Chief Court of the Punjab by virtue of any law then in force, or as may after that date be declared subject to appeal to the High Court by any law made by competent legislative authority. In view of subsection (3) of section 98 which enacts that nothing in this section shall be deemed to alter or otherwise affect any provision of the Letters Patent of any High Court, it is urged on behalf of the plaintiff‑appellant that, reading clauses 11 and 26 of the Letters Patent together, it must be held that the provisions in the Letters Patent prevail over those of section 98 C. P. C. as the relevant jurisdiction is exercisable under the Letters Patent. On the contrary Mr. Karam Ilahi Chauhan raised the contention that clause 11 of the Letters Patent was merely confirmatory of the existing appellate jurisdiction of the High Court and did not create any new jurisdiction. He would construe the words " appellate jurisdiction " occurring in clause 26 as applying only to new appellate jurisdiction created by the Letters Patent, apart from clause 11.

The position taken by learned counsel on behalf of the respondent does not appear to me to be sound. The High Court itself was created by the Letters Patent in 1919 and it then replaced the Punjab Chief Court. It would, therefore, be a travesty of facts to say that clause 11 of the Letters Patent was merely confirmatory of the existing appellate jurisdiction of the High Court. The High Court itself did not exist before the enactment of clause 11 and ipso facto there could be no question of any existing jurisdiction of this Court before the grant of the Letters Patent. If I had to construe the provisions of the Letters Patent as res integra I would have found no difficulty in holding that appeals in this Court were to be regulated by the Letters Patent and not by section 98 of the Code of Civil Procedure.

There was undoubtedly some controversy on this point among the various High Courts in the subcontinent previously. The view was taken in some cases that section 98 C. P. C. applies to appeals from Courts of inferior jurisdiction to the High Court and that the relevant clause of the Letters Patent only regulated appeals from orders of one or more judges of the High Court acting on the original side. Reference in this connection may be made to Bhuta halad Jayatsing v. Lakadu Dhansing (I L R 43 Bom. 433 (F B)), Pandey Dagadu Mahar v. clamnadas Chotumal Marsvadi (A I R 1923 Bom. 218 (D B)), Prafulla Kamini Roy v. Bhabani Nath Roy (A I R 192,6 Cal. 121 (D B)), Fazlur Rahman v. Haji Abdullah (A I R 1932 All. 195 (D B)), and Punjab Akhbarat and Press Co. Ltd. v. C. M. G. Ogilvie (I L R 1926 Lah. 65 (D B)). The contrary view that the relevant, clause of the Letters Patent governs all cases of difference of opinion arising in appeals pending in the High Court and section 98 C. P, C. has no application, first found favour with a Full Bench of the Madras High Court in Dhanaraju v. Motilal Daga (A I R 1929 Mad. 641). That view was followed by a Division Bench of this Court in the case reported as M. D. Puri v. Lyons Cinema Ltd. (A I R 1933 Lah. 648 (I)) and was authoritatively armed later by two Full .Benches of this Court in Mst. Sardar Bibi v. Haq Nawaz Khan (A I R 1934 Lah.371) and Punjab Co‑operative Bank Ltd. v. Punjab Cotton Press Co. Ltd. (A I R 1941 Lah.257). There is also a Full Bench decision of the Allahabad High Court published as Rajendra Kishore Sahi v. Nand Prasad (A I R 1938 All. 641) agreeing with the latter view. It is worthy of note that even in Punjab Akhbarat and Press Co. Ltd. v. Ogilvie Sir Shadi Lal, C. J., who delivered the judgment, felt bound by the authorities cited before the Bench, but observed that if the matter had been res integra, he would have been inclined to the view that the Letters Patent governed all appeals in the High Court. It appears, therefore, that the preponderance of authority has veered round in favour of the proposition that all appeals brought to the High Court, whether from inferior Courts or from orders passed by a Judge of the High Court on the original side, are regulated by the Letters Patent and not by section 98 C. P. C.

This finding receives support from the statement of objects and reasons published in the Gazette with. the amending Act XVIII of 1928 by which subsection (3) of section 98 C. P. C. was enacted. The objects and reasons were stated thus‑

" The amendment states in precise terms the fact implicit in section 4 of the Code that the Letters Patent overrides the provisions of section 98 of the Code."

The question then arises, why does rule 5 of Chapter 4‑H, Volume V of High Court Rules and Orders, refer to both section 98 C. P. C. and to clause 26 of the Letters Patent I have got the history of this rule investigated by the office. The rule existed in the same form in the 1932 Edition of High Court Rules and Orders. The present edition was published in, the year 1942. In the 1920 Edition, the corresponding rule was expressed in the following terms :‑

" When an appeal is heard by a Bench consisting of two Judges and the Judges composing the Bench differ on a point of law and refer the appeal under section 98 of the Code of Civil Procedure, the Judges so differing shall each record his judgment on the appeal, 'and the appeal shall thereupon be laid before the Chief Justice, who shall direct to which other judge or other judges the appeal shall be referred. The Chief Justice may be such other judge or one of such other judges."

The second part of the present rule did not then exist, which contains reference to clause 26 of the Letters Patent. This clause of the Letters Patent was amended in 1928. Prior to the amendment it read as follows :‑

"And we do hereby declare .that any function which ' is hereby directed to be performed by the High Court of judicature at Lahore, in the exercise of its original or appellate jurisdiction, may be performed by any judge, or by any Division Court thereof, appointed or constituted for such purpose in pursuance of section 108 of the Government of India Act, 1915 ; and if such Division Court is composed of two or more judges and the judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there be a majority, but, if the judges be equally divided, then the opinion of the senior judge shall prevail After the amendment, instead of the words "then the opinion of the senior judge shall prevail", the following words were substituted :‑

"They shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other judges and the point shall be decided accord ing to the opinion of the majority of the judges who have heard the case, including those who first heard it."

It was apparently after this amendment had been effected in clause 26 of the Letters Patent, that subsection (3) of section 98 C. P. C. was enacted by the Legislature. It appears to me that the first part of rule 5 of Chapter 4‑H, Volume. V, merely repeats the rule as it stood in the older form although it has lost its efficacy by the amendment of section 98 C. P. C. and that of the Letters Patent. Indeed, even if the first part of this rule is to be given effect, it does not introduce any inconsistency with the relevant provisions of the Letters Patent. If two judges composing a Division Bench differ merely on a point of law, it is immaterial whether the reference is deemed to be one under section 98 C. P. C. or clause 26 of the Letters Patent. The result in either case would be identical. If, on the contrary, the judges differ on several points including some relating to questions of fact, the reference under this rule would have to be under clause 26 of the Letters Patent and not under section 98 C. P. C. Read in this light, no incongruity is left between the rule and the position that obtains under the Letters Patent. Even if, therefore, the rule has statutory force, as Mr. Karam Ilahi Chauhan contends, it does not lend much assistance to his argument that the present reference should be treated as one under section 98 C. P. C. As pointed out above, the learned judges in the present case have differed on points of fact as well as of law and clause 26 of the Letters Patent is, in my, opinion, the appropriate provision under which the present reference should be held to fall.

The learned Judges have not acted strictly in compliance with the provisions of clause 26 of the Letters Patent inas much as they have not stated expressly the points on which difference of opinion arose between them. It seems unnecessary, however, to remit the case back to the Division Bench for the formal formulation of the points of difference. Those points are apparent from the two judgments delivered by the learned judges. Learned counsel for the parties have agreed before me that the points on which the learned judges have differed are these :‑

(1) Whether the onus of issue No. 2 was placed on the respondent rightly or wrongly

(2) Can the respondent object to the onus at the appellate stage after having accepted the onus and after having led evidence concerning it in the trial Court

(3) If the answer to point No. 2 is in the affirmative, is a remand of the case to the trial Court necessary

(4) Is the evidence on record sufficient to prove that the money in question belongs to the respondent rather than to her deceased husband

On the first point, Kaikaus J. was of the opinion that the onus of issue No. 2 had been rightly placed on the defendant respondent, Mst. Barkat Bibi. On the contrary, Akhlaque Husain J. thought otherwise. On the second point, Kaikaus J. referred to certain authorities in which the proposition has been laid down that if a party accepts the onus in the trial Court without demur, it cannot take an objection in that behalf in the appellate Court. The learned Judge was not prepared to accept this proposition in its unqualified form. He was of the view that a party could not be held to be debarred in all circumstances from raising the question of onus at the appellate stage even if it entailed a remand of the case. He, however, pointed out that if the defendant takes upon himself the burden of proving a fact, the onus of proving the negative of which fact was on the plaintiff and the defen dant puts forward a story which the Court rejects as untrue, while appreciating the evidence due regard must be paid to this circumstance. Akhlaque Husain J. was of the opinion that in view of the wrong allocation of the onus by the trial Court, the appellate Court would be entitled to adopt a different approach to the case while assessing the worth of the evidence led by the parties. At the same time, according to the learned Judge, the fact that the lower Court had wrong ly cast the onus on the defendant, was not of much consequence in this case, inasmuch as both parties had full oppor tunity of producing the evidence which they could or considered proper to adduce. He evidently, therefore, did not regard the case as a fit one for remand, whereas Kaikaus J. thought that if the question of onus was important and had been wrongly decided, a remand would be necessary in the interest of justice as the plaintiff may have been misled by the wrong allocation of onus. On the fourth point, Akhlaque Husain J. was inclined to hold that the evidence produced by the defendant‑respondent was sufficient to prove her claim and that there was nothing in that evidence which could lead to the inference that the plaintiff's claim was correct. On the other hand, Kaikaus J. found that the evidence led by the respondent was unsatisfactory and did not succeed in estab lishing that the money in question belonged exclusively to her. From the circumstances brought out in the evidence, the learned Judge thought that the plaintiff‑appellant's claim had been substantiated. I take these points seriatam.

Point No. 1.‑The question of onus has obviously to be decided on the basis of the pleadings of the parties and not with reference to the evidence subsequently led by the parties in Court. In the plaint, the appellant, Muhammad Tufail, admitted with respect to the sum of Rs. 7500 lying in the Zamindara Co‑operative Bank, Pasrur, that the money stood in the joint names of Ghulam Mustafa Khan and Mst. Barkat Bibi. He claimed that the money belonged solely to his father. In her written statement Mst. Barkat Bibi conceded the fact that the amount stood in the joint account of her deceased husband and herself, and explained that the money belonged to her but that, as she was a parda nashin woman, the money was deposited in her name and that of her husband jointly, with the direction that during their joint lives any one could operate on that account and, on the death of either, the other depositor could withdraw the money. It was added in the alternative that even if it be considered that the money deposited in the Savings Bank Account at Pasrur, either wholly or in part belonged to the deceased Chaudhri Ghulam Mustafa Khan, because of the conditions of the deposit, he left no heritable interest on his death in this money. It seems tome that on these pleadings both parties were making claims against the admitted position that the account stood jointly in the names of Chaudhri Ghulam Mustafa Khan deceased and Mst. Barkat Bibi. The plaintiff's claim amounted to an allegation that Mst. Barkat Bibi was brought in merely as a benamidar for her husband, whereas the lady's position was that although her husband figured as the joint depositor with her, he was brought in merely for operational convenience and had no ownership rights in the money. The question then is what are the legal implications of a joint account standing in the name of two persons in a bank. Ordinarily in the case of two persons, strangers to each other, in the absence of any other circumstance indicating the contrary, the presumption would be fair that the joint depositors were owners of the money in equal shares. Is the position altered in the present case because of the fact that the respondent was the wife of the deceased Chaudhri Ghulam Mustafa Khan Prima facie it is not intelligible why the deceased should have been anxious to include his wife as joint depositor with himself as a mere benamidar. What object he could hope to serve by that means, is not at all brought out in the leadings. In these circumstances, I do not think that the‑ ordinary presumption with regard to the ownership of a joint account would in any way be modified. In the present case, Mst. Barkat Bibi was ostensibly one of the joint owners of the sum in question. I, therefore, find myself in partial agreement with both the learned judges who have previously heard this case I consider that the onus of proving that the money belonged exclusively to Mst. Barkat Bibi rested on her and at the same time it was for the plaintiff to prove that it exclusively belonged to his deceased father. I say this because even if the defendant failed to prove her exclusive ownership of the money in question, that negative finding would not automatically lead to the inference that the deceased, Chaudhri Ghulam Mustafa Khan, was its sole owner That fact would have to be established by evidence, circumstantial or otherwise, showing that the source of the money was wholly the deceased's exclusive property or business. I would hold, therefore, that issue No. 2 should have been so framed as to make this position clear. In effect it means that issue No. 2 should have been an open one and should have required the parties to show whether the money in question was the exclusive property of Ch. Ghulam Mustafa Khan or of the respondent Barkat Bibi. If both the parties failed to prove their respective claims, the case should have been decided, in my opinion, on the basis of the presump tion of joint ownership arising from the fact that the money stood jointly in the names of two persons. Generally speaking the onus rests on a party that would fail for want of evidence on a particular issue or point.

Points Nos. 2 and 3.‑Having found that issue No. 2 should have been really an open one, the next question is whether the respondent can object at the appellate stage to the onus placed on her by the trial Court. Mr. Siraj‑ud‑Din Ahmad cites certain rulings for the proposition that when a party has accepted the onus of proof in the lower Court and has attempted to discharge it without success, that party cannot L be heard to say in appeal that he has not been treated fairly. Reliance was placed in this connection on Jadu Nath v. Ramun Mal (A I R 1921 Lah. 284), Uttam Chand‑Ishar Das v. Hakim Muhammad Shafi (A I R 1932 Lah. 417 (D B)), Pokhar Das v. 2akhar Das (A I R 1930 Lah. 213 (II)), Bishambar Das v. Telu Ram ((4) A I R 1934 Lah. 1019 (II)) and Makund v. Bahori Lal (I L R 1880 (3) All. 824 (D B)). I have already adverted to the fact that even Kaikaus J. was not prepared to accept the proposition laid down in these rulings without qualification. Akhlaque Husain J. thought that the question of onus was an important one as it determined the approach to the evidence in the case and, therefore, it could be agitated at the appellate stage. 6 M I A 53 was referred to as an authority in support of this proposition. As I read the judgment of Kaikaus J. I do not think that he has radically differed from that view though he has added that in such a case a remand may be necessary in the interests of justice. On the contrary Akhlaque Husain J. considered that there was no question of remand when both parties had full opportunity to lead evidence in the trial Court. As observed above, issue No. 2, as framed by the trial Court, did not set out the position correctly and there is reason to think that the plaintiff‑appellant may have been misled by the assumption that it was for the respondent to establish her case in the absence of which he was entitled to succeed. I am therefore inclined to agree with Kaikaus J. that a remand may be necessary if it is held that the evidence on record did not make out the respondent's claim. As has been pointed out by Kaikaus J., the plaintiff might very well have led evidence to show that the alleged sources of income of Mst. Barkat Bibi did not exist at the relevant time or that the money which came to be deposited in the personal account of the deceased, Chaudhri Ghulam Mustafa Khan, in the Central Co‑operative Bank, Pasrur, from which certain items were transferred from time to time to the joint account in question could have no relation to any such sources. Further there is one item of Rs. 385 in this joint account, which is shown as transferred to some other account whose identity is not clear. The withdrawal of this amount would be an important question in the case bearing on the plea of exclusive ownership taken by the respondent. I, therefore, record my opinion accordingly.

Point No. 4.‑This is the most important point arising in the case. The respondent, besides putting herself in the witness‑box, examined Mr. Yaqub Khan, Manager, Central Co operative Bank, Pasrur, (D. W. 1), Muhammad Akram (D. W. 3) and Bashir Ahmad, her mukhtar (D. W. 4). Mr. Yaqub Khan deposed that the account stood jointly in the names of Ghulam Mustafa Khan and Mst. Barkat Bibi, on whose behalf Bashir Ahmad, her mukhtar, appeared along with the deceased in the bank, at the time when the account was opened. The account was started with a sum of Rs. 400 which Chaudhri Ghulam Mustafa had brought with him. A correct copy of the account is Exh. D. W. 1/2 printed at pages 8 and 9 of the paper book. This shows that the sum was actually paid in by Bashir Ahmad in cash. The witness added that either of the joint depositors was authorized to operate on the account and in the case of death of one of them, the other could get the whole money, provided there was no legal hitch in the matter in the shape of an injunction issued by a Court or a contention raised by a disputant. Mst. Barkat Bibi herself as D. W. 2 stated that the joint account contained her money alone. She described the amount as Rs. 7,500. It really stood at Rs. 7,646‑4‑3 along with interest, on the 12th of March 1951. She alleged that she had certain lands mortgaged with her and their redemption yielded her some money which was deposited in the bank. Then follows a sentence in the Urdu part of the paper book, which both the learned judges have interpreted to mean that Chaudhri Ghulam Mustafa Khan got the mortgage money from the bank on her behalf, kept the money with himself and eventually he deposited it in the joint account. I have seen the original record, and the word "bank", which occurs in this line of the printed record, is not apparently there. It is some other word whose reading is doubtful. The criticism of Kaikaus J. therefore, based on the word "bank" loses much of its force. It is difficult now to say what the witness had stated in the trial Court, but apparently she meant to convey that Chaudhri Ghulam Mustafa Khan retained the money which was hers, arising out of the redemption of mortgages in her favour, for some time and eventually .it was brought into the joint account for her benefit. She added further that she had given '.Rs. 3,250 to her mukhtar, Bashir Ahmad, who had invested it in a shop and when this money was received back, Bashir Ahmed deposited it in her account in the bank. She described this receipt as "income" and this expression has also come under adverse comment at the hand of Kaikaus J. Apparently the witness used a lose expression in this behalf. In her cross‑examination the lady said that on the first day, Chaudhri Ghulam Mustafa Khan had deposited Rs. 4,000 in this account. This is evidently a mistake for Rs. 400, as the account shows. The witness may have slipped while mentioning this sum. She was vague about the amounts that Bashir Ahmad deposited on her behalf from time to time, but this is only natural. She is after all a panda nashin lady and apparently unlettered. She denied that the money advanced for the mortgages came from the deceased and that the mortgages were benami in her name. She also claimed that she owned five ghumaons of land in village Ayara which was chahi and from which she also derived income. She further asserted that she had sold some of her ornaments and had received some money from her parents. If she is to be believed, she used to get Rs. 300, every half year, from her land. These things, it is true are not explicitly referred to in the written statement of the respondent. We must remember that pleadings in the mufassil are never artistically drafted and it is not surprising that full details of the sources of money were not revealed in that written statement. The third witness, Muhammad Akram, is a shopkeeper in Zafarwal. He is a brother‑in‑law of Bashir Ahmad, mukhtar of. the respondent. He deposed that Bashir Ahmad was his partner in business in four shops, that he had contributed half the capital of Rs. 20,000 for these shops and had in addition deposited with him Rs. 3,200 over and above his share of the capital, out of the money belonging to the respondent. He had shown this money in his account books and had later paid back the money to Bashir Ahmad, on behalf of the respondent, without any profit, in accordance with the agreement between him and Bashir Ahmad. The witness brought his register in Court and a copy of the relevant entries was placed on the file at the request of the plaintiff. The criticism is advanced that this witness is not paying any income‑tax and his books do not appear to be kept with that meticulous regularity which a business started with a capital of Rs. 20,000 would seem to require. I am not impressed by this criticism. He may be a careless type of business man but not necessarily a perjurer. Merely because this witness is a relative of Bashir Ahmad (D. W. 4), it does not seem necessary to disbelieve him. Read with the evidence of Bashir Ahmad, I consider that his deposition is acceptable. It was pointed out by Kaikaus J. that in the written statement, the respondent did not say that any money had been deposited in her joint account by Bashir Ahmad. As I have observed above, we must make allowance for the fact that this is a mufassil case in which due attention is not paid to the proper drafting of pleadings. There is documentary evidence coming from inde pendent sources to show that, in fact, Bashir Ahmad had been depositing money in this joint account copy of which is Exh. D. W. 1/2. Besides the first sum of Rs. 400, Bashir Ahmad deposited in this account Rs. 1,000 on the 26th of January, 1949, Rs. 1,000 on the 26th of February, 1949 and Rs. 800 on the 2nd of July 1949. These sums taken with the first amount, come up to Rs. 3,200 in all. The rest of the items, excluding the interest, amounting to a sum of Rs. 4,310‑3‑6 apparently came from the separate S. B. account of Ghulam Mustafa with the same bank.

Unfortunately, no evidence has been brought on the file as to how and why these some cams to be transferred from the S. B. account of the deceased to the joint account, when it is claimed that the money belonged to Mst. Barkat Bibi alone. There is only one mutation of redemption of mortgage in 1945, Exh. D. 1, which shows that Rs. 1070 may have been realised by Barkat Bibi through her husband. Three other mutations were also produced, Exhs. D. 2, D. 3 and D. 4. D. 2 is a mutation sanctioned in 1945. This indicates that a mortgage existing in favour of the respondent was formally redeemed because the mortgage amount had been increased entailing probably the sanctioning of a new mutation. D. 3 is a mutation evidencing that some land on mortgage with Mst. Barkat Bibi was gifted in favour of Bashir Ahmad and his brothers in 1932, but this very mutation shows that some mort gaged land still remained with her in that year. D. 4 appears to be irrelevant. By its means, a gift of some mortgagee rights was made by the respondent to Bashir Ahmad and his brothers in 1932. All that is established, therefore, is that some mortgages existed in favour of the respondent and that in one case at least, there was a redemption yielding a sum of Rs. 1,070 in 1945. No link has, however, been established between the income arising from the redemption of these mortgages and the money transferred from the S. B. account of the deceased to the joint account.

Reference may also be made at this stage to the statement of the plaintiff as his own witness. He did not examine any other witness in rebuttal of the defence evidence. He could not say where from the money deposited i the joint account came. He made a bald claim that it belonged to his father. He admitted in cross‑examination that there was some land standing in the name of the respondent whose area he gave as four bighas. He half‑heartedly admitted that there was a well sunk in it by a tenant, but suggested that it had no water. His assertion that the land standing in the name of Mst. Barkat Bibi was merely benami is not established by any evidence except for his own allegation. Surely the acid test in such cases is the source of money and nothing was said concerning the purchase price of that land. This sums up the whole evidence on record

I do not .think the entries in the account books or Muhammad Akram (D. W. 3) were fictitious as Kaikaus J. was inclined to believe. The entries in that account show payments to Bashir Ahmad which are antecedent in date by several days, in most cases, to the dates of deposit of the relevant sums, in the joint account, by Bashir Ahmad. In one case the interval between the receipt of money by Bashir Ahmad from Muhammad Akram and the date of deposit in the bank is considerable. The sum of Rs. 800 was paid by Muhammad Akram on the 23rd of April, 1949, but it was not deposited ii; the bank till the 2nd of July, 1949. This by itself constitutes, in my opinion, intrinsic evidence that the entries in the register of the witness were not forged to tally with the corresponding entries in the bank account. I am disposed to agree with Akhlaque Hussain J. that the evidence concerning the transaction with Muhammad Akram and the claim that Rs. 3,200 belonging to the respondent were paid into the bank by Bashir Ahmad on her behalf is satisfactory. This proves, therefore, that out of the disputed amount, Rs. 3,200 were established to have come from Mst. Barkat Bibi alone. She evidently was a woman of property iii whose name some land as well as mortgagee rights stood. Even if her statement as regards the sale of ornaments and receipt of money from parents is discounted as being bereft of details, the fact remains that she had an, independent source of income in the shape of land which stood in her name and about which there is not the least evidence to show that they were held by her as benami for her husband.

Would it be legitimate then to infer from this established fact that the remaining money in the joint account also belonged to the respondent In other words, should she be believed when she says that her husband received redemption money on her behalf from time to time, kept the money with himself and then deposited it in the joint account which was solely owned by her The consideration is relevant that if the deceased had his own separate account in the bank, there would be no particular reason why he should have beer. anxious to start a joint account in the name of himself and his wife in addition. This lends colour to the assertion of the respondent that the joint account belonged to her alone and the husband was brought in for operational convenience to aid and assist her. It is true that she could have led better evidence to show on what dates income accrued to her on redemption of mortgages in her favour. But as I read he, statement, it does not exclude the possibility that her husband may have (first deposited her money in his own S. B. account and then from time to time transferred it to the joint account. This becomes credible when we remember that the plaintiff could throw no light whatever on the source of the money coming to the joint account, at all. The positive fact is no doubt there that the money was transferred from the S. B. account of the deceased to the extent of over Rs. 4,000. The transactions were pretty old and the lady being uneduca ted and a pardanashin one, she could not be expected to have marshalled proper evidence to establish a direct link between her own income and the amounts transferred by the deceased into the joint account from his own S. B. account. The young man, Bashir Ahmad, could probably provide little assistance to her in unearthing this old evidences as the facts may not be within his personal knowledge. There is nothing to contradict her statement on oath that her husband retained her money for some time and then deposited it in the bank in "her account" which is synonymous with the joint account is this case. This was the view taken by the trial Court and this finding was endorsed by Akhlaque Husain, J. In the absence of any attempt on the part of the plaintiff to adduce evidence as to the source of money, I am prepared to accept the evidence of the respondent and her witnesses and would hold that the joint account represented her exclusive property, the husband's name being brought in for her convenience only.

On this view of the matter there is, in my opinion, no question of remand of the case. The question of advancement may also be briefly commented upon. Both the learned judges have recognized that the English doctrine of advancement does not apply as such in this country. Akhlaque Husian J., however, thought that the circumstances of the case tended to show that even if the whole or a part of the money in the joint account came from the deceased, he intended it to become the property of the respondent who was his second wife, had no children of her own and whom he had married when he was of a fairly advanced age. On the contrary, Mr. Siraj‑ud‑Din Ahmad has pointed out that this would either amount to a gift or a will. If it was a gift, the deceased did not divest himself of all interest in the property as he retained himself as a joint operator of the account and the money was payable to him in case the wife died earlier. It did not, therefore, operate as a gift. Again it could not be effective as a will as Mst. Barkat Bibi would be one of his heirs and without the consent of the other heirs, the will could not be effective. I am, therefore, unable to hold that if the evidence could be regarded as not establishing her claim of sole ownership, she could make out an alternative case on a principle akin to that of advancement.

The record will now go back. to the learned Judges so that a decision may be recorded in accordance with the majority opinion.

Announced to both counsel.

A. H. Case sent back.