Case: Bibi Saddiqa Fatima Vs. Saiyed Mohammad Mahmood Hasan

One Smt. Sughra Begum was a Shia Muslim Lady. She was a resident of Asgharabad in the District of Aligarh. She was possessed of vast Zamindari and other properties. On October 6, 1928, she created a waqf of the entire properties dividing them in three qurras. Raja Haji Saiyad Mohammad Mahmood Hasan was appointed by the waqifa as the Mutawalli of qurra No. 1. His brother was appointed the Mutawalli of the second qurra. The waqifa appointed herself the Mutawalli of the third qurra. The dispute in this case relates to a property concerning qurra No. 1. The Rajas first wife was Smt. Akbari Begum. She died in the year 1931 leaving behind four sons and six daughters. Raja Sahib, when he was about 50 years of age, took the plaintiff as his second wife in the yearThe plaintiff, at the time of her marriage with the Raja, was a young lady of seventeen. Raja died in September, 1939. On January 22, 1935, a permanent lease was executed on behalf of one Saiyed Anwarul Rahman in respect of the disputed land in the name of the plaintiff. The rent fixed was Rs. 80/- per year. Between the years 1937 and 1939  Kothi (Bungalow) was constructed on the said land, which was named as Mahmood Manzil. The suit property in this litigation is the said Kothi together with the land appertaining to it.In short the plaintiffs case is that the disputed property belongs to her. The defendant was inducted as a tenant of the Kothi an and from 1st of March, 1947 on a rental of Rs. 60 /- per month. He paid rent upto May, 1950 but did not pay any rent thereafter. In the year 1952, the plaintiff served a notice on the defendant to pay the arrears of rent and deliver vacant possession of the Kothi. The defendant, in his reply, refuted the claim of the plaintiff and asserted that the Kothi did not belong to her nor was be a tenant of the same. Hence the appellant instituted the suit for realisation of arrears of rent, damages and recovery of possession of the suit property. The respondent, inter alia, pleaded that Raja Sahib, the first Mutawalli of qurra No. 1, had acquired the lease of the land and constructed the Kothi with the waqf fund as Mutawalli of the waqf. It was a waqf property. After the death of the Raja, the respondent became the Mutawalli of qurra No. 1 including the Kothi in question. He occupied the Kothi as a Mutawalli and not as a tenant. The Trial Court accepted the case of the defendant, rejected that of the plaintiff and dismissed her suit. The Allahabad High Court has dismissed her appeal. She has preferred this appeal in this Court on grant of special leave.

Reasoning:
In the instant case, there is no question of giving any alternative relief to the plaintiff. The relief asked for is one and the same. The plaintiff claimed that she had acquired the property with her personal funds. The defendant successfully combated this case. He had not said anything on the basis of which any alternative relief could be given to the plaintiff. The facts of the case of Nagubai Ammal (supra) would clearly show that the decision of this Court does not help the appellant at all. The respondent did not specifically raise the question of his pending in his pleading nor was an issue framed or. the point, but he raised the question at the very commencement of the trial in his deposition, proved relevant documents which were admitted into evidence without any objection from the appellants who filed their own documents, cross-examined the respondent and invited the Court to hold that the suit for maintenance and a charge and the connected proceedings evidenced by these documents were collusive in order to avoid the operation of s. 52 of the Transfer of Property Act. The matter was decided with reference to s. 52. In such a situation it was held by this Court that the decisions of the Courts below were correct and in the facts and circumstances of the case the omission of the respondent to specifically raise the question of his pending in his pleading did not take the appellants by surprise. It was a mere irregularity which resulted in no prejudice to the appellants. In the instant case no body at any stage of the litigation before the appeal came up to this Court had taken any stand or said a word any where that money spent in acquisition of the property was the personal money of the plaintiff because as and when the sums were spent they went on becoming her personal money. The evidence adduced and the stand taken in arguments were wholly different. No party had said anything on the lines of the case made out in this Court. Similar is the position in regard to the decision of this Court in the case of Kunju Kesavan. At page 648 Hidayatullah J., as he then was, hasparties went to trial fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagavathi Valli or not. The absence of an issue, therefore, did not lead to a mis-trial sufficient to vitiate thewas further added that the plea was hardly necessary in view of the plea made by the plaintiff in the replication. Mr. Lal Narayan Sinha placed reliance upon the decision of this Court in Meenakshi Mills, Madurai v. The Commissioner of Income-tax, Madras([1956] S.C.R. 691.) in support o f his submission that the question of benami is essentially a question of fact and this Court would not ordinarily and generally review the concurrent findings of the courts below in that regard. Mr. Phadke submitted that his case was covered by some exceptions carved out in the decision of the Federal Court in Gangadara Ayyarand others v. Subramania Sastrjgal and others.(A.T.R. 1949 F.C.our opinion it is not necessary to decide as to on which side of the dividing line this case falls in the light of the principles enunciated, in the case aforementioned. Truly speaking, the concurrent findings of the Courts below on the, primary facts could not be seriously challenged. They are obviously correct. But a new stand was taken on the basis of clause 18 of the waqf deed which we have already discussed and rejected.Phadke, heavily relied upon clause 19 of the Win dated 17-6-1938-Ext. 15 executed by the Raja fixing various amounts of stipends to be paid to the beneficiaries after his death. He had executed two other wills prior to this Will. In an earlier litigation, a question had arisen as to which Will would prevail-the first one or the last one. The amounts fixed for the plaintiff in the last Will was much higher than the amount fixed for her in the first Will. in an earlier judgment dated 3-9-1949-Ext. 3 which was a judgment inter-partes it was held that the amount fixed in the first Will would prevail. Clause 18 of the waqf deed was also interpreted in a particular manner. Mr. Lal Narayan Sinha endeavoured to use this judgment operating as res judicata in regard to some of the questions falling for decision in this litigation . We do not propose to make use of that judgment in that form. Nor do we propose to express any final opinion as to which amount of stipend was effective-the first one or the last one. We. shall assume in favour of the plaintiff that the. amount fixed by the last Will was effective and binding on the subsequent Mutawalli. We are, however, concerned to read clause 19 of the last Will which runs aswife Siddique Fatima has got a kothi known a s (main (?) Shagird Pasha in mauza Doodhpur (paper torn) by taking on perpetual lease. I or the state has no concern with the same. It has been constructed by her with her own funds. All t he articles lying there belong to her and have been purchased by her from her own money. I have certainly given some articles to her which belonged to me personally. In short all the articles, of whatever sort they may be are her property and nobody has got any right in respect thereof because the state or any one else has got no concern or right in respect thereof. Hence she(?) has got the right to dispose the same off or to make a waqf of the same. She may give it to any of my sons, who renders obedience and service to her or may give the same to any of my grandsons. My other heirs shall have no right in respect thereof. If any body brings, any claim, in order to harass her, the same shall beus see whether this clause advances the case of the appellant any further. On a close scrutiny, it would be found that it directly demolishes her stand taken in this Court. The recital by the Raja in clause 19 is that his wife bad taken the perpetual lease and constructed the kothi with her own funds. All the articles lying there have been purchased by her from her own money. He had certainly given some articles to her which belonged to him personally. There is no recital that the Raja had constructed the kothi , for the plaintiff out of his own funds nor was there a recital that he had constructed the kothi by taking the money from the waqf estate and treating it as payment of stipends to her as and when the sums of money were paid. By no stretch of law such a recital could create a title in favour of the plaintiff and finish the right of the, waqf to the property. The recital was demonstrably false and could not bind the subsequent Mutawalli. If the property became the acquired property of the waqf a Mutawalli, as the Raja was, by his mere declaration contained in clause 19 of the Will could not make it a property of the lady. The recital of fact could be pressed into service only to lend additional support to the plaintiffs case if she would have stuck to that case and proved it by evidence aliunde.The appellants counsel relied upon the various circumstances to, advance her case in this Court-the foremost of them is based upon clause 18 of the waqf deed, which we have already dealt with. It was next contended that the real question was that the property was of waqf- alal-aulad of which the main object was the maintenance and support of the members of the settlers family and to tie up the corpus of the property in perpetuity so as to, make it inalienable. The Raja, however, according to the submission was left free during his life time to make disbursement of the income in any manner he chose and liked. Acquiring a property with the waqf fund was the fulfillment of the object of the wakf. It was a part of making a provision for the maintenance and support of the wife of the Mutawallii. It was an integral part of the object of the waqf and was not in breach of the trust. We are not impressed with this argument and have already dealt with it in the earlier portion of this judgment. True it is that the property was not acquired by the sale of the corpus of any of the waqf property but even acquisition of an immovable property directly with the, waqf fund was an accretion to the waqf property. The Raja had no power while administering the waqf to acquire a property for a particular beneficiary by way of maintenance and support of such a beneficiary. As indicated earlier, a Mutawalli of a waqt although not a trustee in the true sense of the terms is still bound by the various obligations of a trustee. He like a trustee or a person standing in a fiduciary capacity, cannot advance his own interests or the interests of his close relations by virtue of the position held by him. The use of the funds of the waqf for acquisition of a property by a Mutawalli in the name of his wife would amount to a breach of trust an d the property so acquired would be treated as waqf property. In the tenth edition of The Law of Trusts by Keaton and Sheridan it has been pointed out at page 329, Chapter XX"The general rule that a trustee must not take. heed of one beneficiary to the detriment of others has already been discussed. Put in another way, the rule implies that although a trustee, may be the servant of all the beneficiaries, he is not the servant of any one of them, but an arbitrator, who must hold the scalesposition of the Mutawalli under the. Mahomedan law is in no way different and all the beneficiaries are entitled to benefit equally, of course, subject to the special power conferred on the Mutawalli as the one provided in clause 18 of the waqf deed and to the extent and in the manner interpreted by us above. Exhibit A-22-an account of daily expenses incurred in the construction of the Kothi was attacked as a spurious document. we do not attach much importance to Ext. A-22 in face of the other pieces of evidence to indicate that the expenses were all met from the waqf fund. I t is not necessary to lay any stress on Ext. A-22 Our attention was drawn to some statements made in the testimony of the defendant himself who was examined as D.W. 2 and D.W. 1the brother of the Raja. It may be mentioned here that Hamid Hasan-brother of the defendant was examined at P.W.3. The plaintiff had examined herself in the house in which P.W. 3 was living and in his presence. Without discussing in any detail a few lines here for a few lines there in their evidence, suffice it to say that their evidence could not and did not establish the plaintiffs case as made out in the Courts below nor did they lend any support to the new case made out here. We, therefore, do not think it necessary to encumber this judgment by a detailed discussion of the evidence, because it has all been dealt with in full by the Trial Court and to a large extent by the High Courtnow proceed to consider, the law of benami prevalent in India and especially in regard to acquisition of a property by the husband in the name of the wife. We would also in this connection be discussing whether the, doctrine of advancement is applicable in India or any principle analogous to that can be pressed into service on be half of the appellant as was sought to be done by her learned counsel. Alongwith the discussion of the points aforesaid, we shall be adverting to the appellants argument of burden of proof being on the person to prove that a transaction which is apparent on the face of the document of title is not a real one but a benami deal. In conclusion, we shall show that neither the Trial Court nor the High Court has deviated from the application of the well-settled principles in this regard, although at places the Trial Court seems to have apparently thrown the onus on the plaintiff. But as a matter of fact neither of the two Courts below has committed any error in the application (, it the real principle.In Gopeekrist Gosain and Gungaparsaud Gosain (6 Moores Indian Appeals, - 53..) it was pointed out as early as 1854, at pageis very much the habit in India to make purchases in the names of others, and, from whatever cause or causes the practice may have arisen, it has existed for a series of years, and these transactions are known as "BenameeJustice Knight Bruce proceeds to observe further at Pages 7475 that if the money for acquisition of property has been provided by a person other than the individual in whose name the purchase was effected and if such a person was a stranger or a distant relative of the person providing the money, , "he would have. been prima facia a trustee". It was observed further that even when the purchaser was the son of the real purchaser the English doctrine of advancement was not applicable in India. This case was followed by the Board in Bilas Kunwar and Desraj Ranjit Singh and others(42 Indian Appeals, 202.) Sir George Farwell has said at pageexception in our law by way of advancement in favour of wife or child does not apply in India: Gopeekrist v. Gangaparsaud; (1854) 6 Moo, Ind. Ap. 53 but the relationship is a circumstance which is taken into consideration in India in determining whether the transaction is benami or not. The general rule in India in the absence of all other relevant circumstances is thus stated by Lord Campbell inDhurm Das Pandey v. Mussumat Shama Soondari Dibiah- (1843) 3 Moo. Ind. Ap.229; "The criterion in these cases in India is to consider from what source the money comes with which the purchase money isAtkinson reiterated the same view in Kerwick and Kerwick (47 Indian Appeals, 275.) at page 278 in these terms: "In such a case there is, under the general law in India, no presumption of an intended advancement as there is in England."It will be useful to quote a few lines from the judgment of the Judicial Committee of the Privy Council delivered by Sir John Edge in the case of SuraLakshmiah Chetty and others v. Kothandarama Pillai (52 Indian Appeals, 286.)The lines occurring at page 289 runcan be no doubt now that a purchase in India by a native of India of property in India in the name of his wife unexplained by other proved or admitted facts is to be regarded as a benami transaction, by which the beneficial interest in the property is in the husband, although the ostensible title is in the wife. The rule of the law of England that such a purchase by a husband in England is to be assumed to be a purchase for the advancement of the wife does not apply inthe well-known treatise of the law of Trusts referred to above the learned authors say at pagebest example of a trust implied by law is where property is purchased by A in the name of B; that is to say, A supplies the purchase- money, and B takes the conveyance. Here, in the absence of any explanatory facts, such as an intention to give the property to B, equity presumes that A intended B to hold the property in trust for him.may here be made clear that much could be said in favour of the appellant if the Raja would have acquired the property with his own money intending to acquire it for her. But such an intention was of no avail to the appellant when the money for the acquisition of the property came from the coffers of the waqf estate over which the Raja had no unbridled or uncontrolled power of ownership. He was himself in the position of a trustee owing a duty and obligations to the beneficiaries. He had no free volition in the matter to spend and invest the trust fund in any manner he liked and for showing undue advantage to his wife.At one stage of the argument Mr. Phadke felt persuaded to place reliance upon the decision of Yorke and Agarwal JJ in Mt. Sardar Jahan and others v. Mt. Afzal Begam (A.I.R. 1941, oudh, 288.). At page 291, column 1 the observation seems to have been made per in curium to theregards this question of pleading, it does not appear to us that there was anything to prevent the plaintiff from falling back on the plea of advancement in case she was unable to satisfy the court that the moneys expended were herJ realised the inaccuracy of the above proposition and said so in Mt. Siddique Begam v. Abdul Jabber Khan and others(A.I.R. 1942, Allahabad, 308.) and then concluded at page 312 column 1n point of fact it has been laid down by their Lordships in earlier cases that the burden of proof that a transfer is benami does lie in the first instance upon the person asserting it to be so, but that burden is discharged upon the said person showing that the purchase money was provided bythe case of Gangadara Ayyar and others (supra) Mahajan J., enunciated the law pithily, if we may say so with respect, in paragraph 14 at pageis settled law that the onus of establishing that a transaction is benami is on the plaintiff and it must be strictly made out. The decision of the Court cannot rest on mere suspicion, but must rest on legal grounds and legal testimony. In the absence of evidence, the apparent title must prevail. It is also well established that in a case where it is asserted that an assignment in the name of one person is in reality for the benefit of another, the real test is the source whence the consideration came and that when it is not possible to obtain evidence which conclusively establishes or rebuts the allegation, the case must be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts."While dealing with the question of burden of proof, one must remember a very salutary principle reiterate d by this Court in Kalwa Davadattam and two others v. The Union of India and other([1964] 3 S.C.R. 191.) at page 205. Says the learnedquestion of onus probandi is certainly important in the early stages of a case. It may also assume importance where no evidence at all is led on the question in dispute by either side; in such a contingency the party on whom the onus lies to prove a certain fact must fail. Where however evidence has been led by the contesting parties on the question in issue, abstract considerations of onus are out of place; truth or otherwise of the case must always be adjudged on the evidence led by thewould thus be seen that indisputably in that case the property was of the wife. The only dispute was whether the property itself was acquired as a gift from her husband or it was acquired with the money gifted to her by the husband. In our opinion, therefore, this case is of no help, to the appellant in this appeal. In Jaydayal Poddars case (supra) one of us (Sarkaria J.) while delivering the judgment on behalf of the Court w as dealing with a case where the question was whether the property purchased by Abdul Karim in the name of his wife Mst. Hakimunnissa was a benami purchase in the name of the latter. The Trial Court held that she was benamidar. The High Court reversed the decision and held that the plaintiffs had failed to show that Mst. Hakimunnissa in whose name the sale-deed stood, was only a benamida r and not the real purchaser. While affirming the view of the High Court, it was aptly said at pagesis well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of Benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent estate of affairs is the real state of affairs. Though the question, whether a particular sale is Benami ornot, is largely one of fact, and for determining this question, no absolute formulae or acid tests, uniformally applicable inall situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicate, the courts are usually guided by these circumstances: (1) the source from which the purchase money came; (2) the nature and possession of the property, after t he purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any between the claimant and the alleged benamidar; (5) the custody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale.The above indicate are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless no. 1, viz. the source whence the purchase, money came, is by far the most important test for determining whether the sale standing in the name of one person is in reality for the benefit offrom the fact that in the present appeal we are not concerned with a simple case of purchase of the property by the husband in the name of the wife with his own money, the purchase being with the waqf money, even applying the principles extracted above it would be noticed that the concurrent findings of the courts below that the appellant was benamidar on behalf of the waqf does not suffer from any infirmity to justify our interference with the said finding. ]lie burden has been strictly discharged by the respondent so much so that the finding as recorded could not be assailed. It was merely attempted to be availed of to support a new case in this Court. It should be remembered that by far the most important test for determining whether the sale standing in the name of one person is in reality for the benefit of another-namely the source whence the purchase money came has been established beyond doubt. The nature and possession of the property after the acquisition was such that it did not lead to the conclusion that it was not a waqf property and was a property in exclusive possession of the appellant through her tenants including tile respondent. The motive to, acquire the property in the name of the wife is clearly spoken of by D.W.I. brother of the Raja when he said at page 37 of the pa per book "Raja Sahib was also present at the time of the execution of the lease. At that time there was no debt against him. On being asked by me he said that the plaintiff used to, trouble him and that in order to please her he was getting a fictitious lease executed in her favour." It was argued for the appellant that the Raja wanted to make a provision for his young wife to protect her interests from being trampled with by her sons and daughters. This is not correct. Although the defendant was not pulling on well with the Raja after he had married the plaintiff, according to her own case pleaded in the plaint she was pulling on well with the defendant upto the year 1950 and the relations between them got strained when her daughter was married to Saiyed Mohammed Raja Ali Khan. The position of the parties, namely, the Raja and the plaintiff, was such that one could be inclined to believe that in all probability the Raja could provide funds for acquisition of the property not only in the name of his wife but for her and her alone provided the funds expended were his personal funds. But no such inference is possible on the unmistakable position of this case that the funds came from the coffer of the waqf estate. The custody of the title-deed and other papers, except a few, were not with the plaintiff. But on the facts of this case one, cannot attach much importance to this circumstance either way. The conduct of the parties concerned in dealing with the property after acquisition also goes in favour the defendant and against the plaintiff. It could not be shown that the plaintiff bad realised rent from the other tenants who had been there in the Kothi before 1947. Nor was there anything to show that the defendant himself was inducted as a tenant in the Kothi by the plaintiff. We, therefore, hold that even on the application of the salutary principles of law enunciated in Jaydyal Poddars case the appellant cannot succeed. This case was merely followed in Krishnanands case by Bhagwati J.We may again emphasize that in a case of this nature, all the aspects of the benami law including the question of burden of proof cannot justifiably be applied fully. Once it is found, as it has been consistently found, that the property was acquired with the money of with the money of the waqf, a presumption would arise that the property is a waqf property irrespective of the fact as to in whose name it was acquired. The Mutawalli by transgressing the limits of his power and showing undue favour to one of the beneficiaries in disregard to a large number of other beneficiaries could not be and should not be permitted to gain advantage by this method for one beneficiary which in substance would be gaining advantage for himself. In such a situation it will not be unreasonable to say-rather it would be quite legitimate to infer, that it was for the plaintiff to establish that the property acquired was her personal property and not the property of the waqf Is it possible to decree her appeal in face of her three varying stands in the three courts ? They are (1) in the Trial Court-case of acquisition of property with her personal money; (2) in the High Court-acquisition of property with the personal money of her husband and (3) in this Court-the waqf fund invested from time to time became her personal money and enabled her to acquire the property.