Yorke, J.:— This is a first appeal in a suit decided as far back as the 25th March, 1935. The plaintiff Mst. Siddiqa Begam is the second wife of one Abdul Razzak Khan deceased and was married to him in September, 1931. Abdul Razzak Khan had by his first wife a son Abdul Jabbar Khan born about 1906, who is the defendant No. 1 of this case, and two daughters Mst. Zubeda Bibi and Mst. Habib-un-nissa Bibi, born about 1910 and 1902, who are the defendants Nos. 2 and 3. The plaintiff sued for partition of a 5/40 share in a residential house situated in village Dagdagwa in the Azamgarh district, and also for partition of a house in mohalla Motbarganj of Azamgarh town in which she claimed a half share, as also a 5/40 share, upon the ground of “hiba-bil-ewaz” and inheritance respectively. The plaintiff subsequently gave up her suit in regard to the house in village Dagdagwa stating that a separate suit, would be instituted in regard to that property. The claim under which the plaintiff sought partition of the half share in the house No. 2 now in suit was founded upon her dower debt, it being alleged that the amount of the dower debt was Rs. 15,000, and that in part satisfaction of the dower debt Abdul Razzak Khan on the 22nd July, 1932, executed a deed of transfer, nominally a deed of gift, in respect of the half share in this house. Abdul Razzak Khan died on the 6th August, 1932. It appears that he was suffering from a carbuncle and that this was operated upon and he did not recover from the operation. The suit was defended by the defendant No. 1 Abdul Jabbar Khan only. In the original written statement filed on the 18th August, 1934, the defence put forward was that the house No. 2 in suit in Azamgarh town was purchased in the year 1918 with money gifted to the contesting defendant by his mother Mst. Najib-un-nissa. It was further said that the contesting defendant started business in 1924 and he got the house reconstructed with the income which he derived from his business and with money which he had received from his mother. That is to say, the defendant pleaded that Abdul Razzak Khan was not the person who provided the money either for the purchase of the house or for its admitted reconstruction in the years 1928 to 1929. Three and a half months after the filing of this written statement an application was made for amendment of the written statement and this amendment was permitted and the defendant then added the pleadings Nos. 15 and 16. We are concerned only with No. 15 which runs as follows:
“Assuming that Abdul Razzak Khan deceased spent anything in the purchase of the house No. 2 in dispute (which is not a fact), even then, since at the time of the purchase and construction of the house all his affection and heartfelt care and attention was centred in this defendant alone and he was his prospective heir, therefore the fact that the purchase, construction and the naming of the house was in the name of the defendant, clearly affirms that the house was purchased and constructed for the benefit of this defendant and whatever money he is supposed to have spent on the purchase and construction was gifted to this defendant by him. For the same reason all the proceedings were taken in the name of this defendant. This defendant named the house as ‘Jabbar manzil’ within his (i.e Abdul Razzak Khan's) knowledge and this name is engraved on the marka (marked portion or tablet) and to which he did not object in spite of his knowledge.”
The written statement was of course in Urdu and the translation is rather clumsy.
The effect of this amendment is that the contesting defendant, who Had come forward with a firm allegation that he was the person who either directly or indirectly had provided the money for the purchase of the house and for its reconstruction, fell back on the contention that despite the general presumption against advancement in India, nonetheless it should be taken in the present case that when Abdul Razzak negotiated the purchase and took it in the name of his son he intended the purchase to be for the benefit of the son and not that the son should be a mere benamidar, and it should be further taken that any moneys subsequently expended upon the reconstruction of the house by Abdul Razzak Khan were intended for the benefit of the contesting defendant. I do not think it would be correct to say that it is not open to a defendant to take contradictory alternative pleas in this manner, but I cannot but think that a plea, taken as an afterthought in the alternative like this one, is from the very beginning a weak plea.
The learned Civil Judge framed three issues but only two of them had any importance after the withdrawal of the suit with reference to house No. 1. The issues framed are as follows:
“1(a) Whether the house situate in Azamgarh city belonged to Abdul Razzak Khan and the plaintiff is entitled to any share, and if so, to what extent therein? (b) Whether Abdul Razzak Khan had made a gift of money, if any spent by him in the purchase and repairs of the house in favour of the contesting defendant, and if so, how does it affect the case?
“3. Whether Abdul Razzak Khan executed the deed of “hiba-bil-ewaz” in suit, and if so, was it executed in ‘marzul maut’ and is it fictitious and legally invalid and inoperative?”
I need not waste any time on issue No. 3. It was found by the learned Civil Judge that the deed of gift which was really “hiba-bil-ewaz” and therefore in the nature of a sale deed in favour of the plaintiff, was not executed in “marzul maut” and that even if it had been so executed, not being really a gift, it was nonetheless valid.
Coming now to issue No. 1, the learned Civil Judge has held that the purchase money for the purchase of the house in suit in the year 1918 was provided by Abdul Razzak Khan and the moneys required for the repairs and reconstruction of the house in the years 1928 to 1929 were also provided by Abdul Razzak Khan. He has entirely rejected the story that the money for the purchase came from Abdul Razzak Khan's first wife Mst. Najib-un-nissa and the money for reconstruction came from income derived by the contesting defendant from his alleged business and from his mother. Learned counsel for the respondent Abdul Jabbar Khan has not sought to argue that these findings of fact can be in any way disputed.
The learned Civil Judge has, however, gone on to hold that Abdul Razzak Khan took the sale deed of the house in dispute in the name of his son out of love and affection and with the intention that the beneficial interest should vest in his son. * * * * * The only evidence upon which the finding is based is the piece of evidence mentioned by the defendant in the amended written statement. Founding upon this the learned Civil Judge found that the house in suit was the property of the defendant Abdul Jabbar and that when Abdul Razzak Khan purported to execute a deed of gift in respect of one-half of it in favour of the plaintiff he was not competent to make such a transfer.
Before I deal with the arguments it will be convenient to deal with the legal aspect of purchases made in the name of third persons, particularly members of the same family. The point has been before us in a very recent case, Hasan Raza v. Ashfaq-un-nissa(1) and in that case we said:
“We can take it as now established by a long line of cases of the highest authority in India, starting with the well known case of Gopeekrist Gosain v. Gungapersaud Gosain(2) in the Privy Council, that the English equitable doctrine of advancement is not applicable in India. The position has many times been explained by the Judicial Committee and nowhere better, as we respectfully think, than in the case of Guran Ditta v. Ram Ditta in which the principle is laid down in these words: ‘The general rule and principle of the Indian law as to resulting trusts differs but little, if at all, from the general rule of English law upon the same subject, but in their Lordships' view it has been established by the decisions in the case of Gopeekrist v. Gungapersaud and Uzhur Ali v. Bebee Ulfat Fatima that owing to the widespread and persistent practice which prevails amongst the natives of India, whether Muhammadan or Hindu, for owners of property to make grants and transfers of it benami for no obvious reason or apparent purpose, without the slightest intention of vesting in the donee any beneficial interest in the property granted or transferred, as well as the usages which these natives have adopted and which have been protected by statute, no exception has ever been engrafted on the general law of India negativing the presumption of the resulting trust in favour of the person providing the purchase money, such as has, by the Courts of Chancery in the exercise of their equitable jurisdiction, been engrafted on the corresponding law in England in those cases where a husband or father pays the money and the purchase is taken in the name of a wife or child. In such a case there is, under the general law in India, no presumption of an intended advancement as there is in England. It has, however, at the same time been clearly recognized that one of the primary tests of a benami transaction, though not possibly the only test, has always been to establish the source of the purchase money. Before that has been ascertained, it follows of course that no question of advancement can even be considered; and, so far as the allegation made be one of a benami transaction, it is naturally the most material piece of evidence that there can be to find where the purchase money came from.”
In this connection learned counsel for the respondent to this appeal has laid some stress upon a decision of their Lordships of the Privy Council in Ram Narain v. Muhammad Hadi where it was said: “In many—it may be said in most—cases of alleged benami this (to ascertain from whose funds the purchase money proceeded) is a very important fact. But it is not the only criterion.” The particular case in which the remark was made, however, was one of a purchase in the name of a defendant who pleaded that the purchase had been designed for his benefit as a gift from his employer in consideration of his faithful and important service extending over some forty years and it was shown that the defendant had been in actual possession of this property and receipt of the rents therefrom over a period of some nine years after the purchase and had never been called upon to account for those rents.
Learned counsel for the respondent has also sought to place some reliance on a case decided by a Bench of the Chief Court of Oudh, of which I was a member, namely Sardar Jehan v. Afzal Begum. His contention is that section 82 of the Indian Trusts Act has altered the burden of proof in this matter and it is no longer sufficient merely to show that the fund from which the purchase money proceeded belonged to someone other than the person in whose name the purchase was taken, in order to lead to an inference that person is only a benamidar. In that case the result of our examination of section 82 of the Indian Trusts Act and its effect upon the question of the burden of proof in connection with alleged benami transactions was stated in the following terms. Referring to a quotation from the head-note of Raj Kunwari v. Rani Maharaj Kunwar(3) which ran as follows:
“A party cannot be relieved from the burden of proving the benami nature of the transaction by merely showing that a large proportion of the consideration was paid by the real purchaser…. section 82 of the Indian Trusts Act appears to throw the burden of proving that a transaction is benami on the party alleging it, whereas previously to that enactment the position may well have been that a plaintiff who came into court with the proof that he had paid the consideration money himself would have been able to throw the burden of proving that the transaction was not benami on the other side.” We said:
“With great respect we are in full agreement that section 82 of the Indian Trusts Act, though it may not really have altered the burden of proof, has made it much clearer than it was before that the burden of proof of establishing all the facts necessary to lead to the inference that a transfer was benami lies upon the person asserting it to be so.”
In 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 by him.
section 82 of the Indian Trusts Act is in the following terms: “Where property is transferred to one person for a consideration paid or provided by another person, and it appears that such other person did not intend to pay or provide such consideration for “the benefit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration.” This section puts in statutory form the proposition laid down many years earlier in Gopeekrist Gosain's case and the only question was whether the second clause made any difference to the legal position as it stood before the enactment of this section. I do not think that I should have felt myself in any way embarrassed by the proposition which was laid down in the Oudh case to which I was a party in view of the circumstances of the present case, but in any case in View of a subsequent decision of their Lordships of the Privy Council which was not brought to the notice of the Bench before whom Sardar Jehan's case was argued, I am satisfied that in so far as we felt that section 82 of the Indian Trusts Act had in any way altered the legal position we were under a misapprehension. The question whether section 82 of the Indian Trusts Act affected the matter was considered by their Lordships in the case of Kerwick v. Kerwick. In argument it was said about section 82 that it did not affect the matter as it left open the question of intention, and their Lordships remarked at page 280: “The provisions of sections 81 and 82 of the Indian Trusts Act do not appear to affect this case.” I therefore take it that the second clause of the section does not have any bearing on the burden of proof and does not make it necessary for a person who alleges that the consideration for a transfer was paid or provided by some one other than the nominal transferee to show further that there was no intention upon the part of the person providing the money to pay or provide it for the benefit of the transferee.
With these preliminary remarks I come to the very narrow point which is really for decision, namely whether on the evidence the finding of the learned Civil Judge that Abdul Razzak Khan, when purchasing this, property in the name of his only son, intended the purchase to be for the benefit of that son, and that his subsequent expenditure upon the house was also intended for the benefit of his son, the contesting defendant, can be maintained. * * * * * in my judgment it is quite impossible to support the finding of the learned Civil Judge that the evidence on the record proves the intention of Abdul Razzak to purchase this house for the benefit of his son Abdul Jabbar and further to reconstruct it for his benefit.
I would accordingly allow this appeal with costs, set aside the decree of the learned Civil Judge and order that the plaintiff's claim be decreed with costs. As regards the proper form which the decree should take, in view of the position of the respondent as a benamidar, this point has been considered by my learned brother in his separate judgment and I agree with the view which he takes.
Braund, J.:— It is not necessary for me to set out the facts which are fully related in the judgment of my learned brother. The site of the property in question, with the house then on it, can for the purpose of this appeal be taken to have been purchased in 1918 in the name of the first defendant, Abdul Jabbar Khan, for Rs. 800, provided by Abdul Razzak Khan, his father. The new house which was built on the site and completed in 1929 can also for the purpose of this appeal be taken to have been wholly provided by Abdul Razzak Khan.
In those circumstances the issue is whether the plaintiff, who is the appellant, can succeed in her claim that the first defendant was a mere benamidar holding the property on trust for his father, Abdul Razzak Khan, and his assignee, the plaintiff herself, under the assignment to her dated the 22nd July, 1932, of a moiety of the property.
This is a case in which the evidence of any positive intention on the part of Abdul Razzak Khan first in purchasing the site in his son's name and then in providing the cost of the new building, is meagre, and it becomes, therefore, of consequence to appreciate on whose shoulders lay the burden of establishing that intention. Sir Wazir Hasan on the plaintiff's behalf has very properly relied on that long line of authorities in the Judicial Committee, starting with Gopeekrist Gosain v. Gungapersaud Gosain and continuing up to and beyond Kerwick v. Kerwick, in which their Lordships have held that in the case of a benami transaction, in the sense of a real transaction (as the present one admittedly is), the benamidar becomes a trustee holding on a resulting trust which “differs but little, if at all, from the general rule of English law upon the same subject”, with the exception that the English equitable doctrine of the presumption of advancement has never been admitted into the law of India. The law, therefore, is, in my view, too well settled by the highest authority now to be challenged, that, in the case of a real, as opposed to a purely fictitious, purchase by a father in the name of a son in which the father admittedly provided the purchase money, a resulting trust in all cases arises in the father's favour, unless there is positive evidence of an advancement or gift. And, if a gift is alleged by the son in whose name the transaction stands, it is for him to prove it.
But Mr. Banerji, on the defendants' behalf, has referred us to section 82 of the Indian Trusts Act of 1882, which, he says, has entirely altered the law, whatever it may have been prior to 1882. He contends that, inasmuch as that section provides that the court not only has to be satisfied that the purchase money was provided by a third party, but also that the third party had no intention of making a gift of it to the actual transferee, the burden of proving the latter negative fact has been thrown on to the person who seeks to deny that the actual transferee is also the beneficial owner. This at first sight is alarming, as, if it is true, it appears to my mind not only to obliterate from Indian law the whole doctrine of the resulting trust, which the Privy Council has in many cases acknowledged to exist in India, but also to introduce, in a much extended form, the doctrine of advancement, which the Privy Council has with equal regularity said does not exist in India.
In my opinion, section 82 of the Indian Trusts Act does not, on its true construction, require any such drastic change in the law. When considered carefully, it, to my mind, says no more than that the court has to be satisfied of two things before a resulting trust can be declared; first that someone other than the actual transferee provided the purchase money, and, secondly, that person did not intend the money to be a gift. It does not say how the court is to be satisfied of this latter fact and still less upon whom the onus of proving it is to lie. The position, therefore, is that, having arrived at the conclusion that the purchase money was provided by someone other than the transferee, the court has to consider whether that person intended it as a gift or not. It is at that point that the established doctrine of the resulting trust at once comes into full and immediate play, and, if there is no other evidence in the case, that doctrine, as the Privy Council has pointed out, must apply. In order to displace it, it becomes necessary, therefore, for the actual transferee to prove, if he can, that the money was intended as a gift. The position is, therefore, wholly unaltered by section 82 of the Indian Trusts Act.
I regret that, with great respect, I cannot agree with the conclusion reached by the Chief Court of Oudh in the case of Sardar Jehan v. Afzal Begum. If I may say so, that case, in my opinion, overlooked that the moment the fact was proved that the purchase money was not provided by the transferee, the doctrine of the resulting trust at once, and automatically, applied, unless the opposite intention was proved. It is right to say that in that case Kerivick v. Kerwick, in which the same argument based on section 82 of the Indian Trusts Act was advanced and rejected by the Judicial Committee, was not brought to the notice of the learned Judges who decided it.
The matter, therefore, becomes, in my opinion, a question of fact, whether the defendants succeeded at the trial in establishing that the money which went to the purchase of the site in 1918, and to the rebuilding on it of the house in 1929, was intended by Abdul Razzak Khan to be a gift to his son, Abdul Jabbar Khan. In my opinion no such intention has been, on the facts of this case, sufficiently proved.
On the whole, I am of the same opinion as my learned brother that, while not overlooking the value of the inscription, it is not strong enough, in the face of all the other evidence in the case, to enable me to agree with the learned Judge in thinking that the first defendant has established his beneficial title to the house and site by way of gift or advancement from his father. In these circumstances, I agree in thinking that the appeal must be allowed.
There remains the question of the form of relief to which the plaintiff is entitled. She has by her plaint framed her suit as one for partition. But the difficulty I apprehend in granting a simple decree for partition is the fact that the property is still vested in the first defendant as “benamidar” or, as the Judicial Committee has pointed out, in a trustee holding on trust resembling the resulting trust in English law. I think, therefore, that the decree ought to be in this form. First, there must be a declaration that the house and site more particularly described in the plaint and known as “Jabbar Manzil” (of which the site was transferred to the first defendant by a transfer dated the 8th August, 1918) are, in the events which have happened, vested in the first defendant, Abdul Jabbar Khan as “benamidar” on trust for the persons claiming through Abdul Razzak deceased and in the several shares to which they are respectively entitled.
This must be followed by a declaration that the plaintiff, Siddiqa Begam, is beneficially entitled under the said trust to one half of the said house and site under and by virtue of the transfer to her dated the 22nd July, 1932, referred to in the plaint and to a further one-eighth of the said house and site as an heir of the said Abdul Razzak, deceased, making together an undivided five-eighths of the said house and site.
There will then be a further declaration that “the trust of the said house and site ought to be carried into effect”, followed by an order and decree that “in execution of the aforesaid trust as hereinbefore declared” the property shall be partitioned between the parties entitled thereto. The decree will from that point follow the appropriate form of a partition decree.
In the result, therefore, in my opinion, this appeal should be allowed, the decree of the learned Judge in the court below should be set aside and a decree substituted for it in the form I have indicated above. The appellant has succeeded and is entitled to her costs both in this Court and in the court below.