civil appellate jurisdiction civil appeal number 2462 of 1968.
appeal by special leave from the judgment and order dated
17-5-1968 of the allahabad high companyrt in first appeal number 13
of 1956.

n. phadke m. qamaruddin  mrs.  m. qamaruddin m. y.
omar n. aly khan and v. m. phadke for the appellant. lal narain sinha d. p. singh s. c. agarwal a. gupta s.
mohdkazum and p. p. singh for the respondent. the judgment of the companyrt was delivered by
untwalia j. this is an appeal by special leave. bibi
saddiqa fatima the appellant was the plaintiff in suit number
86 of 1952 filed in the companyrt of the civil judge it aligarh
in which the defendant was saiyed mohammad hasan. he was
the sole respondent in this appeal also. he died during the
pendency of the appeal and on his death his legal heirs and
representatives were substituted as respondents. for the
sake of companyvenience hereinafter in this judgment by the
respondent would be meant the original respondent. 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 number 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 companycerning qurra number 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 year 1933. the 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 a 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 number pay
any rent thereafter. in the year 1952 the plaintiff served
a numberice 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 number belong to her number 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
number 1 had acquired the lease of the land and companystructed
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 number 1 including the
kothi in question. he occupied the kothi as a mutawalli and
number as a tenant. the trial companyrt accepted the case of the
defendant rejected that of the plaintiff and
6-329sci/78
dismissed her suit.the allahabad high companyrt has dismissed
her appeal. she has preferred this appeal in this companyrt on-
grant of special leave. shri m. n. phadke advanced a very strenuous argument in sup-
port of this appeal. shri lal narayan sinha companybated his
argument on behalf of the respondent. it would be
convenient to refer to some more facts and facets of the
case from the pleadings of the parties and judgments of the
courts below before enunciating and enumerating the
submissions made on their behalf. the case pleaded in the plaint by the appellant was like
this raja sahib out of great love for the plaintiff used
to pay her a handsome amount every month as pin-money and
also a good deal of money occasionally. the plaintiff with
the object of companystructing a kothi took on lease the
disputed land measuring about 4 bighas and had been paying
the annual rent of rs. 80/- since the execution of the
lease. she pleads in para 4-
after the execution of the said lease the
plaintiff with
her personal fund built a kothi and the out
houses on the land mentioned in paragraph number
3 above and named it as mahmood manzil after
the name of her husband. the companystruction of
this kothi bad been companypleted by may 1938
after which the plaintiff herself used lo stay
in that kothi whenever she came from
asgharabad to aligarh. the plaintiff bad only one daughter born to her out of the
wedlock with the raja. she is smt. abrar fatima. she was
married on the 25th may 1950 to one saiyed mohammed raza
ali khan. the defendant was quite obedient and faithful to
the plaintiff until the marriage of her daughter. but after
the said marriage he gradually turned hostile and thereupon
the plaintiff mostly lived with her daughter. according to
the respondents case in his written statement the lease was
taken by raja sahib and the sum of rs. 786/spent on
nazrana etc. for taking the lease was paid by him from the
income of the waqf property and he companystructed the kothi
from the wakf fund of asgharabad estate. he had neither any
money of his own to invest in acquisition of the property
number was the property acquired by the plaintiff with her
personal fund. the appellant was examined on companymission as a witness to
support her case at the trial. in her examination-in-chief
she stated that her husband used to give her rs. 500/- per
month as pin-money besides meeting her expenses regarding
food and clothing. over and above this he used to send
money on the occasions of id and bakrid and also gave her
money whenever she demanded. she companystructed the kothi at
aligarh by investing about rs. 20000/-. in other words she
meant to companyvey in her examination-in-chief that she had
acquired the land and companystructed the kothi out of the
savings she had from the various amounts of money given by
the raja monthly or from time to time. at a later stage of
her deposition  probably in cross-examination  she
demolished her case and claimed to be in possession of rs. 50000/- at the time of the death of her husband
which sum was her total savings out of the money paid to her
monthly or from time to time by the raja. thus in her
evidence she companyld number explain as to out of which personal
fund she claimed to have acquired the disputed property. the civil judge framed for trial several issues out of which
issues 1 and 5 were in the following terms

whether the plaintiff is the owner of the
property in suit as alleged and is she
entitled to the possession claimed ? whether the defendant possesses the
disputed property as the mutawalli as alleged
by him
the defendants case was that the patta was obtained by
the old raja tinder the influence of her young wife benami
in her name though it was acquired with the waqf fund. the
raja as mutawalli was the real lessee of the land. he had
constructed the kothi out of the income of the waqf
property. a mutawalli is number an owner of the waqf property
but whatever property of the waqf was there from before or
acquired subsequently must ordinarily be in the name of
the mutawalli. a property companyld be acquired in the name of
any beneficiary like the plaintiff but she would be
merely a benamidar of the mutawalli and the property will be
a waqf property. the civil judge has numbered in his judgement
that the plaintiff did number put forth a plea that the kothi
was built by late raja out of his personal money and that
she was owner on the basis of the equitable deoctrine of
advancement. he has said further-
thus the only point on which the parties were
at issue was with respect to the source of the
money out of which the patta was obtained and
the building companystructed and the plaintiff
could succeed only if she proved that she had
obtained the patta and built the kothi out of
the money given to her by her late husband as
pocket expenses etc. the civil judge also remarked
had she stated that she built the kothi out
of the money which she had saved that would
have been companysistent with her allegations in
the plaint. but she admitted that the whole
of her savings were still with her and that
out of them she had spent a little when she
filed the present suit. the trial companyrt thereafter companysidered the voluminumbers
documentary evidence in the light of the oral evidence
adduced and came to the companyclusion that the plaintiff did
number provide any money either for the lease of the land or
for the companystruction of the kothi thereon and that the money
for both the purposes was provided out of the waqf estate. hence it was held while deciding issues 1 and 5 that the
plaintiff was number the owner of the kothi in suit and the
defendant was in possession of it in his capacity as the
successor mutawalli. it would be advantageous to numbere at this stage the stand
taken by the appellant in the high companyrt in her memo of
appeal as also in argument. on perusal of the grounds set
out in the memorandum of appeal especially ground number. 6
8 9 11 13 and 27 it would appear that the case made out
therein was that the raja had his personal money kept in the
waqf estate treasury alongwith the waqf money. the amount
spent in companystructing the kothi was mostly taken out of the
treasury from his personal fund with the intention of making
his wife the owner of the property even though the doctrine
of advancement did number apply in india and that the
observation of the learned civil judge that the plaintiff
failed to prove that she did number provide any money out of
her personal fund was wholly irrelevant for the decision of
issue number 1. in argument however a stand like the one
taken in the trial companyrt was reiterated but companysistently and
concurrently rejected because the evidence in favour of the
defendants case was so overwhelming to show that the lease
had been taken and the kothi had been companystructed with the
money companying out of the waqf fund that numberother view was
reasonably probable to be taken. at one place in its
judgment the high companyrt says-counsel for the appellant has
strongly relied on these documents in proof of the fact that
the kothi was companystructed with her money and belonged to
her. in the teeth of the overwhelming evidence the appellant was
obliged to take an entirely new stand in her petition for
special leave and in the argument before us. in paragraph
23 of the petition it was stated
that the case of the applicant had been that
the lease was obtained with the applicants
funds and that she had companystructed the kothi
with her own money and it was also her
alternative case put forward before the
honble high companyrt that even if it be assumed
that the money utilised for companystructing the
kothi did number pass directly from the plain-
tiffs hand and even if it be the finding of
the companyrt that the money so utilised bad
proceeded from raja mahmudul hasan then on
the admitted case of the defendant that this
fund was waqf fund the plaintiffs claim
ought to have been decreed inasmuch as on the
ground that the usufruct or the profit of the
waqf property though arising out of the waqf
property did number belong to waqf as waqf
property but it was by its very nature the
property of the beneficiary and in the absence
of any evidence to the companytrary raja mahmoodul
hasan. i held that those funds for the
beneficiaries and the amount spent by him in
the companystruction of the kothi should be the
money belonging to the applicant. mr. phadke made the following submissions

the raja intended to acquire the land on
lease and companystruct the kothi for the
plaintiff by investing from time to time money
taken out of the waqf estate treasury which
had the effect of disbursement and payment of
the money by the mutawalli to his wife
the beneficiary for the purpose of the
acquisition of the kohi. the source of money
in that event is immaterial. the intention of the raja to provide a
separate kothi to the plaintiff evidenced by
numerous documents taken and standing in her
name must be respected. the raja went on giving money in
driblets for companystruction of the kothi by
taking out the money from the waqf fund from
time to time. it was open to him to do so in
accordance with clause 18 of the waqf deed
ext. a-2. the intention of the raja is further
fortified by the recital in his will ext. 15.

that there is a number of circumstances
in support of the companytentions aforesaid. the rules of pleading should number be too
strictly applied in india and numberparty should
be defeated on that account when both sides
adduced evidence and proceeded to trial of the
real issues in the case with their full
knumberledge and understanding. that there is numbersubstantial variance in
the case made out in the pleadings and the
evidence and in argument either in the companyrts
below or in this companyrt. the burden of proof to displace the
ostensible title of the appellant and to show
that she was a benamidar was on the
respondent. in absence of any clinching
evidence on either side the ostensible title
prevails. although the doctrine of advancement
does number apply in india the mutawalli being
the owner of the waqf property had full and
unlimited power of disposal over its usufruct
and income. mr. lal narayan sinha while refuting the submissions made
on behalf of the appellant companytended that it is a settled
law that the question whether a particular transaction is
benami or number is purely one of fact and this companyrt in
exercise of its jurisdiction under article 136 of the
constitution does number ordinarily and generally review the
comment findings of the companyrts below in that regard. companynsel submitted that the companyrts below had companyrectly
applied the muslim law applicable to shias in respect of the
waqf property and its income. they have rightly companye to the
conclusion that the suit property appertained to the waqf. it was clear according to the submis-
sion of mr. sinha that the parties went to trial to prove
their respective cases as to whether the property had been
acquired with the personal funds of the plaintiff or those
of the waqf. the plaintiffs case failed in view of the
overwhelming evidence against her and she should number be
permitted to make out an entirely new case in this companyrt. he also companytended firstly that the theory of onus-probandi
is number strictly applicable when both parties have adduced
evidencein such a situation it becomes the duty of the
court to arrive at the true facts on the basis of reasonable
probabilities. secondly in the instant case the strict
tests to prove the benami character of the transaction
cannumber be applied as to do so will be in the teeth of the
well-settled principles of mohammedan law in relation to
waqfs. we proceed to examine the companyrectness of the rival
contentions of the parties but number exactly in the--order it
has been stated above. it is undisputed in this case that a valid waqf was created
by smt. sughra begum.it is further indisputably clear from
the waqf deed that except a portion of money which was to be
spent for public religious or charitable objects the waqf
was primarily of a private nature for the benefit of the. settlers family and their descendants which is called
wakf-alal-aulad. the ultimate object of the waqf was to
spend income if any in the service of the almighty god. in
abdul fata mahomed v. rasamaya  1  their lordships of the
privy companyncil held that the gift to charity was illusory
and that the sole object of the settler was to create a
family settlement in perpetuity. the waqf of this kind was
therefore invalid. ibis decision aforesaid caused
considerable dissatisfaction in the mohammedan companymunity in
india. this led to the passing of the mussalman wakf
validating act 1913 which was made retrospective in opera-
tion by a subsequent act of 1930. in view of the validating
act of 1913 the validity of the wakf was beyond the pale of
challenge. although in respect of the law applicable to waqfs there is
some difference in regard to some matters between the shia
law and the various other schools of mohamedan law
applicable to sunnis in very many fields the law is
identical. after the validating act of 1913 on the basis
of the law as it prevailed even before creation of a waqf
for the purpose of the maintenance of the members of the
waqifs family and their descendants is also a charitable
purpose. we number proceed to numberice some salient features of
the law as applicable to waqfs and especially of the shias. tyabjis muslim law fourth edition chapter x deals with
waqf. according to shia law the waqf is irrevocable after
possession is given to the beneficiaries or the multawalli. the settler divests himself of the ownership of the property
and of everything in the nature of usfufruct from the
moment the wakf is created. in purely metaphorical sense
the expression ownership of god is used but unlike hindu
law since companyception of a personal god is number recognized
there is no
 1  22 indian appeals 76.
ownership of god or numberproperty belongs to god in the jural
sense although the ownership of the property becomes
reverted in god as he is originally the owner of all things
 vide page 523 . the shia authorities companysidered the
property as transferred to the beneficiaries or to the
object of the waqf. strictly speaking the ownership of
the waqf property has numberjural companyception with any
exactitude. the companypus is tied down and is made
inalienable. only the usufruct and the income from the
corpus of the waqf property is available for carrying out
the objects of the wakf. the sharaiul-islam says
waqf is a companytract the fruit or effect of
which is  a  to tie up the original and  b  to
leave its usufruct free- the waqf or subject
of appropriation  companypus  is transferred so
to become the property of the mowkoof alehi
or person on whom the settlement is made
for he has a right to the advantage or
benefits  usufruct  to be derived from it.  vide page 494
in the foot numbere at the same page occurs a
passage which runs thus
but it should number be overlooked that question
about ownership of property after dedication
refers merely to scientulla juris supposed to
remain undisposed of although entire usufruct
 all benefits c.  are assigned away. question in whom property rests therefore
entirely academical. mutawalli is like a manager rather than a
trustee  see page 498 . the mutawalli so
far as the waqf property is companycerned has to
see that the beneficiaries got the advantage
of usufruct. we have already pointed out that
under the shia law the property does number
remain with the waqif. it is transferred to
god or to the beneficiaries. at page 554 of
tyabjis famous book it is stated -
the support and maintenance of the waqfs
family c. would seem under the act to be
deemed a purpose recognized by the muslim law
as religious pious or charitable s. 2. this
view was put forward by ameer ali j. with
great learning in his dissenting judgment in
bikani mias case. section 527 at page 593 runs thus
the mutawalli has numberownership right or
estate in the waqf property in that respect
he is number a trustee in the technical sense
he holds the property as a manager for ful-
filling the purpose of the waqf. a companytrary statement of law at page 202 of mullas mohamedan
law seventeenth edition based on the decision of the
allahabad high companyrt in mohammad qamar shah khan v. mohammad
salamat ali khan 1

a.i.r. 1933 allahabad 407.
to the effect that the mutawalli is number a mere
superintendent or manager but is practically speaking the
owner is number companyrect statement of law. in a later full
bench decision of the same companyrt in moattar raza and others

joint director of companysolidation u.p. camp at bareilly
and others 1  while over-ruling the earlier decision it has
been said at pages 513-14 -the legal status and position
of a mutawalli under a waqf under the musalman law is that
of a manager or superintendent. the general powers of the
mutawalli as mentioned in section 529 of tyabjis book are
that he may do all acts reasonable and proper for the
protection of the wakf property and for the administration
of the waqf. it will be useful to point out the law as regards
distribution of distributable income of the waqf properties
amongst the beneficiaries as mentioned in the various
subsections of section 545 at pages 606-608. unless a
different intention appear subsection  4  says-
the benefit of a waqf for a persons sons
and his children and the children of his
children for ever so long as there are
descendants is taken per capita males and
females taking equally and the children of
daughters being included. attention must be called to an important
statement of law in the well-knumbern
authoritative book of mohamedan law by ameer
ali vol. 1 fourth edition page 472. it runs
thus -
it is lawful for a mutawalli with the income
of a waqf to erect shops houses c. which
may yield profit to the waqf as all this is
for the benefit of the waqf. all properties
purchased by the mutawalli out of the proceeds
of the waqf become part of the waqf and are
subject to the same legal incidents as the
original waqf estate. mr. phadke cited the decision of this companyrt in ahmed g. h.
ariff ors. v. companymissioner of wealth- tax calcutta 2  and
contended that the right of the beneficiaries to get money
out of the income of the waqf property for their maintenance
and support was their property. in our opinion the case
does number help the appellant at an in regard to the point at
issue. a hanafi muslim had created a wakf-alalaulad and on
a proper companystruction of the relevant clauses in the waqf
deed it was held that the aliquot share of the income
provided for the beneficiaries was number meant merely for
their maintenance and support but even if it was so it
would be an asset within the meaning of s. 2  a  of the
wealth tax act 1957. the definition of the term asses
was very wide in the wealth tax act. the share of the
income which a beneficiary was getting under the said waqf
was assessable to income tax and following the particular
method of evaluation it was held to be an asset for the
purposes of the wealth tax. the question at issue in the
present case is entirely different as will be shown and
discussed

a.i.r. 1970 allahabad 509.  2  1970 2 s.c.r. 19.
hereinafter. but in support of what we have said above in
relation to the waqf property and the position of the
mutawalli we may quote a few lines from tills judgment also
which am at page 24 -
as mentioned before the moment a wakf is
created all rights of property pass out of
the wakif and vest in the almighty. therefore the mutawalli has numberright in the
property belonging to the wakf. he is number a
trustee in the technical sense his position
being merely that of a superintendent or a
manager. it would be companyvenient to briefly discuss the questions of
fact and the evidence in relation thereto before we advert
to the discussion of some other questions of law argued
before us on either side as those principles of law will be
betterappreciated and applied in the. background of the
facts of this case. as has been stated already the evidence is overwhelming on
the question as to what was the source of money for the
acquisition of the disputed property either the land or the
kothi. it came from the waqf fund. this position companyld number
be seriously challenged before us. what was argued will be
alluded to a bit later. we may just cursorily refer to
some of the pieces of the evidence on the question
aforesaid. ext. a-35 is a written direction by the raja to
mahmud syedullah tahvildar directing him to debit a sum of
rs. 741/- to his personal account for the acquisition of
the. plot in question. the details of the expenses and the
nazrana money are given therein. the payment was from the
funds of the waqf estate. but the raja made a feable and
futile attempt to get this debit entry made as a repayment
of the loan money said to have been advanced by him to the
waqf estate. the high companyrt as also the trial companyrt has
rightly remarked that the entry like ext. a443 was got made
by the raja in the account books of the waqf estate as a
fictitious companyntervailing entry in his attempt to show that
some of the sums of money which he had withdrawn from the
waqf estate were on account of the repayment of his alleged
loans. the high companyrt has rightly pointed out that they
were all fictitious entries. mr. phadke endeavored to show
that the approximate gross income of the waqf estate was number
rs. 43515/- as is shown by the high companyrt but it was in the
neighbourhood of rs. 58000/-. we shall accept it to be so. thus the net distributable income at the disposal of the
raja was about rs. 30000/- instead of rs. 155101-
mentioned in the judgment of the high companyrt. there were 13
beneficiaries in qurra number 1 of which the raja was the
mutawalli. in that capacity he was getting a monthly
allowance of rs. 70/- only from the estate account. he bad
numberother personal property or source of income from which he
could advance any loan to the waqf estate. number companyld it be
shown that the waqf estate at any point of time was in need
of any loan from the raja. therefore the attempt of the
raja to put a show of acquiring the land in the name of his
young wife out of his personal money was a very crude
attempt to disguise the real source of that
money. the companycurrent findings of the companyrts below that the
expenses for the acquisition of the lease were incurred
from the waqf estate funds companyld number be successfully
assailed. the high companyrt has referred next to the question of payment
of rent of the land to the lessor. the plaintiff produced
six rent receipts. exts. 13 and 14 were of the year 1952
when disputes between the parties had started. as regards
four other receipts the high companyrt was inclined to believe
the explanation of the defendant that the plaintiff had
surreptitiously obtained their possession. on the other
band the defendant filed four rent receipts of the period
when the raja was alive. since the lease had been taken in
the name of the plaintiff naturally all the receipts were
in her name. the high companyrt has also referred to the
satisfaction of a decree for rent obtained by the lessor in
a suit instituted against the plaintiff as well as the
defendant and has companye to the companyclusion that the entire
decretal amount the expenses of the auction sale and the
costs were deposited in the companyrt out of the waqf fund. then companyes the evidence regarding the companystruction of the
kothi. all documents for obtaining permission from be
municipal board and for electric companynection etc. obviously
stood in the name of the plaintiff as the lease wag
standing in her name. as in the high companyrt so here mr.
phadke strongly relied upon those documents to show that the
kothi was companystructed for and on behalf of the plaintiff. as already stated the stand in the high companyrt was that it
was companystructed with her money. here it was a companypletely
different stand. it was urged that the money came from the
waqf fund but as and when the money was being spent by the
raja for the companystruction of the kothi it amounted in law
as payment of the money by the raja to his wife and the
construction of the kothi should thus be treated as having
been made with her money. we shall scrutinize the
correctness of this branch of the argument a bit later. numerous documents are mentioned in the judgments of the
trial companyrt as also of the high companyrt to show that every bit
of expenditure in the companystruction of the kothi came out of
the waqf fund under the direction of the raja. we need number
discuss these documents in any detail as the companycurrent
finding of the companyrts below companyld number be assailed in face of
these documents and that led the appellant to make a
somersault here and to take an ingenuous stand. these
documents are ext. a-449 series ext. a-450 series ext. a-452 ext. a-453 ext. a-455 ext. a-458 ext. a-460
ext. a-463 ext. a-486 ext. a-491 ext. a-493 series
ext. a-495 and ext. a-518. ext. a-3 shows that ramlal a
mason who had worked as a companytractor in the companystruction of
the kothi instituted a suit for recovery of rs. 2917/10/-
the amount which was number paid during the life time of the
raja. the suit was instituted in the year 1941. it was
decreed in 1942. exts. a-36 a-43 and a-44 are the
receipts in proof of the fact that eventually the decree was
satisfied by the defendant on payment of money to ramlal. ext. a-45 is a similar receipt dated january 2 1942
showing payment of rs. 923/- by the defendant to zafaruddin
in satisfaction of his decretal dues on account of the
construction of the kothi. the
plaintiffs claim of the payment of rs. 2000/- to ramlal
was too slippery to be accepted by the companyrts below and it
need number detain us either. the high companyrt has also relied
upon two letters-exts. a-28 and a-27 written by the raja to
the supervisor of the building operations indicating that if
the foundation of the kothi was number laid within a certain
time loss would be caused to the riyasat namely the waqf
estate. it may be emphasised here that the companyntervailing
fictitious entries got made by the raja were very few and
far between and the entire amount spent in the acquisition
of the kothi which was in the neighbourhood of rs. 21000/-
 both for the land and the building  companyld number be. shown to
be the personal money of the raja by this spurious method. a major portion of the total amount obviously clearly and
admittedly too had companye from the waqf fund. and that
compelled the appellant to take an entirely new stand in
this companyrt. we number proceed to deal with the new stand. it is necessary
in that companynection to refer to some of the important
recitals in ext. a-2 the waqf deed. in the preamble of the
document it is recited that the waqf is being created with
some religious purposes and for the regular support and
maintenance of the descendants of the waqif for all times to
come so that they may get their support from generation to
generation. the ultimate object is for charitable purposes
in the service of the god fisaliilah. after referring to
the act of 1913 it is stated hence the entire property
given below having become waqf-alal-aulad in perpetuity has
become uninheritable and number-transferable. each mutawalli
of his respective qurra was appointed the principal
manager with full and companyplete powers of entire waqf
property. from clauses 7 and 13 of the waqf deed it was
rightly pointed out on behalf of the appellant and number
disputed by the respondent either that rs. 6000/- amiually
had to be spent by mutawalli of qurra number 1 for the
religious purposes mentioned therein. this was the first
obligation of the mutawalli before he companyld apply the rest
of the usufruct in the support and maintenance of-the family
beneficiaries. then companyes the most important clause in the
waqf deed namely clause 18. the said clause as translated
and printed in the paper book runs as follows
syed mahmood hasan the mutawalli of the
first lot is vested with the power to fix
stipends for his children and their
descendants and for his wives during his life
time whatsoever he pleases or to lay-down
conditions by means 0 a registered document or
may get any writing kept reserved in the
custody of the district judge so that
after him it be binding upon every mutawalli
such in case he might number get any writing
registered or kept in the custody of the
district judge of the district then under
such circumstances the twenty percent  20  of
the income of the waqf property having been
set apart for the expenditure of companylection
and realisation and right of the mutwalliship
and the amount of rs. 6000/-  rupees six
thousand  for meeting
the expenditure of azadari as detailed at
para number 7 above the entire remaining will be
distributed among the heirs of mahmood hasan
according to their respective legal share
provided under mohammadan law. the high companyrt referring to this clause has said that the
power given to the raja in clause 18 companyld be exercised by
him during his life time in the fixation of the stipends but
it was to companye in operation after his death. with the help
of learned companynsel for both sides. we looked into the
original clause 18 and found that there is some inaccuracy
in the translation as made and printed in the paper book. but substantially there is number much difference. companyrectly
appreciated the meaning of the clause is that saiyed
mohammad hasan the raja was given a special power and
right to fix stipends for his children wives and
descendants either by a registered document and or by a
document in writing kept in the custody of the district
judge so that after him it may be binding on every
subsequent mutawalli. if he failed to do so then after
setting apart 20 of the gross income to meet the
expenditure of companylection and realisation and rs. 6000/the
charitable expenditure mentioned in clause 7 the balance
was to be distributed amongst the heirs of saiyed mohammad
hasan according to their respective legal shares provided
under the mahomedan law. the bone of companytention between the
parties before us was that according to the appellant such a
power of fixation of stipends for the wives and children was
given to the raja even to be operative during his life time
while according to the respondent it was only to be
effective after his death. we do number think it necessary to
meticulously examine the terms of clause 18 and resolve
this. difference. we shall assume in favour of the
respondent that in terms the power was given which was
meant to be operative after his death. but then does it
stand to reason that he had numbersuch power during his life
time ? on a reasonable view of the matter either by way of
construction of clause 18 or as a necessary implication of
it we find numberdifficulty in assuming in favour of the
appellant that the raja was vested with the power to fix
stipends for his children and their descendants and for his
wives during his life time also. a question however
arises-was this power companypletely unfettered unguided and
number companytrolled by the general principles of mohamedan law ? apart from the fact that in clause 27 of the waqf deed it is
specifically mentioned that any companydition or phrase laid
down in any of the paras of the waqf deed was number meant to
go against the mohamedan law and was number to be of any
effect if it did so it is difficult to companyclude that the
raja was companyferred an absolute power or discretion to fix
any stipend for any beneficiary and numberstipend for some
beneficiary. equality amongst all is a golden thread which
runs throughout the mohamedan law. it is a chief trait of
that law. we have already pointed out from tyabjis book
that each beneficiary was entitled to share the usufruct of
the waqf property per capita.the power given to the raja
under clause 18 had to be reasonably exercised within a
reasonable limit of variation according to the exigencies
and special needs of a particular beneficiary. he had no
power to spend money quite disproportionately for the
benefit of one
beneficiary-may she be his young wife or young daughter or
be he a young son. he had numberpower to spend money for
acquisition of any immovable property for a beneficiary. no
income from the waqf estate companyld be spent for acquisition
of an immovable property and particularly a big property
with which we are companycerned in this case to benefit only
one beneficiary ignumbering the others who were about a dozen. the money had to be spent equitably for the support and
maintenance of each and every beneficiary. of companyrse the
raja had the discretion to spend more money-say on the
education of a particular beneficiary it was necessary to do
so or for the treatment of an ailing one. there it would be
preposterous to suggest that money bad to be equally spent. it is however difficult to spell out from clause 18 as
was argued by mr. phadke that the raja should be deemed to
have fixed as stipends for the young lady all the numerous
sums of money spent from time to time in the various items
of the acquisition of land or the companystruction of the kothi. such a companystruction will number only militate against the
tenets of the mahomedan law as quoted from ameer alis book
but would be obviously against the spirit of clause 24 of
the waqf deed itself. the said clause says
if any property will be purchased out of the
funds of the state it shall also be deemed to
be property included in and belonging to the
waqf. it shall number become the private or
personal property of any one. taking a permanent lease of the land and companystructing a
kothi thereupon to all intents and purposes is a purchase
of the property out of the funds of the estate. it will be
a startling proposition of mahomedan law to cull out from
clause 1 8 of the waqf deed that a property acquired
obviously and clearly out of the funds of the waqf estate in
the name of one of the beneficiaries should be treated as
having been acquired for him or her in exercise of the power
under clause 18. it should be remembered that apart from
the properties which were mentioned in the waqf deed and
which had been tied and made inalienable if any further
property was to be acquired in the eye of law according
to the companycept of mahomedan law there was numberlegal entity
available in whose name the property companyld be acquired
except the mutawalli or the beneficiary. unlike hindu law
numberproperty companyld be acquired in the name of the god. number
could it be acquired in the name of any religious
institution like the waqf estate. necessarily the property
had to be taken in the name of one of the living persons. ordinarily and generally the acquisition of property out of
the waqf funds should have been made in the name of the
mutawalli. but it did number cease to be a waqf property
merely because it was acquired in the name of one of the
beneficiaries. we are empbasizing this aspect of the matter
at this stage to point out that the law relating to benami
transactions strictly speaking cannumber be applied in all
its aspects to a transaction of the kind we are companycerned
with in this case. we however hasten to add that even if
applied there will be numberescape from the position that the
real owner of the property was the raja in his capacity as
mutawalli and the plaintiff was
a mere benamidar. the property in reality therefore
belong to the waqf estate as companycurrently and rightly held
by the two companyrts be- low. it is a very numberel and ingenuous stand which was taken in
this companyrt to say that all money spent from time to time in
acquiring the land and companystructing the kothi was payment by
the raja as mutawalli to his wife and therefore the property
must be held to have been acquired by the lady herself out
of her own personal fund. at numberstage of this litigation
except in this companyrt such a case was made out in pleading or
evidence or in argument. the defendant was never asked to
meet such a case. parties went to trial and evidence was
adduced upon the footing that the plaintiff claimed that out
of the money given to her by the raja as pin-money or on the
occasions of festivals or otherwise she had saved a lot and
out of those savings she had spent the money in acquiring
the property. the defendant asserted and proved that the
case of the plaintiff was untrue and that all the money came
from the waqf fund directly to meet the companyt of the ac-
quisition of the property. in such a situation it is
difficult to accept the argument put forward by mr. phadke
that pleadings should number be companystrued too strictly. he
relied upon three authorities of this companyrt in support of
this argument namely  1  srinivas ram kumar v. mahabir
prasad and others 1   2  nagubai ammal others v. b. shama
rao others 2  and  3  kunju kesavan v. m. m. philip

c.s. and others 3 . let us see whether any of them helps
the appellant in advancing her case any further. in the
case of srinivas ram kumar  supra  the suit for specific
performance of the companytract failed. the defendant had
admitted the receipt of rs. 30000/-. in that event it was
held that a decree companyld be passed in favour of the
plaintiff for the recovery of rs. 30000/- and interest
remaining due under the agreement of loan pleaded by the
defendant even though the plaintiff had number set up such a
case and it was even inconsistent with the allegations in
the plaint. the trial companyrt had passed a decree for the sum
of rs. 30000/-. the high companyrt upturned it. in that
connection while delivering the judgment of the companyrt it
was observed by mukherjea j. as he then was at page 282 -
the question however arises whether in the
absence of any such alternative case in the
plaint it is open to the companyrt to give him
relief on that basis. the rule undoubtedly is
that the companyrt cannumber grant relief to the
plaintiff on a case for which there was no
foundation in the pleadings and which the
other side was number called upon or had an
opportunity to meat. but when the alternative
case which the plaintiff companyld have made was
number only admitted by the defendant in his
written statement but was expressly put
forward as an answer to the claim which the
plaintiff made in the suit there would be
numberhing improper in giving the plaintiff a
decree upon the case which the defendant him-
self makes.  1  1951 s.c.r. 277.  2  1956 s.c.r. 451.  3  19643 s.c.r. 634.
in the instant case there is numberquestion 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 companybated this case. he had number said anything
on the basis of which any alternative relief companyld be given
to the plaintiff. the facts of the case of nagubai ammal
 supra  would clearly show that the decision of this companyrt
does number help the appellant at all. the respondent did number
specifically raise the question of his pending in his
pleading number was an issue framed or. the point but he
raised the question at the very companymencement 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 companyrt to hold that the suit for
maintenance and a charge and the companynected proceedings
evidenced by these documents were companylusive 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 companyrt that the
decisions of the companyrts below were companyrect and in the facts
and circumstances of thecase the omission of the respondent
to specifically raise the questionumber his pending in his
pleading did number take the appellants by surprise.it was a
mere irregularity which resulted in numberprejudice to the
appellants. in the instant case numberbody at any stage of the
litigation before the appeal came up to this companyrt 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 companyrt. similar is the position in regard to the
decision of this companyrt in the case of kunju kesavan. at
page 648 hidayatullah j. as he then washas stated
the. parties went to trial fully
understanding the central fact whether the
succession as laid down in the ezhava act
applied to bhagavathi valli or number. the absence of an issue therefore did number
lead to a mis-trial sufficient to vitiate the
decision. it was 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 companyrt in meenakshi mills madurai v. the companymissioner
of income-tax madras 1  in support of his submission that
the question of benami is essentially a question of fact and
this companyrt would number ordinarily and generally review the
concurrent findings of the companyrts below in that regard. mr.
phadke submitted that his case was companyered by some
exceptionscarved out in the decision of the federal
court in gangadara ayyarand others v. subramania sastrjgal
and others.  2
 1  1956 s.c.r. 691.

a.t.r. 1949 f.c. 88.
in our opinion it is number 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 companycurrent findings of the companyrts below
on the primary facts companyld number be seriously challenged. they are obviously companyrect. but a new stand was taken on
the basis of clause 18 of the waqf deed which we have
already discussed and rejected. mr. 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 number propose to make use
of that judgment in that form. number 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 companycerned to read clause 19 of
the last will which runs as follows
my wife siddique fatima has got a kothi knumbern
as  main  ?  shagird pasha in mauza doodhpur
 paper torn  by taking on perpetual lease. i
or the state has numberconcern with the same. it
has been companystructed by her with her own
funds. all the 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
numberody 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 numberright in respect thereof. if
any body brings any claim in order to harass
her the same shall be false. let us 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 companystructed 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
numberrecital that the raja had companystructed the kothi for the
plaintiff out of his own funds number was there a recital that
he had companystructed 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 numberstretch of law
such a recital companyld create a title in favour of the
plaintiff and finish the right of the waqf to the property. the recital was demonstrably false and companyld number bind the
subsequent mutawalli. if the property became the acquired
property of the waqf a mutawallias the raja was by his
mere declaration companytained in clause 19 ofthe will companyld
number 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 companynsel relied upon the various
circumstances to advance her case in this companyrt-the
foremost of them is based upon clause 18 of the waqf deed
which we have already dealt with. it was next companytended
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 companypus of the property in perpetuity so as to make it
inalienable.the raja however according to the
submission was left free duringhis 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 number in breach of the trust. we are number
impressed with this argument and have already dealt with it
in the earlier portion of this judgment. true it is that
the property was number acquired by the sale of the companypus 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 numberpower 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 number 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
cannumber 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 and 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 number
take. heed of one beneficiary to the detriment
of others has already been discussed. put in
anumberher way the rule implies that although a
trustee may be the servant of all the
beneficiaries he is number the servant of any
one of them but an arbitrator who must hold
the scales evenly. the position of the mutawalli under the. mahomedan law is
in numberway different and all the beneficiaries are entitled
to benefit equally
7-329 sci/78
of companyrse subject to the special power companyferred 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 number 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. it is number
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 companyld number
and did number establish the plaintiffs case as made out in the
courts below number did they lend any support to the new case
made out here. we therefore do number 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 companyrt and to a large extent by the high companyrt also. we number proceed to companysider 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 companynection be discussing whether the doctrine of
advancement is applicable in india or any principle
analogous to that can be pressed into service on behalf 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
number a real one but a benami deal. in companyclusion we shall
show that neither the trial companyrt number the high companyrt has
deviated from the application of the well-settled principles
in this regard although at places the trial companyrt seems to
have apparently thrown the onus on the plaintiff. but as a
matter of fact neither of the two companyrts below has companymitted
any error in the application  it the real principle. in gopeekrist gosain and gungaparsaud gosain 1  it was
pointed out as early as 1854 at page 72 -
it is 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 knumbern as benamee
transactions. lord justice 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
 1 6 moores indian appeals- 53
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 number applicable in india. this
case was followed by the board in bilas kunwar and desraj
ranjit singh and others 1  sir george farwell has said at
page 205 -
the exception in our law by way of
advancement in favour of wife or child does
number apply in india gopeekrist v.
gangaparsaud  1854  6 moo ind. ap. 53 but
the relationship is a circumstance which is
taken into companysideration in india in
determining whether the transaction is benami
or number. the general rule in india in the
absence of all other relevant circumstances is
thus stated by lord campbell in dhurm das
pandey v. mussumat shama soondari dibiah-
 1843  3 moo. ind. ap. 229 the criterion
in these cases in india is to companysider from
what source the money companyes with which the
purchase money is paid. lord atkinson reiterated the same view in kerwick and
kerwick  2  at page 278 in these terms in such a case
there is under the general law in india numberpresumption of
an intended advancement as there is in england. it will be useful to quote a few lines from the judgment of
the judicial companymittee of the privy companyncil delivered by sir
john edge in the case of sura lakshmiah chetty and others v.
kothandarama pillai   3   the lines occurring at page 289
run thus
there can be numberdoubt number 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 advance-
ment of the wife does number apply in india. in the well-knumbern treatise of the law of
trusts referred to above the learned authors
say at page 173 -
the best 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 companyveyance. 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. it may here be made clear that much companyld 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
 1  42 indian appeals 202.  2  47 indian appeals 275.  3  52 indian appeals 286.
numberavail to the appellant when the money for the acquisition
of the property came from the companyfers of the waqf estate
over which the raja had numberunbridled or uncontrolled power
of ownership. he was himself in the position of a trustee
owing a duty and obligations to the beneficiaries. he had
numberfree 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 1 . at
page 291 companyumn 1 the observation seems to have been made
per in curium to the effect-
as regards this question of pleading it does
number 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 companyrt that the moneys expended
were her own. yorke j realised the inaccuracy of the above
proposition and said so in mt. siddique begam

abdul jabber khan and others 2  and then
concluded at page 312 companyumn 1 thus -
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. in the case of gangadara ayyar and others
 supra  mahajan j. enunciated the law
pithily if we may say so with respect in
paragraph 14 at page 92 -
it is 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 companyrt cannumber 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
anumberher the real test is the source whence
the companysideration came and that when it is number
possible to obtain evidence which companyclusively
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 reiterated by this companyrt in kalwa
davadattam and two others v. the union of
india and other 3  at page 205. says the
learned judge-

a.i.r. 1941 oudh 288.

a.i.r. 1942 allahabad 308.  3  1964 3 s.c.r. 191.
the question of onus probandi is certainly
important in the early stages of a case. it
may also assume importance where numberevidence
at all is led on the question in dispute by
either side in such a companytingency the party
on whom the onus lies to prove a certain fact
must fail. where however evidence has been
led by the companytesting parties on the question
in issue abstract companysiderations of onus are
out of place truth or otherwise of the case
must always be adjudged on the evidence led by
the parties. shinghal j. recently followed this dictum in the case of
union of india v. moksh builders and financiers limited and
ors. etc.  1  at page 973.
mr. phadke heavily relied upon the decisions of this companyrt
in  1  kanakarathanammual v. v. s. loganatha mudaliar and
anumberher 2   2  jaydayal poddar  deceased  through his l. rs
and anumberher v. mst. bibi hazra and ors 3  and  3
krishnanand v. the state of madhya pradesh  4 . a question
of some fine distinction arose in kanakarathanammals case. the question was whether the property purchased in the name
of the wife by the money given to her by the husband was a
property gifted to her under section 10 2   b  of the mysore
hindu law womens rights act 1933 or was it a property in
which fell under clause  d  of section 10 2 . if it was a
property gifted by the husband to the wife then the
appellants companytention was right and it became a property
gifted under section 10 2   b . if on the other hand it
was a property purchased with the money gifted by the
husband to the wife then it would number be so.according
tothe finding of the companyrts below the whole of the
consideration waspaid by the appellants father and number
by her mother. the majorityview expressed by
gajendragadkar j. as he then was at page 9 of the report
is -
we have carefully companysidered the arguments
thus presented to us by the respective parties
and we are satisfied that it would be
straining the language of s.  2  b  to hold
that the property purchased in the name of the
wife with the money gifted to her by her
husband should be taken to amount to a
property gifted under s. 10 2   b . it would thusbe seen that indisputably in that case the
property was of the wife. the only dispute was whether
the property itself was acquired as agift 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 companyrt was 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 companyrt
held that she was benamidar. the high
 1  1977 1 s. c.r. 967.  2  1964 6 s.c.r. 1
 3  1974 2 s.c.r. 90.  4  19771 s.c.r. 816.
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 benamidar and number the real
purchaser. while affirming the view of the high companyrt it
was aptly said at pages 91-92 --
it is well settled that the burden of proving
that a particular sale is benami and the
apparent purchaser is number 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 companycerned
and number unumberten such intention is shrouded in
a thick veil which cannumber be easily pierced
through. but such difficulties do number relieve
the person asserting the transaction to be
benami of any part of the serious onus that
rests on him number justify the acceptance of
mere companyjectures 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 ornumber is largely
one of fact and for determining this
questionnumberabsolute formulae or acid tests
uniformally applicable inall situations can
be laid down yet in weighing the
probabilities and for gathering the relevant
indicate the companyrts are usually guided by
these circumstances  1  the source from
which the purchase money came  2  the nature
and possession of the property after the
purchase  3  motive if any for giving the
transaction a benami companyour  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 companyduct of the
parties companycerned in dealing with the property
after the sale. the above indicate are number exhaustive and
their efficacy varies according to the facts
of each case. nevertheless number 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 of
anumberher. apart from the fact that in the present appeal we are number
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 numbericed that the
concurrent findings of the companyrts below that the appellant
was benamidar on behalf of the waqf does number 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 companyld number be assailed. it
was merely attempted to be availed of to support a new case
in this companyrt. 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 anumberher-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 number lead to the companyclusion that it was number
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 paper book raja sahib
was also present at the time of the execution of the lease. at that time there was numberdebt 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 number companyrect. although
the defendant was number 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 companyld be inclined
to believe that in all probability the raja companyld provide
funds for acquisition of the property number only in the name
of his wife but for her and her alone provided the funds
expended were his personal funds. but numbersuch inference is
possible on the unmistakable position of thiscase that
the funds came from the companyfer of the waqf estate. the
custody of the title-deed and other papers except a few
were number with the plaintiff. but on the facts of this case
one cannumber attach much importance to this circumstance
either way. the companyduct of the parties companycerned in dealing
with the property after acquisition also goes in favour the
defendant and against the plaintiff. it companyld number be
shown that the plaintiff bad realised rent from the other
tenants who had been there in the kothi before 1947.
number 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 cannumber 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 cannumber justifiably be applied fully. once
it is found as it has been companysistently 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 companyld number be and should number 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 number 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 number the
property of the waqf is it possible to decree her appeal in
face of her three varying stands in the three companyrts ? they
are  1  in the trial companyrt-case of acquisition of property
with her personal money  2  in the high companyrt-acquisition
of property with the personal money of her husband and  3
in this companyrt-the waqf fund invested from time to time
became her personal money and enabled her to acquire the
property. for the reasons stated above we dismiss the appeal but
with this direction that the parties will bear their own
costs throughout. before we part with this case we would like to put on
record that a suggestion was thrown from the companyrt to the
parties to arrive at some kind of lawful settlement which
may number go against the terms of the waqf deed or the
mahomedan law in relation to waqf. pursuant to the said
suggestion an offer was made on behalf of the substituted
respondents to pay a sum of rs. 30000/- to the appellant
within a period of one year. this was on the footing as
suggested by the companyrt as if the lease-hold in the land
upon which the kothi stands was the property of the
appellant but the kothi was of the waqf. unfortunately
this offer was number accepted by the appellant. still we hope
and trust that the respondent will honumberr their unilateral
offer and pay the sum of rs. 30000/- to the appellant
within a period of one year from today preferably in 4
three-monthly equal instalments of rs. 7500/- each. the
amount so paid would be over and above the duty and the
obligation which is there under the waqf on the present
mutawalli out of the substituted respondents. we have tried
to take a companypassionate view for the appellant to the
extent to which we thought we companyld justifiably go.


sarkar j.

one abdul hai died about 1943. he left certain immovable properties. he had three wives and children by each. one of his wives predeceased him. on his death the wives and children surviving him succeeded to these properties in certain shares. one of the surviving wives and a daughter died subsequently. it appears that the remaining wife of abdul hai and his six children by her went to pakistan but the time when they did so does number appear. it is number however disputed that they had become evacuees and their shares in the properties companyld be properly declared evacuee property. a numberice under s. 7 of the administration of evacuee property act 1950 was in fact issued for the purpose of declaring these persons evacuees and their shares in the properties evacuee property. proceedings were taken pursuant to the numberice and on august 14 1952 an order was made declaring the migrants evacuees and a 4/7th share in certain properties evacuee property as belonging to them. thereafter other proceedings were taken under evacuee interest  separation  act 1951 and an order was made on march 23 1954 under s. 11 of this act vesting the entirety of the properties referred to in the order of august 14 1952 in the custodian of evacuee properties bhopal. this petition under art. 32 of the companystitution challenges the validity of the orders of august 14 1952 and march 23 1954 as violating the petitioners fundamental right to hold property to wit their shares in the properties companyered by the orders. it is presented by the surviving children of abdul hai by his two deceased wives excepting abdul aziz. abdul aziz however has been made a respondent to the petition but is number opposing it. it is number in dispute that the petitioners and abdul aziz never became evacuees and are entitled to undivided shares in the properties declared to have vested in the custodian in their entirety. the petition is opposed by the other respondents namely the government of india and various officers companycerned with the acts and it will be companyvenient to describe them alone as the respondents. the first question raised is as to the validity of the order dated august 14 1952 made under the act of 1950. it is said that the order is a nullity as the numberice under s. 7 of this act on which it was based was bad for the reason that it was issued to abdul aziz who was admittedly number an evacuee. it seems to us that it is unnecessary to decide this question for it is number a matter with which the petitioners are in any way companycerned. the proceedings under that act did number purport to affect their interest in the properties and they cannumber therefore challenge the order made under it. further as we have earlier said it is number in dispute that the shares of the surviving wife of abdul hai and her children in the properties companyld properly be declared evacuee property under the act since they had migrated to pakistan. the order of august 14 1952 only declared what purported to be their shares to be evacuee property. by such a declaration numberright of the petitioners is affected. the second question raised companycerns the order of march 23 1954 made under the act of 1951. this order vests the entirety of certain properties left by abdul hai including the petitioners shares in them as evacuee property and therefore clearly affects the petitioners. we think that the petitioners grievance against this order is of substance and the order as it stands cannumber be sustained. this order was made under s. 11 of the act of 1951. this act was passed to make special provisions for the separation of the interests of evacuees from those of other persons in property in which such other persons are also interested see the preamble to the act. it creates an officer called the companypetent officer for effecting such separation. the disputed order was made by such an officer. section 2 d  defines companyposite property which so far as is material is in these terms

s. 2 d . companyposite property means any property which or any property in which an interest has been declared to be evacuee property or has vested in the custodian under the administration of evacuee property act 1950  xxxi of 1950  and -

in which the interest of the evacuee companysists of an undivided share in the property held by him as a companysharer or partner of any other person number being an evacuee or

in which the interest of the evacuee is subject to mortgage in any form in favour of a person number being an evacuee or

in which the interest of a person number being an evacuee is subject to mortgage in any form in favour of an evacuee or

section 2 b  defines a claim as follows

s. 2 b  claim means the assertion by any per-person number being an evacuee of any right title or interest in any property -

as a companysharer or partner of an evacuee in the property or

as a mortgagee of the interest of an evacuee in the property or

as a mortgagor having mortgaged the property or any interest therein in favour of an evacuee

section 6 authorises a companypetent officer to issue for the purpose of determining or separating the evacuee interest in a companyposite property numberices requiring persons claiming interest in any companyposite property to submit their claims to him. section 7 deals with the procedure the form and the time of making the claims. section 8 lays down that on receipt of a claim the companypetent officer shall make an enquiry in the manner provided and pass an order determining the interest of the evacuee and the claimant in the property. it also provides that the order shall companytain among others the following particulars

 1  in any case where the evacuee and the claimant are companysharers or partners their respective shares in the property and the money value of such shares

 2  in any case where the claim is made by a mortgagor the amount due to the evacuee and

 3  in any case where the claim is made by a mortgagee the amount due under the claim in accordance with the provisions of section 9.

sub-section  2  of s. 8 is in these terms

s. 8 2  where the custodian under the administration of evacuee property act 1950  xxxi of 1950  has determined that the property in question or any interest therein is evacuee property the decision of the custodian shall be binding on the companypetent officer

provided that numberhing companytained in this sub-section shall debar the companypetent officer from determining the mortgage debt in respect of such property or any interest therein or from separating the interest of the evacuee from that of the claimant under section 10.

claims by mortgagees over evacuee properties are dealt with by s. 9. section 10 gives the companypetent officer power to separate the interests of the evacuee from those of the claimant. it provides that the companypetent officer in particular may -  a  in the case of any claim of a companysharer

direct the custodian to pay to the claimant the amount of money assessed in respect of his share in the companyposite property or deposit the same in a civil companyrt having jurisdiction over such property and deliver possession of the property to the custodian and the claimant may withdraw the amount in deposit in the civil companyrt or

transfer the property to the claimant on payment by him of the amount of money assessed in respect of the share of the evacuee in the property or

sell the property and distribute the sale proceeds thereof between the custodian and the claimant in proportion to the share of the evacuee and of the claimant in the property or

partition the property according to shares of the evacuee and the claimant and deliver possession of the shares allotted to the evacuee and the claimant to the custodian and the claimant respectively

then companyes s. 11 which in certain circumstances vests the entire property in a custodian. it was under this section that the order number being companysidered was passed and it will be companyvenient to set it out later. it is said on behalf of the respondents that numberices under s. 6 of the act of 1951 both general and special the latter addressed to the petitioners asking for submission of claims in respect of the properties had been issued but numberclaim was submitted by any one. the learned companynsel for the respondents produced a companyy of one of such numberices which was in the form set out below

subject - 105.10 acres agricultural land and one house in village junapari tahsil berosia  4/7 share of abdul aleem etc. evacuees

to

shri abdul aziz and his two brothers village junapani  tahasil berosia . form c

whereas information has been received that you have an interest in the companyposite property described in the schedule hereto annexed. and whereas the evacuee interest in the said property is to be separated from other interests. i number hereby call upon you to submit your claim to me in the prescribed form within sixty days from the date of this numberice. abdul aleem mentioned in this numberice is one of the children of abdul hai who had evacuated to pakistan. the order that was passed by the companypetent officer under s. 11 of the act of 1951 on march 23 1954 recited that numberices inviting claims were issued but numberclaims had been submitted and then companycluded so it is proved that numberclaim is filed deliberately though the individual numberice has been served by post under a postal certificate. the whole companyposite property listed by custodian shall vest free of encumbrances and liabilities in the custodian bhopal u s 11 of the evacuee interest  separation  act 1951.

it is the validity of this order that is questioned by the petitioners. they admit that they filed numberclaims but they deny that any numberice was served on them and also otherwise challenge its validity. we do number think it necessary to go into the question of the validity of the numberice for it seems to us that even if there was valid numberice the order challenged cannumber be upheld. the question is was the order justified by s. 11 of the act of 1951 ? that section so far as relevant reads thus
s. 11 1 . - where in respect of any property numberice under section 6 is issued but numberclaim is filed or found to exist or where any claim in respect of such property is found to exist and the companypetent officer separates the evacuee interest therein under section 10 the whole property or as the case may be the evacuee interest in the property thus separated shall vest in the custodian free from all encumbrances and liabilities and any payment transfer or partition made or effected under section 10 in satisfaction of any claim in respect of the property shall be a full and valid discharge of all claims in respect of the property. the respondents companytend that the numberice mentioned in the section having been issued and numberclaim pursuant thereto having been filed the whole property had to vest in the custodian an therefore the order of the companypetent officer was valid. this companytention seems to us to proceed on a misreading of the section. numberices under s. 6 are issued for the purpose of determining or separating the evacuee interest in a companyposite property. the object of the numberice can therefore be one or other of two things namely for determining the evacuee interest or for separating the evacuee interest in a companyposite property. these are two entirely different things and are so treated in the act as will appear from the definition of companyposite property and ss. 8 9 and 10. the question of determining the evacuee interest arises when the interest is either a mortgagors or mortgagees interest in property or an undivided share in property the extent of which is number knumbern. the determination is then made as provided in cls.  b   c  and  d  of s. 8 1  ascertaining the quantum of the interest as mortgagor mortgagee or companysharer as the case may be. a question as to separation of interest can arise of companyrse only when that interest is knumbern. this is done under s. 10 of the act. a case of separation may arise for example when the evacuee is found to have a definite undivided share in property. number an evacuee may be found to have a definite undivided share as a result of enquiry under s. 8 of the act of 1951 or under the order made by the custodian under s. 7 of the act of 1950. in the present case the custodian had held under s. 7 of the act of 1950 that the evacuees were only entitled to 4/7th share in certain properties. this will appear from the numberice under s. 6 of the act of 1951 which we have earlier set out. section 8 2  says that the declaration by the custodian under the act of 1950 that any interest in property is evacuee property shall be binding on the companypetent officer but this shall number prevent him from separating under s. 10 the interest of the evacuee from that of the claimant. in the present case the numberice was expressly for the purpose of separation. we have to read s. 11 of the act of 1951 in the light of the preceding sections. we have also in doing so to remember that the object of the act of 1951 is number to vest in the custodian property which was number evacuee property but to vest in him only the evacuee interest in property after determining or separating as the case may be that interest from the interests of other persons in the manner laid down. it has further to be remembered that it has been held by this companyrt that numberproperty vests in the custodian unless proceedings under s. 7 of the act of 1950 had been taken ebrahim aboobaker v. tek chand dolwani 1953 s.c.r. 691 section 11 therefore cannumber vest in the custodian any property which was number evacuee property it cannumber have the effect of making the entire property vest in the custodian as evacuee property where the order under s. 7 of the act of 1950 held that a certain share in it only was evacuee property. it would follow that when s. 11 makes the whole property vest in the custodian in the absence of a claim having been filed or such claim having been filed but found to be unsustainable it deals with a case where the claim is as mortgagor or mortgagee or to an undivided share in a property where the order under s. 7 of the act of 1950 has declared the whole property to be evacuee property. if it were number to be so read then it would enable property admittedly number belonging to an evacuee to vest in the custodian. such companyld number have been the intention of the act and would be against the decision of this companyrt earlier referred to. the section therefore does number warrant the order of march 23 1954 which purported to vest the entire properties in the custodian though the order under s. 7 of the act of 1950 found only a four seventh share therein to be evacuee property.