Jeevan Khatoon and Others vs Mehtab Khatoon and Others

This is a second appeal arising out of a suit filed by one Mehtab Khatoon against her daughter-in-law and her issues for her share in the property of Mohammad Khan, her husband, and also her share as the mother in the property of Younus Khan, son of Mohammad Khan, which she had become entitled to alter the death of her son. The brief facts relating to this case are that the the suit property had been granted to one Hanumantha Rao on ijara and because he failed to pay the ijara amount, the ijara lapsed and | Mohammad Khan, the husband of the Plaintiff paid the ijara amount that was due, and got the ijara transferred in the name of his son, Rahim Khan, in 1307 Fasli. Rahim Khan died in 1315 Fasli and thereafter, it is stated, Mohammad Khan got the ijara transferred in the name of his younger son, Younus Khan. Mohammad Khan died in 1333 Fasli & Younus Khan died in 1350 Fasli.

The present suit was brought in 1352 Fasli by Mehtab Khatoon claiming her share in the property. The defence was that the property belonged to Younus Khan and the Plaintiff was only entitled to one-sixth share alone as the mother and hot to any additional share. A good volume of evidence, both documentary and oral, was led by both parties, and on the evidence before the court, the trial Court came to the conclusion that the ijara land was taken in the name of Rahim Khan in the first instance and later| in the name of Younus Khan by way of benami and that really the owner of the ijara was [Mohammad Khan himself. This finding was upheld by the lower appellate court. It is against this judgment that the Defendants come in appeal.

The learned Advocate for the Appellants confined his arguments before us only to the extent of the ''ijara'' lands, although the suit related to a partition of other properties as well. It was argued by him that originally the ''ijara'' was taken in the name of Rahim Khan, the son; that subsequently in 1315 Fasli it was transferred in the name of the other son, Younus Khan; and that the subsequent conduct of Mohammad Khan as revealed in the statement recorded before the Tahsildar at the time of getting the ''ijara'' transferred in the name of Younus Khan conclusively proves that the intention of Mohammad Khan was to get this ''ijara'' in the name of his sons and for their benefit. His contention is that the proceedings and subsequent conduct of Mohammad Khan are only consistent with this, viz., that Mohammad Khan wanted to benefit his son, Younus Khan. It is argued by the learned Advocate for the Respondents that the property was taken in the name of Rahim Khan, as Mohammad Khan happened to be a Government servant, being a Muntazim of Irregular Forces. His argument is that being a Government servant, for fear that a suspicion may be created in Government circles that property had been purchased by him in the area where he was serving as a Government servant he purchased this property benami in the name of his son.

We have gone through the record in the case and are of the opinion that this appeal should fail. We are in" agreement with both the Courts below that the purchase of this property was benami in the names of Rahim Khan and Younus Khan and that the property really belonged to Mohammad Khan. In all such cases, the criterion as to whether the property really belongs to the benamidar or any other person, is to find out as to who paid the consideration The source of consideration will be the most important factor to be taken into consideration. There can be no doubt that in this case that the consideration came from Mohammad Khan alone. Further, it has also to be borne in mind, as has been held by the Privy Council in the leading case of �''Kerwick v. Kerwick 47 Ind App 275 that there is no presumption of intended advancement in India. No doubt, the burden is upon him who alleged that the property belongs to another, other than the person in whose name the property stands, but this onus is easily discharged when the motive or the reason with which the property was purchased in another''s name is given. As observed by the Privy Council in the above case, he has merely to show for what rational purpose that was done. The Privy Council has also observed in the case of �''Uman Pershad v. Gandharp Singh 14 Ind App 127 that "even a slight quantity of evidence to shew that it was a sham transaction will suffice for the purpose." We are satisfied in this case that the reason that we can gather from the evidence easily discharges the burden, it being that he was a Government servant and the rules forbade purchase of property by a Government servant in the area where he was working.

As regards the contention of the learned Advocate for the Appellants that the subsequent proceedings and the conduct of Mohammad Khan go to prove that the property was purchased for Younus Khan, we must state that in benami transactions all subsequent proceedings and conduct are always consistent with the original intention of the purchaser and the subordinate parts are notoriously fitted in to correspond with the benami arrangement. That this is always the conduct that is adopted, is supported by a decision of Patna High Court in the case of - ''Sahadev Karansingh v. Usman Ali Khan 1939 Pat 462.

The learned Advocate for the Appellant also invited our attention to a decision of Privy Council in the case of �''Nawab Mirza Mohammad Sadiq Ali Khan v. Nawab Faqr Nawaz Begum 59 Ind App 1. With regard to this case, it must be said that what the Privy Council laid down in that case was that although there was no presumption of benami transactions in India, a slight evidence of intention would be sufficient to turn the evidence. In our opinion, there is not the requisite evidence in this case to outweigh the evidence led on behalf of the Plaintiffs to support the case that the property belonged to Mohammad Khan.

We are, therefore of the opinion that both on facts and on the question of law, the Defendants cannot succeed. This appeal is, therefore, dismissed with costs.