1. The appellant is the 2nd wife of one Mohamad Sheriff Saheb who died in Civil Station on 7-7-1944 leaving besides the appellant and her two children, the third wife by name Amina Bee, children by her and some children by his deceased first wife. The third wife and her children sued the children of Mohamad Sheriff by the first wife, the appellant and her children for partition and possession of the share due to them under the Muhammadan Law in the properties of Mohamad Sheriff set forth in two schedules, Schedule A relating to items of immoveable property and Schedule B movables. The value of the movables is stated to be more than a lakh. The appellant who was defendant 1 in the suit claimed item No. 5 of the A schedule as her absolute property not liable for partition & pressed for an item not included in A schedule being added to the properties to be partitioned. The omitted item stands in the name of plaintiff 1. Both the pleas were negatived by the learned District Judge and this appeal is concerned only with item 5 of the A schedule.
2a. On behalf of the appellant the decree of the learned District Judge was attacked firstly on the ground that the suit itself is not maintainable as it was filed not by plaintiff 1 but by her father without proper authority and secondly on the ground that the finding against the appellant in regard to item 5 is vitiated by mis-appreciation of the evidence and wrong inferences from proved facts.
2b. The first point is based on the terms of the power of attorney executed by plaintiff 1 in favour of her father to file and prosecute the suit. Though at first existence of the power of attorney itself was doubted as it is not available in the records of this case and copy of this though applied for could not be given to the appellant, Counsel for respondent has pointed out that it has been exhibited in another case between the parties. It was, however, contended that the power of attorney is to be strictly construed to determine the rights of the agent and so construed he can be deemed to have had authority to file the suit only on behalf of plff. 1 & not on behalf of plff. 1 as next friend of her children plaintiffs 2 and 3. The construction is rather strained and the suit cannot be thrown out even if the rigid construction sought for by the appellant; is adopted as plaintiff 1 is admittedly entitled to a share and the shares of plaintiffs a and 3 will have to be considered even if they were not the plaintiffs. No objection was taken either in the lower court or in the grounds of appeal to the institution of the suit. The parties joined issues, adduced evidence and the matters in controversy are adjudicated upon after a full trial. In view of all this, the appellant cannot at this stage insist on a critical scrutiny of the terms of the power of attorney. The objection on this account is untenable.
3a. The finding on the question of title which is more important requires serious consideration. Admittedly the property was purchased in the name of the appellant as is seen from Ex. 4 dated 23-4-1932. The consideration for sale is stated to be Rs. 3000/-. Issue No. 4, as it stands, throws the burden of proving that it is not her property rightly on the plaintiffs as according to them the sale in favour of the appellant was benami. In arriving at a finding that the sale was benami the learned Judge seems to have largely been influenced by the endorsement on the sale deed and the recital in the prior agreement of sale that sale price was paid by Mahomad Sheriff and has failed to examine whether there was any reason for Mohamad Sheriff to purchase one property in particular in the name of his wife under Ex. 4. The only evidence with regard to Exhibit 4 is that of the scribe Nanjundiah. (After discussion of the evidence the judgment proceeds:) The evidence does not preclude the possibility of the appellant having paid the sale price through the agency of her husband and this is strengthened by the absence of any reason for a benami purchase, the conduct of Mohamad Sheriff in allowing the khata to be made out in appellant's name and not showing that he had any right to the property. Assuming for the moment, that Mohamad Sheriff paid the consideration it does not necessarily follow that the transaction was benami since payment of the purchase-money is not a conclusive but only a vital test to determine the nature of the transaction.
3b. As observed in -- 'Dalip Singh v. Nawal Kunwar', 35 Ind App 104 at p. 107 (A) 'the surrounding circumstances, the position of the parties and their relation to one another, the motives which could govern their actions, and their subsequent conduct are all taken into account to decide whether the transaction is benami'.
Seeing the number of the properties specified in the A schedule, it is curious that Mohamad Sheriff should have thought of purchasing only one property under a sale deed in favour of his wife. Apparently there is no reason why he particularly resorted to this mode of purchase for a single item. Nor is any suggested on behalf of the plaintiffs. Mohamad Sheriff does not seem to have had the custody of the original sale deed & did not obtain any document or voucher from the appellant acknowledging his title. The original agreement of sale was executed in his favour and if really he wanted to be or was the owner of the property why he is not mentioned as purchaser in the sale deed is a mystery. The probability is that after the date of Ex. Q he must have changed his intention or the wife must have desired to obtain the property to herself. The conduct of Mohamad. Sheriff towards the third wife indicates a disposition on his part to make each of his wives absolute owner of certain items so that there may be no difficulty for each of them to be independent and separate and in the case of the appellant there was special cause for anxiety to make provision on account of her blindness. It is possible that Mohamad Sheriff may have paid the money but with the intention that it should be the absolute property of his wife i.e. the appellant.
3c. It was argued on behalf of the respondents that the theory of advancement according to English Law cannot be applied in India, As observed in -- 'Mahomed Sadiq Ali Khan v. Fakr Jahan Begam' which relates to a case of gift in a Muhammadan family
'though there may be no presumption of advancement in such cases in India, very little evidence of intention would be sufficient to turn the scale.'
The decision in -- 'Tulasi Ammal v. Official Receiver Coimbatore' : AIR1934Mad671 may also be usefully referred to. The learned Judge states that
'the source from which the money comes furnishes undoubtedly a valuable test, but to regard it as the sole or conclusive criterion, is clearly wrong. This is precisely the mistake which the lower Courts have made',
and though the husband supplied the consideration for the documents in dispute in that case it was held
'True, under the Indian Law there is no presumption of advancement., but still the relationship of the parties and the motives that operated are factors which must be taken into consideration.'
The question being mainly one of intention, we are of opinion that, in this case, having regard to the situation and relationship of the parties, absence of clear evidence to show that Mohamad Sheriff paid out of his own funds the purchase money and gift of a house by Mohamad Sheriff to his third wife, the appellant was intended to be and is the owner of the property and not the benamidar.
4. The decree of the learned District Judge is, therefore, set aside and the suit dismissed so tar as item 5 of the plaint A schedule is concerned. Parties will bear their own costs in relation to this item. The application for additional evidence is dismissed as being belated.
5. Decree modified.