P L D 1984 Karachi 97 (PLP)

This suit has been filed for the recovery of Rs. 2,20,000 from the defendant No. 1 which is alleged to be the sale price of the property in the suit which according to the plaint the defendant was holding as a Benamidar for one Ghulam Hussain Maneck Dhanji, the father of the plaintiffs Nos. 1 to

7. A further relief for account to be furnished by the said defendant No. 1 for monies realized and profits earned by her for the period the property remained with her is also sought. Both these reliefs are contested by the defendant No.

1. She asserts that she is the owner of the property and the plaintiffs have no right or interest in the property which is a 10% share in the Regal Syndicate situated in Saddar Karachi.

2. The parties are Khojas originally belonging to a prosperous family of Bombay. After partition of India the family broke up and dispersed to the various parts of the sub-continent, some remaining in India and others migrating to the Pakistan. Plaintiffs Nos. I to 7 are sons and daughters and plaintiff No. 8 is the wife of Ghulam Husain Maneck Dhanji. Defendants Nos. 1 to 3 are sons and daughters and defendant No. 4 is the wife of Wali Muhammad Dhanji who was the brother of Ghulam Hussain Maneck Dhanji. Ghulam Hussain Maneck Dhanji and Wali Muhammad Dhanji, it is alleged by the defendant were carrying on business in Bombay.

3. The case has peculiar features of its own. But before I venture to analyse the real controversy I briefly reproduce the facts as set out in the pleading of the parties.

4. The plaint is a very lengthy document spread over about 15 pages. But the gist of averments contained therein reveals that "in pursuance of his desire to invest money in Pakistan" Ghulam Hussain Maneck Dhanji joined a partnership firm called Regal Syndicate by contributing a sum of Rs. 8U,000 in the assets of partnership. This investment was made by him in the name of four persons in equal shares of Rs. 20,000 each in the following manner and in the following proportion :- (1) Plaintiff No. 1 Muhammad Ali son of Ghulam Hussain Rs. 20,000 equal to 5 % share capital. (2) Plaintiff No. 8 Jeeno Bai wife of Ghulam Hussain Maneck Dhanji Rs. 20,000 equal to 5 % share in the capital of the partnership. (3) Defendant No. 3, Ahmad Ali son of Wali Muhammad Dhanji Rs. 20,000 equal to 5 % share of the capital of the firm. (4) Defendant No. 4 Khadija Bai wife of Wali Muhammad Dhanji Rs. 20,000 equal to 5 % of the capital.

5. A copy of the partnership deed has been produced showing the four names of these four persons and also of the other partners of the partnership. It is dated 28-2-1948 and is Exh. 9/2. .

6. It is alleged that these four persons were Benamidars and had only lent their names for being shown as partners in this firm. The real owner was the said Ghulam Hussain Maneck Dhanji. Few months later Ghulam Hussain Maneck phanji desired a cbange. The four shares of Rs. 20,000 each held by the aforesaid Benamidars are, on the direction of Ghulam Hussain Maneck Dhanji, transferred to defendant No. 1 who is the daughter of Wali Muhammad Dhanji. The reason for this change is stated to be that defendant No. 1 was by that time the only close relation in the family who was living in Pakistan. None of the plaintiffs had left India by that time. This was the time when the Evacuee Laws were shortly expected to be enacted in India. According to the plaint a further change was brought about. It is stated in para. 14 that some time in the beginning of the year 1950 the said Ghulam Hussain Maneck Dhanji desired to split up holding in the hands of defendant No.

1. Under this change half of his share in the said firm was to continue to remain in the name of defenjant No. i as aforesaid and the other half was to be ostensibly transferred in the name of defendant No.

2. It is proper to quote pares. 14, 15 and 16 of the plaint in extenso to reproduce the story in the, words of the plaintiffs them selves. "(14) Thereafter, in the beginning of the year 1.950, the said Ghulam Hussain Maneck Dhanji desired that half of his share in the business and properties of the said firm should continue to stand in the name of the defendant No. 1 as aforesaid and other half of his said share should be ostensibly transferred in the name of the defendant No. 2 (who had also been residing in Pakistan) eversince its establishment Benamidar and/or agent and/or trustee of the said Ghulam Hussain Maneck Dhanji as aforesaid and accordingly required the defendant No. 1 to make an ostensible and apparent gift of the half of his share in the business and properties of the said firm (standing in the name of defendant No. 1) in favour of the defendant No. 2 to hold the same as Benamidar and/or agent and/or trustee of the said Ghulam Hussain Maneck Dhanji as aforesaid. (15) Accordingly, the defendant No. 1 made an ostensible and apparent gift 10 % share in the business and properties of the said firm (out of the 20 % share standing in her name) in favour of the defendant No. 2 to hold the same as Benamidar and/or agent and/or trustee of the said Ghulam Hussain Maneck Dhanji as aforesaid and thereafter 10 share in the business and properties of the said firm was held by defendant No. 1 and 10 % share was held by defendant No. 2 as Benamidars and/or agents and/or trustees of the said Ghulam Hussain Maneck Dhanji as aforesaid. (16) From February, 1.948 to early 1950 the entire 20%.of the profits of the said business on account of the share of the said Ghulam Hussain Maneck Dhanji therein were received and held wholly by the defendant No. 1 and thereafter she received and held 10 % of the said profits was received and held by the defendant No.

2. Neither the defendant No. 1 nor the Defendant No. 2 however, 'paid any amount out of such profits either to the said Ghulam Hussain Maneck Dhanji or to his heirs the plaintiffs.

7. The plaintiffs who it appears were already restless, but had so abstained from taking any concrete steps for recovery of their claims pressed their demands for the reimbursement of the sale price to them. Paragraphs 20 and 21 of the plaint reveal what happened thereafter :- (20) In so far as the defendant No. 2 is concerned, she admits that the 10 % share held by her in the business and properties of the said firm really belonged to the said (Ghulam Hussain Manek Dhanji and thereafter to his heirs, the plaintiff herein, and she is ready and willing to pay to the plaintiffs the entire sale-proceeds received by her from the said sale so also the profits received by her from time to time. The plaintiffs, therefore, claim no relief against her and she has been impleaded as defendant formally only. (21) However, the defendant No. 1 when recently approached by the plaintiffs for accounts of profits and sale-proceeds of the said share in the business and properties of the said firm, falsely claimed to be the real owner of the said share and refused to account for the profits and sale-proceeds".

8. As a result of final refusal by the defendant No. 1 to part with the money she is said to have recovered out of the sale transaction the plaintiffs have filed the suit for the recovery of the sale price as well as for accounts.

9. The defendant No. 1 has resisted the claim of the plaintiff's and contested the assertions that she held a 10 % share in the Regal Syndicate as Benamidar of Ghulam Hussain Maneck Dhanji. She has raised some formal and preliminary objections to the filing of the suit but her version of the events that took place in 1948-49 and how she has come to acquire the ownership of the 10 % share in the Regal Syndicate is also set up in her written statement. She first casually mentioned about the properties of the two brothers in India. But the defendant's averments germane to the property in dispute in Pakistan is contained in page 13 of her written state ment and calls for attention. Para. 13 of her written statement runs as under :- "The allegations in para. 13 of the plaint are admitted to the extent that on 1st October, 1949, two gifts were made unconditionally in favour of this defendant by her aunt and by her fourth mother. The rest of the allegations are denied."

10. The plaint has recapitulated the story of transfer of funds showing how from time to time the investment of Ghulam Hussain Maneck Dhanji continued to flow from person to person until it came to rest in the names of Defendants Nos. 1 and

2. The defendant No. 1 betrays complete lack of knowledge of the original partnership in para. 9 of her written statement. By denying the existence of this partnership a very important link in the story is lost and she is at once confronted with the situation to explain how abruptly the "aunt and the fourth mother" to whom she is tracing the origin of her title came to possess these shares which is now claiming as her own on the basis of the gifts which the aunt and fourth mother has made in her favour unconditionally on 1st October, 1949.

11. Defendants Nos. 3 and 4 who are the sons and widow, respectively of Wali Muhammad Dhanji have filed a joint written statement. These defendants admitted practically all the averments of the plaint and admitted their roles in the first transaction in which they were inducted into partnership on 28-2-1948 to the extent of share of 15 % each of value of Rs. 20,000 each. Let their version also come in their own words :-- "(2) The statements made in paragraph 7 of the plaint are substantially correct and are admitted. The answering defendants submit that Mr. Ghulam Hussain Maneck Dhanji requested the answering defen dants to lend their names for the purpose of investment he desired to make in Pakistan in the Regal Cinema properties and the answering defendants agreed to do so." Again in para. 3 of their written statement they stated :

"Statements made in paragraphs 8 and 9 of the plaint are admitted. The answering defendants submit that they were only nominal partners on behalf of Ghulam Hussain Maneck Dhanji and they were neither liable to contribute any amount nor did they in fact contribute any amount." There are other very pertinent and informative averments in para. 5 of the written statement of defendants Nos. 3 and 4 which I would reproduce at the proper stage. For the present suffice it to say that their statements are relevant for the purposes of tracing down the source of funds which financed acquisition of 20 % share in the Regal Syndicate and which ultimately flowed in the hands of defendants Nos. 1 and 2.

12. Defendant No. 2 has filed her written-statement separately. She has adopted written-statement filed by defendants Nos. 3 and 4.

13. On the pleadings of the parties 12 consent issues were framed on 25-11-1968. When the case came up for arguments before Zafar Hussain Mirza, Judge, Issues Nos. 1, 2, 4, 6 and 7 it is so stated by the learned counsel appearing in the case were dropped and are not pressed. Issues Nos. 3, 5, 8, 9, 10, 11 and 12 were left to be argued. The two learned counsel have addressed me on the aforesaid issues only. For purposes of convenience these issues are quoted below :- "Consent Issues :-- (3) Is the suit barred by limitation. (5) Who made gifts in favour of defendants Nos. I and 2 and when, and were the gifts not acted upon. (8) Can the plaintiffs or any one of them claim accounts from defendant No. 1. (9) Were the gifts in favour of defendant No. 1 benamis/agents/trustees as alleged in the plaint. (10) Are the plaintiffs or any of them entitled to any relief. (11) Is the defendant No. 1 entitled to special costs. from the decree should be"?

14. Parties lead evidence and some documents have also been filed and exhibited. Kassim Ali who is plaintiff No. 3 has been examined as P. W. I Exh.

9. No other witness was offered on behalf of the plaintiff. Kassim Ali after narrating the relationship between the plaintiff and the defendants has reproduced in details events narrated in the plaint. He has reiterated that his father as head of the family of the plaintiffs Nos. 1 to 8 had sent .Rs. 80,000 from India. This money was utilized for acquiring 20 % share capital in Regal Syndicate. This investment of Ghulam Hussain Dhanji .was spread into four shares of Rs. 20,000 each in the names of plaintiffs Nos. 1 and 8 and defendants Nos. 3 and

4. Among the other shareholders of the partnership was one Haji Usman Kadwani. This witness produced a letter of January, 1948, written by this Haji Usman Kadwani to Ghulam Hussain, giving details how this property Regal Cinema was purchased from its former owner Isardas Salamatrai and others, the total consideration paid to the latter, the proportion and quantum of share held by different partners in the partnership firm on 2-1-1948 and acknowledging that "you Ghulam Hussain Maneck Dhanji have a 20 % share therein and you have paid me Rs, 8;000 as your proportionate sure of the earnest money.". The inference drawn is that Ghulam Hussain Maneck Dhanji was recognized as the.. real owner of the property by the other partners of the firm. Kassim Ali has produced the original partnership deed of the firm Regal Syndicate. It is Ex6. 9/2 and dated 28-2-1948. Kassim Ali further stated that plaintiffs Nos. I and 8 and defendants Nos. 3 and 4 who were all in Bombay were directed to transfer these shares to Sakar Khano' by making an ostensible gift. In his own. words he says "by that the evacuee property law was promulgated in Bombay by the Government of India so in order to safeguard the family property my late father took the precaution of transfer in the shares standing in the names of Muhammad Ali, Jeeno Bai, Ahmed Ali and Khadija Bai in the name of defendant No. I Sakar Khano. This transfer was Benami and Sakar Khano held this share in trust for the real owner Ghulam Hussain Maneck Dhanji. After a year or two my father Ghulam Hussain Maneck Dhanji gave instruc tions according to which two out of four shares were held by Sakar Khano were transferred in the name of Ameer Bano defendant No.

2. This transfer was also Benami. This property was held by defendant No. 1 Sakar Khano and defendant No. 2 Ameer Bano up to 1957, when it was sold by all the partners". He further stated that the property held by the defendants Nos. I and 2 was managed by Abdullah Pir Muhammad, husband of defendant No. 1 and Abdullah Pir Muhammad was maintaining separate accounts in respect of this property. Kassim Ali produced a letter Exh. 8/1 dated 22-5-1950 written by Abdullah Pir Muhammad addressed to "my dear uncles". In para. 1 of this letter he writes :- "The so-called gift of four shares was first made in favour of Sakar Khano (defendant No. 1) for your benefit but later on for trivial reasons two shares of the gift were transferred to Ameer Bano (defendant No. 2). Kassim Ali then produced a letter dated I1-12-1954 from defendant No. 1 herself. It is Exh. 8 and its English translation is Exh. 9/3. This letter is written by defendant No. 1 to Ghulam Hussain Maneckji whom she and other members of the family used to address as (Papaji). It is urged for the plaintiffs that this letter contains an unequivocal admission by defendant No. 1 that the share which she had acquired by ostensible gift she was holding in trust for Ghulam Hussain. Reliance is placed on the following portion of this letter. I quote :-. "Moreover we feel that you are worried and doubtful about your money and you may be afraid that your money will sink. You may rest assured that till we are alive not a single anna of yours will sink. Still if you still have doubts then let us know so both of us will sign and give it to you. If you wish you let us know so that we can hand over all the accounts and charges about which we are not worried." The third document .relied upon is statement of accounts written by Abdullah on loose sheets of paper Exhs. 9/4 to 9/9 covering a period between January, 1951 and March, 1958. The plaintiff heavily relied on Exh. 9/9 which records the income of the Cinema up to 11th December, 1967, as Rs. 1,64,716.46 and after payment of certain sums to some people the balance in hand on 25-2-1958 is shown to be Rs. 1,49,016-11 anna and

6. It is argued before me by the learned counsel for the plaintiff that the production of these documents by the plaintiff from their possession tilts the sales in their favour and creates a strong presumption that Ghulam Hussain Maneck Dhanji was and continued to be the real owner. The testimony of this witness remained unshaken in the lengthy and close cross-examination by the learned counsel for the defendant No.

1. The objection of the learned counsel for the defendant that material time when the three Benami transfers are said to be effected this witness was only a school-going kid may have been of some avail if the oral version was a deciding factor but in the present case it is not so. He speaks not much from his personal knowledge. Impact of his testimony is on account of three documents on which he has pitched his case and whose existence or validity is not denied.

15. Defendant No. I has also examined one witness. This witness is no other than Abdullah Pir Muhammad, husband of the contesting defendant No. 1 and author of Exhs. 8/1 and Exhs. 9/9. It is he who was managing the property all these years and it is he who has written a letter Exh. 8/ 1 and also prepared and submitted the statement of accounts referred to earlier. After giving the relationship between partners he proceeds to narrate the story from early days. He affirms that funds for the purchase came from India. In my opinion this is an important admission. It reduced the range of controversy appreciably. It shows that defendant No. 1 is not the owner of the disputed share by direct purchase and she has not made any financial contribution.

16. The plaintiffs in paragraphs 5, 6, 7, 8, 9 and 10 cover this part of the case and details are furnished in these paragraphs how step by step the concept of transfer of funds from India to Pakistan grew up in the mind of Ghulam Hussain Maneck Dhanji where in those fateful days of 1948 with the spectrum of Evacuee Laws looming large in the horizon many Muslims were trying to save as much as they could by transferring their assets to Pakistan for the rainy day. The defendant No. 1 who was a Pakistan National and a resident of Pakistan could be the safest and worthiest of all in whom confidence could be reposed. The replies of defendant No. 1 in her written statement to the assertions made in the plaint are evasive. Her assertion in para. 8 of the written statement that her father also desired to help out hill children is very casual and halfhearted.

17. It may be recalled that the first transaction when Ghulam Hussain Maneck Dhanji is said to have parted with money and brought shares in the name of four Benamidars was evidenced by a partneship deed Exh. 9/2. This transaction and Ghulam Hussain Maneck Dhanji's participation in the partnership is further confirmed by a letter of a co-sharers, namely, Haji Usman Kadvani, by his letter Exh. 9/1. But defendant No. 1 pleads complete ignorance and total lack of knowledge from this important development in the case. In para. 9 of her written statement she stated "this defendant is not aware of the partnership deed dated 28-2-1940 which is purported to be made in India for a partnership in Pakistan. The said document is inadmissible for want of proper stamp duty and otherwise and accordingly the allegations in paras. 8 and 9 of the plaint are not admitted". Similar attitude was adopted by her when in para. 10 she says that allegation of para. 10 are not admitted.

18. It may be observed that the rule of pleadings is governed by the provisions of Order VIII, rules 3, 4, 5, C. P. C. which runs as under :- "ORDER VIII.-WRITTEN STATEMENT AND SET OFF Rule

1. Written statement.- The defendant may, and, if so required by the Court, shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence (Provided that the period allowed for filing the written statement shall not ordinarily. exceed ninety days). Rule

3. Denial to be specific.-It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages. Rule

4. Evasive denial.-Where a dafendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that parti cular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances it shall not be sufficient to deny it alongwith those circumstances. Rule

5. Specific denial.-Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be disability Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission". A well-known commentator of C. P. C. Mogha in his book on the Law and Principles of the pleadings has commented on these rules as follows in Pakistan Edition 1977 at page 315 :- If there is no denial or a definite refusal to admit a fact, the fact stands admitted, although the defendant never intended to admit it. In a case in which the defence was, the defendant puts the plaintiff to proof of the several allegations in his statement of claim (plaint), it was held that all the plaintiff's allegations stood admitted, although most probably the defendant intended to deny each of them. Similarly, if the defendant says in respect of any allegation that "he has no knowledge" or writes "not known", the allegation will be deemed to have been admitted. The same will be the result if he simply says that "the allegation needs no reply".

19. In this view of the matter I would take it that the allegations contained in these paras. of the plaint remains unchallenged and may be relied upon in support of the case of the plaintiff. All these facts put together make out a clear picture that defendant No. 1 has not paid l single rupee for purchase of the share she is now claiming and has toj, make out a clean case on what basis she is laying her claim to the share.

20. Turning once again to the evidence of her husband namely, Abdullah- Pir Muhammad son of Pir Muhammad it may be pointed out that when questioned about the accounts produced as Exhs. 9/4 to 9/9 he accepted the execution of these documents but says "that these accounts were written by me at the instance of my elders from the draft prepared by them in order to save them from any action in India as well as in Pakistan". But he does not disclose whose these elders were and what was the object or interest under which he was required to execute these documents on plain paper showing therein "the official as well as unofficial." earnings from the Cinema. How such a document on a plain paper showing even the unofficial earnings came to be written for purpose of any contemplated official action remains unexplained. He was appearing in Court not only as a witness but also as an attorney of defendant No. i. Exhs. 8 and 8/1 have already been mentioned by me earlier. Nothing has been said by this witness to rebut the assertions of the plaintiffs on the basis of these letters. He does not explain why in para. 1 of Exh. 8/1 he himself assured the addressee of this letter "a so-called gift of four shares was made in favour of Sakar Khano for your own benefit".

21. It is said for the defendants that this letter was addressed to "uncles" indicating the plural. The indication is that the ownership of the disputed share was attributed to not one but to both brothers, namely, Ghulam Hussain Maneck Dhanji as well as Wali Muhammad Dhanji: I am afraid I do not agree with this interpretation. Although this letter is addressed to "uncles" but- read carefully it leaves no doubt .in my mind that it is addressed to only one person. I would analyse the contents of this letter in support of my view. I quote from this letter "Your letter of the 9th instant was received by my office and opened by me. "Again," "your suggestion that both Sakar and Ameena Bai should have excess to open your trunk lock shows that you have some doubts in your mind." Again, "another blow came to me when I heard that Akber was brought in between to pass on your 50 mangoes to me". The 50 mangoes it appears refers to some cash amount of 50,000 which can belong to only one man. Again in concluding paragraph on page 3 he writes "while writing this letter I have received your letter of 19th containing certain instructions which I do not quite understand". Further he says "so please do not worry because if we want Chachi Maan to come to Karachi we will write to you, for the present it is not necessary for her to come." Chachi Maan would be the wife of Ghulam Hussain Maneck Dhanji who was the uncle-in-law.

22. All these pieces go to show that it was addressed to one man and that one man was Ghulam Hussain Maneck Dhanji and not Wali Muhammad Dhanji. On the top of it the letter Exh. 8 an English translation of which is Exh. 9/3 further lends support to the view that the funds originated from Ghulam Hussain Maneck Dhanji. This letter was written by defendant No. 1 herself as late as 11-12-1954. It was long long after the split up of the share between defendants Nos. 1 and

2. It is obvious that whatever reference is made to this letter would be relevant only to the share held by defendant No. 1 alone. If it was an absolute and unconditional gift the chapter was closed and the following lines which I would presently quote would not have found place in this letter Exh. 8 which defendant No. 1 is writing to Papajee Le. Ghulam Hussain Maneck Dhanji. I quote from this. Exh. 8 which as I have stated above was written in the closing days of the year 1954. "We had clarified the whole matter in the letter, which you must have received, the misunderstanding of which is yet not clear, which we feel, moreover we feel that you are worried and doubtful about your money, and you may be afraid that your money will be sunk. Therefore, please don't worry about it which may affect your and Papajee's health. You may rest assure, that till we are alive not a single anna of yours will sink. Still if you still have doubts then let us know so both of us will sign and give it to you. Papaji I was very hurt, and your son-in-law was also deeply hurt, who was handling your affairs up to now, and who would in the middle of the night leave his work and do our work. But in spite of that you are constantly worrying. If you wish you let us know so that we can hand over all the accounts and charge, about which we are not worried."

23. With this background of the facts of the case I now proceed to further examine the contention of the parties in the light of issues Nos. 5 and

9. Issues 5 and 9 were raised on the basis of defendant No. 1's assertion in para. 3 of her witten statement to the effect that "on first October, 1949, two gifts were made unconditionally in favour of this defendant by her aunt and the fourth mother." It may be stated that the aunt mentioned in this para. is plaintiff No. 8 and the fourth mother is the stepmother who is defen dant No. 4 and from whose statement I have quoted in the preceding paragraphs. The story of two unconditional gifts set up in this para. is not supported by any evidence oral or documentary. On the other hand there/3 is the version of the plaintiff. It is also belied by the two ladies who are said to be the donors in this gift transaction.

24. P. W. Karam Ali in his statement clearly states that his father Ghulam Hussain Maneck Dhanji had purchased this property in the name of four persons mentioned in the earlier part of the judgment and the original partnership document Exh. 9/2 supports this version. I may repeat his words "by that time Evacuee Law was promulgated in Bombay by the Government of India in order to safeguard the family property- my late father took a precaution by transferring the shares standing in the name of Muhammad Ali, Jeeno Bai, Ahmed Ali and Khadija Bai, in the name of defendant No. I Sakar Khano." This transfer was Benami and Sakar Khano held this share in trust held the share of the real owner Ghulam Hussain Maneck .Dhanji." This shows that at this late early not only two shares were transferred to her but four shares were transferred. It may be noticed here that the defendant No. 1 in her written statement and D. W. Abdullah Pir Muhammad in his statement in Court merely mention about the gift of 10" of share made in favour of the defendant No.

1. Both are significantly silent on the earlier and in my opinion a very important link in the chain of events that took place. Neither defendant No. 1 nor Abdullah Pir Muhammad mentioned anything about the title of the so-called donor who are said to have made unconditional gifts in favour of the defendant No.

1. Not a work of documentary evidence is forthcoming to feed this plea. Both Abdullah Pir Muhammad and defendant No. 1 skipped over the link when the four Benamidars shown in the partnership had transferred their respective holding to defendant No. 1 alone. Thus, initially it was' not two but four shares that have fallen into her hands. Later in the second phase she and (not plaintiff No. 3) transferred half of his holding to Ameer hano and retained the remaining half. But this missing link is found in Exb. 8 whose author is Abdullah Pir. Muhammad himself. In para. 1 of this letter dated 22-5-1950 he writes "the so-called gift of four shares was first made in favour of Sakar Khano "for your own benefit" but later on for trivial reasons two shares of the gift were transferred to Ameer Bano. Once this link is supplied . by Abdullah Pit Muhammad in Exh. 8/1 not only continuity of flow of funds is established but his meaning ful words "for your own benefit" used in this Exh. 8/1 leaves no .room for doubt that the gift in favour of the defendant No. 1 was not absolute or unconditional but in the nature of a resulting trust. She acquired no right in the four or for the matter of that the two shares now retained by ..her as donee from the two out of the four Benamidars. Further light -is thrown on the story by the defendants Nos. 3 and 4 in para. 5 of their joint written statements. Paragraph 5 of the written statement of defendants Nos. 3 and 4 runs as under: "5(a). These defendants were first requested. by Ghulam Hussain Maneck Dhanji to make a gift of their ostensile shares in the Regal Cinema properties in favour of defendant No. 1. (6) The said Ghulam Hussain Maneck Dhanji had also taken from these defendants their signatures on some blank papers saying that the same were to be utilised for the purpose of the investments made by Ghulam Hussain Maneck Dhanji in the names of these defendants ostensibly. The answering defendants subsequently learnt that those, documents were used for the purpose of showing ostensible gifts by these defendants either in favour of defendant No. 1 or defendant No. 2 or both of them. The answering defendants, however, have never cared to find out the actual position as they were not the real owners of any properties or business in Pakistan and the investments made in their names wholly belonged to the said Ghulam Hussain Maneck Dhanji."

25. In my opinion these paragraphs throw sufficient light on the respective claims of the parties and reproduce the real situation obtaining in the family in those days. All these transfers which I would call mere paper transactions were taking place one after another without any ring of reality merely to ensure the safety of interest of Ghulam Hussain Maneck Dhanji who sometimes utilized the names of one set of the relations and sometimes the other. That is the reason why no document of gift is forthcoming from either The plaintiffs or the defendants. Whether two shares now claimed by defendant No. 1 were transferred by plaintiff No. 8 and defendant No. 4 as alleged by her or by the other two Benamidars as stated by plaintiff No. 3 is immaterial they belong to Ghulam Hussain Maneck Dhanji who had contributed the total value of these shares and was the real owner. In the absence of any evidence it is not possible to agree with the contention of the defendant No. 1 that the transfer in her favour was made by the plaintiff No. 8 and by her step,- mother the defendant No. 4, unconditionally. It is true that in a benami transaction the .burden of proof is always on the person who challenges title of a person in whose name the property stands but in the present car when admittedly the consideration did not come from the defendant No. 1 and she is claiming the right not by direct purchase but on the basis of gifts she had to show that the property belonged to the donors and that the donors had made an unconditional gift. She must make out a clear case to establish her right to hold the property for which she has admittedly, not paid any consideration.

26. As mentioned above the rule of burden of proof in a case where consideration has been paid through some source other than the owner shown, in the document of title stands modified and the burden shifts from plaintiffs to defendants. This proposition of law is very ably discussed by Mukerji, 1., in Allababad case reported in A I R 1934 Lah.

226. The facts of that case were that His Highness the Maharaja of Nabha apprehending dethronement from the rulership of Nabha State purchased/endorsed Benami in favour of each of his wives Government promissory notes. His apprehension proved to be correct and he was dethroned. When he wanted to use this promissory note his entitlement to his note was resisted and the father of one of the wife set up a plea that he bad made an absolute gift to .the Maharani and she was the real owner and after his death the daughter had inherited the right to encash .these notes. Maharaja filed the suit praying for a relief of declaration to the effect that the Maharani was merely a Benamidar and that he was the real owner. In second appeal before a Division Bench of the same Court Mukerji, J., wrote the leading judgment in the case and discussed the issue of burden of proof and I quote the relevant passage from his Lordship's judgment :- "There can be no doubt that when a plaintiff comes to Court and says that the transfer be made was not really meant to operate as a transfer, the burden of proof is, initially, on him to show that his allegation is right, for, in the absence of any evidence on either side the plaintiff's suit would fail. Again, there can be no doubt that. where a transaction is between a husband and wife and there is no considera tion passing towards the husband from the wife who takes the transfer, it would be for the wife to prove that the transfer was really meant to be for her benefit and not for the benefit of the husband himself. The point is covered by a decision of their Lordships of the Privy Council and we do not think that there is any room for argument. The case just mentioned is that of Guran Ditty v. T. Ram Ditty. In this case the husband, who was the owner of the money in question, took away a sum of one lac of rupees from his current account and made a fixed deposit of the same with a bank jointly in favour of himself and his wife with instructions to the bank that the money was to be held by either of the depositors during their lifetime and by the survivor in the case of the death of one of them. On the death of the husband the question arose whether the money belonged to the wife or it still belonged to the estate of the husband and was, therefore, liable to be taken by the husband's heirs. Their Lordships of the Privy Council pointed out that where a transaction was without consideration, there was always a resultant trust in favour of the transferor, there being an exception, in England, in the case of a wife and a son, where the transfer would be deemed to have been made by the transferor for the advancement of the transferee (wife or son). Their Lordships further pointed out that this rule of English law did not apply to India, where the people were in the habit of making Benami transactions even at a time when there was nothing to be immediately gained by such transfer:. The presumption of advancement being absent in India, the presump tion in India is that the gratuitous transfer results in the gratuitous transferee holding the property for the benefit of the transferor." In my opinion the defendant No. I has failed to discharge this burden. The fact that even after the so-called gifts were effected the property continued to be treated as the property of Ghulam Hussain Maneck Dhanji is evident K from the two letters Exhs. 8 and 8/1 and also by the statement of accounts Exbs. 9/4 to 9/9. All these documents are of a period after the so called gift. Had the so-called gift been an unconditional gift Exhs. 8 and 8/1 would not have been written. Nor any account Exh. 9/9 would have been submitted by Abdullah fir Muhammad who undeniably was managing the property and has prepared a statement of accounts showing profits to the tune of Rs. 1,49,160 by 25-2-58. In the light of the above discussion I have no hesitation to say that the plea of unconditional gift is an after- r thought in order to lay a claim to the property which all along continued to be treated as the property of the person to whom those two letters were addressed and for whom the accounts were prepared.

28. I may now examine the claim of defendant No. 1 in the light of few cases. Before I refer to the decisions I refer to a passage from the book Indian Trusts Act by Om Parakash, II Ed. page 522 :- "It has been held by the Judicial Committee of the Privy Council that the general rule and principle of the Indian Law as to resulting trusts differ but little, if at all, from the general rule of English law upon the same object, but "owing to the widespread and persistent practice which prevails amongst the natives of India, whether Muhammadan or Hindu, for owners of property to make grants and transfers of it Benami for no obvious reason or apparent purpose, without the slightest intention of vesting in the donee any beneficial interest in the property granted or transferred, as well as the usages which these natives have adopted and which have been protected by statute, no exception has ever been engrafted on the general law of India negativing the presumption of the resulting trust in favour of the person providing the purchase-money, such as has, by the Court of Chancery in the exercise of their equitable jurisdiction, been engrafted on the corresponding law in England in those cases where a husband or father pays the money and the purchase is taken in the name of a wife or child. In such a case there is, under the general law in India, no presumption of an intended advancement as there is in England."

29. It is not necessary to cite other decisions of the Privy Council but it would be worthwhile to refer to a well-considered judgment of Farooqi, J., reported in P L D 1960 Lah. 852 which has reviewed the entire case law on the subject and still remains the leading case in our Courts. In that case the theory of gift by husband was put up by wife. After reviewing the case law the learned Judge summed up his own view at page 867. "If, therefore, the consideration flowed from the plaintiff and the expenses of reconstruction was incurred by him, the case of the defendant as set out in her pleadings that all this was done with her money and for that reason she . was the owner of this property must be negatived. The question which then remains tb be considered is whether in taking the sale-deed in favour of the defendant, the plaintiff had intended her to be the sole owner of the property. It has been laid down by a series of decisions of the Privy Council that the principle of advancement which. applies to such cases in England does no apply to this-sub-continent. The learned Judge relied upon the following passage from the judgment of Privy Council case :- "A purchase in India by a native of India of property in India in the name of his wife unexplained by other proved or admitted facts is to be regarded as a Benami transaction by which the beneficial interest in the property is in the husband although the ostensible title is in the wife. The rule of the law of England that such a purchase by a husband in England is to be assumed to be a purchase for the advancement of the wife does not apply in India."

30. It is now settled law that the doctrine of advancement is not the rule of decision in the Courts of India or Pakistan. The cases referred to above stand on a higher footing than the claim of the plaintiff because she is claiming a right through a gift by persons who were remote relations.

31. The above discussion would leave no room for doubt that even in cases of transfer by husband to his wife and by father to children there i no presumption of absolute transfer. That even in such cases a resulting trust would, be created and the transferee would be deemed to be holding the property as Benamidars and not a donee. . Her claim falls far beyond the range of purview of the doctrine of advancement and without positive and convincing proof is not at all tenable. Issues No. 8 & 10

32. Admittedly the plaintiffs Nos. 1 to 7 are the sons and daughters and No. 8 is the wife of Ghulam Hussain Maneck Dhanji who is now dead. They are claiming the property of the Ghulam Hussain Maneck Dhanji as 0 his legal heirs and successors. There is nothing before me which has disentitled the plaintiffs from claiming the property of their father in the hands of Benamidars. In 1946 Mad. 248 page 249 (F. B.) the claim of Benamidars was examined exactly in a similar situation. The property was purchased in the lifetime of the head of the family in the name of Bena midar and was claimed by the heirs after his death. The suit was decreed in favour of the plaintiffs. I hold that plaintiffs are entitled to get their shares P in the subject-matter of the decretal amount proportionate to their shares according to the law of inheritance applicable to their case. Issue No. 3

33. Mr. Suhail Muzaffar, learned counsel for the defendant No. 1 argued that the suit is time-barred and merits dismissal. He did not rely on any article of the Limitation Act but made a general submission that it being a suit for accounts the period of limitation prescribed by the Limitation Act would be three years. Perhaps he had Article 109 of the Limitation Act in mind because this is the article which mentions about profits of immovable property and the period prescribed for filing a suit for accounts and recovery of the profits. The other Articles nearest to the situation from the defendant's point of view is article 62 which is as follows :-- "Article 62 :- For money payable by the Three years When the money defendant to the plaintiff is received." for money received by the defendant for the plaintiff's use. The learned counsel for the plaintiffs relied upon section 10 of the Limitation Act which is as follows :- "

10. Notwithstanding anything hereinbefore contained, no suit against a person in whom property has become vested in trust for any specific purpose or against his legal representatives or assigns (not being assigns for valuable consideration), for the purpose of following in his or their hands such property, or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time."

34. In my humble view this section contemplates cases of express trust created for "any. specific purposes". No doubt a benami transaction through having a statutory recognition by sections 81 and 82 of the Trust Act, creates t a resulting Trust by implication. It is not a Trust in the real sense. Section 2 clause (11) of the Trust Act excludes a Benamidar from the definition of a Trustee. I cannot, therefore, agree with the submissions of Mr. Zafar Ahmed that plaintiff case is covered by section 10 and there is no period of limitation prescribed in the suit against Benamidars because the Benamidar holds the property in trust for the real owners.

35. The question, therefore, arises which articles of the Limitations Act will apply to such actions. There was a conflict of autharity on this issue. The Allahabad High Court and earlier decisions of the Madras High Court have applied Article

162. But the later view is that the, residuary Article 120 is applicable. Mr. Zafar Ahmed has relied on a case decided by a Full Bench of the Madras High Court holding that a suit against a Benamidars for the recovery of the sale-proceed of the property from the Benamidars and for accounts is governed by Article 120 of the Limitation Act. In this Full Bench case two cases of the same High Court in which Article 62 was made appli cable came up before the Full Bench and were overruled. The facts of the Full Bench case reported in 1946 Mad. page 248 are these :-

36. On 29th September, 1933 one Kandasawami Thevar, father of the plaintiff in that suit, conveyed immovable property to the defendant Benamt dar. On 25th January, 1937 the defendants sold the property to one Arunachalam Pillai for Rs.

750. On 30th December, 1938, Kandasawami Thevar died. On 5th October, 1942, the suit for recovery of Rs. 750 was filed by the plaintiff against the Benamidar. The District Munsif who tried the suit held that the defendant was a Benamidar for the father of the plaintiff and the suit was not time-barred as Article 120 of the Limitation Act was applicable. First appeal filed by the defendant against the judgment of the Munsif was dismissed. In second appeal before the High Court it was argued that on the authority of the two cases decided by that Court Article 62 and not Article 120 should have been applied to the case and the suit ought to have been dismissed. Finding a conflict of opinion on this point a Full Bench was constituted to finally examine the position and resolve the controversy. After examining the cases decided by that Court and relying on leading cases decided by the Privy Council the Full Bench hold that ` the proper article to be applied in such matters was Article 120 and not Article

62. It would be profitable to reproduce the relevant part. of the judgment of the Full Bench at page 249 column No. 2 :- "In 30 Mad. 298 another Division Bench held that the period of limita tion for an action by the real owner against a Benamidar to recover money received by the latter for the use of the former was that pres cribed in Article F

2. The Court followed the decision in 21 Mad.

373. The decision in 1915 M. W. N. 215 was to the same effect but here the later case in 30 Mad. 298 was relied on the unreported case is S. A. No. 1569 of 1901 in which Benson and Bhashyam Ayyangar, J1. held that in such a case the appropriate article was Art.

120. There defendant 1 held a mortgage and a revision in a lease as the Benamidar of the plaintiff's father. It was pointed out that by reason of section 95, Trust Act, he was bound to perform the same duties and was subject to the same liabilities as if he ware a trustee of the property for the plain tiff's father. Therefore, Article 62 did not apply and the case fell within the residuary article, Art. 120. 1n 8 Rang. 645 the Privy Council held that the Benamidar is not an express trustee, put he occupies a fiduciary position. In 46 I. A. 1: 46 Ca. 566 the Judicial Committee said that the Benamidar represents the real owner and that so far as the relative legal positions or concerned the Benamidar is a trustee for the real owner. 8 Rang 645 related to a suit for an account of moneys in the hands of Benamidars. The question was whether it had been brought ip time. Their Lordships expressly held that Art. 62 did not apply to an equitable claim against a trustee liable to account for an account and ascertainment of what might be due. In such a case the period-of limitation was governed by Art.

120. Therefore, it is now settled law that Art. 62 cannot be applied where the claim is on as equitable basis."

37. I am Respectful agreement with the findings of their Lordships of the Full Bench Madras High Court and the reasonings of their Lordships of the Privy Council in the cases relied upon in the Full Bench case. The facts of that, case bear close resemblance with the facts of the case before me. And I have no hesitation to hold that Article 120 should be applied to the present case. Now the question remains as from which point of time this period or six years prescribed in Article 120 should begin to run. It is better to quote Article 120 so that the point is properly grasped:- "Suit for which no period Six years When the right to sue of limitation is provided accrues." otherwise in the schedule. Now the expression "right to sue accrues" has been explained by Privy Council in the case of Mat. Bolo v. Mst. Koklan (AIR 1930 PC 270). At page 272 Sir Vinod Mittar, J. who wrote the judgment observed "There can be no "right to sue" until there is an accrual of the right asserted in the suit and its infringement or at least clear and unequivo cal threat to infringe that right by the defendant against whom the suit is instituted." In the present case it is evident that the defendant continued to furnish the accounts of the cinema till about 1958. Since then record does not indicate that the accounts were submitted or any profits earned and/or remitted by the defendant No. 1 to the plaintiff. There is no assertion either that the defendant denied the plaintiff's right or set up her own title in any manner. According to the plaint the cause of action arose, "on or about October, 1967 when the defendant No. 1 contracted to sell out of 10 % share standing in her name in the business and properties of the said firm for a sum of Rs. 2,20,

000. The suit was filed on the 6th November, 1967. It would be well within time. But even if the objection regarding the limitation is stretched to its maximum limits and the starting point for limitation is taken to be the first denial of title of the plaintiff by defendant No. 1 which occurred some times in 1962 the suit would still be within time. Although there is no such plea raised by the defendant and no particulars of any such denial are furnished by her. All that I have before me is the statement of D. W. 1 Abdullah Pir Muhammad in which he has casually mentioned that plaintiff Noor Ali and Jeeno Bai were in Karachi in 1962 and had moved the Martial Law Authorities against us. We were summoned by the Martial Law Authori ties and were showed our documents and title to them after which the pro ceedings were dropped. Even if I take the year 1962 as the starting point for which there is very little justification still the suit has been filed before the expiry of six years. Mr. Suhail Muzaffar; learned counsel for the defendant No. 1, also argued that there were ]aches on the part of the plaintiff and they have woke up to assert their rights long after the death of Wali Muhammad Dhanji who died in 1961. In the first place if the period of limitation i prescribed by a statute for enforcing a right and the plaintiff proceeds to seek his remedy within that period there is no rule to deny that relief if he has otherwise entitled to enforce his right. Secondly in the circumstances of the case it cannot be said that -the delay in claiming the right was on account of any waiver or acquiscence or even on account of any negligence. The family belongs to India and had heavy stakes in concealing their involvement in Pakistan. It is admitted position on the record that all the plaintiffs bad not,' acquired Pakistani Nationality till as late as 1968. As a matter of fact issue No. 1 was framed to examine the maintainability of the suit in view of the, plaintiffs Nos. 5, 6 and 8 still retaining the Indian Nationality when the suit was filed. Kasim Ali plaintiff No. 2 at page 6 of his statement has deposed that "all the plaintiffs were given Pakistani Nationality in 1968." This satisfactorily explains the delay in filing the suit.

38. As a result of the discussion above I decree the suit of the plaintiff against defendant No. 1 for sum of Rs. 2,20,000 and the plaintiffs are entitled to recover this amount from defendant No.

1. I also pass a preliminary decree for accounts as prayed in para. 25 of the plaint. The defendant No. 1 shall R render accounts of all the profits and earnings and pay the amount which may be found due to the plaintiffs in view of my findings on issues Nos. 5 and

9. Issue No. 11 is also answered in the negative. Before parting with the case I may again mention that the remaining issues were not pressed during the arguments. Suit decreed as prayed. M Y H - - Suit decreed.