P L D 1952 Lahore 533 (PLP)

RAHMAN, J.‑This order will dispose of two Regular Second Appeals Nos. 15 and 38 of 1951. They have arisen out of a suit brought by Mr. M. J. McGrath against his wife, Mrs. M. K. McGrath, for a declaration to the effect that the sum of Rs. 30,000 lying in fixed deposit under two receipts with the Lloyds Bank Ltd., Lahore, and a sum of Rs.6,000 odd lying in the Savings Bank Account with the same Bank, were the property of the plaintiff and not of the defendant though they stood in the latter's name It was alleged that the defendant was only a benamidar and was holding the moneys on trust for the plaintiff. Along with the declaration the plaintiff asked for a permanent injunction by way of consequential relief, restraining the defendant from withdrawing, receiving or trans ferring those amounts or any part thereof to anyone. else. Originally in the suit, relief was also claimed in respect of some Post Office Cash Certificates of the value of Rs. 1,000 and some Government of India Bearer Prize Bonds of the value of Rs. 500, but that claim was later given up. The suit was resisted by the defendant on the ground that the moneys in question belonged to the defendant personally and the plaintiff had no concern with them. In the original written statement, dated the 13th of March 1948, this was the position adopted. The parties gave statements before the issues in the case were framed, in order to clarify their positions. On the 9th of April 1948, the plaintiff explained that he had been married to the defendant in 1930 after she had obtained a divorce from her first husband by a regular petition and that they had lived together till February 1948, when there was a rift between the spouses and they separated. The plaintiff was an Honorary Assistant Mechanical Engineer and Locomotive Foreman in the Loco Shops, N.‑W. R., Lahore, drawing a salary at the rate of Rs. 700 per mensem. He retired from service in 1938 but was re‑employed at Rs. 400 p. m. in 1941 and continued to work till 1945. He stated that the amount of Rs. 20,000, was deposited by him in the Bank in the year 1944 in the name of his wife and prior to that, it stood in the joint names of the parties. Originally it was on the 28th of August 1935, that he had deposited Rs 10,000 in the name of the defendant in fixed deposit. He had received Rs. 10,500 as gratuity on his retire ment in the year 1938 and out of this sum, Rs, 10,000 went into Fixed Deposit in the wife's name, thus making up a total investment of Rs. 30,

000. He had been putting in various sums from time to time in the wife's name in the Bank. He had started making deposits in her name from 1927 although the parties were not yet married. The wife in her statement alleged that she had sold her jewellery worth about ten thousand, after she had been divorced by her former husband, that she got costs and alimony at the rate of Rs. 150 per men sem, that she opened account in the Post Office in 1927 and that after about eight or nine years, when the amount came to Rs. 10,000, she converted it into a Fixed Deposit in the Lloyds Bank at Lahore. She also made money by selling roses and rose fertilisers. She did some business of selling clothes and other sundry things in addition. In or about 1940, she had saved up Rs. 20,000 for which she obtained two receipts of Rs. 10,000 each, in the Fixed Deposit Account. The sale of the jewellery came later and fetched about Rs. 10,

000. She alleged that she had been turned out of the house by her husband in February 1948 and ever since then she was living apart from him. On these pleadings the following issues were framed by the trial Court :‑ (1) Cannot the doctrine of benamidar apply to the parties? (2) Do the amounts in dispute belong to the plaintiff and defendant is merely a benamidar for him? (3) Is plaintiff the real purchaser of the Cash Certificates and Prize Bonds in dispute and defendant only a benamidar for him? (4) Is plaintiff entitled to the permanent injunction prayed for? (5) Is the defendant entitled to special costs under sec tion 35‑A, C. P.C., and if so, to how much? The evidence of one witness on behalf of the plaintiff was recorded on the 17th of July 1948, and that of another witness, Muhammad Nazar, started on the 20th of August 1948. The case was adjourned as Muhammad Nazar had not brought the relevant documents from the Co‑operative Credit Society, N.‑W. R., which had been summoned. It was on that day that the defendant applied for permission to amend her written statement under Order VI, rule 17, Civil Procedure Code. She pleaded that by inadvertance she had not taken the alternative defence that even if it be found that the whole or a part of the amounts involved, originally proceeded from or belonged to the plaintiff, they had been deposited or invested solely for the wife's benefit and were in the nature of a settlement or gift. By order, dated the 18th of November 1948, the application was allowed on condition that the defendant paid Rs. 50 as costs to the plaintiff. An amended written statement was then put in but it was found to contain certain unauthorised alterations as compared with the previous position and a proper amended written statement was put in on the 25th of November 1948. Costs had been received by the plaintiff in the presence of his counsel, on the 24th of November 1948, the date of the previous hearing. The parties then concluded their evidence and the learned trial Civil judge held eventually that except for the gratuity money of Rs. 10,000 which he held to be an outright gift to the wife, the rest of the moneys belonged to the plaintiff and he decreed his suit to the extent. Out of the Savings Bank Account which contained, according to the plaintiff, Rs. 6,000 odd, the defendant had withdrawn, without the knowledge of the plaintiff, prior to the date of the institution of the suit, Rs. 5,000 and invested them in the purchase of National Savings Certificates, on the 12th of February 1947. The defendant led evidence to suggest that she had sold these certificates to Mr. P. K. Paymaster (P. W. 1) soon after. This story of gale was not believed by the trial Court and the certificates which were produced in Court were held to be the property of the plaintiff. She had further withdrawn Rs. 1,100 from that account, having practically no blame but what she did with this money was not brought out in the evidence. On appeal, the learned District Judge, Lahore, agreed with the findings of the trial Court generally but pointed out that the trial Court had wrongly dismissed the suit as regards the Rs. 10,000 pertaining to receipt No. 25900 because the finding was that only the gratuity money belonged to the defendant under a gift. That gratuity money was part of the Rs. 20,000 lying in the Bank under another receipt and had nothing to do with the above receipt No. 25900. He, therefore, made a modification accordingly in the decree and to that extent he allowed the appeal of the wife. The husband's appeal was dismissed. Both parties have come up in second appeal to this Court. In the husband's appeal, the main point taken is that the sum of Rs. 10,000, which came out of the gratuity money of the plaintiff, was not really a gift to the defendant and that this should have also been included in the decree. Another contention raised is that the amendment of the written statement allowed by the trial Court was illegal and that the alternative case should not have been permitted to be set up or considered. In the wife's appeal, the finding that the money with regard to the other accounts proceeded from the plaintiff, is assailed as incorrect and it is argued that in any case, even if the source of those moneys was the plaintiff, they were intended as an advancement to the wife. It is also contended that no relief would have been granted to the plaintiff in respect of the National Certificates worth Rs. 5,000 purchased by the defendant out of the money in the Savings Bank Account because that had not been expressly asked for in the plaint. Before taking up the appeals on the merits, it seems neces sary to dear the ground by disposing of the contention raised by Mr. Norman Edmunds on behalf of the husband that the amendment of the written statement of the defendant allowed by the trial Court, was not valid or proper. It is clear, how ever, that the husband accepted the costs awarded against the defendant, before the amended written statement was put in. It does not now lie in his mouth to turn round and say that the amendment was not in order. A party which adopted an order of the Court and acts under it; cannot after enjoying a benefit under the order, contend that it is valid for one purpose and invalid for another. This is a well‑settled principle borne out by authority. Reference maybe made in this connection to Sodhi Lal Singh v. Firm Lala Bihari Lal Lakshari Mal A I R 1937 Lah. F95 Ghulam Qadir v. Mst. Fateh Bano A I R 1934 Lah. 974 and Sohan Lal v. Dhari Mal Ishar Das A I R 1928 Lah. 813 (2). Mr. Edmunds tried to draw a distinction between cases where the costs awarded against a party were taxed by the Court and the other party either sued out execution for realisation of those costs or received them out of a deposit in Court and those cases in which payment was made direct in Court by one party to the other. I do not think this involves any distinction of principle. The deciding factor seems to be whether the costs were received by the party concerned unconditionally and without protest or not. It would be a different matter if the costs were accepted under protest or a counsel acting on behalf of the party without express authority on his own initiative, receives such costs. A case in point is reported as Federal India Assurance Co, Ltd. v. Anandrao Pandurangrao Dixit A I R 1944 Nag.

161. In that case an ex parte decree was set aside on condition of payment of costs by the defendant. The plaintiff's counsel, however, was not authorised to accept the costs so as to conclude the plaintiff company's right of filing an application for revision. It was held that unless a conscious decision to abandon the plaintiff's right of going up in revision had been taken by the counsel after a full comprehension of all the facts, the mechanical act of his receiving costs would not preclude the plaintiff from resorting to the legal remedy available to him. It appears that in that case the entire costs awarded had not been paid by the defendant before the revision application by the plaintiff was filed. Again, Mani Lal Guzrati v. Harendra Lal Roy Chowdhury 8 I C 79 (P B) deals with a case where the party concerned accepted the costs under protest and, therefore, that party was held to he not debarred from challenging the order in question Seth Kunj Lai v. Shankar A I R 1943 Nag. 492 is another case which illustrates the same principle. These cases are clearly distinguishable from the present case, and facts. It is, there fore, too late in the day for Mr. Norman Edmunds to urge that the defendant should not have been allowed to raise in alternative defence to the suit by amending the written state ment. Mr. Norman Edmunds concedes that there was not enough material on the file of this case to justify the application of the doctrine of benami. In the Courts below, it appear, to have been common ground between the parties that the rules of English Law would govern the case. Mr. Edmunds made a feeble attempt to argue before me that the English doctrine of advancement could not be invoked by the defendant as the parties were not of English descent and the plaintiff had been residing in India from infancy and therefore may be presumed to have acquired the habits and customs of the residents this sub‑continent. The plaintiff, however, admittedly has non -Asiatic domicile. His counsel describes him to be an Irishman. The defendant is said to be a Chaldean who had met her first husband in Iraq and had then come with him to Karachi. It has not been shown to me that residents of Ireland are nor governed by the rules of English common law. Presumably. therefore, the rules of English Law must be deemed to be the personal law of the plaintiff unless he establishes the contrary. There mere fact that the doctrine of advancement does not apply in India, as was held by the Privy Council in Lakshmiah v. Kothandarama A I R 1925 P C 181, would not advance the case for the plaintiff to any material extent. Some other authorities on the same point were cited by Mr. Edmunds in support of his contention that the technical rule of advance ment which is part of the English Law, was not applicable when the parties were residents of the Indo‑Pak sub‑continent. There appear to me to have no bearing on the present case. In Kerwick v. Kerwick I L R (1921) 48 Cal. 260 the Privy Council laid down that the principles and rules of law which would be applicable to the case if it were trial in a Chancery Court in England were applicable to it when the case between a husband and a wife who were born in India, of English parents, and who had resided in India all their lives except for occasional visits to England, was tried in Rangoon. There would be a‑presumption of an intended advancement if the husband purchased land in the name of the wife but it may be rebutted. I agree with the Courts below, therefore, that this case had to be decided in the light of the principles of English Law. As indicated in Kerwick v. Kerwick I L R (1921) 48 Cal. 260, discussed above, the position under English Law is well- settled. When a person invests money or purchases property in the name of his wife or children an initial presumption of advancement arises but it can be rebutted by contemporaneous evidence suggesting a different motive for the person's conduct. Reference may be made in this connection to paragraph 1057 at page 663 of Halsbury's Laws of England, Second Edition Volume XVI. A similar presumption would be ligitimate even where the purchase or investment is made by the husband in the joint names of the husband and the wife. Money deposit ed in Bank comes within the ambit of this rule which would aptly even if the wife is ignorant of such deposit. Mr. Edmunds drew my attention to paragraph 1001 at page 630 of the same Volume which is to the effect that where husband and wife are living together, any savings by her from the proceeds of his business, or from an allowance by him for housekeeping expenses, dress, or the like, belong to the husband, though they may be invested in the name of the wife, unless it appears that he intended that any such savings should belong to her as her separate property as a gift from him. This seems to be a specific exception to the general rule, applying to a housekeeping allowance Mr. Edmunds also cited some English rulings in this connection It is unnecessary to discuss them at length. Reference may be made, inter alia, to Re Gadbury 32 Equity 780 ; Devoy v. Devoy 65 E R 713 ; Hoyes v. Kindersley 65 E R 362 ; Marshal v. Crutiwell 20 Equity 328 ; Walter v. Hodge 36 E R 549 ; Mews v. Mews 51 E R 643 ; Valier v. Wright and Bull (Limited) 33 T L R 366 and Bone v. Pollard 53 E R 367 ; Mr. Yaqub Ali Khan for the defendant also relied on certain English rulings such as Standing v, Bowring (1886) 31 Ch 282; Sterling v. Vaughan 2 E R 619 ; Sidmouth v. Sidmouth 50 R R 235 ; Jeans v. Cooke 116 R R 202, and Gazcoigne v. Gazcoigna (1918) 1 K R 22? The principle that emerges from a consideration of these authorities is that it depends on the circum stances of each case whether the initial presumption of advancement in favour of the wife should be held to have h been rebutted by evidence or not. The manifestation of a contrary intention, namely, that the wife or the child should take merely as a trustee, has to be established by contem poraneous acts and deeds of the persons concerned. No exception can be taken to this statement of the law. The lower Courts have in fact acted on this principle to adjudicate on the conflicting claims of the parties. Another matter which requires to be clarified at this stage concerns the contention raised on behalf of the wife that she could claim all the moneys including the gratuity amount, by way of advancement, even though it had not been expressly pleaded by her that any amount besides the gratuity money had been gifted to her. The defendant as her own witness stated categorically that there was only one gift made by the husband to her, namely, a sum of Rs. 10,000 out of the gratuity money, and all the rest of the moneys belonged to herself alone, with which the plaintiff had no concern whatsoever. In the face of this statement, it seems to me that Mr. Yaqub Ali Khan cannot now make out a case against her own plead ings or her own evidence. It is true that the defendant found herself on the horns of a dilemma. She could take up the position that the source of all the moneys was her own separate earnings, or she could claim that though the source of the money was the husband, there was a presumption of advancement in her favour by the fact that they were deposit ed in her name, but she could not obviously choose the former course and then claim that in spite of her having taken up a definite position in her evidence, the case should be decreed on the alternative ground. In this connection, Mr. Yaqub Ali Khan argued that a gift by the husband to the wife may be complete, although the donee may be unaware of the gift having been made and that the only way in which the donor could divest himself of the property gifted would be to make an express dissent. In this connection he referred to Standing v. Bowring (1886) 31 Ch. 282 and Sterling v. Waughan 2 E R 619 (623). These authorities lend no assistance to the argument of the learned counsel because in the present case, even if there was an initial presumption of advancement in her favour that must be held to have been rebutted by her own statement which must be construed as her express refusal to take the moneys in question as a gift. I am, therefore, firmly of the opinion that except for the gratuity amount of Rs. 10,000, the wife cannot be heard to say that the rest of the moneys had become her property by way of advancement or gift. Leaving aside 'the gratuity money for the present, I would address myself to the question whether the husband had proved that the other moneys had been provided by him from his income. Even if the other deposits represented savings from the amounts allowed to the wife for household expenses they would in law be deemed to be the property of the husband. In this connection the Courts below have considered the sources of the income open to the parties and their circumstances right from the start, upto the time when they separated. The question of the source of the money is really second appeal. The Courts below have concurrently held that the source of these moneys was the husband. It is con tended on behalf of the wife that this finding of fact is vitiated by the failure of the Courts below to advert to the fact that the onus of proving the source of money was on the plaintiff and that certain circumstances arising in the evidence had been ignored. I have been taken through the whole evidence on the file, which is fairly voluminous in character. The learned District Judge has taken into account the fact that the onus lay on the husband to establish that he was the source of all these moneys. Nevertheless, he has agreed with the finding given by the trial Court on this point. Certain circumstances have not been explicitly mentioned in the judgments of the Courts below to which my attention has been drawn by the learned counsel. For instance, Mr. Yaqub Ali Khan argued on the basis of the Bank account of the parties on the file that there was no clear evidence to show that any moneys had been taken out of the Banking account of the plaintiff and deposited into the defendant's account. I find, however, that the Banking accounts have been taken into consideration by the trial Court and the question of withdrawals and deposits has also received attention. It is true that none of the parties produced Bank documents to show that it was the husband or the wife who started the first account in Karachi or Sibbi from where the money was transferred to Lahore. It has been found, however, that the wife's alleged sources of income were highly exaggerated and that in fact she could not have obtained all this money from her private resources. Her first husband was certainly in no circumstances to have left her with any sizable income or property. The story of her sundry businesses giving her substantial income had also been adversely commented up by the Courts below and to my mind with justification. The defendant has been changing her position from time to time. There was a vague allegation made by the wife that some of the deposits in the Banking accounts which were considerable sums, represented bribe money taken by the husband and divided with the wife. For the first time she took up this position from the witness box. The allegations were vague and unsupported by any other 'evidence. On the contrary the plaintiff started with a subs tantial amount of savings when he married the defendant. The plaintiff was described by the trial Court as a reliable and truthful person, whereas the defendant had, according to the learned Civil judge, proved herself to be a demonstrably untruthful person. The account given by the plaintiff as to how the moneys accumulated was, therefore, preferred to that of the defendant. With this finding I do not see much ground to differ. It was in July or August, 1932, that the plaintiff was transferred from Karachi to Lahore. The account standing in the defendant's name in the Imperial Bank, Karachi (certified copy Exh. D. W. 3/1) was transferred soon after, to the Imperial Bank, Lahore, and showed a credit balance of Rs. 6,144/4/0. The amount was increased by further deposits and in August, 1935, Rs.10,000 were withdrawn from this account and placed in Fixed Deposit with the Co‑operative Credit Society North Western Railway, Lahore, in the name of the defendants. This deposit was being renewed till 1940. In that year it was placed in the joint name of the plaintiff and the defendant. It is in the evidence that the plaintiff was seriously ill in that year, that he even made a will in favour of the wife and by an arrangement between the spouses, practically the whole of the money standing in the names of the parties were placed in their joint names payable to either. This sum of Rs. 10,000 was also consequently put in the joint account of the husband and the wife. It retained this joint character till in April, 1943, the defendant cashed this receipt before it had matured without authority from the husband and put it in the Fixed Deposit with the Lloyds Bank Limited, in her own name. The second item of Rs. 20,000 is composite one and' it includes Rs. 10,000 of the gratuity money which the plaintiff had received on his retirement in 1938. At the same time he had received his provident fund of over Rs.60,

000. The gratuity money which he had got was Rs. 10,500, but out of it, Rs. 10,000 were deposited in the defendant's name in the Lloyds Bank Limited, Lahore. This deposit was renewed from time to time till 1940 when it was put in the joint names of the plaintiff and defendant in the Co‑operative Credit Society, North Western Railway, by way of Fixed Deposit. This receipt too the defendant cashed in April, 1943, without her husband's consent and she then transferred the amount to the Lloyds Bank Limited, Lahore, as a Fixed Deposit in her own name. The second part of the sum of Rs. 20,000 came out of a Savings Bank Account in the defendant's name with the Lloyds Bank Ltd., Lahore, vide Exh. P. W. 4/2. Rs. 10,000 were withdrawn from this account on the 12th February, 1944, and placed in Fixed Deposit in the defendant's name. This has continued to stand in the name of the defendant alone ever since then. It was out of the Savings Bank Account with the Lloyds Bank Limited, Lahore, that the plaintiff claimed Rs. 6,000 odd at the time the suit was brought. It appears, however, that the defendant had withdrawn most of the moneys from this account and the balance on the 22nd April, 1948, was seduced to Rs. 44‑11‑3 only. As has been mentioned above, a sum of Rs. 5,000 out of this account had been spent on tire purchase of National Savings Certificates, Exh. v. W. 1/1 to D. W. 1/6, which were allowed to have been sold by the defendant to Mr. Paymaster (P. W. 1). The plaintiff had some Rs. 20,000 in the joint names of himself and of his first wife and after she was divorced by him, the amount was transferred to his individual account. He had also purchased Treasury Bonds of the value of Rs. 10,000 before marrying the defendant. He drew a respectable salary besides. He had thus a starting point for making further savings. On the other hand the source of the income men tioned by the defendant is costs and alimony received from her first husband, her jewellery, her trade in rose fertilizers, roses; clothes and sundries which were grossly exaggerated and she was clearly proved to have perjured herself in respect of most if not all these items. The other evidence which she had produced in that connection did not materially advance her case. After going through the whole evidence, I am inclined to accept the finding arrived at by the Court below that the source of these moneys was the plaintiff. rather than the defendant. I consider it unnecessary to reiterate the discussion of the evidence which finds extensive treatment in the judgment of the trial Court and the learned District judge has agreed with the conclusions reached by the trial Court in that respect. The story that the plaintiff had nothing to do with the accounts standing in the name of the defendant was clearly belied by the entries in the Bank account themselves showing that items had been. transferred from the defendant's account to the plaintiff's account and there was some direct evidence showing that deposits had been made by the plaintiff in the defendant's account. As the learned Civil judge has showed that in the year 1938 and 1940 when the plaintiff was out of employment heavy withdrawals are shown in the Savings Bank account standing in the defendant's name, vide Exh. P. W. 4/2. The husband explained that he had kept all these moneys in the wife's name in trust on his behalf and his idea was that they would be utilized in household expenses on his retirement. It is urged by Mr. Yaqub Ali Khan that this declaration was made only now, after the parties had fallen out and it could not be described as a contemporaneous declaration of intention which could displace the presumption of advancement arising out of the deposit in the defendant's name, but as I have said above, the question of advancement is cut away from the root, by the defendant's own statement except with regard to the gratuity money. The argument is, therefore, fallacious and cannot be maintained on the facts of this case. The plaintiff explained that the conduct of the wife in breaking the two Fixed Deposit receipts of Rs. 10,000 each, in 1943, was not authorised by him and when he discovered the fact he reprimanded her but she coaxed him into in action by assuring him that she would not touch the money during his lifetime. Considering the history of the relations between the parties this explanation appears to be acceptable. It is significant that in the current account in .the defendant's name with the Lloyds Bank Limited, Lahore, the plaintiff admittedly made a deposit of Rs. 500 .on the 1st December, 1938, again one of Rs. 470 on the 16th December, 1938 and of 'Rs. 335 on the 17th June, 1939. Exh. P. W. 4/1 is a copy of the Savings Bank Account with the Lloyds Bank Limited, Lahore, in the plaintiff's name. A study of this account reveals that in March and April, 1938, sums of Rs. 1,000 and Rs. 2,000 respectively were received on transfer from the account of the defendant. For this the defendant could offer no satisfactory explanation. On the 6th April, 1938, further, there was a transfer to current account of the wife, of a sum of Rs. 1,232‑9‑9 from the Savings Bank Account of the plaintiff. This indicates that really the accounts were interchangeable. The plaintiff claimed that he had retained dominion over all these accounts and specially, the Fixed Deposit receipts so that he might utilize the interest accruing on these deposits from time to time as he thought fit. There is no clear docu mentary evidence on the file in support of the position of either party that it was the husband or the wife who controlled this interest. The plaintiff's case was that in 1943, the wife had surreptitiously removed two Fixed Deposit receipts which she cashed unauthorisedly and transferred to her own account with the Lloyeds Bank limited, Lahore. Otherwise he kept the pass books and the receipt in his own possession under lock and key. The receipts relating to Rs. 20,000 and Rs. 10,000 were actually in the possession of the plaintiff at the time of suit. The defendant's allegation was that he (plaintiff) had taken them from her box after he had turned her out of the house. Having regard to the general unreliability of the wife's statement, I am inclined to hold that the husband's statement ought to be accepted as correct. I, therefore, find that the husband had retained dominion over these accounts by keeping the relevant documents in his pos session. This aspect of the case was not considered in the Courts below. It is true that when the parties went to England for a year, on leave, they being granted free passage by Government, the interests of the Fixed Deposit receipts were credited respectively to the husband or the wife accord ing as they stood in the name of the one or the other and custody charges of these receipts were also debited to them by the Bank in their individual accounts. The plaintiffs, however, stated that this was because he did not want any difficulty to be encountered by the wife in case he died. The explanation is not unreasonable. After considering the circumstances to which my attention was pointedly drawn by the learned counsel, I am unable to hold that the finding of fact as to the source of money being the plaintiff arrived at by the Courts below is liable to be disturbed in this case. I would, therefore, accept the finding as correct. This concludes the wife's appeal, which was in respect of moneys besides the gratuity amount. The source being the husband and there being no question of gift in her favour of these moneys, her claim to retain them is clearly untenable. It was also contended on her behalf that the plaintiff's claim with regard to the National Savings Certificate should not have been decreed as that relief was not expressly asked for in the plaint. In order, however, to avoid multipli city of litigation between the parties, I see no harm in declar ing that these certificates also represent a part of the account of Rs. 6,000 standing in the defendant's name, which really belonged to the plaintiff. The story that these certificates had been sold to Mr. Paymaster (P. W. 1) was clearly false. Mr. Paymaster (P. W. 1) was proved not to have been in a position to purchase them and in fact he contradicted the defendant by saying that they were merely pledged with him, without any other document being executed. Mr. Paymaster (P. W. 1) is no party to these proceedings and, therefore, the finding may not bind him, but so far as the plaintiff and the defendant are concerned, I do not see that the order passed by the Courts below requires interference. The defendant's appeal is, therefore, dismissed. This brings me to the husband's appeal with regard to the gratuity money. As has been discussed above, I believe the husband when he says that he retained dominion over all the accounts in the wife's name by retaining the relevant docu ments including the Fixed Deposit receipts in his own posses sion. The plea that there was an antenuptial arrangement bet ween the spouses providing for a gift of Rs. 10,000 out of the gratuity money when received, by the husband to the wife, oral testimony of the defendant and there is no documentary evidence in support of that allegation and indeed Mr. Yaqub Ali Khan on behalf of the defendant‑respondent did not adhere to that position before me. He tried to make out that there may have been an oral promise for the payment of this money to the wife before their marriage, but that he really wanted to take his stand on the assertion that there was an advancement in favour of the wife by deposit of a sum of Rs. 10,000 out of the gratuity money in the name of the wife in 1938. In this connection, the fact cannot be lost sight of, that initially there was no plea of advancement or gift taken on behalf of the wife at all. It was only after evidence had started, that an attempt was made to raise this plea by an amendment of the written statement. The mere fact that the wife definitely took up a plea of advancement of gift in respect of this item should not be conclusive. All the circumstances of the case have to be taken into considera tion, and I am of the opinion that though there was an initial presumption of gift in respect of this item of Rs. 10,000, yet that ought to beheld as rebutted by the circumstances brought on the file. The plaintiff stated that he deposited this money in the name of the wife so that it may become handy when he retired for household expenses, etc. Considering that he had allowed so much money in the other accounts to stand in the name of the wife, although it belonged to him, this explanation was not without force. The belated attempt on the part of the wife to set up a gift of this item was, in my opinion, motivated merely by the discovery that this item could very easily be demonstrated to have come from the husband. It was, in my opinion, an after‑thought and did not merit serious consideration. The plea is somewhat disingen uous and should not have been accepted on its face value unless circumstances were clearly in favour of its acceptance. I find that the circumstances all point to the contrary. The crucial factor is the dominion over the relevant fixed deposit receipt retained by the husband and to this circumstance scant attention appears to have been paid by the Courts below. In this ‑respect I believe the husband rather than the wife. I, therefore, allow the plaintiff's appeal and direct that the sum of Rs. 10,000 representing gratuity money should also be included in the declaration and injunction therefore granted to the husband. The parties being husband and wife, and the wife not having any independent source of income. I do not wish to burden her with the costs of these appeals. In the circumstances of the case, both the parties will, therefore, bear their own costs in this Court. A. H. Order accordingly.