P L D 1960 (W (PLP)

12. Apart from the fact that I find it extremely difficult to believe that the defendant sent for her mother's sister from Delhi and that she brought this sum of Rs. 3,C00, it appears to me even otherwise that this story of the payment of Rs. 3,000 by the defendant as stated in the partnership deed is a myth. The reason for this advancement as given in the deed is that this was for the purpose of discharging loans of Rs. 3,000 borrowed by the plaintiff from two persons viz. Mr. Hingorani and 'Malik Sardar Ahmad. Mr. Hingorani has migrated to India but Malik Sardar Ahmed has been examined in this case as P. W. 2 and he has categorically stated that he advanced no such loan to the plaintiff. There is also the evidence of Ardeshar Dinshah who is the landlord of the shop premises, and he has stated that he had advanced Rs. 6,000 to Rs: 8,000 to the plaintiff in the year 1940 or 1941. He is a respectable old man of 73 years and so is Malik Sardar Ahmad. There is also the evidence of C. F. Minwala who has stated that he had given Rs. 12,000 to Rs. 15,000 to the plaintiff in the year 1940 or 1941 when the plaintiff had taken charge of the Bakery business in the premises in which his father used to do it. He had also bought him furniture for his shop. All this money was paid off within a year. He further stated that the plaintiff had got some contract for supplies to the army and that it was for this reason also that he had needed the money. I do not see any cogent reason why these witnesses should come forward and tell lies. That these two Parsi gentlemen should be willing to advance money to the plaintiff is perfectly understandable. This bakery was perhaps the oldest in Karachi and had been started by the grand‑father of the plaintiff as far back as 1865, and apart from the fact that Ardeshar was the landlord of the premises and had been responsible for bringing the plaintiff back to the old shop and that Minwala needed supplies for his hotel, they had also been the friends of the plaintiff's father, and would naturally be willing to‑help him in order to restore the old business. That this business had considerable reputation and had a place of honour in the estimation of the people of Karachi would appear from the pamphelt Exh. 27 published on the occasion of the Diamond Jubilee of this bakery. This pamphlet was produced by the defendant herself and was greatly relied upon by her. It must be remembered that this was an old ancestral business to which the plaintiff was bound to have a deep attachment and it was he who started this business all over again and it was he who was to slave in it and it seems extremely unlikely that he would give I of the profits of this business to the defendant for a paltry alleged con tribution of Rs. 3,

000. In fact I do not believe the story that the defendant advanced this sum of Rs. 3,000 by getting it from Delhi for the discharge of an alleged debt which itself was non‑existent. I reject this story for another reason also because it is at variance with the plea in the written‑statement to which I have referred earlier. If, therefore, the defendant did not advance this sum of Rs. 3,000 the very basis of her share in this business as shown in the partnership deed disappears and I must hold also that there was no consideration for this partnership.

13. Now let me briefly examine the story set up in para 20 of the written‑statement on this point to which I have already referred. The case put forward is that the defendant had spent a huge sum of her own money to help the plaintiff and his business during the period of about 16 years. Let us see what is the evidence in support of it. She has stated in her evidence that at the time when she got married to the plaintiff, she had cash and ornaments of the value of Rs. 25,

000. Of this she estimates the ornaments to be of the value of Rs. 7,000 and the cash amounting to Rs. 18,

000. When cross‑examined, she stated that she had made these Rs. 18,000 in Karachi during the 4 months of her stay. In the first place this story itself is note worthy of credit. Besides when she parted from the family and came to live in the house taken by the plaintiff, the normal thing for the mother of the defendant would be to retain with herself whatever had been earned. t is difficult to believe that an old prostitute like the mother o the defendant would let the defendant take with her the cash and ornaments particularly when she was going to leave the profession which would deprive the mother, of her source of income. Indeed this position was partially admitted in para. 18 of the written statement. This is what was said "She (the defendant) had her own ornaments and a cash and had a handsome income from her music. In 1923 she was possessed of about Rs. 20,000 cash and ornaments worth about Rs. 10,

000. The defendant accented plaintiff's proposal for marriage, gave her mother ornaments worth about Rs. 12,000 and Rs. 5,000 cash for safe deposit, sent her to Delhi and married the plaintiff on 7‑12‑1953." Neither of these two versions are worthy of acceptance and the only reasonable conclusion that can be reached in the circumstances would be that the defendant's mother went back to Delhi with whatever she and the defendant had and the defendant turned a new leaf and got married to the plaintiff. I, therefore, do not accept the version that the defendant had spent "a huge sum of her own money" to help the plaintiff and his business during the period of 16 years, which is alleged in the written‑statement as the reason for making the defendant a partner of 4 share in the business. There is an important admis sion in para. 20 of the written‑statement that in the year 1941 the business was flourishing. In view of this admission also, it is not possible to believe the alternative story of the contribution of Rs. 3,003.by the defendant for the discharge of the debt which is the consideration shown in the partnership deed.

14. The next question is why was this partnership deed made in which I share was shown to have been given to the defendant. The plaintiff's case is that this was to avoid the incidence of heavy taxation. Mr. Fakhruddin the learned counsel for the defendant has very vigorously challenged the correctness of this reason or excuse. But after having heard him and having considered the evidence and the circumstances, I have come to the conclusion that this was in all probability, the reason for the preparation and execution of this partnership deed. A perusal of the deed would show that the maker of it was at great pains to' make it appear that this was a real partnership business and not an artificial arrangement between a husband and wife for the purposes of using it before the Income‑tax authorities. Where was the need for fixing a salary of plaintiff at Rs. 150 p.m. ? Why should it be provided that in future capital investment will be made by the defendant. As I have shown she did not have capital to invest. And why was it necessary to show a contribution for the purpose of discharge of debt by the defendant an assertion which I have already found to be unacceptable ?

15. There is an important document on record which lends considerable support to the contention of the plaintiff that in the making of the partnership deed Exh. 10, the real intention of the plaintiff was to avoid heavy taxation by income‑tax. This docu ment is Exh. 23/1 and is dated 19‑6‑1941. This is an assessment order in respect of the bakery business which was taken over by the plaintiff from his step‑brother whose name was Ahmad Dada. This Ahmad Dada is shown as the proprietor of this concern in this assessment order. It appears from the order that in response to the final notice under section 22 (4) of the Income‑tax Act, it was Ismail the plaintiff, who acted as the agent of the assessee and informed the Income‑tax Officer that Ahmad Dada had died in December 1940, and that the business had been closed in November 1940. The Income‑tax Officer, however, passed an ex parte order of assessment. This order was passed on 19‑6‑1941 end it is reasonable to hold that the plaintiff was alive to the question of the income‑tax liability which his business would incur particularly when he began to do well. In fact he did try hard to avoid paying income‑tax as a proprietor of this concern, a conten tion which was finally disallowed by the Income‑tax Officer by his order dated 6‑5‑1946 Exh. 11, upon the finding that this was a proprietary concern of the plaintiff and the wife had been intro duced for the purposes of convenience. Assessment was accordingly made against the plaintiff as a proprietor on Rs. 25,000 for the assessment year 1945‑

46. Mr. Fakhruddin for the defendant contended that the existence of this partnership was acknowledged in several documents before and after the order of the Income‑tax Officer Exh. 11 and it was strenuously argued that if the purpose of this partnership deed was to avoid payment of income‑tax as a proprietor, where was the need to acknowledge the partnership after 6‑5‑46 which is the date of the order of the Income‑tax Officer whereby he had rejected the partnership. I shall now proceed to deal with this contention with reference to various documents to which my attention was drawn by the learned counsel.

16. The fist document which was strongly relied upon by Mr. Fakhruddin is Exh. 27 which is a pamphlet published on the occasion of the Diamond Jubilee of this bakery business which was observed in the year 1945. This pamphlet gives the short history of this business tracing it back from 1865. It narrates the various vicissitudes through which the plaintiff Ismail passed in his life and eulogises his qualities and recites the achievements of Ismail D. Adam Soomar & Co. and the popularity of this establishment is emphasized in various ways and it is said that the name of this establishment was a by‑word in every home. The evidence is that on the occasion of this celebration where important people had been invited, this pamphlet was read out by Mr. Abbasi who was an Editor of a paper and who had written it out. At page 3 of this pamphlet it is said that during his dark days when ismial had been left friendless and peniless he had the consolation that all was not lost because his faithful wife (defendant) who had enjoyed happiness was also there to share his sorrows ; that it was through her inspiration and encouragement that Ismail started life again and built up his business which was in ruins. Then comes the portion upon which the particular reliance was placed. It reads "Today the happiest person in Ismail's family is this noble lady, his wife who sees her husband once more on the height of fame and name. Mr. Ismail has not lacked behind in his loyalty to her. He has taken her as a partner in his Company of Ismail D. Adam Soomar & Co., giving her a major share of income by drawing a regular deed of partnership." It is argued that this statement contains an admission to the effect that the defendant had given the plaintiff her money besides her love and that she had been made a partner of the major share of the income. The version that the defendant gave her money to the plaintiff has already been rejected by me and with regard to the statement about her being a partner, it appears tome that the emphasis on the "drawing of a regular deed of partnership" suggests that the intention was to make the deed acceptable by the Income‑tax authorities. It must be remembered that this address was read out in 1945 and the question of the existence of partnership had not been decided by the income‑tax Officer until 6‑5‑1946. It may even be that when this address was written, it was expected that some of the income‑tax people might also be present at this gathering which consisted of distinguished people of Karachi. Otherwise I do not see the necessity of pleading the existence of a "regular partnership deed" in an address like this. In any case this statement must be weighed against the weight of other evidence and circumstances which go against the existence of the alleged partnership.

17. Reference is then made to various documents which were executed by the parties for the purpose of raising loans. Amongst these is Ex. 52 dated 31st May 1946 which was in con nection with the loan of Rs. 85,000 advanced by Joth Singh Tola Singh Adhwani and in connection with which, apart from the title deed of the Garden East property, other movable properties including household goods, furniture, and fittings etc. lying therein, the shop in question is also given as a security and it is des cribed as "our shop premises of Messrs Ismail D. Adam Soomar and Co,". This loan had been taken in order to meet the liabilities in connection with the construction of the bungalow named "Shorat Villa" and for furnishing it. This debt could not be discharged and in consequence of the partition of the country Joth Singh wanted to migrate to India and it was through his good offices that another loan of Rs. 60,000 was arranged . from the Mercantile Co‑operative Bank. This money was entirely used for paying up Joth Singh. The documents in this connection are Ex. 26 and Ex. 36 Ex. 36 is a letter signed by the defendant and addres sed to the Manager Mercantile Co‑operative Bank and stated that it was required for discharging the previous mortgage debt of Joth Singh. It is further said that the loan from Joth Singh had been taken for the purpose of the business which the defendant was carrying on in partnership with her husband in the name and style of Ismail D. Adam Soomar and Co. Ex. 26 is a guarantee signed by the plaintiff and Ardeshar for the repayment of this loan. Ex. 38 is a promissory note signed by the defendant for the said loan in favour of the Mercantile Co‑operative Bank. Ex. 39 is the letter signed by the defendant depositing the title deeds of the Garden East Property. Ex. 45 is an ward in favour of the Mercantile Co‑operative Bank against Messrs Ismail Dada Adam Soomar and Co. by their partners the plaintiff and the defendant for a sum of Rs. 5769‑13‑

3. It is dated 9th June, 1952. Then there is the letter dated 1‑5‑1950 Ex. 31 from the plaintiff to the defendant.

18. It is true that in Ex 52 dated 31st May, 1946 which is in connection with the loan of Rs. 85,000 from Joth Singh and in Ex. 36 which is the confirmatory letter in respect of the loan of Rs. 60,000 from the Mercantile Co‑operative Bank, it is said that these loans bad been incurred for the partner ship business but there is no evidence that in the year 1946, a sum of Rs. 85,000 or for that matter any sum at all was required for the business of partnership which was of Bakery and Confectionery. There is no proof that this alleged partnership did any other busi ness and considering that this business was doing so well, there would be no need for raising a loan for carrying on this business which in fact does not require much capital from its very nature. It is quite plain that this loan of Rs. 85,000 which is evidenced by Ex. 52 and for the repayment of which the other loan of Rs. 60,000 was taken from the Mercantile Co‑operative Bank had been in curred to meet the liabilities in connection with the purchase, re‑construction and furnishing etc. of the Garden East House. The plaintiff has produced some of the Hundies which he has executed earlier in connection with the loan for meeting the obligation in connection with the said expenses. It was contended by Mr. Fakbruddin that these Hundies are mostly of 1946 and that the building had been completed and furnished by the end of 1945. But the Plaintiff had said than these are not all the Hundies he had executed and he has further stated that he has secured loans by other means also and that the Hindus from whom the loans had been obtained had migrated. I accept this statement. It would not be necessary for the plaintiff to preserve all the Hundies and I have no doubt that the plaintiff did borrow large sums of money in connection with the building of the house and other like expenses. It has not teen proved that the‑plaintiff had any other business and no question was put to him in cross‑examination suggesting that he bad borrowed these moneys for the purpose of the partnership business. I, therefore, hold that this loan of Rs. 85,OC0 and the subsequent loan of Rs. 60,000 bad not been incurred for business purposes. The statement to that effect in these two documents is a normal expression used in such docu ments to show that these were commercial loans ; that the defen dant joined in these transactions and that there was reference to the partnership is perfectly understandable because a creditor does not want to leave a loop,‑hole for the escape of any property when the question of the satisfaction of his debt arises. Joth Singh who belonged to the office of Tola Singh & Co. and was actually the son of Tola Singh was fully aware of the existence of partner' snip deed which probably was drafted in his office. He also knew of the existence of the sale deed of the Garden East property in the name of the defendant. He would, therefore, naturally in clude both the plaintiff and the defendant in the documents of loan and take the security not only of the house but also of its furniture and the other belongings and the Bakery and con fectionery business. Once this was done, all the subsequent docu ments were bound to follow the same pattern. I, therefore, hold that these documents relating to the various loans and the repay ment thereof do not establish a partnership if the partnership deed‑ itself Ex. 10 had not been intended to be acted upon.

19. I then come to the Ex. 31 which is a letter from the plaintiff to the defendant written at 2‑30 a.m. on 1‑5‑1950. In order to understand the true import of this letter, it is necessary to go to the background against which it was written. The plaintiff and the defendant have both said that their first dispute in respect of property and partnership took place in 1949. It may be of interest to note that the relations of the defendant had come to Karachi after partition and were actually living with them in the Garden East Property named "Shorat Villa" and the P. I. B. colony house was purchased in 1950 so that they could shift there. Ex. 42 shows that this property was purchased op 13‑3‑1950 but there is evidence that this was altered and improved and therefore, it must have been after sometime that the relations of the defendant were shifted from the Garden East House to P. I. B. Colony. There is documentary evidence to show that the plaintiff was suspecting that the defendant was being encouraged by others to assert her right to the property and business. There is also evidence to show that the defendant had been informed that the plaintiff was intending to contract another marriage. It was after a quarrel that the plaintiff wrote this letter. It is clear that this was written in a moment of great anguish and under the impact of great agony which the plaintiff had felt because his love and good faith had been doubted by the plaintiff (sic) may be at the instigation of "Third party." The letter starts with these words "Dear Shori, With crying eyes and trembling hands, I write this letter. Dear, I did not even dream that you will do such harshness towards me . . . . . You got distrust towards me and because of distrust, harshness originated." The letter then goes on to say ‑‑"If you so desired you could have taken me by the ear. By informing a third party there will never be a benefit. Dear, you asked for partnership documents, I gave. You asked for receipts, I gave it to you. Now you have asked for accounts which also I have given to Masterji. Besides that all that will be useful to you in future, I send you with this letter. Queen, how fortunate I would have been if you had asked for all this with love . . . . . Dear you will be assured that whatsoever doubt you have on me will Inshalla prove to be wrong." After further similar protestations, the letter goes on to give details of the debts on the house and the shop. Then towards the concluding para. is written "God is everybody's protector. I am taking leave. I desire to die in love. Please forgive me. I can no longer show my face in the house or in the shop or amongst friends so I am taking leave." When the plaintiff wrote this letter, he had left residential house and after writing ‑ this letter he left Karachi and went away to Quetta or Lahore from where he returned after some time, but he did not come to stay with the defendant who having learnt of his presence in Karachi sent a lawyer's notice on 25th of June 1950. Ex.

28. In this notice the part nership deed of 29th April, 1242 is put forward and it is said that whereas the defendant had invested its. 3,000 the plaintiff had in vested Rs. 1,000 and that the defendant had got 3/4 share in the firm. It is further said "about the last week of May you abruptly in heat of temper left our client who apart from being a partner in the business, is your life partner and left the house as well as the business leaving neither any money nor books of accounts with our client". Then this letter speaks of other difficulties and in para 10 it is stated that the defendant does not want to carry on business with him (the plaintiff) any more. Then a demand is made for the accounts of the partnership business from its incep tion and the arbitration clause in the agreement is invoked. This letter was replied to by the plaintiff's lawyer Tola Singh & Co. on'7‑7‑50 Ex. 29 in which it was categorically asserted that the plaintiff was the sole proprietor of‑the business of Ismail D. Adam Soomar & Co. and that the Partnership deed has been prepared and the defendant was shown as a partner in order to save heavy incidence of taxation. It is further said that the, defendant at the instigation of third party accused the plaintiff of having married again and though this was denied by the plaintiff, the defendant persisted in her accusation. The circumstances in which the plaintiff had left the house and the business are narrated and the defendant is told that if no satisfactory reply is received, the plaintiff will take over the business. This was replied to on the 10th of July by Ex. 30.

20. The suggestion that the defendant was acting under the influence of her relations who were interested in this matter for their own ends finds support from the statement in para 5 of the notice Ex. 28 which is to the effect that the defendant was no longer agreeable to the term No. 12 of the partnership deed and was not bound by it. Para 12 of the partnership deed was to the effect that if during the continuance of the partnership any one of the partners died, his or her share shall belong to the surviving partner who shall thereupon become the sole and absolute owner of the business of the partnership. However, there was a re conciliation between the husband and the wife as a result of which he came back to the house and resumed the business as before. Looked at in the light of what had been stated above, and con sidering the circumstances and the sentiments under which the letter Ex 31 was written, I do not accept the contention that this letter establishes that there was a partnership in fact and in law between the plaintiff and the defendant.

21. A partnership involves a legal concept of business resting' upon an agreement and is to be determined with regard to the real relationship between the parties. It is not the subsequent, happenings which establish the relationship, but the initial agree ment. And in this case the initial agreement as represented by Ex. 10 and upon which the defendant relies has already been shown by me to have been made not for the purpose of creating a real partnership but for an ulterior purpose which was to avoid the incidence of heavy taxation. From 1942 when the document was executed till the present day, there has been no accounting between the parties and the plaintiff has never rendered account of the profit and loss of the business. The bank account of the business shows that it was a proprietary concern and not a partnership. The bank account has been operated throughout by the plaintiff alone. The sharing of profits is a vital element of a partnership but upon this point we have only the words of the defendant that the plaintiff was giving her share of the income which were all utilized for the purpose of paying off the debts, a fact which was never pleaded or asserted at any time before, the defendant said it in her evidence and which I do not find it possible to accept. The lease of the shop premises executed in 1941 (Ex. 8) and renewed in 1944 (Ex. 9) after Ex. 10 is in the name of the plain tiff alone. 22 Several cases were cited at the bar but they only state the well‑recognized principles with regard to the essentials of partnership. These are : (1) there should be a relationship by agreement between two or more persons (2) that they should run a business with the intention of sharing profits and (3) the business should be run by all or by any one of them acting for all. C But whether there is a partnership and whether a person is or is not a partner therein is a question of fact which has to be deter mined with regard to the real relationship between the parties as shown by all relevant facts taken together. This is what is stated in sections 4 and 6 of the Partnership Act itself. And upon the consideration of all the relevant facts I have come to the conclu sion that the plaintiff is the sole proprietor of the concern known as Ismail D. Adam Soomar & Co. and that the defendant is not a partner in that business. I answer issue No. 5 accordingly.

23. I shall now deal with issue No. 1 which concerns the property known as Shorat Villa fully described in para 16‑A of the plaint. The plaintiff's case in respect of this property is stated in paras. 2 to 5 of the plaint and briefly boils down to this that it was the plaintiff who had purchased the old property in 1944 and had himself paid the full consideration of Rs 25,000 ; that he demolished the old structure and constructed a new bungalow with guest annexe and out‑houses and spent about a lakh of rupees of his own money on it and that no part of the consideration or the cost of reconstruction were paid by the defendant, and that he is and has been at all times the real owner of the said property and that the defendant is merely a benamidar and the sale deed was taken in her name on grounds of expediency. It is further stated in para 6 that the plaintiff out of his own money furnished this new building at luxurious scale involving an expense of Rs. 25,

000. To this the defendant replied in paras. 2, 23, 24 and 25 of her written‑statement which is to the effect that the entire considera tion of Rs. 25,000 for the purchase of the property in 1944 was paid by the defendant out of her own money and that the construc tion was also done with her own money and so was the furnishing.

24. The sale deed of this property Ex. 17 is in favour of the defendant and as it is the plaintiff who is impeaching this deed and asserting that this was a benami transaction, the burden of proving this is upon him. One of the recognized tests though not the only one in such cases is to see the source of the consideration for such a purchase. While dealing with issue No. 5, 1 came to the conclusion that the defendant did not have any money of her own and it was conceded by Mr. Fakhruddin the defendant's advocate, and rightly so, that all the expenses for the purchase of this house and for its reconstruction were met by the income of the bakery and confectionery business of Ismail D. Adam Soomar & co. That being so, upon my finding on issue No. 5 that the plaintiff was the sole proprietor of that business, it would follow that the consideration for the sale as well as the money for re construction proceeded from the plaintiff and not from the defendant. 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 to 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 not apply to this Sub continent. It was held in A. I. R. 1925 Privy Council page 181 as follows :‑ "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."

25. That the English principle of advancement does not apply to India (also Pakistan) has never been doubted. And no distinction has been made between the cases of Hindus and Muslims on this question. See Mst. Bilas Kunwar v. Desraj (AIR 1915 P C 96). The doctrine of intended advancement in favour of the wife not being applicable in this country, there would be a resulting trust in favour of the husband who provided the purchase money in the absence of proof of contrary intention. 7 he question whether a transfer in the name of the wife for which the consideration was paid by the husband is a benami transaction or amounts to a gift is always one of intention. And the inten tion to be determined is of the time when the transaction took place. The question which must be squarely answered is : Did the husband intend to make an absolute gift of the property to the wife ? In determining the true intention regard must naturally be had to the surrounding circumstances, and the subsequent con duct in so far as it is relevant to the understanding of the initial intention. It was argued on behalf of the plaintiff that the defendant having set up the case that she had purchased this property with her own money, it is not open to her to invoke at the stage of argument an alternative case which had never been pleaded nor even deposed to by her in her own evidence. There is no doubt that the alternative case should have been pleaded and it is also true that the defendant's plea that she was the owner of the pro perty by virtue of her purchase with her own money is not quite consistent with the alternative case advanced in the argument that the plaintiff had intended to make a gift of this property to the defendant. But the question remains whether the purchase was benami and I am of the view that the alternative case must be examined because if the plaintiff had intended that the defendant should be the owner of this property, the case of benami would fail.

26. In the light of the above observations, let me consider the relevant circumstances. In the first place it must be remem bered that this house was purchased and reconstructed at a grand scale and furnished likewise by the plaintiff so that he could live in it and shift from the flat. It is true that when this dream house was built and furnished, it was in the contemplation of the plaintiff that the defendant would also live in it with him but that it is entirely a different proposition from saying that he had intended to give this property absolutely to her to his exclusion. In order that the giving may be complete and absolute, there is to be a bona fide intention of the donor to divest himself in presentai of the property and to confer it absolutely upon the donee. This does not mean that a husband may not continue to live in the property with the wife after giving it to her but in this case the property was purchased and built and furnished. With the intention that the plaintiff would enjoy all its benefits.

27. Mr. Fakhruddin has contended that not only the sale deed was in the name of the defendant but the property was recorded in her name with the City Deputy Collector and that she was a party to all the documents relating to the mortgage of this property for the purpose of raising money from Joth Singh or the Mercantile Co‑operative Bank. I have dealt with this contention in connection with issue No. 5 and I repeat that the sale deed being in the name of the defendant, the existence of these docu ments are not inconsistent with the case of the plaintiff that he was the true owner of the property and that the defendant was a mere benamidar. These documents would naturally be of the kind of which they are because if this property was being offered as a security, for the loans, the defendant's name would naturally appear in all the subsequent documents. On the other hand there are many circumstances subsequent to the sale deed which do not support the case of gift in favour of the defendant. All the estimates, bills, vouchers, receipts in connection with the recon struction of this house and the fittings and fixtures are in the name of the plaintiff alone. These are Exs. 57/1, 57/15 and 57/17 to 57/27. These amongst other consist of the tender by the Architects H. R. Thakkar & Co., receipts of the payment to them, bills of Hindustan Sanitary and Drainage Works indents from Eastern Tiles and Concrete Work etc., etc. The contract for the furnishing of the house with Messrs Continental Furnishing Co. Exh. 18 is also in the name of the Plaintiff only and all receipts of payment to them in respect of this work is in his favour alone. These are Exhs. 19/1 to 19/9. There are other receipts ,by Engi neers and Contractors for other work done in connection with this property. These are Exhs. 20/1 to 20/12. All this evidence is far more consistent with the ownership of the property by the plaintiff instead of the defendant's.

28. Another circumstance which points to the benami character of this transaction is provided by the fact that almost every other thing was also being purchased in the name of the defendant. Apart from the immovable properties, the Nash Car was purchased in her name in 1949 and according to the admission of the plaintiff in the witness box in the cross‑examination he used to buy even the household‑ utensils in the name of the defendant and the defendant's name used to be carved on them. Having held that the defendant was not a partner in the business and was not getting any share 'of profits, it follows that it was the plaintiff who was paying for everything. Why should he then efface himself so completely with regard to worldly possessions of which he seemed to be quite fond. It was argued by Mr. Fakhruddin that he was trying to prove for her, but if that was the intention of the husband, it was not necessary for him to disown everything. It was held in a Madras case reported in A I R 1925 page 95 that the presumption in favour of benami will be strengthened if almost all the property was, purchased in the name of the wife and the man purchased really next to nothing in his own name. Reliance was placed on the Privy Council's decision in the case of Kerwick v. Kerwick (ILR 48 Cal 260) This case arose out of a suit by a husband against his wife for a declaration that certain properties were held by the wife as his benamidar and that he was the true owner of them. The parties in this case were born in India of English parents and who had resided in India all their lives except for a visit to England occasionally. The appellant (husband) had bought land with money of his own or borrowed and had procured it to be conveyed to the respondent (wife) by two deeds, and had at his own expense erected thereon two dwelling houses, which was the subject matter of this suit. It was held in this case that a presump tion of an intended advancement was applicable on the ground that the parties were born of British parents and yet on consideration of the circumstances of the case it was held that the said presumption had been rebutted. In the present case there is no presumption of an intended advancement and though the plaintiff was deeply attached to the defendant, it is not reasonably possible to hold that he was denuding himself of every fragment of property which he was acquiring including 12 annas share in the partnership and leaving himself with hardly anything except the liability (may be partial) of huge debts which had been incurred in the acquiring of these properties.

29. Next comes the question of the motive for acquiring this property in the name of the defendant. Motive may be a weighty consideration in the circumstance of another case but as has been repeatedly pointed out by the Privy Council and followed by Courts in India the practice of buying property in the name of the wife or children as benamidar is so prevalent in this country that unless warranted by the facts of a particular case, the question of motive becomes of little importance. In the present case having regard to the circumstances to which I have referred earlier, the question of motive fades into insigni ficance. In all probability, it was sentimental. It was held by the Patna High Court in the case reported in A I R 1935 Patna page 231 " Benami transactions are so common in India and are so frequently entered into without any apparent motive that where other circumstances clearly point to the benami character 'of a particular transaction, the mere fact that there is no apparent motive for the property being purchased in another person's name may not be sufficient to outweigh the cumulative effect of the other circumstances." With these observations I am in respectful agreement.

30. It was next contended by the learned counsel for the defendant that the sale deed of this property came from the possession of the defendant. Custody of the title ,deeds of a property is a factor to be taken into account in determining the benami character of a transaction. But in this case where the husband and the wife living together in the same house and the plaintiff left it during his own sickness, it would be quite natural for the title deed to have remained at the house and in the custody of the wife who had even the keys of the safe. I do not, therefore, think that the production of the title deed by the defendant establishes an intention on the part of the plaintiff to give this property absolutely to her.

31. Mr. Fukhruddin strongly relied upon certain observations made by the Privy Council in the case reported in A I R 1932 Privy Council page 13 and two Indian cases reported in A I R 1951 Orissa page 22 and A I R 1953 Mysore page 89 in both of which reference was made to the said observations of the Privy Council. In the Privy Council case which went to it in appeal from Oudh one Baqar Ali did in many instances pur chase immovable properties in the names of various members of his family without any intention of benefiting the particular nominee and the question arose about a particular property describ ed as Sher Darwaza property which had been purchased by Baqar Ail in the name of his daughter Abid Jahan from his favourite wife asst. Fikr Jahan whether it belonged to her. The sale deed of this property was on the occasion of the marriage of Abid Jehan placed upon a tray and sent for the inspection of her father‑in- law. This circumstance was found by the High Court to be conclusive proof of Baqar Ali's intention of giving this property to Abid Jehan. With this finding the Privy Council agreed and it was observed :‑ "The purchase of this property was a very natural provision by Baqar Ali for the daughter of his favourite wife and 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 sending of the deed for the inspection of the lady's father‑in‑law, was clearly a representation that the property was hers, and their Lordships agree with the learned Judges (of the Chief Court) in the conclusion to which they came." The above observations of the Privy Council must be read in the context of the particular facts of that case and if I may say so with respect the circumstance to which the reference was made was weighty enough to turn the scale. Not only that 'this pro perty was bought in the name of the daughter from the favourite wife, but when that daughter came to be married, the title deed was presented for inspection of the prospective father‑in‑law ;the clear inference being that a declaration was being impliedly made and an undertaking was being given to the in‑laws, who were interested in that declaration, that the particular property belonged to the bride who would carry it with herself to her new home. The facts of the present case are however widely different to the salient parts of which I have already referred.

32. In the Orissa case where reference was made to the above Privy Council's Use, it was held relying upon two other Privy Council cases viz. A I R 1945 Privy Council page 10 and A I R 1931 Privy Council page 175 that upon the facts of the case which was before the Orissa Court, the conclusion that there was any intention of beneficial advancement was not warranted. In the case of Shamby Nath v. Pushkar Nath (AIR 1945 P C 10), a husband had made deposits in a bank in the joint names of himself and his wife and on terms that it was payable to either as survivor it was held that this did not constitute a gift by the husband to his wife. It was further held that there were would be a resulting trust in favour of the husband in the absence of proof of a contrary intention, there being in India no presumption of an intended advancement in favour of a wife. Reliance was placed on a previous Privy Council decision reported in A I R 1928 Privy Council page 172.

33. In the Mysore case it was held that from the fact that the consideration for the sale proceeded from the husband, it did not necessarily follow that the transaction was benami, since payment of the purchase money was not a conclusion but only a vital test to determine the nature of the transaction. The circumstances which weighed with their Lordships in coming to the conclusion that, the transaction was not banami are stated in the following words in the concluding part of the judgment. This is what they say :‑ "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 Muhammad Sheriff paid out of his own funds the purchase money and gift of a house by Muhammad Sheriff to his third wife, the appellant was intended to be and is the owner of the property and not the benamidar." It is plain that the facts of this case have hardly anything in common with the facts of the present case.

34. In a Lahore case reported in A I R 1937 Lah. page 589, upon a consideration of various authorities it was held as follows :‑ "The main principle deducible from the cases cited by either side appears to us to be this that it is the intention of the husband that mainly counts in the determination of the question whether he intended to make an absolute gift in favour or his wife or whether the transaction was merely intended to be a benami transaction, and that if a party avers that an absolute gift was intended, clear and cogent and preferably documentary evidence should be produced in support of that allegation." Upon the consideration of the evidence, it was held that the intention on the part of the husband to make an absolute gift of the house purchased in the name of the wife was lacking.

35. Lastly we come to the question of possession. It cannot be disputed and has not been disputed that the house was purchased and subsequently rebuilt and furnished so that the husband as well as the wife could live in it and, therefore, from the fact that the wife did live in it, it cannot be inferred that her possession was of a character which would support the inference that possession was given to her in consequence of the gift or be cause the husband had intended her to be the owner of the property. In fact if this large house including the guest house and outhouses was the exclusive property of the defendant, there does not seem to be any cogent reasons why a small house in P. I. B. colony should have been purchased in 1350 to shift the defendant's relations from the house in question. Likewise the fact that the plaintiff left the house in anger or disgust upon a quarrel between himself and his wife does not lead to an inference that he had either intended or acknowledged her to be the owner of this property. Exh. 31 clearly shows how much agony could be caused to the plaintiff in consequence of a dispute between himself and the defendant. Therefore, such a conduct does not strengthen the defendant's case in any measure. The plaintiff had declared even in 1953 by the public notice that he was the sole owner of this property. If there bad been a subsequent settlement upon the basis that the plaintiff had retracted from that position I would have expected in all proba bility a writing to that effect between the parties. No such evidence documentary or oral has been led in this case. For all these reasons, I hold that the plaintiff is the real owner of the land and building which is the subject matter of issue No. 1 and the defendant was merely a benamidar. I answered the issue accordingly.

36. Issue No. 2.‑With regard to the house in the P. I. B. colony which was purchased for Rs. 4,000 and something more was spent on its improvement, I find that though the considera tion for the purchase of this property also proceeded from the plaintiff, his intention was that it should belong to the defendant whose relations were going to occupy it permanently. The plaintiff was anxious to get rid of these hangers‑on and must have welcomed the idea of getting rid of them at a comparatively small cost. In purchasing this property in the name of the defendant it was not the intention of the plaintiff to retain his dominion over it. He had intended that it should belong to the defendant for the benefit of her relations. 1, therefore, hold that plaintiff is not the owner of this P. I. B. Colony House and it belongs to the defendant. The issue is answered accordingly.

37. Issue No. 3.‑This Nash Car was purchased as far back as 1949 and must : by now have remained no better then mere scrap. However, upon the same principle and upon the reason ing with regard to the Garden East house I hold that the plaintiff and not the defendant is the owner of this car.

38. Issue No. 4.‑The movable properties mentioned in para. 16 (d) of the plaint except the ornaments must be held to be the property of the plaintiff. All these were purchased with the plaintiff's money and were not intended to be gifted to the defendant. The fact that she would have been able to use them if she lived with the plaintiff does not confer upon her the rights of ownership of these properties. With regard to the ornaments however, I must hold that these were presents by the plaintiff to the defendant and must have been intended to belong to her exclusively. With regard to the Cash only Rs. 10,000 were found in the lockers. 'The defendant has stated that when the plaintiff left her, there was in all only Rs. 25, 000 but as the plaintiff had stopped paying her anything, she had spent Rs.15,000 on herself by the time the Receiver was appointed and remaining Rs. 10,000 also have been similarly spent by her thereafter. The plaintiff of course has stated that there was much more cash at home and in the safe but upon the evidence before me and in the absence of any documentary proof, I am unable to hold that there was anything more then Rs. 25,000 which is admitted by the defendant and though I do not accept the defendant's assertion that all this money was her exclusive property, I would not decree the plaintiff's claim in this respect because he was under an obligation to maintain the defendant and having stopped doing so since August 1955, the defendant, ‑,&as entitled to spend it away. I, therefore, hold that all the movable property except the ornaments and such little cash that may still be there and the personal belongings of the defendant, everything else found by the Receiver in the shape of movable property and of which an inventory had been made belongs to the plaintiff and he is entitled to its possession.

39. Issue No. 6.‑This issue was not pressed by the defen dant's learned counsel and rightly. There is no evidence that acting upon the representations or acts of the plaintiff the defendant had acted to her detriment or altered her position so as to preclude the plaintiff from challenging the correctness of such representations etc. No case of estoppel therefore, arises. I answer this issue in the negative.

40. Issues Nos. 7, 8, 9, 10 & 11 which arose out of the pleas of the defendant were not pressed by Mr. Fakhruddin and the allegations on which they were based were abandoned. They do not, therefore, call for any discussion, 1, therefore, answer issues No. 7, 8 & 10 in the negative and issues 9 and 11 in the affirmative. 41. (i) Upon these findings, I decree the plaintiff's claim for declaration that the defendant was never a partner in the business of Ismail D. Adam Soomar & Co., Bakers and Confectioners and that the plaintiff is the sole proprietor thereof. (ii) I also decree the plaintiff's claim for declaration that he is the sole and absolute owner of the Garden East Property named "Shorat Villa" as fully described in para. 16 (a) of the Plaint and that the defendant was only a benamidar in respect of this property and has no right or title there to. I further decree the plaintiff's claim for the possession of this property. (iii) I declare that the plaintiff is the owner of the Nash Car and order that possession of it shall be delivered to him. (iv) With regard to the prayer contained in Clauses (d) and (e) of para. 16 of the plaint. I declare that the plaintiff is the owner of the properties mentioned therein and as described in the inventory prepared by the Receiver except that of the Sh ornaments and cash. I order that except the ornaments and the cash and the, personal belongings of the defendant, the possession of all the other said properties shall be delivered to the plaintiff. (v) I dismiss the plaintiff's claim in respect of the Pir Ellahi Bux Colony House bearing No. 146 V which prayer is con tained in para. 16 (b) of the plaint. (vi) The plaintiff shall be entitled to his costs of the suit. A. H. Order accordingly.