JEEVAN KHATOON Vs. MEHTAB KHATOON

JUDGEMENT

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

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

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