SAIRA KHATUN Vs. QUTUBUDDIN

JUDGEMENT

(1.) This is an appeal by defendant 1, and arises from a suit brought by the plaintiff-respondent for recovery of a share in four properties mentioned at the foot of the plaint. The trial Court dismissed the plaintiffs suit, but the lower appellate Court has decreed it. The position of the parties will appear from the following pedigree.

(2.) The plaintiff's case as set out in the plaint is that the properties detailed at the foot of the plaint belonged to Roshan Ali though properties Nos. 2 and 3 were purchased benami in the name of defendant 1 and property No. 4 was purchased at auction by one Abdul Rahman for Roshan Ali and he (Abdur Rahman) transferred it to defendant 1 with whom he was in collusion. As regards property No. 1 which stood in the name of Roshan, Ali himself there is no dispute in appeal, the plaintiff being one of the heirs of Roshan Ali is entitled to a frantional share therein. The suit was contested by defendant 1, the appellant, who pleaded that the money with which properties Nos. 2 and 3 were taken belonged to her, but in her evidence she admitted that the money had been given to her by her husband. As regards property No. 4, her case was that it had been purchased at an auction by Abdul Rahman as her agent. It is common ground that Abdul Rahman purchased it at an auction and a certificate was granted to him and that after the death of Roshan Ali Abdul Rahman executed a deed of sale in respect of that property in favour of defendant 1. Abdul Rahman was examined as a witness and stated that he had in fact received no consideration from defendant 1 in respect of the sale-deed. He also stated that Roshan Ali had supplied him with funds for the purchase at auction sale and directed him to transfer it to his wife defendant 1. In accordance with Roshan Ali's direction which Abdul Rahman characterises as will he executed a sale-deed in favour of defendant 1 for an ostensible consideration of Rs. 400. The sale-deed was admittedly executed after the death of Roshan Ali.

(3.) One other defence was taken by defendant 1. She alleged that Roshan Ali was not the son of Ausaf Ali and that he was a foundling and was brought up by Imtiaz Ali, the husband of the sister of Ausaf Ali. It has however been found by the lower appellate Court that Roshan Ali was the son of Ausaf Ali. The finding is one of fact and cannot be questioned in second appeal. If it had been found otherwise the plaintiff would not have been entitled to inherit any part of Roishan Ali's property. The plaintiff's right to a share in the properties in dispute cannot therefore be disputed, if they belonged to Roshan Ali. The only question is whether the same belonged to Roshan Ali. As already stated, there is no controversy as regards property No. 1. The arguments before me related to the other three properties. The trial Court was of opinion that in the absence of evidence to the contrary it should be presumed that Roshan Ali purchased the properties in question for the benefit of his wife and that the plaintiff not having rebutted that presumption his suit is liable to be dismissed. Accordingly that Court dismissed the plaintiff's suit. The lower appellate Court referred to certain cases and held that where property is purchased by a husband in the name of his wife there is no presumption of advancement in India and that any one alleging that the husband made the purchase for the wife should establish it by evidence other than that afforded by the fact that the title-deed stood in the name of the wife. In my opinion the lower appellate Court has taken a correct view of the law on the subject.