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PETITIONER: BIBI SADDIQA FATIMA

       Vs.

RESPONDENT: SAIYED MOHAMMAD MAHMOOD HASAN

DATE OF JUDGMENT03/05/1978

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. SARKARIA, RANJIT SINGH KAILASAM, P.S.

CITATION:  1978 AIR 1362            1978 SCR  (3) 886  1978 SCC  (3) 299  CITATOR INFO :  C          1980 SC 727  (26)

ACT: Waqf-alal-aulad-Nature  of,  under  Shia  law-Any   property acquired by a Mutawali either in his name or benamidar  will be a waqf property-Mutawalli’s duty and powers of  regarding waqf property. Pleadings must be construed on the basis of the stand  taken at  the  trial and the issues on which the  parties  adduced evidence and argued.

HEADNOTE: One Smt.  Sughra Begum, a Shia Muslim lady was possessed  of vast  Zamindari and other properties.  On October  6,  1928, she created a waqf of the entire properties dividing them in three  qurras, Raja Haji Saiyed Mohammad Mahmood  Hasan  was appointed  by  the waqifa as the Mutawalli of qurra  No.  1. After  the death of his first wife Smt.  Akbari  Begum.  the Raja took the plaintiff appellant as his second wife in  the year  1933.   On  January 22, 1935, a  permanent  lease  was executed  on behalf of one Saiyad Anwarul Rahman in  respect of the disputed land in the name of the plaintiff.  The rent fixed was Rs. 80/per year.  Between the years 1937 and  1939 a bungalow was constructed on the said land which was  named as "Mahmood Manzil".  The Raja died in September, 1939.  The plaintiff appellant filed a suit No. 86 of 1952 in the Court of the Civil Judge, Aligarh in which the original respondent was  the sole defendant.  The plaintiffs case was  that  the disputed property belonged to her and that the defendant was inducted as a tenant of the ’kothi’ on and from 1-3-1947  on a rental of Rs. 60/- p.m., that he paid rent upto May  1950, but  did  not  pay any rent thereafter, that  she  served  a notice on him to pay the arrears of rent and deliver  vacant possession  of the Kothi.  The defendant respondent  pleaded inter alia that Raja Sahib, the first Mutawali of qurra  No. 1  had  acquired the lease of the land and  constructed  the Kothi  with  the  waqf fund as Mutawalli  of  the  waqf  and therefore  it was a waqf property, that after the  death  of the  Raja, he became the Mutawalli of qurra No. 1  including the  Kothi in question and that he occupied the Kothi  as  a Mutawalli and not as a tenant.  The Trial Court accepted the

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case  of the defendant, rejected that of the  plaintiff  and dismissed  her suit.  Her appeal before the High  Court  was dismissed. Dismissing the appeal by special leave, the Court HELD  :  1. According to Shia law, the waqf  is  irrevocable after  possession  is  given to  the  beneficiaries  or  the Mutawalli.  The settler divests himself of the ownership  of the  property  and of everything in the nature  of  usufruct from, the moment the waqf is created.  In pure  metaphorical sense, the expression "ownership of God" is used but  unlike Hindu  law,  since  conception  of a  personal  God  is  not recognised  there  is  no ownership of God  or  no  property belongs  to God in the jural sense, although "the  ownership of the property becomes reverted in God as he is  originally the  owner  of all things".  The property is  considered  as transferred  to the beneficiaries or the Mutawalli  for  the object of the waqf.  Strictly speaking, the ownership of the waqf  property has no jural conception with any  exactitude. The  corpus is tied down and is made inalienable.  Only  the usufract and the income from the corpus or the waqf property is  available  for  carrying out the objects  of  the  waqf. Creation  of  waqf  for the purpose of  maintenance  of  the waqif’s  family and their descendants is also  a  charitable purpose. [894 G-14, 895 A-B] 2.   A  Mutawalli is like a manager rather than  a  trustee. The Mutawalli, so far as the waqf property is concerned, has to see that the beneficiaries got the advantage of usufruct. The Mutawalli may do all acts reasonable and proper for  the protection of the waqf property, and for the  administration of the waqf. [895 E, 896 D] 887 2(a)  A  Mutawalli of a waqf although not a trustee  in  the true  sense  of  the  term is still  bound  by  the  various obligations  of  a trustee.  He like a trustee or  a  person standing  in  a fiduciary capacity cannot  advance  his  own interests  or  the interests of one class  of  relations  by virtue of the position held by him.  The use of the funds of the waqf for acquisition of a property by a Mutawalli in the name  of his wife would amount to a breach of trust and  the property so acquired would be treated as waqf property. [905 E-G] Moattar  Raza  and Ors. v. Joint Director  of  Consolidation U.P.,  Camp  at  Bareilly and Ors.,  A.1,R.  1970  All.  509 explained. Mohammad Qamer Shah Khan v. Mahammed Salamat Ali Khan A.I.R. 1933, All. 407 over-ruled. 3.   The law as regards distribution of distributable income of  the waqf property amongst the beneficiaries is that  the benefit of a waqf for a person’s "sons and his children, and the  children of his children for ever so long as there  are descendants,  is taken per capita, males and females  taking equally and the children of daughters being included."  [896 C-F] Ahmed  G. H. Ariff and Ors. v. Commissioner of  Wealth  Tax, Calcutta, [1970] 2 SCR 19; explained and held inapplicable. 4.   In  the  eye  of  law,  according  to  the  concept  of Mohammedan law, there was no legal entity available in whose name the property could be acquired except the Mutawalli  or the  beneficiary.   Unlike Hindu law, no property  could  be acquired  in the name of God.  Nor could it be  acquired  in the name of any religious institution like the waqf  estate. Necessarily the property bad to be taken in the name of  one of  the  living  persons.   Ordinarily  and  generally   the acquisition  of property out of the waqf funds  should  have been in the name of the Mutawalli.  But it did not cease  to

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be  a  waqf property merely because it was acquired  in  the name of one of the beneficiaries. [901 E-G] 5. (a) The burden of proof that a particular sale is  benami and  the  apparent purchaser is not the  real  owner  always rests on the person asserting it to be so.   This burden has to  be strictly discharged by adducing legal evidence  of  a definite  character  which would either directly  prove  the fact  of  benami or establish circumstances  unerringly  and reasonably raising an inference of that fact. [910 A-B] (b)  The  law  relating  to  benami  transactions   strictly speaking,  cannot,  be  applied  in all  its  aspects  to  a transaction  of such a kind.  Even if applied there will  be no  escape  from  the position that the real  owner  of  the property was the Raja in the instant case in his capacity as Mutawalli  and  the  appellant was a  mere  benamidar.   The property in reality, therefore belong to the waqf estate  as concurrently and rightly field by the two Courts below. [901 G-H, 902 A] Gopeekrist Gosain and Gangaparsaud Gosain, 6 Moore’s  Indian Appeals, 53.  Bilas Kunwar and Desraj Ranjit Singh and Ors., 42  Indian  Appeals,  202, Kerwick and  Kerwick,  47  Indian Appeals, 275, Sura Lakshmiah Chetty and Ors. v. Kothandarama Pillai 52 Indian Appeals, 286 Mt.  Sardar Jahan and Ors.  v. Mt.   Afzal  Begam, A.I.R. 1941, Oudh,  288,  Mt.   Siddique Begam v. Abdul Jabbar Khan and Ors., A.I.R. 1942, Allahabad, 308, Kalwa Devadattam and two Ors. v. The Union of India and Ors,  [1964] 3 S.C.R.  191 Union of India v. Moksh  Builders and  Financiers  Ltd.  and  Ors., [1977]  1  SCR  967  Kana- karathanammal v. V. S. Loganatha Mudaliar and Anr. [1964]  6 S.C.R. 1, Jaydayal Poddar (deceased) through 1. rs. and Anr. v.  Mst.   Bibi  Hazra  and Ors., [1974]  2  S.C.R.  90  and Krishnanand v. The State of Madhya Pradesh, [1977] 1  S.C.C. 816 referred to. 6.   In the instant case (a)  It is not possible to decree the appeal in face of  her three  varying  stands in the three Courts viz. (1)  in  the Trial  Court-case  of  acquisition  of  property  with   her personal  money;  (2)  in  the  High  Court--acquisition  of property  with the personal money of her husband and (3)  in this  Court the waqf fund invested from time to time  became her personal money and enabled her to acquire the  property. [912 B-C] 888 (b)  A valid waqf was created by Smt.  Sughra Begum.  Except a  Portion  of  money  which was to  be  spent  for  public, religious or charitable objects the waqf was primarily of  a private  nature for the benefit of the settler’s family  and their  descendants,  which is called  waqf-alal-aulad.   The ultimate object was to spend income, if any, in the  service of the Almighty God. [894 C] Abdul  Fata  Mohammad  v. Rasamaya,  22  Indian  Appeals  76 referred to. (c)  The evidence is overwhelming on the question as to what was the source of money for the acquisition of the  disputed property, either the land and Kothi.  It came from the  waqf fund. [897 C] (d)  Though  the  Raja  was vested with  the  power  to  fix stipends for his children and their descendants and for  his wives  during  his life time also, he was not  conferred  an absolute  power  or discretion to fix any  stipend  for  any beneficiary  and no stipend for some beneficiary.   Equality amongst  all  is a golden thread which runs  throughout  the Mohammadan law.  It is a chief trait of that law. [900 G] (e)  Clause 19 of the last will of the Raja cannot create  a title in favour of the plaintiff and finish the right of the

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waqf  to the property.  If the property became the  acquired property  of the waqf, a Mutawalli; as the Raja was, by  his own declaration contained in clause 19 of the Will could not make it a property of the plaintiff appellant.  The  recital of  fact  could  be  pressed  into  service  only  to   lend additional support to the plaintiff’s case if she would have stuck  to that case and proved it by evidence aliunde.  [905 A-B] (f)  The  concurrent findings of the Courts below  that  the appellant  was  benamidar  on behalf of the  waqf  does  not suffer   from   any  infirmity  to  justify   this   court’s interference  with  the said finding.  The burden  has  been discharged by the respondent so much so that the finding  as recorded could not be assailed.  It was merely attempted  to be  availed  of  to support a new case in  this  Court.   It should  be remembered that ’by far the most  important  test for determining whether the sale standing in the name of one person is in reality for the benefit of another’-namely  the source  whence the purchase money came has been  established beyond  doubt.   The nature and possession of  the  property after  the acquisition was such that it did not lead to  the conclusion  that  it  was  not a waqf  property  and  was  a property  in exclusive possession of the  appellant  through her tenants including the respondent. [910 H, 911 A-B] (g)  In a case of this nature, all the aspects of the benami law  including  the  question  of  burden  of  proof  cannot justifiably  be applied fully.  Once it is found, as it  has been consistently found, that the property was acquired with the  money of the waqf, a presumption would arise  that  the property  is a waqf property irrespective of the fact as  to in   whose   name  it  was  acquired.   The   Mutawalli   by transgressing  the  limits of his power  and  showing  undue favour  to one of the beneficiaries in disregard to a  large number of other beneficiaries could not be and should not be permitted   to  gain  advantage  by  this  method  for   one beneficiary  which in substance would be  gaining  advantage for   himself.   In  such  a  situation  it  will   not   be unreasonable  to say-rather it would be quite legitimate  to infer,  that it was for the plaintiff to establish that  the property  acquired  was her personal property  and  not  the property of the waqf. [911 G-H, 912 A-B]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2462 of 1968. Appeal  by Special Leave from the Judgment and  Order  dated 17-5-1968 of the Allahabad High Court in First Appeal No. 13 of 1956. M.   N. Phadke, M. Qamaruddin, (Mrs.) M.  Qamaruddin, M.  Y. Omar, N. Aly Khan and V. M.  Phadke for the appellant. 889 Lal  Narain Sinha, D. P. Singh, S. C. Agarwal, A. Gupta,  S. Mohdkazum and P. P. Singh; for the Respondent. The Judgment of the Court was delivered by UNTWALIA,  J.  This  is an appeal by  special  leave.   Bibi Saddiqa Fatima, the appellant, was the plaintiff in Suit No. 86 of 1952 filed in the Court of the Civil Judge it  Aligarh in  which the defendant was Saiyed Mohammad Hasan.   He  was the sole respondent in this appeal also.  He died during the pendency of the appeal and on his death his legal heirs  and representatives  were substituted as respondents.   For  the sake  of  convenience hereinafter in this  judgment  by  the respondent would be meant the original respondent. One  Smt.  Sughra Begum was a Shia Muslim Lady.  She  was  a

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resident of Asgharabad in the District of Aligarh.  She  was possessed  of  vast  Zamindari  and  other  properties.   On October 6, 1928, she created a waqf of the entire properties dividing  them in three qurras.  Raja Haji  Saiyad  Mohammad Mahmood  Hasan was appointed by the waqifa as the  Mutawalli of  qurra No. 1. His brother was appointed the Mutawalli  of the   second  qurra.   The  waqifa  appointed  herself   the Mutawalli  of  the third qurra.  The dispute  in  this  case relates  to  a property concerning qurra No. 1.  The  Raja’s first  wife  was Smt.  Akbari Begum.  She died in  the  year 1931  leaving  behind  four sons and  six  daughters.   Raja Sahib, when he was about 50 years of age, took the plaintiff as his second wife in the year 1933.  The plaintiff, at  the time  of  her marriage with the Raja, was a  young  lady  of seventeen.   Raja died in September, 1939.  On  January  22, 1935, a permanent lease was executed on behalf of one Saiyed Anwarul  Rahman in respect of the disputed land in the  name of  the  plaintiff.  The rent fixed was Rs. 80/-  per  year. Between  the  years  1937 and 1939 a  Kothi  (Bungalow)  was constructed  on the said land, which was named  as  ’Mahmood Manzil’.   The suit property in this litigation is the  said Kothi together with the land appertaining to it. In short the plaintiff’s case is that the disputed  property belongs  to her.  The defendant was inducted as a tenant  of the Kothi an and from 1st of March, 1947 on a rental of  Rs. 60/- per month.  He paid rent upto May, 1950 but did not pay any rent thereafter.  In the year 1952, the plaintiff served a  notice  on the defendant to pay the arrears of  rent  and deliver  vacant possession of the Kothi.  The defendant,  in his  reply, refuted the claim of the plaintiff and  asserted that the Kothi did not belong to her nor was be a tenant  of the  same.   Hence  the appellant instituted  the  suit  for realisation  of  arrears of rent, damages  and  recovery  of possession  of  the suit property.   The  respondent,  inter alia, pleaded that Raja Sahib, the. first Mutawalli of qurra No.  1, had acquired the lease of the land  and  constructed the  Kothi with the waqf fund as Mutawalli of the waqf.   It was  a  waqf  property.  After the death of  the  Raja,  the respondent became the Mutawalli of qurra No. 1 including the Kothi in question.  He occupied the Kothi as a Mutawalli and not  as a tenant.  The Trial Court accepted the case of  the defendant, rejected that of the plaintiff and 6-329SCI/78 890 dismissed  her suit.The’ Allahabad High Court has  dismissed her appeal. She has preferred this appeal in this Court  on- grant of special leave. Shri M. N. Phadke advanced a very strenuous argument in sup- port  of this appeal.  Shri Lal Narayan Sinha  combated  his argument   on  behalf  of  the  respondent.   It  would   be convenient  to  refer to some more facts and facets  of  the case from the pleadings of the parties and judgments of  the Courts   below  before  enunciating  and   enumerating   the submissions made on their behalf. The  case  pleaded in the plaint by the appellant  was  like this,  Raja Sahib out of great love for the plaintiff  "used to  pay her a handsome amount every month as  pin-money  and also a good deal of money occasionally." The plaintiff, with the  object  of  constructing a Kothi,  took  on  lease  the disputed  land measuring about 4 bighas and had been  paying the  annual  rent  of Rs. 80/- since the  execution  of  the lease.    She pleads in para 4:-               "After  the execution of the said  lease,  the               plaintiff with               her  personal fund built a kothi and  the  out

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             houses on the land mentioned in paragraph  No.               3  above and named it as Mahmood Manzil  after               the name of her husband.  The construction  of               this  Kothi  bad been completed by  May  1938,               after which the plaintiff herself used lo stay               in   that   Kothi  whenever  she   came   from               Asgharabad to Aligarh." The  plaintiff bad only one daughter born to her out of  the wedlock with the Raja.  She is Smt.  Abrar Fatima.  She  was married  on the 25th May, 1950 to one Saiyed  Mohammed  Raza Ali Khan.  The defendant was quite obedient and faithful  to the plaintiff until the marriage of her daughter.  But after the said marriage, he gradually turned hostile and thereupon the plaintiff mostly lived with her daughter.  According  to the respondent’s case in his written statement the lease was taken  by  Raja  Sahib  and the  sum  of  Rs.  786/spent  on ’Nazrana’ etc. for taking the lease was paid by him from the income  of  the waqf property and he constructed  the  Kothi from the wakf fund of Asgharabad estate.  He had neither any money  of his own to invest in acquisition of  the  property nor  was  the property acquired by the  plaintiff  with  her personal fund. The  appellant  was examined on commission as a  witness  to support her case at the trial.  In her examination-in-chief, she  stated that her husband used to give her Rs. 500/-  per month  as pin-money besides, meeting her expenses  regarding food  and  clothing.  Over and above this, he used  to  send money  on the occasions of Id and Bakrid and also  gave  her money  whenever she demanded.  She constructed the Kothi  at Aligarh by investing about Rs. 20,000/-.  In other words she meant  to  convey in her examination-in-chief that  she  had acquired  the  land  and constructed the Kothi  out  of  the savings  she had from the various amounts of money given  by the  Raja monthly or from time to time. At a later stage  of her   deposition   (probably   in   cross-examination)   she demolished  her case and claimed to be in possession of  Rs. 50,000/- at the time of the death of her husband, 891 which sum was her total savings out of the money paid to her monthly  or  from  time to time by the Raja.   Thus  in  her evidence  she could not explain as to out of which  personal fund she claimed to have acquired the disputed property. The Civil Judge framed for trial several issues out of which issues 1 and 5 were, in the following terms               "1. Whether the plaintiff is the owner of  the               property  in  suit  as  alleged  and  is   she               entitled to the possession claimed ?                5.   Whether  the  defendant  possesses   the               disputed property as the Mutawalli’ as alleged               by him The  defendant’s case was that the ’Patta’ was  obtained  by the  old Raja tinder the influence of her young wife  benami in her name though it was acquired with the waqf fund.   The Raja, as Mutawalli, was the real lessee of the land.  He had constructed  the  Kothi  out  of  the  income  of  the  waqf property.  A Mutawalli is not an owner of the waqf property, but  whatever property of the waqf was there from before  or acquired  subsequently must, ordinarily, be in the  name  of the Mutawalli.  A property could be acquired in the name  of any  beneficiary,  like  the plaintiff, but  she  would  be; merely a benamidar of the Mutawalli and the property will be a waqf property.  The Civil Judge has noted in his judgement that the plaintiff  did not put forth a plea that the  Kothi was  built by  late Raja out of his personal money and  that she  was owner, on the basis of the equitable  deoctrine  of

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advancement.  He has said further:-               "Thus the only point on which the parties were               at issue was with respect to the source of the               money out of which the patta was obtained  and               the  building  constructed and  the  plaintiff               could succeed only if she proved that she  had               obtained the patta and built the kothi out  of               the money given to her by her late husband  as               pocket expenses, etc."               The Civil Judge also remarked               "Had  she stated that she built the kothi  out               of  the money which she had saved, that  would               have  been consistent with her allegations  in               the  plaint.  But she admitted that the  whole               of  her savings were still with her  and  that               out  of them she had spent a little  when  she               filed the present suit." The  Trial  Court,  thereafter,  considered  the  voluminous documentary  evidence  in  the light of  the  oral  evidence adduced  and came to the conclusion that the  plaintiff  did not  provide any money either for the lease of the  land  or for the construction of the Kothi thereon and that the money for  both the purposes was provided out of the waqf  estate. Hence  it was held, while deciding issues 1 and 5, that  the plaintiff  was  not the owner of the Kothi in suit  and  the defendant  was  in possession of it in his capacity  as  the successor Mutawalli. 892 It  would  be advantageous to note at this stage  the  stand taken  by  the appellant in the High Court in  her  Memo  of Appeal  as also in argument.  On perusal of the grounds  set out  in the Memorandum of Appeal, especially ground Nos.  6, 8, 9, 11, 13 and 27, it would appear that the case made  out therein was that the Raja had his personal money kept in the waqf  estate treasury alongwith the waqf money.  The  amount spent in constructing the Kothi was mostly taken out of  the treasury from his personal fund with the intention of making his wife the owner of the property even though the  doctrine of  advancement  did  not  apply  in  India,  and  that  the observation  of the learned Civil Judge that  the  plaintiff failed  to prove that she did not provide any money  out  of her personal fund was wholly irrelevant for the decision  of issue  No.  1. In argument, however, a stand  like  the  one taken in the Trial Court was reiterated but consistently and concurrently rejected because the evidence in favour of  the defendant’s case was so overwhelming to show that the  lease had  been taken and the Kothi had been constructed with  the money  coming  out of the waqf fund that no other  view  was reasonably  probable  to  be taken.  At  one  place  in  its judgment the High Court says-"Counsel for the appellant  has strongly relied on these documents in proof of the fact that the  Kothi  was constructed with her money and  belonged  to her." In the teeth of the overwhelming evidence the appellant  was obliged  to take ’an entirely new stand in her petition  for special  leave and in the argument before us.  In  paragraph 23 of the petition it was stated               That  the case of the applicant had been  that               the  lease was obtained with  the  applicant’s               funds  and that she had constructed the  Kothi               with  her  own  money  and  it  was  also  her               alternative   case  put  forward  before   the               Hon’ble High Court that even if it be  assumed               that  the money utilised for constructing  the               Kothi  did not pass directly from  the  plain-

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             tiff’s hand: and even if it be the finding  of               the  Court  that  the money  so  utilised  bad               proceeded from Raja Mahmudul   Hasan  then  on               the  admitted case of the defendant that  this               fund  was  waqf fund,  the  plaintiff’s  claim               ought to have been decreed inasmuch as on  the               ground that the usufruct or the profit of  the               waqf  property though arising out of the  waqf               property  did  not  belong  to  waqf  as  waqf               property  but  it was by its very  nature  the               property of the beneficiary and in the absence               of any evidence to the contrary Raja Mahmoodul               Hasan.  I  held  that  those  funds  for   the               beneficiaries  and the amount spent by him  in               the  construction of the Kothi should  be  the               money belonging to the applicant."               Mr. Phadke made the following  submissions               (1)   The Raja intended to acquire the land on               lease   and  construct  the  Kothi   for   the               plaintiff by investing from time to time money               taken out of the waqf  estate treasury,  which               had the effect of disbursement and payment  of               the money by the Mutawalli to his wife,               893               the  beneficiary,  for  the  purpose  of  the,               acquisition of the Kohi.  The source of  Money               in that event is immaterial.               (2)   The  intention of the Raja to provide  a               separate  Kothi to the plaintiff evidenced  by               numerous  documents taken and standing in  her               name must be respected.               (3)   The   Raja  went  on  giving  money   in               driblets  for  construction of  the  Kothi  by               taking  out the money from the waqf fund  from               time to time.  It was open to him to do so  in               accordance  with  clause 18 of the  waqf  deed               Ext.  A-2.               (4)   The  intention  of the Raja  is  further               fortified ’by the recital in his Will Ext. 15.               (5)   That there is a number of  circumstances               in support of the contentions aforesaid.               (6)   The rules of pleading should not be  too               strictly applied in India and no party  should               be  defeated on that account when  both  sides               adduced evidence and proceeded to trial of the               real  issues  in  the case  ’with  their  full               knowledge and understanding.               (7)   That there is no substantial variance in               the  case  made out in the pleadings  and  the               evidence and in argument either in the  Courts               below or in this Court.               (8)   The  burden  of proof  to  displace  the               ostensible title of the appellant and to  show               that   she   was  a  benamidar  was   on   the               respondent.   In  absence  of  any   clinching               evidence on either side, the ostensible  title               prevails.               (9)   Although  the  doctrine  of  advancement               does  not apply in India, the Mutawalli  being               the  owner of the waqf property had  full  and               unlimited power of disposal over its  usufruct               and income. Mr.  Lal Narayan Sinha, while refuting the submissions  made on  behalf of the appellant, contended that it is a  settled law  that the question whether a particular transaction  is,

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benami  or  not  is purely one of fact  and  this  Court  in exercise  of  its  jurisdiction under  Article  136  of  the Constitution does not, ordinarily and generally, review  the comment  findings  of  the  Courts  below  in  that  regard. Counsel  submitted  that  the  Courts  below  had  correctly applied the Muslim law applicable to Shias in respect of the waqf property and its income.  They have rightly come to the conclusion  that the suit property appertained to the  waqf. It was clear, according to the submis- 894 sion  of Mr. Sinha, that the parties went to trial to  prove their  respective cases as to whether the property had  been acquired  with the personal funds of the Plaintiff or  those of  the  waqf.  The plaintiff’s case failed in view  of  the overwhelming  evidence  against her and she  should  not  be permitted  to make out an entirely new case in  this  Court. He also contended, firstly, that the theory of onus-probandi is  not strictly applicable when both parties  have  adduced evidence;in  such  a situation it becomes the duty’  of  the Court to arrive at the true facts on the basis of reasonable probabilities.   Secondly,  in the instant case  the  strict tests  to  prove  the benami character  of  the  transaction cannot be applied, as, to do so will be in the teeth of the, well-settled  principles  of Mohammedan law in  relation  to waqfs. We   proceed  to  examine  the  correctness  of  the   rival contentions of the parties but not exactly in the--Order  it has been stated above. It is undisputed in this case that a valid waqf was  created by  Smt. Sughra Begum.It is further indisputably clear  from the waqf deed that except a portion of money which was to be spent  for public, religious or charitable objects the  waqf was  primarily of a private nature for the benefit  of  the. settler’s  family  and their descendants,  which  is  called wakf-alal-aulad.   The  ultimate object of the waqf  was  to spend income, if any, in the service of the Almighty God. In Abdul  Fata Mahomed v. Rasamaya (1) their Lordships  of  the Privy  Council held that the gift to charity  was  illusory, and  that  the sole object of the settler was  to  create  a family settlement in perpetuity.  The waqf of this kind was, therefore,   invalid.    Ibis  decision   aforesaid   caused considerable dissatisfaction in the Mohammedan community  in India.   This  led  to the passing  of  the  Mussalman  Wakf Validating Act, 1913 which was made retrospective in  opera- tion by a subsequent Act of 1930.  In view of the Validating Act of 1913 the validity of the wakf was beyond the pale  of challenge. Although in respect of the law applicable to waqfs there  is some  difference in regard to some matters between the  Shia law   and  the  various  other  schools  of  Mohamedan   law applicable  to  Sunnis,  in  very many  fields  the  law  is identical.   After the Validating Act of 1913, on the  basis of  the law as it prevailed even before, creation of a  waqf for  the  purpose of the maintenance of the members  of  the waqif’s  family and their descendants is also  a  charitable purpose.  We now proceed to notice some salient features  of the law as applicable to waqfs and especially of the Shias. Tyabji’s  Muslim Law, Fourth edition, Chapter X  deals  with waqf.   According to Shia law the waqf is irrevocable  after possession is given to the beneficiaries or the  Multawalli. The settler divests himself of the ownership of the property and  of  everything  in the nature  of  usfufruct  from  the moment  the wakf is created.  In purely  metaphorical  sense the  expression "ownership of God" is used but unlike  Hindu Law,  since conception of a personal God is not  recognized,

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there is no (1)  22 Indian Appeals, 76.  895 ownership of God or no property belongs to God in the  jural sense,  although  "the  ownership of  the  property  becomes reverted in God as he is originally the owner of all things" (vide  page  523).   The  Shia  authorities  considered  the property  as  transferred  to the beneficiaries  or  to  the object  of the, waqf.  Strictly speaking, the  ownership  of the   waqf  property  has  no  jural  conception  with   any exactitude.    The  corpus  is  tied  ’down  and   is   made inalienable.   Only  the usufruct and the  income  from  the corpus  of the waqf property is available for  carrying  out the objects of the wakf.  The Sharaiu’l-Islam says               "Waqf  is  a contract the fruit or  effect  of               which is (a) to tie up the original and (b) to               leave its usufruct free-" "the waqf or subject               of  appropriation (corpus) is transferred,  so               to  become the property of the mowkoof  alehi,               [or  ’person on whom the settlement is  made’]               for  he  has  a  right  to  the  advantage  or               benefits  (usufruct) to be derived  from  it."               (vide page 494,               In  the  foot note at the same page  occurs  a               passage which runs thus               "But it should not be overlooked that question               about ownership of property after  dedication,               refers merely to scientulla juris, supposed to               remain undisposed of although entire usufruct,               (all  benefits,  &  C.)  are  assigned   away.               Question  in whom property  rests,  therefore,               entirely academical."               Mutawalli  is  like a Manager  rather  than  a               trustee (see page 498).   The  Mutawalli,   so               far as the waqf property is concerned, has  to               see  that the beneficiaries got the  advantage               of usufruct.  We have already pointed out that               under  the  Shia  law the  property  does  not               remain  with the waqif.  It is transferred  to               God  or to the beneficiaries.  At page 554  of               Tyabji’s famous book it is stated :-               "The  support  and maintenance of  the  waqf’s               family,  & c. would seem under the Act  to  be               deemed a purpose recognized by the Muslim  law               as religious, pious or charitable : s. 2. This               view  was put forward by Ameer Ali,  J.,  with               great  learning in his dissenting judgment  in               Bikani Mia’s case."’               Section 527 at page 593 runs thus               "The  mutawalli  has no  ownership,  right  or               estate  in the waqf property: in that  respect               he, is not a trustee in the technical sense  :               he  holds the property as a manager  for  ful-               filling the purpose of the waqf." A contrary statement of law at page 202 of Mullas  Mohamedan Law,  seventeenth  edition  based on  the  decision  of  the Allahabad High Court in Mohammad Qamar Shah Khan v. Mohammad Salamat Ali Khan(1) (1)  A.I.R. 1933 Allahabad 407. 896 to   the   effect  that  "the  mutawalli  is  not   a   mere superintendent  or manager but is practically  speaking  the owner"  is  not correct statement of law.  In a  later  Full Bench decision of the same court in Moattar Raza and  others v.  Joint Director of Consolidation, U.P. Camp  at  Bareilly

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and others(1) while over-ruling the earlier decision, it has been  said at pages 513-14 :-"the legal status and  position of  a mutawalli under a waqf under the Musalman Law is  that of  a Manager or Superintendent." The general powers of  the Mutawalli  as mentioned in section 529 of Tyabji’s book  are that  he  "may  do all acts reasonable and  proper  for  the protection of the wakf property, and for the  administration of the waqf." It  will  be  useful  to  point  out  the  Law  as  regards, distribution of distributable income of the waqf  properties amongst  the  beneficiaries  as  mentioned  in  the  various subsections of section 545 at pages 606-608.      Unless   a different intention appear, subsection (4) says:-               "The  benefit of a waqf for a  person’s  "sons               and  his  children, and the  children  of  his               children  for  ever  so  long  as  there   are               descendants,  is taken per capita,  males  and               females  taking  equally and the  children  of               daughters being included."               Attention  must  be  called  to  an  important               statement    of   law   in   the    well-known               authoritative  book of Mohamedan Law by  Ameer               Ali Vol. 1, fourth edition, page 472.  It runs               thus :-               "It is lawful for a mutawalli with the  income               of a waqf to erect shops, houses, & c.,  which               may  yield profit to the waqf, as all this  is               for  the benefit of the waqf.  All  properties               purchased by the mutawalli out of the proceeds               of  the waqf become part of the waqf  and  are               subject  to  the same legal incidents  as  the               original waqf estate." Mr.  Phadke cited the decision of this Court in Ahmed G.  H. Ariff & Ors. v. Commissioner of Wealth- Tax, Calcutta(2) and contended  that the right of the beneficiaries to get  money out of the income of the waqf property for their maintenance and  support  was their property.  In our opinion  the  case does not help the appellant at an in regard to the point  at issue.  A hanafi Muslim had created a wakf-alalaulad and  on a  proper construction of the relevant clauses in  the  waqf deed  it  was  held that the aliquot  share  of  the  income provided  for  the beneficiaries was not  meant  merely  for their  maintenance  and support but even if it  was  so,  it would  be  an asset within the meaning of s. 2  (a)  of  the Wealth  Tax Act, 1957.  The definition of the  term  ’asses, was  very  wide  in the Wealth Tax Act.  The  share  of  the income  which a beneficiary was getting under the said  waqf was  assessable to income tax and following  the  particular method  of  evaluation it was held to be an  asset  for  the purposes  of the Wealth Tax.  The question at issue  in  the present  case  is entirely different as will  be  shown  and discussed (1)  A.I.R. 1970 Allahabad, 509. (2)  [1970] 2 S.C.R. 19. 897 hereinafter.   But in support of what we have said above  in relation  to  the  waqf property and  the  position  of  the Mutawalli we may quote a few lines from tills judgment  also which am at page 24 :-               "As  mentioned  before, the moment a  wakf  is               created,  all rights of property pass  out  of               the   Wakif   and  vest   in   the   Almighty.               Therefore,  the Mutawalli has no right in  the               property  belonging to the wakf.  He is not  a               trustee  in the technical sense, his  position

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             being  merely  that of a superintendent  or  a               manager." It  would be convenient to briefly discuss the questions  of fact  and the evidence in relation thereto before we  advert to  the  discussion of some other questions  of  law  argued before us on either side as those principles of law will  be better"appreciated  and  applied in the. background  of  the facts of this case. As  has been stated already the evidence is overwhelming  on the  question  as to what was the source of  money  for  the acquisition of the disputed property, either the land or the kothi.  It came from the waqf fund. This position could  not be  seriously challenged before us. What was argued will  be alluded  to  a bit later.  We may just  cursorily  refer  to some,  of  the  pieces  of  the  evidence  on  the  question aforesaid.  Ext.  A-35 is a written direction by the Raja to Mahmud  Syedullah Tahvildar directing him to debit a sum  of Rs.  741/-  to his personal account for the  acquisition  of the. plot in question.  The details of the expenses and  the Nazrana  money are given therein.  The payment was from  the funds  of the waqf estate.  But the Raja made a  feable  and futile  attempt to get this debit entry made as a  repayment of  the loan money said to have been advanced by him to  the waqf  estate.   The High Court as also the Trial  Court  has rightly remarked that the entry like Ext.  A443 was got made by  the  Raja in the account books of the waqf estate  as  a fictitious countervailing entry in his attempt to show  that some  of the sums of money which he had withdrawn  from  the waqf estate were on account of the repayment of his  alleged loans.   The  High Court has rightly pointed out  that  they were all fictitious entries.  Mr. Phadke endeavored to  show that the approximate gross income of the waqf estate was not Rs. 43,515/- as is shown by the High Court but it was in the neighbourhood of Rs. 58,000/-.  We shall accept it to be so. Thus  the  net distributable income at the disposal  of  the Raja  was  about  Rs.  30,000/-  instead  of  Rs.   15,5101- mentioned in the judgment of the High Court.  There were  13 beneficiaries  in  qurra  no. 1 of which the  Raja  was  the Mutawalli.   In  that  capacity he  was  getting  a  monthly allowance of Rs. 70/- only from the estate account.  He  bad no other personal property or source of income from which he could advance any loan to the waqf estate.  Nor could it  be shown that the waqf estate at any point of time was in  need of  any loan from the Raja.  Therefore, the attempt  of  the Raja to put a show of acquiring the land in the name of  his young  wife  out  of his personal money  was  a  very  crude attempt to disguise the real source of that 898 money.  The concurrent findings of the Courts below that the expenses    for the acquisition of the lease  were  incurred from  the  waqf  estate  funds  could  not  be  successfully assailed. The High Court has referred next to the question of  payment of  rent of the land to the lessor.  The plaintiff  produced six  rent receipts.  Exts. 13 and 14 were of the  year  1952 when  disputes between the parties had started.  As  regards four  other receipts the High Court was inclined to  believe the  explanation  of the defendant that  the  plaintiff  had surreptitiously  obtained  their possession.  On  the  other band,  the defendant filed four rent receipts of the  period when the Raja was alive.  Since the lease had been taken  in the  name of the plaintiff, naturally all the receipts  were in  her  name.   The High Court has  also  referred  to  the satisfaction of a decree for rent obtained by the lessor  in a  suit  instituted  against the plaintiff as  well  as  the

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defendant  and  has come to the conclusion that  the  entire decretal  amount, the expenses of the auction sale  and  the costs were deposited in the Court out of the waqf fund. Then  comes the evidence regarding the construction  of  the Kothi.   All  documents for obtaining  permission  from  ’be Municipal  Board and for electric connection etc.  obviously stood  in  the  name  of the plaintiff  as  the  lease  wag, standing  in her name.  As in the High Court, so  here,  Mr. Phadke strongly relied upon those documents to show that the Kothi  was constructed for and on behalf of  the  plaintiff. As  already stated the stand in the High Court was, that  it was  constructed with her money.  Here it was  a  completely different stand.  It was urged that the money came from  the waqf  fund but as and when the money was being spent by  the Raja for the construction of the Kothi it amounted, in  law, as  payment  of the money by the Raja to his  wife  and  the construction  of the Kothi should thus be treated as  having been   made  with  her  money.   We  shall  scrutinize   the correctness  of  this branch of the argument  a  bit  later. Numerous  documents  are mentioned in the judgments  of  the Trial Court as also of the High Court to show that every bit of expenditure in the construction of the Kothi came out  of the’ waqf fund under the direction of the Raja.  We need not discuss  these  documents in any detail  as  the  concurrent finding of the Courts below could not be assailed in face of these  documents  and  that  led the  appellant  to  make  a somersault  here  and  to take an  ingenuous  stand.   These documents  are Ext.  A-449 series; Ext.  A-450 series;  Ext. A-452;  Ext.  A-453; Ext.  A-455; Ext.  A-458; Ext.   A-460; Ext.   A-463; Ext.  A-486; Ext.  A-491; Ext.  A-493  series; Ext.  A-495 and Ext.  A-518.  Ext.  A-3 shows that Ramlal, a mason who had worked as a contractor in the construction  of the Kothi instituted a suit for recovery of Rs.  2,917/10/-, the  amount which was not paid during the life time  of  the Raja.   The  suit was instituted in the year 1941.   It  was decreed  in  1942.   Exts.   A-36, A-43  and  A-44  are  the receipts in proof of the fact that eventually the decree was satisfied  by the defendant on payment of money  to  Ramlal. Ext.   A-45  is  a similar receipt  dated  January  2,  1942 showing payment of Rs. 923/- by the defendant to  Zafaruddin in  satisfaction  of  his decretal dues on  account  of  the construction of the Kothi.  The 899 plaintiff’s  claim of the payment of Rs. 2,000/-  to  Ramlal was  too slippery to be accepted by the Courts below and  it need  not detain us either.  The High Court has also  relied upon two letters-Exts.  A-28 and A-27 written by the Raja to the Supervisor of the building operations indicating that if the  foundation of the Kothi was not laid within  a  certain time,  loss would be caused to the Riyasat namely  the  waqf estate.   It may be emphasised here that the  countervailing fictitious  entries got made by the Raja were very  few  and far  between and the entire amount spent in the  acquisition of the Kothi which was in the neighbourhood of Rs.  21,000/- (both for the land and ,the building) could not be. shown to be  the personal money of the Raja by this spurious  method. A major portion of the total amount obviously, clearly,  and admittedly  too,  had  come from the waqf  fund.,  And  that compelled  the  appellant to take an entirely new  stand  in this Court. We now proceed to deal with the new stand.  It is  necessary in  that  connection  to  refer to  some  of  the  important recitals in Ext.  A-2 the waqf deed.  In the preamble of the document  it is recited that the waqf is being created  with some  religious  purposes and for the  regular  support  and

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maintenance of the descendants of the waqif for all times to come  so that they may get their support from generation  to generation.  The ultimate object is for charitable  purposes in  the service of the God Fisaliilah.  After  referring  to the  Act of 1913 it is stated : "Hence the  entire  property given below having become Waqf-Alal-aulad in perpetuity, has become, uninheritable and non-transferable".  Each Mutawalli of  his  respective  qurra was  appointed  "  the  principal manager  with  full  and  complete  powers  of  entire  waqf property."  From  clauses 7 and 13 of the waqf deed  it  was rightly  Pointed  out on behalf of the  appellant,  and  not disputed by the respondent either, that Rs. 6,000/- amiually had  to  be  spent  by Mutawalli of  qurra  no.  1  for  the religious  purposes mentioned therein.  This was  the  first obligation  of the Mutawalli before he could apply the  rest of the usufruct in the support and maintenance of-the family beneficiaries.  Then comes the most important clause in  the waqf  deed namely clause 18.  The said clause as  translated and printed in the paper book runs as follows               "Syed  Mahmood  Hasan the  Mutawalli  of  the,               first  lot  is vested with the  power  to  fix               stipends   for   his   children   and    their               descendants and for his wives during his  life               time  whatsoever  he pleases  or  to  lay-down               conditions by means 0 a registered document or               may  get any writing kept reserved  in the               custody  of the district judge, so that               after him it be binding upon every  Mutawalli,               such  in  case he might not  get  any  writing               registered  or  kept  in the  custody  of  the               district  judge  of the district,  then  under               such circumstances the twenty percent (20%) of               the  income of the waqf property  having  been               set  apart for the expenditure  of  collection               and realisation and right of the, Mutwalliship               and  the  amount of Rs.  6,000/-  (Rupees  six               thousand) for meeting               900               the  expenditure  of Azadari’ as  detailed  at               para No. 7 above; the entire remaining will be               distributed  among the heirs of Mahmood  Hasan               according  to  their  respective  legal  share               provided under Mohammadan Law." The  High Court referring to this clause has said  that  the power  given to the Raja in clause 18 could be exercised  by him during his life time in the fixation of the stipends but it was to come in operation after his death.  With the  help of  learned  counsel  for both sides,. we  looked  into  the original  clause 18 and found that there is some  inaccuracy in  the translation as made and printed in the  paper  book. But  substantially there is not much difference.   Correctly appreciated,  the  meaning  of the  clause  is  that  Saiyed Mohammad  Hasan,  the Raja, was given a  special  power  and right   to  fix  stipends  for  his  children,   wives   and descendants  either  by a registered document and  or  by  a document  in  writing kept in the custody  of  the  District Judge  so  that  after  him  it  may  be  binding  on  every subsequent  Mutawalli.   If he failed to do so,  then  after setting   apart  20%  of  the  gross  income  to  meet   the expenditure of collection and realisation and Rs.  6,000/the charitable  expenditure mentioned in clause 7,  the  balance was  to be distributed amongst the heirs of Saiyed  Mohammad Hasan  according to their respective legal  shares  provided under the Mahomedan law.  The bone of contention between the parties before us was that according to the appellant such a

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power of fixation of stipends for the wives and children was given to the Raja even to be operative during his life time, while  according  to  the  respondent  it  was  only  to  be effective after his death.  We do not think it necessary  to meticulously  examine  the terms of clause  18  and  resolve this.  difference.   We  shall  assume  in  favour  of   the respondent  that,  in terms, the power was given  which  was meant  to be operative after his death.  But then,  does  it stand  to reason that he had no such power during  his  life time ? On a reasonable view of the matter, either by way  of construction of clause 18, or as a necessary implication  of it,  we  find  no difficulty in assuming in  favour  of  the appellant  that  the Raja was vested with the power  to  fix stipends for his children and their descendants and for  his wives  during  his  life time also.   A  question,  however, arises-was  this power completely unfettered,  unguided  and not controlled by the general principles of Mohamedan law  ? Apart from the fact that in clause 27 of the waqf deed it is specifically  mentioned  that any condition or  phrase  laid down  in any of the paras of the waqf deed was not meant  to go  against  the,  Mohamedan law and was not to  be  of  any effect,  if it did so, it is difficult to conclude that  the Raja  was conferred an absolute power or discretion  to  fix any  stipend  for any beneficiary and no  stipend  for  some beneficiary.  Equality amongst all is a golden thread  which runs  throughout the Mohamedan law.  It is a chief trait  of that  law.  We have already pointed out from  Tyabji’s  book that each beneficiary was entitled to share the usufruct  of the  waqf  property per capita.The Power given to  the  Raja under  clause  18 had to be reasonably  exercised  within  a reasonable  limit of variation according to  the  exigencies and  special needs of a particular beneficiary.  He  had  no power  to  spend  money  quite  disproportionately  for  the benefit of one  901 beneficiary-may  she be his young wife or young daughter  or be  he  a  young son.  He had no power to  spend  money  for acquisition of any immovable property for a beneficiary.  No income from the waqf estate could be, spent for  acquisition of  an immovable property, and particularly a  big  property with  which we are concerned in this case, to  benefit  only one beneficiary ignoring the others who were about a  dozen. The  money  had to be spent equitably for  the  support  and maintenance  of each and every beneficiary.  Of course,  the Raja  had  the  discretion to spend more  money-say  on  the education of a particular beneficiary it was necessary to do so or for the treatment of an ailing one.  There it would be preposterous to suggest that money bad to be equally  spent. It  is, however, difficult to spell out from Clause  18,  as was argued by Mr. Phadke, that the Raja should be deemed  to have  fixed as stipends for the young lady all the  numerous sums  of money spent from time to time in the various  items of the acquisition of land or the construction of the Kothi. Such  a  construction will, not only  militate  against  the tenets of the Mahomedan law as quoted from Ameer Ali’s book, but  would be obviously against the spirit of clause  24  of the waqf deed itself.  The said clause says               "If any property will be purchased out of  the               funds of the State, it shall also be deemed to               be  property included in and belonging to  the               waqf.   It  shall not become  the  private  or               personal property of any one." Taking  a  permanent lease of the land  and  constructing  a Kothi  thereupon to all intents and purposes, is a  purchase of the property out of the funds of the estate.  It will  be

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a  startling proposition of Mahomedan law to cull  out  from clause  1  8  of  the waqf deed  that  a  property  acquired obviously and clearly out of the funds of the waqf estate in the  name of one of the beneficiaries should be  treated  as having been acquired for him or her in exercise of the power under  clause 18.  It should be remembered that  apart  from the  properties  which were mentioned in the waqf  deed  and which  had  been tied and made inalienable  if  any  further property  was to be acquired, in the, eye of law,  according to  the concept of Mahomedan law, there was no legal  entity available  in  whose  name the property  could  be  acquired except the Mutawalli or the beneficiary.  Unlike Hindu  law, no  property could be acquired in the name of the God.   Nor could   it  be  acquired  in  the  name  of  any   religious institution like the waqf estate.  Necessarily the  property had  to be taken in the name of one of the  living  persons. Ordinarily and generally the acquisition of property out  of the  waqf  funds should have been made in the  name  of  the Mutawalli.   But  it did not cease to be,  a  waqf  property merely  because  it was acquired in the name of one  of  the beneficiaries.  We are empbasizing this aspect of the matter at  this stage to point out that the law relating to  benami transactions,  strictly speaking, cannot be applied  in  all its  aspects to a transaction of the kind we  are  concerned with in this case.  We, however, hasten to add that even  if applied, there will be no escape from the position that  the real  owner of the property was the Raja in his capacity  as Mutawalli and the plaintiff was 902 a  mere  benamidar.   The property  in  reality,  therefore, belong  to the waqf estate as concurrently and rightly  held by the two courts be- low. It  is a very novel and ingenuous stand which was  taken  in this Court to say that all money spent from time to time  in acquiring the land and constructing the Kothi was payment by the Raja as Mutawalli to his wife and therefore the property must  be held to have been acquired by the lady herself  out of  her own personal fund.  At no stage of  this  litigation except in this Court such a case was made out in pleading or evidence  or in argument.  The defendant was never asked  to meet  such a case.  Parties went to trial and  evidence  was adduced upon the footing that the plaintiff claimed that out of the money given to her by the Raja as pin-money or on the occasions of festivals or otherwise she had saved a lot  and out  of those savings she had spent the money  in  acquiring the  property.  The defendant asserted and proved  that  the case of the plaintiff was untrue and that all the money came from  the  waqf fund directly to meet the cost  of  the  ac- quisition  of  the  property.  In such  a  situation  it  is difficult  to accept the argument put forward by Mr.  Phadke that  pleadings ’should not be construed too  strictly.   He relied  upon three authorities of this Court in  support  of this  argument  namely, (1) Srinivas Ram  Kumar  v.  Mahabir Prasad and others(1); (2) Nagubai Ammal & others v. B. Shama Rao  &  others(2),  and (3) Kunju Kesavan v.  M.  M.  Philip I.C.S. and others(3).  Let us see whether any of them  helps the  appellant  in advancing her case any further.   In  the case  of  Srinivas Ram Kumar (supra) the suit  for  specific performance  of  the  contract failed.   The  defendant  had admitted the receipt of Rs. 30,000/-.  In that event, it was held  that  a  decree  could be  passed  in  favour  of  the plaintiff  for  the recovery of Rs.  30,000/-  and  interest remaining  due  under the agreement of loan pleaded  by  the defendant,  even though the plaintiff had not set up such  a case  and it was even inconsistent with the  allegations  in

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the plaint.  The Trial Court had passed a decree for the sum of  Rs.  30,000/-.   The High Court upturned  it.   In  that connection,  while delivering the judgment of the Court,  it was observed by Mukherjea J., as he then was, at page 282 :-               "The question, however, arises whether, in the               absence  of any such alternative case  in  the               plaint  it  is open to the Court to  give  him               relief on that basis.  The rule undoubtedly is               that  the  Court cannot grant  relief  to  the               plaintiff  on  a case for which there  was  no               foundation  in  the pleadings  and  which  the               other  side  was  not called upon  or  had  an               opportunity to meat.  But when the alternative               case, which the plaintiff could have made, was               not  only  admitted by the  defendant  in  his               written   statement  but  was  expressly   put               forward  as an answer to the claim  which  the               plaintiff  made  in the suit, there  would  be               nothing  improper  in giving the  plaintiff  a               decree upon the case which the defendant  him-               self makes." (1) [1951] S.C.R. 277.      (2) [1956] S.C.R. 451. (3)  [1964]3 S.C.R. 634. 903 In  the  instant case, there is no question  of  giving  any alternative  relief to the plaintiff.  The relief asked  for is one and the same.  The plaintiff     claimed that she had acquired the property with her personal funds.The  defendant successfully combated this case. He had not said  anything on the basis of which any alternative relief could  be given to  the plaintiff.  The facts of the case of  Nagubai  Ammal (supra)  would clearly show that the decision of this  Court does not help the appellant at all.  The respondent did  not specifically  raise  the  question of  his  pending  in  his pleading  nor  was  an issue framed or. the  point,  but  he raised the question at the very commencement of the trial in his   deposition,  proved  relevant  documents  which   were admitted  into  evidence  without  any  objection  from  the appellants who filed their own documents, cross-examined the respondent  and invited the Court to hold that the suit  for maintenance  and  a  charge and  the  connected  proceedings evidenced  by  these documents were collusive  in  order  to avoid  the  operation of s. 52 of the Transfer  of  Property Act.   The matter was decided with reference to s.  52.   In such  a  situation  it  was held  by  this  Court  that  the decisions of the Courts  below were correct and in the facts and circumstances of thecase the omission of the respondent to specifically raise the questionof  his  pending  in  his pleading did not take the appellants by surprise.It  was  a mere  irregularity  which resulted in no  prejudice  to  the appellants.  In the instant case no body at any stage of the litigation before the appeal came up to this Court had taken any  stand  or  said a word any where that  money  spent  in acquisition  of the property was the personal money  of  the plaintiff because as and when the sums were spent they  went on  becoming her personal money.  The evidence  adduced  and the  stand  taken in arguments were  wholly  different.   No party had said anything on the lines of the case made out in this  Court.   Similar  is the position  in  regard  to  the decision  of  this Court in the case of Kunju  Kesavan.   At page 648 Hidayatullah J., as he then was,has stated,               "The.    parties   went   to    trial    fully               understanding  the  central fact  whether  the               succession  as  laid down in  the  Ezhava  Act               applied   to   Bhagavathi   Valli   or    not.

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             The  absence of an issue, therefore,  did  not               lead to a mis-trial sufficient to vitiate  the               decision." It  was further added that the plea was hardly necessary  in view of the plea made by the plaintiff in the replication. Mr.  Lal Narayan Sinha placed reliance upon the decision  of this  Court in Meenakshi Mills, Madurai v. The  Commissioner of  Income-tax, Madras(1) in support of his submission  that the question of benami is essentially a question of fact and this  Court  would not ordinarily and generally  review  the concurrent findings of the courts below in that regard.  Mr. Phadke   submitted  that  his  case  was  covered  by   some exceptionscarved  out  in the decision of  the  Federal Court in Gangadara Ayyarand others v. Subramania  Sastrjgal and others.(2) (1)  [1956] S.C.R. 691. (2)  A.T.R. 1949 F.C. 88. 904 In our opinion it is not necessary to decide as to on  which side  of the dividing line this case falls in the  light  of the  principles  enunciated,  in  the  case  aforementioned. Truly speaking, the concurrent findings of the Courts  below on  the,  primary facts could not be  seriously  challenged. They  are obviously correct.  But a new stand was taken  on’ the  basis  of  clause 18 of the waqf  deed  which  we  have already discussed and rejected. Mr.  Phadke, heavily relied upon clause 19 of the Win  dated 17-6-1938-Ext.  15  executed  by  the  Raja  fixing  various amounts  of stipends to be paid to the  beneficiaries  after his  death.  He had executed two other wills prior  to  this Will.  In an earlier litigation, a question had arisen as to which Will would prevail-the first one or the last one.  The amounts  fixed for the plaintiff in the last Will  was  much higher  than the amount fixed for her in the first Will.  in an  earlier  judgment  dated 3-9-1949-Ext.  3  which  was  a judgment  inter-partes it was held that the amount fixed  in the  first Will would prevail.  Clause 18 of the  waqf  deed was  also  interpreted  in a  particular  manner.   Mr.  Lal Narayan Sinha endeavoured to use this judgment operating  as res judicata in regard to some of the questions falling  for decision in this litigation.  We do not propose to make  use of that judgment in that form.  Nor do we propose to express any  final  opinion  as  to  which  amount  of  stipend  was effective-the  first one or the last one.  We. shall  assume in  favour  of the plaintiff that the. amount fixed  by  the last  Will  was  effective and  binding  on  the  subsequent Mutawalli.  We are, however, concerned to read clause 19  of the last Will which runs as follows               "My wife Siddique Fatima has got a kothi known               as  (main (?) Shagird Pasha in mauza  Doodhpur               (paper torn) by taking on perpetual lease.   I               or the state has no concern with the same.  It               has  been  ’constructed by her  with  her  own               funds.  All the articles lying there belong to               her  and have been purchased by her  from  her               own  money.   I  have  certainly  given   some               articles   to   her  which  belonged   to   me               personally.   In  short all the  articles,  of               whatever sort they may be are her property and               nobody  has got any right in  respect  thereof               because  the state or any one else has got  no               concern  or  right in respect  thereof.  Hence               she(?)  has got the right to dispose the  same               off  or to make a waqf of the same.   She  may               give  it  to  any  of  my  sons,  who  renders

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             obedience  and service to her or may give  the               same  to any of my grandsons.  My other  heirs               shall  have no right in respect  thereof.   If               any body brings, any claim, in order to harass               her, the same shall be false." Let  us  see whether this clause advances the  case  of  the appellant  any  further.  On a close scrutiny, it  would  be found  that it directly demolishes her stand taken  in  this Court.   The  recital by the Raja in clause 19 is  that  his wife bad taken the perpetual lease and constructed the kothi with her own funds.  All the articles lying there have  been purchased by her from her own money.  He had certainly given some  articles  to  her which belonged  to  him  personally. There is 905 no recital that the Raja had constructed the kothi ’,for the plaintiff out of his own funds nor was there a recital  that he  had constructed the kothi by taking the money  from  the waqf estate and treating it as payment of stipends to her as and when the sums of money were paid.  By no stretch of  law such  a  recital  could  create a title  in  favour  of  the plaintiff and finish the right of the, waqf to the property. The  recital was demonstrably false and could not  bind  the subsequent Mutawalli. If the property became the acquired property of the waqf a Mutawalli,as  the Raja was, by  his mere declaration contained in clause 19 ofthe Will  could not  make  it a property of the lady.  The recital  of  fact could  be  pressed  into service  only  to  lend  additional support  to the plaintiff’s case if she would have stuck  to that case and proved it by evidence aliunde. The   appellant’s   counsel   relied   upon   the    various circumstances  to,  advance  her  case  in  this   Court-the foremost  of them is based upon clause 18 of the waqf  deed, which  we  have already dealt with.  It was  next  contended that  the real question was that the property was  of  waqf- alal-aulad of which the main object was the maintenance  and support of the members of the settler’s family and to tie up the  corpus of the property in perpetuity so as to, make  it inalienable.The   Raja,   however,   according   to   the submission was left free duringhis  life  time  to  make disbursement of the income in any manner he chose and liked. Acquiring a property with the waqf fund was the  fulfillment of  the  object  of the wakf.  It was a  part  of  making  a provision for the maintenance and support of the wife of the Mutawallii.   It was an integral part of the object  of  the waqf  and  was  not  in breach of the  trust.   We  are  not impressed with this argument and have already dealt with  it in  the earlier portion of this judgment.  True it  is  that the  property was not acquired by the sale of the corpus  of any  of  the  waqf  property  but  even  acquisition  of  an immovable  property  directly  with the, waqf  fund  was  an accretion to the waqf property.  The Raja had no power while administering   the  waqf  to  acquire  a  property  for   a particular beneficiary by way of maintenance and support  of such a beneficiary.  As indicated earlier, a Mutawalli of  a waqt  although not a trustee in the true sense of the  terms is still bound by the various obligations of a trustee.   He like a trustee or a person standing in a fiduciary capacity, cannot  advance  his own interests or the interests  of  his close relations by virtue of the position held by him.   The use  of the funds of the waqf for acquisition of a  property by  a Mutawalli in the name of his wife ’would amount  to  a breach  of  trust  and the property  so  acquired  would  be treated  as waqf property.  In the tenth edition of The  Law of Trusts by Keaton and Sheridan it has been pointed out  at

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page 329, Chapter XX               "The  general  rule that a  trustee  must  not               take. heed of one beneficiary to the detriment               of others has already been discussed.  Put  in               another way, the rule implies that although  a               trustee,  may  be  the  servant  of  all   the               beneficiaries,  he is not the servant  of  any               one of them, but an arbitrator, who must  hold               the scales evenly." The  position of the Mutawalli under the.  Mahomedan law  is in  no way different and all the beneficiaries are  entitled to benefit equally, 7-329 SCI/78 906 of  course,  subject to the special power conferred  on  the Mutawalli as the one provided in clause 18 of the waqf  deed and to the extent and in the manner interpreted by us above. Exhibit  A-22-an account of daily expenses incurred  in  the construction  of  the  Kothi  was  attacked  as  a  spurious document. we do not attach much importance to Ext.  A-22  in face  of the other pieces of evidence to indicate  that  the expenses  were  all  met  from the waqf  fund.   It  is  not necessary to lay any stress on Ext.  A-22 Our attention  was drawn  to  some  statements made in  the  testimony  of  the defendant  himself who was examined as D.W. 2 and D.W.  1the brother  of the Raja.  It may be mentioned here  that  Hamid Hasan-brother  of the defendant was examined at  P.W.3.  The plaintiff had examined herself in the house in which P.W.  3 was  living and in his presence.  Without discussing in  any detail  a  few  lines here for a few lines  there  in  their evidence,  suffice it to say that their evidence  could  not and did not establish the plaintiffs case as made out in the Courts  below nor did they lend any support to the new  case made out here.  We, therefore, do not think it necessary  to encumber  this  judgment  by a detailed  discussion  of  the evidence, because it has all been dealt with in full by  the Trial Court and to a large extent by the High Court also. We  now proceed to consider, the law of benami prevalent  in India and especially in regard to acquisition of a  property by  the husband in the name of the wife.  We would  also  in this  connection  be  discussing whether  the,  doctrine  of advancement   is  applicable  in  India  or  any   principle analogous  to that can be pressed into service on behalf  of the  appellant  as  was sought to be  done  by  her  learned counsel.  Alongwith the discussion of the points  aforesaid, we shall be adverting to the appellant’s argument of  burden of  proof  being on the person to prove that  a  transaction which  is apparent on the face of the document of  title  is not  a real one but a benami deal.  In conclusion, we  shall show  that  neither the Trial Court nor the High  Court  has deviated from the application of the well-settled principles in this regard, although at places the Trial Court seems  to have apparently thrown the onus on the plaintiff.  But as  a matter of fact neither of the two Courts below has committed any error in the application (,it the real principle. In  Gopeekrist  Gosain  and Gungaparsaud  Gosain(1)  it  was pointed out as early as 1854, at page 72 :-               "It  is very much the habit in India  to  make               purchases  in the names of others,  and,  from               whatever cause or causes the practice may have               arisen, it has existed for a series of  years,               and  these transactions are known as  "Benamee               transactions." Lord  Justice  Knight Bruce proceeds to observe  further  at Pages 7475 that if the money for acquisition of property has

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been provided by a person other than the individual in whose name  the purchase was effected and if such a person  was  a stranger  or a distant relative of the person providing  the money,, "he would have. been prima (1)6 Moore’s Indian Appeals,- 53.. 907 facia a trustee". It was observed further that even when the purchaser  was  the son of the real  purchaser  the  English doctrine  of advancement was not applicable in India.   This case  was followed by the Board in Bilas Kunwar  and  Desraj Ranjit  Singh and others(1) Sir George Farwell has  said  at page 205 :-               "The   exception   in  our  law  by   way   of               advancement  in favour of wife or  child  does               not   apply   in   India   :   Gopeekrist   v.               Gangaparsaud;  (1854) 6 Moo, Ind.  Ap. 53  but               the  relationship is a circumstance  which  is               taken   into   consideration   in   India   in               determining whether the transaction is  benami               or  not.   The general rule in  India  in  the               absence of all other relevant circumstances is               thus  stated  by Lord Campbell  in  Dhurm  Das               Pandey  v.  Mussumat  Shama  Soondari  Dibiah-               (1843)  3 Moo.  Ind.  Ap. 229; "The  criterion               in  these cases in India is to  consider  from               what  source  the money comes with  which  the               purchase money is paid." Lord  Atkinson  reiterated  the same  view  in  Kerwick  and Kerwick  (2)  at page 278 in these terms : "In such  a  case there is, under the general law in India, no presumption  of an intended advancement as there is in England." It will be useful to quote a few lines from the judgment  of the Judicial Committee of the Privy Council delivered by Sir John Edge in the case of Sura Lakshmiah Chetty and others v. Kothandarama  Pillai ( 3 ) The lines occurring at  page  289 run thus :               "There can be no doubt now that 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  advance-               ment of the wife does not apply in India."               In  the  well-known  treatise of  the  law  of               Trusts  referred to above the learned  authors               say at page 173 :-               "The best example of a trust implied by law is               where  property is purchased by A in the  name               of B; that is to say, A supplies the purchase-               money,  and B takes the conveyance.  Here,  in               the absence of any explanatory facts, such  as               an intention to give the property to B, equity               presumes  that  A  intended  B  to  hold   the               property in trust for him. " It may here be made clear that much could be said in  favour of  the  appellant  if  the Raja  would  have  acquired  the property with his own money intending to acquire it for her. But such an intention was of (1)  42 Indian Appeals, 202. (2)  47 Indian Appeals, 275. (3)  52 Indian Appeals, 286.

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908 no avail to the appellant when the money for the acquisition of  the  property came from the coffers of the  waqf  estate over  which the Raja had no unbridled or uncontrolled  power of  ownership.  He was himself in the position of a  trustee owing  a duty and obligations to the beneficiaries.  He  had no free volition in the matter to spend and invest the trust fund in any manner he liked and for showing undue  advantage to his wife. At  one stage of the argument Mr. Phadke felt  persuaded  to place reliance upon the decision of Yorke and Agarwal JJ  in Mt.   Sardar  Jahan and others v. Mt.  Afzal  Begam(1).   At page  291, column 1 the observation seems to have been  made per in curium to the effect:-               "As regards this question of pleading, it does               not  appear to us that there was  anything  to               prevent the plaintiff from falling back on the               plea of advancement in case she was unable  to               satisfy  the  court that the  moneys  expended               were her own."               Yorke  J realised the inaccuracy of the  above               proposition and said so in Mt.  Siddique Begam               v.  Abdul Jabber Khan and others(2)  and  then               concluded at page 312 column 1 thus :-               "In  point  of fact it has been laid  down  by               their  Lordships  in earlier  cases  that  the               burden of proof that a transfer is benami does               lie  in  the first instance  upon  the  person               asserting  it  to be so, but  that  burden  is               discharged  upon the said person showing  that               the purchase money was provided by him."               In  the  case of Gangadara  Ayyar  and  others               (supra)   Mahajan  J.,  enunciated   the   law               pithily,  if  we may say so with  respect,  in               paragraph 14 at page 92 :-               "It   is   settled  law  that  the   onus   of               establishing  that a transaction is benami  is               on the plaintiff and it must be strictly  made               out.  The decision of the Court cannot rest on               mere suspicion, but must rest on legal grounds               and  legal  testimony.   In  the  absence   of               evidence, the apparent title must prevail.  It               is also well established that in a case’ where               it is asserted that an assignment in the  name               of one person is in reality for the benefit of               another,  the real test is the  source  whence               the consideration came and that when it is not               possible to obtain evidence which conclusively               establishes or rebuts the allegation, the case               must be dealt with on reasonable probabilities               and  legal inferences arising from  proved  or               admitted facts."               While  dealing with the question of burden  of               proof,  one  must  remember  a  very  salutary               principle  reiterated by this Court  in  Kalwa               Davadattam  and  two others v.  The  Union  of               India  and  other(3) at page  205.   Says  the               learned Judge:-               (1)   A.I.R. 1941, oudh, 288.               (2)   A.I.R. 1942, Allahabad, 308.               (3)   [1964] 3 S.C.R. 191.                909               The  question  of onus probandi  is  certainly               important  in the early stages of a case.   It               may  also assume importance where no  evidence

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             at  all is led on the question in  dispute  by               either  side; in such a contingency the  party               on whom the onus lies to prove a certain  fact               must  fail.  Where however evidence  has  been               led by the contesting parties on the  question               in issue, abstract considerations of onus  are               out  of place; truth or otherwise of the  case               must always be adjudged on the evidence led by               the parties." Shinghal  J.  recently followed this dictum in the  case  of Union of India v.   Moksh  Builders and Financiers Ltd.  and ors. etc.(1) at page 973. Mr.  Phadke heavily relied upon the decisions of this  Court in (1)    Kanakarathanammual v. V. S. Loganatha Mudaliar and another(2) (2) Jaydayal Poddar (deceased) through his L.  Rs and  another  v.  Mst.   Bibi  Hazra  and  ors(3)  and   (3) Krishnanand  v. The State of Madhya Pradesh (4). A  question of some fine distinction arose in Kanakarathanammal’s  case. The question was whether the property purchased in the  name of  the wife by the money given to her by the husband was  a property gifted to her under section 10(2) (b) of the Mysore Hindu  Law women’s Rights Act, 1933 or was it a property  in which  fell under clause (d) of section 10(2).  If it was  a property  gifted  by  the  husband to  the  wife,  then  the appellant’s  contention was right and it became  a  property gifted  under section 10(2) (b).  If, on the other hand,  it was  a  property  purchased with the  money  gifted  by  the husband  to  the  wife, then it would  not  be  so.According tothe  finding  of  the Courts below, the  whole  of  the consideration waspaid  by the appellant’s father and  not by her mother. The majorityview       expressed        by Gajendragadkar  J., as he then was, at page 9 of the  report is  :-               "We   have carefully considered the  arguments               thus presented to us by the respective parties               and   we  are  satisfied  that  it  would   be               straining  the language of s. (2)(b)  to  hold               that the property purchased in the name of the               wife  with  the  money gifted to  her  by  her               husband  should  be  taken  to  amount  to   a               property gifted under s. 10(2) (b)." It would thusbe  seen that indisputably in that  case  the property was of the wife. The  only dispute was  whether the property itself was acquired as agift    from     her husband  or it was acquired with the money gifted to her  by the husband.  In our opinion, therefore, this case is of  no help, to the appellant in this appeal. In Jaydayal  Poddar’s case  (supra) one of us (Sarkaria J.) while  delivering  the judgment  on  behalf of the Court was dealing  with  a  case where  the  question was whether the property  purchased  by Abdul Karim in the name of his wife Mst.  Hakimunnissa was a benami purchase in the name of the latter.  The Trial  Court held that she was benamidar.  The High (1) [1977] 1 S. C.R. 967. (2)  [1964] 6 S.C.R. 1 (3)  [1974] 2 S.C.R. 90. (4)  [1977]1 S.C.R. 816. 910 Court reversed the decision and held that the plaintiffs had failed  to  show that Mst.  Hakimunnissa in whose  name  the sale-deed  stood,  was  only a benamidar and  not  the  real purchaser.   While affirming the view of the High Court,  it was aptly said at pages 91-92 :--               "It is well settled that the burden of proving               that  a  particular  sale is  benami  and  the

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             apparent  purchaser  is not  the  real  owner,               always rests on the person asserting it to  be               so. This burden has to be strictly  discharged               by  adducing  legal  evidence  of  a  definite               character  which would either  directly  prove               the fact of Benami or establish  circumstances               unerringly and reasonably raising an inference               of that fact.  The essence of a benami is  the               intention  of the party or parties  concerned;               and not unoften such intention is shrouded  in               a  thick veil which cannot be  easily  pierced               through.  But such difficulties do not relieve               the  person  asserting the transaction  to  be               benami  of any part of the serious  onus  that               rests  on him; nor justify the  acceptance  of               mere conjectures or surmises, as a  substitute               for  proof.   The reason is that a deed  is  a               solemn  document prepared and  executed  after               considerable   deliberation  and  the   person               expressly shown as the purchaser or transferee               in   the   deed,  starts  with   the   initial               presumption  in his’ favour that the  apparent               estate  of  affairs  is  the  real  state   of               affairs.   Though  the  question,  whether   a               particular sale is Benami ornot, is largely               one   of  fact,  and  for   determining   this               question,no absolute formulae or acid tests,               uniformally applicable inall situations,  can               be   laid   down;   yet   in   weighing    the               probabilities  and for gathering the  relevant               indicate,  the  courts are usually  guided  by               these  circumstances  : (1)  the  source  from               which the purchase money came; (2) the  nature               and  possession  of the  property,  after  the               purchase;  (3) motive, if any, for giving  the               transaction a benami colour; (4) the  position               of  the parties and the relationship,  if  any               between   the   claimant   and   the   alleged               benamidar; (5) the custody of the  title-deeds               after  the  sale and (6) the  conduct  of  the               parties concerned in dealing with the property               after the sale.               The  above  indicate are  not  exhaustive  and               their  efficacy varies according to the  facts               of  each case.  Nevertheless no. 1,  viz.  the               source whence the purchase, money came, is  by               far  the most important test  for  determining               whether  the sale standing in the name of  one               person  is  in  reality  for  the  benefit  of               another." Apart  from the fact that in the present appeal we  are  not concerned with a simple case of purchase of the property  by the husband in the name of the wife with his own money,  the purchase  being  with  the waqf  money,  even  applying  the principles  extracted  above it would be  noticed  that  the concurrent  findings of the courts below that the  appellant was benamidar on behalf of the waqf does not suffer from any infirmity to justify our interference with the said finding. ]’lie burden has been strictly discharged by the  respondent so much 911 so  that the finding as recorded could not be assailed.   It was merely attempted to be availed of to support a new  case in  this  Court.  It should be remembered that ’by  far  the most  important  test  for  determining  whether  the   sale

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standing  in  the name of one person is in reality  for  the benefit  of another’-namely the source whence  the  purchase money  came has been established beyond doubt.   The  nature and  possession  of the property after the  acquisition  was such that it did not lead to the conclusion that it was  not a  waqf property and was a property in exclusive  possession of   the  appellant  through  her  tenants  including   tile respondent.  The motive to, acquire the property in the name of  the  wife is clearly spoken of by D.W.I.brother  of  the Raja  when he said at page 37 of the paper book "Raja  Sahib was also present at the time of the execution of the  lease. At that time there was no debt against him.  On being  asked by  me he said that the plaintiff used to, trouble  him  and that  in  order to please her he was  getting  a  fictitious lease  executed  in  her  favour." It  was  argued  for  the appellant  that the Raja wanted to make a provision for  his young wife to protect her interests from being trampled with by  her sons and daughters.  This is not correct.   Although the defendant was not pulling on well with the Raja after he had married the plaintiff, according to her own case pleaded ’in  the plaint she was pulling on well with  the  defendant upto  the  year  1950 and the  relations  between  them  got strained  when her daughter was married to  Saiyed  Mohammed Raja  Ali  Khan.  The position of the parties,  namely,  the Raja and the plaintiff, was such that one could be  inclined to  believe that in all probability the Raja  could  provide funds  for acquisition of the property not only in the  name of  his  wife but for her and her alone provided  the  funds expended  were his personal funds. But no such inference  is possible on the unmistakable position of thiscase  that the  funds  came  from the coffer of the  waqf  estate.  The custody  of the title-deed and other papers, except  a  few, were not with the plaintiff.  But on the facts of this  case one,  cannot  attach much importance  to  this  circumstance either way.  The conduct of the parties concerned in dealing with the property after acquisition also goes in favour  the defendant and against the plaintiff. It   could  not   be shown  that the plaintiff bad realised rent from  the  other tenants  who  had  been  there in  the  Kothi  before  1947. Nor  was there anything to show that the  defendant  himself was inducted as a tenant in the Kothi by the plaintiff.  We, therefore, hold that even on the application of the salutary principles  of law enunciated in Jaydyal Poddar’s  case  the appellant cannot succeed.  This case was merely followed  in Krishnanand’s case by Bhagwati J. We  may again emphasize that in a case of this  nature,  all the  aspects  of the benami law including  the  question  of burden  of proof cannot justifiably be applied fully.   Once it  is  found, as it has been consistently found,  that  the property  was acquired with the money of with the  money  of the  waqf, a presumption would arise that the property is  a waqf  property irrespective of the fact as to in whose  name it was acquired.  The Mutawalli by transgressing the  limits of  his  power  and  showing undue  favour  to  one  of  the beneficiaries in disregard to a large 912 number of other beneficiaries could not be and should not be permitted   to  gain  advantage  by  this  method  for   one beneficiary  which in substance would be  gaining  advantage for   himself.   In  such  a  situation  it  will   not   be unreasonable  to say-rather it would be quite legitimate  to infer,  that it was for the plaintiff to establish that  the property  acquired  was her personal property  and  not  the property of the waqf Is it possible to decree her appeal  in face of her three varying stands in the three courts ?  They

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are  (1) in the Trial Court-case of acquisition of  property with  her personal money; (2) in the High  Court-acquisition of  property with the personal money of her husband and  (3) in  this  Court-the  waqf fund invested from  time  to  time became  her  personal money and enabled her to  acquire  the property. For  the  reasons stated above, we dismiss the  appeal,  but with  this  direction that the parties will bear  their  own costs throughout. Before  we  part  with this case, we would like  to  put  on record  that a suggestion was thrown from the Court  to  the parties  to arrive, at some kind of lawful settlement  which may  not  go  against  the terms of the  waqf  deed  or  the Mahomedan  law  in relation to waqf.  Pursuant to  the  said suggestion,  an offer was made on behalf of the  substituted respondents  to pay a sum of Rs. 30,000/- to the,  appellant within  a period of one year.  This was on the  footing,  as suggested  by  the Court, as if the lease-hold in  the  land upon  which  the  Kothi  stands  was  the  property  of  the appellant,  but  the Kothi was of the  waqf.   Unfortunately this offer was not accepted by the appellant.  Still we hope and  trust that the respondent will honour their  unilateral offer  and  pay  the sum of Rs. 30,000/-  to  the  appellant within  a  period of one year from today,  preferably  in  4 three-monthly  equal instalments of Rs. 7,500/-  each.   The amount  so  paid would be over and above the  duty  and  the obligation  which  is there under the waqf  on  the  present Mutawalli out of the substituted respondents.  We have tried to  take  a  compassionate view for the  appellant  to  the, extent to which we thought we could justifiably go.  We have relieved  her of costs in all the three Courts.  We  believe that the respondents will not belie our hopes merely because an  executable decree in respect of the sum of Rs.  30,000/- in absence of them acceptance of the offer by the  appellant cannot be passed. S.R.                                  Appeal dismissed. 913