JUDGMENT Abhay M. Naik, J. Plaintiffs/respondents No. 1 to 3 instituted a suit for declaration and restoration of possession against Kallu Khan (Predecessor of the present appellants) with the allegations that they are the sons of late Rahim Bux. Karim Bux alias Chhingu, the father of Rahim Bux, had two wives. One of them was Neema Bai, who was from a poor 'Kori' family and was converted to Muslim. Rahim Bux was engaged in the business of Bidi manufacture. He was also engaged in the purchase and sale of plots and houses. Two plots bearing Nos. 3268 and 3266 situated at Damoh were purchased by Karim Bux vide registered sale deed in the name of Neema Bai in the year 1943. The plots were purchased in her name as 'Benami' and Karim Bux continued to be their true owner. A house was constructed on a portion of the plots. After the death of Karim Bux, in the year 1946, the suit property was inherited by Rahim Bux, who died on 13-7-1980. Consequently, the plaintiffs/respondents No. 1 to 3 being the sons of Rahim Bux, inherited the suit property and have been continuing in its possession. Their names have also been entered into the record of the Municipal Council. The defendant occupied the suit property as tenant of Rahim Bux. Consequently, in the year 1954, another portion of suit property was also provided to him. A Civil Suit was instituted for eviction and recovery of arrears of rent by Rahim Bux against the defendant in the Court of Third Civil Judge Class-II Damoh. The defendant took a plea that the suit property was gifted to him by Neema Bai. The suit was dismissed. However, the defendant continued in unauthorised possession of the suit property. Since the title was disputed by the defendant, the plaintiffs instituted the suit for declaration of title as well as restoration of possession. In the written statement, it has been contended that the plot was purchased by Neema Bai and the construction was also made by her with the aid of her own money. It has been denied that the suit property devolved upon the plaintiffs. It has been specifically pleaded that in the earlier round of litigation, the gift set up by the defendant was upheld and this finding would operate as res judicata. It has been denied that the suit property devolved upon the plaintiffs. It has been specifically pleaded that in the earlier round of litigation, the gift set up by the defendant was upheld and this finding would operate as res judicata. It has been reiterated that Neema Bai executed an oral gift in favour of the defendant which was accepted by the latter. Accordingly, a prayer for dismissal of the suit has been made. Learned trial Judge decreed the suit in favour of plaintiffs/respondent Nos. 1 to 3 vide judgment and decree dated 29-8-1988, which has been upheld by the learned Lower Appellate Court vide impugned judgment and decree dated 11-1-1991. Aggrieved by the aforesaid, the present appeal has been preferred which has been heard on the following substantial questions of law :-- (1) Whether the judgment and decree of the lower Appellate Court are vitiated being in disregard of the provisions of Benami Transaction (Prohibition) Act, 1988 ? If so, the effect ? (Formulated on 30-10-1991) (2) Whether the judgment and decree passed in Civil Suit No. 7-A/1979 is having effect of res judicata in the matter and the suit was barred u/s 12 of CPC ?" (Formulated on 25-1-2007) (3) Whether theory of Benami Transaction is recognised under Muslim Law? (4) Whether the findings about Benami Transaction is vitiated due to perversity on account of non-consideration of relevant factors ? (5) Did the plaintiffs inherit the suit property from Neema Bai under Muslim Law ? (Formulated on 16-7-2007) As regards substantial question of law No. 1, it may be seen that section 4(1) of Benami Transaction (Prohibition) Act, 1988, lays down that no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. This section shall be deemed to have been come into force on 19-5-1988. Hon'ble Supreme Court of India in the case of R. Rajagopal Reddy (dead) by L.Rs. and others Vs. This section shall be deemed to have been come into force on 19-5-1988. Hon'ble Supreme Court of India in the case of R. Rajagopal Reddy (dead) by L.Rs. and others Vs. Padmini Chandrasekharan (dead) by L.Rs., has held that sub-sections (1) and (2) of section 4 of the Act cannot be treated to be impliedly retrospective so as to cover all the pending litigations in connection with enforcement of such rights or real owners who are parties to benami transactions entered into prior to the coming into operation of the Act and specially section 4 thereof. The Suit in question was instituted on 4-12-1985 and the property in question was purchased in the name of Neema Bai vide registered sale deed dated 3-7-1943. Thus, the suit in question having been filed prior to coming into force of the said Act, the provisions of Benami Transaction (Prohibition) Act, 1988 have no applicability. Accordingly, substantial question of law No. 1 is answered against the appellants. Substantial question of law No. (2), is in respect of applicability of principle of res judicata on account of the outcome of earlier litigation arising out of Civil Suit No. 7-A/79. Its judgment is on record as Ex.D/1 which reveals that Rahim Bux had instituted a suit against Kallu Khan for eviction and arrears of rent. It was stated in the suit that plaintiff was owner-cum-landlord of the property in question and the defendant was his tenant @ Rs. 35/- per month as rent. Eviction was sought on the ground of bona fide need of plaintiffs son, namely, Dr. Aziz, who happens to be the plaintiff/respondent No. 1 in the present case. Since the defendant had denied the title of the plaintiff, eviction was also sought on the ground of denial of title. Defendant Kallu Khan while denying the claim of the plaintiff submitted that he is nephew of Dhaniya, who was sister of Neema Bai. Since the defendant looked after Neema Bai and took her care, the property in question was gifted orally to him by Neema Bai in the year 1952. Thus, he became the owner of the property in question and has also acquired title by virtue of adverse possession. Since the defendant looked after Neema Bai and took her care, the property in question was gifted orally to him by Neema Bai in the year 1952. Thus, he became the owner of the property in question and has also acquired title by virtue of adverse possession. Learned Court of Third Civil judge Class-II, Damon, dismissed Suit No. 7-A/1979 of the plaintiff vide Ex.D/1 holding that the relationship of the landlord and tenant between Rahim Bux and Kallu Khan was not established. He also found that Kallu Khan had become owner of the suit property by virtue of gift made by Neema Bai in the year 1952. However, in the judgment rendered by the Appellate Court vide Ex.D/2, it was held that the decision on the question of ownership in favour of defendant can be treated as redundant and can be ignored because question of title of defendant was beyond the scope of the suit of Rahim Bux in view of its nature. Substantial question of law No. (2) is also answered against the appellants and, accordingly, it is held that the judgment and decree passed in C.S. No. 7-A/79 has no negative bearing on the impugned judgment. Following substantial questions of law No. (3) to (5) were formulated on 16-7-2007 and the parties were provided with opportunities to address on these substantial questions of law on 20-7-2007 and 24-7-2007. Although, a plea in the written statement has been taken that theory of Benami Transaction is not recognized under Muslim Law, but the same has not been substantiated by the learned counsel for defendants/appellants for obvious reason that nothing could be said in its support. As regards the legal position, I may safely refer to Article 423 of Muslim Law by Faiz Badruddin Tyabji, Fourth Edition, which runs as follows : Article 423. The purchase by a Muslim of property in the name of his son or wife or other person, will, unless there are circumstances indicating that a gift was intended, ordinarily be considered to be benami or farzi, and the property to belong to the person who paid the purchase money: but very little evidence might be sufficient to turn the scale. In view of the aforesaid and that further I could not get anything contrary, it is held that the theory of Benami Transaction does apply to Muslims and the substantial question of law No. (3) is, accordingly, answered against the defendants/appellants. As regards substantial question of law No. (4), it may be seen that the learned trial Judge raised issue No. (5) that whether the suit property (plot and house) was purchased by late Neema Bai and whether it was occupied by her as owner after construction of the house. Since the plaintiffs instituted the suit with the allegations that their grand-father purchased the plot in the name of his wife in a Benami manner, it was, obviously, obligatory on the part of plaintiffs to prove that their grand-father, namely, Chhingu alias Karim Bux, was the real owner. In this view of the matter, issue No. (5) could not have been couched by the trial Court in a manner so as to place the burden to prove title of Neema Bai on the defendant. Neema Bai was the purchaser of the suit property vide registered sale deed dated 3-7-1943 and it could not have been legally required to prove that she was the true owner by virtue of the said sale deed. I may conveniently refer to the decision of the Hon'ble Supreme Court of India in the case of Heirs of Vrajlal J. Ganatra Vs. Heirs of Parshottam S. Shah, , wherein it has been held that the burden of proof is on the person who asserts that it is a benami transaction. Accordingly, the Courts below ought to have viewed from the angle that it was for the plaintiffs to prove that the grandfather (Chhingu alias Karim Bux) was the true owner of the suit property and that Smt. Neema Bai was, merely, a Benamidar. Since both the parties have adduced evidence with full awareness about the scope of controversy between them, none of the parties may be said to be prejudiced on account of wrong placement of burden of proof. However, the matter is required to be examined from the settled view point that the plaintiffs in the present case having asserted the plea of Benami were and are required to establish that their grand-father was the real owner of the suit property and his wife Smt. Neema Bai was, merely, a Benamidar. However, the matter is required to be examined from the settled view point that the plaintiffs in the present case having asserted the plea of Benami were and are required to establish that their grand-father was the real owner of the suit property and his wife Smt. Neema Bai was, merely, a Benamidar. Although, the finding of the learned trial Judge in favour of plaintiffs regarding the ownership of the suit property has been upheld by the lower Appellate Court, but the same is not found sustainable in view of the fact that the learned trial judge while deciding this issue (i.e. issue No. 5) has first discussed the evidence of defendants that how it is not proved that the disputed property was purchased by Neema Bai by the aid of the property inherited by her from her previous husband. It has been observed in paragraphs 15 and 16 of the judgment of the learned trial Judge that the defendants/appellants failed to prove that how much money was brought by Neema Bai after the death of her previous husband and how much money was possessed by her to enable her to purchase the suit property. It has been specifically found by the learned trial Judge that the defendants failed to prove that Neema Bai purchased the plot with the aid of the property inherited by her from her previous husband and that she constructed a house on the disputed plot. Learned trial Judge further observed that it is clear from perusal of Ex.P/1 (registered sale deed dated 3-7-1943) and the application marked as Ex.P/7 that the disputed plot was purchased by Chhingu in the name of his wife Neema Bai. Although, this Court will examine Ex.P/1 and P/7 in succeeding paragraphs, but suffice is to say that the approach of the learned trial Judge itself was contrary to law laid down by the Apex Court that the plaintiffs who asserted the plea of Benami Transaction, were required to prove it. This apart, it is again a settled law that in a suit for title, the plaintiff may succeed on the strength of his own evidence and is not entitled to be benefited by the weakness of defendant's evidence. This being so, it was incumbent on the trial Court to first consider the gravity of plaintiffs' evidence before considering the deficiency in the evidence of the defendant. This being so, it was incumbent on the trial Court to first consider the gravity of plaintiffs' evidence before considering the deficiency in the evidence of the defendant. Hon'ble Supreme Court in the case of Jaydayal Poddar (Deceased) through L.Rs. and Another Vs. Mst. Bibi Hazra and Others, has held that "though the question whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formula or acid test, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, 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, forgiving 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 property after the sale." This Court is now required to examine whether the aforesaid circumstances or how many of them are established by the plaintiffs. As regards source of purchase money, it may be seen that the disputed property was purchased from Premdas and Laxmandas vide registered sale deed dated 3-7-1943. Sale deed was witnessed by Balmukund and Shankardas. Neither the vendor nor the witnesses of the sale deed (Ex.P/1) were examined to prove that the purchase money was provided by Chhingu. In the sale deed itself, there is no mention that the amount of consideration was provided to Smt Neema Bai by her husband. None of the witnesses of plaintiffs has stated on oath that he was present at the time of execution of Ex.P/1 and that the amount of consideration was paid by Chhingu for the purchase of the suit property by Neema Bai. Plaintiffs have examined few witnesses who have stated that the construction of the disputed house was made by Chhingu by his own money. However, it is revealed in the statements of PW/1 (plaintiff Abdul Aziz paragraph 15) and PW/2 (Sheikh Jumman paragraph 4), that Chhingu used to make entries of the expenses incurred in the construction of house in the ledgers which were maintained by him. No such ledgers were produced by plaintiffs. However, it is revealed in the statements of PW/1 (plaintiff Abdul Aziz paragraph 15) and PW/2 (Sheikh Jumman paragraph 4), that Chhingu used to make entries of the expenses incurred in the construction of house in the ledgers which were maintained by him. No such ledgers were produced by plaintiffs. On the contrary, PW/5 (Ramjan Khan) in paragraph 9 of his statement has expressed his ignorance about the financial condition of Neema Bai. This witness did not support the plaintiffs that Neema Bai was financially very weak and was unable to make the purchase. 15. Learned trial Judge has placed much reliance on Ex.P/7 to hold that the suit property was purchased by Chhingu in the name of his wife Neema Bai. Ex.P/7 is an application dated 11-1-1943 which was submitted by Chhingu alias Karim Bux before the Municipal Council Damoh, stating therein that he had purchased property in the name of Neema Bai, and his name may be substituted in her place. There is no positive order on record which may be said to have been passed on this application. The application seems to have been processed a little inasmuch as the Patwarl was directed to submit it along with map on the proceeding book vide endorsement dated 15/1. Reliance of the trial Court on this document (i.e. Ex.P/7) is totally erroneous for the reason that the suit property itself was purchased vide registered sale deed dated 3-7-1943 marked as Ex.P/1. If the property was purchased in the month of July, 1943, no application for correction in the name of mutation could have been submitted prior to the date of purchase. Ex.P/1 is of 11-1-1943 which could have no relation with the property which was not purchased till then by Neema Bai. Since the suit property was purchased by Neema Bai in July 1943, the application submitted in the month of January, 1943, could have no nexus with the suit property and the learned trial Judge has clearly committed an illegality in placing reliance on Ex.P/7 for arriving at the conclusion that Chhingu alias Karim Bux was the true owner of the suit property. Observation of the learned trial Judge that from perusal of the registered sale deed Ex.P/1 and application Ex.P/7, it is clear that the transaction in favour of Neema Bai was Benami has no legal basis. Observation of the learned trial Judge that from perusal of the registered sale deed Ex.P/1 and application Ex.P/7, it is clear that the transaction in favour of Neema Bai was Benami has no legal basis. Ex.P/7 is already found to have no connection with the purchase which occurred afterwards. Reliance on Ex.P/1 for rendering a finding in favour of benami is equally without any basis because, firstly, in the sale deed Ex.P/1, there is no mention that the suit property was being purchased by Chhingu as Benami in the name of his wife, namely, Neema Bai. Secondly, there is no recital in Ex.P/1 that the amount of consideration was being paid by Chhingu alias Karim Bux. Neema Bai died in the year 1964. Municipal entries maintained in the house tax register are shown to be in favour of Rahim Bux (father of plaintiffs) from the year 1976 onwards. Neema Bai continued to remain recorded as owner of the suit property till her death. If the name of father of plaintiffs and, thereafter, of the plaintiffs were recorded after the death of Neema Bai, this by itself will not be decisive of the fact that Neema Bai was not the owner of the suit property, but was merely a Benamidar. Such entries contained in Ex.P/2 to Ex.P/7 are maintained for fiscal purpose like house tax and did not confer title on the plaintiffs' father and, thereafter, on the plaintiffs in the absence of adjudication about title in view of the law laid down by the Apex Court in Malkhan Singh vs. Sohan Singh, AIR 1986 SC 500 , para 10. Thus, neither from the registered sale deed contained in Ex.P/1; nor from the application Ex.P/7 and the municipal entries of subsequent years, it may be treated as proved that the plaintiffs established that their grandfather, namely, Karim Baksh was the real owner of the suit property and Neema Bai was, merely, a Benamidar. Now, this Court would examine that whether the guiding circumstances laid down by the Apex Court in Jaydayal Poddar vs. Bibi Hazra (supra) or any of them is established in the case in hands. As regards the source of purchase money, it has been observed above that there is absolutely no evidence to hold that the amount of consideration (i.e. purchase money) was provided to Smt. Neema Bai by Chhingu. As regards the source of purchase money, it has been observed above that there is absolutely no evidence to hold that the amount of consideration (i.e. purchase money) was provided to Smt. Neema Bai by Chhingu. It is admitted by the plaintiffs and other witnesses that Neema Bai continued to occupy the suit property after the purchase. It is not the case of plaintiffs that Neema Bai continued to occupy the suit property under any kind of permission from Chhingu. On the contrary, it is stated by the witnesses that Chhingu had several other houses of his own, whereas, after the purchase of the suit property Neema Bai resided in it continuously till her death. Chhingu died somewhere in the year 1946, whereas, Neema Bai died in the year 1964. Thus, it is amply clear that Neema Bai continued with the possession of the suit property in her own rights. Not only that, but it has been admitted by the witnesses of plaintiffs, (PW/1 Ghasso dated 1-1-1988-Chief Examination) and (PW/2 Hafizanbi dated 1-1-1988-Chief Examination) that Neema Bai during her life time used to realise the rent of the suit property and it is only after her death that plaintiffs or their father started realising the rent PW/3 Subratanbi has clearly stated in her cross examination that there were 7-8 tenants of Neema Bai who used to pay rent to her. Thus, there is no evidence on record that Neema Bai ever occupied the suit property not as a real owner but as a Benamidar. Apart from the aforesaid, it may further be seen that there is no evidence on record to establish the motive on the part of Chhingu to make purchase of the suit property in the name of Neema Bai as Benami. There is no such recital in the sale deed that the suit property was being purchased as Benami by Chhingu in the name of Neema Bai. None of the witnesses has stated in the Court that the purchase of suit property was meant for the benefit of Chhingu to the exclusion of Neema Bai. There is no such recital in the sale deed that the suit property was being purchased as Benami by Chhingu in the name of Neema Bai. None of the witnesses has stated in the Court that the purchase of suit property was meant for the benefit of Chhingu to the exclusion of Neema Bai. On the contrary, it is not unassumable or improbable that Chhingu who owned several houses and was having two wives would have entertained an idea of settling down Neema Bai (who was his second wife with no issue) by making purchase of the suit property in the name of Neema Bai and even by making a construction of house for the benefit of Neema Bai so that she may not be troubled after him by his first wife or sons from first wife. There is absolutely no evidence to dispel the notion on the part of Chhingu to provide a property independently to Neema Bai by allowing a purchase to be made in the name of Neema Bai alone. Thus, by the evidence on record, it is not established that there could be any motive with Chhingu to purchase the suit property in Benami manner. It may further also be seen that Neema Bai was not a stranger, but was the second wife of Chhingu. She was earlier a Hindu and was converted to Muslim as found by the Courts below. Thus, it could not have been unassumable that Chhingu on account of his relationship with Neema Bai and further on account of her being issueless would have thought of providing the suit property to Neema Bai to the exclusion of others. As regards custody of original title deed, it may be seen that the same is not proved to have been retained by Chhingu or plaintiffs or their father. Ex.P/1 which has been produced by the plaintiffs is not original sale deed, but is a certified copy of registered sale deed dated 3-7-1943. This being so, it is not proved that after purchase of the suit property, Chhingu ever retained the custody of the original purchase deed. It has come on record that the rent of the suit property was being realised by Neema Bai during her life time. It is only after her death that the plaintiffs or their father started realising the rent. It has come on record that the rent of the suit property was being realised by Neema Bai during her life time. It is only after her death that the plaintiffs or their father started realising the rent. There is no cogent evidence on record that even Chhingu realised the rent of the suit property during his life time. Thus, the conduct of the parties does not suggest that the suit property was purchased in the name of Neema Bai in Benami manner and that she was not the real owner of the suit property. Hon'ble Supreme Court in the case of Jaydayal Poddar vs. Bibi Hazra (supra) has observed 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 state of affairs is the real state of affairs" From this point of view, I find that the presumption of ownership in favour of Neema Bai is not dispelled by the evidence on record. Hon'ble Supreme Court in the case of Union of India (UOI) Vs. Moksh Builders and Financiers Ltd. and Others, has held that "although the onus of establishing that a transaction is 'benami' is on the plaintiff, where it is not possible to obtain evidence which conclusively establishes or rebuts the allegation, the case seems to be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts. In view of this principle, it is necessary to weigh the evidence and to decide whether, even if, it were assumed that there was no conclusive evidence to establish or rebut the "benami" allegation what would, on a careful assessment of the evidence, be a reasonable probability and a legal inference from relevant and admissible evidence." In the present case, on a careful appreciation of the facts on record, the reasonable preponderance of probability reaches to the conclusion that plaintiffs have failed to establish that the suit property was purchased by Chhingu in Benami manner and that Neema Bai was, merely, a Benamidar. In case of Vidhyadhar Krishnarao Mungi and Others Vs. In case of Vidhyadhar Krishnarao Mungi and Others Vs. Usman Gani Saheb Konkani and Others, , the Supreme Court has held that "the fact that the consideration was paid by the husband to the seller does not necessarily prove that the amount came from his own pocket. It is quite probable that the wife had entrusted the amount to him for payment to the seller." In the present case, there is no cogent or positive evidence that the amount of consideration was paid by Chhingu for the purchase in favour of Neema Bai. Such a fact is not mentioned in the sale deed (Ex.P/1) and further it is also not mentioned in it that the suit property was being purchased for the benefit of Chhingu. This apart, the documents in question and the documents on record are found to be consistent with the real ownership of Neema Bai and that she was not Benamidar for Chhingu. In case of Mr. Sardar Jahan vs. Mt. Afzal Begam, AIR 1941 Oudh 288, Hon'ble Division Bench has held that in order to hold "the transfer to be Benami and the transferee compelled to hold the property for the benefit of the person who has paid or provided the consideration, not only must it be shown that the consideration was paid or provided by another person but it must also be shown that it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee. In other words, it must be shown that there was no intention on the part of the person who paid or provided the consideration to do so for the benefit of the transferee." Thus, no doubt that the source from which the money comes is a valuable test, but to regard it as a sole and conclusive criterion to decide the case of Benami Transaction is not correct. It may be seen in the present case that there is no evidence to show that Chhingu had any motive for concealing his own ownership of the suit property. It is stated by plaintiffs that Chhingu owned several properties. If he could own other properties in his own name, there would not have been any motive to purchase the suit property in the name of Neema Bai as Benami. This negates the plea of Benami. It is stated by plaintiffs that Chhingu owned several properties. If he could own other properties in his own name, there would not have been any motive to purchase the suit property in the name of Neema Bai as Benami. This negates the plea of Benami. Thus, in the absence of any motive for making a Benami purchase, the only reasonable inference is that Chhingu did intend to do so for the benefit of Neema Bai herself. Registered sale deed dated 3-7-1943 is, obviously in favour of Neema Bai. There is no proof in true sense as to how and by whom the construction was made except the oral evidence. Plaintiffs' witnesses have stated at some places that the expenses incurred in the construction were written in the ledgers which were maintained by Chhingu. No such documents have been produced by the plaintiffs. Therefore, in the light of the evidence on record, it would not be wrong to assume that at the most Chhingu who could have purchased the suit property for the benefit of his second wife, namely, Neema Bai, he could have also provided a house to her by constructing it on the land purchased for Neema Bai. Division Bench of Calcutta High Court in the case of K.K. Das, Receiver and Others Vs. Sm. Amina Khatun Bibi and Another, has held :-- where a husband with his costs constructs a building on his wife's land knowing it to be his wife's, the latter is entitled to the building. There is no proof on record that Chhingu intended to reserve any right in the structure. On the contrary, it seems that he intended to make a provision exclusively for Neema Bai which would have provided habitation for Neema Bai as well as for him more comfortably. In view of the aforesaid discussion, it is found that the learned Courts below did not appreciate the material on record in correct perspective. On the contrary, appreciation was made illegally on wrong yardsticks in contravention of the law settled by the Supreme Court of India from time to time. In view of the aforesaid discussion, it is found that the learned Courts below did not appreciate the material on record in correct perspective. On the contrary, appreciation was made illegally on wrong yardsticks in contravention of the law settled by the Supreme Court of India from time to time. Findings of the Courts below with respect to title, though concurrent in nature stand vitiated due to ignoring the guidelines prescribed by the Apex Court in Jaydayal Poddar's case (supra) and further ignoring the human probability that a husband with two wives might have thought of settling down the second wife having no issue with a house property independent of first wife and her children. In the absence of any positive evidence to the contrary, finding of the Courts below with respect to tile is vitiated on account of non-consideration of this important human probability. Since it has already been held that plaintiffs have failed to prove the Benami nature of the registered sale deed dated 3-7-1943, substantial question of law No. (5) is answered against the plaintiffs. Findings of learned Courts below in this regard are, hereby, set aside. From the aforesaid findings, it now emerges that the suit property was owned by Neema Bai in her own rights. Neema Bai's husband, namely, Chhingu alias Karim Bux, had another wife, Munni Bai. Rahim Bux was father of plaintiffs and was son of Munni Bai. Thus, Neema Bai is step grandmother of plaintiffs. Under Muslim Law, no inheritance is recognised from step parents. I may refer to Article 84 of Mulla's Muslim Law which is reproduced below :-- "84. Step-children. -- Step-children do not inherit from step-parents, nor do step-parents' inherit from step-children." Thus, plaintiffs did not inherit the suit property from Neema Bai. Substantial question of law No. (5) is answered accordingly. It has also been found by the Courts below in a concurrent manner that defendants/appellants did not acquire title to the suit property on account of the alleged Hiba. Thus, neither the plaintiffs nor defendants have a right to the suit property and the property is liable to go to the Government by Principle of Escheat which is as follows as per Mulla's Muslim Law :-- 83. Escheat. -- On failure of all the heirs and successors above specified, the property of a deceased Sunni Mahomedan escheats to the Government. In the result, appeal succeeds in part. Escheat. -- On failure of all the heirs and successors above specified, the property of a deceased Sunni Mahomedan escheats to the Government. In the result, appeal succeeds in part. Impugned judgment and decree of the Courts below are, hereby, set aside. Suit of plaintiffs is dismissed. Registry is directed to send copies of tills judgment and decree to the State Government: and the Collector, Damoh, to initiate proceedings after expiry of 90 days for taking possession of the suit property. No order as to costs. Final Result : Allowed