' The respondents have been served. Respondents Nos.1, 7, 9 and 10 have not appeared despite service. They are, therefore, proceeded against ex parte. The remaining respondents have entered appearance through counsel, who has submitted this power of attorney.
2. The parties to this appeal are the lineal descendants of Rehmat Ullah (deceased). In order to have a better understanding of the case, it may be noted that the said Rehmat Ullah had six sons and two daughters. Dr. Muhammad Raiz Mirza (appellant No.1) and Mst. Nargis Bano (appellant No.2) are the son and daughter of Rehmat Ullah. The remaining five sons and one daughter or their L.Rs are the respondents arrayed in this appeal.
3. Rehmat Ullah died in 1992. According to the appellants, he was owner of the following three properties:
(1) Property No.8/434
(2) Property No.35/183
(3) Property No.8/449-452
4. Three sons and two daughters of Rehmat Ullah, namely Muhammad Younus, Abdul Haq, Muhammad Waris, Mst. Iqbal Begum and Mst. Nargis Bano filed a suit for administration and partition of the aforesaid properties. Dr. Muhammad Raiz Mirza (appellant No.1), Muhammad Yousuf Mirza (respondent No.1) and Muhammad Shabbir (respondent No.10) were arrayed as defendants in the said suit.
5. The respondent No.1, namely, Muhammad Yousuf Mirza also filed a suit claiming therein that he was the real and beneficial owner of Property No.8/434 and that his father Rehmat Ullah was merely a benami owner thereof. The two suits were, consolidated and decided by means of a common judgment, dated-- 19-10-2000 passed by the learned trial Court. The learned trial Court held that all three properties belonged to Rehmat Ullah (deceased) and were thus rightly subject- matter of the administration suit. While deciding the declaratory suit filed by Muhammad Yousuf Mirza it was held that Rehmat Ullah was the legal and beneficial owner of Property No.8/434.
However, it was also held that the said Muhammad Yousuf Mirza had expended a sum of Rs.700,000 on improvements mace to the said property. The said Muhammad Yousuf Mirza was thus held entitled to a claim of Rs.700,000 in the administration of Rehmat Ullah's estate.
6. Both parties felt aggrieved by the decision of the learned trial Court and, therefore, preferred appeals. The learned Appellate Court by means of a common judgment, dated 26-2-2004 held that Property No.8/434 was not part of the estate of Rehamt Ullah (deceased).
' Muhammad Yousaf Mirza (respondent No.1) was held to be the real and beneficial owner of the same.
7. This appeal and R.S.As. Nos. 66, 67 and 68/04 assail the appellate judgment and decree, dated 26-2-2004 as also the finding of the learned trial Court that respondent No.1 is entitled to claim Rs.7,00,000 in the administration suit.
8. At this point, it may be noted that four appeals were filed before the learned Appellate Court and were decided by means of common judgment. The learned Appellate Court also prepared one decree-sheet in respect of all four appeals. The appellants have, therefore, preferred four appeals which are being disposed of by this common judgment.
9. In order to appreciate the controversy between the parties and to appraise the evidence on record, it is first of all necessary to reproduce the issues which were framed by the learned trial Court.
"(1) Whether the defendant No.1 paid price of property mentioned in para. No. 1(i) of the plaint and he is owner in possession of the same and that Rehmatullah was only a Benamidar? OPD-1.
(2) Whether the defendant No.1 spent a sum of Rs.7,00,000 on the construction of building of the property mentioned in para. 1(i) of the plaint from his own pocket? OPD-1.
(3) If the above issues are not proved in affirmative, what will be the respective shares of the parties in disputed property and that the plaintiffs are entitled to possession through partition of their respective shares? OPP
(4) Relief."
10. Learned counsel for the appellants has taken me through the evidence on record. From the available evidence, it is clear that Property No.8/434 was auctioned by the Settlement Department on 17-5-1966 and Rehmatullah was the successful bidder at the auction. The sale in his favour was duly approved by the Settlement Department on 2-6-1966. These facts are established through Exh.D-39. The appellants also produced before the trial Court the receipts Exhs.D-26 to D-34, which show that payments for the disputed property were made by Rehmatullah himself to the Settlement Department. Finally a PTD, dated 17-8-1968 (Exh.D-18) was also issued by the Settlement Department in favour of Rehmatullah.
11. In order to show that Rehmatullah himself exercised.Full proprietary rights in the disputed property, the appellants also produced Exh.D-51 which is a site-plan, dated 21-10-1971 approved by the Municipal Committee, Sialkot on the application filed by Rehmmatullah himself.
12. The most important document, however, which establishes the fact that Rehmatullah himself was the legal and beneficial owner of the disputed property is Exh.P-6. This is a rent agreement between the firm Kalu Traders and Rehmatullah deceased. On Muhammad Mushtaq, who was a partner in the aforesaid firm, appeared as P.W.2 and deposed that the rent agreement was entered into with Rehamtullah himself and not with Muhammad Yousaf Mirza. He also testified that the rent was paid by the firm to Rehmatullah and not to Muhammad Yousaf Mirza. P.W.2 is an independent witness, whose credibility has not been undermined in cross-examination.
13. Another document which is relevant for the purpose of showing that Rehmatullah himself was the legal and beneficial owner of the disputed property is the PT1 Form (Exh.D-55) relating to the year, 1972-73. In this documents, Rehmatullah appears as the owner while the firm Kalu Traders appears as the tenant. This document also corroborates the testimony of Muhammad Mushtaq P.W.2.
14. The above evidence, in my opinion, was sufficient to establish that Rehmatullah was not a Benami owner but was vested with legal and beneficial title in the same.
15. At this juncture, it is important to note that the onus of proving his beneficial title was on Muhammad Yousaf Mirza. He did produce a number of witnesses but for reasons discussed below, I find that these witnesses were not helpful in proving the aforesaid issues. The reasoning of the learned Appellate Court while deciding Issue No.1 in favour of Muhammad Yousaf Mirza is also fallacious as discussed below.
16. Learned counsel for the appellants has taken me through the impugned appellate judgment. It has been observed therein that the oral evidence of Sh. Muhammad Sultan D.W.10, Muhammad Shafi D.W.11, Malik Muhammad Ikram D.W.15, Muhammad Rafiqe D.W.16 and Muhammad Yousaf Mirza himself as D.W.18, was relevant for the purpose of proving that Rehmatullah deceased was merely a Benami owner while beneficial title vested in Muhammad Yousaf Mirza.
17. Regrettably both Courts below appear not to have gone through the oral evidence. The respondent Muhammad Yousaf Mirza produced as many as 20 witnesses. A number of these witnesses deposed only to the effect that Muhammad Yousaf Mirza had raised construction on the disputed property. D.W.9 merley stated that Muhammad Yousaf Mirza had purchased a gate and railing from him. D.W.2 Muhammad lqbal deposed that the said respondent had purchased cement and Sariya from him. D.W.3 Maulvi Bashir stated that cement was purchased from him by the respondent Muhammad Yousaf Mirza. D.W.4 and D.W.5 are masons. According to their testimony, they were involved in the construction on the disputed property. D.W.7 Shakil Danish also deposed that he sold cement to the respondent. D.W.8 Bashir Ahmed deposed that the respondent purchased bricks from him.
18. D.W.8 Muhammad Ishaq is the owner of Modern Pipe Store. He sold certain building material to the respondent. He deposed on recollection it was either the son of Muhammad Yousaf Mirza respondent or his brother Riaz (appellant No.1 herein) who made payment for the material supplied by him. Likewise D.Ws.12, 13 and 14 also were witnesses to prove that they had sold building material to the respondent Muhammad Yousaf Mirza. These witnesses did not give any evidence to prove that Rehmat Ullah was a mere Benami owner of the disputed property.
19. The testimony of D.W.10, namely, Sh. Muhammad Sultan, who has been relied upon by the learned lower Appellate Court as a witness to prove that Rehmat Ullah was a Benamidar, is relevant. His evidence has been misread by the Appellate Court.
' He did depose that the respondent Muhammad Yousaf Mirza was the owner in possession of the disputed property. However, no basis for this statement was given by him. In his cross-examination he stated that the disputed property might have come to the respondent Muhammad Yousaf Mirza through inheritance from his father. This statement is clearly contrary to the claim made by Muhammad Yousaf Mirza that Rehmat Ullah was merely a Benamidar. It is also important to note that D.W.10 stated in his cross-examination that he considered Muhammad Yousaf Mirza to be the owner of the disputed property only because he was in occupation of the same and had raised construction thereon. Moreover, D.W.10 could not state if Rehmat Ullah had been in possession of the disputed property and had been paying rent to the Settlement Department. Nor could he deny the suggestion put to him that the payment for the disputed property was made to the Settlement Department by Rehmat Ullah. I do not see how the learned Appellate Court could possibly have considered the testimony of Sh. Muhammad Sultan (D.W.10) a proof of the Benami nature of Rehmat Ullah's title.
20. Muhammad Shafi (D.W.11), another witness relied upon by the lower Appellate Court, testified that Muhammad Yousaf Mirza was in occupation of the disputed property for a period of 5 years.
Since his evidence was recorded on 22-4-1996, this would mean that Muhammad Yousaf Mirza was in occupation of the disputed property since 1991. It is important to note that he acknowledged that although initially the property belonged to evacuee owners, Rehmat Ullah had taken possession and had purchased the property. I note that in his examination-in-chief D.W.11 deposed that the amount for the purchase of the disputed property had been paid by the respondent Muhammad Yousaf Mirza but the receipt for the payment was issued in the name of Rehmat Ullah.
This statement read in isolation could be taken as showing that Rehmat Ullah's title was Benami.
However, in his cross-examination he acknowledged that after the departure of the evacuee owners, Rehmat Ullah had taken possession of the disputed property. Most importantly, he acknowledged that it was Rehmat Ullah who used to pay rent to the Settlement Department and that thirty years earlier it was Rehmat Ullah who had purchased the property by making payment of a sum of Rs.45,000/46,000.
21. These witnesses (D.W.10 and D.W.11), who appeared on behalf of the respondent Muhammad Yousaf Mirza, have given evidence which is contrary to the case set up by him.
22. Malik Muhammad Ikrarn (D.W.15) was another witness produced by the respondent to prove issue No.1 and was relied upon by the learned Appellate Court. He deposed that construction was raised 8/9 years previously by the respondent Muhammad Yousaf Mirza. D.W.15 also deposed that the respondent Muhammad Yousaf Mirza had paid Rs.5500 for the house. However , he did not state the basis on which he made this statement. From his cross-examination it is clear that he was not at all involved with the parties of the disputed property, at the time Rehmat Ullah acquired title from the Settlement Department. It is thus evident that his testimony relating to Issue No.1 is, at best, hearsay eviden and, therefore, inadmissible for the purpose of proving the said issue. The testimony of Muhammad Rafique (D.W.16) is similar to that D.W.15) and suffers from the same defects. It is also significant that Sh. Muhammad Sultan (D.W.10) and Muhammad Shafi (D.W.11), whose testimony has been discussed in the preceding paragraphs, have given evidence which is contrary to the testimony of D.W.15 and D.W.16.
23. As noted above, the learned trial Court did not discuss the evidence of the above witnesses while the learned Appellate Court has clearly misread the same. On the basis of the testimony of the witnesses examined by the respondent Muhammad Yousaf Mirza I am not left in any doubt that their evidence was either not releVant for the purpose of proving Issue No.1 or it did not, in fact, support the respondent's case.
24. There is another important aspect of this case. The suit for administration and p:, rtition was filed on 23-5-1993 while the declaratory suit was filed by Muhammad Yousaf Mirza four years later on 13-5-1997. This itself is a material circumstances. It does appear that Muhammad Yousaf Mirza who was in occupation of the disputed Property No.8/434 filed his declaratory suit in order to prolong his exclusive occupation of the disputed property and to prevent its administration and partition. I do not see any valid reason as to why Muhammad Yousaf Mirza would have waited four years before filing his declaratory suit when the claim of his other brothers and sisters had been asserted through their suit seeking administration and partition of the disputed property alongwith the two other properties mentioned above.
25. The learned Appellate Court has brushed aside this aspect of the case by holding that the declaratory suit filed by Muhammad Yousaf Mirza was filed within the period of limitation. It is nobody's case that the declaratory suit filed by the respondent was time-barred. The appellant's learned counsel wanted the Court to infer from the inordinate delay in the filing of the respondent's suit, that the sam was a counterblast to the suit filed for the administration and partition of the properties left by Rehmat Ullah and was thus mala fide. In the circumstances discussed above, the learned trial Court rightly drew the inference suggested by learned counsel for the appellants.
26. In addition to the above, it is clear from the record that no motive for a Benami transaction has been brought out on record by Muhammad Yousaf Mirza. It is by now well-settled that the existence of a motive for creating a Benami title is relevant for the purpose of determining whether title vested in a person is merely Benami. The absence of any motive also goes against Muhammad Yousaf Mirza.
27. The learned Appellate Court as has given weight to the fact that the title documents relating to the disputed property were in the possession of Muhammad Yousaf Mirza. This by itself cannot be taken as proof of the Benami transaction because Rehmatullah had died in 1992 and it was but natural that the documents of title would be in the custody of one of his sons. The possession of title documents in cases relating to Benami transactions, assumes significance only where both Benmai owner and beneficial owner are alive and the documents of title are found to be in the custody of the beneficial owner. The fact that Muhammad Yousaf Mirza was in possession of the title documents does not, in the circumstances, advance his case.
28. The learned Appellate Court has not taken into account the above circumstances and has in fact relied on inadmissible evidence while holding that Muhammad Yousaf Mirza was able to prove issue No.
1. The finding of the learned lower Appellate Court on this issue is reversed.
29. Coming next to Issue No.2, the only evidence on record is that Muhammad Yousaf Mirza spent money on the construction of the disputed Property No.8/434. The appellants have led evidence to show that the construction was made as far back as 1971 when the site plan (Exh.D.51) was approved by the Municipal Committee, Sialkot. Subsequently, the property was also let out to the firm Kart]. Traders, as is proved through the form PT1 (Exh.D-5), the rent agreement (Exh.P-6) and the testimony of Muhammad Mushtaq P. W .
2.
30. Notwithstanding the above position, even if it is established on record that Muhammad Yousaf Mirza had in fact spent money on the disputed property, this will not give rise to a claim of Rs.7,00,000 against the estate of Rehmatullah. The learned trial Court had a awarded a sum of Rs.7,00,000 to Muhaminad Yousaf Mirza on purely conjectural grounds. It was held by the learned trial Court that since Muhammad Yousaf Mirza was residing in the disputed property "he must have made constructions over that property out of his own pocket". Spending of money by Muhammad Yousaf Mirza on the property does not justify a claim against the estate of Rehmatullah deceased without proof that there was an agreement or even an informal understanding between Muhammad Yousaf Mirza and Rehmatullah, whereby Rehmatullah had agreed that money spent by Muhammad Yousaf Mirza on the disputed property would be claimable by him from Rehmatullah or his estate. The evidence on record does not show any such agreement or understanding between Rehmatullah and Muhammad Yousaf Mirza.
31. The learned trial Court while deciding Issue No.2 has proceeded on an erroneous basis which is not tenable in law. In order for a person to be entitled to a monetary claim against the estate of a deceased person it is necessary for such person to establish that he was a creditor of the deceased. Only upon proof that the deceased was a debtor and had assumed liability for repayment of a debt, can an amount be awarded to a creditor in the administration of the estate of the deceased. In the present case, there is no evidence at all to prove that the respondent Muhammad Yousaf Mirza was a creditor of Rehmat Ullah (deceased). The respondent, in the circumstances, is not entitled to any amount from the estate of Rehmat Ullah even though he may have expended money on the construction of the disputed property.
32. At this point, it is important to note that Muhammad Yousaf Mirza was occupying the disputed property and continued to do so, to the exclusion of his brothers and sisters, even after the death of Rehmatullah. In the circumstances, if anything, he would have been liable for mesne profits had his brothers and sisters pressed a claim in this behalf.
33. In the foregoing circumstances, these appeals are allowed. Both issues Nos. 1 and 2 are decided in the negative.
34. As a result of the foregoing discussion, the declaratory suit filed by Muhammad Yousaf Mirza is dismissed and the suit filed partition of the for administration and properties mentioned in para.3 above is shall also be throughout. decreed. The appellants entitled to their costs.