' MUHAMMAD SADIQ LEGHARI, J.---The facts in the background of present revision application are that applicant Bilqees Begum married respondent No,3, Gulzar Ahmed on 20-11-1966. In February, 1987 house built on Plot No,L-10 (size 80 sq. Yards, ST-13 Block No,1 Drigh Colony now called Shah Faisal Colony, Karachi (hereinafter referred to as "the House" or "the disputed House") was purchased in the name of applicant Bilqees Begum under a registered Sale-deed. She and her husband were residing in the house. However, Gulzar Ahmed performed second marriage in December, 1990 and started residing with newly wedded wife in another house. The applicant continued to reside in the disputed house.
2. Applicant Bilqees filed one Family Suit No,402 of 1992 before the Xth Family Judge for maintenance against her husband, Gulzar Ahmed. The suit was disposed of on 24-9-1992 in the result of compromise. It is relevant to mention here that in that compromise it was also mentioned that the house in dispute is property of Gulzar Ahmed.
3. Even after that Bilqees continued residing in the house and her name remained in the record as owner of the house.
4. On 19-1-1994 Gulzar Ahmed filed a suit against Bilqees Begum pleading therein that the house was purchased by him in the name of his wife Bilqees Begum as benamidar. Therefore, he shall be declared as owner of the house. The further prayers made by him were that sale deed in favour of applicant Bilqees be cancelled and possession of the house be handed over to him. He/the plaintiff also prayed for injunction restraining Bilqees (defendant) from selling, mortgaging, transferring the house to anyone.
5. Bilqees filed her Written Statement denying therein the claim of Gulzar Ahmed. She pleaded that she was the actual owner of the house and not benamidar of Gulzar Ahmed. She further pleaded that she had purchased the house from her own funds and Gulzar Ahmed had no right to own or possess it.
6. After recording the evidence the learned IV Senior Civil Judge, Karachi (East) decreed the suit of Guizar Ahmed by judgment, dated 22-3-2002. The appeal (Appeal No,90 of 2002) filed by Bilqees was dismissed on 8-11-2003 by the learned Second Additional District Judge, Karachi (East). Those decisions have been assailed by Bilqees through present revision application. It will be proper to mention here that Guizar Ahmed died during pendency of the appeal and was substituted by his legal heirs.
7. The revision application was admitted and the respondents were put on notice. The respondents Nos. 3 to 6 (the legal heirs) of Gulzar Ahmed, were represented by an Advocate. Today, the revision application is fixed for regular hearing and only the applicant and her Advocate Mr. Osman Shaikh are present. None is present for the respondent. No intimation is received from their side.
8. Arguments of Mr. Osman Shaikh, Advocate have been heard. He contended that in fact two Courts below fell in error by declaring Guizar Ahmed as owner of the house accepting his evidence that the house in question was purchased from his funds. According to Mr. Sheikh on that consideration alone the transaction could not be treated as benami. In present case it is admitted by Gulzar Ahmed plaintiff stated that he purchased the house in the name of Bilqees for keeping her happy which by itself negates his own plea of benami.
9. In continuity Mr. Shaikh argued that even the possession is material evidence in this case, as after second marriage Gulzar Ahmed went to reside with his second wife in another house whereas Bilqees was residing in the disputed house. Not only that but even after divorce she had been residing in that house which fact is sufficient to prove that she was the owner.
10. Addressing the fact of admission of the ownership of Gulzar Ahmed over the house in the compromise filed in Family Suit No,402 of 1992 Mr. Shaikh contended that it was got by Gulzar Ahmed deceitfully. Even otherwise that will not operated as res judicata against Bilqees in the subsequent suit as that point was not directly and substantially in issue in the earlier family suit.
11. The contentions of Mr. Shaikh have much substance in them. Transaction can be recognized and declared as benmai only if there is clear agreement or express understanding in that respect between the person who claims to be purchaser as owner and the person in whose A favour the property is purchased. That agreement should be clear to the extent that the property is in fact owned by the person having paid the price thereof and not by the person in whose name it has been purchased. In present case Gulzar Ahmed has not pleaded or claimed anywhere expressly that at the time of the purchase of the house in the name of Bilqees there was a clear agreement or understanding between him and her that the house was owned by him and Bilqees was simply benamidar. In absence of proof of such agreement/understanding Gulzar Ahmed cannot be recognized judicially benami owner of the house as even if the same (House) was purchased from his funds in the name of B his wife Bilqees.
12. To purchase a property for his wife is not unusual in our society. Normally such property is ultimately inherited by the legal heirs particularly the children of the couple. The plea of Gulzar Ahmed is that he purchased the house in the name of his wife Bilqees just to keep her happy. That by itself negates his claim regarding the status of transaction. She could be satisfied and kept happy only on becoming owner of the house. Additionally, in his evidence Gulzar Ahmed himself admits that after second marriage he left the house and started residing at some other place whereas Bilqees continued residing in the house. Even after divorce she continued residing in the same house. That fact supports the case of the appellant that she was owner of the house.
13. If the lady accepted Gulzar Ahmed as one of the issue through compromise between them in a family suit to that extent does not operate as res judicata. In present case the claim of Gulzar Ahmed about Benami character of the transaction has not been established.
14. In view of the above, the sale in favour of Bilqees was not proved to be benami. The two Courts below wrongly held her to be benamidar. Their decisions are not sustainable. They are therefore, set aside. Consequently, the suit filed by Gulzar Ahmed is dismissed.
15. Admittedly applicant Bilqees was possessing the house at the time of the filing of suit by Gulzar Ahmed and was thrown out of it under the order of the executing Court while implementing the decree in the suit. On reversal of that decision and appellate decree the Court is required the restore of the possession to her under section 144, C.P.C.
16. It is true that Gulzar Ahmed sold the house after getting its possession in execution of the decree of the trial Court and the possession is with the purchaser but the right of applicant Bilqees under D section 144, C.P.C. Cannot be defeated by that arrangement/transaction. For the purpose of possession the occupant of the house stands in the shoes of Gulzar Ahmed and his possession is in consequence of the execution of the decree of the trial Court. Mandate of the statute has to be implemented. This view gets support from the decision of this Courtin the case of SA Taleef reported in PLD 1970 Karachi 220.
17. Moreover, as held above Gulzar Ahmed was not the owner of the house and as such was not person competent and entitled to transfer E the same under the Transfer of Property Act. Under Section 7 Transfer of Property Act only that person is competent to transfer the property which he is entitled to transfer or has been authorized to do so. As these legal requirements were absent in his case the transfer by him was an act having no legal value. Also it is settled position of law that no one can transfer more than what he is entitled to. Thus, no legal right in the house was conferred upon the purchaser. Right of applicant Bilqees to get back the possession under section 144, C.P.C.
Is intact.
18. In view of the above the possession of the house is to be resorted to the applicant by dispossessing the purchaser. Let the applicant be put into possession of the house. The executing Court can also consider the awarding of the legal compensation to the applicant for the use of the house, from Gulzar Ahmed (his legal heirs) if she prays for that. It shall also consider the question of the return of the price to the purchaser, if he prays for it. With this order the Revision application is accepted. Respondents Nos. 3 to 6 to suffer the costs.