1. ' NADEEM AZHAR SIDDIQI, J.---The deceased plaintiff Haji Muhammad has filed this suit for declaration and injunction against his son Iqbal in respect of Shops Nos.5 and 6 and Flat No,4 situated at Amber Arcade on Plot No, 19/3, Delhi Cooperative Housing Society, Bahadur Shah Zafar Road (Tariq Road), Karachi. The claim of the deceased plaintiff was that he was a businessman and doing different type of businesses and had earned considerable amount and had purchased various properties either in his own name or in the name of his wife or of his sons for the benefit of all the family members comprising of four sons, four daughters, his wife and himself. Even the properties on goodwill were kept in the names of his sons in order to establish them in different business. The deceased plaintiff claimed that initially he had acquired two shops bearing Nos. 5 and 6 in Amber Arcade, Plot No,19/3, Delhi Cooperative Housing Society, Karachi, on good-will/ tenancy in the names of his two sons Iqbal and Younus and Flat No,4 in the same building was purchased in the name of Defendant No,1 (Iqbal). The deceased plaintiff along with his son Younus, Iqbal and Aslam was doing business in the said shops under the name and style of 'Big Deal Shoes' jointly and had invested huge amount in the said business and the monthly profit was being distributed amongst the sons equally. It was further pleaded that the deceased plaintiff got the said shops sub-leased after paying Rs,3,00,000 and registered in the name of Defendant No,1 as Benamidar because he was the elder son of deceased plaintiff and for the convenience of maintaining accounts and income tax matters. The deceased plaintiff further claimed that he was the real owner of the aforesaid properties whereas his sons were banamidar/ostensible owners and all the sons of deceased plaintiff accepted him as the real owner but the Defendant No,1 had become greedy, dishonest and had committed breach of trust by denying the fact that the plaintiff was the real owner and he was Benamidar. The deceased plaintiff further pleaded in the plaint that the leases of said properties were lying with him but the same were taken away by Defendant No,1 from deceased plaintiff's wife on the pretext that .The same is required by his income tax lawyer. It was further pleaded that in December, 1995 the Defendant No,1 declared that he was the sole owner of the business in the said shops and the Defendant No,1 stopped rendering account to the plaintiff and his other two sons Defendants Nos.2 and 3 (now Plaintiffs Nos.2 and 4). The deceased plaintiff served legal notice on the Defendant No,
1. The deceased plaintiff had pleaded that the cause of action arose in December, 1995 when Defendant No,1 refused to render any account to the deceased plaintiff and other defendants and to pay the share in the profit from the said business and also when Defendant No,1 denied the fact of join business and the real ownership of the deceased plaintiff and finally when legal notice, dated 19-12-1995 was unresponded.
2. ' The Defendant No,1 in his written-statement has submitted that the suit is time barred, the arraignment of Defendants Nos.2 to 5 is mala fide, the reliefs claimed are illegal, void and untenable and the suit is bad for misjoinder, malfeasance, misfeasance and multifariouness. On merits it was pleaded by Defendant No,1 that the deceased plaintiff had no concern in acquiring or owning of either shops Nos.5 and 6 and flat in Amber Arcade or any good-will was paid by him or ever purchased by him in the Defendant No, l's name. The Defendant No,1 claims that he had acquired right, title and ownership by registration of lease of both the shops and the flat in his name and all expenses in respect of the purchase of the above properties were made by Defendant No,1 and the deceased plaintiff had no right, title and interest in the property as well as the business carrying in the name of Big Deal Shoes which is a property concerned of Defendant No,
1. It was further pleaded that no investment either by the plaintiff or anyone else in the family has ever been made and all the record of income tax, title deeds and other documents will negate the allegations made by the deceased plaintiff.
3. ' Defendants Nos.2 to 5 have also filed their joint written statement and supported the case of deceased plaintiff and have submitted that the deceased plaintiff who was the father of Defendants Nos.1 to 4 and husband of Defendant No,5 purchased different properties for the benefit of all the family members and Shops Nos.5 and 6 and Flat in Amber Arcade were also purchased by the deceased plaintiff from his own funds and the Defendant No,1 is only a Benamidar on behalf of the deceased plaintiff.
4. ' By order, dated 29-8-1997 the names of Defendants Nos.2 to 5 were struck-up from the array of defendants.
5. ' On 9-12-1997 issues were framed and thereafter due to expiry of plaintiff by order, dated 26-8- 1998 legal-heirs were brought on record and amended plaint was filed on 9-9-1998. By order, dated 9-2-1999 the issues were amended which are as under:--
(1) Is the suit for declaration barred by law of Limitation? If so, to what effect?
(2) Whether the plaintiff has purchased Flat No,4-A and Shop No,5 situated in Amber Arcade on Plot No,19/3, Dehli Cooperative Housing Society, .Bahadur Shah Zafar Road (Tariq Road) in the name of Defendant as Benamidar of the same were purchased by the Defendant out of his own funds?
(3) Whether the Shop No,6 in Amber Arcade was surrendered to Defendant by his brothers on payment of amount, divesting themselves of all their rights in the said shop in favour of the Defendant? If so, to what effect?
(4) Whether or not the assessm ent of income tax in the business under the name and style of Messrs "Big Deal Shoes" was in the name of the defendant alone since 1986? If so, to what effect?
(5) Whether the business in Shop Nos. 5 and 6 was being done jointly by the plaintiff and his three
(3) sons including the defendant for the benefit of all of them?
(6) Whether the heirs of the deceased plaintiff can succeed Flat No,4-A and Shop Nos. 5 and 6 situated at Amber Arcade on Plot No,19/3 Delhi Cooperative Society or not?
(7) What should the decree be?
6. ' By order, dated 14-5-2001 Issue No,2 was amended which reads as under:-- "Whether the plaintiff has purchased Flat No,4-A and Shops Nos.5 & 6 situated in Amber Arcade on Plot No,19/3, Delhi Cooperative Housing Society, Bahadur Shah Zafar Road (Tariq Road) in the name of Defendant as Benamidar of the same were purchased by the Defendant out of his own funds?"
7. ' In support of their case the plaintiffs have examined plaintiff No,1 Mst. Sara Bai, Plaintiff No,4 Younus and Haji Essa. Younus has produced documents from Exhs.P/1-1 to P/1-31. On the other hand defendant filed his affidavit-in-evidence and produced documents from Exhs.D/1 to D/90.
8. ' My findings on the above issues are as under:-- Issue Nos.1: ' This issue has been framed from the pleadings of the defendant. The learned counsel for the defendant states that shops were acquired in the name of defendant in 1993 when the sub-leases were executed in his favour. He submits that in view of this the suit is barred by Article 120 of the Schedule I of the Limitation Act and has relied upon in the case of Faiz Muhammad v. Ramzan Ali (1991 Law Notes Karachi 645). Article 120 provides that the suit for which no period of limitation is provided elsewhere in the schedule can be filed within six years when the right to sue accrues. The question when a right to sue will accrue in suit for declaration will depend upon the facts and circumstances of each case and right to property is a subsisting right and the right to bring a declaratory suit is a continuing right. A suit for declaration not falling within the scope of any other specific Article will fall under this Article. In this case the deceased plaintiff in the plaint had stated that the properties were acquired in the name of defendant in 1990 and the leases were also executed in his name. The deceased plaintiff further submitted that in December, 1995 the, defendant declared himself to be the sole owner of the properties in suit. The deceased plaintiff had also pleaded that cause of action was arisen in December, 1995. There is no specific denial on the part of the defendant with regard to the above pleadings. The cause of action for filing this suit accrued to the plaintiff firstly in 1990 when the properties were acquired and secondly in 1995 when the defendant claimed himself to be exclusive owner of the properties. The suit was filed on 16th January, 1996. The leases of shops were executed on 14th October, 1990 and the lease of the flat was executed on 3rd November, 1982. The cause of action for filing this suit finally accrued to the deceased plaintiff in December, 1995 when the defendant declared himself to be exclusive owner denying the right of the deceased in the above properties. The case cited above has no direct bearing upon the facts of this case. The suit is, therefore, filed within the period prescribed under Article 120 of the Limitation Act and is not barred by limitation.
9. Issue No, 2: ' The burden to prove this issue was upon the deceased plaintiff and after his death since the other legal-heirs are also claiming that the above properties were owned by the deceased, the burden lies upon them to prove the said issue. The most important witness in the matter is Plaintiff No,1 Mst.
10. Sara Bai wife of deceased plaintiff and mother of other plaintiffs and defendant who in her affidavit-in-evidence has stated that two shops and flat were acquired by deceased plaintiff in the name of his two sons Iqbal and Younus after payment of Rs,10,00,000 as good-will to the landlord and tad also purchased Flat No,4 and kept the same in the name of defendant Iqbal. The shops were decorated and stocks worth Rs,7,00,000 to Rs,8,00,000 were arranged and put in the shop to start business of shoes and deceased husband had deputed his elder son Iqbal (defendant) to carry on business with the assistance of Younus and Aslam in the name of Big Deal Shoes. She further stated in her affidavit-inevidence that in the first week of each calendar month under the instructions of deceased plaintiff the net income used to be distributed by defendant amongst the working brothers and deceased plaintiff equally and the share of deceased plaintiff in net income was spent in domestic expenses through her. She further deposed that the deceased plaintiff has got the said two shops leased out in the name of his elder son Iqbal(defendant) and provided further amount of Rs,3,50,000 for payment to the builders. She further deposed that the deceased plaintiff was the actual owner of the business, two shops and flat in Amber Arcade and defendant is a Benamidar. She further deposed that original sub-leases of shops and the flat were lying with deceased plaintiff in her house and the sub-leases were taken by the defendant Iqbal from her on the pretext that the same were required by his income tax lawyer and were not returned deceitfully.
11. She has also deposed that Iqbal was not doing any business and had no funds for payment of good-will of the rented shops. She also deposed that the business of Big Deal Shoes is fetching about Rs,16,00,000 yearly as net income and the plaintiffs are entitled to an amount of Rs,80,00,000 being share in net income. The learned counsel for the defendant has cross-examined Mst. Sara Bai and has failed to rebut the above contention of Mst. Sara Bai. No question in rebuttal has been asked from Mst. Sara Bai that the properties in suit do not belong to deceased plaintiff and belonged to the defendant. The effect of non-rebutting the facts deposed in the affidavit-in- evidence is that the same amounts to admission. "The defendant in his written-statement has stated that the shops and flats were acquired on good-will by him and no investment was made either by the deceased plaintiff or anyone else". However, in the written-statement the defendant has failed to mention the source from which he has purchased the said properties. Similarly, in the affidavit-in-evidence the defendant has stated that he has purchased the said properties but again the source from where the properties were purchased has not been explained. All the documents which were filed by the defendant are the leases and the documents subsequent to execution of lease. In his affidavit-in-evidence the defendant has also not denied the contentions of the plaintiffs that the leases were lying in the house of deceased plaintiff which were taken by the defendant on the pretext of giving the same to his income tax lawyer. Learned counsel for the defendant has cross-examined Younus (Plaintiff No,4). The nature of cross-examination is such which support the contention of the plaintiffs that suit properties were belonged to the deceased plaintiff. The relevant portion of the cross-examination is reproduced below:-- ....It is incorrect to suggest that our father had willingly distributed these properties including those in favour of the defendant and had only filed the present suit for the reasons that he got annoyed with the defendant upon his marrying outside the family."
12. ' This piece of cross-examination shows that the defendant admits that the properties in suit belonged to the deceased plaintiff and the same were distributed in his life-time. However, the defendant has failed to prove that the properties were willingly distributed by the deceased during his life time.
13. ' Both the learned counsel relied upon the case of Muhammad Sajid Hussain v. Muhammad Anwar Hussain (1991 SCM R 703). In this case the Hon'ble Supreme Court has laid down the criteria for determining the question, whether a transaction is a Benami transaction or not. The Hon'ble Supreme Court has held that the following factors are to be taken into consideration:--
(1) Source of consideration.
(2) From whose custody the original title deeds and other documents came in evidence.
(3) Who is in possession of the suit property.
(4) Motive for the Benami transaction.
14. ' In the above cited case the Hon'ble Supreme Court has held that the initially burden to prove is on the party who alleges that an ostensible owner is a Benamidar for him and that the weakness in the defence evidence would not relieve a plaintiff from discharging the above burden of proof. The burden of proof may shift from one party to another during the trial of the suit. Once the burden of proof is shifted from a plaintiff on a defendant and if he failed to discharge the burden of proof so shifted on him the plaintiff shall succeed.
15. ' I have examined the pleadings and evidence in the present suit on the touchstone of the above judgment. The deceased plaintiff has categorically stated in the plaint that he has acquired the suit properties from his funds and had also disclosed his other properties and income and Plaintiff No,1 Mst. Sara Bai in her affidavit-in-evidence has deposed that the suit properties were acquired from the funds provided by deceased plaintiff. Since the averments of affidavit-in-evidence have gone unrebutted the burden was shifted upon the defendant to prove that the suit properties were acquired from his fund. The evidence of defendant is silent in this regard and the defendant has failed to prove that at the relevant time when the properties were acquired he had sufficient fund to pay the same for acquiring the suit properties. No doubt the leases were produced by the defendant in his evidence but there is no rebuttal on behalf of the defendant with regard to the contention of Mst. Sara Bai that he has taken these leases from her house for giving to his lawyer.
16. As such, mere production of original leases in absence of proof of payment has no significance.
17. There is no dispute that the properties are in possession of the defendant but the claim of the deceased plaintiff that he had purchased the properties and put the defendant in possession to dojoint family business has gone unrebutted and the defendant has failed to prove his exclusive possession of the suit properties. The deceased plaintiff had also specifically pleaded the motive in his plaint and the same was also confirmed by Mst. Sara Bai. The judgment cited by learned counsel for the defendant reported as Mst. Khairun Nisa v. Muhammad Ishaq (PLD 1972 SC 25) has no bearing upon the merit of this case.
18. ' In view of above discussion 1 hold that the suit properties were purchased by the deceased plaintiff in the name of defendant as Benamidar.
19. Issue No,3: ' The burden to prove this issue is on the defendant. The defendant has produced Exh.D/24 which is an agreement of sub-lease in respect of Shop No,5 between Messrs Amber Co. (Pvt.) Limited and Mr. Younus. The defendant has also produced Exh.D/52 which is a photo copy of declaration of gift executed by Younus in favour of defendant in respect of Shop No,5. This document was exhibited under objection as the original of the same was not produced. The Defendant No,1 (Iqbal) has also not filed any application for recording secondary evidence. This document, therefore, cannot be relied upon particularly when the executant Younus in his deposition has denied the execution of such document. Even if this document is taken to be true it was executed before the execution of the lease and the rights which were surrendered in favour of the defendant was the right of sub- lease in Shop No,5 and not the ownership of the said shop. Since I have already held that the suit properties belonged to the deceased plaintiff. Even if I hold that Younus has surrendered his right in Shop No,6 this will not give any better right to the defendant as Younus has not disputed the defendant was Younus has not disputed that the properties were acquired by deceased plaintiff from his own funds. I, therefore, hold that the gifting of sub-lease right by Younus is favour of defendant has no effect on the merits of this case.
20. Issue No,4: ' From the documents produced by the defendant it is proved that the defendant is paying income-tax in his own name. From the income tax returns it can be said that the defendant is paying income tax from the year, 1986. The defendant has also filed the photo copy of his wealth statement for the year ended on 30-6-1994. This wealth tax return has not mentioned about the properties in question. The first wealth tax return was filed for the year, 1995-96 in which the shops were declared but the flat was not declared as the property of defendant. The assessment order produced by the defendant is only sufficient to prove that he is runningthe business as an individual and not in partnership. The effect of such document is that the defendant is doing business in his own name. However, there is no rebuttal that the defendant was sharing the income with Aslam, Younus and deceased plaintiff and is liable to share the income with Aslam, Younus and deceased plaintiff and after death of deceased plaintiff with his legal-heirs.
21. Issue No,5: The burden to prove this issue lies upon the plaintiffs. No documentary evidence has been produced by the plaintiffs in this regard. The only reliable evidence in this regard is the evidence of Mst. Sara Bai which was gone unrebutted on this issue as no cross-examination has been made upon her to rebut her contention that a joint family business was run in the said shops. The defendant is also silent and has said nothing in his affidavit-in-evidence in this regard. I, therefore, hold that the business in the said shops was being done jointly for the benefit of the deceased plaintiff and his three sons, namely, Iqbal, Younus and Aslam, hence they all are entitled to share the income and the defendant is liable to give proper accounts of the income earned by him from 1st January, 1996 till death.
22. Issue No,6: ' The case of the deceased plaintiff was that he is the actual owner and the defendant is benamidar in case the deceased plaintiff was succeeded his legal heirs would be entitled to inherit the properties. The learned counsel for the defendant submits that the case was not materialized and in absence of any right accrued to the deceased plaintiff the legal-heirs cannot claim any right and in support of his contention he has relied upon the following cases:--
(1) Mercantile Co-operative Bank Ltd. v. Messrs Habib and Co. And others (PLD 1967 Karachi 755).
(2) A. Majid Sama v. The Asbestos Cement Industries, Ltd. And another (1996 M LD 803).
23. ' The learned counsel for the plaintiffs submits that the suit was filed by deceased plaintiff claiming right in the properties and on his death that right devolves into his legal heirs and they are entitled to claim the same right as claimed by deceased plaintiff. He further submits that right in property cannot be equated with the case of damages filed under the Law of Torts. I have examined the contentions of the learned counsel. The judgment cited by the learned counsel for the defendant pertains to cases of damages and the suit filed for damages stand abated on the death of any one of the parties on the principle that "personal action dies withthe person". In this case the right has been claimed in immovable properties and evidence shows that the same was acquired by the deceased plaintiff for the benefit of the family and the right in the properties transfer into legal- heirs of deceased plaintiff. The right to immovable properties cannot be equated with a right to claim damages and the suit based on right in immovable properties cannot be abated on the death of any one of the parties. Order XXII Rule 1, C.P.C. Provides that the death of plaintiff or defendant shall not cause the suit to abate if the right to sue survives. The term "right to sue" refers to seek the same relief which the deceased party was asking at the time of his death. The legal representatives merely continues the suit and it is the original party's right that have to be considered and adjudicated. In view of above discussion I hold that the legal-heirs of deceased plaintiff are entitled to succeed the properties subject-matter of this suit.
24. Issue No,7: ' In view of the above the suit of the plaintiffs is decreed in terms of prayer clause Nos.(i), (ii), (iv) and (v) of the suit. The Nazir of this Court is appointed receiver to take physical control of the above properties and the business carrying on in the said properties under the name and style of Big Deal Shoes. The defendant is directed to provide true accounts of the business and profits to the Nazir of this Court from January, 1996 till the Nazir take over the control of the business.
25. ' The office is directed to prepare preliminary decree in respect of prayer Clauses (iii) and (vi). The final decree in terms of Clause (vii) will be passed after taking over the accounts by the Nazir. Of this Court.
26. ' Decree be prepared in the above terms.