1. ' IRFAN SAADAT KHAN, J.---This suit for declaration, mandatory/permanent injunction regarding House No,C-87, Block-8, KDA Scheme No,24, Gulshan-e-Iqbal, Karachi has been filed by the plaintiff against the defendants with the following prayers:
(i) A declaration that the said property i.e. a single storyed house constructed on a piece of land measuring 600 sq. Yards bearing Plot No,C-87, (Works Cooperative Housing Society Limited), Block 8, KDA Scheme No,24, Gulshan-e-Iqbal, Karachi, is the property of the plaintiff and the defendant No,1 is merely a benamidar, having no interest or title to the said property or any part thereof including the fittings and fixtures etc. Thereof.
(ii) A further declaration in consequence of the above that all record -in the office and in the property registers of defendant No,2 and other concerned and allied offices etc. Be rectified by deleting the name of the defendant No,1 in respect of the said property and substituting in place thereof everywhere the name of the plaintiff.
(iii) To grant consequential direction and relief:
(a) Directing the Secretary or concerned officer of defendant No,2 to grant the final lease of the said plot/property in due form of law, to and in favour of the plaintiff and to recognize and deal with the plaintiff as the lessee to the exclusion wholly and entirely of defendant No,1 and rectify all records accordingly.
(b) To complete all papers, documents, completion plans and whatsoever in the name of the plaintiff and proceed on their basis for all successive acts and deeds and things including demands, local taxes, fees or others for realization from the plaintiff.
2. ' Briefly stated, facts of the case are that the defendant No,1, who was born on 29-5-1963, is the real son of the plaintiff. On or about 25-3-1974 the plaintiff, as alleged, by way of a benami transaction purchased the abovementioned residential plot in the name of the defendant No, 1 who at that time was about 1 I years of age. As per the averments in the plaint, the said plot was purchased by the plaintiff through his own funds and resources. After some time of acquiring of the said plot, the plaintiff started constructing the said plot and raised single storey building thereon and completed the construction somewhere in the year 1978-79 and started residing therein. In view of the fact that the plaintiff had other children also, apart from defendant No,1, he moved an application dated 28-9-1981 to defendant No,2 for effecting, necessary mutation/change of name in his name.
3. However, the same could not take place at that time. The plaintiff thereafter on 26-7-1999 submitted another application to the defendant No,.2 for transfer of the said house in his name but was informed that defendant No,1 has filed objections dated 10-7-1999 and 27-7-1999 not to transfer the said house in the name of the plaintiff, as according to defendant No,1, he is the real and actual owner of the said house. Thereafter, a dispute arose between the plaintiff and the defendant No,1 with regard to the ownership of the said house and the present suit has been filed to resolve the same.
4. ' In response to the summons, the defendant filed his written statement wherein he denied the averments made in the plaint and stated that the suit property was purchased in his name by his maternal uncle and not by his father as benami.
5. ' On the basis of the pleadings of the parties following issues were framed:--
(1) Whether the suit as framed is barred by any provision of law and not maintainable as alleged by defendant No,1?
(2) Did the plaintiff acquire the suit plot and constructed thereon bungalow in the Benami name of his son, the defendant No,1?
(3) Whether the suit property was acquired by defendant No,1 through funds provided by Major (Retd.) Aftab Ahmed Khan, as alleged?
(4) Whether Annexures P/1 and P/2 to the plaint are forged documents as alleged by defendant No,1?
(5) What should the decree be?
6. ' In support of the averments made in the plaint the plaintiff examined himself and produced documentary as well as oral evidences while the defendant examined himself and also produced evidences in support of his case.
7. ' Mr. Ikram Ahmed Ansari, learned senior counsel, appeared on behalf of the plaintiff and submitted that the said property was purchased in the name of defendant No,1 out of love and affection as he was his eldest son. However the defendant No,1 is now exacting to usurp the said property and is trying to become the sole owner of the said property by depriving his other family members of their respective share in the said property. As per the learned counsel the said plot was purchased out of the funds of the plaintiff and all the construction made thereupon was out of the funds provided by the plaintiff from his own sources and that the defendant No,1 neither participated nor contributed in either the purchase of the said plot or in respect of the construction made thereupon. As per the learned counsel since the plaintiff has expired, he has specifically made defendant No,1 as one of the co-plaintiffs in the present suit and as per the learned counsel, defendant No,1 is entitled to get his share out of the properties left by the deceased plaintiff as per the injunctions of Islam and as per the Sharia. According to the learned counsel, defendant No,1 is now trying to take undue advantage of the situation and wants to become the exclusive owner of the said property by keeping away the other legal heirs of the deceased plaintiff from the said property. As per the learned counsel the present suit has been filed within the stipulated time as according to him the cause of action arose on 30-7-1999, 15-11-1999 and 31-3-2001 and as per Article-91 of the Limitation Act such type of suits could be filed within three yeaRs, Since the present suit has been filed on 9-4-2001, the same, according to the learned counsel, is very much within the limit prescribed by the law. The learned counsel has given a comprehensive rebuttal with regard to the written statement filed by the defendants. This Court vide order dated 12-9-2005 was pleased to appoint a Commissioner to record the evidences of the parties and the said Commissioner has filed his report on 22-2-2007 along with recorded deposition of the plaintiff and defendant No,
1. As per the learned counsel, defendant No,2 neither led any evidence nor cross- examined the witnesses in the .Matter. The plaintiff has filed his affidavit-in-evidence on 15-10-2005 which is available on record as Exh.P/2. The learned counsel has laid emphasis on the diary which is Exh. P/3 wherein the plaintiff has maintained a record of construction expenses incurred by him which according to the learned counsel comes to Rs,1,50,000 to Rs,2,00,000. The learned counsel has vehemently denied the averments made in the deposition and the written statement filed by the defendant No,1 and has submitted that the plaintiff has in fact paid wealth tax on the said plot and in the statement he has categorically shown himself to be owner of the said plot, which is available on the record. In the end the learned counsel submitted that the transaction being a benami transaction, the suit may be decreed in favour of the plaintiff. In support of the above contentions the learned counsel has relied upon the cases of Ch. Ghulam Rasool v. MRs, Nusrat Rasool (PLD 2008 SC 146), Abdul Majeed and others v. Amir Muhammad and others (2005 SCMR 577), Muhammad Sajjad Hussain v. Muhammad Anwar Hussain (1991 SCMR 703), Saba Jamil v. Mst.
8. Sultana Wilayat and 4 others (PLD 2007 Kar.310), Mazhar Mahmood Khan v. Khushal Khan Jadoon (1995 MLD Kar. 316), Mst. Kausar Haseen v. Mst. Anis Begum (MLD 1988 Kar. 552), Muhammad Yaseen Siddiqui v. Tahseen Jawaid Siddiqui (2003 MLD kar. 319), Shabbir Ahmed v. Abdul Haleem (2000 SCMR 1287) and the case of Rehmat Ali Ismailaia v. Khalid Mehmood (2004 SCMR 361).
9. ' Mr. Saalim Salam Ansari, learned counsel appearing on behalf of defendant No,1, at the very outset, submitted that the suit is hopelessly time bared. The learned counsel further submitted that the present suit has been filed with mala fide intention and ulterior motive on the basis of forged documents. As per the learned counsel no proof or evidence of benami has been produced by the plaintiff. He further submitted that the documents relied upon by the plaintiff are forged and the signatures appearing on these documents relied upon by the plaintiff do not bear the actual signatures of defendant No,1 rather these are fake and forged signatures. As per the learned counsel the maternal uncle of defendant No,1 namely Major (Retired) Aftab Ahmed Khan Arfidi purchased the said plot in the name of defendant No,1, as according to him the plaintiff, who in 1974 was a grade-17 officer, his salary and other allowances did not permit him to purchase the said plot, which in fact was purchased by the maternal uncle of defendant No,1 and was gifted to him. However in support of his contention no evidence has been led by him. The learned counsel further submitted that the plaintiff has purchased the said property in the name of defendant No,1 and it was only on the instigation of some interested persons as an afterthought an application was given by the plaintiff to the defendant No,2 for transfer of the said plot. As per the learned counsel, defendant No,1 is the actual owner of the said house and no other person could claim its ownership as the said plot was gifted by the maternal uncle of defendant No,1 way back in 1974 and the plaintiff prior to giving the application dated 28-9-1981 did not bother to pursue the matter with regard to the transfer of the said house and now claims the ownership of the said house which is false, fabricated and frivolous. As per the learned counsel not only the plot was purchased by the maternal uncle in'the name of defendant No,1 but he also arranged the funds for constructing the said property as the plaintiff was not having substantial amount to carry out the said construction.
10. He submitted that mentioning the name in the Government authorities is of no help to the plaintiff and simply by claiming ownership could not be considered a sufficient ground to hold the plaintiff as owner of the said house. The learned counsel also pointed out a number of anomalies from the deposition made by the plaintiff. As per the learned counsel, as the plaintiff has miserably failed to substantiate his case with cogent material the present suit is thus liable to be dismissed with costs.
11. In support of his above contentions, the 'learned counsel has relied upon the case of Habib Mehmood v. Bilqees Fatima (1997 MLD 390), Halima v. Muhammad Kassam (1999 MLD 2934), Khan Imtiaz Ahmad Khan v. The Islamic Republic of Pakistan PLD 1983 FSC 28), Jaydayal Poddar v. Mst.
12. Bibi Hazra and 7 others (AIR 1974 SC 171), Muhammad Sajjad Hussain v. Muhammad Anwar Hussain (1991 SCMR 703), Kaleem Hyder Zaidi Duly Constituted Attorney v. Mehmooda Begum (2006 YLR 599), Ch. Ghulam Rasool v. MRs, Nusrat Rasool (PLD 2008 SC 146), Chuttal Khan Chachar v. Mst.
13. Shahida Rani (2009 CLC 324), Bilqees Begum v. Registrar of Properties (PLD 2006 Kar. 617), Syed Ansar Hussain v. Khawaja Muhammad Kaleem (2006 CLC 732), Muhammad Nawaz Minhas v. Mst.
14. Surriya Sabir Minhas (2009 SCMR 124), Abdul Majeed v. Abdur Rashid (2006 CLC 819) and the case of Ghulam Murtaza v. Mst. Asia Bibi (PLD 2010 SC 569).
15. ' I have heard both the learned counsel at considerable length and have also perused the record, the written submissions and the case laws cited before me.
16. ' Before proceeding further, I would deem it expedient that the issue regarding limitation should first be addressed.
17. ' As per the learned counsel for the plaintiff the cause of action arose when an application was given to the defendant No, 2 and the defendant No, 2 refused to act upon the said application on the pretext that defendant No, I had filed objections that the said property under dispute may not be transferred as per the application given by the plaintiff.
18. ' Learned counsel for the defendant has vehemently opposed the suit by stating that it is hopelessly time barred and in this regard has relied upon the case of Syed Habib Mehmood v. MRs, Bilqees Fatima (1997 MLD 390) and Kaleem Hyder Zaidi duly constituted Attorney v. Mehmooda Begum and 4 others 2006 YLR 599.
19. ' It is an admitted position that firstly an application dated 28-9-1981 was moved by the plaintiff for transfer of said property in the name of deceased plaintiff to avoid future complications and dispute amongst the family member. However, the said application was not acted upon as defendant No, 2 society was defunct at that point of time. It is pertinent to note here that no objection with regard to the said fact that the defendant No,2 society was not in existence at the relevant time was either raised by defendant No, 1 or by defendant No, 2 hence this fact stood established that when the first application was moved by the plaintiff, the defendant No,2 Society was defunct and was not operational. The plaintiff thereafter filed another application on 26-7- 1999 for transfer of the above referred said plot and the defendant No,2 informed the plaintiff that the said transfer could not take place as defendant No,1 has filed his objections and has claimed to be the real owner of the said property after which the dispute arose. Article 91 of Limitation Act provides three years period for the plaintiff to challenge a case to get an instrument cancelled or set aside and as the present suit has been filed on 9-4-2001, the same, in my opinion, is very much within the time limit prescribed in the Limitation Act as the plaintiff only came to know when the fact entitling the plaintiff to have the instrument cancelled or set aside becomes known to him through the letter addressed by defendant No, 2 that the plaintiff's application dated 26-7-1999 cannot be acceded to in view of specific objections filed by the defendant No,
1. Hence so far as the issue No, 1 is concerned, the same is answered in favour of plaintiff and against the defendant.
20. ' As regards the issue No, 2, it is vehemently contended by the counsel for the defendant No,1 that it was the maternal uncle of the defendant No,1 who purchased the said plot in his name as the plaintiff, being a petty bread earner, did not have sufficient funds to have purchased the said plot.
21. Moreover, the learned counsel for defendant No,1 has submitted that it is the maternal uncle of defendant No,1 who had contributed in the construction of said plot as plaintiff did not have enough resources to construct the same. However, it is further noted that no evidence has been produced by defendant No, 1 to substantiate his claim. Whereas on the other hand it was submitted by the plaintiff that he had been working since 1944 and uptil the year of purchase of plot i.e. 1974 he had sufficient funds at his disposal to purchase the said plot. Learned counsel for the plaintiff has also produced a copy of diary maintained by the plaintiff (Exh. P/3) wherein the expenditures incurred on construction of the said plot had been duly recorded. Learned counsel for the plaintiff has also produced a copy of sale deed of the plot sold in Rawalpindi by the plaintiff to prove availability of the resources to construct the said house. It is however interesting to note that not a single word has been said with regard to veracity of the diary by the defendant No,1 and its genuineness remained unrebutted. Learned counsel for the plaintiff has contended that at the time of purchase of the plot the defendant No,1 was of tender age of eleven years only and at that time was a school going child and how he could have any funds either to purchase the said plot or to construct the same which had entirely been done by the plaintiff. As per the learned counsel for the plaintiff the said plot was purchased out of love and affection and the defendant No,1 is nothing but his benamidar.
22. ' In order to appreciate the issue in a better perspective, I have examined the decisions relied upon by both the learned counsel. For determining the question that whether the transaction is benami or not following factors are to be taken into consideration as specifically laid down by Hon'ble apex Court in the case of Muhammad Sajid Hussain v. Muhammad Anwar Hussain (1991 SCMR 703).
(1) Source of consideration.
(2) From whose custody the original title deed and other documents came in evidence.
(3) Who is in possession of suit property? And
(4) Motive of benami transaction.
23. ' Similar view has been taken in the case reported as Abdul Majeed and others v. Amir Muhammad and others (2005 SCMR 577).
24. The word Benami is a compound of two Persian words, "Bay" means "without" and "Nami" means "name", hence Benami means transaction which has been undertaken by someone in the name of the other person. It has already been held in a number of judgments given by the superior Courts that Benami transactions are acceptable in Pakistan.
25. ' It has been held in a numbers of judgments given by this Court and the other superior Courts that where evidence on record clearly establishes that a person has purchased a property from his own sources of income and has recorded title deed in the name of some other person that some other person is considered as his Benamidar and in such situations decree for declaration of title is usually granted in favour of the person who had purchased the said property, though in title deed his name may not be appearing. Benami are the transactions in which a person purchasing a property in the name of some other person never intends such property to be vested in the ostensible owner. Benamidar is the person who merely lends his name to another, but who acquires no interest in the property, though he may possess indicia of ownership.
26. It is a trite law that initially the burden of proof is on the party who alleges that an ostensible owner is his benamidar. Thus, the initial burden in the present case is on the plaintiff to prove with cogent material that he is the ostensible owner of said plot and defendant No,1 is only his benamidar. Once such evidence is produced by the plaintiff the burden would shift from plaintiff to defendant to prove his ownership; otherwise the plaintiff is regarded to be the ostensible owner and defendant to be merely a benamidar. The question whether transaction is benami in character or not depends upon facts and circumstances of each case and no absolute formula or acid test can be laid down in this regard.
27. ' Now, if facts of the present case are considered it will be seen that the plaintiff started his career in 1944 and purchased the said plot in 1974 i.e. After a period of 30 years of starting his career. During the said tenure of 30 years any prudent man could save a reasonable amount. It has also come in the evidence that the plaintiff had sold a plot at Rawalpindi. Thus, it is proved that the plaintiff had sufficient funds to purchase the said plot and raise construction thereon. However, it is an admitted position that when the suit plot was purchased in the name of the defendant No,1 he was a minor of about 11 years and even when the building was constructed on the said plot he was still a child and was not earning anything, in fact, was totally dependent on his father, the plaintiff herein.
28. Though it is claimed that the funds for the purchase of the plot and the construction raised thereon were provided by the maternal uncle of the defendant No,1 but no evidence has been brought on the record by the defendant No,1 to substantiate this claim. It was stated by the learned counsel for the defendant that at the time of recording of evidence in this case the maternal uncle of the defendant No,1 was not alive. However, the defendant No,1 was not precluded from producing any one else from his family members as a witness to prove this fact. The fact remains un-rebutted that the plaintiff purchased the said plot in the name of his minor son i.e. The defendant No,1, who had no source of income at that time and is thus a benamidar of his father, the plaintiff herein.
29. ' In benami transactions the possession of the property is also a decisive factor. In the present case it has not been denied that since the construction of a house on the said plot it remained continuously in the possession of the plaintiff and his other family membeRs, It has further been brought to my knowledge that though the defendant No,1 at present is not residing in the said house but only one room, which is locked, is still in his possession.
30. ' Article 118 of Qanoon-e-Shahadat, 1984 clearly stipulates that burden of proof in such type of cases is on the person who asserts that the other person in whose name the property is purchased is Benamidar but once this initial burden is discharged then it is for the Benamidar to establish that the said property belongs to him. In the instant case the title documents were admittedly with the plaintiff as the defendant in 2001 lodged an F.I.R. At Police Station Aziz Bhatti Shaheed with regard to the misplacing of the said title documents on the pretext that these were taken away by the plaintiff from his draweRs, Hence, so far as the possession of the title documents is concerned I am of the firm view that possession of the suit property as well as the title documents were with the plaintiff.
31. ' The case laws relied upon by the learned counsel for the defendant are distinguishable as in the present case there does not exist any agreement expressed or implied between the ostensible owner and the purchaser for the purchase of property in the name of the ostensible owner for the benefit of the person who has to make payment of the consideration.
32. ' Apart from the above case laws I was able to lay my hands on the decisions reported as PLD 1953 Peshawar 19 and PLD 1965 Lahore 550 wherein it was held that where a property is being purchased by father of a minor, the child is held to be merely a Benamidar of the father who is the real beneficiary of such property. In Benami transactions the ostensible owner cannot enforce his right.
33. ' The title deeds as well as possession of the suit property was with the plaintiff throughout. No evidence at all was produced that defendant had ever been in the possession of either title documents or that of the house. The defendant No, I could not produce a single document relating to the suit property. Hence in my opinion none of the factors are in favour of the defendant No, 1.
34. Hence, in my opinion, I answer the above issue in favour of plaintiff and against the defendant No,l.
35. ' As regards the issue No, 3 whether the suit property was acquired by defendant No,1 through funds provided by Major (Retd.) Aftab Ahmed Khan, as alleged, it may be noted that no evidence was led by defendant that he or his maternal uncle had provided funds for purchase or construction of the suit plot and if his maternal uncle had purchased the said plot in his name, no sale agreement in his name or witness thereto has been produced by the defendant to support his claim. Plaintiff, upon consideration of evidence, is thus proved to be the owner of the said property and defendant No,1 merely a benamidar. I therefore answer this issue also in favour of the plaintiff and against the defendant.
36. ' As regards issue No, 4, whether Annexures P/1 and P/2 to the plaint are forged documents as alleged by defendant No,1, it may be noted that while discussing the issues Nos. 2 and 3 it has been held that defendant could not prove any of the essential ingredients and no evidence has been produced by the defendant to support his claim and when the Court raised an objection that whether the signatures were ever examined by the handwriting expert, the learned counsel for the defendant No,1 replied that no such exercise has been done. Hence in my opinion, as observed supra, it would be a futile exercise at this stage to dilate upon this issue when no application for referring the matter to a handwriting expert is moved by the defendant No,1 in this regard. I therefore answer this issue also in favour of the plaintiff and against the defendant.
37. ' During the course of the arguments, Mr. Saalim Salam Ansari, learned Counsel for the defendant No,1, submitted that there are two essential elements with regard to a benami transaction, namely,
(i) agreement between the purchaser and the ostensible owner and (ii) proof to show that the transaction was actually entered between the real purchaser and the seller to which the ostensible owner was not a party, are not present in the present case. In this regard the learned counsel relied on the case reported as PLD 2008 SC 146. In this regard suffice it to say that the defendant No,1, at the time of purchase of the suit property as well as at the time construction was being raised thereon, was a minor and was not competent to enter into any type of agreement.
38. ' It was also argued by the learned counsel for the defendant No,1 that motive in Benami, transactions was of utmost importance and a transaction could not be declared to be a benami simply because one person happened to make payment for or on behalf of the other. Reliance was placed on the case reported as PLD 2010 SC 569. This case is of no help to the defendant No,1 as it is not the case of the defendant No,1 himself that the suit property was purchased by the plaintiff in his name with intention that the same would vest in him. The case of the defendant No,1 is that the suit plot was purchased in his name by his maternal uncle and that the funds for construction thereon were also provided by his said maternal uncle. In case the suit property was purchased by the plaintiff in the name of the defendant No,1 with the intention that the same would vest in defendant No,1, the plaintiff would have handed over the documents of the suit property to the defendant No,1 immediately on his attaining the age of majority or immediately thereafter.
39. However, it has not come on record that the plaintiff also owns ether properties and, therefore, he purchased this property in the name of the defendant No,1, out of love and affection, with the intention that the same would vest in him. On the contrary, it has been alleged by the defendant No,1 himself that the plaintiff was a "petty bread earner". Therefore, it would not be correct to say that without arranging for an accommodation for entire family consisting of one son and four daughters; excluding the defendant No,1, the plaintiff simply spent his entire saving as well as the amount realized by sale of the property at Rawalpindi for acquiring the suit property which was then given to only one child leaving out his other children (one son and four daughters). It has also come on record that the entire family was living in the suit property and the title deeds were also not in possession of the defendant No, 1.
40. The upshot of the above discussion is that from the evidence on record it is established that the plaintiff purchased the said property in the name of his minor son (as he then was) and his minor son is nothing but his Benamidar and cannot claim himself to be the owner of the said property.
41. The suit is therefore, decreed as under:--
(i) The defendant No,2 is directed to transfer the property in the name of all the legal heirs, including defendant No,1, of the plaintiff as per the Sharia and to grant the final lease of the said property in due form of law.
(ii) The defendant No,2 is also directed to dispose of the applications given to him by the plaintiff within 90 days of the announcement of this judgment, by completing all papers, documents, completion plan etc. In accordance with law by making proper entries in the property registeRs,