MUHAMMAD AMEER BHATTI, J. -- Through this revision petition the petitioners have challenged the judgments of both the Courts below dated 24.01.2000 and 24.02.2001 passed by the learned Trial Court and learned Additional District Judge respectively, whereby the suit and appeal filed by the plaintiffs/petitioners were dismissed.
2. The brief facts of the case are that the present petitioners filed a suit for possession of a Plot No. 53, which was in the name of Mrs. Lftikhar Begum who had died issueless. The present petitioners are brothers and sisters of the said Mrs. Iftikhar Begum. After her death, the respondents (who are brothers of Syed Sardar Hussain, the husband of the said Mrs. Lftikhar Begum) took over the possession. In fact the said Syed Sardar Hussain purchased two plots Nos. 52 & 53 one (52) on his own name and other (53) in the name of his wife Mrs. Lftikhar Begum and it is an admitted fact that a house was constructed on these plots by the said Syed Sardar Hussain. After the death of said Syed Sardar Hussain and Mrs. Lftikhar Begum, the property, in fact, had to go to the legal heirs of the said two deceased i.e. One belonging to Mrs. Iftikhar Begum and the other Syed Sardar Hussain but the respondents/family of Syed Sardar Hussain took over the possession of the total house and also other ornaments as the spouses died issueless. This suit in fact was originally filed as a suit for administration of property but the claim in the prayer as well as the body of the plaint was for recovery, ownership and possession. The learned Trial Court after inviting the written statement from the respondents/defendants framed the issues, parties led their evidence and suit was dismissed on the main ground that Mrs. Lftikhar Begum was not the real owner of Plot, as this plot was actually purchased by Syed Sardar Hussain and Mrs. Lftikhar Begum was only Benami owner, hence she was not entitled to retain the entitlement. As such, the heirs of Mrs. Lftikhar Begum had no right to claim the entitlement and the possession of the house in the name of Mrs. Lftikhar Begum by declaring the ownership as Benami and the suit was accordingly dismissed, appeal also met with the same fate.
3. Parties have been heard and record perused.
4. It is astonishing, to note that the husband purchased a suit land in the name of his wife and never claimed himself to be the real owner of that property. She was never declared by her husband as Benarni owner, hence the legal heirs of Syed Sardar Hussain have no right to claim that the plot in fact was purchased by Syed Sardar Hussain in the name of his wife as Benami transaction. It was only Syed Sardar Hussain, who could claim during his lifetime but thereafter nobody, at least, the heirs of the said Syed Sardar Hussain have no right to declare Mrs. Lftikhar Begum as Benami owner. Even otherwise, it is settled law that the heirs could inherit whatever is in the name of their deceased, whatever he/she has left for them, could be considered his/her property for their legal heirs but not whatever he has given to anybody in his lifetime can be claimed by their heirs even if he has bequeathed his whole property through a valid transaction.
The legal heirs have a valid claim to the extent of his/her property whatever he/she has left in his/her name. Both the Courts below have not taken into consideration this fateful aspect of the case. They laboured to bring the case of Mrs. Lftikhar Begum within purview of Benami, no such question arises in such-like cases. There should not be an iota of doubt in the mind of any person that the head of the family always purchases the land/property in the name of his wife, children and other family members but the property which has been purchased in the name of his wife or children can never be claimed by the legal heirs of the said deceased that the whatever transaction has been made by the husband and her father in the name of his wife or children, was Benami transaction.
5. For what has been discussed above, the judgments of both the Courts below cannot be lawfully maintained and are hereby set aside and the suit of the petitioners to the extent of House No. 53, Allama lqbal Town, Lahore is decreed. They are entitled to recover the possession of the house situated at Plot No. 53. Since it is a suit for possession and the petitioners have not affixed the Court-fee, they are directed to affix the Court-fee of Rs. 15,000/- within period of one month from the judgment of this Court.
6. This petition stands accepted in the foregoing terms. No order as to costs.
Civil revision .