' MUHAMMAD JUNAID GHAFFAR, J.--- This is a Suit for Declaration and Permanent Injunction seeking the following relief(s):-- "(a) Declare that the plaintiff No, 1 is the real owner of House No,83-A, Sindhi Muslim Cooperative Housing Society, Karachi and that his deceased wife Maimoona Butt was only a benamidar.
(b) Permanently restrain the defendants from interfering with the quiet enjoyment by the 'plaintiff No,1 of the aforesaid house and from denying the title of the plaintiff No, 1.
(c) To grant costs of the suit to the plaintiffs and such other reliefs as may be deemed just and appropriate in the circumstances of the case."
2. Briefly the facts as stated are that this Suit had been originally filed by Manzoor Butt since deceased for declaration of property bearing House No,83-A, Sindhi Muslim Cooperative Housing Society, Karachi (Suit property) as Benami in the name of his deceased wife Maimoona Butt against defendants Nos.1 and 2 who are daughter and son of the deceased plaintiff and defendants Nos. 3 to 9 who are brothers and children of the deceased brother of Maimoona Butt/defendants of this Suit. It appears that the original plaintiff has expired and now the Suit is being contested as plaintiff by the original defendants Nos.1 and 2 against rest of the defendants. It is the precise case of the plaintiffs that the property in question was purchased by their late father as Benami in the name of their step mother namely Maimoona Butt who had no children on her own and therefore, the estate would accordingly devolve upon her husband namely the deceased father of the plaintiffs and defendants Nos.1 to 7 being her brother/children of a surviving brother.
The case as set up in the plaint is that in the year 1965 the Suit property was purchased by Manzoor Butt in the name of his wife Maimoona Butt who was working as a School Teacher and had no means to purchase the property, whereas, her husband was a reputed businessman and therefore, had paid the entire sale consideration of Rs,85,000/- in the name of his wife Maimoona Butt who for all purposes was a Benamidar. On the contrary, it is the case of the defendant's Nos.1 to 7 that such property was not a Benami property in the name of Maimoona Butt as she was the actual owner and had purchased the same from her own sources and therefore, plaintiffs have no claim in the said property, except the devolution of estate, if any, as a legal heir.
3. Out of the pleadings the following issues were settled on 14.2.2000:- "(1) Whether the plaintiff is the real owner of the Suit property and Maimoona Butt was a Benamidar?
(2) What is the effect of Annexure "C" i.e, will to the written statement of defendant No,4?
(3) What should the decree be?"
4. The plaintiffs evidence was led by the daughter of deceased Manzoor Butt (Mrs. Yasmeen Minhas) as P.W.1 who exhibited copy of tenancy agreement dated 1.3.1998 Ex-P/1-A, copy of Tax assessm ent Order of Manzoor Butt for the year 1966-67 Ex-P/1-1, copy of Misc. Income Tax assessm ent of Gul Trading for the year 1964-65 Ex-P/1-2, copy of Conveyance Deed dated 6.2.1969 Ex-P/1-3, Bounded Register showing salary record of Maimoona Butt Ex-P/1-4 and Bounded Register showing salary record of Maimoona Butt Ex-P/1-5. Whereas, the defendants evidence was led by D.W-1 (Tahir Sufi) who exhibited photocopy of will Ex-D/1, photocopy of legal notice dated 3.7.1997 Ex-D/2, photocopy of Notice to Secretary Sindhi Muslim Society Ex-D/3, D.W-2 (Samrah Niazi) who exhibited fax copy of burial certificate Ex-DW/2-A and D.W-3 (Sumira Sufi) who exhibited photocopy of Gul Trading Company dated 20.9.1951 Ex.X-1, photo copy of Sale Agreement dated 6.11.1965 Ex.X-2, photocopy of Sale Agreement dated 27.11.1965 Ex.X-3, photocopy of Sale Agreement dated 21.4.1966 Ex.X-4, Receipt dated 31.10.1966 Ex.X-5 photo copy of Capital Gain Tax challan Ex.X-6 and photo copy of Notice of Capital Gain Tax dated 31.8.1966 Ex.X-7."
5. Counsel for plaintiff has contended that the property in question was purchased by deceased Manzoor Butt from his own sources in the name of his wife as Benamidar as at that point of time the deceased wife had no resources of her own to purchase such property for Rs,85,000/-. He has referred to Sale Agreement dated 6.11.1965 Annexure X/2 to the evidence and another Sale Agreement dated 27.11.1965 Annexure X/3 executed in respect of the Suit property and has also referred to an agreement dated 21.4.1966 Annexure X/4 in respect of Plot No,I/B/7/10 measuring 216 yards at Nazimabad Karachi to suggest that as that point of time in addition to other resources, the deceased Manzoor Butt had also sold one of his properties to buy the Suit property in his wife's name. He has also referred to Annexure X/7 dated 31.8.1966 which is in respect of Capital Gain Tax issued by the Excise and Taxation Officer in respect of Suit property in the name of deceased Manzoor Butt. Counsel has also referred to Ex-P/1-B-1 which papers relate to the Tax Assessment Orders as well as Profit and Loss Accounts to justify that deceased Manzoor Butt had enough means to buy property in question. He has also referred to Ex.P/1-B/3 which is a Sale Deed of the Suit property and submits that the plaintiffs are in possession of the original(s) of the same. He has also referred to Ex.P/1-B-5 which are papers relating to the Income Tax assessment of Mst.
Maimoona Butt to justify that she had no resources at that point of time to purchase the Suit property. He has also referred to various pay slips for October and November 1966 to substantiate that the total income of Maimoona Butt was not enough to pay the entire sale consideration. The Counsel has also referred to the evidence led by the defendants and has contended that the entire evidence of the defendant is hearsay and based on what their father had told them. He has also referred to the evidence of Samrah Niazi defendant No,6 (D.W-2) which according to the Counsel is contradictory to the evidence of D.W-1 and is inconsistent and therefore, cannot be relied upon.
Counsel has also referred to the sale price of the property of the defendants, which according to them was also sold during that period and a due share was given to Maimoona Butt out of it, and submitted that all the defendants and their witnesses have given different selling price of their property, which even otherwise was not enough for Maimoona Butt to have purchased the Suit property in question. It is the case of the learned Counsel that the entire case of the defendants is hearsay and on personal knowledge, whereas, the possession of the property as well as its documents is with plaintiffs Nos.2 and 3.
6. Conversely, Mr. Abdul Rehman learned Counsel for defendants Nos.6 and 7 has contended that insofar as Administration of the Suit property is concerned, though there is no dispute amongst the plaintiffs and the defendants as they all are legal heirs, but till date, due to pendency of this Suit, no Administration Suit has been filed. Learned Counsel has further contended that in a Benami Suit onus is on the plaintiff to substantiate his/her case with its own evidence and defendant is not required to prove that as to how the property was purchased, whereas, per learned Counsel in this matter the plaintiff has made an attempt to justify that Maimoona Butt could not have purchased the property by her own resources at the relevant time. Per learned Counsel the plaintiffs in the instant matter are required to show from their own documents including the bank statement or any banking instrument that payment in respect of the Suit property was made by their deceased father Manzoor Butt. Insofar as the custody of title documents as well as possession of the Suit property is concerned, the learned Counsel has contended that since the deceased husband and wife were residing in the same property it was quite natural that the property documents were in the Suit property, whereas, possession was also with the late husband of Maimoona Butt and this could hardly be a ground for seeking declaration of Benami. Per learned Counsel the entire onus is on the plaintiff as no motive has been stated that as to why the property was allegedly bought as Benami and no such burden has been discharged in the evidence. In support of his contention he relied upon Mst. Asia Bibi v. Dr. Asif Ali Khan and others (PLD 2011 SC 829) and Nooruddin and 11 others v. Abdul Waheed (PLD 1997 Karachi 6).
7. Similarly, Mr. Sohail Hameed Counsel for other defendants has contended that admittedly whatever has been stated by P.W-1 is hearsay as she was only 9 years old at the relevant time. In support of his contention he has relied upon Ch. Ghulam Rasool v. Mrs. Nusrat Rasool and 4 others (PLD 2008 SC 146) and Ghulam Murtaza v. Mst. Asia Bibi and others (PLD 2010 SC 569).
ISSUE No,1.
8. I have heard all the learned Counsel and perused the record including the evidence. The case as set up on behalf of the plaintiff is to the effect that in the year 1965 the Suit property was purchased by late Manzoor Butt in his wife's name as Benamidar as according to the plaintiff he was a reputed businessm an and had enough earnings to buy the Suit property at a price of Rs,85,000/-, whereas, his wife Maimoona Butt was only a School Teacher and a salaried person, therefore, she did not have enough means to buy the Suit property. On the other hand, the defendant's case is that Maimoona Butt had enough resources from her own salary as well as share from the sale of a family property and therefore, she was very much in a position to buy the Suit property. Though voluminous evidence has been led on behalf of the plaintiff by exhibiting numerous documents comprising of more than 1400 pages, but on perusal of the same it reflects that these are two set of documents, one set pertains to the alleged resources available with deceased Manzoor Butt in the form of Tax Assessm ent Orders and income statements at the relevant time, whereas, the other set of documents is the salary record of deceased Mst. Maimoona Butt. It is pertinent to observe that this is a Suit for Benami declaration and per settled law the onus lies on the plaintiff in such matters. The reason being that it is the plaintiff who has come to the Court to seek such declaration which is in fact a positive declaration being sought by the plaintiff. In terms of Article 117 of the Qanun-e-Shahadat Order, 1984, the onus to prove a claim is on the person who asserts such claim. It is not that plaintiff can come to the Court and thereafter, on the basis of defendants evidence tries to make out its case. It is the plaintiffs who have sought a declaration of benami transaction and have prayed to give judgment as to their alleged legal right on the basis of facts asserted by them, therefore, it is for them to prove that those facts exist for which the burden lies on them.
9. In a Suit for Benami declaration, the plaintiff has to show that firstly there was a motive and reason to buy such property as Benami, and thereafter once such motive has been shown, the plaintiff must also show that, the subject property was purchased from its resources. If these two things are missing in a positive manner, then perhaps the Court cannot consider any further evidence. In the instant matter the entire case as set up on behalf of the plaintiff is to the effect that the plaintiff had enough resources to buy the property but the plaintiff has not been able to show that any of his resources were utilized in buying such property. The evidence led on behalf of the plaintiff is therefore, presumptive in nature whereby, it is being contended that since the resources were there, the presumption is, that the Suit property was bought by Manzoor Butt in his wife's name as Benamidar. This is perhaps based on the defendant's witnesses and the record available with Manzoor Butt in the shape of salary receipt and other office receipts of Maimoona Butt. In my view this could hardly be a ground for a benami declaration as at the. Most this could be termed as a negative evidence, whereas, the plaintiff has to come forward with evidence in the affirmative so as to establish that resources of Manzoor Butt were in fact utilized for purchasing the Suit property.
Nothing has been shown or brought on record to that effect. No documentary evidence in respect of purchasing the property including any pay order or any other bank transaction or even the bank statement has been placed on record, and if the payment was made in cash on behalf of Manzoor Butt, even then no evidence to support such claim has been brought on record. Not only this, even if payment would have been made by Manzoor Butt, this would not in any manner could have been an absolute ground to declare the property as benami for the simple reason, that in our Society (more emphatically in the year 1965) such transactions were and still are being handled and looked after by men (husbands) instead of women (wife) directly, for reason(s) well known to all of us. In that case (which is not so here) the possibility that though payment/consideration was paid or routed through husband but from the funds and resources of wife cannot be absolutely ruled out. In Chittaluri Sitamma and another v. Saphar Sitapatirao and others (AIR 1938 Mad. 8) it was held: ".... The mere suspicion that the purchases might not have wholly been made with the lady's money will certainly not suffice to establish that the purchases were benami, nor even the suspicion that moneys belonging to Jagannadha Rao whether in a smaller measure or a larger measure, must have also contributed to these purchases. Even in cases where there is positive evidence that money had been contributed by the husband and not by the wife, that circumstance is not conclusive in favour of the benami character of the transaction though it is an important character...."
10. Similarly it is also well settled that "Source of money had never been the sole consideration. It is merely one of the releVant considerations but not determinative in character". [See Thulasi Ammal v. Official Receiver, Coimbator '(AIR 1934 Mad 67})]. In Protimarani Debi and another v. Patitpaban Mukherjee and others (60 CWN 886), the Calcutta High Court observed: ' The correct proposition was stated in Official Assignee of Madras v. (sic) AIR 1927 Mad.
194. There is no presumption that when a property stands in the name of a female the Court will immediately jump to the conclusion without any proof that it really belongs to the husband of the female. Before such a presumption is raised or attracted it is necessary for the person who wants to make out that the property is not the property of the female, in whose name the document stands, to establish the fact that the consideration money for the purpose had come from the husband.
11. In fact the entire case as pleaded on behalf of the plaintiffs is that since Maimoona Butt had no resources therefore, the Court may declare that the property was purchased in her name by Manzoor Butt as Benami. This in my view is not permissible and the Court could hardly give any indulgente in such a manner. In the case of Muhammad Sallad Hussain v. Muhammad Anwar Hussain (1991 SCMR 703), the Hon'ble Supreme Court has been pleased to hold that "it is well settled law that the initial burden of proof 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'.
12. Similarly the Hon'ble Supreme Court in the case of Ghulam Murtaza (Supra) has been pleased to observe as follows;
7. At this juncture we may clarify that the motive part in the benami transaction is the most important one. 'A transaction cannot be dubbed as benami simply because one person .Happened to make payment for or on behalf of the other. We come across innumerable transactions where a father purchases property with his own resources for his minor son or daughter keeping in mind that the property shall vest in the minor. Such transaction subsequently cannot be challenged by father as benami simply because the amount was paid by him. There are people who, with positive application of mind, purchase properties in the name of others with intention that the title shall vest in that others.
' As said earlier, there are certain transactions in peculiar circumstances of those peculiar cases where, for reason of certain emergencies or contingencies, the properties are purchased in the name of some other person without the intention that the title shall so vest permanently. If such motive is available and also is reasonable and plausible, a transaction can be held as benami, otherwise not. A property purchased with one's own sources in the name of some close relative like wife, son or daughter cannot be dubbed as benami when purchased with full intention of conferring title to the purchaser shown. If this principle is denied and that of benami attracted simply because the sources of consideration could not be proved in favour of the named vendee, it would shatter the most honest and bona fide transactions thereby bringing no end to litigation.
9. In the instant case, we have already held that the ingredients of a benami transaction have not been proved by the husband in all the three transactions. Still, we are of the view that even if the husband had proved himself to be the source of consideration, yet no transaction could have been set aside if made with positive intention of transferring or conferring title to the other beneficiary.
We also hold that while purchasing property from Haji Muhammad Sharif vide deed dated 28-6- 1989, the positive intention was that Asia Bibi should be a bona fide co-vendee or co-owner. Same is the case of the other transaction vide deed dated 20-3-1985 (Exh.P-7/1), whereby both husband and wife had purchased the same from Masood Ahmed. At one time the husband came out with reason that name of his wife was entered merely to please her. Here comes the principle of bona fides, goodwill and sanctities attached to a transaction. Once having done so, when the husband and wife were amicably living, no one can turn around subsequently to claim exclusive title when relations become strained and the spouses fall apart. We, therefore, hold in the instant case that even if the amount had been paid by the husband (which is not proved) yet he could not have turned around to claim that the wife was a benami beneficiary.
13. In the instant matter, neither the deceased husband Maqsood Butt has been able to prove that the consideration for the purchase of the property in dispute was paid by him or from his resources, on the contrary it is only averred that since he had the resources available, whereas, his wife did not, therefore, the property in question is a benami in his deceased wife's name. Once the property was bought in 1965 and nothing happened thereafter, nor any claim was made for any benami transaction, the intention to buy the property for his wife was there (though it is not proved that consideration was paid by Manzoor Butt). Moreover, it is also of utmost importance to note that Manzoor Butt realized this fact for the first time only after his wife had expired (on 11.5.1995) and did not file any proceedings or Suit until 7.10.1998 (present suit) seeking such benami declaration.
This even otherwise seems to be an afterthought to deprive her other legal heirs from their due share in the estate of his wife. I am afraid on the touchstone of the aforesaid dicta laid down by the Hon'ble Supreme Court; the contention so raised on behalf of the plaintiff in this matter cannot be accepted. To determine that a transaction is a Benami, the Court has to gather the intention of the concerned parties from the totality of the circumstances surrounding the transaction, which on a thread bare examination in the instant matter are all against the alleged claim of the plaintiffs.
14. Moreover, in the given facts and circumstances of this case, the ground that the original documents were with deceased Manzoor Butt, whereas, the possession of the property is also with plaintiffs, is not of any considerable relevance, in that, the husband and wife were living happily till she died, and as a natural corollary, the documents and possession of the property was with deceased Manzoor Butt. This can hardly be a ground to decree the Suit for benami declaration when other ingredients of a benami transaction are completely missing.
ISSUE No,2
15. This issue has been framed on the basis of some averments in the written statement, whereby reliance has been placed on some will purportedly executed by deceased Maimoona Butt, and in fact the onus to prove this issue lies with the defendants. DW-1, Mr. (Tahir Soofi), along with his affidavit in evidence has annexed a photocopy of the said will which incidentally has been Exhibited in evidence by the learned Commissioner, whereas, in cross-examination, the witness had replied that he is not in possession of the original and therefore, according to the Counsel for the plaintiff the same could not have been Exhibited. Be that as it may, on perusal of the same it appears to be a hand written note, without any date or signatures of the executant, whereas, none has witnessed it. Moreover, the defendants, except having it Exhibited in the evidence (seriously objected to by the Counsel for the plaintiff), have not been able to lead any evidence to substantiate the existence of the will as no witnesses have been examined in this regard. Even otherwise, in view of my findings on issue No,1, it would not be of much relevance to decide this issue. Nonetheless, since the defendants have failed to prove existence of any such will with cogent evidence as required in law, I hold that there is no effect of any such Will (Exhibit-D/1) on the Suit property, which has to be dealt with in accordance with my findings in respect of Issue No, 1.
16. In view of hereinabove facts and circumstances, I am of the view that the plaintiffs have failed to make out their case for seeking Benami declaration in respect of the Suit property. Accordingly, the Suit of the plaintiffs is dismissed with cost(s).