' This suit has been brought by the plaintiff praying therein for the grant of following reliefs :-
(a) For a declaration that the plaintiff is the real, absolute exclusive and beneficial owner of the plot of land measuring 600 Square Yards bearing No, 76-C, Block II, Karachi Administration,. Employees Co-operative Housing Society Ltd., Karachi with structure thereon and the defendant is a benamidar with no interest therein whatsoever ;
(b) For a permanent injunction against the defendant, her agents, servants, workmen or anybody claiming through or under her restraining them from dealing in and/or interfering in any manner whatsoever with the proprietary rights including physical possession of the plaintiff in respect of the aforesaid property ;
(c) Costs of the suit be awarded to the plaintiff and that any other relief which this Honourable Court deems fit and proper under the circumstances of the case be also awarded to the plaintiff.
1. The plaintiff is present alongwith his Advocate, while the defendant has been called absent in spite of service of summons upon her by registered post acknowledgment due as well as by service upon her father, who is also her attorney. The suit is accordingly directed to proceed ex parte against the defendant.
2. The plaint has been filed in accordance with the provisions of under of the Civil Procedure Code, (as amended) and is duly verified on oath. The plaintiff has also filed an affidavit in ex parte proof.
The facts, which have been deposed by the plaintiff in support of his claim, are as follows :-
(i) The defendant was married to the plaintiff on 9th December, 1966 at Karachi, and thereafter, on 30th July, 1967, he migrated to Canada. Out of the wedlock, three children have been born who are at present, in the custody of the defendant.
(ii) The plaintiff is a qualified geologist and till 1975, he alongwith the defendant and the children lived happily, where after the defendant started insisting upon him to return to. Pakistan, and thus he finally came over to Pakistan in July, 1978. The plaintiff stated that he was earning a lot of money in Canada, and that he held a bank account in Canada, which he allowed to be operated by the defendant as well. Likewise, the plaintiff deposed that t he owned property in Canada in the joint names of the plaintiff and the defendant, which was sold while he was coming back to Pakistan, and the sale proceeds with other assets were transferred to Pakistan, through Habib Bank Ltd., Airport Development Agency Branch, Drigh Road. Karachi, and credited in the plaintiff's Saving Account No, 2538-0. The total amount thus transferred from Canada amounted to Rs, 3,87,056.71.
The plaintiff has produced five certificates, dated 12th May, 1980. From the Habib Bank A. D. A.
Branch, as Exhs. P/2, P/3, P/4, P/5 and P/6.
' The plaintiff has also stated in his affidavit on oath that he had arranged to purchase a piece of land in Defence Officers Co-operative Housing Society Ltd., Karachi and that he paid a sum of Rs, 50.000 towards its purchase price. This said property is not the subject-matter of the present suit.
(iii) The plaintiff in his affidavit further deposed that between 19th March, 1979 to 29th April, 1979, he being a Geologist in the employment of the Pakistan Petroleum Ltd. In execution of duties, had to go out of Karachi, and, in his absence the defendant entered into an agreement to purchase Plot No, 76-C, Block II, situated in the Karachi Administration Employers Co-operative Housing Society Ltd., Karachi, for a sum of Rs, 4,35,000. A total sum of Rs, 43,500 was paid as earnest money on 28th March, 1979, which was drawn by her from plaintiffs bank account mentioned above by two cheques. The first cheque dated 18th March, 1979 was for Rs, 10.000 and the other cheque dated 28th March, 1979 was for Rs, 33,500. Both the cheques were drawn by the defendant upon the plaintiff aforesaid account. A balance of Rs, 3,91,500 thus remained to be paid to the seller upon delivery of possession of the property in suit. It may be mentioned here that according to the statement of the plaintiff the bank account at the aforementioned Habib Bank, A. D. A. Branch is his own account, in which all the moneys were deposited by and belonged to the plaintiff. He, however, explained that it could be operated upon by him, besides his wife as well, whose name he had allowed to be incorporated in the said account for the sake of convenience. The plaintiff has produced photostat copies of the two cheques as Exhs. P/10 and P/11 which are duly attested by the Bank Manager. The statements of bank account produced by the plaintiff, are marked as Exhs. P/12 and P/13, which corroborate the statement of the plaintiff that the amounts of the two cheques were drawn from the said account.
' The plaintiff further stated that though originally he was reluctant to purchase the property in question, he however raised a loan of Rs, 20,000 from his bankers, besides getting an overdraft loan of Rs, 10,000 from P. P. L. Employees Co-operative Credit Society Ltd., Karachi, and a refund of adjustment of over recoveries against his salaries account from his employers, the Pakistan Petroleum Ltd., Karachi. This statement of the plaintiff is supported by the documents which are produced and marked as Exhs. P/14, P/15 and P/16 respectively. Thus, the plaintiff paid to the seller the total lance of the sale consideration viz. Rs, 3,91,500 (and incurred other necessary expenses as well as thereafter) by withdrawing a sum of Rs, 3,72,190 from his bank account and the remainder Rs, 19,310 which he got from the above-mentioned loan/overdraft/refund. The Plaintiff further stated that in the manner stated above, the 'transaction was completed, and he took possession of the house and moved therein and since then he has been living in the said house.. The plaintiff has produced the final agreement of purchase and receipt of payment of the balance consideration to the seller. These documents are marked Exhs. P/17 and P/18 respectively. The plaintiff has also produced the photo copy of cheque dated 17th July, 1979 (Exh. P/19).
' The defendant, who is the wife of the plaintiff, and who had no source of money, was benamidar for the plaintiff and, as such, her name was used nominally as benamidar and that in the nature of the transaction such was also enrolled as a nominal member of the Karachi Administration Employees Co-operative Housing Society Ltd., Karachi. However, the plaintiff was shown as a nominee in the Society's record in respect of the aforesaid property in suit. The plaintiff has produced letter dated 7th September, 1979 from the above-mentioned Housing Society for the enrolment of the defendant as a member, and a letter of the same date for the transfer of the plot in the name of defendant. The plaintiff has further stated that since the property stood nominally in the name of the defendant as benamidar for him, the rent agreement was also executed by his employers in favour of the defendant renting out the said property on rent at the rate of Rs, 1,800 per month. The advance rent was also deposited in the Plaintiff's account as the plaintiff has been the real owner of this property. He has produced the Bank Certificate as Exh. P/22 in support of this assertion.
3. Disputes having arisen between the parties subsequently the plaintiff tried to bring about a conciliation, but all such attempts on his part failed, and that in the process he was deprived of the custody of his children which, according to.The Plaintiff, was done in his absence and without his consent, and that he is now being denied to see and have the custody of the children.
4. The plaintiff in support of his claim to the ownership of the property in suit, has relied upon oral as well as the documentary evidence referred to above, whereby he has shown that the moneys deposited in his Account No, 2538-0 at Habib Bank Ltd., A. D. A. Drigh Road Branch, Karachi, belonged to him and that the said account was opened with the moneys earned by him. He further deposed on oath that the name of the defendant was shown in the said account only for the sake of convenience, she having no source of her own income. He has produced the two cheques (Exhs.
P/10 and P/11) through which the payment of earnest money was made out of this account. The statements of account Exhs. P/12 and P/13 show that debit entries have been made in the said account in respect of payments made by the above-mentioned two cheques. He has also produced the Certificate Exhs. P/14 for raising a loan of Rs, 20,000 on 12th July, 1979 and Exh P/15 a Certificate from the P. P. L. Employees Cooperative Credit Society. These documents also prove that the plaintiff had taken advance/loan of Rs, 10,000 on 8th July, 1979. He has also produced a certificate, dated 19th May, 1980 from the Pakistan Petroleum Limited certifying that a sum of Rs, 7,000 was paid to him being adjustment of over recoveries against his salaries account in the month of July, 1979. The plaintiff has also produced photo copy of cheque Exh. P/19 dated 11th July, 1979 for Rs, 3,72,190 drawn upon the aforesaid bank account. This cheque was drawn and signed by the plaintiff personally for payment of the balance sale consideration towards the purchase of the property in suit. All these documents fully corroborate the statement of the plaintiff that the house in question was purchased with the moneys belonging to the plaintiff. The plaintiff in his affidavit has expressly stated on oath that the defendant was not an earning member, and that his bank accounts at Karachi and Canada did not represent her income, as she did not have any source of income at all.
5. The above evidence given by plaintiff by way of affidavit is ex pate proof, coupled with the averments made in the plaint, duly verified on solemn affirmation under the Civil Procedure Code (as amended), and the defendant having remained absent in spite of service of summons, and the case having proceeded ex parte against her. I am fully satisfied that the house in question was purchased with the plaintiff's moneys, the defendant having no source of income, and that her name was merely benamidar for the plaintiff This inference is further fortified by the defendant's own letter dated 12th March, 1980 (Exh. P/28) wherein she has expressly stated as follows ' In all our 13 years of married life, our lives had been full of work and toiling and hardships of endless shift in schools, open houses and moving and settling again. If you would put property in my name it was just to save tax. If I had been greedy for your money I could have taken it here. But there was never any intention from my side and there never will be. To me money is not more important than love and caring and sharing." Furthermore, the defendant wrote letter, dated 25th January, 1980 marked Exh. P/34, whereby she informed the Manager, Habib Bank, Head Office, Karachi that :- "I have an account at your Airport Development Agency Branch. It is a joint account in the name of : ' Mr. Akhtar Saleem Adhami Mrs. Shela Akhtar Adhami.
' This is to inform you that I wish to cancel my name from the joint account.
' Kindly give this matter your immediate attention and see that my name in the join account with your bank is cancelled. I wish to be notified of the cancellation."
The above letter (copy) has been produced by the plaintiff and is attested as true copy by Manager, Habib Bank Ltd., A. D. A. Drigh Road Branch, Karachi.
6. The above documentary evidence conclusively prove that neither the defendant at any time had any interest in the property nor in the joint Account No, 2538-0 at Habib Bank, A. D. A. Drigh Road Branch, Karachi, of which the statement of accounts Exhs. P/12 and P/13 from which the A moneys had been drawn for payment towards the purchase of the property in question, besides the amounts collected by the plaintiff otherwise to make the payment of the sale consideration, and in our miscellaneous expenses.
7. Considering the above facts and particularly taking into consideration the final payment of Rs, 3,72,190 made by cheque on 11th July, 1979 (Exh. P/19) drawn by the plaintiff himself under his own signature fo payment towards the sale consideration of the property in suit, I have no hesitation in holding that the consideration amounts for purchase of the property came from the plaintiff. And that the property in suit in fact belongs to the plaintiff as the sole owner, and that the defendant was merely benamidar for the plaintiff. The conclusion reached above is forti fled by the fact that the defendant has chosen to remain absent and has not cared to contest the suit and rebut the averments made by the plaintiff on oath. It is also pertinent to note here that the plaintiff is in possession of all the original documents of title relating to the property in question and has been making payment of all taxes in respect the aforesaid property throughout.
8. For the reasons discussed above, I decree the plaintiff's suit as to his claim for declaration that he is the real and exclusively owner of the plot of land (measuring 600 Sq. Yards) with structures thereon bearing No, 76-C. Block H, Karachi Administration Society Ltd., Karachi and that the defendant has no interest in the same. The prayer for grant of permanent injunction against the defendant restrain her and persons claiming through her from dealing with and or interfering in any manner whatsoever with the proprietary rights including physical possession of the plaintiff in respect of the aforesaid property is also granted.
' Since the defendant has not contested the suit, there shall be no order as to costs.