' Junco AMR HUSSAIN, CHAIRMAN.-The petitioner has filed this petition to challenge, the transaction of Benami which are prevent to the country as being un-Islamic and regent to the Holy Qur'an and the Sunnah. Benami generally mean transaction in which person purchases the property in the name of another person not intending the property should vest in the ostensile owner and that he be diverted of the property. The transaction mostly involves some element of found on third parties. In some cases such a produce may also be genuine by General Law.
2. Firstly we understood from the judgment of the Petitioner that in his view the custom of Benami was not a valid custom since as stated above, there was element of fraud in the majority of the cases. We pointed out to him that the custom of Benjamin recorded only in the sense that the Court give relief to the real owner and do not extend its benefit to the ostensible owner. When the case comes before the Court and they are satisfied that in any particular case the transaction was Benami and the property was purchased by the person supplying the consideration there of the Courts hay always given the decree in favour of the plaintiff who has supplied the money and held the ostensible owner, to be only a trustee for the former. In view of this it is clear that the custom of Benami transactions as us net for enforcing it but only to draw a presumption whether the particula transaction is a genuine transaction or is not genuine ice Benami. They never allow it to prevail to the detriment of the person who is the real purchaser of the property. Custom of Benami transaction is thus not enforceable in Law.
3. We have been giving this view to the petitioner from the very beginning but during argument it transpired that the intention of the Petitioner is than the ostensible owner must be treated to be the real owner of the property and the transaction should be taken to be that of a gift.
4. The object of this petition, therefore, is that we should perpetuate the element of fraud which is generally current in a Benami transaction. Even if the intention of the Petitioner be that this course will discourage Benami transaction or the custom of such transaction, we regret that we cannot a party to the perpetuation of fraud. The only course before the Petitioner is to approach the Legislature to make Benami transactions punishable by Law. With this observation this petition is dismissed.