1. ' These Civil Revision Applications are directed against the judgment and decree in Suit No,4388 of 1979 of the learned 1st Senior Civil Judge, Karachi West, and a common judgment of Syed Iqbal Hasan Rizvi, District Judge, Karachi Central, in Civil Appeals Nos.148 and 149 of 1990 whereby findings of the learned Civil Judge were maintained and the Appeals were dismissed.
2. ' On facts, the referred suit was filed by respondent Hakim-Muhammad Akhtar, pleading that he was and is practising Hikmat as tenant of a shop in property bearing No,6/421-D, admeasuring 80 Sq. Yds., situated in Liaquatabad, Karachi. Jamaluddin, applicant in Civil Revision Application No,78 of 1991, seller of soft drinks in the vicinity, being known to the plaintiff, apporached him, saying that Syed Shaukat Ali, allottee/owner of the property in question, was going to sell the property for Rs,80,000 and that the two of them should purchase it in equal shares. Hakim Muhammad Akhtar agreed but required Jamaluddin to deal with Shaukat Ali exclusively, since the latter was unhappy with the Hakim and wanted him evicted before selling to a third party. Consequently, as per evidence, an agreement, in the form of Iqrarnama, was concluded between Hakim Muhammad Akhtar and Jamaluddin on 14-6-1978 (Exh.6), attestation by a Notary Public following on 15-6-1978.
3. Correspondingly, Jamaluddin received the contribution of plaintiff Hakim Muhammad Akhtar in the sum of Rs,40,000 and passed due receipt on 14-6-1978 (Exh.7), Notary's attestation again being of 15-6-1978. On 30-6-1978, according to the version of Hakim Muhammad Akhtar, Jamaluddin on purchase delivered possession of half portion of the property to him, whereafter a partition wall was raised with the joint funds of Hakim Muhammad Akhtar and Jamaluddin, the former in due course, from own funds, also arranging gas, electric meter; water and gutter lines. However, on being required to execute the requisite documents Jamaluddin adopted an evasive attitude and, ultimately, told Hakim Muhammad Akhtar that the above property had been purchased by Jamaluddin's wife, Mst. Sabira Begum, and that he, Jamaluddin, was prepared to refund the sum of Rs,40,000 earlier made over to him. This led to the filing of the suit in question by Hakim Muhammad Akhtar against Jamaluddin as well as the latter's wife Mst. Sabira Begum, seeking declaration that the plaintiff was entitled to ownership of the property and Jamaluddin's wife, Mst.Sabira Begum, was a mere Benami for her husband, specific performance of the contract dated 14-6-1978 and a permanent injunction seeking restraint against the two defendants from alienating the property in suit. In their respective written statements/evidence the husband and wife took a common stand that Syed Shaukat Ali, the allottee/owner of the suit property, had refused to sell the same to plaintiff Hakim Muhammad Akhtar and Mst. Sabira Begum, putting up with parents in her then state of strained relations with her husband, having contacted the said Syed Shaukat Ali, through her brother Nizamuddin, purchased the property after procuring the sale price of Rs,80,000 from her br ithers Nizamuddin and Ikramuddin and sister Noor Jehan.
4. Jamaluddin, separately, has also maintained that when he approached Shaukat Ali, that gentleman told him that sale had already been concluded with Mst. Sabira Begum whereupon Jamaluddin, offering refund of Rs,40,000 to the Hakim, met with a refusal to receive. As to the details of the transaction between Mst. Sabira Begum and Syed Shaukat Ali, it is in evidence that such was concluded through an agreement (Iqrarnama signed by the seller alone) dated 8-6- 1978 (Exh.15) initial consideration of Rs,60,000 being paid per receipt of the same date Exh.16, the agreed price having been Rs,80,000. The deal was fmalished / through a deed of surrender (Iqrarnama Dastbardari) similarly executed dated 14-6-1978 (Exh.17) when balance payment of Rs,20,000 per receipt was made (Exh.18). Significantly, at both these stages Nizamuddin, brother of Mst. Sabira Begum, figured for her, though not signing any of the documents himself. Relating to possession of the half portion of the property with Hakim Muhammad Akhtar it was urged that the Hakim had contracted a tenancy with Mst. Sabira Begum on an agreed rent of Rs,200 per month which, having been paid for some time, was discontinued subsequently.
5. ' Several issues were struck between the parties the most important of which pertained to the nature of rights of Mst. Sabira Begum and whether she was mere benami owner of the suit property. Both the learned Courts have II concluded that Jamaluddin, husband of Mst. Sabira Begum, was the real owner and there being no dispute as to the existence of the agreement between Jamaluddin and Hakim Muhammad Akhtar to purchase the property jointly in equal shares from the original owner, the suit has been decreed at both the levels.
6. ' With the learned counsel, I went through all the documents in the suit and perused the record.
7. Having heard arguments in the revision applications, separately brought by the husband and wife, I found no jurisdictional error in the concurrent judgments and decrees of the learned Courts below and, therefore, dismissed these revision applications through a short order, subject to reasons to follow. These are such reasons: ' It is an admitted position that an agreement (Iqrarnama) dated 14-6-1978 was concluded between Jamaluddin and Hakim Muhammad Akhtar, reciting that Jamaluddin had settled a deal with Syed Shaukat Ali for purchase of the suit property on an agreed consideration of Rs,80,000, that the transaction was concluded "in cooperation" with Hakim Muhammad Akhtar from whom Jamaluddin received a sum of Rs,40,000, issuing a receipt therefor, and that on crmpletion of sale, when Jamaluddin acquired possession, half of the property on the western side, to the extent of 40 Sq. Yds., would be handed over to the said Hakim Muhammad Akhtar, formalities of sale requiring to be completed by Jamaluddin. The agreement/Iqrarnama (Exh.6), drawn up on 14-6-1978 but bearing no date of actual execution, was attested by a Notary Public on 15-6-1978 and is supported by a receipt of similar nature (Exh.7), reflecting payment of Rs,40,000 correspondingly made. The only reason why Jamaluddin did not honour such agreement purportedly was, as allegedly the sale between him and Syed Shaukat All could not materialise and, instead, it was his wife, Mst.
8. Sabira Begum, who in the then state of their strained relations living with her own people, purchased the suit property from the funds made available by her brothers Nizamuddin and Ikramuddin and sister Mst. Noor Jehan.
9. Now Sabira Begum has not examined herself nor her brother Ikramuddin and her sister Mst. Noor Jehan is stated to have died. There could thus have been justification for the non-examination of Mst. Noor Jehan but none exists for the glaring omission relevant to Mst. Sabira Begum herself and brother Ikramuddin. Evidence so withheld may have adversely reflected on the defence pleaded by Mst. Sabira Begum: Article 129, Illustration (g), Qanun-e Shahadat. Witnesses as to the source of the consideration money thus become confined to brother Nizamuddin through whom Mst. Sabira Begum obtained Iqrarnamas dated 8-6-1978 and 14-6-1978 and relative receipts (Exhs.15-18).
10. Nizamuddin himself, who did not even have a power of attorney from the lady, is conspicuous in his reticence about the sister being provided funds for purchase by her brothers and sister, as pleaded, and it is an admitted position that Mst. Sabira Begum had few resources of her own. Even on the question of strained relations between the spouses D.W. Nizamuddin admitted that at the time of purchase of the property Sabira Begum was residing at Jacob Lines with her husband.
11. Evidence of another brother Abdur Rahim, holding a power of attorney from Mst. Sabira Begum, does contain an averment that funds were provided, somewhat as pleaded, but that is only an eye-wash because neither the receipient nor any of the providers of money have testified to that effect. As to passing of possession of the half portion of the property to Hakim Muhammad Akhtar, admittedly, there is no written agreement of tenancy and no documentary evidence whatever.
12. The plaintiff, having discharged his burden by showing positively that he kept his part of the bargain and actually passed on his contribution of Rs,40,000 to Jamaluddin the burden had shifted on Mst. Sabira Begum to show affirmatively that it was not this money but that arranged from her blood relations which passed as the consideration. She clearly failed in discharging the onus cast on her. Further, the so-called strained relations and separation between the defendants having been stultified in the defence evidence itself the entire transaction with Syed Shaukat All assumes the character of a mere contrivance, as maintained by the plaintiff.
13. ' Mr. Abdul Karim Siddiqui, representting Mst. Sabira Begum, has, however, urged that the initial payment of Rs,60,000, as per documentary material, was effected by Sabira Begum on 8-6-1978 before the agreement was concluded for joint purchase between Jamaluddin and Hakim Muhammad Akbtar, at the earliest, on 14-6-1978 and, therefore, no part of the consideration, at least at that stage, could have been contributed by Hakim Muhammad Akhtar. Now, there are inconsistencies in the four documents (Exhs.15-18) on which the defence is based. Agreement (Iqrarnama) dated 8-6-1978 (Exh.15), which is executed by seller Shaukat All alone, recites Nizamuddin to be representing sister Sabira and avers that the remaining balance of Rs,20,000 would be arranged for by Nizamuddin, Ikramuddin and Moor Jehan yet reveals nothing positive about the source of Rs,60,000 allegedly paid in actuality on the date. What is more, even though 75% payment is shown having been made no possession is made over and all that is said is that sale would be completed in a week on payment of the balance. Co-relative receipt (Exh.16) also categorically does not disclose the source of such Rs,60,000. Of course payment is shown to be made by Nizamuddin but then he was acting for his sister. Further, nothing is said in either of these documents as to why the whole transaction could not wait a mere one week. In addition, the final Agreement (Exh.17) dated 14-6-1978 (Iqrarnama Dastbardari) does not even refer to the earlier documents and fails even to disclose the consideration amount. Possession is delivered at this stage. The lacuna as to consideration passing in two instalments is attemptedly filled only in the corresponding receipt (Exh.18).
14. In cases involving benami transactions once the plaintiff has discharged his burden it falls for the alleged benami holder to show through consistent and unimpeachable evidence an independent source of funds. On the record not only such independent source is missing but the supporting documents themselves could have been easily minipulated dishonestly in league with a seller who, it is the case from either side, was determined to exclude the real beneficiary namely, plaintiff Hakim Muhammad Akthar. See Akram Moquim Ansari v. Asghari Begum PLD 1971 Kar.
15. 763.
16. ' In matters of this kind circumstantial evidence would be of no small importance. As seen, consideration of the transactions between Hakim Muhammad Akhtar and Jamaluddin, on the one hand, and Mst. Sabira and Syed Shaukat Ali is identical. Documentation of the transactions, by a strange co-incidence, is also identical the format of Iqrarnamas alone having been favoured.
17. Dates also are similar, if not the same and as the factum of attestations would show the parties are not meticulous about the dates. Divergence between 8-6-1978 and 14-6-1978 thus loses significance.
18. ' Another argument of Mr. Abdul Karim Siddiqui is that because Syed Shaukat Ali, the seller, was not prepared to transfer the property to Hakim Muhammad Akhtar, the latter, in league with Jamaluddin, camouflaged a shady deal, which cannot, in law, be sustained. This argument of the learned counsel cuts either way. It could be for this obvious reason that Syed Shaukat Ali, who has appeared as a defence witness, wholeheartedly supported the case of Mst. Sabira Begum and Jamaluddin. Further, even if the contract between Hakim Muhammad Akhtar and Jamaluddin was immoral or unethical, Jamaluddin seems to have taken the immoral aspect of the transaction too far and has failed to abide with his own commitments vis-a-vis Hakim Muhammad Akhtar, upon obtaining the transfer not in his own name but in the name of his wife, for reasons which have become all too manifest. Irrespective of the nature of the transaction, Jamaluddin cannot be allowed to appropriate the benefits under it while decrying the advantages accruing to others. This would be the equivalent of premium on wrong doing. Besides, no one can be countenanced to approbate and reprobate in the same breath.
19. ' At any event, it seems to me, the transaction may have been questionable, if at all, at the end of Syed Shaukat Ali, who being content with the state of the controversy, has chosen to merely side with the defendants. His rights, such as they may have been, no better than those of a defrauded seller, the transaction, at the seller's instance, being voidable not void, stand extinguished through his own acts of commission and omission. Correspondingly there, being no inherent illegality in the contract between the plaintiff and Jamaluddin, in the sense of contrariety to law, its specific performance is not barred. That relief stands granted by the two learned Courts below and there is no cause for interference here.
20. ' Mr. Abdul Karim Siddiqui has next pointed out that the findings of the learned two Courts are erroneous as they have incorrectly found that Jamaluddin was a sitting tenant of a portion of the property at the time the property inhered in Syed Shaukat Ali. Even if that were so such findings cannot reflect on the conclusion. One who had previously nothing to do with the property purchased by him would have fewer equities to go by.
21. At any event, the foregoing questions dilated upon in this order hardly point to any jurisdictional error and revisional powers cannot be exercised merely because there be, if at all, mere errors in findings of fact. Mr. Qamar Muhammad Khan, representing Hakim Muhammad Akhtar, his also urged that the revision applications are barred by time, not having been filed within the period of 90 days, having the force of practice of the Court behind it. Such may be another good reason for non-interference. For all the preceding reasons, these revision applications stand dismissed.
22. Revision .