WAHID BUX BROHI, J. -- Mst Bushra Farooque, the plaintiff, is daughter of (late) Jamal Ahmed Khan, who was a builder of flats, houses and commercial projects. Mst. Shabana Rafique the defendant No. 1 claims to be wife of said Jamal Ahmed Khan, but according to plaintiff, she was employed as Office Assistant/Secretary by Jamal Ahmed Khan on monthly salary of Rs. 4,500/-. Jamal Ahmed Khan died on 23.10.2000. As averred in the plaint, he left behind Mst. Naseem Jahan Begum (widow), Shakeel Ahmed and Adeel Ahmed (sons) and Mrs. Noreen, Mst. Bushra Farooque, Mst.
Erum Siddiqui and Mst. Sada:. Salma (daughters). According to plaintiff, Jamal Ahmed. Khan was suffering from eye problem and was not capable to see during electric breakdown and at times he was partially blind, and sometimes totally blind. He entrusted the job of purchasing Defence Saving Certificates to Shabana Rafique and paid the full cost to her so that the same be purchased in the names of his grand-children but she, allegedly in breach of trust, purchased the certificates in her name and in the name of Jamal Ahmed Khan. In all, there are 34 Defence Saving Certificates, each valued at Rs. 10,000.- in the name of defendant No. 1 and an equal number of certificates in the name of Jamal Ahmed Khan, but all the certificates are presently in the possession of plaintiff's mother. The plaintiff claims that her father Jamal Ahmed Khan alone was the real owner of the certificates and the defendant No. 1 is not entitled to these certificates.
2. Mst. Bushra Begum, the defendant No. 1, in her written statement, claimed that she was not only Personal Secretary of (late) Jamal Ahmed Khan, but was also his wife. According to her, Jamal Ahmed Khan had 3 wives, out of whom he divorced the first one and the existing wives are Mst.
Naseem Jahan Begum and Shabana Rafique, the answering defendant. It is her case that Jamal Ahmed Khan used to pay Rs. 20,000/- per month to her as her personal expenses as also maintenance charges, being his Personal Secretary and wife. She explained that Jamal Ahmed Khan never trusted his son-in-law, namely, Syed Farooque Ahmed Naqvi, husband of plaintiff, but only paid a salary to him and he was living there as 'ghar damaad'. She went to the extent that Jamal Ahmed Khan never disclosed any of the affairs of the company to his sons and daughters including the plaintiff and entire cash dealing was handled by the deceased himself. Regarding the main controversy she claimed that she purchased 34 Defence Saving Certificates in her name from her own means and resources, as her sister and father had given money to her for investment purposes. Regarding the remaining 34 certificates in the name. of Jamal Ahmed Khan, she claimed that she was the nominee in consideration of 50% of her dower (maher) amount. Regarding possession of the Defence Saving Certificates she took the plea that in fact the same were snatched from her by the husband of plaintiff. She has additionally pleaded that she reserved her right to file separate suit for her share in the properties left by deceased Jamal Ahmed Khan, being one of the legal heirs.
3. Written statement was also filed on behalf of National Savings Centre, defendant No. 2, wherein it was admitted that the defendant No. 1 purchased 34 Defence Saving Certificates of Rs. 10,000/- each in her own name according to rules, while Jamal Ahmed Khan purchased 34 Defence Saving Certificates in his own name from National Sayings Centre, Dastgir Society, Karachi. According to defendant No. 2, Jamal Ahmed Khan is owner of those certificates, which were purchased by him in his name and under his own signature. He cannot be the owner ,of those certificates, which were purchased by defendant No. 1. It was explained that defendant No. 1 had reported loss of the above-mentioned Defence Saving Certificates to them and had also informed them in writing to stop payment of the certificates.
4. On these pleadings the following issues were settled by the Court:-
(1) Who is the owner of Defence Saving Certificates in question?
(2) Whether the Defence Saving Certificates to the extent of Rs. 3,40,000/- in the name of the defendant No. 1 are Benami or not?
(3) Whether the Defence Saving Certificates for Rs. 3,40,000/- in the name of the father of the deceased are distributable amongst the plaintiff and the defendant No. 1?
(4) What is the relationship of the defendant No. 1 with the plaintiff ?
(5) What should the decree be?
5.The property in this suit, as already stated, consists of 68 Defence Saving Certificates each valued at Rs. 10,000!- 34 certificates are in the name of Shabana Rafiq, the defendant No. 1, and the remaining 34 in the name of Jamal Ahmed who died on 23.10.2000. These certificates have been purchased on different dates ranging between 9th February, 1998 and 11th September, 2000. As regards legal value of these certificates it may be stated that the scheme of Defence Saving Certificates was introduced in 1966 and in order to give it legal cover the Central Government made rules titled "Defence Saving Certificates Rules, 1966" which were published in Gazette of Pakistan Extraordinary dated 8th November, 1966. Another notification was also issued on the same day to the effect that Defence Saving Certificates shall be governed by afore-mentioned rules. The procedure for purchase, encashment, discharge nomination and transfer of certificates has been fully Catered for in these rules and provisions have also been made for pledging of certificates of security and replacement of lost, destroyed and damaged certificates. In view of these rules.it has been pleaded in the written statement filed by Director, National Savings Centre, Government of Pakistan, defendant No. 2 that Mst. Shabana Rafiq is entitled to encash the certificates issued in her name in the capacity of the owner/purchaser and she is also entitled to encash the certificates issued in the name of late Jamal Ahmed Khan in the capacity of nominee, since she has been 1Vol.111 Mst. Bushra Farooq V. Mst. Shabana Rafiq 1259 (Wahid Bux Brohi, J.) nominated/appointed so by the purchaser deceased Jamal Ahmed at the time of purchase in his life time.
6. The plaintiff's claim precisely is that full cost of all these certificates was paid by late Jamal Ahmed as he used to pay Rs. 20,000/- to Mst. Shabana Rafiq, defendant No. 1 to purchase the certificates in the name of his grand-children but allegedly Shabana Rafiq, by playing fraud and in breach of trust, purchased 34 certificates in her name and the remaining in the name of late Jamal Ahmed. This, according to . plaintiff, was a Benami transaction. It has, therefore, been prayed that the legal heirs of Jamal Ahmed the declared to be the real owners of the said amount of Defence Saving Certificates the fact value whereof is equivalent to Rs. 6,80,000/-. The matter, therefore, requires consideration as to what extent the principles governing a Benami transaction can be made applicable to Defence Saving Certificates which are wholly governed by Defence Saving Certificates Rules, 1966 in all respects.
7. It is significant to note that there is no law on the statute book in Pakistan to define Benami transaction as such, although in India an Act has been legislated titled: "Benami Transaction (Prohibition) Act, 1988", wherein under Section 2(a) Benami transaction has been defined to mean: "Any transaction in which property is transferred to one person for consideration paid or provided by another person". In Pakistan, therefore, in absence of a statutory provision different provisions of existing laws are to be kept in mind, out of which the eminent provision is that of Section 41 of the Transfer of Property Act. Additionally, in certain cases Sections 81 and 82 (also 84) of the Trust Act, 1882 may, to a little extent, be taken into consideration subject, inter a/ia, to Section 2(11) of the Limitation Act, 1908. Likewise, in certain cases restricted to a purchase certificated by Court, Section 66 of the Code of Civil Procedure can also be referred to. Rules of evidence especially the equitable doctrine of 'feeding the estoppel'would also provide beneficial assistance. Out of these provisions the Trust Act relates to property but the definition of 'property' has not been laid down therein, therefore, it cannot be confined to the moveable or immovable property exclusively. Section 66, CPC if read with Section 65, CPC can be restricted to immovable property otherwise there is no distinction in Section 66, CPC itself.
The main statutory' provision, however, is Section 41 of the Transfer of Property Act which essentially relates to transactions in respect of immovable properties: No doubt, in absence of any express bar no strict. rule can be laid down that principles underlying the afore mentioned provision of law be not extended to any other proper. There may even be cases where accounts are maintained and business run in the name of ostensible owner. Nevertheless, I am of the humble view that utmost caution be exercised while extending this principle to securities, bonds, perishable property, consumable goods and other moveable properties which may change hands within hours and title may flow simultaneously with full effect. Unlike this an immovable property remains attached/fastened to earth and it is the title that changes hands. Therefore, in case of moveable properties or particularly in case of securities, bonds, certificates, while looking for the general principles governing Benami transaction peculiar features, related to purchase, transfer and disposition of such properties shall bear dominating effect.
8. Ordinarily, in assessing the characteristics of Benami transaction the Courts of law have by and large assigned much importance to the 'source of consideration money' and 'the custody of title documents'. The precedents Jamia Khatoon v. Yasin (PLD 1959 Dacca 690), Ismail Dada Adam Soomar v. Shohrat Bano (PLD 1960 Karachi 852), Muhammad' Begum v. S. Salahuddin Ahmed (PLD 1992 Karachi 86), Kishwar Malik v. A.M. Sadiq Malik (PLD 1995 S.C. 457) and Muhammad Siddiqi v. T.J.
Ibrahim & Company (2001 SCMR 1443) may be -cited in this context. General principles laid down in Ouseph Chaek v. Reman Nair (AIR 1989 Kerala 317), Bhim Singh v. Kan Singh (AIR 1980 S.C. 727) and Rajesh Kumar v. Virendra Kumar (AIR 1994 Allahabad 135) may also be referred to with advantage. In broader sense the following factors are to be borne in mind while assessing the nature of a transaction to be Benami or otherwise:-
(i) The person asserting that a transaction is Benami shall bear the burden of proving the same;
(ii) In case purchase money is added or provided by person other than the person in whose favour the property is transferred or held, the purchase be assumed to be for the benefit of the person who supplied the purchase money unless the contrary is established;
(iii) The intention of the person who supplied the purchase money bears prime importance in determining true character of the transaction ;
(iv) In ascertaining the intention of such person the attending circumstances, including relationship between the parties, the motive inviting their actions, in getting the transaction materialized and their subsequent conduct shall have adequate bearing;
(v) Possession of original title deeds in circumstances may also be added to the determining factors;
(vi) In case these principles are to be applied to securities,certificates/bonds etc. arising out of certain financial schemes the law/rules governing the same and the spirit with which such schemes are floated 'shall have paramount consideration.
9. Keeping in view the general principles issues were framed and the parties led evidence accordingly placing emphasis on the relationship between parties, possession of the documents, source of income and the other related factors. At the outset learned counsel for plaintiff urged that admittedly the possession of these certificates is not with the defendant No. 1, presumption may, therefore, be drawn that the possession was with the heirs of deceased Jamal Ahmed Khan because these certificates were purchased as Benami and real owner was Jamal Ahmed Khan himself. -He also referred to the inconsistent stand' taken by the defendant No. 1 that she had informed the defendant Saving Certificates Authority, defendant No. 2, that the certificates had been stolen and duplicates thereof may be issued but evidence has come on record through the witnesses including the defendant No. 1 herself that these certificates were not stolen. However, it has come in evidence through defendant No. 1 that the certificates were forcibly taken away from the drawers of the tables in the office after death of deceased Jamal Ahmed Khan. In any manner the fact remains that these certificates are out of the custody of defendant No. 1 and are presently lying with the mother of plaintiff.
10. As regards the source of income the defendant No. 1 produced such evidence at the trial, firstly, in the shape of her affidavit-in-evidence. She stated therein that Jamal Ahmed Khan married her on 1st August, 1996 against a dower amount of Rs. 700,000/-. She produced a Nikahnama and photographs concerning her marriage. However, she clarified that the dower/Mehr was not paid to her. She also referred to a will executed by Jamal Ahmed Khan in her favour. Regarding the source of income for purchase of the Defence Saving Certificates in her name she stated in Para 8 of the affidavit-in-evidence as under:- "8. That I say that the Defence Saving Certificates worth Rs.340,000/- which are in my name and not benami as the same were purchased by me on different dates from the money of my father which I used to receive as profit on his investment of rupees two lac from Mr. Jamal 'Ahmed Khan amounting to Rs. 8,000/- and further Rs. 1,000/- was paid by my sister and ancther Rs. 1,000!- added by me. In this way I used to invest Rs. 10,000/-every month in Defence. Saving Certificates.
Mr. Jarnal Ahmed Khan used to purchase Defence Saving Certificates of Rs. 10,000/- each month in his name from his own resources and therein I was nominated for the reason that he used to say that on his death this money and profit thereon will come into my hand and this will be treated as an amount of mehar payable by Mr. Jamal Ahmed Khan and this will be fifty per cent of my mehar amount."
11. She was cross-examined at length assailing her version given on this point but all the suggestions, put in that direction, were denied by her and on the whole nothing could come on record to dislodge this oral version. Nonetheless, it is interesting to point out that no documentary evidence could come on record through the defendant No. 1 or even from the plaintiff's side.
Although, generally it is understood that the person against whom such allegation is made has to furnish evidence about the source of income but in the circumstances of this case, as already pointed out in foregoing paras, the person who alleges that such transaction was Benami has to shoulder the burden in the first instance. Practically, in all cases it is the purchaser of property who claims that he purchased the same in the name of ostensible owner, but instantly there is mere allegation from the plaintiff side that it was the money of Jamal Ahmed Khan that she paid at the time of purchase of these certificates. No evidence from the record of the company has been placed on record by plaintiff to suggest that the money was withdrawn from a particular account of company or of Jamal Ahmed Khan or from any fund related to the company or Jamal Ahmed Khan personally. This was basically a requirement to put forward the claim. that the purchase of .certificates was a Benami transaction._ No doubt, the defendant No. 1 did not produce any documentary evidence but in absence of the evidence produced on either side her oral version was enough. Then her version is further supported by the evidence of the certificates themselves and the evidence of Rafiq Ahmed, father of defendant No. 1, who stated in his affidavit-in-evidence (ex. D/0 and D/9-A) that he had invested- Rs. 200,000/- with Jamal Ahmed Khan arid in return he was paid Rs. 8,000/- per month as profit thereof at the rate of 4% per month. He has, of course, not produced .documentary evidence in support of his version but in cross-examination nothing could be secured by the plaintiff to raise a contrary presumption.
12. As already opined by me, the certificates themselves are the determining factor in view of the law governing the scheme and they speak manifestly in favour of the persons in whose name the same have been issued in accordance with rules. Prima facie, oral evidence from defendant No. 1 is fully supported by documentary evidence in the shape of certificates. In order to dislodge the probative effect of this material strong evidence was required from other side but it is miserably lacking. The plaintiff is left only with a rough presumption that since defendant No. 1 was working as Lady Secretary she manipulated _purchase of these certificates in her name which by itself is wholly short of substantiating her claim.
13. It would not be out of the place to mention that an issue was framed with regard to relationship between parties. Parties have put forth their versions in their evidence. The plaintiff alleged that the defendant No. 1 was simply the Secretary and employee of late Jamal 'Ahmed Khan while defendant No. 1 produced Nikahnama, Will and also witness Zahid to the extent that the marriage was duly solemnized, photographs were also produced. Indeed, this issue is out of context when the transaction is being considered in respect of certificates issued under scheme of Defence Saving Certificates. Nevertheless, the question of inheritance of the properties of Jamal Ahmed Khan will be a vitally important issue when a suit is brought for that purpose and in the present suit it is not necessary to go into the intricacies of that question for, in absence of the proof of marriage or otherwise the question of Benami can effectively be decided, as already discussed. The parties, therefore, have to put forth their pleas when a suit founded on claim of inheritance is brought by them as such for the claim of inheritance is brought by them as such for the moment the issue is deleted.
14. On examining the case in the light of general principles and the factors enumerated above in this judgment it may be summed up that the plaintiff has utterly failed to discharge her burden that purchase of Defence Saving Certificates bearing the name of Shabana Rafiq was Benami and was for the benefit of the grand-children of Jamal Ahmed Khan; that the purchase money was paid by Jamal Ahmed Khan or drawn from the funds of the company or any account of Jamal Ahmed Khan; the presumption that Shabana Rafiq had no source to provide such purchase money has adequately been rebutted; nothing could come on record that the money was provided by the purchaser with a different intention; the Defence Saving Certificates Rules lay down express provision to make nomination, but no such nomination was made in favour of grand-children or the heirs of Jamal Ahmed Khan; the face value assigned to the certificates issued in the name of Shabana Rafiq read with the entries made in accordance with the rules governing the scheme of Defence Saving Certificates is by itself :sufficient to defeat the presumption of Benami transaction; and the only fact of custody of the certificates is not enough to alter the position. Accordingly, it may be concluded that the certificates in the name of Shabana Rafiq are and be treated as her property and the transaction cannot be held to be a Benami purchase made by Jamal Ahmed Khan in favour of his heirs.
15. As regards the certificates in the name of Jamal Ahmed Khan, on the same analogy it would be held that in view of the Defence Saving Certificates Rules these certificates and the amount and profit thereon is the property of late Jamal Ahmed Khan which is ordinarily to be inherited by his heirs. However, there is a nomination made to the extent of 50% in favour of Shabana Rafiq. As regards the legal effect of nomination it is relevant to observe here that the provision of nomination in the rules wherever it defeats the right of heirs is to be interpreted strictly as this provision of the, rule derogates from the general law that in case of inheritance the Muslim personal law is applicable to the parties. Rule 13 of the Defence Saving Certificates Rules make a provision for nomination and the claim of defendant No. 1 is based on this provision, but since it is flagrantly in direct conflict with the substantive law of inheritance it can legitimately be observed that the substantive law should prevail and the rules being subordinate legislation shall give way to it, In any manner it is imperative to give effect to the provision of the law of inheritance notwithstanding the conflict. The defendant No. 1 has, however, endeavoured to place on record a Will said to have been executed by Jamal Ahmed Khan mentioning therein that 50% of his properties shall go to Shabana Rafiq,. How far such-a testament 'could be valid is a question apart, but since the question of inheritance is yet to be decided in a different s it, the effect of this document as also the alleged Nikahnama etc. are.not teirj considered for the purpose of this suit. Consequently, it is that the Defence Saving Certificates in the name of jamal Ahmed Khan and profit thereon are to be inherited by his legal. heirs in accordance with law.
16. In result of the foregoing discussion it is concluded that the Defence Saving Certificates in the name Shabana Rafiq belong to her and she is entitled to encash the same and realise the value thereof with profits thereon and that the purchase thereof was not a Benami transaction and she is the real owner. As regards the Defence Saving Certificates in the name of late Jamal. Ahmed Khan the suit is decreed to the extent that Jamal Ahmed Khan was real owner of these Defence Saving Certificates worth Rs. 3,40,000/- and his legal heirs subject to liabilities, if any, shall be entitled to receive the amount together with profits thereon in accordance with law. Legal heirs shall be determined in a suit if brought on the basis of claim of inheritance. Since most of the contest is on the legal point there shall be no order as to costs.