' This suit for declaration and mandatory/permanent injunction relates to an unfortunate dispute between father and son over a residential property bearing No,64/B, Block-8, measuring 271 sq.Yds., in Works Cooperative Housing Society Limited, KDA Scheme No,24, Gulshan-e-Iqbal, Karachi which was leased out in the name of Tahseen Jawaid Siddiqui, the defendant, who is son of Muhammad Yaseen Siddiqui, the plaintiff. It is the case of plaintiff that his son, the defendant, was a student at the time of purchase of this property and had no source of income. The plaintiff, through his own funds, purchased this property in the name of defendant and raised construction from his own funds by remitting lacs of rupees from Saudi Arabia through bank draft/pay orders directly to defendant and his wife Mst. Zubeda Yaseen and daughter Mrs. Ghazala Yaseen. Accordingly, it is claimed by plaintiff that he is the real owner of the said property and his son, the defendant, is only an ostensible/Benami owner. He has alleged that of late the defendant changed his attitude and expressed that he wanted to sell the suit property. The plaintiff, therefore, sought the following reliefs:--
(i) To declare that the plaintiff is the exclusive owner of the property bearing No,64/Benami, Block- 8, measuring 271 sq.Yds., situated in Works Cooperative Housing Society Ltd., KDA Scheme No,24, Gulshan-e-Iqbal, Karachi, and the defendant is an ostensible Benami purchaser/owner/lessee of the above mentioned property and have no interest over .The said property.
(ii) To grant mandatory injunction directing defendant to execute declaration of oral gift before concerned Sub-Registrar, Karachi, in favor of plaintiff in respect of property bearing No,64/Benami, Block-8, measuring 271, sq.Yds., situated in Works Cooperative Housing Society-Ltd., KDA Scheme No,24, Gulshan-e-Iqbal, Karachi, and/or in case defendant fails to do so, the Nazir or any other officers of this Honourable Court may be appointed as Commissioner for execution of Declaration of Oral Gift in favor of plaintiff, the plaintiff undertakes to bear all the expenses viz., stamp duty and registration fees etc.
(iii) To grant permanent injunction against the defendant restraining him from selling, transferring, gifting, mortgaging and/or creating any encumbrance on the above mentioned property.
(iv) Any other relief of the Honourable Court may deem fit and proper in the circumstances of the case.
(v) Cost of suit be also awarded to the plaintiff.
2. The defendant, in his written statement, admitted that the suit property was purchased by the plaintiff in his name out of love and affection for him and at the time of construction the plaintiff was working in Saudi Arabia and defendant looked after the entire construction work and it was the decision of his parents that the house be constructed for the defendant. He was a medical student at that time. He stated that his parents had great love for him and he also cherished all regards and respect for the plaintiff. He admitted that from Saudi Arabia the plaintiff remitted funds for the maintenance of his wife and children. He denied the allegation that he proposed to dispose of the house. However, he set up a claim that the suit property was gifted to him and he has become exclusive owner and not the Benami owner. He asserted that the possession of the house was given to him and he accepted the gift and then renovated that building and made investment in it from time to time. He explained that the suit has been filed under the influence of plaintiff's sons- in-law who are interested in this property so as to get it disposed of and share the proceeds thereof. He added in his written statement that he proceeded to Ireland for his studies in medicine and his wife also joined him subsequently but now he is settled in United States of America. Since the house in question was lying vacant, on his request his uncle Abdul Samad Siddiqui is staying in the ground floor as caretaker of the house.
3. On the pleadings of the parties the following issues were struck by the Court:--
(i) Whether the defendant is the owner of the property in suit by virtue of an oral gift made by his father/plaintiff in his favor or he is a Benamidar of his father?
(ii) What should the decree be?
4. A Commissioner was appointed for recording evidence and the parties led evidence on these issues. One Shahabuddin, in capacity of attorney of plaintiff, filed his affidavit-in-evidence supported by copies of irrevocable General Power of Attorney in his favor, copy of lease deed, copies of bank draft/pay orders and certificate of employment of plaintiff in Saudi Arabia.
Affidavit-in-evidence of one Muhammad Bashiruddin was also filed on behalf of plaintiff and both the witnesses were cross-examined at length by learned counsel for defendant. On defendant's side Professor Dr. Yahya Ali Ahmed Farooqui filed his affidavit-in-evidence supported by a number of documents. He was also cross-examined at length by the Advocate for plaintiff.
5. I have heard learned counsel for parties and perused the evidence on record. Learned counsel for plaintiff contended that since the property is in the name of defendant there was no question of gift. He argued that even then the defendant has failed to furnish cogent, unimpeachable and trustworthy evidence on the question of gift. He relied on Abdul Rahim v. Jannatay Bibi (2000 SCMR 346) and Siraj Din v. Jamilan (PLD 1997 Lahore 633). As regards the nature of transaction he emphasized that it was a Benami transaction as it has been throughout admitted by the defendant that the plot was purchased by the plaintiff and expenditure on construction was also incurred by him. Learned counsel for defendant submitted that the factum of purchase and expenses on construction is, no doubt, admitted but the purpose was to make a gift in favor of the defendant and accordingly an oral gift was made. He was of the view that the plaintiff should have come in person to deny the claim of gift as set up by defendant. However, he argued that in absence of donee and donor there is circumstantial evidence of offer and acceptance of gift while the possession was admittedly joint at that time and as such the ingredients of a gift are made out.
6. The Issue No,1 wholly covers the controversy and a decision thereon is sufficient for adjudication of the entire subject-matter, but essentially it embodies two vital questions for determination one: whether the defendant is the owner of the property in suit by virtue of an oral gift made by his father/plaintiff in his favor; the other, whether the defendant is Benamidar of his father? The plea of oral gift made in favor of defendant, as taken in the written statement, is that an oral gift was made by plaintiff in respect of the suit property which the defendant accepted and its possession was delivered to him. This point, legally speaking, tends to demonstrate an admission by the defendant that his father/plaintiff at the time of said oral gift was the real owner and, as such, was capable of gifting his property to his son, the defendant. Significant consequences that follow in view of this plea will be relevant for the purpose of discussion on the second question relating to Benami transaction.
7. In order to lead evidence on the point of oral gift, the donee namely the defendant did not appear in Court but Prof. Dr. Yahya Ali Ahmed Farooqui, the sole witness on his behalf, was examined on the basis of a Special Power of Attorney. Admittedly, this Power of Attorney has been drawn and prepared out of Pakistan and it recites that it was executed on 19-4-2000 at IOWA City, United States of America. It is attested by witnesses but the attorney Prof. Dr. Yahya Ali Ahmed Farooqui has admitted that he did not know the witnesses. He has also admitted that the defendant himself was not in Karachi during April, 2000. It is further admitted that his Power of Attorney is neither a registered document nor attested by any authority. These admitted facts clearly indicate that the Power of Attorney having been allegedly executed in a foreign country has not been duly attested or endorsed by the Embassy of Pakistan or the concerned Consulate in United States of America. This is, in fact, a worthless document and would hardly create an authority. Reliance in this context may be placed on S.M. Khalil v. Biswanath Basak (1971 DLC (Rev.)
62). The defendant has never made an attempt to rectify this irregularity. It is interesting to note that the written statement, wherein the plea of gift has been taken was not signed by the defendant himself but it bears the signature of the said Prof. Dr. Yahya Ali Ahmed Farooqui claiming as attorney of the defendant. As already pointed out there is no legal and valid document to constitute him an attorney, therefore, the written statement would also suffer from the same irregularity.
8. Irrespective of the above, if the case is examined on its merits on the basis of evidence placed on record it is to be seen if the requirements for constituting a valid gift are satisfied through the material on record or not. It is needless to enter into extensive and detailed discussion on the legal aspects of a 'gift' but at least it is an inevitable and predominant requirement that the person deriving title through gift should lead formidable evidence to establish that the owner of the property offered it to him as a gift, the later accepted the same and the transaction was solemnized and completed by way of delivery of possession. Incidentally, in this case neither the donee nor the donor have stepped into the witness-box to give evidence on these crucial facts nor the witnesses, cited by the defendant, have ever turned up. However, evidence has come on record that defendant's mother had died in the year 1986. In this context learned counsel for plaintiff rightly relied on the observations of the Hon'ble Supreme Court in. Abdul Rahim v. Jannat Bibi (2000 SCMR 346), which read as under:-- "Before parting with this order, it may be observed that petitioner predecessor-in-interest i,e, defendant Abdul Aziz did not enter the witness-box and thereby failed to discharge the burden of proof on him to establish a valid gift."
9. The defendant's witness Prof. Dr. Yahya Ali Ahmed Farooqui has admitted clearly that he did not know the defendant at the time when the alleged gift was made. He stated in cross-examination that he knew the defendant since 1984 and that the property was gifted at the time of purchase in the year 1979 to the defendant in presence of his mother Mst. Zubeda Gulzar and two sisters of defendant namely: Ghazala Shaheen and Talat Zamiruddin but no gift deed was executed. In this manner, this witness or the so-called attorney was not in the picture at the time of alleged oral gift.
Indeed, there is absolutely no tangible evidence on record to prove the essential constituent factors of gift. It may be added that although the witness Prof. Dr. Yahya Ali Ahmed Farooqui was not a validly constituted attorney to file a written statement but even then the plea, taken in the written statement, wholly collapses on the point of oral gift allegedly made by plaintiff in favor of defendant.
10. The remaining pieces of evidence, as adduced on behalf of defendant, have no relevance or direct bearing on the point of gift. Defendant's witness Prof. Dr. Yahya Ali Ahmed Farooqui has stated in his cross-examination that the plaintiff gifted one of his flats to his daughter Ghazala Shaheen and one flat to another daughter Talat Zamiruddin but then he conceded that the gifts were not made in his presence. Moreover, it was stated in the affidavit-in-evidence that the defendant extended financial assistance to the plaintiff whenever the latter needed, and copies of two cheques of US Dollar 10,000 and US Dollars 3500 were filed with the written statement stating that the same were encashed and utilized by the plaintiff, but at the same time he admitted in cross-examination that entire expenses of defendant for his foreign visits for studies were borne by the plaintiff. Even otherwise the aforementioned remittances were made long after the period of construction. Moreover, the documents filed on behalf of plaintiff carry amounts, as compared to these remittances.
11. A story has also been incorporated in the written statement as also in the affidavit-in-evidence that the plaintiff married one Judith Tailer in Saudi Arabia and then they migrated to United States of America where the latter was divorced and during those proceedings when plaintiff was called to declare his assets he did not mention the subject house as his property. No doubt, this fact has come through a person who is not authorized to act as an attorney, but even if this fact is assumed to be correct then, too, it would be a miserable affair to accept it as an evidence of oral gift. For, if a presumption is drawn that the property in question was not shown by the plaintiff as his own property it would ostensibly lend support to the plea of plaintiff on the point of Benami transaction made in favor of defendant as admittedly the property was in the name of defendant. It is quite comprehensible that the plaintiff was not in a position to furnish a document there in United States of America to claim the house as his property. Nonetheless, the question of Benami was not an issue to be decided there.
12. On the whole, the material placed on record does not furnish the required support to the plea of oral gift made by plaintiff in favor of defendant. The defendant has utterly failed to lead reliable, cogent and tangible evidence on this point. This part of the issue is, therefore, answered in the negative.
13. Decision on the point of gift having been rendered in favor of the plaintiff and against the defendant, there remains hardly any scope of further dilating upon the other aspect of the dispute.
Yet, it appears to be appropriate to record a definite finding that in view of the aforesaid decision that the property has not been gifted out to the defendant, whether the defendant is the real owner or Benamidar. Commonly, in order to establish the Benami nature of a transaction the following factors are to be taken into consideration as observed by the Hon'ble Supreme Court in Muhammad Sajjad Hussain v. Muhammad Anwar Hussain (1991 SCMR 703) wherein a good number of precedents on the subject were referred to:-- .(i) source of consideration;
(ii) from whose custody the original title deed and other documents came in evidence;
(iii) who is in possession of the suit property; and
(iv) motive for the Benami transaction.
14. While appraising the evidence on the subject the points formulated in Mst. Bushra Farooque v.
Ms. Shabana Rafiq (2002 CLC 1502) will also be helpful. In the instant case, indeed, the matter has become quite simple. On behalf of defendant there is glaring admission in the written statement that plaintiff Muhammad Yaseen, father of the defendant, purchased the property from his own funds and the defendant was a student at that time. At the most the defendant looked after the construction work, as during the period of construction the plaintiff was in Saudi Arabia. The defendant's witness has admitted in cross-examination that during the period of construction the defendant was a student and had no source of income at that point of time. He admitted in categorical terms that the entire investment on the said property viz. Plot and construction thereon was made by the plaintiff and that even the expenses of defendant including his foreign studies were borne by the plaintiff. The defendant started earning for himself only during the last about 8/9 years. These admissions extend complete and probative support to the case of plaintiff. On the other hand, if a plea is taken on the analogy that the sole witness examined on the side defendant had no valid Power of Attorney, therefore, he could not make admission binding the defendant, then too the inevitable consequence that would follow, will be that the case would be left with absolutely no evidence on the side of defendant and even the I written statement on the basis of aforesaid invalid Power of Attorney IM would lose its value.
15. Irrespective of the above admissions, the plaintiff has discharged his burden by filing affidavit- in-evidence of Syed Shahabuddin who has been constituted attorney through an irrevocable General Power of Attorney duly registered at Karachi. He has stated that the plaintiff purchased this property through his own funds in the name of defendant and construction was also raised through plaintiff's funds and the defendant had no source of income at that time. He has produced copies of pay orders and drafts sent by the plaintiff from Saudi Arabia. In cross-examination a suggestion has been put to him that the defendant used to supervise the construction but these payments have not been challenged. At the best, a suggestion has been put to the witness that expenses of renovation, maintenance and payment of utility were incurred by the defendant which was denied. A suggestion has also been put to him about payment of two cheques of US Dollar 10,000 and US Dollar 3,500 in -the year 1999 which too has been denied. Even if these remittances are admitted it would be a payment in the year 1999. Otherwise, on the whole it is established beyond doubt that the price of plot was paid by plaintiff and expenditure on construction was also incurred by him.
16. The other witness Muhammad Bashiruddin is father-in-law of Mst. Talat, the sister of defendant and daughter of plaintiff. He has been cross-examined mostly on the factum of gifts made by plaintiff in favor of his two daughters. He has also been put questions about the plaintiff's second marriage. He has, however, shown his lack of knowledge if in the proceedings in United States of America the plaintiff did not disclose the suit property as his property in his assets, which fact has already been discussed and thrashed in first part of the decision. Nothing could be elicited from this witness to give a different picture of the story about the purchase of plot and construction of house thereon.
17. Summing up the discussion on the point, in the light of evidence on record, it may safely be concluded that the plaintiff purchased the plot in question in the name of defendant, from his own funds and the expenses of construction were also incurred by him from his own source. A copy of lease deed has also come through the witness of plaintiff; therefore, the second factor leading to inference of Benami transaction also emerges in his favor. As far the motive/intention for Benami transaction is concerned the relations between the parties are admitted and even the love and affection expressed on both sides is conspicuous in the pleadings and evidence. However, as regards the possession of the property, evidence has come on record that both the parties are residing out of Pakistan and at present one Abdul Samad Siddiqui, brother of plaintiff and uncle of defendant is residing there as caretaker on the ground floor. He has not been produced as a witness . Defendant's witness has claimed that he is residing there with the permission of defendant. He has otherwise admitted that whenever the plaintiff came to Pakistan he stayed there without any objection.
18. In consequence of the foregoing discussion it is manifestly demonstrated that the essential ingredients of Benami transaction are made out and there is ample reliable and trustworthy evidence to establish the claim of plaintiff that he is the real owner of the suit house and the defendant is the Benamidar. The issue No,1 is answered accordingly.
19. In view of the findings on both sections of Issue No,1 the case of plaintiff is proved. It is alleged in the plaint that the defendant has changed his attitude and started making telephone calls to plaintiff and his other relatives asserting that he wanted to sell the property in question. The fact has also been stated by plaintiff's witness Syed Shahbuddin in his affidavit-in-evidence at para.
6. In cross-examination he has explained that it happened about 3/4 years back when defendant came to Pakistan and indicated his desire to sell the suit property but the plaintiff was not in favor of selling the same. The defendant's so-called attorney has simply stated that the defendant wanted to preserve the property but in view of the evidence led on plaintiff's side it is established that some kind of threat has been issued towards disposal of the property. It is, therefore, essential to restrain the defendant from creating any encumbrance on, or third party interest in, the property. Accordingly the suit is decreed with costs as far the prayer clauses (i), (iii), (iv) and (v) are concerned. As regards the relief contained in prayer clause (ii) it is significant to mention that in view of the aforementioned reliefs granted to the plaintiff the declaration as to title in his favor is enough and it is of no use to grant an additional relief in terms of this clause. The plaintiff would be at liberty to enjoy his property and also effect mutation in the relevant records on the basis of title.
Consequently, the prayer made in clause (ii) is declined.