MIAN SAQIB NISAR, J.-- Suit for declaration, filed by the petitioners and respondent No. 3, claiming that the respondent No. 1, is a "Benamidar", whereas, the father of the parties, was the real owner of the shop in question, was decreed by the learned Trial Court on 1.7.1999. However, on appeal of the respondent No. 1, it was set aside and the suit has been disallowed, through the judgment and decree dated 1.11.1999.
2. Briefly stated the facts of the case are that Malik Muhammad Bashir, died somewhere in the year 1996, parties except respondent No. 2 are his real sons. The petitioners and respondent No. 3, brought a suit for declaration on 24.6.1996, against respondents Nos. 1 and 2, claiming that the shop in question, purchased vide sale-deed dated 2.9.1965, in the name of respondent No. 1, infact by Malik Muhammad Bashir, their father, but was put "Benami" in the name of said respondent, thus they sought declaration of their being co- owners of the property as successors of Malik Muhammad Bashir, alongwith the respondents Nos. 1 and 3. The suit was contested by the respondents/defendants and the following issues were framed:-
(1) Whether the deceased was actual owner of the disputed shop and the defendant No. 1, is only Benamidar? OPP
(2) Whether the suit is time-barred? OPD
(3) Whether the suit is not maintainable in its present form? OPD
(4) Whether the suit is valued incorrectly, if so, what is the correct valuation of the suit? OPD
(5) Whether the plaintiff has no locus standi? OPD
(6) Whether the suit is frivolous and the defendant No. 1 is entitled to special costs under Section 35-A, CPC? OPD
(7) Relief.
Plaintiffs examined four witnesses including the vendor of the property; Muhammad Yasin, and the co-purchaser of the property, who also is the maternal uncle of the parties, Malik Muhammad Saeed their paternal uncle, to prove that the property was purchased by Malik Muhammad Bashir, with his own money; however, it was put in the name of the respondent No. 1 only as a Benamidar.
Besides, the plaintiffs also produced bills of electricity and telephone connections showing those to be in the name of their deceased father; they also produced Ex.P-1, copy of the plaint, of an earlier suit filed by respondent No. 1, in which, he had made admission to the effect that the property was purchased by the father of the parties but in his name. As against the above, respondents/defendants examined four witnesses, who mostly are the neighbours of the shop and have simple deposed that the property is owned by the respondent No. 1, who is in occupation thereof, as the owner. Copy of the mutation on the basis of the sale-deed dated 2.6.1965, the Jamabandi and certified copy of the sale-deed was also produced in evidence by the said respondent. As mentioned-above, learned Trial Court allowed the suit, but the Court of appeal, has dismissed the same primarily for the reasons that the sale-deed was executed on 2.6.1965 and the suit has been filed after lapse of about 31 years and that too after the death of the father and during this period, the petitioners or their father kept silent. In this regard, in paragraph No. 9, the Court has observed "the respondents have no locus standi to challenge the impugned sale-deed after the death of Malik Muhammad Bashir, deceased because the intention of the deceased, gathered from the circumstances was to purchase the disputed property for benefit of the appellant." It has further been held in paragraph No. 11 as follows:- "It appears from the evidence of the respondents that after the death of the father of the appellant and respondents Nos. 1 to 4, some dispute arose about property of the deceased among them and respondents filed this suit to pressurize the appellant, therefore, the findings given by the learned Trial Court on issue No. 1, are set aside and issue No. 1, is decided against the respondents."
3. I have heard the learned counsel for the parties. Obviously, in order to ascertain, if the transaction is "benami" or otherwise, there are five important ingredients, which needs proof or disproof, these are the motive, source of money, with which the property was purchased; the possession of the property; the conduct of the parties, as to how, the property was dealt and the possession of the original title documents. The petitioners have failed to state and prove, as to what was the motive behind purchasing the property in the name of the respondent, who admittedly, was the minor at that time, as he according to his counsel, when asked in the Court today, on the instructions of his client's son, states that he was borne in the year 1949. Even from the evidence on the record, it is clear that in the year 1965, his age was 15/16 years and thus was a minor at the time of sale. To my mind, because of the close relationship, between Malik Bashir and the respondent No. 1, when respondent No. 1 has not set out in defence the case of gift; rather has pleaded that Malik" Bashir had no connection with the purchase of the property at all and that it was purchased by him with his own independent sources; that motive looses that significance because it is common practice in our society to purchase the properties in the names of wife or the children for no specific reasons or the motive, thus the ingredient of motive in this case is not of that much significance, which may be otherwise in the cases, where the properties are allegedly bought as "benami" in the name of others, who are not that close relatives. Therefore, he important aspect of the case remains the source of purchasing the property. The vendor of the property has appeared as PW-2, who has categorically stated that it is Malik Muhammad Bashir, who negotiated and finalized the ale with him, paid him money through Boota, but got the sale- deed executed inter a/ia in the name of his son, the respondent No. 1, whom he had never met and even seen. It may be pertinent to state here that a bigger property, including the one involved in the suit, was purchased in the names of three persons, Muhammad Yasin, maternal uncle of the parties and one Altaf Pervaiz and the respondent No. 1 in 1/3rd equal share, vide sale-deed mentioned above, from the PW-2, but subsequently, the vendees, partitioned their shares and the dispute presently between the parties is about the 1/3rd share of the said property, which was in the name of respondent No. 1. Moreover, Muhammad Yasin, who was the original co-purchaser of the property on the basis of the above sale, undoubtedly is an important witness, he incidentally. Is also maternal uncle of both the parties, and has appeared as PW-4; simply for the reason that one of the plaintiffs is also his son-in-law would not make him an interested witness, to disregard his testimony. Anyhow, in categorical terms, he has deposed that the property was purchased by Malik Muhammad Bashir and not by the respondent No. 1. Malik Muhammad Saeed (PW-5), is the real paternal uncle of the parties, he also has stated that the property was purchased by Malik Bashir and was put in the name of the respondent No. 1, as a "Benamidar" and that such admission was made before him by Malik Muhammad Bashir. This evidence to my mind, was sufficient to discharge the onus of the plaintiff to prove the source of money for purchasing the property and also the factum of Benami purchase. As against this, the respondent No. 1 had led no convincing evidence. Admittedly, he was minor, when the property was purchased . His explanation while appearing as a witness about his earning is not confidence inspiring at all. For the possession, both the parties claim to be in possession through their tenant, who was even admittedly a tenant during the life-time of Malik Bashir. He was impleaded as defendant in the suit and it is claimed by the respondent, that he supported his version. But the fact remains that he did not appear in the Court either as a defendant or was examined by the respondent No. 1 to corroborate his plea in defence. Therefore, the presumption of withholding the evidence, can be safely drawn against the respondent.
About the original document of title, which has not been produced on the record by either side.
Respondent No. 1, claimed it to be in his possession, but has failed to produce; the excuse of loss as propounded by him, has not been established on the record.
4. Undoubtedly, the learned Court of appeal, has .Not applied its mind to the complete evidence on the record, but has decided the matter, on the basis of two main reasons, firstly, the suit has been filed after 31 years and during his life-time, Bashir has never challenged the sale and kept mum, suffice it to say that both these reasons are unfounded, because the person would only claim declaration of being the real owner, when his title is denied by the "Benamidar"; there is no evidence on the record that during the life-time of Bashir, any threat to his ownership Was raised by the respondent No. 1, especially, when the deceased during his life-time, was interacting with the property as its owner, such as when he got it partitioned qua other co-owner; the electricity and telephone connections were also got installed in his name, and he was conducting business thereupon, before the property was rented out. It is thus clear that the cause of action had accrued to the plaintiffs, after the death of Malik Bashir in the year 1996, when the respondent No. 1 declined to give them their snare in the property, 'therefore, they brought the suit.
5. There is another important aspect of the matter that in the judgment itself, the learned Court of appeal has concluded that property was purchased by Malik Bashir, and held "because the intention of the deceased gathered from the circumstances was to purchase the disputed property for the benefit of the appellant." Obviously, on account of this, the Court was even of the view that the property was purchased by Malik Bashir, but for the benefit of respondent No. 1.
However, this is not the case of the respondent, rather to the contrary, the respondent in clear terms of paragraph No. 3 of his written statement has stated that he has purchased the property with his own source and Bashir had no connection therewith.
Furthermore, admittedly, the respondent No. 1, earlier filed a suit for declaration, against the petitioner I and in paragraph No. 3, he unequivdoally mentioned that the property was purchased by his father, and it was got transferred in his name by him; the copy of the plaint is produced in evidence without the objection of the respondents as Ex.P-1. When the respondent appeared, he was asked question about the filing of the case, he admitted. Though the respondent was not confronted with Ex.P-1, yet from his cross-examination, it is clear that the plaint Ex.P-1 pertains to the same suit; moreover, even when asked from the respondent's counsel in the Court today, it is conceded that the paint is of the said suit, which was filed by respondent and thereafter withdrawn. Resultantly, from the above admission, it is clear that the property was purchased by Malik Bashir and put in the name of respondent as his "Benami". Because it is not the case of the respondent that such property has been gifted to him; his status qua the property remains to be of a "Benamidar" and Malik Bashir was the real owner of the property . Resultantly, after his death, all his legal heirs, became entitled to seek their shares under Islamic law and upon the denial of the respondent No. 1, were constrained to file the present suit. Unfortunately, these aspects of the matter, which are most crucial have not been taken into consideration by the Court of appeal.
6. For the objection of learned counsel for the respondent that the petitioners have failed to prove the motive and reliance placed on the case reported as Al Haaj Muhammad Rafique v. Mst. Khalida Shehzadi (KLR 2003 CC '(Latt) 374), suffice it to say that when the property purchased by a father in the name of his minor son, who does not have any visible source of income and neither there is intention of any gift to the son by the father, nor such a case is pleaded .By the son, the motive as mentioned earlier, .Becomes irrelevant. Reliance in this case, can be also made to the case reported s Mst. Farida Malik, etc. v. Dr. Khalida Malik (1998 SCM R 816). .