PLJ 2003 Lahore 272
Present: ABDUL SHAKOOR PARACHA,
J.
Al-Haaj MUHAMMAD RAFIQUE-Petitioner
versus
Mst. KHALIDA SHEHZADI-Respondent C.R. No. 1764 of
1997, hear-d don 30.7.2002. (i) Benami transaction--
—Civil Procedure Code
(V of 1908), S. 115-Evidence on record was sufficient to prove that respondent was not Benamidar
but real owner of house in question-Finding of Trial Court on question of
title were against evidence and law of Benami transaction-Appellate Court
rightly reversed
findings of Trial Court on such aspect of matter—No illegality or irregularity had,
thus been committed by Appellate Court-No
interference with finding of Appellate
Court was warranted in revisional
jurisdiction. [P.279]E
jurisdiction. [P.279]E
(ii)
Benami transaction-
—Dispute regarding Benami
transaction-Person claiming to be real owner must prove motive for acquiring
property in the name of Benamidar-ln present case, there was no legal hurdle in the way of petitioner
to get sale-deed in his own name-No reason
whatsoever had been asserted by petitioner
for getting sale-deed registered in the name of respondent
[P. 278] C
(iii) Benami
transaction-
—Petitioner claiming
ownership of house in question, was employed abroad and he did not take any step to acquire
title-House was constructed in his
absence-No proof of sending any cheque, money or draft has been produced by petitioner for purchase of land or
for construction of house-Conduct of
petitioner thus, shows state of mind of petitioner that he admitted respondent to be real title holder of
properly in question.
[P. 279] D
(iv)
Benami transaction-
—Relevant factors
for deciding Benami character of transaction are; source of consideration
and its payment; motive for Benami transaction; real intention of
parties; possession and production of original title deeds; possession and use
of property in question; and subsequent conduct of parties including
any act done in exercise of right of ownership.
[Pp. 276
& 277] A, B
2001 SCMR1493; AIR
1926 Nagpur 109; 1995 CLC 242; AIR 1925 Madras 982; 1991 SCMR 703;
1994 CLC 1437 and 2002 CLC 1290 ref.
Nemo for Petitioner.
Mr. K Jan Khattak, Advocate for Respondent.
Date of-hearing: 30.7.2002.
judgment
No-body has entered
appearance on behalf of the petitioner despite that the name of learned counsel has
appeared in the cause list for today. The civil revision cannot be dismissed for
non-prosecution in view of the case reported as Muhammad Saddique versus Mst.
Bashiran and 9 others (PLD 2000 SC 820) as the same was admitted for regular hearing
vide order dated 30.10.1997.
2. The parties were
husband and wife. Their marriage was dissolved through the decree of the Court in the year 1987. The
dispute relates to a plot measuring 5 Marias which was allegedly purchased by Mst.
Khalida Shahzadi-respondent-herein,
for a consideration of Rs. 4,000/- vide sale-deed dated 17.8.1974. The house was constructed
in the year 1978-79 which was rented out to
one Ghulam Nabi Butt. Mst. Khalida Shahzadi-respondent filed a suit for possession on the basis of title
against Muhammad Rafique claiming that
he has forcibly dispossessed her tenant and that she is'the lawful owner of the house in dispute. It was
further asserted in the plaint that petitioner Al-Haaj Muhammad Refique
has no concern whatsoever with the house.
She prayed that a decree be awarded in her favour for possession of the
suit house.
3.
Petitioner-defendant Al-Haaj Muhammad Rafique resisted
the
suit by filing the written statement. He asserted that in. fact he is the real
owner of the property in dispute and that he purchased the suit plot in the
name of Mst. Khalida Shahzadi as they were husband and wife and had
cordial relations with each other at the time of purchase of the plot. Further
it was asserted that construction of the house was made by him with his own
sources as he earned the money while he was working in Saudi Arabia. It
was his case that he had been sending money from Saudi Arabia for
construction of the house.
suit by filing the written statement. He asserted that in. fact he is the real
owner of the property in dispute and that he purchased the suit plot in the
name of Mst. Khalida Shahzadi as they were husband and wife and had
cordial relations with each other at the time of purchase of the plot. Further
it was asserted that construction of the house was made by him with his own
sources as he earned the money while he was working in Saudi Arabia. It
was his case that he had been sending money from Saudi Arabia for
construction of the house.
4.
From the divergent pleading of the parties the learned
Civil
Judge proceeded to frame the following issues:-
Judge proceeded to frame the following issues:-
(1)
Whether
instant suit is hit by Section 10 of CPC? OPD.
(2)
Whether suit has not been properly valued for the
purposes of
Court-fee and jurisdiction, if so, what is the correct valuation
and its effect?
Court-fee and jurisdiction, if so, what is the correct valuation
and its effect?
(3)
Whether
plaintiff has no locus-standi?
(4)
Whether sale of the suit house in favour of the plaintiff
was a
benami transaction and payment was made by the plaintiff?
benami transaction and payment was made by the plaintiff?
(5)
Whether the plaintiff is entitled for the suit house.
(6)
Relief.
5.
The
parties led evidence. The learned Civil Judge decided Issues
Nos. 1 and 2 against Al-Haaj Muhammad Rafique petitioner-defendant
holding that the suit is not liable to be stayed under Section 10 CPC.
Valuation of the suit for the purpose of Court-fee and jurisdiction has been
correctly assessed. Issues Nos. 3 to 5 were decided against the respondent
Mst. Khalida Shahzadi and it was held that the property in dispute was
owned by Al-Haaj Muhammad Rafique-petitioner. He purchased the same
in the name of Mst. Khalida Shahzadi, who has no concern with the house in
dispute, as the transaction was benami in her name and therefore, she is the
ostensible owner as Benami and Al-Haaj Muhammad Rafique, was declared
as real owner of the suit property. The learned Civil Judge proceeded to
dismiss the suit of Mst. Khalida Shahzadi vide his judgment and decree
dated 18.1.1996.
Nos. 1 and 2 against Al-Haaj Muhammad Rafique petitioner-defendant
holding that the suit is not liable to be stayed under Section 10 CPC.
Valuation of the suit for the purpose of Court-fee and jurisdiction has been
correctly assessed. Issues Nos. 3 to 5 were decided against the respondent
Mst. Khalida Shahzadi and it was held that the property in dispute was
owned by Al-Haaj Muhammad Rafique-petitioner. He purchased the same
in the name of Mst. Khalida Shahzadi, who has no concern with the house in
dispute, as the transaction was benami in her name and therefore, she is the
ostensible owner as Benami and Al-Haaj Muhammad Rafique, was declared
as real owner of the suit property. The learned Civil Judge proceeded to
dismiss the suit of Mst. Khalida Shahzadi vide his judgment and decree
dated 18.1.1996.
6.
The appeal filed by Mst. Khalida Shahzadi against
the judgment
and decree dated 18.1.1996 was accepted by the learned Additional District
and decree dated 18.1.1996 was accepted by the learned Additional District
therefore, seeking guidance from the case
reported as Mst. Kaniz Fatima through legal heirs vs. Muhammad Hanif (2001 SCMR1493),
wherein it has been held that
the revisional Court can appreciate the evidence when the two Courts have recorded the divergent finding in
disputed question of fact. I have
gone through the evidence. But before I discussed the evidence on the file on
the question of benami transactioryt is important to observe that it is
settled principle of law that whosoever asserts the benami nature of the
sale has to prpve the same and while
considering the question of following factors are to be taken into consideration:-(i)
Source of consideration.
(ii) From whose
custody the original title deed or other document came in evidence.
(iii) Who is in possession of the suit property; and (iv)
Motive in the benami transaction.
11. The question
whether a transaction is a Benami in character or not has to be decided
keeping in view' a number of factors/consideration which have been
re-established through a number of judicial pronouncement. At first, I would refer the
case of Yeleswarapu Ganjamma (1925 Madras
980), in which while discussing on the nature of Benami transaction it was
held that the source of purchase money is only one criterion though an important
criterion; similarly, the custody of documents is also not conclusive criterion. In
case of Ramdhan (AIR 1926 Nagpur 109), it was observed that onus of proof is on
party raising plea of Benami strong evidence is necessary. Source of purchase
money and other circumstances must also be considered besides oral evidence. In
the case of Mst. Zohra Begum and 6 others vs. Muhammad Ismaeel (1995 CLC 242), it
was held that the question whether a particular sale is Benami or not is
largely one of fact, and for
determining this question, no absolute formula or acid test uniformally applicable in all situations can be
laid down. However, in the light of
the rules laid down in the case of Muhammad Sajjad Hussain vs. Muhammad Anwar Hussain (1991 SCMR 703), Jane Margrete William vs.
Abdul Hamid Mian (1994 CLC 1437), and Muhammad Ramzan vs. Sheikh Abdul
Hameed (2002 CLC 1209) the Court highlighted four considerations for deciding the question of Benami character
of a transaction. These considerations
are as follow:-
(i) It is the duty of
the party who raises such plea to prove such plea by adducing cogent, legal
relevant and unimpeachable evidence of definitiveness. The Court is not required to
decide this
plea on the basis of suspicions, however, strong they may be.
(ii) That Court is
to examine as to who has supplied the funds' for the purchase of property in dispute,
it is proved that purchase money from some person other than the person in whose favour the sale is
made, that circumstance, prima facie, would be strong evidence of the Benami nature
of the transaction.
(iii) The character
of a transaction is to be ascertained by determining the intentions of the parties at the relevant time which are to be gathered from all the surrounding circumstances i.e. the relationship of parties, the
motives underlying the transactions
and any other subsequent conduct.
(iv) The possession of the
property and custody of title deed.
8-A
From the above-quoted judgments and precedents it can be
gathered that the following factors/considerations are relevant for deciding
the Benami character of a transaction-
gathered that the following factors/considerations are relevant for deciding
the Benami character of a transaction-
(i) The source of consideration
and its payment
(ii) Motive for Benami transaction.
(iii) Real intention of the parties.
(iv) Possession and production of
original title deeds.
(v) Possession and use of
property in dispute.
(vi)
Subsequent conduct of the parties including any act done in exercise of right of
ownership.
12. On the touch
stone of the above case law and the factors/considerations which are relevant now
I will proceed to examine and discuss the evidence for determining the nature and
character of the transaction in question.
(i) The source of
consideration and its payment.
Muhammad Ibrahim appeared as DW. 1. He has
stated that he is not marginal witness of
the sale-deed. The consideration was paid as Rs. 4,000/- and this witness has stated the price of the plot as Rs.
3,000/-. He was unaware about the income of Al-Haaj Muhammad Rafique and the learned Additional District Judge discarded his
statement. The next witness' is
Abdul Karim DW. 2. According to him the sale-deed was completed in the year
1977, whereas, the sale-deed is dated 17.8.1974. The sale price has been wrongly shown by this witness of Rs. 40,000/-.
This witness was also not present at
the time of payment of sale price and the registration of the sale-deed. Respondent was also failed to prove the
source of money through which the
dispute plot was purchased. He stated that he went out of Pakistan at the end of 1974, meaning thereby, he
proceeded for Saudi Arabia in the month of November/December, 1974, whereas,
the disputed plot was purchased in
the name of the respondent-Msf. Khalida Shahzadi vide sale-deed dated 17.8.1974. He has stated that the
price was paid at the time of registration
of the sale-deed in the presence of one Malik Usman who was a Property Dealer. It is important to mention here
that Malik Usman has not been
produced as a witness. No doubt the respondent also could not prove the source of
purchasing the plot, the (sic) as stated above, in a Benami transaction the
source of consideration and its payment to the vendor is always on the person
who alleges Benami character of the transaction, which the petitioner has
failed to prove in this case. In cross-examination it was suggested to the respondent Mst. Khalida
Shahzadi by the learned counsel of the
petitioner that Dollars were sent to her by the respondent from Saudi Arabia and that the amount for purchase of
the plot was sent through draft from the Saudi Arabia. It is not
understandable that how the Dollars were sent from Saudi Arabia when the
petitioner went Saudi Arabia on the end of the
year 1974 and the currency of Saudi Arabia was Rial and was not the Dollar and* not a single receipt or draft has
been produced in the evidence to show
that the amount was sent, through draft.
(ii) Motive for Benami
transaction.
The person's motive
for doing something is the basic to show as to why he has committed an act. It has
been held in the case of Muhammad Zaman vs. Abdul Hameed (2002 CLC 1219) by
his lordship Mr. Justice Mian Nazir Akhtar as my Lord then was, "Act done without
motive is done without any reason. Subtle difference exists in motive and intention. If
a person picks up a glass and drinks water, his motive is to quench thrust and intention to pick up
a glass and drink water--If a person hits somebody with a weapon his intention
may be to cause hurt to him although his motive may be to take revenge or
create terrorism or merely to demonstrate his chivalry. His Lordship further
observed that in some cases motive and intention may coincide but generally
both are distinguishable. It matters where law requires a party to prove its motive
for doing an act, failure to establish ^motive defeats the claim made by such party." Dispute
regarding Benami [transaction, motive
for relation in favour of benamidar must be proved by the person claiming to be the real owner. In the
present case there was no 9. legal hurdle in, the way of Muhammad Rafique to get the
sale-deed registered in his name. No
reason whatsoever has been asserted by Muhammad
Refique for getting the sale-deed registered in the name of Mst. Khalida
Shahzadi.
(iii) Real
intention of the parties.
I have already
observed that the petitioner Muhammad Rafique could not prove the source of
investment. Had the respondent invested the amount in the year 1974.
Either he would have not obtained sale-deed in favour of the respondent Mst. Khalida
Shahzadi, or he would have not waited to claim the ownership till the marriage is
dissolved by the Family Court, and he would have not withdrawn the suit for
declaration filed by him claiming
that respondent. Mst. Khalida Shahzadi as Benamidar and he is the
real owner. It is in the evidence that the
petitioner filed the suit for declaration which was subsequently
dismissed. The property was rented out by the
respondent. Though the petitioner has denied the fact of renting out the property to Ghulam Nabi Butt and taking the
possession from him but the truth came out of the mouth of Abdul Karim
DW. 2, who stated that one of the tenant
occupied suit property had left the same and he was known as Butt. The petitioner remained contended with his
employment is Saudi Arabia and did not take any step to square his alleged
title. The house was constructed in his absence. No proof of
sending the cheque, money or draft has been proved by the respondent. In this
view of the matter, the conduct of the
petitioner shows the state of mind that he admitted Mst. Khalida Shahzadi as the real title holder of the suit
property.
(iv) Possession and production of
original title deeds. (v) Possession and use of property in
dispute.
The respondent Mst.
Khalida Shahzadi while appearing as PW. 3 has produced the
attested copy of the sale-deed. No objection was raised at the time of producing the copy of
sale-deed. The electricity meter (Ex. P. 4 to Ex.
P. 12), water charges bills Ex. P. 13 to Ex. P. 15 were in the name of the respondent. The original document has not been
produced by the petitioner. The same
would have produced by him. The house remained in the possession of the tenant. Muhammad Hussain son of
Chiragh Din in his testimony proved
the fact which has been corroborated by DW. 2 Abdul Karim who stated that the property was in
possession of the tenant in the absence
of the petitioner Muhammad Rafique. It is therefore, proved that the
possession of the house was with respondent. It has been stated by Mst. Khalida
Shahzadi that the original sale-deed in possession of the petitioner which he had taken from her for attestation of
mutation. This part of the statement
has not been cross-examined, therefore, I conclude that not only title document of the suit house was in possession
of the respondent Mst. Khalida
Shahzadi but she remained in possession of the house through her tenant. She has admitted that the petitioner has
sent Rs. 30,000/-. When the leg of her spn was fractured.
The petitioner returned from Saudi
Arabia at the end of 1976 and thereafter
went in the year 1980 and remained there till 1987. The relation between the parties remained cordially till 1987 and
no suit was filed by the petitioner
claiming the ownership. The matter did not , end here, the petitioner filed the
suit for declaration claiming the ownership of the house which was dismissed and the appeal (Ex. P. 16) which was dismissed
by the order of the learned Additional District Judge (Ex. P. 7).
12. From the
afore-going discussion it is held that the respondent Mst. Khalida Shahzadi was
not the Benamidar of the house in dispute but she was the real owner.
The finding of the learned Civil Judge, on Issues Nos. 1 and 2 were
against the evidence and the law of Benami transaction. The learned Additional District Judge
rightly reversed the findings on Issues Nos. 4 and 5 and accepted the appeal of
the respondent. No illegality or irregularity has been committed by the learned
Additional District Judge, in accepting
civil revision Resultantly, this civil revision fails
and is dismissed, with costs.
(A.A) Revision dismissed.
