PLJ 2002 Karachi 148
[Original Civil Jurisdiction]
Present: ZAHID KURBAN ALVI, J.
DIN MUHAMMAD WAGAN-Plaintiff
versus
Mst. RASHIDA KHATOON (deceased) through HIS LEGAL
. REPRESENTATIVES-Defendants
Suit No. 413 of 1986, decided on 14.1.2002.
Specific Relief Act, 1877 (1 of 1877)--
—-S. 42-Benami transaction-Burden to prove that property in question, was purchased by plaintiff from his own resources in the name of his wife was on him-Documents, produced hy plaintiff were all in the name of his deceased wife-Plaintiff has not produced anything on record to show that price of land/property was paid hy him out of his own resources-Defendant being real sister of deceased was entitled to inherit 1/2 share of property while the rest would go to plaintiff as her husband.
[Pp. 152 A, B, C & D
Mr. Ali Muhammad Memon, Advocate for Plaintiff. Mr. Muhammad Zia Kiyani, Advocate for Respondents. Date of hearing: 5.12.2001.
judgment
Zahid Kurban Alvi, J.-This is a suit for declaration and injunction wherein the plaintiff has prayed for the following relief;
(a) Declaring that the said Mst. Farkhanda Khatoon deceased wife of the plaintiff who only an ostensible owner (benamidar) and that the plaintiff was always and is the real, beneficial and absolute owner of the following immovable and movable properties including the gold ornaments and cash:
(i) Plot of land Bearing No. B-295 measuring 435-55 sq.yds. with house thereon situated in Block-L North Nazimabad, Karachi;
(ii) Un-officially sub-divided Plot No. 101 measuring 500 sq.yds. forming part of Survey No. 304 situated in Deh Mehroon Tappo Malir Taluka and District Karachi known as Farhat Bagh;
(iii) Residential Plot No. 226 on Sector 50-6 measuring 1136 sq.yds. situated in Korangi, Karachi;
(iv) all gold ornaments, cash and other valuable articles lying in Locker No. 87 in the United Bank Ltd, Taimuria Branch near Farhana Square, Block-L, North Nazimabad, Karachi;
(v) sum Rs. 1,30,000/- given as a friendly loan to Tariq Naze and on receipt thereof the plaintiff is competent to give ti valid discharge for the same;
(vi) Further declaring that the defendant as sister and/or legal heir of the said Mst. Farkhanda Khatoon has no right or title to receive any share or interest in the aforesaid immovable and movable properties including cash and gold ornaments and other valuable articles lying in the said Locker and the said loan of Rs. 1,30,000/-;
(vii) prohibiting and restraining the defendant by permanent injunction from making any claim adverse to the interest .of the plaintiff in respect of the said immovable and movable properties including gold ornaments and cash etc. in the said Locker and the said sum of Rs. 1,30,000/-."
Briefly the facts of the case are that plaintiff belongs to a respectable Zamindar family of District Nawabshah. The plaintiffs father was died ia the year 1948 leaving behind agricultural lands, cash and other movable and immovable properties which were inherited by the plaintiff and his brothers and sisters. It is the case of the plaintiff that in private partition agricultural lands measuring 107 acres and 24 ghuntas situated in Deh Chanari and Deh Kanghal Taluka Naushero Feroz District Nawabshah alongwith residential houses, gold ornaments and cash came to the share of plaintiff. It is further averred by the plaintiff that he had been studying in Karachi and in the year 1950 he was employed as a Sub-Inspector in Excise Department where he served for about two years and resigned. It is further asserted by the plaintiff that he maintains two residential houses, one at Darya Khan Mari and another at Karachi. During the period when the plaintiff was student he came into contact with a displaced family from Cawnpur (U.P. India) and the said family was consisted of an elderly lady and her two grand-daughters named Mst. Farkhanda Khatoon and Rashida Khatoon. Mst. Farkhanda Khatoon was already married at the time of migration to Pakistan but was residing with her grand-mother because her husband did not maintain her properly. It is further contended by the plaintiff that in the year 1950 said Mst. Farkhanda Khatoon filed Suit No. 268 of 1950 for dissolution of her marriage which was decreed and her marriage was dissolved. It is further averred by the plaintiff that said grand-mother was a kind hearted lady and treated him w&h affection and he used to help her in time of need. During this period the plaintiff became interested in Mst. Farkhanda Khatoon and requested the grand mother that he wanted to marry the said lady. The grand mother accepted the proposal after consulting Mst. Farkhanda Khatoon. The grand mother informed the plaintiff that she is not in a position to give ornaments, clothes or other dowery articles and ultimately on 21-3-1951 he was married with Mst. Farkhanda Khatoon and dower was fixed at Rs, 1100/-.Out of wedlock they have no child. It is further contended that Mst. Farkhanda Khatoon had no independent source of income and she did not get anything any way of dowery at the time of here marriage with the plaintiff and she had not abandoned any property in India as such she did not get any compensation in Pakistan. It is further contended by the plaintiff that he being a man of means maintained his wife properly and purchased gold ornaments for her use in her name though he never gifted the same to her. It is further assorted by the plaintiff that on or about 1960 he purchased from M/s National Estates & Construction Co. Ltd. House No. R. 1010 measuring 120 sq. yds. in Block-9, Dastagir, F.B. Area, Karachi in consideration of Rs. 9,000/- and spent an additional sum of Rs. 7,000/- on improvement of the said house. The Conveyance Deed was, however, executed benami in the name of said'Msf. Farkhanda Khatoon but the real beneficial and absolute interest in the said house always vested in the plaintiff and said lady was an ostensible owner. The said house was sold in the year 1973. In the year 1964 the plaintiff purchased from the aforesaid Company Plot No. B-295 situated in Block-L orth Nazimabad, Karachi from his income arising out of agricultural lands in the name of his wife. In the year 1952 the plaintiff also purchased benami in the name of said Mst. Farkhanda Khatoon 500 sq.yds. agricultural land forming part of Survey No. 304 un-officially divided S b-Plot No. 101 in Deh Mehroon Tappo Malir Taluka and District Karachi known as Farhat Bagh. It is further contended by the plaintiff that in the year 1971 he obtained from K.D.A. residential Plot No. 226 in Sector 50-C measuring 1136 sq. yds. situated in Korangi Karachi in the name of his wife as benami. It is submitted by the plaintiff that said Mst. Farkhanda Khatoon did not have any child, therefore, with her consent the plaintiff married Mst. Irshad Begum on 26.4.1979. The plaintiff obtained Locker No. 87 in U.B.L. Taimura Branch near Farhana Square Block-L North Nazimabad, Karachi and kept all gold ornaments of his two wives therein and gave a friendly loan of Pvs. 1,30,000/- to Tariq Nazeer and obtained receipt of the said loan in the name of Mst. Farkhanda Khatoon. The said lady died on 9-7-1983 and after her death the plaintiff applied to K.D.A. for mutation of Plot No. 226 Sector 50-C Korangi, Karachi which was mutated in his name on 7-12-1983, and Plot No. B-295 Block-L North Nazimabad, Karachi w as also mutated in his name on 10-1-1984. It is further the case of the plaintiff that during the life time of Mst. Farkhanda Khatoon and after her death he had always been and continues to be in actual physical possession of said immovable properties. In May, 1986 the plaintiff has been served with & notice of this Court whereby he came to know that defendant on or about 22-3-1986 filed S.M.A. No. 84 of 1986 and claims half share in the properties. Since a cloud is likely to be cast on the absolute real and beneficial interest of the plaintiff in the said immovable and movable properties, therefore, he has filed this suit with aforesaid prayers. " The defendant has filed the written on 9-12-1986 taking the following legal pleas;
(i) the suit as framed is not maintainable in law;
(ii) the suit is not maintainable in law as no right guaranteed or secured to the plaintiff under any law or settlement to deprive the defendant from her legal share in the properties of late Mst. Farkhanda Khatoon real sister of defendant, which is secured and guaranteed to the defendant under Muslim Law;
(iii) the suit is hit by the provisions of estoppel.
Inspite of above legal pleas the defendant has generally denied the allegations levelled by the plaintiff. She has pointed out that out of two residential houses wherein the plaintiff resides. Mst. Farkhanda Khatoon had purchased the house Bearing No. B-296 Block-L North Nazimabad, Karachi. It is further averred by the defendant that grand mother of her was a kind hearted lady and treated the plaintiff with affection and she also financially helped th£ plaintiff from time to time during her life time. It is also asserted by the defendant that at the time of marriage of Mst. Farkhanda Khatoon a large number of golden ornaments, clothes and other dowery articles were given as the plaintiff was not in a position to give anything to Mst. Farkhanda Khatoon due to his newly service. Mst. Farkhanda Khatoon always used to live at Karachi in her own house and during the entire period of wedlock she visited on few occasions to Darya Khan. The properties referred to by the plaintiff were purchase by said Mst. Farkhanda Khatoon and the plea of benamidar is taken only to deprive her from her legal and just share in properties of her sister. The defendant filed S.M.A. No. 84 of 1986 wherein the plaintiff filed objections and said matter was disposed of 7-9-1986 with directions that the parties to move appropriate Civil Court for adjudication of their respective rights. The plea of plaintiff being owner of Rs. 1,30,000/- given not Tariq Nazeer as friendly loan and other valuables golden articles are in fact belong to Mst. Farkhanda Khatoon as well as articles lying in the Locker. The mutation of some of the properties in the name of the plaintiff were due to collusion With the staff of department and were without any Court's order and are void illegal.
Out of the above pleadings the following issues were settled by the Court on 29-3-1987;
(i) Whether the property in suit was purchased by the plaintiff in the name of deceased Mst. Farkhanda Khatoon and was a benami transaction?
(ii) If _not, whether Mst. Rashida Khatoon will inherit the same from the deceased?
(iii) Whether the suit is maintainable in law?
In support of his case the plaintiff examined himself and produced certain documents of properties which are all in the name of Mst. Farkhanda Khatoon. The defendant filed her affidavit in evidence and was partly cross examined in Court, on 15-4-1999. On 5-5-2000 Mr. Abdul Wahid, Advocate was appointed commissioner to record further evidence of Mst. Rashida Khatoon as she was not keeping well and unable to attend this Court for cross-examination. Thereafter her cross was completed on 13-5-2000. The defendant also examined Muhammad Zubair Shamsi and Tariq Nazeer. I have heard the learned counsel for the plaintiff and defendant at length and have also perused the evidence carefully. My findings on the . above issues are as follows:
ISSUE No. 1.
The burden to prove this issue heavily lies on the plaintiff whether the properties in suit were purchased by him as benami in the name of his wife Mst. Farkhanda Khatoon. The documents produced by the plaintiff were all in the name of Mst. Farkhanda Khatoon. He has not produced anything on record to show that the price of land were paid by him out of own resources. In the case of Musheer Ahmed Pesh Imam vs. Razia Omer (1991 CLC 678) it was observed as follows;
"The burden is on the plaintiff to show that he has a prima facie case existing in his favour to the effect that the transaction involved in the suit was a Benami transaction; and that the plaintiff was the real owner while the defendant was only ostensible owner. In order to substantiate the above, the plaintiff is required to show at least two facts; firstly, that the purchase price was paid by the plaintiff from out of his resources and that he had appropriated or had a control over the usufruct of the property in dispute."
In the present case except the documents of the property the plaintiff has not filed any proof to show that he had paid the amount as benami. In his cross- B examination he has stated as follows;
"I was serving in Excise Department at Karachi as Sub-Inspector and my salary was about Rs. 250/- It is a fact that I have paid occupancy charges as well as ground rent in respect of Plot No. 226 on 11-11-1983 in respect of Plot No. B-295 on 9-1-1984. The locker in UBL was taken by my wife. It is a fact that I have stated in my petition that except myself none else is legal heir of my wife Farkhanda. It is a fact that in the said petition I have admitted 50% share of defendant in the suit.
From the above it is abundantly clear that the plaintiff has made contradictory statements. My finding on this is in the negative.
ISSUE No. 2.
It is a fact that defendant is real sister of Mst. Farkhanda Khatoon who dies issueless and the plaintiff was the only heir being husband of deceased. The defendant was also residing with the deceased till her death, and belongs to Sunni Hanafi Muslim Law. She is entitled to her share as per said Sunni Law. My finding on the aforesaid issue in the affirmative.
ISSUE No. 3.
In view of my above findings and the evidence on record I feel that the plaintiff has not been able to prove his case of benamidar and his suit is ~ to be dismissed.
For the foregoing reasons the suit of the plaintiff is dismissed with no order as to costs.
(A.A.) Suit dismissed.
[Original Civil Jurisdiction]
Present: ZAHID KURBAN ALVI, J.
DIN MUHAMMAD WAGAN-Plaintiff
versus
Mst. RASHIDA KHATOON (deceased) through HIS LEGAL
. REPRESENTATIVES-Defendants
Suit No. 413 of 1986, decided on 14.1.2002.
Specific Relief Act, 1877 (1 of 1877)--
—-S. 42-Benami transaction-Burden to prove that property in question, was purchased by plaintiff from his own resources in the name of his wife was on him-Documents, produced hy plaintiff were all in the name of his deceased wife-Plaintiff has not produced anything on record to show that price of land/property was paid hy him out of his own resources-Defendant being real sister of deceased was entitled to inherit 1/2 share of property while the rest would go to plaintiff as her husband.
[Pp. 152 A, B, C & D
Mr. Ali Muhammad Memon, Advocate for Plaintiff. Mr. Muhammad Zia Kiyani, Advocate for Respondents. Date of hearing: 5.12.2001.
judgment
Zahid Kurban Alvi, J.-This is a suit for declaration and injunction wherein the plaintiff has prayed for the following relief;
(a) Declaring that the said Mst. Farkhanda Khatoon deceased wife of the plaintiff who only an ostensible owner (benamidar) and that the plaintiff was always and is the real, beneficial and absolute owner of the following immovable and movable properties including the gold ornaments and cash:
(i) Plot of land Bearing No. B-295 measuring 435-55 sq.yds. with house thereon situated in Block-L North Nazimabad, Karachi;
(ii) Un-officially sub-divided Plot No. 101 measuring 500 sq.yds. forming part of Survey No. 304 situated in Deh Mehroon Tappo Malir Taluka and District Karachi known as Farhat Bagh;
(iii) Residential Plot No. 226 on Sector 50-6 measuring 1136 sq.yds. situated in Korangi, Karachi;
(iv) all gold ornaments, cash and other valuable articles lying in Locker No. 87 in the United Bank Ltd, Taimuria Branch near Farhana Square, Block-L, North Nazimabad, Karachi;
(v) sum Rs. 1,30,000/- given as a friendly loan to Tariq Naze and on receipt thereof the plaintiff is competent to give ti valid discharge for the same;
(vi) Further declaring that the defendant as sister and/or legal heir of the said Mst. Farkhanda Khatoon has no right or title to receive any share or interest in the aforesaid immovable and movable properties including cash and gold ornaments and other valuable articles lying in the said Locker and the said loan of Rs. 1,30,000/-;
(vii) prohibiting and restraining the defendant by permanent injunction from making any claim adverse to the interest .of the plaintiff in respect of the said immovable and movable properties including gold ornaments and cash etc. in the said Locker and the said sum of Rs. 1,30,000/-."
Briefly the facts of the case are that plaintiff belongs to a respectable Zamindar family of District Nawabshah. The plaintiffs father was died ia the year 1948 leaving behind agricultural lands, cash and other movable and immovable properties which were inherited by the plaintiff and his brothers and sisters. It is the case of the plaintiff that in private partition agricultural lands measuring 107 acres and 24 ghuntas situated in Deh Chanari and Deh Kanghal Taluka Naushero Feroz District Nawabshah alongwith residential houses, gold ornaments and cash came to the share of plaintiff. It is further averred by the plaintiff that he had been studying in Karachi and in the year 1950 he was employed as a Sub-Inspector in Excise Department where he served for about two years and resigned. It is further asserted by the plaintiff that he maintains two residential houses, one at Darya Khan Mari and another at Karachi. During the period when the plaintiff was student he came into contact with a displaced family from Cawnpur (U.P. India) and the said family was consisted of an elderly lady and her two grand-daughters named Mst. Farkhanda Khatoon and Rashida Khatoon. Mst. Farkhanda Khatoon was already married at the time of migration to Pakistan but was residing with her grand-mother because her husband did not maintain her properly. It is further contended by the plaintiff that in the year 1950 said Mst. Farkhanda Khatoon filed Suit No. 268 of 1950 for dissolution of her marriage which was decreed and her marriage was dissolved. It is further averred by the plaintiff that said grand-mother was a kind hearted lady and treated him w&h affection and he used to help her in time of need. During this period the plaintiff became interested in Mst. Farkhanda Khatoon and requested the grand mother that he wanted to marry the said lady. The grand mother accepted the proposal after consulting Mst. Farkhanda Khatoon. The grand mother informed the plaintiff that she is not in a position to give ornaments, clothes or other dowery articles and ultimately on 21-3-1951 he was married with Mst. Farkhanda Khatoon and dower was fixed at Rs, 1100/-.Out of wedlock they have no child. It is further contended that Mst. Farkhanda Khatoon had no independent source of income and she did not get anything any way of dowery at the time of here marriage with the plaintiff and she had not abandoned any property in India as such she did not get any compensation in Pakistan. It is further contended by the plaintiff that he being a man of means maintained his wife properly and purchased gold ornaments for her use in her name though he never gifted the same to her. It is further assorted by the plaintiff that on or about 1960 he purchased from M/s National Estates & Construction Co. Ltd. House No. R. 1010 measuring 120 sq. yds. in Block-9, Dastagir, F.B. Area, Karachi in consideration of Rs. 9,000/- and spent an additional sum of Rs. 7,000/- on improvement of the said house. The Conveyance Deed was, however, executed benami in the name of said'Msf. Farkhanda Khatoon but the real beneficial and absolute interest in the said house always vested in the plaintiff and said lady was an ostensible owner. The said house was sold in the year 1973. In the year 1964 the plaintiff purchased from the aforesaid Company Plot No. B-295 situated in Block-L orth Nazimabad, Karachi from his income arising out of agricultural lands in the name of his wife. In the year 1952 the plaintiff also purchased benami in the name of said Mst. Farkhanda Khatoon 500 sq.yds. agricultural land forming part of Survey No. 304 un-officially divided S b-Plot No. 101 in Deh Mehroon Tappo Malir Taluka and District Karachi known as Farhat Bagh. It is further contended by the plaintiff that in the year 1971 he obtained from K.D.A. residential Plot No. 226 in Sector 50-C measuring 1136 sq. yds. situated in Korangi Karachi in the name of his wife as benami. It is submitted by the plaintiff that said Mst. Farkhanda Khatoon did not have any child, therefore, with her consent the plaintiff married Mst. Irshad Begum on 26.4.1979. The plaintiff obtained Locker No. 87 in U.B.L. Taimura Branch near Farhana Square Block-L North Nazimabad, Karachi and kept all gold ornaments of his two wives therein and gave a friendly loan of Pvs. 1,30,000/- to Tariq Nazeer and obtained receipt of the said loan in the name of Mst. Farkhanda Khatoon. The said lady died on 9-7-1983 and after her death the plaintiff applied to K.D.A. for mutation of Plot No. 226 Sector 50-C Korangi, Karachi which was mutated in his name on 7-12-1983, and Plot No. B-295 Block-L North Nazimabad, Karachi w as also mutated in his name on 10-1-1984. It is further the case of the plaintiff that during the life time of Mst. Farkhanda Khatoon and after her death he had always been and continues to be in actual physical possession of said immovable properties. In May, 1986 the plaintiff has been served with & notice of this Court whereby he came to know that defendant on or about 22-3-1986 filed S.M.A. No. 84 of 1986 and claims half share in the properties. Since a cloud is likely to be cast on the absolute real and beneficial interest of the plaintiff in the said immovable and movable properties, therefore, he has filed this suit with aforesaid prayers. " The defendant has filed the written on 9-12-1986 taking the following legal pleas;
(i) the suit as framed is not maintainable in law;
(ii) the suit is not maintainable in law as no right guaranteed or secured to the plaintiff under any law or settlement to deprive the defendant from her legal share in the properties of late Mst. Farkhanda Khatoon real sister of defendant, which is secured and guaranteed to the defendant under Muslim Law;
(iii) the suit is hit by the provisions of estoppel.
Inspite of above legal pleas the defendant has generally denied the allegations levelled by the plaintiff. She has pointed out that out of two residential houses wherein the plaintiff resides. Mst. Farkhanda Khatoon had purchased the house Bearing No. B-296 Block-L North Nazimabad, Karachi. It is further averred by the defendant that grand mother of her was a kind hearted lady and treated the plaintiff with affection and she also financially helped th£ plaintiff from time to time during her life time. It is also asserted by the defendant that at the time of marriage of Mst. Farkhanda Khatoon a large number of golden ornaments, clothes and other dowery articles were given as the plaintiff was not in a position to give anything to Mst. Farkhanda Khatoon due to his newly service. Mst. Farkhanda Khatoon always used to live at Karachi in her own house and during the entire period of wedlock she visited on few occasions to Darya Khan. The properties referred to by the plaintiff were purchase by said Mst. Farkhanda Khatoon and the plea of benamidar is taken only to deprive her from her legal and just share in properties of her sister. The defendant filed S.M.A. No. 84 of 1986 wherein the plaintiff filed objections and said matter was disposed of 7-9-1986 with directions that the parties to move appropriate Civil Court for adjudication of their respective rights. The plea of plaintiff being owner of Rs. 1,30,000/- given not Tariq Nazeer as friendly loan and other valuables golden articles are in fact belong to Mst. Farkhanda Khatoon as well as articles lying in the Locker. The mutation of some of the properties in the name of the plaintiff were due to collusion With the staff of department and were without any Court's order and are void illegal.
Out of the above pleadings the following issues were settled by the Court on 29-3-1987;
(i) Whether the property in suit was purchased by the plaintiff in the name of deceased Mst. Farkhanda Khatoon and was a benami transaction?
(ii) If _not, whether Mst. Rashida Khatoon will inherit the same from the deceased?
(iii) Whether the suit is maintainable in law?
In support of his case the plaintiff examined himself and produced certain documents of properties which are all in the name of Mst. Farkhanda Khatoon. The defendant filed her affidavit in evidence and was partly cross examined in Court, on 15-4-1999. On 5-5-2000 Mr. Abdul Wahid, Advocate was appointed commissioner to record further evidence of Mst. Rashida Khatoon as she was not keeping well and unable to attend this Court for cross-examination. Thereafter her cross was completed on 13-5-2000. The defendant also examined Muhammad Zubair Shamsi and Tariq Nazeer. I have heard the learned counsel for the plaintiff and defendant at length and have also perused the evidence carefully. My findings on the . above issues are as follows:
ISSUE No. 1.
The burden to prove this issue heavily lies on the plaintiff whether the properties in suit were purchased by him as benami in the name of his wife Mst. Farkhanda Khatoon. The documents produced by the plaintiff were all in the name of Mst. Farkhanda Khatoon. He has not produced anything on record to show that the price of land were paid by him out of own resources. In the case of Musheer Ahmed Pesh Imam vs. Razia Omer (1991 CLC 678) it was observed as follows;
"The burden is on the plaintiff to show that he has a prima facie case existing in his favour to the effect that the transaction involved in the suit was a Benami transaction; and that the plaintiff was the real owner while the defendant was only ostensible owner. In order to substantiate the above, the plaintiff is required to show at least two facts; firstly, that the purchase price was paid by the plaintiff from out of his resources and that he had appropriated or had a control over the usufruct of the property in dispute."
In the present case except the documents of the property the plaintiff has not filed any proof to show that he had paid the amount as benami. In his cross- B examination he has stated as follows;
"I was serving in Excise Department at Karachi as Sub-Inspector and my salary was about Rs. 250/- It is a fact that I have paid occupancy charges as well as ground rent in respect of Plot No. 226 on 11-11-1983 in respect of Plot No. B-295 on 9-1-1984. The locker in UBL was taken by my wife. It is a fact that I have stated in my petition that except myself none else is legal heir of my wife Farkhanda. It is a fact that in the said petition I have admitted 50% share of defendant in the suit.
From the above it is abundantly clear that the plaintiff has made contradictory statements. My finding on this is in the negative.
ISSUE No. 2.
It is a fact that defendant is real sister of Mst. Farkhanda Khatoon who dies issueless and the plaintiff was the only heir being husband of deceased. The defendant was also residing with the deceased till her death, and belongs to Sunni Hanafi Muslim Law. She is entitled to her share as per said Sunni Law. My finding on the aforesaid issue in the affirmative.
ISSUE No. 3.
In view of my above findings and the evidence on record I feel that the plaintiff has not been able to prove his case of benamidar and his suit is ~ to be dismissed.
For the foregoing reasons the suit of the plaintiff is dismissed with no order as to costs.
(A.A.) Suit dismissed.
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