PLJ 1998 Karachi 1
Present: rana BHAGWAN das, J. SYED HABIB MAHMOOD-Plaintiff
versus
Mrs. BILQEES FATIMA-Defendant . Suit No. 444 of 1989 dismissed on 8.8.1996.
(i) Benami Transaction--
—Criteria for determining question of Benami Transaction is (i) source ofconsideration (ii) From whose custody the original title deed and otherdocuments came in evidence; (iii) who is in possession of property andmotive for benami transaction. [P. 12] D
(ii) Declaration--
—Declaration-Suit of-Plaintiff did not examine the vendor Mst, Z nor did he tender any document tending to show that she had transferred the plot in suit in favour of the defendant at the instance of the plaintiff or received consideration from him as claimed-His assertion that defendant is benami owner of suit property is not supported by circumstantial or documentary evidence on record- Held: Neither property in suit wpurchased by plaintiff from his own funds nor is defendant benami owner-Defendant had sufficient means and source of income to purchase suit, property-Suit dismissed with costs.
[Pp. 5, 9, 10 & 13] A. B. C & E
(iii) Limitation Act, 1908 (IX of 1908)--
—S. 120-Plaintiff contracted second marriage in 1978 and deserted thedefendant, whereas he brought suit for declaration and injunction in1989--Held: Suit is barred by limitation as the Act prescribes a period cfsix years from the date when right to sue accrues. [P. 13] F
Mr. Gulzar Ahmed, Advocate for Plaintiff. Mr. Abdul Muqtadir Khan, Advocate for Defendant. Dates of hearing: 23.4.1996, 15.5.1996 & 16.5.1996.
judgment
By this suit, the plaintiff seeks a declaration against the defendant that he is real and true owner of the Plot No. 349, Block 7 and 8, C.P. & Berar Cooperative Housing Society with a double storeyed bungalow thereon and that the defendant is only a benami owner. He has also asked for an injunction restraining the defendant from denying his title and ownership and from preventing him from exercising his right and dominion over the property. By way of consequential relief, he has prayed for handing over vacant possession alongwith all title deeds and documents in respect of the ground floor of the property in suit and delivery of first floor by way of token possession it being in occupation of a tenant.
2. Plaintiff was married to the defendant some times in 1956 at Hyderabad Deccan and brought her to Karachi. From his savings he purchased a plot measuring about 183 Sq. yards in Sahadurabad and built a double storyed house thereon in 1958 and started living therewith the defendant and a daughter. According to the plaintiff till 1965 defendant was a house wife when she took up her employment with the House Building Finance Corporation, as a clerk at Rs. 250.00 p.m. In 1967 plaintiff sold out his house in Bahadurabad for Rs. 60,000/- and added to it his other savings, purchased the plot in suit admeasuring about 487 Sq. yds in the name of the defendant and built thereon a double storeyed house. As there was mutual trust and harmony between the parties, the plaintiff placed all title documents and papers in custody of the defendant and started living in the ground floor of the property in suit. Sometimes in 1978 relations between the parties became strained consequently the plaintiff contracted a second marriage with Mst. Amina and took her to the house in suit and started living there. The plaintiff was blessed with a female baby Qurratul-ain from the second wife where the parties as well as second wife and newly born baby lived upto October, 1980. In October, 1980 plaintiff purchased flat No. D-l, Haq Bahu Plaza, Gulshan-e-Iqbal for Rs. 1,54,000/- in the name of his second wife as benami for himself and he alongwith the second wife anddaughter shifted to the said flat where h-; was hlessed with another female haby. Later the plaintiff desired to shift Jo the property in suit for his comfort and better environment but the defendant declined to honour his desire and asserted her title to the property as exclusive owner thereof, hence this suit.
3. Defendant resisted the suit and filed written statement statingtherein that she herself had purchased the plot in suit and raised
construction thereon after obtaining House Building loan against theguarantee of her income and that she joined Happy Home English School in1960 as a teacher. Prior to that she had been imparting private tuition tostudents and earning handsome amount, In 1965 she joined House BuildingFinance Corporation and rose to a position in National Pay Scale No. 20. Itwas denied that the property was purchased by the plaintiff from his ownresources or in the name of defendant as a benami owner. She has givendetails showing as to how she acquired funds for the purchase of the plot andraising double storey construction thereon. She raised legal pleas as well.4. On the pleadings of the parties following issues were settled:-
1. Whether the suit property was purchased by the plaintifffrom his own funds in the name of the defendant?
2. Whether the defendant had means and source of income topurchase the property?
3. Whether the defendant is benami owner of the suitproperty?
4. Whether the suit is misconceived, bad in law, fabricatedand without cause of action?What should the decree be?
5. In support of his case the plaintiff besides examining himself ledthe evidence of Badruddin Paracha working in Habib Bank Limited, SaddarBranch, Karachi while the defendant examined herself and her daughterMst. Sajida Habib. While the evidence of Bank officer was recorded in court,remaining evidence of the parties was recorded on commission by Mr.Zahiruddin Khan Advocate appointed as Commissioner.
6. I have heard learned counsel for the parties and gone through therelevant evidence on record. My findings are as under for the following
reasons.REASONS Issues No. 1 to 3.
7. These issues being interconnected and interrelated may bediscussed and decided together for the sake of convenience and to avoid
repetition of evidence and reasoning thereon. It is settled proposition of lawthat in a suit for declaration of title and right to property as real owner
claiming it to be benami transaction, initial burden of proof is on the partywho alleges that an ostensible owner is a benamidar for him and that the weakness in the defence evidence would not relieve a plaintiff from discharging the above burden of proof. The burden of proof may shift from one party to the other during the trial of a suit. Once the burden of proof shifts from a plaintiff on a defendant and if he fails to discharge the burden of proof, the plaintiff shall succeed. (Refer Muhammad Sajjad Hussain v. Muhammad Anwar Hussain, 1991 S.C.M.R. 703).
8. There appears to be no serious controversy with regard to purchase of plot No. 253 measuring 183 Sq. Yds in Bahadurabad by the plaintiff from his own resources as well as house building loan and sale thereof for a consideration of Rs. 60,000/- by way of a registered conveyance deed dated 22nd January, 1968 Ex. 6/13. The whole controversy in the suit relates to the title and ownership in respect of plot No. 349 measuring 487 Sq. Yds in C.P. and Berar Cooperative Housing Society Limited. While the case of the plaintiff is that in our about 1967-1968 he purchased the plot in suit in the name of defendant as benami and built thereon a double storeyed house from his own resources, the stand of the defendant/wife is that she herself being a working lady purchased the plot in suit and raised construction thereon from her own resources as well as by raising loan from the House -Building Finance Corporation in the first instance and subsequently from Eastern Federal Union Insurance Company Limited. According to the plaintiff he served in the following organizations at different times.
1. Leaver Brothers Limitedfrom 1st October, 1951 to1st June, 1954.
2. The Swissboring OverseasCorporation Ltd. fromJune, 1954 to May, 1962.
3. Philips Electrical Co.Limited upto 26thNovember, 1962.
4. Standard Bank Limitedfrom 26th November,1962 to 1st August, 1964.
5. Swissboring Overseas. Corporation Ltd. from14th January, 1965 to 26th April. 1965.Salary Rs. 80/- p.m.Salary Rs. 600/- p.m.Salary Rs. 325/- p.m.Salary Rs. 600/-- p.m.
6. Gandhara Industries Ltd.Salary Rs. 138/- p.mfrom 1st February, 1966 plus dearness allowanceto 13th December, 1966. & transport equalization.Hotel Midway House from Salary Rs. 115/-p.m.December, 1966 toOctober, 1976.
8. Saudi Arabian Airlinesfrom November, 1976 to18th April, 1988.
9. With regard to the purchase of the house in suit contention of the plaintiff is that he purchased the same from Mst. Zainab Bai for a consideration of Rs. 19,400/- paid by him through cheque No. 813761 dated 10.3.1967 drawn on Habib Bank Limited, Saddar Branch, Karachi. It is fuSfther his case that, after the purchase of the plot he paid admission and transfer fees amounting to Rs. 2,440/- to C.P. and Berar Cooperative Housing Society vide cheque No. 813762 dated 11.3.1967. He further paid a sum of Rs. 10/- to the said Society towards execution of sub licence fees and Rs. 600/ to S.M. llyah, Estate Broker through cheque No. 813764 dated 13.3.1967. In support of his statement plaintiff led the evidence of Shaikh Badruddin, an officer of Habib Bank Limited who produced four cheques issued by the plaintiff for Rs. 19,400/-, Rs. 2,440/-, Rs. 312.38 and Rs. 600/-Ex. 5/1 to 5/4 respectively, p^.-locopy of statement of Bank account from January, 1967 to 27th November, 1967 Ex. 5/5 tending to show that the aforesaid cheques were duly passed for payment arid debited to the account of the plaintiff. From the evidence of the Bank Officer as well as the plaintiff himself it transpires that amount of cheque for Rs. 19,400/- was collected by the plaintiff himself, the cheque for Rs. 600/- being a bearer cheque seems to have been encashed by S.M. Ilyas whereas two remaining cheques were cleared by way of transfer by C.P. and Berar Cooperative Housing Society Ltd. and House Building Finance Corporation respectively. The plaintiff also produced two receipts issued by C.P. and Berar Cooperative Housing Society acknowledging the receipt of Rs. 2,440/- and Rs. 10/- respectively both in the name of the defendant reflecting the payment towards admission-CM/n-transfer fee and execution of sub-lincence No. 2 fee respectively.
10. It may be observed that the plaintiff did not examine the so called vendor Zainab Bai nor did he produce any document tending to show that she had transferred the plot in suit in favour of the defendant at the instance of the plaintiff or received consideration of Rs. 19,400/- from him as claimed. According to the plaintiff during the construction of a double storeyed house on the plot in suit he found that amount received by him from sale of Bahadurabad house and House Building Finance Corporation was not sufficient for completion of construction, therefore he obtained a loan of Rs. 5,5000/- from Eastern Federal Union Insurance Company afterredeeming the property form House Building Finance Corporation. He asserted that the repaid the loan amount to House Building Finance Corporation whereafter the property in suit was mortgaged with Eastern Federal Union Insurance Company and he spent this amount on the construction. Surprisingly no receipt for repayment of House Building Finance Corporation loan was produced by him as asserted. Besides no evidence with regard to redeeming the property from House Building Finance Corporation and mortgaging it with Eastern Federal Union Insurance Company by him was adduced. In December, 1967 on completion of the construction he alongwith his wife shifted in the ground floor and let out the first floor of the building on rent of Rs. 600/- per month. According to the agreement of sale in respect of the Bahadurabad house he received Rs. 30,000/- as earnest money on 1.3.1967, Rs. 6,000/- on 12.7.1967 as well as Rs. 4.000/- both by way of crossed cheque dated 3.10.1967 and Rs. 2,926/- in cash on 22.1.1968 when the conveyance deed was executed by him in favour of the vendee. In support of this submission, the plaintiff relied upon entries in the Bank Statement of Account Ex. 5/5 reflecting the credit of Rs. 30,000/-, Rs. 6,000/- and Rs. 4,000/- in his account soon after the aforesaid dates.
11. As regards the defendant's capacity to purchase the plot in suit and raising construction thereon from her own resources, the plaintiff asserted that in fact she did not have any funds because she used to spend her school salary on buying clothing, cosmetics and other items off fashion for herself. He maintained that, h had full faith and trust in the defendant, therefore, he purchased the plot aer name as benami for himself and all
the documents and transactions placed all the documents and pap her custody. He however admit! Happy Home English School in
e drawn and made in her name. He also :', pertaining to the purchase of the plot in •?d that the defendant joined service with une, 1960 as a teacher with a salary of Rs. 250/- per month and urged that while she'was in the school employment he continued to provide all her maintenance and the funds for the maintenance off the family as well as the house as he was earning sufficient funds form his service with Swissboring drawing a salary of Rs. 600/- per month and was also able to make sufficient savings out of his service income as well as rent received by him for the ground floor premises of Bahadurabad house. In his cross-examination quite inconsistent with his earlier affirmation he was obliged to admit that he kept his personal papers in his possession and in safe custody On being confronted with his loan application dated 7.6.1957 Ex. 6/19 he admitted that it indicated that the defendant had a monthly income of Rs. 200/~. While admitting another loan application No. 6965 dated 26.5.1994 Ex. 6/20 he conceded that the defendant was earning Rs. •'60/- p.m. aa shown in column No. 5(b). It may be pointed out here that in ' ;G4 he himsell being employed in Standard Bank Limited was receiving Rs. ''if>/- p.m. by way of salary. Subsequently he joined Gandhara Industries :suited in 19CW at a salary of Rs. 138/- p.m. and in 1967 he was serving in itel Midw:.M House for a salary of Rs. 115/- in addition to usualallowances. He reluctantly admitted that in 1965 the defendant obtained an employment in House Building Finance Corporation but dishonestly avoided to accept whether she was still employed with the said Corporation. However he was constrained to admit that the defendant mortgaged the plot in suit within the House Building Finance Corporation and obtained the loan. He expressed that he was unable to produce any receipt for payment of amount of Rs. 19,400/- to the vendor. He owned and admitted the contents of para 13 of his affidavit-in-evidence stating that when he purchased the plot in suit as a loving husband he had full faith and trust in the defendant, therefore, he purchased the plot in her name as benami, that all the documents and transactions were drawn and made in her name and that he had placed all the documents and papers relating to purchase of the plot in her custody. He denied the suggestion that the defendant had purchased the plot in suit for Rs. 8,000/- or paid a further sum of Rs. 3,165/- towards miscellaneous charges to the society through he did not dispute the acknowledgement receipt Ex, 6/22. Quite inconsistent with his earlier admission he denied the suggestion that all the documents and receipts were in possession ofr.be defendant and asserted that these were in his possession. According to the plaintiff there was no other loan except the House Building Finance Corporation loan and the Eastern Federal Union Insurance Company loan which is not correct on the face of it. He conceded that he did not possess sanction letter for the Eastern Federal Union Insurance Company loan and the redemption deed redeeming the property in suit from the said company.
12. In para 15 of his affidavit in evidence, he wrongly claimed thathe had started construction in March, 1967 but in his cross examination onbeing confronted with the approved building plan Ex. 6/25 lie admitted thatthe bmkling plan was approved on 29.4.1967. He did not dispute defendant'sletter dated 15.3.1979 Ex. 6/28 addressed to the House Building FinanceCorporation enclosing therewith original sub lease dated 3rd May, 1967,permission to mortgage, valuation certificate and the approved building plan.He conceded that defendant had been living in the house in suit since it wasbuilt, that she has been earning since 1960 and that she has been working inHouse Building Finance Corporation since 1965. He however wrongly andcleverly denied the suggestion that she had sufficient funds before and afterthe purchase of the plot in suit.
13, On her part defendant Bilqees Fatima in her evidence explainedthat when she was brought to Karachi after her marriage the plaintiff wasliving in rented house No. 278 at Hyderabad Colony. At the relevant timeMiss Kauser Sultana aged about 25 years and not married or otherwiserelated to the plaintiff was being kept by him right from the first day on herarrival at Karachi. After marriage with the plaintiff relations and events tookplace in a manner that the confidence and understanding between theparties could never improve. She stated that the plaintiff being a person ofuspicious character and conduct was never able to maintain her in a propermanner. She affirmed that she being a graduate in English Literature immediately after her arrival in Karachi in 1956-1957, started earning and maintaining herself and incurred the expenditure of the family as the plaintiff was in and out of job many a times. In the year 1956-57 she started impairing tuitions, in 1959 she joined Pater Pan English School and in the year 1960 she got an employment in Happy Home English School. She produced office order dated 20.6.1960 and a certificate dated 26.11.1965 from Happy Home English School Ex. 7/3 and Ex. 7/10 respectively. She produced two certificates in support of her statement with regard to imparting tuitions Ex. 7/1 and 7/2 which were not controverted in evidence.
14. She further asserted that on her arrival in Karachi since shestarted working and earning, plot No. 253 measuring 183 sq. yds inBahadurabad was purchased in 1958 by the plaintiff from her savings andfrom money given by his father. According to her, the house was constructed
with the assistance of House Building Finance Corporation loan which wasmade available on her guarantee. Ground floor construction on the plot wasraised in the year 1958 whereafter she herself and the plaintiff shifted in thesaid house. She added that in 1964 within the said of her income and HouseBuilding Finance Corporation loan obtain on her guarantee first floor of thesaid house was constructed. I would, however, refrain from giving muchweight to this piece of evidence which is beyond the place of controversy andnot the subject matter of issues for decision. On her own showing she wasemployed with House Building Finance Corporation on permanent basis in1965 and she continued to be in the employment of the said Corporation.She produced initial order of her appointment as Assistant at Rs. 240/- permonth dated 3/4.8.1965 and a certificate dated 25.2.1990 certifying that shejoined the said Corporation on 5.8.1965 and was now holding the post ofExecutive Director (Operations) equivalent to BPS-20.
15. Adverting to the purchase of the property in suit it is her casethat in the year 1967 she had sufficient funds and means therefore she
decided to purchase the plot in suit from its owner and purchased it for aconsideration of Rs. 8,000/-. She produced acknowledgment receipt to thiseffect dated 10.3.1967 Ex. 6/22 purportedly executed by Mst. Khairunnisa(as stated at the ar by learned counsel for the defendant since the signatureof the vendor on the receipt is in Gujrati). She claimed that she being anemployee of House Building Finance Corporation, was entitled to certainbenefits including the benefit of availing loan without initial investment.VcouUngly she so'^ht permission to mortgage the plot in suit with thei oifioiation v ah db accorded by C.P. and Berar Cooperative Housing•m et'y Ltd L,. 6/ 4 Before the grant of such permission, the aforesaidi! \ execute 1 a <-ub licence No. 1 in Form "A" in her name Ex. 7/15 afteri mce f ill es payable by her which was registered in the office ofe , tehi mde S. No. 2468 on 7.4.1967. The certificate. . 5. u aiottgage issued by the said society further affirmedilt u n i ad paid the dues in respect of the plot in suit on accountof development and Government premium amounting to Rs. 3,165.50 and there was nothing outstanding against her. After the lease in her favour she engaged an architect for preparation of building plan which was approved by K.D.A. vide letter dated 29.4.1967 Ex. 6/25. Thereafter she obtained loan from House Building Finance Corporation in the sum of Rs. 40.000/- vide sanction letter dated 6th May, 1967 Ex. 7/16. Before the availment of the House Building Finance Corporation loan she mortgaged the plot in suit with House Building Finance Corporation vide registered mortgage deed Ex. 7/17 registered in the office of Sub Registrar on 17.6.1967. Subsequently she redeemed the property in suit from House Building Finance Corporation on 4th March, 1968 Ex. 7/18 and obtained a loan of Rs. 55,000/- from Eastern Federal Union Insurance Company vide mortgage deed dated 4th August, 1968. After the repayment of this loan the property was redeemed from State Life Insurance Corporation which succeeded Eastern Federal Union Insurance Company Ltd. vide Ex. 7/20 dated 9th December, 1980 whereafter the property was again mortgaged with House Building Finance Corporation for availing additional loan of Rs. 35,000/- vide mortgage deed Ex. 7/21. Besides she availed of over-draft facility form National Bank of Pakistan in the sum of Rs. 5,000/- vide letter dated 21st October, 1967 Ex. 7/23, over-draft limit of Rs. 2,000/- vide letter dated 8.2.1969 Ex. 7/23/1, over draft limit of Rs. 1,800/- vide letter dated 5.1.1970 Ex.7/23/2. The defendant also produced as many as 56 receipts for repayment of installments to State Life Insurance Corporation in order to prove the repayment of loan amount to Eastern Federal Union Insurance Conjpany Ltd. being predecessor in interest of State Life Insurances Corporation. Besides aforesaid oral as well as documentary evidence, her version is materially corroborated by the testimony of her daughter DW Sajida Habib which has not been impeached.
16. Onus of proof of issues No. 1 and 3 being on the plaintiff, he 1 utterly failed to discharge the same. His assertion that he purchased the plot in suit for a consideration of Rs. 19,400/- from Mst. Zainab Bai and paid the consideration through cheque Ex. 5/1 is not supported by the evidence on record. In the first instance there is no evidence showing Mst. Zainab Bai to be the owner of the plot in the records of C.P. Berar Cooperative Housing Society Ltd., secondly there is no agreement of sale between her and the plaintiff reflecting the transaction of purchase of plot in the name of the defendant, thirdly there is no evidence of passing of consideration to the said owner of the plot. Admittedly cheque for Rs. 19,400/- drawn on 10.3.1967 is a self drawn cheque and the amount thereof was received by the plaintiff himself which does not by any stretch of reasoning establish the payment of consideration by the plaintiff to the so called owner of the plot. Only circumstantial evidence produced by the plaintiff is the production of two receipts for payment of Rs. 2,440/- and Rs. 10/- to C.P. and Berar Cooperative Housing Society in the name of the defendant on account of admission-cum-transfer fee as well as execution of sub licence No. 2 fee. While the first payment was made through a cheque and there is evidence to show that the said cheque was received by the plaintiffs Bank for clearancepaltry amount of Rs. 10/- was paid in cash. In this context the explanation of the defendant is that in fact she being a working woman had paid this amount in cash to the plaintiff for payment of the Society in so much so that she had purchased the plot in suit for a sum of Rs. 8,000/-. In order to substantiate this statement she produced a receipt purportedly executed by Mst. Khairunnisa Ex. 6/22 followed by the aforesaid payments to C.P. and Berar Cooperative Housing Society Ltd. It may further be observed that according to the plaintiff construction on the plot was completed in December, 1967 and finances therefor were provided by him though the title documents remained intact in the name of defendant. It may however be observed that at the relevant period he being employed in Gandhara Industries Limited for a salary off Rs. 138/- per month plus dearness allowance and transport equalization and subsequently in Hotel Midway House for a salary of Rs. 115/- he could hardly save and substantial amount for the purchase of plot or raising construction thereon with a huge investment. No doubt he stated that on account of sale of Bahadurabad house he had received a sum of Rs. 30.00/- as advanced money from the vendor on 1.3.1967 which was credited to his bank account, he failed to show by any concrete and satisfactoiy evidence that in fact the lay out plan as well as the building plan were approved by concerned agencies at his instance or that the actual construction was carried out under his supervision and from his investments. Admittedly he had obtained a loan for raising construction on the plot in Bahadurabad therefore he was under a legal duty to repay the said loan. It is therefore difficult to accept that with the receipt of advance money he was able to invest the said amount in the purchase of plot or to raise construction thereon. Mere production of a receipt for payment of Rs. 2,440/- to C.P. & Berar Cooperative Housing Society in the name of the defendant on his part in my view is neither sufficient nor satisfactoiy evidence of his investment in the purchase of the property. At any rate, there is no plausible circumstantial or documentary evidence to show that the plaintiff purchased the plot in suit or raised construction thereon by his own finances.
17. On the contrary the defendant soon after her marriage arid arrival in Karachi being a working woman and receiving a handsome amount from tuitions, appointment as teacher and subsequent assignment in the House Building Finance Corporation was in a better position to save a substantial amount for investment in the plot in suit. There is adequate documentary evidence to support the view that she had in the first instance obtained house building loan from House Building Finance Corporation in the sum of Rs. 40,000/- and subsequently realising that the said amount would not be sufficient to meet the cost of construction, she after redeeming the plot mortgaged with House Building Finance Corporation obtained loan amount to Rs. 55,000/- from Eastern Federal Union Insurance Company Ltd. There is over-whelming documentary evidence to substantiate the version of the defendant that she had repaid the house building loan as well as the loan amount to State Life Insurance Company the successor ofEastern Federal Union Insurance Company whereafter she secured an additional loan amounting to Rs. 35,000/- from House Building Finance Corporation. There is ample documentary evidence to show that at the time of giving evidence a sum of Rs. 19,175/- was outstanding against her as on 31.7.1989 on account of the additional loan of Rs. 35,000/- obtained from House Building Finance Corporation in the year 1978. Despite lengthy cross examination and searching questions put to her in the cross examination her testimony could not be shattered. She also produced documents to show that at different imes she had availed of over draft facility from the National Bank of Pakistan in the year 1967, 1969 and 1970 in order to complete the construction riased on the plot in suit. Besides the above resources she produced an statement Ex. 7/22 showing the availment of G.P. Fund advance from her G.P. Fund account maintained in the House Building Finance Corporation from time to time, in all amounting to Rs. 67,400/-. The amounts drawn in this statement relate to the period from December, 1970 to 15th August, 1988 repayable in installments and deducted at source from her salary and allowances. These circumstances evidently tend to prove that on the one hand she had been pending heavily on construction of the house on the plot in suit and on the other hand making efforts to pay off the outstanding loan against her secured from different agencies in order to obtain discharge of her liability and encumbrance on the property. As observed earlier, the defendant, was completely unaware of the subsequent additional loan obtained by her from House Building Finance Corporation to relieve her of the liability of Eastern Federal Union Insxirance Company Limited.
18. As regards possession of the house in question it is logical andquite natural that upto 1978 the parties lived therein as husband and wifebut in 1978 the plaintiff after contracting a second marriage shifted to flatNo. D-l, Haq Bahoo Plaza purchased by him in the name of his second wifeMst. Amina Naz. He attempted to show that he had lived in the property insuit with the second wife upto October, 1980 but his statement does notinspire much confidence and this assertion is not borne out by the evidenceon record.
19. Finding him on weak wicket learned counsel for the plaintiffcontended that the averments made in para 10 of the plaint being notdisputed in the corresponding para of written statement the facts statedtherein are deemed to be admitted. In para 10 of the plaint plaintiff statedthat after contracting second marriage with Mst. Amina Naz in 1978 hebrought her in the ground floor of the house in suit and started livingtherein where a daughter named Quratul Ain was born to him from thesecond wife. He claimed his stay in the said house upto October, 1980 but itwould not be correct to assume that the defendant did not controvert thisstatement in her written statement. A plain reading of para 10 thereofdiscloses a complete and emphatic denial of the averments made by theplaintiff. Besides denying the contents of para 10 specifically defendantstated that in fact the plaintiff at the relevant time was living in House No E-1-9/12 Malir Extension Colony, Karachi as evidenced by the power of attorney dated 28.10.1980 executed by the previous owner of Flat No. D-l Haq Bahoo Plaza, Gulshan-e-Iqbal in favour of the plaintiff. It was further stated that before shifting to Malir Extension Colony he was occupying Flat No. 9-8/14 Maymar Square Gulshan-e-Iqbal, Karachi. In support of this submission learned counsel relied upon Trustees of the Port of Chittagong v. River Steam Navigation Co. Ltd. (PLD 1965 SC 352) which is hardly attracted in the circumstances of the instant case because there is specific and emphatic denial of the plaintiffs averments in the written statement filed by the defendant.
20. With regard to the purchase of the property in suit in the name of the defendant as benami transaction, learned counsel relied upon the following cases:-
(1) Lakshmiah v. Kathand Rama (AIR 1925 PC 181).
(2) Mirza Ahmed v. Model Mills (AIR 1926 Nagpur 262).
(3) Muhammad. Sajjad Hussain v. Muhammad AnwarHussain (1991 SCMR 703).
(4) Kishwar Malik v. Muhammad Sadiq Malik (PLD 1995 SC457).In the Privy Council case, it was held that a purchase in India by a native of India of property in the name of his wife unexplained by other proved or admitted facts is to be regarded as benami transaction by which the beneficial interest in the property is in the husband although the ostensible title is the wife. The reported case is hardly of any assistance to the plaintiff in view of overwhelming evidence adduced by the defendant to the contraryIn Nagpur case it was observed that in view of the extraordinary prevalence of benami transactions in India, even a slight quantity of evidence may suffice to prove it. The facts of the reported case are quite different and distinguishable from the fact of the instant case. As there was no sufficient evidence from the side off the defendant in the cited case therefore the observation made in the cited case are not attracted in this caseIn Muhammad Sajjad Hussain's case Hon'ble Supreme Court of Pakistan laid down the following factors as criteria for determining the question whether the transaction is a benami or not? There are:-
(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 property; (iv) motive for the benami transaction.
Applying the said yard stick to the facts of this case, the authority supports the case of the defendant rather than the plaintiff.In Kishwar Malik's case Hon'ble Supreme Court of Pakistan declined to interfere with the concurrent findings of courts helow that the appellant was only a benamidar of the disputed property in the context of evidence on record and admitted fact of payment of entire price of the plot from the bank account of the respondent-husband.
21. Learned counsel for the plaintiff lastly contended that the defendant failed to lead definite evidence of investment of her finances in the construction of the house and mere sanction of house building loan by H.B.F.C. and Eastern Federal Union insurance Company as well as over draft facility by National Bank of Pakistan could not be treated as proof of the said amount having been spent on the construction of the house in suit. Be that as it may, the plaintiff failing to discharge the initial burden of proof of his own investments and purchase of the property in the name of the defendant is not entitled to depend on the so-called weakness of the case of the defendant which is otherwise sufficient and satisfactory to discard the testimony of the plaintiff. In this connection he also cited Ismail Dada Adam Soomar v. Short Banoo (PLD 1960 Karachi 852) and Muhammad Abdul Majeed v, Muhammad Jainul Abden (PLD 1970 Dacca 414). Both these cases were considered in the Supreme Court j udgment in the case of Muhammad Sajjad Hussain while laying down the principles for determining the issue whether a transaction is a benami or not ? On preponderance of the evidence however I find that the plaintiff has failed to establish his case by any reliable and satisfactory evidence. As a necessary corollary, I find that neither the property in suit was purchased by the plaintiff from his own funds nor is the defendant benami owner thereof. Likewise I am inclined to hold that the defendant had sufficient means and source of income to purchase the property in suitIssue No. 4.
22. On this issue, learned counsel for the defendant submitted that in view of the plaintiff deserting the defendant in 1978 after contracting the second marriage without the consent of the defendant and having no nexus with the property in suit, his claim for declaration and injunction brought in April, 1989 is time barred under Article 120 of the First Schedule to the Limitation Act which prescribes a period of six years from the date when the right to sue accrues. It is my considered vie that in fact and law no right to sue accrued to the plaintiff in March 1989 and the suit brought by him in April, 1989 is clearly misconceived, without any cause of action and barred by limitation. Learned counsel for the plaintiff did not bother the advanceany argument on this issue but, in para 18 of the plaintiff, it has been stated that the cause of action arose in or about 1967 and 1968 when the plaintiff puichased the plot in suit in the name of defendant as benami for himself and in or about January, February and March, 1989 when the defendant denied the title and ownership of the plaintiff over the plot in suit and the bungalow built thereon.
23. From the evidence, it transpires that the parties are livingseparately from each other since 1978 when the plaintiff married a secondwife and at any rate from October, 1980 when he shifted to Haq Bahoo Plazain Gulshan-e-Iqbal after the purchase of the flat in the name of his secondwife. Except the exchange of legal notices in February, 1989 and March,1989 there is hardly any evidence to show that the so called right of theplaintiff was denied and disputed for the first time in January to March.1989 as claimed. It seems that right to sue was not available to the plaintiffat any time after actual separation between the parties as reflected in theintimation sent by the plaintiff under section 7(1) of the uslim FamilyLaws Ordinance, 1961 and order passed by the Chairman, ConciliationCourt thereon, dated 1.4.1978 Exh. 6/29 but in order to create imaginarycause of action, after the issuance of a legal notice Exh. 6/17 and receipt ofits reply Exh. 6/18 he filed this suit which on the face of it is barred by time
and in fact without any valid cause of action.Issue No. 5:
24. For the aforesaid facts and reasons and in view of my findings onthe foregoing issues, suit is dismissed with costs.
(K.K.F.) Suit dismissed.
Present: rana BHAGWAN das, J. SYED HABIB MAHMOOD-Plaintiff
versus
Mrs. BILQEES FATIMA-Defendant . Suit No. 444 of 1989 dismissed on 8.8.1996.
(i) Benami Transaction--
—Criteria for determining question of Benami Transaction is (i) source ofconsideration (ii) From whose custody the original title deed and otherdocuments came in evidence; (iii) who is in possession of property andmotive for benami transaction. [P. 12] D
(ii) Declaration--
—Declaration-Suit of-Plaintiff did not examine the vendor Mst, Z nor did he tender any document tending to show that she had transferred the plot in suit in favour of the defendant at the instance of the plaintiff or received consideration from him as claimed-His assertion that defendant is benami owner of suit property is not supported by circumstantial or documentary evidence on record- Held: Neither property in suit wpurchased by plaintiff from his own funds nor is defendant benami owner-Defendant had sufficient means and source of income to purchase suit, property-Suit dismissed with costs.
[Pp. 5, 9, 10 & 13] A. B. C & E
(iii) Limitation Act, 1908 (IX of 1908)--
—S. 120-Plaintiff contracted second marriage in 1978 and deserted thedefendant, whereas he brought suit for declaration and injunction in1989--Held: Suit is barred by limitation as the Act prescribes a period cfsix years from the date when right to sue accrues. [P. 13] F
Mr. Gulzar Ahmed, Advocate for Plaintiff. Mr. Abdul Muqtadir Khan, Advocate for Defendant. Dates of hearing: 23.4.1996, 15.5.1996 & 16.5.1996.
judgment
By this suit, the plaintiff seeks a declaration against the defendant that he is real and true owner of the Plot No. 349, Block 7 and 8, C.P. & Berar Cooperative Housing Society with a double storeyed bungalow thereon and that the defendant is only a benami owner. He has also asked for an injunction restraining the defendant from denying his title and ownership and from preventing him from exercising his right and dominion over the property. By way of consequential relief, he has prayed for handing over vacant possession alongwith all title deeds and documents in respect of the ground floor of the property in suit and delivery of first floor by way of token possession it being in occupation of a tenant.
2. Plaintiff was married to the defendant some times in 1956 at Hyderabad Deccan and brought her to Karachi. From his savings he purchased a plot measuring about 183 Sq. yards in Sahadurabad and built a double storyed house thereon in 1958 and started living therewith the defendant and a daughter. According to the plaintiff till 1965 defendant was a house wife when she took up her employment with the House Building Finance Corporation, as a clerk at Rs. 250.00 p.m. In 1967 plaintiff sold out his house in Bahadurabad for Rs. 60,000/- and added to it his other savings, purchased the plot in suit admeasuring about 487 Sq. yds in the name of the defendant and built thereon a double storeyed house. As there was mutual trust and harmony between the parties, the plaintiff placed all title documents and papers in custody of the defendant and started living in the ground floor of the property in suit. Sometimes in 1978 relations between the parties became strained consequently the plaintiff contracted a second marriage with Mst. Amina and took her to the house in suit and started living there. The plaintiff was blessed with a female baby Qurratul-ain from the second wife where the parties as well as second wife and newly born baby lived upto October, 1980. In October, 1980 plaintiff purchased flat No. D-l, Haq Bahu Plaza, Gulshan-e-Iqbal for Rs. 1,54,000/- in the name of his second wife as benami for himself and he alongwith the second wife anddaughter shifted to the said flat where h-; was hlessed with another female haby. Later the plaintiff desired to shift Jo the property in suit for his comfort and better environment but the defendant declined to honour his desire and asserted her title to the property as exclusive owner thereof, hence this suit.
3. Defendant resisted the suit and filed written statement statingtherein that she herself had purchased the plot in suit and raised
construction thereon after obtaining House Building loan against theguarantee of her income and that she joined Happy Home English School in1960 as a teacher. Prior to that she had been imparting private tuition tostudents and earning handsome amount, In 1965 she joined House BuildingFinance Corporation and rose to a position in National Pay Scale No. 20. Itwas denied that the property was purchased by the plaintiff from his ownresources or in the name of defendant as a benami owner. She has givendetails showing as to how she acquired funds for the purchase of the plot andraising double storey construction thereon. She raised legal pleas as well.4. On the pleadings of the parties following issues were settled:-
1. Whether the suit property was purchased by the plaintifffrom his own funds in the name of the defendant?
2. Whether the defendant had means and source of income topurchase the property?
3. Whether the defendant is benami owner of the suitproperty?
4. Whether the suit is misconceived, bad in law, fabricatedand without cause of action?What should the decree be?
5. In support of his case the plaintiff besides examining himself ledthe evidence of Badruddin Paracha working in Habib Bank Limited, SaddarBranch, Karachi while the defendant examined herself and her daughterMst. Sajida Habib. While the evidence of Bank officer was recorded in court,remaining evidence of the parties was recorded on commission by Mr.Zahiruddin Khan Advocate appointed as Commissioner.
6. I have heard learned counsel for the parties and gone through therelevant evidence on record. My findings are as under for the following
reasons.REASONS Issues No. 1 to 3.
7. These issues being interconnected and interrelated may bediscussed and decided together for the sake of convenience and to avoid
repetition of evidence and reasoning thereon. It is settled proposition of lawthat in a suit for declaration of title and right to property as real owner
claiming it to be benami transaction, initial burden of proof is on the partywho alleges that an ostensible owner is a benamidar for him and that the weakness in the defence evidence would not relieve a plaintiff from discharging the above burden of proof. The burden of proof may shift from one party to the other during the trial of a suit. Once the burden of proof shifts from a plaintiff on a defendant and if he fails to discharge the burden of proof, the plaintiff shall succeed. (Refer Muhammad Sajjad Hussain v. Muhammad Anwar Hussain, 1991 S.C.M.R. 703).
8. There appears to be no serious controversy with regard to purchase of plot No. 253 measuring 183 Sq. Yds in Bahadurabad by the plaintiff from his own resources as well as house building loan and sale thereof for a consideration of Rs. 60,000/- by way of a registered conveyance deed dated 22nd January, 1968 Ex. 6/13. The whole controversy in the suit relates to the title and ownership in respect of plot No. 349 measuring 487 Sq. Yds in C.P. and Berar Cooperative Housing Society Limited. While the case of the plaintiff is that in our about 1967-1968 he purchased the plot in suit in the name of defendant as benami and built thereon a double storeyed house from his own resources, the stand of the defendant/wife is that she herself being a working lady purchased the plot in suit and raised construction thereon from her own resources as well as by raising loan from the House -Building Finance Corporation in the first instance and subsequently from Eastern Federal Union Insurance Company Limited. According to the plaintiff he served in the following organizations at different times.
1. Leaver Brothers Limitedfrom 1st October, 1951 to1st June, 1954.
2. The Swissboring OverseasCorporation Ltd. fromJune, 1954 to May, 1962.
3. Philips Electrical Co.Limited upto 26thNovember, 1962.
4. Standard Bank Limitedfrom 26th November,1962 to 1st August, 1964.
5. Swissboring Overseas. Corporation Ltd. from14th January, 1965 to 26th April. 1965.Salary Rs. 80/- p.m.Salary Rs. 600/- p.m.Salary Rs. 325/- p.m.Salary Rs. 600/-- p.m.
6. Gandhara Industries Ltd.Salary Rs. 138/- p.mfrom 1st February, 1966 plus dearness allowanceto 13th December, 1966. & transport equalization.Hotel Midway House from Salary Rs. 115/-p.m.December, 1966 toOctober, 1976.
8. Saudi Arabian Airlinesfrom November, 1976 to18th April, 1988.
9. With regard to the purchase of the house in suit contention of the plaintiff is that he purchased the same from Mst. Zainab Bai for a consideration of Rs. 19,400/- paid by him through cheque No. 813761 dated 10.3.1967 drawn on Habib Bank Limited, Saddar Branch, Karachi. It is fuSfther his case that, after the purchase of the plot he paid admission and transfer fees amounting to Rs. 2,440/- to C.P. and Berar Cooperative Housing Society vide cheque No. 813762 dated 11.3.1967. He further paid a sum of Rs. 10/- to the said Society towards execution of sub licence fees and Rs. 600/ to S.M. llyah, Estate Broker through cheque No. 813764 dated 13.3.1967. In support of his statement plaintiff led the evidence of Shaikh Badruddin, an officer of Habib Bank Limited who produced four cheques issued by the plaintiff for Rs. 19,400/-, Rs. 2,440/-, Rs. 312.38 and Rs. 600/-Ex. 5/1 to 5/4 respectively, p^.-locopy of statement of Bank account from January, 1967 to 27th November, 1967 Ex. 5/5 tending to show that the aforesaid cheques were duly passed for payment arid debited to the account of the plaintiff. From the evidence of the Bank Officer as well as the plaintiff himself it transpires that amount of cheque for Rs. 19,400/- was collected by the plaintiff himself, the cheque for Rs. 600/- being a bearer cheque seems to have been encashed by S.M. Ilyas whereas two remaining cheques were cleared by way of transfer by C.P. and Berar Cooperative Housing Society Ltd. and House Building Finance Corporation respectively. The plaintiff also produced two receipts issued by C.P. and Berar Cooperative Housing Society acknowledging the receipt of Rs. 2,440/- and Rs. 10/- respectively both in the name of the defendant reflecting the payment towards admission-CM/n-transfer fee and execution of sub-lincence No. 2 fee respectively.
10. It may be observed that the plaintiff did not examine the so called vendor Zainab Bai nor did he produce any document tending to show that she had transferred the plot in suit in favour of the defendant at the instance of the plaintiff or received consideration of Rs. 19,400/- from him as claimed. According to the plaintiff during the construction of a double storeyed house on the plot in suit he found that amount received by him from sale of Bahadurabad house and House Building Finance Corporation was not sufficient for completion of construction, therefore he obtained a loan of Rs. 5,5000/- from Eastern Federal Union Insurance Company afterredeeming the property form House Building Finance Corporation. He asserted that the repaid the loan amount to House Building Finance Corporation whereafter the property in suit was mortgaged with Eastern Federal Union Insurance Company and he spent this amount on the construction. Surprisingly no receipt for repayment of House Building Finance Corporation loan was produced by him as asserted. Besides no evidence with regard to redeeming the property from House Building Finance Corporation and mortgaging it with Eastern Federal Union Insurance Company by him was adduced. In December, 1967 on completion of the construction he alongwith his wife shifted in the ground floor and let out the first floor of the building on rent of Rs. 600/- per month. According to the agreement of sale in respect of the Bahadurabad house he received Rs. 30,000/- as earnest money on 1.3.1967, Rs. 6,000/- on 12.7.1967 as well as Rs. 4.000/- both by way of crossed cheque dated 3.10.1967 and Rs. 2,926/- in cash on 22.1.1968 when the conveyance deed was executed by him in favour of the vendee. In support of this submission, the plaintiff relied upon entries in the Bank Statement of Account Ex. 5/5 reflecting the credit of Rs. 30,000/-, Rs. 6,000/- and Rs. 4,000/- in his account soon after the aforesaid dates.
11. As regards the defendant's capacity to purchase the plot in suit and raising construction thereon from her own resources, the plaintiff asserted that in fact she did not have any funds because she used to spend her school salary on buying clothing, cosmetics and other items off fashion for herself. He maintained that, h had full faith and trust in the defendant, therefore, he purchased the plot aer name as benami for himself and all
the documents and transactions placed all the documents and pap her custody. He however admit! Happy Home English School in
e drawn and made in her name. He also :', pertaining to the purchase of the plot in •?d that the defendant joined service with une, 1960 as a teacher with a salary of Rs. 250/- per month and urged that while she'was in the school employment he continued to provide all her maintenance and the funds for the maintenance off the family as well as the house as he was earning sufficient funds form his service with Swissboring drawing a salary of Rs. 600/- per month and was also able to make sufficient savings out of his service income as well as rent received by him for the ground floor premises of Bahadurabad house. In his cross-examination quite inconsistent with his earlier affirmation he was obliged to admit that he kept his personal papers in his possession and in safe custody On being confronted with his loan application dated 7.6.1957 Ex. 6/19 he admitted that it indicated that the defendant had a monthly income of Rs. 200/~. While admitting another loan application No. 6965 dated 26.5.1994 Ex. 6/20 he conceded that the defendant was earning Rs. •'60/- p.m. aa shown in column No. 5(b). It may be pointed out here that in ' ;G4 he himsell being employed in Standard Bank Limited was receiving Rs. ''if>/- p.m. by way of salary. Subsequently he joined Gandhara Industries :suited in 19CW at a salary of Rs. 138/- p.m. and in 1967 he was serving in itel Midw:.M House for a salary of Rs. 115/- in addition to usualallowances. He reluctantly admitted that in 1965 the defendant obtained an employment in House Building Finance Corporation but dishonestly avoided to accept whether she was still employed with the said Corporation. However he was constrained to admit that the defendant mortgaged the plot in suit within the House Building Finance Corporation and obtained the loan. He expressed that he was unable to produce any receipt for payment of amount of Rs. 19,400/- to the vendor. He owned and admitted the contents of para 13 of his affidavit-in-evidence stating that when he purchased the plot in suit as a loving husband he had full faith and trust in the defendant, therefore, he purchased the plot in her name as benami, that all the documents and transactions were drawn and made in her name and that he had placed all the documents and papers relating to purchase of the plot in her custody. He denied the suggestion that the defendant had purchased the plot in suit for Rs. 8,000/- or paid a further sum of Rs. 3,165/- towards miscellaneous charges to the society through he did not dispute the acknowledgement receipt Ex, 6/22. Quite inconsistent with his earlier admission he denied the suggestion that all the documents and receipts were in possession ofr.be defendant and asserted that these were in his possession. According to the plaintiff there was no other loan except the House Building Finance Corporation loan and the Eastern Federal Union Insurance Company loan which is not correct on the face of it. He conceded that he did not possess sanction letter for the Eastern Federal Union Insurance Company loan and the redemption deed redeeming the property in suit from the said company.
12. In para 15 of his affidavit in evidence, he wrongly claimed thathe had started construction in March, 1967 but in his cross examination onbeing confronted with the approved building plan Ex. 6/25 lie admitted thatthe bmkling plan was approved on 29.4.1967. He did not dispute defendant'sletter dated 15.3.1979 Ex. 6/28 addressed to the House Building FinanceCorporation enclosing therewith original sub lease dated 3rd May, 1967,permission to mortgage, valuation certificate and the approved building plan.He conceded that defendant had been living in the house in suit since it wasbuilt, that she has been earning since 1960 and that she has been working inHouse Building Finance Corporation since 1965. He however wrongly andcleverly denied the suggestion that she had sufficient funds before and afterthe purchase of the plot in suit.
13, On her part defendant Bilqees Fatima in her evidence explainedthat when she was brought to Karachi after her marriage the plaintiff wasliving in rented house No. 278 at Hyderabad Colony. At the relevant timeMiss Kauser Sultana aged about 25 years and not married or otherwiserelated to the plaintiff was being kept by him right from the first day on herarrival at Karachi. After marriage with the plaintiff relations and events tookplace in a manner that the confidence and understanding between theparties could never improve. She stated that the plaintiff being a person ofuspicious character and conduct was never able to maintain her in a propermanner. She affirmed that she being a graduate in English Literature immediately after her arrival in Karachi in 1956-1957, started earning and maintaining herself and incurred the expenditure of the family as the plaintiff was in and out of job many a times. In the year 1956-57 she started impairing tuitions, in 1959 she joined Pater Pan English School and in the year 1960 she got an employment in Happy Home English School. She produced office order dated 20.6.1960 and a certificate dated 26.11.1965 from Happy Home English School Ex. 7/3 and Ex. 7/10 respectively. She produced two certificates in support of her statement with regard to imparting tuitions Ex. 7/1 and 7/2 which were not controverted in evidence.
14. She further asserted that on her arrival in Karachi since shestarted working and earning, plot No. 253 measuring 183 sq. yds inBahadurabad was purchased in 1958 by the plaintiff from her savings andfrom money given by his father. According to her, the house was constructed
with the assistance of House Building Finance Corporation loan which wasmade available on her guarantee. Ground floor construction on the plot wasraised in the year 1958 whereafter she herself and the plaintiff shifted in thesaid house. She added that in 1964 within the said of her income and HouseBuilding Finance Corporation loan obtain on her guarantee first floor of thesaid house was constructed. I would, however, refrain from giving muchweight to this piece of evidence which is beyond the place of controversy andnot the subject matter of issues for decision. On her own showing she wasemployed with House Building Finance Corporation on permanent basis in1965 and she continued to be in the employment of the said Corporation.She produced initial order of her appointment as Assistant at Rs. 240/- permonth dated 3/4.8.1965 and a certificate dated 25.2.1990 certifying that shejoined the said Corporation on 5.8.1965 and was now holding the post ofExecutive Director (Operations) equivalent to BPS-20.
15. Adverting to the purchase of the property in suit it is her casethat in the year 1967 she had sufficient funds and means therefore she
decided to purchase the plot in suit from its owner and purchased it for aconsideration of Rs. 8,000/-. She produced acknowledgment receipt to thiseffect dated 10.3.1967 Ex. 6/22 purportedly executed by Mst. Khairunnisa(as stated at the ar by learned counsel for the defendant since the signatureof the vendor on the receipt is in Gujrati). She claimed that she being anemployee of House Building Finance Corporation, was entitled to certainbenefits including the benefit of availing loan without initial investment.VcouUngly she so'^ht permission to mortgage the plot in suit with thei oifioiation v ah db accorded by C.P. and Berar Cooperative Housing•m et'y Ltd L,. 6/ 4 Before the grant of such permission, the aforesaidi! \ execute 1 a <-ub licence No. 1 in Form "A" in her name Ex. 7/15 afteri mce f ill es payable by her which was registered in the office ofe , tehi mde S. No. 2468 on 7.4.1967. The certificate. . 5. u aiottgage issued by the said society further affirmedilt u n i ad paid the dues in respect of the plot in suit on accountof development and Government premium amounting to Rs. 3,165.50 and there was nothing outstanding against her. After the lease in her favour she engaged an architect for preparation of building plan which was approved by K.D.A. vide letter dated 29.4.1967 Ex. 6/25. Thereafter she obtained loan from House Building Finance Corporation in the sum of Rs. 40.000/- vide sanction letter dated 6th May, 1967 Ex. 7/16. Before the availment of the House Building Finance Corporation loan she mortgaged the plot in suit with House Building Finance Corporation vide registered mortgage deed Ex. 7/17 registered in the office of Sub Registrar on 17.6.1967. Subsequently she redeemed the property in suit from House Building Finance Corporation on 4th March, 1968 Ex. 7/18 and obtained a loan of Rs. 55,000/- from Eastern Federal Union Insurance Company vide mortgage deed dated 4th August, 1968. After the repayment of this loan the property was redeemed from State Life Insurance Corporation which succeeded Eastern Federal Union Insurance Company Ltd. vide Ex. 7/20 dated 9th December, 1980 whereafter the property was again mortgaged with House Building Finance Corporation for availing additional loan of Rs. 35,000/- vide mortgage deed Ex. 7/21. Besides she availed of over-draft facility form National Bank of Pakistan in the sum of Rs. 5,000/- vide letter dated 21st October, 1967 Ex. 7/23, over-draft limit of Rs. 2,000/- vide letter dated 8.2.1969 Ex. 7/23/1, over draft limit of Rs. 1,800/- vide letter dated 5.1.1970 Ex.7/23/2. The defendant also produced as many as 56 receipts for repayment of installments to State Life Insurance Corporation in order to prove the repayment of loan amount to Eastern Federal Union Insurance Conjpany Ltd. being predecessor in interest of State Life Insurances Corporation. Besides aforesaid oral as well as documentary evidence, her version is materially corroborated by the testimony of her daughter DW Sajida Habib which has not been impeached.
16. Onus of proof of issues No. 1 and 3 being on the plaintiff, he 1 utterly failed to discharge the same. His assertion that he purchased the plot in suit for a consideration of Rs. 19,400/- from Mst. Zainab Bai and paid the consideration through cheque Ex. 5/1 is not supported by the evidence on record. In the first instance there is no evidence showing Mst. Zainab Bai to be the owner of the plot in the records of C.P. Berar Cooperative Housing Society Ltd., secondly there is no agreement of sale between her and the plaintiff reflecting the transaction of purchase of plot in the name of the defendant, thirdly there is no evidence of passing of consideration to the said owner of the plot. Admittedly cheque for Rs. 19,400/- drawn on 10.3.1967 is a self drawn cheque and the amount thereof was received by the plaintiff himself which does not by any stretch of reasoning establish the payment of consideration by the plaintiff to the so called owner of the plot. Only circumstantial evidence produced by the plaintiff is the production of two receipts for payment of Rs. 2,440/- and Rs. 10/- to C.P. and Berar Cooperative Housing Society in the name of the defendant on account of admission-cum-transfer fee as well as execution of sub licence No. 2 fee. While the first payment was made through a cheque and there is evidence to show that the said cheque was received by the plaintiffs Bank for clearancepaltry amount of Rs. 10/- was paid in cash. In this context the explanation of the defendant is that in fact she being a working woman had paid this amount in cash to the plaintiff for payment of the Society in so much so that she had purchased the plot in suit for a sum of Rs. 8,000/-. In order to substantiate this statement she produced a receipt purportedly executed by Mst. Khairunnisa Ex. 6/22 followed by the aforesaid payments to C.P. and Berar Cooperative Housing Society Ltd. It may further be observed that according to the plaintiff construction on the plot was completed in December, 1967 and finances therefor were provided by him though the title documents remained intact in the name of defendant. It may however be observed that at the relevant period he being employed in Gandhara Industries Limited for a salary off Rs. 138/- per month plus dearness allowance and transport equalization and subsequently in Hotel Midway House for a salary of Rs. 115/- he could hardly save and substantial amount for the purchase of plot or raising construction thereon with a huge investment. No doubt he stated that on account of sale of Bahadurabad house he had received a sum of Rs. 30.00/- as advanced money from the vendor on 1.3.1967 which was credited to his bank account, he failed to show by any concrete and satisfactoiy evidence that in fact the lay out plan as well as the building plan were approved by concerned agencies at his instance or that the actual construction was carried out under his supervision and from his investments. Admittedly he had obtained a loan for raising construction on the plot in Bahadurabad therefore he was under a legal duty to repay the said loan. It is therefore difficult to accept that with the receipt of advance money he was able to invest the said amount in the purchase of plot or to raise construction thereon. Mere production of a receipt for payment of Rs. 2,440/- to C.P. & Berar Cooperative Housing Society in the name of the defendant on his part in my view is neither sufficient nor satisfactoiy evidence of his investment in the purchase of the property. At any rate, there is no plausible circumstantial or documentary evidence to show that the plaintiff purchased the plot in suit or raised construction thereon by his own finances.
17. On the contrary the defendant soon after her marriage arid arrival in Karachi being a working woman and receiving a handsome amount from tuitions, appointment as teacher and subsequent assignment in the House Building Finance Corporation was in a better position to save a substantial amount for investment in the plot in suit. There is adequate documentary evidence to support the view that she had in the first instance obtained house building loan from House Building Finance Corporation in the sum of Rs. 40,000/- and subsequently realising that the said amount would not be sufficient to meet the cost of construction, she after redeeming the plot mortgaged with House Building Finance Corporation obtained loan amount to Rs. 55,000/- from Eastern Federal Union Insurance Company Ltd. There is over-whelming documentary evidence to substantiate the version of the defendant that she had repaid the house building loan as well as the loan amount to State Life Insurance Company the successor ofEastern Federal Union Insurance Company whereafter she secured an additional loan amounting to Rs. 35,000/- from House Building Finance Corporation. There is ample documentary evidence to show that at the time of giving evidence a sum of Rs. 19,175/- was outstanding against her as on 31.7.1989 on account of the additional loan of Rs. 35,000/- obtained from House Building Finance Corporation in the year 1978. Despite lengthy cross examination and searching questions put to her in the cross examination her testimony could not be shattered. She also produced documents to show that at different imes she had availed of over draft facility from the National Bank of Pakistan in the year 1967, 1969 and 1970 in order to complete the construction riased on the plot in suit. Besides the above resources she produced an statement Ex. 7/22 showing the availment of G.P. Fund advance from her G.P. Fund account maintained in the House Building Finance Corporation from time to time, in all amounting to Rs. 67,400/-. The amounts drawn in this statement relate to the period from December, 1970 to 15th August, 1988 repayable in installments and deducted at source from her salary and allowances. These circumstances evidently tend to prove that on the one hand she had been pending heavily on construction of the house on the plot in suit and on the other hand making efforts to pay off the outstanding loan against her secured from different agencies in order to obtain discharge of her liability and encumbrance on the property. As observed earlier, the defendant, was completely unaware of the subsequent additional loan obtained by her from House Building Finance Corporation to relieve her of the liability of Eastern Federal Union Insxirance Company Limited.
18. As regards possession of the house in question it is logical andquite natural that upto 1978 the parties lived therein as husband and wifebut in 1978 the plaintiff after contracting a second marriage shifted to flatNo. D-l, Haq Bahoo Plaza purchased by him in the name of his second wifeMst. Amina Naz. He attempted to show that he had lived in the property insuit with the second wife upto October, 1980 but his statement does notinspire much confidence and this assertion is not borne out by the evidenceon record.
19. Finding him on weak wicket learned counsel for the plaintiffcontended that the averments made in para 10 of the plaint being notdisputed in the corresponding para of written statement the facts statedtherein are deemed to be admitted. In para 10 of the plaint plaintiff statedthat after contracting second marriage with Mst. Amina Naz in 1978 hebrought her in the ground floor of the house in suit and started livingtherein where a daughter named Quratul Ain was born to him from thesecond wife. He claimed his stay in the said house upto October, 1980 but itwould not be correct to assume that the defendant did not controvert thisstatement in her written statement. A plain reading of para 10 thereofdiscloses a complete and emphatic denial of the averments made by theplaintiff. Besides denying the contents of para 10 specifically defendantstated that in fact the plaintiff at the relevant time was living in House No E-1-9/12 Malir Extension Colony, Karachi as evidenced by the power of attorney dated 28.10.1980 executed by the previous owner of Flat No. D-l Haq Bahoo Plaza, Gulshan-e-Iqbal in favour of the plaintiff. It was further stated that before shifting to Malir Extension Colony he was occupying Flat No. 9-8/14 Maymar Square Gulshan-e-Iqbal, Karachi. In support of this submission learned counsel relied upon Trustees of the Port of Chittagong v. River Steam Navigation Co. Ltd. (PLD 1965 SC 352) which is hardly attracted in the circumstances of the instant case because there is specific and emphatic denial of the plaintiffs averments in the written statement filed by the defendant.
20. With regard to the purchase of the property in suit in the name of the defendant as benami transaction, learned counsel relied upon the following cases:-
(1) Lakshmiah v. Kathand Rama (AIR 1925 PC 181).
(2) Mirza Ahmed v. Model Mills (AIR 1926 Nagpur 262).
(3) Muhammad. Sajjad Hussain v. Muhammad AnwarHussain (1991 SCMR 703).
(4) Kishwar Malik v. Muhammad Sadiq Malik (PLD 1995 SC457).In the Privy Council case, it was held that a purchase in India by a native of India of property in the name of his wife unexplained by other proved or admitted facts is to be regarded as benami transaction by which the beneficial interest in the property is in the husband although the ostensible title is the wife. The reported case is hardly of any assistance to the plaintiff in view of overwhelming evidence adduced by the defendant to the contraryIn Nagpur case it was observed that in view of the extraordinary prevalence of benami transactions in India, even a slight quantity of evidence may suffice to prove it. The facts of the reported case are quite different and distinguishable from the fact of the instant case. As there was no sufficient evidence from the side off the defendant in the cited case therefore the observation made in the cited case are not attracted in this caseIn Muhammad Sajjad Hussain's case Hon'ble Supreme Court of Pakistan laid down the following factors as criteria for determining the question whether the transaction is a benami or not? There are:-
(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 property; (iv) motive for the benami transaction.
Applying the said yard stick to the facts of this case, the authority supports the case of the defendant rather than the plaintiff.In Kishwar Malik's case Hon'ble Supreme Court of Pakistan declined to interfere with the concurrent findings of courts helow that the appellant was only a benamidar of the disputed property in the context of evidence on record and admitted fact of payment of entire price of the plot from the bank account of the respondent-husband.
21. Learned counsel for the plaintiff lastly contended that the defendant failed to lead definite evidence of investment of her finances in the construction of the house and mere sanction of house building loan by H.B.F.C. and Eastern Federal Union insurance Company as well as over draft facility by National Bank of Pakistan could not be treated as proof of the said amount having been spent on the construction of the house in suit. Be that as it may, the plaintiff failing to discharge the initial burden of proof of his own investments and purchase of the property in the name of the defendant is not entitled to depend on the so-called weakness of the case of the defendant which is otherwise sufficient and satisfactory to discard the testimony of the plaintiff. In this connection he also cited Ismail Dada Adam Soomar v. Short Banoo (PLD 1960 Karachi 852) and Muhammad Abdul Majeed v, Muhammad Jainul Abden (PLD 1970 Dacca 414). Both these cases were considered in the Supreme Court j udgment in the case of Muhammad Sajjad Hussain while laying down the principles for determining the issue whether a transaction is a benami or not ? On preponderance of the evidence however I find that the plaintiff has failed to establish his case by any reliable and satisfactory evidence. As a necessary corollary, I find that neither the property in suit was purchased by the plaintiff from his own funds nor is the defendant benami owner thereof. Likewise I am inclined to hold that the defendant had sufficient means and source of income to purchase the property in suitIssue No. 4.
22. On this issue, learned counsel for the defendant submitted that in view of the plaintiff deserting the defendant in 1978 after contracting the second marriage without the consent of the defendant and having no nexus with the property in suit, his claim for declaration and injunction brought in April, 1989 is time barred under Article 120 of the First Schedule to the Limitation Act which prescribes a period of six years from the date when the right to sue accrues. It is my considered vie that in fact and law no right to sue accrued to the plaintiff in March 1989 and the suit brought by him in April, 1989 is clearly misconceived, without any cause of action and barred by limitation. Learned counsel for the plaintiff did not bother the advanceany argument on this issue but, in para 18 of the plaintiff, it has been stated that the cause of action arose in or about 1967 and 1968 when the plaintiff puichased the plot in suit in the name of defendant as benami for himself and in or about January, February and March, 1989 when the defendant denied the title and ownership of the plaintiff over the plot in suit and the bungalow built thereon.
23. From the evidence, it transpires that the parties are livingseparately from each other since 1978 when the plaintiff married a secondwife and at any rate from October, 1980 when he shifted to Haq Bahoo Plazain Gulshan-e-Iqbal after the purchase of the flat in the name of his secondwife. Except the exchange of legal notices in February, 1989 and March,1989 there is hardly any evidence to show that the so called right of theplaintiff was denied and disputed for the first time in January to March.1989 as claimed. It seems that right to sue was not available to the plaintiffat any time after actual separation between the parties as reflected in theintimation sent by the plaintiff under section 7(1) of the uslim FamilyLaws Ordinance, 1961 and order passed by the Chairman, ConciliationCourt thereon, dated 1.4.1978 Exh. 6/29 but in order to create imaginarycause of action, after the issuance of a legal notice Exh. 6/17 and receipt ofits reply Exh. 6/18 he filed this suit which on the face of it is barred by time
and in fact without any valid cause of action.Issue No. 5:
24. For the aforesaid facts and reasons and in view of my findings onthe foregoing issues, suit is dismissed with costs.
(K.K.F.) Suit dismissed.
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