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