Sunday 3 June 2012

When benamidar is dismissed inheritance law is applicable

PLJ 2002 Karachi 143

Present: zahid kurban alavi, J.

DIN MUHAMMAD WAGON-Plaintiff  ,

versus

Mst. RASHIDA KHATOON (deceased) through her L.Rs and others—Defendants

Suit No. 413 of 1986, decided on 14.1.2002. (i)

Benami Transaction--

—Burden to prove that property in question, was purchased by him through his own resources was on plaintiff but he failed to produce any
document to that effect-Documents produced by plaintiff were in the name of his wife—Plaintiff had not produced anything on record to show
that price of property in question, was paid by him out of his own resources—Plaintiff, thus, failed to prove Benami Transaction of property
in question.                                :                                               [P. 147] A & B

(ii) Muhammadan Law-

—-Inheritance-Defendant admitted by being sister of deceased who had died issueless, was the only heir alongwith plaintiff being husband of deceased
lady-Parties being Sunni Hanfi, defendant was entitled as sister as per Hanafi law of inheritence-'Plaintiff being husband of his issueless wife
would also be initiated as per Hanif Law of Inheritance-Plaintiff s suit to be owner of entire estate of deceased as Banamider was dismissed in
circumstances.                                                               [P. 148] C & D

Mr. AH Muhammad Memon, Advocate for Plaintiff. Mr. Muhammad Zia Kiyani, Advocate for Defendants. Date of hearing : 5.12.2001.

judgment

This is a suit for declaration and injunction wherein the plaintiff has prayed for the following relief;

(a) Declaring that the said Mst. Farkhanda Khatoon deceased wife of the plaintiff was only an ostensible owner (benamidar) and that the plaintiff was always and is the real, beneficial and absolute owner of the following immovable and movable properties including the gold ornaments and cash :--

(i) Plot of land Bearing No. B-295 measuring 435-55 sq. yds. with house thereon situated in Block-L North Nazimabad, Karachi;

(ii) Un-official!y sub-divided Plot No. 101 measuring 500 sq. yds. forming part of Survey No. 304 situated in Deh Mehroon Tappo Malir Taluka and District Karachi known as Far hat Bagh;


3) Residential Plot No. 226 on sector 50-6 measuring 1136 sq.yds. situated in Korangi, Karachi;

(iv) all gold ornaments, cash and other valuable articles lying in Locker No. 87 in the United Bank Ltd, Taimuria Branch near Farkhanda Square, Block-L, North Nazimabad, Karachi;

(v) sum of Rs. 1,30,000/- given as friendly loan to Tafiq Nazeer and on receipt thereof the plaintiff is competent to give a valid discharge for the same;

(vi) Further declaring that the defendant as sister and/or legal heir of the said Mst. Farkhanda Khatoon has no right or title to receive any share or interest in the aforesaid immovable and movable properties including cash and gold ornaments and other valuable articles lying in the said Locker and the said loan of Rs. 1,30,OOO/-;

(vii) prohibiting and restrained the defendant by permanent injunction from making any claim adverse to the interest of the plaintiff in respect of the said immovable and movable properties including gold ornaments and cash etc. in the said Locker and the said sum of Rs. 1,30,000/-"

Briefly the facts of the case are that plaintiff belongs to a respectable zamindar family of District Nawabshah. The plaintiffs father died in the year 1948 leaving behind agricultural lands, cash and other movable and immovable properties which were inherited by the plaintiff and his brothers and sisters. It is the case of the plaintiff that in private partition agricultural lands measuring 107 acres and 24 ghuntas situated in Deh Chanari and Deh Kanghal Taluka Naushero Feroz District Nawabshah alongwith residential houses, gold ornaments ,and cash came to the share of plaintiff. It is further averred by the plaintiff that he had been studying in Karachi and in the year 1950 he was employed as a Sub-Inspector in Excise Department where he served for about two years and resigned. It is further asserted by the plaintiff that he maintains two residential houses, one 'at Darya Khan Mari and another at Karachi. During the period when the plaintiff was student he came into contact with a displaced family from Cawnpur (U.P. India) and the said family consisted of an elderly lady and her two grand-daughters named Mst. Farkhanda Khatoon and Rashida Khatoon. Mst. Farkhanda Khatoon was already married at the time of migration to Pakistan but was residing with her grand-mother because her husband did not maintain her properly. It is further contended by the plaintiff that in the year 1950 said Mst. Farkhanda Khatoon filed Suit No. 268 of 1950 for dissolution of her marriage which was decreed and her marriage was dissolved. It is further averred by the plaintiff that said grand mother was a kind hearted lady and treated him with affection and he used to help her in time of need. During this period the plaintiff became interested in Mst. Farkhanda Khatoon and requested the grand mother that he wanted to marry the said lady. The grand  mother accepted the  proposal  after  consulting Mst.   Farkhanda Khatoon. The grand mother informed the plaintiff that she is not in a position to give ornaments, clothes or other dowery articles and ultimately on 21.3.1951 he was married with Mst. Farkhanda Khatoon and dower was fixed at Rs. 1100/-. Out of wedlock they have no child. It is further contended            that Mst. Farkhanda Khatoon had no independent source of income and she did not get anything by way of dowery at the time of her marriage with the plaintiff and she had not abandoned any property in India as 'such she did not get any compensation in Pakistan. It is further contended by the plaintiff

that he being a man of means maintained his wife properly and purchased   gold ornaments for her use in' her name though the never gifted the same to her. It is further asserted by the plaintiff that on or about 1960 he purchased from M/s. National Estates & Construction Co. Ltd House No. R-1010 measuring 120  sq.  yds.  in Block-9,  Dastagir,  F.B.  Area,  Karachi in consideration of Rs. 9.000/- and spent and additional sum of Rs. 7,000/- on improvement of the said house. The Coneveyance Deed was, however, executed benami in the name of said Mst. Farkhanda Khatoon but the real beneficial and absolute interest in the said house always vested in the plaintiff and said lady was an ostensible owner. The said house was sold in        the year 1973. In the year 1964 the plaintiff purchased from the aforesaid Company Plot No. B-295 situated in Block-L North Nazimabad, Karachi from his income arising out of agricultural lands in the name of his wife. In   the year 1952 the plaintiff also purchased benami in the name of said Mst. Farkhanda Khatoon 500 sq.yds. agricultural land forming part of Survey No. 304 un-officially divided Sub-Plot No. 101 in Deh Mehroon Tappo Malir Taluka and District Karachi known as Far hat Bagh. It is further contended by the plaintiff that in the year 1971 he obtained from K.D.A. residential Plot No. 226 in Sector 50-C measuring 1136 sq. yds. situated in Korangi Karachi in the name of his wife as benami. It is submitted by the plaintiff that siad Mst. -Farkhanda Khatoon did not have any child, therefore, with her consent the plaintiff married Mst Irshad Begum on 26.4.1979. The plaintiff obtained Locker No. 87 in U.B.L. Taimura Branch near Farhana Square Block-L North Nazimabad, Karachi and kept all gold ornaments of his two wives therein and gave a friendly loan of Rs. 1,30,000/- to Tariq        Nazeer and obtained receipt of the said loan in the name of Mst. Farkhanda .khatoon. The said lady died on 9.7.1983 and after her death the plaintiff applied to K.D.A. for mutation of Plot No. 226 Sector 50-C Korangi, Karachi which was mutated in his name on 7.12.1983, and Plot No. B-295 Block-L further the case of the plaintiff that during the life time of Mst. Farkhanda Khatoon and after her death he had always been and continues to be in actual physical possession of said immovable properties. In May, 1986 the plaintiff has been served with a notice of this Court whereby he came to know that defendant on or about 22.3.1986 filed S.M.A. No. 84 of 1986 and i           claims half share in the properties. Since a closed in likely to be cast on the i  absolute real and beneficial interest of the plaintiff in the said immovable i      --""'-        and movable properties, therefore, he has filed this suit with aforesaid j       prayers. j         The  defendant has filed the written  on  9.12.1986

1                                (i)    the suit as framed is not maintainable in law;

 (ii) the suit is not maintainable in law as no right guaranteed or secured to the plaintiff under any law or settlement to deprive the defendant from her legal share in the properties of late Mst. Farkhanda Khatoon real sister of defendant, which is secured and guaranteed to the defendant under Muslim Law ;

(iii) the suit is hit by the provisions of estople.

Inspite of above legal pleas the defendant has generally denied the allegations levelled by the plaintiff. She has pointed out that out of two residential houses wherein the plaintiff resides Mst. Farkhanda Khatoon and purchased the house Bearing No. B-296 Block-L North Nazimabad, Karachi. It is further averred by the defendant that grand mother of her was a kind hearted lady and treated the plaintiff with affection and she also financial helped the plaintiff from time to time during her life time. It is also asserted by the defendant that at the time of marriage of Mst. Farkhanda Khatoon a large number of golden ornaments, clothes and other dowery articles were given as the plaintiff was not in a position to give anything to Mst. Farkhanda Khatoon due to his newly service. Mst. Farkhanda Khat,oon always used to live at Karachi in her own house and during the entire period of wedlock she visited on few occasions to Darya Khan. The properties referred to by the plaintiff were purchased by said Mst. Farkhanda Khatoon and the plea of benamidar is taken only to deprive her from her legal and just share in properties of her sister. The defendant filed S.M.A. No. 84 of 1986 wherein the plaintiff filed objections and said matter was disposed of 7.9.1986 with directions that the parties to move appropriate civil Court for adjudication of their respective rights. The plea of plaintiff being owner of Rs. 1,30,000/- given to Tariq Nazeer as friendly loan and other valuable golden articles are in fact be long to Mst. Farkhanda Khatoon as well as articles lying in the Locker. The mutation of some of the properties in the name of the plaintiff were due to collusion with the staff of department and were without any Court's order and are void illegal.

Out of the above pleadings the following issues were settled by the Court on 29.3.1987;

(i) Whether the property in suit was purchased by the plaintiff in the name of deceased MsL Farkhanda Khatoon and was a benami transaction ?

(ii) If not, whether Mst. Rashida Khatoon will inherit the same from the deceased ?

(iii) Whether the suit is maintainable in law ?

In support of his case the plaintiff examined himself and produced certain documents of properties which are all in the name Mst. Farkhanda khatoon. The defendant filed her affidavit in evidence and was partly cross-examined in Court, on 15.4.1999. On 5.5.2000 Mr. Abdul Wahid, Advocate was appointed Commissioner to record further evidence of Mst. Rashida Khatoon as she was not keeping well and unable to attend this Court for cross-examination. Thereafter her cross was completed on 13.5.2000. The defendant also examined Muhammad Zubair Shamsi and Tariq Nazeer,

I have heard the learned counsel for the plaintiff and defendant at length and have also perused the evidence carefully. My findings on the above issues are as follows :

ISSUE NO. 1.

The burden to prove this issue heavily lies on the plaintiff whether the properties in suit were purchased by him as benami in the name of his wife Mst, Farkhanda Khatoon. The documents produced by the plaintiff were all in the name of Mst. Farkhanda Khatoon. He has not produced anything on record to show that the price of land were paid by him out of own resources. In the case of Musheer Ahmed Pesh Imam vs. Razia Omer (1991 CLC 678) it was observed as follows :

"The burden is on the plaintiff to show that he has aprima facie case existing in his favour to the effect that the transaction involved in the suit was a Banami transaction; and that the plaintiff was the real owner while the defendant was only ostensible owner. In order to substantiate the above, the plaintiff is required to show at least two facts; firstly, that the purchase price was paid by the plaintiff from out of his resources and that he had appropriated or had a control over the usufrust of the property in dispute."

In the present case except the documents of the property the plaintiff has not filed any proof to show that he had paid the amount as benami. In his cross-examination he has stated as follows ;

"I was serving in Excise Department at karachi as Sub-Inspector and my salary was about Rs. 250/- It is a fact that I have paid occupancy charges as well as ground rent in respect of Plot No. 226 on 11.11.1983 in respect of Plot No. B-295 on 9.1.1984. The locker in UBL was taken by my wife. It is a fact that I have stated in my petition that expect myself none else is legal heir of my wife Farkhanda. It is a fact that in the said petition I have admitted 50% share of defendant in the suit.

From the above it is abundantly clear that the plaintiff has made contradictory statements. My finding on this is in the negative.

ISSUE NO. 2.

It is a fact that defendant is real sister of Mst. Farkhanda Khatoon who dies issueless and the plaintiff was the only heir being husband of deceased. The Defendant ws also residing with the deceased till her death, and belongs to Sunni Hanafi Muslim Law. She is entitled to her share as per said Sunni law. My finding on the aforesaid issue in the affirmative.

ISSUE NO. 3.

In view of my above findings and the evidence on record I feel that the plaintiff has not been able to prove his case of benamidar and his suit is to be dismissed.

For the foregoing reasons the suit of the plaintiff is dismissed with no order as to costs.

(A.A.)                                                                                  Suit dismissed.


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