PLJ 2007 Karachi 237
Present: Khilji Arif Hussain, J.
SABA JAMIL and 3 others--Plaintiffs
versus
Mst. SULTANA WILAYAT and 4 others--Defendants
Suit No. 334 of 2001, decided on 27.3.2007.
Transfer of Property Act, 1882 (IV of 1882)--
----S. 52--Civil Procedure Code (V of 1908), O.XX, Rr. 13 & 18--Suit for partition and administration--Disputed property was purchased by the deceased in, his name--No point of time till the demise of the deceased owner, late husband was the owner of the property in-question--Statement of deceased owner allegedly relinquishing his right in the property in favour of late husband of the defendant admittedly purchased the property after selling his two properties in another city, in his own name, and till his death he used the property as owner--Late husband was the real owner of the property and (deceased owner) was benamidar owner--Acknowledgement of expenses incurred by him in development of the property he became owner of the same on the declaration of the deceased relinquishing his right in the property--Validity--Held: Section 52 Transfer of Property Act, required that right in case of tangible immovable property of the value of Rs.100 or more could be transferred only by a registered instrument--Value of property, in-question admittedly was more than Rs.100 and deceased had not transferred his right in the property in-question by executing registered instrument in this regard--Right in a property could be relinquished by a party if the deceased was owner of the property then the plea of defendant that deceased was the ostensible owner of the property and the real owner of the property was defendant's late husband would fall to ground--Some amount had been contributed by deceased which was his moral and legal obligation to help his father and family members to have better environment and accommodation, the same could not make the defendant husband as owner of the property--High Court, decreed the suit as prayed and final decree for sale of the property was ordered to be prepared, as properly could not be partitioned according to respective shares of the parties--Official Assignee was also directed to sell the property by inviting public offers--Parties, however, could participate in the auction to be held by Official Assignee/Receiver. [Pp. 242 & 243] A, B, D & E
2001 SCMR 1700; 1999 CLC 454; 1991 MLD 1182; 1999 CLC 404 and PLD 1982 SC 465 ref.
Benami Transaction--
----The word `Benami' is used to denote two classes of transactions which differ from each other in their legal character and incidents--In it signifies a transaction which is real, "Benami" is also occasionally used, perhaps not quite accurately, to refer to a sham transaction--Fundamental difference between these two classes of transactions is that whereas in the former case there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none and the transferor continues to retain the title notwithstanding the execution of the transfer deed--"Benami transaction" it is necessary that property must have been purchased by the person from his own money, for his own benefit, and he exercises right of ownership from the date of purchase of property as his own in the name of benami. [P. 243] C
Mr. Yawar Farooqui, Advocate for Plaintiffs.
Mr. Kanwar Majid, Advocate for Defendants.
Date of hearing: 9.2.2007.
Judgment
Plaintiff filed suit for partition and administration of property Bearing No. B-63, Block 13-D1, Gulshan-e-Iqbal, Karachi.
Brief facts for the purpose of deciding the listed suit are that late Wilayat Hussain son of late Abdul Sattar, grandfather of Plaintiffs Nos. 2 to 5 and father-in-law of Plaintiff No. 1 died on 26-1-1993 leaving behind at the time of his death two sons namely Dr. Athar and Anwar. Plaintiff No. 1's husband Dr. Muhammad Athar later died on 27-1-1996 in Saudi Arabia whereas other son, husband, of Defendant No. 1, namely Anwar also died on 26-1-1997. The Defendant No. 1, widow of late Wilayat Hussain also died during pendency of the suit. Defendant No. 2 is the widow and Defendants Nos. 3 to 5 are sons and daughter of late Anwar. Property Bearing No. B-63, Block 13-D1, Gulshan-e-Iqbal, Karachi stand in the name of the deceased Wilayat Hussain at the time of his death and according to the plaintiff form parts of the estate left by the deceased and present suit has been filed to administer/partition/and or sale of the state of the deceased Wilayat Hussain.
Defendants Nos. 1 to 5 filed joint written statement and stated that late Wilayat Hussain was the real owner of the property in question as according to them he was ostensible owner and real owner was late Anwar, husband of Defendant No. 2. It was stated in the written statement that property in question was neither purchased nor completed by the exclusive resources of deceased Wilayat Hussain in his life time. In 1982 incomplete structure of the property in question was purchased by the deceased Wilayat Hussain for a total consideration of Rs. 4,05,000 out of which deceased Wilayat Hussain contributed
Rs. 2,00,000 after selling his property situated at Lahore and the remaining amount of Rs. 2,05,000 was contributed by the late husband of Defendant No. 2. Incomplete structure was completed from the funds of late Anwar Kamal.
On 22-4-2002 preliminary decree was passed and parties were directed to appear before the Nazir to carry out the inquiry as envisaged under Order XX, Rule 13, C.P.C. The parties were allowed to file affidavit in evidence of their respective witnesses with an advance copy supplied to the other side. On 1-7-2004 instead of Nazir, Official Assignee was appointed as Receiver and he conducted further proceedings in the matter in terms of order dated 22-4-2002.
An application, C.M.A. No. 4234/04, was filed by the defendants for framing of issues as regard ostensible ownership of late Wilayat Hussain and Anwar Kamal being real owner. The said application was dismissed on 24-3-2005 with an observation that in case defendants were able to demonstrate that subject property does not form part of the estate of the deceased such property shall be excluded while passing final decree.
Heard Mr. Yawar Farooqui, learned counsel for the plaintiffs, and Mr. Kanwar Majid, learned counsel for the defendants.
Mr. Yawar Farooqui learned Advocate for the plaintiff argued that the property in question, at the time of death of the deceased Wilayat Hussain, was in the name of late Wilayat Hussain as such formed part of the estate of the deceased and plaintiffs are entitled for their share which they inherited from late husband of the Plaintiff No. 1.
On the other hand, Mr. Kanwar Majid, learned counsel for the defendant, vehemently argued that the deceased Wilayat Hussain purchased property in question in the year 1982 in an incomplete shape and out of total sale consideration of Rs. 4,05,000 he paid a sum of
Rs. 2,00,000 after selling his property at Lahore and remaining amount of Rs. 2,50,000 was paid by the late husband of Defendant No. 2 who was employed in a shipping company and was drawing a handsome salary from there. Mr. Kanwar Majid, learned counsel for the defendants, argued that at the time when property was purchased deceased husband of Plaintiff No. 1 was studying in Allama Iqbal Medical College at Lahore. It was contended by the learned counsel for the defendants that incomplete structure was gradually completed, from the exclusive resources of the deceased husband of Defendant No. 2 and in support of his contention he relied upon letters addressed by late Wilayat Hussain Exhs.DW.21 and DW.3/22. It was contended by the learned advocate for the defendants that late Wilayat Hussain in the presence of his wife, defendants and other members of the family declared that late husband of Defendant No. 2 Anwar Kamal contributed major portion of the amount and he relinquished his right in the property whatsoever in favour of Anwar Kamal who would be the real owner of the deceased. It was urther stated that though Defendant No. 1 after filing affidavit-in-evidence has not appeared in the witness-box and died before cross-examination but the affidavit-in-evidence can be looked into. Learned advocate in support of his contention relied upon the cases of Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700, Sakhi Muhammad v. Muhammad Nazir Bashir 1999 CLC 454, Mst. Anwar Begum and 7 others v. Syed Muhammad Siddique and others 1991 MLD 182, M/s. Master Sons v. M/s. Ebrahim Enterprises and others 1999 CLC 404, Allah Din v. Habib PLD 1982 SC 465.
I have taken into consideration respective arguments advanced by the learned advocates for the parties, perused the record. It is not disputed by any one of the parties that the property in question at the time of demise of Wilayat Hussain was in his name. The case of the defendant is that late Wilayat Hussain purchased the property in the year 1982 after disposing of his property at Lahore for a total sale consideration of Rs. 4,05,000 out of which Rs. 2,05,000 was contributed by the deceased husband of Defendant No. 2 and further considerable amount was contributed by him for the purpose of construction and renovation of the property in question. According to the learned advocate for the defendants in all a sum of Rs.6,00,000 was spent/contributed by the deceased husband of the Defendant No. 2 on the property in question and real owner of the property is late Anwar Kamal son of deceased Wilayat Hussain. Defendant No. 1 though not appeared in witness-box for the purpose of cross-examination without going into the question that such evidence cannot be looked into in her affidavit in evidence while narrating the facts hereinabove stated that the property was purchased by the late husband of the Defendant No. 1 and some amount was contributed by late Anwar Kamal son of deceased Wilayat Hussain for the purpose of renovation etc., further stated that on 26-8-1988 on the 4th anniversary of grandson, the deceased acknowledged financial contribution of his elder son in presence of the family members and had declared that he had relinquished his right in the suit property in favour of Anwar Kamal and called him as real owner. Syed Muhammad Shakeel also filed his affidavit in evidence in which he stated that late Wilayat Hussain relinquished his right in the property in favour of Anwar Kamal and called him as real owner and himself to be ostensible owner asked Anwar Kamal to get the property transferred in his name as required by law.
From the said two affidavits-in-evidence at best one can say that deceased Wilayat Hussain at the best on 26-8-1988 made statement in presence of some family members that the deceased Anwar Kamal has contributed some amount towards construction/purchase of the property in question and he had relinquished his right in the property in question and asked Anwar Kamal to get the property transferred in his name.
The Defendant No. 2 in her affidavit-in-evidence narrated same facts referred hereinabove.
Agreement of Sale Exh.DW3 has been placed on record from which it appears that property in question was purchased for a total sale consideration of Rs. 4,05,000 on 25-4-1982 out of which a sum of Rs.55,000 was paid at the time of agreement and balance amount of Rs.3,50,000 was to be paid at the time of registration of sale-deed. The deceased as required under Rule 3(l)(a) of Government Servants (Conduct) Rules, 1964 submitted a statement in the year 1982-83, 1984,85 about his assets in which he declared value of the property in question as Rs. 2,50,000 and purchased by him by selling two properties at Lahore in consideration of Rs.2,38,000. Admittedly, late Wilayat Hussain died on 26-1-1993 and even if it is accepted as alleged by the defendants that at the time of anniversary of his grandson late Wilayat Hussain declared that he relinquished all his rights in the property in favour of Anwar Kamal and called him as real owner and asked him to get the property transferred in his name, no evidence has been placed on record that after announcement, allegedly made, the deceased late husband of Defendant No. 2 thereafter used the property as exclusive owner of the same. The Defendant No. 2 during his cross-examination stated that issue of the house was only raised on the birthday and not discussed subsequently. From the facts narrated hereinabove it appears that property in question remained in the name of the deceased till his death nor it was accepted that Anwar Kamal accepted the relinquishment of right by Wilayat Hussain and any step was taken right from August 1985 till death of Wilayat Hussain in 1993 for the transfer of the property in the name of Anwar Kamal. From the facts narrated hereinabove it appears:--
(i) That the property in question was purchased by the deceased in his name.
(ii) That the late husband of Defendant No. 2 had contributed some amount for the purpose of construction of the property in question.
(iii) That at no point of time till the demise of Wilayat Hussain late Anwar Kamal alleged that he is the owner of the property in question, even after alleged statement of deceased allegedly relinquishing his right in the property in favour of Anwar Kamal.
(iv) Admittedly, deceased purchased the property after selling his two properties at Lahore, in his own name, and till death used the property as owner.
Section 52 of the Transfer of Property Act required that right in case of tangible immovable property of the value of Rs.100 can be transferred only by a registered instrument. Admittedly value of the property is more than Rs.100 and deceased has not transferred his right in the property in question by executing registered instrument in this regard.
Is it the case of the defendant that late husband of Defendant No. 2 was the real owner of the property and his father was benamidar owner or is it the case of the defendants that due to expenses incurred in the development of the property he became owner of the same or that in acknowledgement of expenses incurred by him in development of the property he became owner of the same on the declaration of the deceased relinquishing his right in the property?
A right in property can be relinquished by a party if party has ^ that right and if deceased was owner of the property then the plea of Defendant No. 2 that the deceased was the ostensible owner of the property and the real owner of the property was late Anwar Kamal comes to ground.
The word `Benami' is used to denote two classes of transactions which differ from each other in their legal character and incidents. In one sense, it signifies a transaction which is real, as for sample, when A sells properties to B but in the sale-deed mentions "X" as the purchaser. Here the sale itself is genuine but the real purchaser is B, "X" being his Benamidar. This is the class of transaction which is usually termed as Benami. But the word "Benami" is also occasionally used, perhaps not quite accurately, to refer to a sham transaction, as for example, when A purports to sell his property to B without intending that his title should cease or pass to B. The fundamental difference between these two classes of transactions is that whereas in the former case there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none and the transferor continued to retain the title notwithstanding the execution of the transfer deed.
To constitute a transaction as "benami transaction" it is necessary that property must have been purchased by the person from his own money, for his own benefit, and he exercises right of ownership from the date of purchase of property as his own in the name of benami/ostensible owner.
It is not the case of the defendants that late husband of the Defendant No. 2 that the property was purchased by late husband of Defendant No. 2 for himself and benami in the name of the deceased Wilayat Hussain and for all practicable purposes right from the date of purchase of the property it was known to deceased that real owner of the property is deceased Anwar Kamal and he is only benamidar. It was also not the case of the defendant that from the date of purchase of the property till the death of the deceased Wilayat Hussain, late husband of Defendant No. 2 ever exercised his right as real owner of the property in question. Merely because some amount has been contributed by the late husband of Defendant No. 2 being the son of late Wilayat Hussain, which in my humble view was his moral and legal obligation to help his father and family members to have better environment and accommodation, the same cannot make deceased Anwar Kamal as owner of the property.
For foregoing reasons, suit is decreed as prayed and final decree for sale of the property be prepared, as property cannot be partitioned according to respective shares of the parties. Official Assignee who is Receiver of the property, is directed to sell the property by inviting public offers. The parties can participate in the auction to be held by the Official Assignee/Receiver. Various case laws relied upon by the learned advocate for the defendants; however, in view of the above, need not to be discussed in detail and are not relevant for the purpose of deciding the issue in the suit.
(R.A.) Suit decreed
Present: Khilji Arif Hussain, J.
SABA JAMIL and 3 others--Plaintiffs
versus
Mst. SULTANA WILAYAT and 4 others--Defendants
Suit No. 334 of 2001, decided on 27.3.2007.
Transfer of Property Act, 1882 (IV of 1882)--
----S. 52--Civil Procedure Code (V of 1908), O.XX, Rr. 13 & 18--Suit for partition and administration--Disputed property was purchased by the deceased in, his name--No point of time till the demise of the deceased owner, late husband was the owner of the property in-question--Statement of deceased owner allegedly relinquishing his right in the property in favour of late husband of the defendant admittedly purchased the property after selling his two properties in another city, in his own name, and till his death he used the property as owner--Late husband was the real owner of the property and (deceased owner) was benamidar owner--Acknowledgement of expenses incurred by him in development of the property he became owner of the same on the declaration of the deceased relinquishing his right in the property--Validity--Held: Section 52 Transfer of Property Act, required that right in case of tangible immovable property of the value of Rs.100 or more could be transferred only by a registered instrument--Value of property, in-question admittedly was more than Rs.100 and deceased had not transferred his right in the property in-question by executing registered instrument in this regard--Right in a property could be relinquished by a party if the deceased was owner of the property then the plea of defendant that deceased was the ostensible owner of the property and the real owner of the property was defendant's late husband would fall to ground--Some amount had been contributed by deceased which was his moral and legal obligation to help his father and family members to have better environment and accommodation, the same could not make the defendant husband as owner of the property--High Court, decreed the suit as prayed and final decree for sale of the property was ordered to be prepared, as properly could not be partitioned according to respective shares of the parties--Official Assignee was also directed to sell the property by inviting public offers--Parties, however, could participate in the auction to be held by Official Assignee/Receiver. [Pp. 242 & 243] A, B, D & E
2001 SCMR 1700; 1999 CLC 454; 1991 MLD 1182; 1999 CLC 404 and PLD 1982 SC 465 ref.
Benami Transaction--
----The word `Benami' is used to denote two classes of transactions which differ from each other in their legal character and incidents--In it signifies a transaction which is real, "Benami" is also occasionally used, perhaps not quite accurately, to refer to a sham transaction--Fundamental difference between these two classes of transactions is that whereas in the former case there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none and the transferor continues to retain the title notwithstanding the execution of the transfer deed--"Benami transaction" it is necessary that property must have been purchased by the person from his own money, for his own benefit, and he exercises right of ownership from the date of purchase of property as his own in the name of benami. [P. 243] C
Mr. Yawar Farooqui, Advocate for Plaintiffs.
Mr. Kanwar Majid, Advocate for Defendants.
Date of hearing: 9.2.2007.
Judgment
Plaintiff filed suit for partition and administration of property Bearing No. B-63, Block 13-D1, Gulshan-e-Iqbal, Karachi.
Brief facts for the purpose of deciding the listed suit are that late Wilayat Hussain son of late Abdul Sattar, grandfather of Plaintiffs Nos. 2 to 5 and father-in-law of Plaintiff No. 1 died on 26-1-1993 leaving behind at the time of his death two sons namely Dr. Athar and Anwar. Plaintiff No. 1's husband Dr. Muhammad Athar later died on 27-1-1996 in Saudi Arabia whereas other son, husband, of Defendant No. 1, namely Anwar also died on 26-1-1997. The Defendant No. 1, widow of late Wilayat Hussain also died during pendency of the suit. Defendant No. 2 is the widow and Defendants Nos. 3 to 5 are sons and daughter of late Anwar. Property Bearing No. B-63, Block 13-D1, Gulshan-e-Iqbal, Karachi stand in the name of the deceased Wilayat Hussain at the time of his death and according to the plaintiff form parts of the estate left by the deceased and present suit has been filed to administer/partition/and or sale of the state of the deceased Wilayat Hussain.
Defendants Nos. 1 to 5 filed joint written statement and stated that late Wilayat Hussain was the real owner of the property in question as according to them he was ostensible owner and real owner was late Anwar, husband of Defendant No. 2. It was stated in the written statement that property in question was neither purchased nor completed by the exclusive resources of deceased Wilayat Hussain in his life time. In 1982 incomplete structure of the property in question was purchased by the deceased Wilayat Hussain for a total consideration of Rs. 4,05,000 out of which deceased Wilayat Hussain contributed
Rs. 2,00,000 after selling his property situated at Lahore and the remaining amount of Rs. 2,05,000 was contributed by the late husband of Defendant No. 2. Incomplete structure was completed from the funds of late Anwar Kamal.
On 22-4-2002 preliminary decree was passed and parties were directed to appear before the Nazir to carry out the inquiry as envisaged under Order XX, Rule 13, C.P.C. The parties were allowed to file affidavit in evidence of their respective witnesses with an advance copy supplied to the other side. On 1-7-2004 instead of Nazir, Official Assignee was appointed as Receiver and he conducted further proceedings in the matter in terms of order dated 22-4-2002.
An application, C.M.A. No. 4234/04, was filed by the defendants for framing of issues as regard ostensible ownership of late Wilayat Hussain and Anwar Kamal being real owner. The said application was dismissed on 24-3-2005 with an observation that in case defendants were able to demonstrate that subject property does not form part of the estate of the deceased such property shall be excluded while passing final decree.
Heard Mr. Yawar Farooqui, learned counsel for the plaintiffs, and Mr. Kanwar Majid, learned counsel for the defendants.
Mr. Yawar Farooqui learned Advocate for the plaintiff argued that the property in question, at the time of death of the deceased Wilayat Hussain, was in the name of late Wilayat Hussain as such formed part of the estate of the deceased and plaintiffs are entitled for their share which they inherited from late husband of the Plaintiff No. 1.
On the other hand, Mr. Kanwar Majid, learned counsel for the defendant, vehemently argued that the deceased Wilayat Hussain purchased property in question in the year 1982 in an incomplete shape and out of total sale consideration of Rs. 4,05,000 he paid a sum of
Rs. 2,00,000 after selling his property at Lahore and remaining amount of Rs. 2,50,000 was paid by the late husband of Defendant No. 2 who was employed in a shipping company and was drawing a handsome salary from there. Mr. Kanwar Majid, learned counsel for the defendants, argued that at the time when property was purchased deceased husband of Plaintiff No. 1 was studying in Allama Iqbal Medical College at Lahore. It was contended by the learned counsel for the defendants that incomplete structure was gradually completed, from the exclusive resources of the deceased husband of Defendant No. 2 and in support of his contention he relied upon letters addressed by late Wilayat Hussain Exhs.DW.21 and DW.3/22. It was contended by the learned advocate for the defendants that late Wilayat Hussain in the presence of his wife, defendants and other members of the family declared that late husband of Defendant No. 2 Anwar Kamal contributed major portion of the amount and he relinquished his right in the property whatsoever in favour of Anwar Kamal who would be the real owner of the deceased. It was urther stated that though Defendant No. 1 after filing affidavit-in-evidence has not appeared in the witness-box and died before cross-examination but the affidavit-in-evidence can be looked into. Learned advocate in support of his contention relied upon the cases of Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700, Sakhi Muhammad v. Muhammad Nazir Bashir 1999 CLC 454, Mst. Anwar Begum and 7 others v. Syed Muhammad Siddique and others 1991 MLD 182, M/s. Master Sons v. M/s. Ebrahim Enterprises and others 1999 CLC 404, Allah Din v. Habib PLD 1982 SC 465.
I have taken into consideration respective arguments advanced by the learned advocates for the parties, perused the record. It is not disputed by any one of the parties that the property in question at the time of demise of Wilayat Hussain was in his name. The case of the defendant is that late Wilayat Hussain purchased the property in the year 1982 after disposing of his property at Lahore for a total sale consideration of Rs. 4,05,000 out of which Rs. 2,05,000 was contributed by the deceased husband of Defendant No. 2 and further considerable amount was contributed by him for the purpose of construction and renovation of the property in question. According to the learned advocate for the defendants in all a sum of Rs.6,00,000 was spent/contributed by the deceased husband of the Defendant No. 2 on the property in question and real owner of the property is late Anwar Kamal son of deceased Wilayat Hussain. Defendant No. 1 though not appeared in witness-box for the purpose of cross-examination without going into the question that such evidence cannot be looked into in her affidavit in evidence while narrating the facts hereinabove stated that the property was purchased by the late husband of the Defendant No. 1 and some amount was contributed by late Anwar Kamal son of deceased Wilayat Hussain for the purpose of renovation etc., further stated that on 26-8-1988 on the 4th anniversary of grandson, the deceased acknowledged financial contribution of his elder son in presence of the family members and had declared that he had relinquished his right in the suit property in favour of Anwar Kamal and called him as real owner. Syed Muhammad Shakeel also filed his affidavit in evidence in which he stated that late Wilayat Hussain relinquished his right in the property in favour of Anwar Kamal and called him as real owner and himself to be ostensible owner asked Anwar Kamal to get the property transferred in his name as required by law.
From the said two affidavits-in-evidence at best one can say that deceased Wilayat Hussain at the best on 26-8-1988 made statement in presence of some family members that the deceased Anwar Kamal has contributed some amount towards construction/purchase of the property in question and he had relinquished his right in the property in question and asked Anwar Kamal to get the property transferred in his name.
The Defendant No. 2 in her affidavit-in-evidence narrated same facts referred hereinabove.
Agreement of Sale Exh.DW3 has been placed on record from which it appears that property in question was purchased for a total sale consideration of Rs. 4,05,000 on 25-4-1982 out of which a sum of Rs.55,000 was paid at the time of agreement and balance amount of Rs.3,50,000 was to be paid at the time of registration of sale-deed. The deceased as required under Rule 3(l)(a) of Government Servants (Conduct) Rules, 1964 submitted a statement in the year 1982-83, 1984,85 about his assets in which he declared value of the property in question as Rs. 2,50,000 and purchased by him by selling two properties at Lahore in consideration of Rs.2,38,000. Admittedly, late Wilayat Hussain died on 26-1-1993 and even if it is accepted as alleged by the defendants that at the time of anniversary of his grandson late Wilayat Hussain declared that he relinquished all his rights in the property in favour of Anwar Kamal and called him as real owner and asked him to get the property transferred in his name, no evidence has been placed on record that after announcement, allegedly made, the deceased late husband of Defendant No. 2 thereafter used the property as exclusive owner of the same. The Defendant No. 2 during his cross-examination stated that issue of the house was only raised on the birthday and not discussed subsequently. From the facts narrated hereinabove it appears that property in question remained in the name of the deceased till his death nor it was accepted that Anwar Kamal accepted the relinquishment of right by Wilayat Hussain and any step was taken right from August 1985 till death of Wilayat Hussain in 1993 for the transfer of the property in the name of Anwar Kamal. From the facts narrated hereinabove it appears:--
(i) That the property in question was purchased by the deceased in his name.
(ii) That the late husband of Defendant No. 2 had contributed some amount for the purpose of construction of the property in question.
(iii) That at no point of time till the demise of Wilayat Hussain late Anwar Kamal alleged that he is the owner of the property in question, even after alleged statement of deceased allegedly relinquishing his right in the property in favour of Anwar Kamal.
(iv) Admittedly, deceased purchased the property after selling his two properties at Lahore, in his own name, and till death used the property as owner.
Section 52 of the Transfer of Property Act required that right in case of tangible immovable property of the value of Rs.100 can be transferred only by a registered instrument. Admittedly value of the property is more than Rs.100 and deceased has not transferred his right in the property in question by executing registered instrument in this regard.
Is it the case of the defendant that late husband of Defendant No. 2 was the real owner of the property and his father was benamidar owner or is it the case of the defendants that due to expenses incurred in the development of the property he became owner of the same or that in acknowledgement of expenses incurred by him in development of the property he became owner of the same on the declaration of the deceased relinquishing his right in the property?
A right in property can be relinquished by a party if party has ^ that right and if deceased was owner of the property then the plea of Defendant No. 2 that the deceased was the ostensible owner of the property and the real owner of the property was late Anwar Kamal comes to ground.
The word `Benami' is used to denote two classes of transactions which differ from each other in their legal character and incidents. In one sense, it signifies a transaction which is real, as for sample, when A sells properties to B but in the sale-deed mentions "X" as the purchaser. Here the sale itself is genuine but the real purchaser is B, "X" being his Benamidar. This is the class of transaction which is usually termed as Benami. But the word "Benami" is also occasionally used, perhaps not quite accurately, to refer to a sham transaction, as for example, when A purports to sell his property to B without intending that his title should cease or pass to B. The fundamental difference between these two classes of transactions is that whereas in the former case there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none and the transferor continued to retain the title notwithstanding the execution of the transfer deed.
To constitute a transaction as "benami transaction" it is necessary that property must have been purchased by the person from his own money, for his own benefit, and he exercises right of ownership from the date of purchase of property as his own in the name of benami/ostensible owner.
It is not the case of the defendants that late husband of the Defendant No. 2 that the property was purchased by late husband of Defendant No. 2 for himself and benami in the name of the deceased Wilayat Hussain and for all practicable purposes right from the date of purchase of the property it was known to deceased that real owner of the property is deceased Anwar Kamal and he is only benamidar. It was also not the case of the defendant that from the date of purchase of the property till the death of the deceased Wilayat Hussain, late husband of Defendant No. 2 ever exercised his right as real owner of the property in question. Merely because some amount has been contributed by the late husband of Defendant No. 2 being the son of late Wilayat Hussain, which in my humble view was his moral and legal obligation to help his father and family members to have better environment and accommodation, the same cannot make deceased Anwar Kamal as owner of the property.
For foregoing reasons, suit is decreed as prayed and final decree for sale of the property be prepared, as property cannot be partitioned according to respective shares of the parties. Official Assignee who is Receiver of the property, is directed to sell the property by inviting public offers. The parties can participate in the auction to be held by the Official Assignee/Receiver. Various case laws relied upon by the learned advocate for the defendants; however, in view of the above, need not to be discussed in detail and are not relevant for the purpose of deciding the issue in the suit.
(R.A.) Suit decreed
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