PLJ 2015 Islamabad
versus
MUSA KHAN, etc.--Respondents
Benami--
----Essential ingredients--It is an established principle of law
that any person claiming benami has to prove
following elements as, source of income, from whose custody original title deed
and other documents came in evidence, who is in
possession of suit property and motive for benami
transaction. [P. 106] A
2005 SCMR 577, 1991 SCMR 703 & 1994 CLC 1437, ref.
----Property was purchased on basis of mala fide--Misrepresentation or mala
fide--In order to prove benami has to prove
source of income, custody to title documents, possession of property and motive
in benami transaction--Validity--Evidence adduced by
plaintiff was to effect that money for purchase of property was provided by him
and that no independent source of income--Challenge to a transaction is not bona fide when husband and wife were
amicably living it was accepted valid but subsequently when relationship is
strained title is claimed exclusively--Plaintiff had failed to prove benami--Appeal was accepted. [P. 107] B & C
PLJ 2010 SC 846, rel.
Date of hearing: 11.3.2015.
Judgment
Aamer
Farooq, J.--This appeal is directed against
judgment and decree dated 14.03.1987 whereby the suit filed by Musa Khan,
predecessor-in-interest of Respondents No. 1 to 5, was decreed and it was
declared that he is the owner of plot Bearing No. 770 measuring 166.6/9 Square
Yard situated at Sector G-9/4, Islamabad (the property).
2.
The facts, in brief, are that the predecessor of Respondents No. 1 to 5
namely Musa Khan filed a suit for declaration and injunction against the
appellant with respect to the property on the basis that the property was
purchased in the name of the appellant, however, the funds for it were provided
by him and were deposited from England in a jointly operated account maintained
with MCB Bank Limited, Islamabad. It was further alleged in the plaint that
since the plaintiff was not in the Country, therefore, the property was
purchased in the name of the appellant on the basis of mala fide. It was
further submitted that on 12.03.1982 a notice was published in the daily 'Jang'
wherein it was categorically provided that the property is owned by him. The
suit was contested by the appellant and in the written statement legal as well
as factual objections were taken. It was categorically denied that the property
was purchased out of the money sent by Musa Khan from U.K. or that there was
any misrepresentation or mala fide. The appellant in her defence
specifically submitted that the possession of the property is with her and she
has leased out the same and is receiving the rent. Out of the pleadings of the
parties, learned trial Court framed the following issues:
Issues:
1. Whether this Court lacks jurisdiction to
entertain the suit?
2. Whether the plaintiff has locus standi
to bring the action? OPD
3. Is the suit
incompetent in its present form?
4. Is the suit is bad for non-joinder and mis-joinder of
necessary parties? OPD
5. Is the suit incorrectly valued for the
purpose of Court fee and jurisdiction? OPD
6. Whether the plaintiff is the actual owner
of the suit plot & Defendant No. 1 is a benamy?
7. Whether the plaintiff is entitled to the
declaration & injunction prayed for on the grounds detailed in the plaint?
8. Relief.
3. In support of his
claim Musa Khan adduced the following witnesses:--
i. Musa Khan PW-6
ii. Gul Zaman PW-1
iii. Sher Ahmed Khan PW-2
iv. Ameer Afsar, Manager MCB
Bank, PW-3
v. Syed
Muhammad Saqlain Naqvi,
Manager MCB Bank, PW-3
vi. Lal Khan PW-4
vii. Muhammad
Naeem PW-5
viii. Muhammad
Ramzan PW-6.
Mst. Ashrim Bibi appeared as DW-1.
4. The parties also led
the documentary evidence i.e. copy of passport of Mst. Ashram Bibi Ex.P-1, copy of I.D. card
of Mst. Ashram Bibi
Ex.P-2, copy of application for transfer of allotment of plot Ex.P-3, copy of
application for allotment of plot Ex.P-4, copy of bank draft Ex.P-3/A, receipt
of MCB Bank regarding Bank draft Ex.P-5, copy of letter issued by Yusaf & Co. Mark-A, copy of application form of MCB
Bank Mark-B. The documentary evidence led by Mst. Ashram Bibi was copy of completion
certificate Ex.D-1, copy of letter for permission to occupy the building
Ex.D-2, copy of family suit filed by Defendant No. 1 Ex.D-3, copy of decree of
family suit in favour of Mst. Ashram Bibi Ex.D-4, copy of account
opening form Mark-A, copy of application filed by Mst. Ashram Bibi Mark-B.
5. The Trial Court vide judgment and decree dated
04.03.1987 decreed the suit in favour of Musa Khan,
hence the present appeal.
6. Learned counsel for
the appellant inter alia submitted that in light of law laid down by the
Hon'ble Supreme Court of Pakistan in case titled Muhammad Sajjad Hussain v. Muhammad Anwar Hussain
cited as 1991 SCMR 703 in order to prove benami a
party has to prove source of money from which the property was purchased,
custody of title documents, possession of the property and motive in the Benami transaction. It was further contended that the plain
reading of the plaint shows that the plaintiff has not alleged the four
ingredients of Benami and also has failed to prove
the same. Respondents No. 1 to 5 were ordered to be proceeded ex-parte vide order dated 22.09.2014.
7. Learned counsel for
Respondent No. 7 namely Capital Development Authority (CDA) supported the
version of the appellant and submitted that as per record the appellant
purchased the property in her name.
8. It is an established
principle of law that any person claiming Benami has
to prove the four elements as in accordance with the decision of the Superior
Courts of the Country which are as follows:--
(i) Source
of income.
(ii) From whose custody the original title deed
and other documents came in evidence.
(iii) Who is in possession of suit property and
(iv) Motive for Benami
transaction.
The Hon'ble
Supreme Court of Pakistan in the case titled Abdul Majeed v. Amir Muhammad (2005 SCMR
577) approved the law laid down in the case titled Muhammad Sajjad Hussain
v. Muhammad Anwar Hussain (1991 SCMR 703) supra
and Jane Margrete
William versus Abdul Hamid Mian
(1994 CLC 1437) and highlighted the four considerations for deciding the
question of Benami character of transaction. These
considerations are as follows:--
(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.
9. The plaintiff in the
suit did not allege all the four elements mentioned above and the emphasis was
only to the effect that money for the purchase of the property was provided by
him and that since he was in U.K. therefore, the property was purchased by Mst. Ashram Bibi
(the appellant) in her name through misrepresentation and mala fide.
Insofar as the question of custody of title documents and possession of the
property was concerned, no submission was made in the plaint. Likewise, the
evidence adduced by the plaintiff was to the effect that the money for the
purchase of the property was provided by him and that Mst. Ashram Bibi had no independent source
of income. In the case titled Ghulam Murtaza v. Mst. Asia Bibi and others (PLJ 2010 SC 846) the Hon'ble Supreme Court of Pakistan observed that a
transaction cannot be dubbed as Benami simply because
one person happened to make payment for or on behalf of another. It was further
observed that challenge to a transaction is not bona fide when husband
and wife were amicably living, it was accepted valid but subsequently when
relationship is strained title is claimed exclusively. Therefore, in the
present case the plaintiff (predecessor-in-interest of Respondents No. 1 to 5)
has failed to prove Benami.
10. In
view of above, the instant appeal is allowed, the impugned judgment and decree
dated 04.03.1987 is set aside and the suit filed by predecessor-in-interest if
Respondents No. 1 to 5 is dismissed, with no order as to costs.
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