2014 Y L R 385
[Balochistan]
Before Muhammad Noor Meskanzai and Muhammad Ejaz Swati, JJ
Mst. ALIM TAJ ---Appellant
Versus
Mst. SAHIB JAN and 2 others ---Respondents
Regular First Appeal No.98 of 2009, decided on 30th September, 2013.
Benami transaction ---
----Suit for decarlation, possession, rendition of accounts and injunction---House mutated in
name of step -mother of plaintiff was alleged to be purchased by his deceased father as
benamidar ---Proof ---Plaintiff's witnesses had not deposed in court to have witnessed payment of
sale price of suit house by plaintiff's father ---Plaintiff had admitted not to be present at time of
suit transaction ---Plaintiff had failed to prove purchase of suit house and payment of its price by
his father ---Step -mother during life -time of her husband had transferred suit house to a third
person through mutation, but he did not challenge same ---Plaintiff's oral version was contrary to
such documentary evidence ---Admission of witness of step -mother in cross -examination that
deceased had made payment of sale price of suit house, would not carry any weight as burden to
prove suit transaction to be benami was lying on plaintiff ---Deceased during his life time had
never claimed that his wife (plaintiff s step -mother) wa s benamidar of suit house ---Suit was
dismissed in circumstances.
2001 CLC 1599 and 2005 SCMR 577 ref.
Abdul Haq v. Mst. Surrya Begum 2002 SCMR 1330 and Ghulam Murtaza v. Mst. Asia
Bibi and others PLD 2010 SC 569 rel.
Gul Hassan for Appellant.
Muhammad Arshad Aziz for Respondents.
Date of hearing: 17th September, 2013.
JUDGMENT/ORDER
MUHAMMAD EJAZ SWATI, J. ---This Regular First Appeal has been filed against
the judgment/decree dated 22nd August, 2009 passed by Civil Judge -IV, Quetta, whereby the
suit filed by the appellant/plaintiff was dismissed.
2. Brief facts of the case are that the appellant filed a suit for declaration, possession,
injunction and rendition of account against the respondents, wherein it was averred that the
appe llant is daughter and respondent No.1 is widow of late Muhammad Yousaf (predecessor),
whereas the appellant is step -daughter of respondent No. 1. It is further the case of appellant that
her mother namely late Dur Bakht was first wife of late Muhammad Yous af and after her natural
death, her father contracted second marriage with respondent No.1. The late father of appellant
died on 15th July, 2007, leaving following properties:
(a) A house, situated in Killi Kabir, bearing Khasra No. 736/734/398, measuring o -R, 5- P,
Mohal Karez Atta Muhammad, Mouza Habib Tappa Saddar Tehsil and District, Quetta
comprising on 4 residential rooms and 1 guestroom, single storey R.C.C. constructed (herein -
after referred to as 'house in question).
(b) 2 shops bearing Municipa l No.3- 2/2 and 3- 2/3 situated at Natha Singh Street, Quetta.
3. It is the case of appellant that the aforesaid house was purchased by the predecessor of his
own income, from one Sultan Shah and transferred the mutation entry of the house in the name
of respondent No.1 as 'benamidar', due to love and affection, as she was issueless and after the
death of late Muhammad Yousaf, the aforesaid legacy devolved upon legal heirs i.e. appellant
and respondent No.1. The respondent No.1 denied the share of appellant in respect of the house
in question and after the death of predecessor, the appellant came to know that the respondent
No.1 had transferred the house in question to respondent No.2 vide Mutation No. 159 attested on
11th November, 2006, which is illegal ma la fide just to deprive the appellant of her legal right.
The appellant in respect of two rented shops has stated that the said two shops were in
occupation of her predecessor and in one shop son of the appellant is doing his business of
costumer service, thereafter, the shop was further given to one Bacha, who is running
tandoor/Oven therein. It is relevant to mention here that prior to framing of issues, (the
respondents Nos. 4 to 8 names mentioned in the impugned judgment), were impleaded as party
as the y claimed to be the owner of the shop and after impleading them as party, they entered into
compromise with the appellant vide compromise deed dated 10th October, 2008, whereby one
shop bearing Municipal No.3- 2/2 was handed over to them by the appellant and order dated 10th
October, 2008 was passed by the trial Court in this regard, that is why the appellant has not
arrayed them as party in the present appeal. The appellant in the suit prayed as under: --
(a) Declaring that defendant No.1 was the benami/os tensible owner of the house in question;
(b) Declaring that late Muhammad Yousaf was the actual owner of the house in question;
(c) Declaring that plaintiff is entitled to receive 7/8 shares in the house in question and 7/8 in
the income of both the shops bearing municipal Nos.3- 2/2 and 3- 2/3 Natha Singh Street near
Jinnah Road, Quetta;
(d) Declaring that defendant No.1 is entitled to receive 1/8 share in the house in question and
1/8 in the income of both the shops bearing municipal Nos.3- 2/2 and 3- 2/3 Natha Singh Street
near Jinnah Road, Quetta;
(e) Declaring that Mutation No. 159 is void and liable to be cancelled;
(f) By means of preliminary decree, house in question be partitioned between plaintiff and
defendant No.1 by meters and bounds as pe r their sharai shares and defendant No.1 be directed
for rendition of accounts;
(g) By means of final decree, plaintiff be put into the possession of the house in question;
(h) Defendant No.3 be directed to cancel Mutation No.159;
(i) Permanently restrained defendants from changing the nature of the house in question;
(j) Any other relief this Court deems fit and just along with costs of proceedings be also
awarded;
4. The respondents Nos.1 and 2 contested the suit by filing written statement, wherein they
denied the factum of purchase of the house in question by late Muhammad Yousaf and transfer
of the same on the name of respondent No.1 as benamidar.
5. The controverted pleadings of the parties necessitated in framing of the following issues :-
-
(1) Whether plaintiff has no cause of action against the defendants?
(2) Whether the plaintiff has not affixed the proper court -fee?
(3) Whether the suit is maintainable under section 42 Specific Relief Act?
(4) Whether defendant No.1 was mere ostensible owner of the house in question?
(5) Whether late Muhammad Yousaf was the actual owner of the house in question?
(6) Whether plaintiff is a Co -sharer in the house in question to the extent of 7/8 sharers?
(7) Whether defendant No.1 has ille gally transferred the mutation entries of the house in
question in the name of defendant No.2?
(8) Whether defendant No.1 has usurped the capital of late Muhammad Yousaf?
(9) Whether defendant No.1 is liable for rendition of accounts?
(10) Whether the plaintiff is entitled for the relief as claimed for?
6. On conclusion of case, the learned trial Court vide its judgment/decree dated 22nd
August, 2009 dismissed the suit filed by the appellant, hence this appeal.
7. We have heard Mr. Gul Hassan, A dvocate for the appellant, whereas the respondents
Nos.1 and 2 were represented by Mr. Muhammad Arshad Aziz, Advocate.
The learned counsel for the appellant contended that the house in question was
transferred on the name of respondent No.1 by predecess or of the parties due to love and
affection, as she was issueless. The said transfer was benami in nature, regarding benami
transaction, the appellant through evidence proved source of consideration, custody of original
title deeds, possession and intention of the parties. These entire components of benami
transaction have fully been established on record. The payment of consideration by the
predecessor to vender is not denied by the respondent No.1 in her cross -examination and the
learned trial Court in th e impugned judgment has also concluded that the source and payment of
consideration amount in respect of house in question has been established on record, but the trial
Court without any justification dismissed the suit, therefore, findings of trial Court are based on
non-reading and misreading of the evidence. He further pointed out that DW -1 and DW -2 have
also affirmed that the predecessor of the parties was living in the house till his death and at the
time of transfer, he was present and made payment of consideration amount. He placed reliance
on the case -law reported in 2001 CLC 1599 and 2005 SCMR page 577.
On the other hand, the learned counsel for the respondents Nos.1 and 2 contended that the
appellant has failed to substantiate through evidence t hat the respondent No.1 is benamidar and
not the real owner of the property in question, therefore, the findings of the learned trial Court
are based on sound reasoning and same are liable to be upheld.
8. We have carefully considered the contentions put forth by the parties' learned counsel and
have gone through the record of the case minutely. The appellant alleged that actually the house
bearing Khasra Nos. 736/734/398, measuring 8 pole situated in Mohal Karez Atta Muhammad
was purchased by the predecessor of appellant from Sultan Shah but due to love and affection
transferred its mutation on the name of respondent No.1, as benamidar. P.W.1 Abdul Nabi
though stated that the late Muhammad Yousaf (predecessor) purchased the house from Sultan
Shah and paid consideration amount but at the time of mutation, he was not present nor he
witnessed any payment in this regard. P.W.2 Shabbir Ahmed states about the dispute over the
house in question, but showed his ignorance regarding transfer of the house in question on the
name of respondent No.1. P.W.3 Abdul Manan has produced Exh.P/1- A i.e. mutation on the
name of respondent No.1 and Exh.P/2- A mutation on the name of respondent No.2. P.W.4 Ali
Ahmed has also admitted in cross -examination that neither he witnessed the transaction nor
payment of consideration amount related to the house in question. The appellant in her statement
also admitted that during transaction, she was not present. The accumulative result of the
appellant, evidence including her statement, is quite obvious that the appellant/plaintiff has failed
to substantiate the fact that the predecessor of the parties had purchased the house in question
and made payment of consideration amount. The learned counsel for the appellant contended that
the witness es of respondent No. 1/defendant admitted in cross -examination that late Muhammad
Yousaf had made payment of consideration amount. The assertion of learned counsel for the
appellant is contrary to settled principle related to burden of proof.
9. The appellant asserted that the house in question was purchased by late Muhammad
Yousaf from Sultan Shah. The perusal of mutation entries on the name of respondent No.1
Exh.P/1- A produced by P.W.2 indicates that the property bearing Khasra Nos. 736/734/398,
measur ing 5 pole through mutation No. 105 dated 27th June, 1993 has been transferred by
Ghulam Rasool son of Tairmur Khan in favour of respondent No.1 and thereafter vide Mutation
No. 159 Exh.P/2- A dated 11th November, 2006, respondent No.1 transferred the same in favour
of respondent No.2. Since the documentary evidence negates the above contention of
appellant/plaintiff, as under Article 103 of the Qanun- e-Shahadat Order, 1984, the documentary
evidence excludes oral evidence, we find that that mutation in favour of respondent No.1 was
effected on 27th June, 1993 and the respondent No.2 transferred the same in favour of
respondent No.1 on 11th November, 2006. During the above mutation, late Muhammad Yousaf
was alive as he died on 15th July, 2007 and he never chal lenged the said mutation and no reason
whatsoever is reflected either on the plaint or in the evidence produced by the appellant, as to
why her father in his lifetime did not challenge the said mutation. The Hon'ble Apex Court in the
case titled (Abdul Haq v. Mst. Surrya Begum) 2002 SCMR 1330 observed as under:
"Atta Muhammad was deprived of right to inherit the property as a consequence of
mutation in dispute but he did not challenge the same during his lifetime. The petitioners claimed
the property thr ough Atta Muhammad as his heirs who filed the suit as late in 1979 about nine
years after the sanction of mutation which had already been given effect to in the record of
rights. The petitioners, therefore, had no locus standi to challenge the mutation independently,
for Atta Muhammad through whom they claimed inheritance himself had not challenged the
same during his lifetime."
10. So far as the contention of the learned counsel for the appellant that the appellant through
the evidence established the co mponents of benami transaction and it has also come on record
that late Muhammad Yousaf till his death was in possession of the house in question. This
contention has no force as the dictum laid down in the case supra, late Muhammad Yousaf in his
lifetime has never challenged the mutation in favour of respondent No.1 and the appellant on that
strength cannot claim her possession through her father. The learned counsel for the appellant re -
agitated that the payment of consideration amount in respect of purchase of the house in question
by late Muhammad Yousaf has been admitted by the witnesses of respondents No.1, and
respondent No.1 herself not denied the same. This contention has also no force, as the Hon'ble
Apex Court in the judgment titled (Ghulam Murtaz a v. Mst. Asia Bibi and others) reported in
PLD 2010 SC page 569, held as under: --
"At this juncture, we may clarify that the motive part in the benami is the most important
one. A transaction cannot be dubbed as benami simply because one person happene d to make
payment for or on behalf of the other. We come across innumerable transactions where a father
purchases property with his own sources for his minor son or daughter keeping in mind that the
property shall vest in the minor. Such transaction subsequently cannot be challenged by father as
benami simply because the amount was paid by him. There are people who, with positive
application of mind, purchase properties in the name of others with intention that the title shall
vest in that other.
As said earlier, there are certain transactions in peculiar circumstances of those peculiar
cases where, for reason of certain emergencies or contingencies, the properties are purchased in
the name of some other person without the intention that the title shall s o vest permanently. If
such motive is available and also is reasonable and plausible, a transaction can be held as
benami, otherwise not. A property purchased with ones own sources in the name of some close
relative like wife, son or daughter cannot be dubbed as benami when purchased with full
intention of conferring title to the purchaser shown. If this principle is denied and that of benami
attracted simply because the sources of consideration could not be proved in favour of the named
vendee, it would shatter the most honest and bona fide transactions thereby bringing no end to
litigation."
11. Even if the amount had been paid by husband, yet he could not have turned around to
claim that the wife was benamidar beneficiary. After scanning the entire evidence on record, we
are of the considered view that the findings of fact recorded by the learned trial Court are based
on cogent reasons and the appellant has failed to point out any infirmity.
In view of the above discussed facts and circumstances o f the case, we find no merits in
the appeal, which is dismissed leaving the parties to bear their own cost.
Decree sheet be drawn.
SAK/106/Bal Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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