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Petitioner: Dr. Mrs. AZRA ALI VS Respondent: ARIF ALI
Court Name: Sindh High Court Judge(s): Haziqul Khairi Title: Dr. Mrs. AZRA ALI vs ARIF ALI Case No.: Suit No, 35 of 1990 Date of Judgment:1993-08-15 Reported As: PLD 1993 Karachi 683 Result: Order accordingly
JUDGMENT
JUDGMENT JUDGMENT ' The plaintiff being aggrieved by the award, dated 7-12-1988 given by Mr. Justice (Recd.) Agha All Haider, Sole Arbitrator, has filed objections under sections 30 and 33 of the Arbitration Act, 1940. ' The said award was made pursuant to a consent order, dated 23-2-1988 passed by this Court in Suit No, 82/88 filed by the plaintiff seeking a declaration that Bungalow No,109/1, Khayaban-e- Badban, Phase-V, Defence Housing Society, Karachi was owned by her and the defendant was only a benamidar thereof. She had also claimed mesne profit at the rate of Rs,42,500 per month from the defendant from 1-7-1987 until the use and occupation of the said property was restored to her. ' It may be stated at the outset that the parties were once husband and wife. Out of their wedlock a son was born who was in custody of the plaintiff. During the course of the proceedings before the learned arbitrator, the defendant divorced the plaintiff. The statement of claim was presented by the plaintiff before the learned arbitrator on or about 26-3-1988 containing the said prayers. Subsequently she had moved an application for amendment of her claim praying in the alternative that the property be declared joint property with respective shares of either party corresponding to the investment by her/him, which was dismissed by the learned arbitrator. ' The plaintiff, is a doctor and took her M.B., B.S. Degree in the year 1964. On 23-9-1967, while working as a R.M.O. At the Civil Hospital, Karachi, she was married to the defendant. In April, 1968, the plaintiff left for U.K for her M.R.C.P. Degree. The defendant followed her in August and after a few months together, in January, 1969 proceeded to Canada, where he joined a Consulting Geologist, on mineral exploration work. Soon thereafter he moved to M/s. Mittagani Lake Mines Ltd. Outario as a Junior Exploration Geologist. The plaintiff remained behind, working as a Senior House Officer in
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Peppered Hospital, Henley on Thames and other Hospital, in London. In February, 1970, the plaintiff joined the defendant in Canada, and started working at St. Joseph's Hospital, Toranto. In the year 1972, she obtained her M.R.C.P. Degree. According to her, she was getting a pay of C.Dollar 9,000 to 10,000 per year. She could not have any private practice as a Physician till she got L.M.C.C. Degree, which she obtained in 1976. Her pay round about this period was C.Dollar 24,000 a. Year. The defendant who had started with a pay of C.Dollar 700 a month, about this time was working with M/s. Wood Grundy Ltd. On C.Dollar 21,000 a year. ' According to the plaintiff her heart was in Pakistan. Unable to persuade her husband she returned to Karachi, with her 5-year old child Sahir Ali in July, 1977. In August, she got appointed as a Senior Physician at the Sindh Employees Social Security Institute, Landhi, with a basic pay of Rs,3,200 per month. A little later, she joined Dr. Lafar Ahmad for private practice as well, where she was earning between Rs, 5,000 to Rs,6,000 per month. The plaintiff first stayed with her mother-in-law then took on rent an apartment in Clifton Estates and in 1978-79, she purchased a plot measuring 1,000 sq. Yds. In Phase VI of the Defence Housing Authority, Karachi which had cost her Rs,70,000 to Rs,80,000. Half of this plot she retained for herself and the other half was given to a brother-in-law of her. A year thereafter she acquired an apartment, in Sea Breeze Luxury Apartments, at Clifton, for a sum of Rs,3,25,000. Again it was in her name and was used for her personal use and occupation. ' The defendant, in the meantime had remained with M/s. Wood Grundy Limited and in July, 1979 joined M/s Midland Doherty Limited as a research analyst. There he was getting C.Dollar 30,000 per year and was also remunerated through a profit pool. There he was also expected bonus of C.Dollar 10,000 a year. On June 8, 1980 he joined M/s Abu Dhabi Investment Authority, as an Investment Analyst, where his pay for the first three months was to be Dollar 25,000 per annum and thereafter Dollar 30,000 per annum, with free accommodation and Dh 5,000 for furniture. The car allowance was Dh 900 per month. There was service gratuity, medical treatment facilities and other benefits too, including telephone bills, electricity and water. He was promoted as Assistant Investment Manager in July, 1981 with a salary of Dh 15,000 per month and other fringe benefits, on a higher scale. ' While the defendant was abroad on 12th May, 1983 the plaintiff purchased a plot bearing No,109/1, measuring 511 sq. Yds. Situated at Khyabani Badban, Phase V of the Defence Housing Authority in the name of the defendant for Rs,1,30,000. This land was purchased by the plaintiff with a view to induce her husband to return to Karachi in the interest of a united family life. The lease was executed on 19-12-1983. Before that on 21-9-1983, the defendant had executed an irrevocable power of Attorney in favour of the plaintiff, authorising her among other powers, of mortgage and sale. The construction of the bungalow commenced on 31-1-1984, when the defendant was still at Dubai. He resigned in October 1984 and the construction way completed by the end of May, 1985. On 7-6-1985, it had been tastefull3 furnished and decorated with all the latest gadgets, which are said to have beer earlier collected from Canada and also from Dubai. The plaintiff puts the cost of the land at Rs,2,50,000 and the construction work at Rs,14,00,000. ' In October, 1986, the plaintiff had been treated harshly by the defendant as a result she left for her mother's house but she returned to the defendant, after 3/4 weeks. Thereafter also she was being ill-treated and or the 22nd of August, she was physically thrown out of the house. To keep it touch with her son, the plaintiff rented a bungalow in the neighbourhood where she has been living ever since. Efforts were made by family members of the parties, to bring about a rapprochement between them, but with no results. On the 2611 of October, the defendant sent a notice through his counsel, calling upon the plaintiff to return to his house and resume her marital obligations. She was also required to bring back the scrips worth Rs, 7,32,000 which she had taken away with herself and which belonged to the defendant. The plaintiff in reply through her counsel's letter, dated 11-11- 1987 repudiated the allegations and asked the defendant to restore possession of the house in
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dispute held by him as a "benamidar", and other movable properties of the plaintiff disclosed therein. The plaintiff deposed that she had raised funds for construction as follows: (1) Rs, 6,10,000 through the sale of her apartment in the Sea Breeze Luxury Apartments, (2) Rs, 3,00,000 through the mortgage of the plot and structure in dispute, from the United Bank Limited and (3) Rs,4,90,000 from her own cash/investment. ' The defendant's case briefly was that the plaintiff had purchased the said apartment and the plot of land in Defence Society out of the money remitted by him. He denied that there was avy benami transaction as alleged. In fact the bungalow was. Completed and furnished with various items brought by him from Abu Dhabi. In order to establish that his money was being utilized for purchase and construction of the bungalow he stated that he had remitted in his Bank Account No, 3072-E U.B.L., Clifton Branch, Karachi, a sum of Rs,9,05,850 (Rupees nine lacs five thousand eight hundred and fifty only) and obtained a loan of Rs,3,00,000 (Rupees three lacs only) from U.B.L. By mortgaging the property and further by obtaining friendly loan and by importing various items worth Rs, 1,94,380. The said amounts were over and above the cash in hand. The defendant further stated that his salary in Karachi was Rs,27,500 after deduction. Of taxes etc. ' It was alleged by him that the plaintiff had detained Defence Savings Certificates worth Rs, 15,000, Khas Deposit Certificates worth Rs, 3,82,500 and N.D.F.C. Bearer Certificates worth Rs, 3,60,000. She had also unauthorisedly removed jewellery and household goods of Rs,98,525. ' The learned Arbitrator considered the respective claims of the parties and rejected the claim of the plaintiff. However, it was ordered that the instalments of loan paid by her to M/s. United Bank Limited to date shall be reimbursed to her by the defendant with annual profit at the bank rate. In so far as the counter-claim of the defendant was concerned, his claim, for Khas Deposit Certificate worth Rs, 30,000 was accepted and rest of the counterclaim was rejected. The plaintiff in support of her application raised the following objections against the award:--- (1) That the Sole Arbitrator exercised jurisdiction which law had not vested in him. At the same time he failed/refused/neglected to exercise jurisdiction which was not vested in him. (2) That the impugned award suffers from material irregularities and the language used in the award is both unbecoming as it is needlessly resentful and harsh. (3) That the impugned award though purporting to be based on record appears to be based on the Sole Arbitrator's notions and misreading of the record. (4) That it is a matter of record that the defendant sent money (plaintiff claiming the same as her own savings abroad) from abroad through `bank remittances' received and credited in a specific bank account (No,3072-E, United Bank Ltd., Clifton Branch, Karachi and the total amount thus sent to Pakistan by the defendant was only Rs905,850 and no more or whatsoever. (5) That the Sole Arbitrator failed/refused/neglected to appreciate the cause and its legal effect of the defendant having granted an irrevocable power of attorney to the plaintiff. (6) That the plaintiff raised a house building loan of Rs,3 lacs from United Bank Limited, Farid Chamber Branch, Sadar, Karachi, in her account, in which respect the Sole Arbitrator fell into error of misinterpretation misconstruction, thereby he misconducted himself. (7) That the Sole Arbitrator, without anything on record held that when the parties moved into the 'new house' on 7-6-1985, all the existing fittings, fixtures, furniture's, electrical and electronic gadgets and all other household goods of the plaintiff from Sea Breeze Luxury Apartment were not moved into the new house. (8) That the Sole Arbitrator did not notice or appreciate the effect of defendant demanding, in his legal notice of 26-10-1987, amongst others, the return of his 'scrips' worth and face value of Rs, 7,32,000 which she was charged to have taken away.
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(9) That the Sole Arbitrator in accounting for the expenditure towards the cost of the 'plot/property', viz. Rs, 16/17 lacs, misconducted in appreciating the resources of either party and failed to take note that the defendant, admittedly, had brought in, by bank remittance a total sum of Rs,9,05,850 and no more and that the plaintiff, as a leading FRCP doctor had no such limit. (10) That in examining the mustering of funds: it was a matter of no consequence if the Sea Breeze Apartment was sold in August, 1985 viz. After completion of the construction of the house in question, as it was not dispute that Dasti loans' from friends were paid off therefrom (after en cashing Khas Deposit Certificates) as stated in the accounts in the hand of the defendant. (11) That there is error and illegality manifest in holding that the liability in the plaintiffs House Building Loan Account were joint and several when the said liability was/is that of the plaintiff, the mortgage merely being a security, made under the joint signatures of the plaintiff and defendant. (12) That the Sole Arbitrator insisted on income-tax and wealth tax returns of the plaintiff which had no relevance. (1S) That the Sole Arbitrator needlessly probed into the plaintiffs Canadian earnings when the Rupee expenditure by the plaintiff fully coped with the costs in question. (14) That it is a total misreading of the record when the Sole Arbitrator inasmuch as even the admitted amounts, acknowledged to have been spent by the plaintiff were not awarded to the plaintiff viz. The aforesaid Rs, L15,522, Rs, 66,974, Rs, 158,952.7 and Rs, 3,50,000 and others. (15) That the Sole Arbitrator has incorrectly held that the defendant brought with him household 'fittings, fixtures, goods and electronic equipment' from Canada and Dubai (under Transfer of Residence) which is valued at Rs, 1,94,380 and no is uses were jointed (by the plaintiff) on this aspect of the matter. (16) That the Sole Arbitrator misconducted himself and acted illegally and failed to apply his mind. (17) That the refusing to and disallowing the amendment viz. Addition to clause in the plaintiff's prayer clause is illegal bad in law. ' The defendant in reply to the plaintiff's objections to the award had stated: (1) That the Award, dated 742-1989 made by the learned Sole Arbitrator is based on the pleadings, evidence and documents produced by the parties before him and there is no apparent error on the face of the Award. The matter referred to the Arbitration has been determined in full and is so definite as to be capable of execution. (2) That the learned Sole Arbitrator, who is an ex-Chief Justice of this Honourable Court and was appointed Sole Arbitrator with the consent of the parties, has neither misconducted as alleged nor his Award is bad in law and facts, showing ally resentment, bias, and undignified language as alleged. It is further submitted that the learned Sole Arbitrator has exercised the jurisdiction, which was vested in him by the aforesaid order of reference, dated 23-2-1988. (3) That the allegations of the plaintiff that the learned Sole Arbitrator acted in excess of jurisdiction, ridiculed the good intention of the plaintiff and used language which is unbecoming, resentful and harsh are absolutely false and incorrect. (4) That the plaintiff in her objections has failed to mention any irregularity, allegedly committed by the Sole Arbitrator in conducting the arbitration proceedings. (5) That from Exh.P/34 (Salary Certificate) produced in the matter by plaintiff herself it is amply clear that during her entire stay in Canada her maximum income during the period, 1-7-1970 to 30- 6-1976, was C.Dollar 24,000 only. It is submitted that plaintiff's salary at St. Joseph's Hospital in Toronto was Cdn. Dollar 7,900 per annum and not 9,000 to 10,000 as stated by her. It is also a fact that while at Canada the plaintiff was not allowed private practice till June, 1977, when she cleared her L.M.C.C. It is further submitted that on her return to Pakistan, according to the submissions of the plaintiff, she joined Sindh Employees Social Security Institute (SESSI) at a salary of Rs,3,200 per month, she thereafter started her private practice, earning Rs, 5,000 to Rs, 7,000 per month.
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(6) That after having come back to Pakistan the plaintiff purchased Apartment No,6, Sea Breeze Luxury Apartments, Clifton, Karachi for Rs,3,25,000 and a plot of land in Phase VI, Defense Housing Authority, Karachi, for Rs, 70,000 or Rs, 80,000 for which the defendant remitted money to her. (7) That it is a fabricated and blatant lie that the plaintiff acquired or purchased the said plot of land No, 109/1 in the benami name of defendant as alleged. It is submitted that as is evident from Exhs. P/21 and P/22 the defendant himself purchased the said plot with his own money which he had brought from Abu Dhabi and thereafter completed the construction of a bungalow thereon and furnished the same with articles brought by him from Abu Dhabi. In this regard the defendant places reliance on Exhs. D/32, D/34, D/35, D/36 and D/39 produced in evidence before the learned Sole Arbitrator. It is further submitted that the defendant had remitted/deposited in his Bank Account No,3072-E, United Bank Limited, Clifton Branch, Karachi a sum of Rs, 9,05,850 (Exhs. D-22 to D-24) obtained a loan of Rs,3,00,000 from United Bank Ltd. By mortgaging his property in question vide Exh. P/24, by obtaining friendly loans and by importing various items worth Rs,1,94,380. The said amounts were over and above the cash in hand, his remittances to A/c 1522-K, U.B.L. Clifton and Travellers Cheques etc., which the defendant possessed. (8) That though the plaintiff in her pleadings has contended that as to the ownership of the property in question first dispute between her and defendant took place in October, 1986, but thereafter she did not raise the said contention either earlier or on 5-9-1987, when she signed Exh.P/27 in the presence of her own relatives. It is submitted that Exh.P/27, a writing as to the claims of plaintiff against defendant is totally silent as to her false claim over the property in question. (9) That Mr. Aslam Sanjrani had advanced the friendly loan of Rs,3,79,800 to the defendant and not to the plaintiff through cheques, which were deposited in defendant's Account No,3072-E as is evident from Exh. D.24 and Annexure "A" page 59 of the record of arbitration proceedings and it is the defendant, who repaid the said friendly loan. (10) That withdrawals from Bank Account No,3072-E to the extent of Rs,12,235.53 were out of defendant's money and the same was accounted for by him during his cross-examination. The said amount comprises of remittances Rs,9,05,850 plus loans from United Bank Limited and Mr. Aslam Sanjrani whereas as per Exh. P/26 which is in the handwriting of the defendant, clearly shows that the total cost of the bungalow in question was Rs,15,81,260. There is nothing to establish that the cost of the property in question was at Rs,19,76,060 or Rs,20,82,505 as alleged by plaintiff. (11) That as to the resources of the defendant for construction of the bungalow he brought construction material worth Rs,1,94,380 from Abu Dhabi. The defendant was earning a total salary and benefit package of an amount equivalent to U.S. Dollar 1,00,000 annually. At Karachi the defendant was drawing a salary of Rs,27,500 after deduction of taxes etc. (12) That the sale of plaintiff's Flat No,6, Sea Breeze Luxury Apartments, Clifton, Karachi she invested the entire sale proceeds of the said flat on 19-9-1985 in Khas Deposit Certificates of the face value of Rs,3,50,000. The other Khas Deposit Certificates of the face value of Rs,32,500 were purchased subsequently after the interest was earned on the said Khas Deposit Certificates as admitted by the plaintiff during cross-examination. (13) That it is absolutely false and incorrect that the cost of land was Rs,2,50,000 as alleged, and not was Rs,1,30,000 as evidenced by Exhs. P/21, P/22 and D/25. (14) That it is submitted that the securities/scrips worth Rs,7,32,000 were purchased after the completion and occupation of the said bungalow. ' Purchase of "scrips" started in August, 1985 till February, 1987 on various dates and proves that plaintiffs allegation that defendant's admitted expenditure for the construction of the bungalow in question from his Account No,3072-E was only Rs,1,15,944. The period of the construction and purchase of said scrips are very important factors.
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' The foremost arguments advanced by Mr. Mansur Ahmed Khan, learned counsel for the plaintiff were that the learned Arbitrator had failed to exercise jurisdiction vested in him and took upon himself jurisdiction not vested in him. Further he completely misread the record. Reference was made by the learned counsel to the established facts which were not accepted by the learned Arbitrator, namely (1) The defendant had sent through "bank remittances" only a sum of Rs,905,850 and no more whereas the plaintiff had disclosed the source of finance provided by her at Rs,14,00,000 out of which she got Rs,6,10,000 by sale of her Clifton Flat, Rs,300,000 as loan from U.B.L. And Rs,4,90,000 by Dasti loans. (2) The Dasti loans were laid by the plaintiff out of the funds available to her from the sale of Sea Breeze Apartment in August, 1985. (3) All fittings, fixtures, furniture, electrical and electronic goods sets and other household goods which were being moved into the new house belonged to the plaintiff and not brought by the defendant from Canada and Dubai. (4) The liability for payment of House Building Loan was of plaintiff and not joint. (5) Income Tax and Wealth Tax returns were not relevant to the case and the insistence of the learned Arbitrator for production thereof was uncalled for. ' With a view to advance his arguments further learned counsel for the plaintiff, Mr. Mansur Ahmed Khan referred to a number of decided cases on the benami transaction and placed reliance on Mcenakshi Mills v. CIT PLD 1957 SC (Pak.) 188; Ismail Soomar v. Shoratbano (Appeal dismissed) 1968 SCMR 574, PLD 1960 Kar. 852; Abdul Majid v. J. Abedin PLD 1970 Dacca 414; Altai Mahmud v. Fazalun Nisa PLD 1970 Lah. 654; Kerwock v. Kerwock ILR 48 Cal. (PC) 260; Sadequr Rehman v. Abdul Bari PLD 1971 Dacca 120; Dost Muhammad v. Satar PLD 1981 Kar. 339; Shalimar Ltd. v. Raisuddin 1979 CLC 338; Md. Bibi v. Abdul Ghani PLD 1975 Kar. 979; Jamila Khatun v. Yasin PLD 1959 Dacca 690; Muhammad Asheque v. Fatal Karim 1970 DLC 782; Gopal Pramanik v. Asim Moudal PLD 1952 Dacca 389; Uman Parshad v. Gandarap Singh 14 IA 127; Hakim Mahbub v. Bharat Indu 23 CWN (PC) 321; Akram M. Ansari v. Asghari Begum PLD 1971 Kar. 663; Sultan v. Mauladad PLD 1969 Kar. 221; Muhammad Ali v. Sakar Khanoo PLD 1984 Karachi 97; Ghulam Khabib v. Ghulam Sadiq 1986 CLC 14, 1423; Kassamali v. Naushad NLR 1985 CLJ 491; Imtiaz Ahmad v. Republic PLD 1982 FSC 178; Imtiaz Ahmad v. Republic PLD 1983 FSC 28; Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703; Mst. Sardar Khatoon v. Dost Muhammad 1981 SCMR 806. ' The question according to the learned counsel is not to be decided solely on the basis of the property being in the "benamidar's name". Positive onus to repel the assertion lies on the benamidar also. This rule of evidence is emphasised by the Supreme Court in the case Zakaullah Khan v. Muhammad Aslam 1991 SCMR 2126 in which it was observed: "On the first legal question, reference has been made to Woodroof and Amir All on "Law of Evidence" (14th Edition, 1979), page 190, where the following observations have been made:- ' Tut with regard to the proof required in civil and criminal proceedings there is this difference: that in the former a mere preponderance of probability is sufficient; and the benefit of every reasonable doubt need not necessarily go to the defendant but in the latter (owning to the serious consequences of an erroneous condemnation both to the accused and society) the persuasion of guilt must amount to such a moral certainty as convinces the minds of the tribunal, as reasonable man beyond all reasonable doubt'." ' The latest case in the line according to him appears to be the case of Muhammad Saijad Hussan v. Muhammad Anwar Hussain 1991 SCMR 703 in which at page 709 the observation is: "Some of the criteria for determining the question, whether a transaction is a benami transaction or not, inter alia, the following factors are to be taken into consideration:- (i) source of consideration; (ii) from whose custody the original title deed and other property documents came in the evidence; (iii) who is in possession of the property; and
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(iv) motive for the benami transaction." And further at page 709: "It is also a well-settled law that the initial burden of proof is on the party who alleges that an ostensible owner is a benamidar for him and that the weakness in the defence evidence would not relieve a plaintiff from discharging the above burden of proof. However, it may also be stated that the burden of proof may shift from one party to the other during the trial of a suit. Once the burden of proof is shifted from a plaintiff on a defendant and if he fails to discharge the burden of proof so shifted on him, the plaintiff shall succeed." ' The other case particularly referred to by the learned counsel was the case of Ismail Soomar v. Shoratbano PLD 1960 Kar. 852. The facts of the case are that Ismail Soomar, the plaintiff and Shoratbano, the defendant, were husband and wife, having been married in 1923. Shoratbano became a major partner of the first Ismail D. Adam Soomar under a partnership deed of 1941 to the extent of 3/4th. The plaintiff/husband had the remaining 1/4th share in the firm. The defendant, Shoratbano also came to have, in her own/personal name, amongst others, the house Shorat Villa situated in Garden Quarters, Karachi, a plot of land with a bungalow in P.I.B. Colony, and a Nash Car bearing No,Kar 3401 and various household silver and other wares…
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