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Petitioner: Mst. ASGHARI BEGUM ANSARI VS Respondent: AHSAN MOQUIM ANSARI AND 7 OTHERS
Court Name: Sindh High Court Judge(s): Saeeduzzaman Siddiqui, Fakhruddin H. Shaikh Title: Mst. ASGHARI BEGUM ANSARI vs AHSAN MOQUIM ANSARI AND 7 OTHERS Case No.: Letter Patent Appeal No, 177 of 1971 Date of Judgment:1983-07-16 Reported As: 1984 CLC 762 Result: Appeal allowed
JUDGMENT
JUDGMENT ' FAKHRUDDIN H. SHAIKH, J.--This L.P.A. Has been filed by the appellant Asgbari Begum wife of Muqeemuddin Ansari from the Judgment, dated 30th April, 1971 of a learned Single Judge of this Court in Suit No, 29 of 1967 filed by respondents Nos. 1 to 7 against her. ' The facts set up by the contesting parties in their pleadings are as under : 2. Muqeemuddin Ansari, the predecessor of the parties, was serving as Superintendent Survey of India from which post he retired in 1943. At that time he was drawing Rs, 1,500 per month as salary. After retirement he was granted pension @ Rs, 583 per month. He had three sons and two daughters from his first wife Saeeda Begum, who died in 1941 in India. They are Akram Muqeem, Ahsan Muqeem (respondent No, 1), Azam Muqeem, (respondent No, 2), Mst. Aziza Muqeem (respondent No, 3) and Mst. Mehmooda Muqeem (respondent No, 8). Akram Muqeem died during the pendency of the suit, hence his widow, a son and two daughters were brought on record as his legal representatives. They are Mst. Noor Ilahi (respondent No, 4), Mst. Shagufta (respondent 5), Saleem Akram Ansari (respondent No, 6) and Nadeem Akram Ansari (respondent No, 7). 3. In 1943 Muqeemuddin contracted second marriage with appellant Asghari Begum when she was 15/17 while the former was 55. He had no issue from this second wife. 4. In the year 1947 Muqeemuddin migrated to Pakistan alongwith his whole family except Memooda Begum (respondent No, 8) who was married in India and is still residing there with her husband as an Indian national. They settled in Karachi. 5. Mr. Ghulam Sabir Ansari, brother of the appellant owned a Plot No, 36 measuring 1,500 sq. Yds. In Islamabad Co-operative Housing Society Ltd,, whose name was changd later as Musliimabad co- operative Housing Society Ltd. Karachi (hereinafter referred to as the `Society'). Muqeemuddin
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wanted to purchase this plot to construct a house of his own. It was alleged by the contesting respondents Nos. 1 and 7 in their suit that, according to Bye-laws of the Society, only those persons who were domicile of Sind, were entitled to become members of the Society. Muqeemuddin was not a domicile of Sind while his wife appellant Asghari Begum was. Hence be purchased the plot from Ghulam Sabir in the name of the appellant as Benamidar in the year 1949. On the letter of Ghulam Sabir to the Society, the latter transferred the plot in favour of the appellant. It is further alleged in the suit that Muqeemuddin engaged contractor Mir Gul of Mirsons for construction of a house on this plot, but he left the work incomplete, after having accepted Rs, 13,000 as advance. Hence another contractor M/s. B. A. Siddiqui was engaged by him, who completed the bungalow in 1950-51, with the funds provided by Muqeemuddin. 6. It is further alleged by respondents Nos. 1 to 7 (plaintiffs) in their suit that Muqeemuddin died intestate in Karachi on 10th July, 1965. Till then the parties had been living jointly in the house, but in September, 1965 they were driven out of the house by the relations of the appellant. In fact only Azam Muqeem lived in this house with his father and the appellant, while Akram, Ahsan and Aziza had earlier shifted to other houses due to their marriage. However, since September, 1965 the appellant is in exclusive possession of this house and is claiming to be the real owner of the house. 7. Azam Muqeem, as attorney of other respondents, then filed the suit against Asghari Begum in January, 1967. Since Mehmooda Begum was in India and did not contest the suit, hence she was joined as formal defendant No, 2, Asghari Begum being defendant No, 1. Originally the suit was filed by Akram, Azam, Ahsan and Mst. Aziza only. After the death of Akram Muqeem, his wife, a daughter and two sons were joined as co-plaintiffs (who are respondents Nos. 4 to 7). As respondents Nos. 1 to 7 only are the contesting respondents, hence they only will be referred to hereinafter as the 'respondents', because Mst. Mehmooda Begum who is in India, had remained ex parte during the suit, and in the appeal also she has been joined as formal respondent. The respondents have sought following reliefs in the suit :- "(i) To hold and declare that late Mr. Muqeemuddin Ansari was the real owner of the property bearing No, 36, situated in Muslimabad Co-operative Housing Society Ltd., Karachi, with construction thereon and the defendant No, 1 is merely a Benamidar of the said Muqeemuddin Ansari ; (ii) partition the property in question by metes and bounds in accordance with the shares of the parties under Muslim Law and allot to each of them their respective share in severalty ; (iii) grant possession to the plaintiffs and the defendants of their respective allotments according to the shares of each in the property OR ' In case the partition of the property cannot be reasonably or conveniently made, the alternative direct that the property be put to sale by public auction or otherwise and shares of the plaintiffs be paid from out of the sale-proceeds ; (v) grant such other relief and pass such other order as the Court may deem fit in the circumstances of the case ; and (vi) grant cost of the suit." 8. In her written statement, the appellant refuted the claim of the respondents that the plot was purchased by her husband Muqeemuddin or that he had incurred all expenses for constructing the house on this plot. She claimed that the cost of the plot i,e, Rs, 15,000 was adjusted out of her dower money which was Rs, 20,000 and that she had financed the construction out of her own funds which she had received from her father at the time of her marriage and by way of inheritance and from her land. She further alleged that as she observed strict Purdah, hence her deceased husband only supervised the construction work on her behalf. The agreements with the contractors were also executed by the deceased on her behalf. In para. 10 of her written statement she states :-
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"Therefore, during construction at times her husband helped the answering defendant financially by giving her or the contractors etc. On her behalf some of the expenses of construction, but be always treated and declared the said plot and construction thereon to be the exclusive property of the answering defendant." ' Again in para. 19 she states as under : "19. That without prejudice and in furtherance and/or as an alternative to what is stated above it is submitted that whatever moneys, if any spent by late Mr. Muqeemuddin Ansari from his own funds were gifted away by him to the answering defendant and he always treated the said plot and construction thereon to be the exclusive property of the answering defendant." ' She, therefore, denies that she is holding this house as Benamidar, and claims to be the real owner thereof. 9. On the above pleadings following issues were framed by the learned Single Judge :- (1) Whether the plaintiff No, 1, is the duly constituted attorney of the plaintiffs Nos. 2 to 4 and whether the suit is properly filed ? #TBS (3) #TBE (2) Whether the membership of the Islamabad Co-operative Housing Society Limited was restricted to persons domiciled in the former Province of Sind ? Whether the plot in question was secured and/or purchased by Muqeemuddin Ansari from his own funds ? If so whether it was purchased Benami in the name of defendant No, 1 ? (4) Whether the bungalow in question was constructed out of the resources and funds of late Muqeemuddin Ansari ? If so what is its effect ? (5) Whether the plaintiffs and/or the defendant No, 2, are entitled to have any share in the bungalow in question according to the Muslim Law as heirs of late Muqeemuddin Ansari ? (6) Whether the court-fee paid by the plaintiffs is insufficient ? (7) Whether the property can be conveniently and reasonably partitioned and if so bow the allotment be made to the respective sharers ? (8) Whether the monies, if any, spent by late Muqeemuddin Ansari on the purchase of the plot and/or on constructions thereon were gifted away by him to the defendant No, 1 ? (9) What should the preliminary decree be ? (10) What should the final decree be ? ' Issues Nos. 1, 2, 6, 7 and 8 were not pressed by the parties, hence the learned Single Judge confined his findings to the remaining issues only. 10. After discussing the evidence of the appellant first, the learned Judge came to the conclusion that she did not have sufficient funds to purchase the plot and raise construction thereon. It was held that the price of the plot was paid by the deceased to Ghulam Sabir, as stated by the latter in his written statement in Suit No, 982 of 1951 (Exh. 53). This suit was filed by the deceased against Ghulam Sabir for Rs, 15,000 given to the latter as loan, on the basis of a receipt, which is not traceable, and is alleged to have been signed by Ghulam Sabir. He further held that the dower of the appellant was only Rs, 5,000 and not Rs,15,000, vide entry in the diary (Exh. 35) maintained by the deceased. He, further held that the deceased had sufficient funds to finance the construction of house on the plot in question. 11. The learned Single Judge further referred to the cases of Sura Lakshmi Ah Chetty and others v. Koth and Arama Pillai (1), Mst. Siddiqa Begum v. Abdul Jabbar Khan and others (2), Tirthamayi Dassi v. Ati Kulla and another (3), Benoy Krishan Sadhukhan and others v. Panchanan Sadhukhan and others (4) and Kallash Pati Sahai v. Jagarnath Rai (5), in which principles relating to Benami transactions have been laid down. In the first case AIR 1925 P C 181 it has been held "that if an
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Indian husband purchases property in India in the name of his wife, then unless otherwise explained, the purchase is presumed to be a Benami transaction, by which the beneficial interest in the property is in the husband and the ostensible title in the wife. But the burden to prove that the transaction in `Benami' lies on the person asserting it to be so, though this burden is discharged upon the said person showing that the purchase money was provided by him or some one other than the person in whose name the transaction appears to be." The same view has been taken by Allahabad High Court in the second case. In the third case it was held by Calcutta High Court that "as `Benami' transactions are quite common, even slight quantity of evidence may suffice to show that the person in whose name the property appears to be is not the real owner thereof". In the last two cases it has been held that even direct evidence is not necessary to discharge this burden of proof (of transaction being Benami), particularly when the transaction is an old one. The learned Single Judge was, therefore, satisfied that (1) AIR 1925 P C 181 (2) AIR 1942 All. 308 (3) A 1 R 1927 Cal. 140 (4) AIR 1935 Cal. 671 (5) AIR 1935 AIL 884 ' the respondents have proved their claim. Consequently a decree was passed in their favour to the following effects :- "(a) The disputed plot, namely, plot No, 36, measuring 1,00 sq. Yds. Situated within the area of Muslimabad Co-operative Housing Society Limited Karachi was acquired by the late Muqeemuddin Ansari from his own funds, but 'Bename in the name of his wife, defendant No, 1. (b) The bungalow on the said plot of land was constructed by the late Muqeemuddin Ansari out of his own resources and funds and the first defendant held it only `Bename for her husband." It was further directed that :- "Since there are several co-sharers, it would not be convenient to divide the disputed property between them by means and bounds. It is, therefore, directed under section 2 of the Partition Act, 1893 (Act No, IV of 1893) read with Order XX, rule 18 (2), C. P. C. That the property be sold and its sale-proceeds be distributed among the heirs of the late Muqeemuddin Ansari in the proportion specified above, but that it would be open to any co-sharer to apply to the Court under section 3 of the Partition Act, 1893 for leave to buy at a valuation, which may be determined by the Court, the share or shares of the party or parties asking for sale. As regards costs, the plaintiffs shall be reimbursed out of the sale proceeds of the said property." 12. Mr. Nizam Ahmed, learned counsel for the appellant has challenged the judgment of the learned Single Judge on, inter alia, following grounds :- (i) That the learned Single Judge has omitted to take into consideration certain very important pieces of evidence which supported the appellant's case ; (ii) The learned Judge admitted in evidence certain documents which were not admissible in evidence, or which were unstamped ; (iii) That certain documents were wrongly relied upon under section 32 of the Evidence Act which was not applicable to the case ; and (iv) That the learned Judge erred in discarding the evidence produced by the appellant. 13. Since the judgment of learned Single Judge has been impugned both on legal and factual grounds, hence it will be appropriate to refer to the evidence led by the parties in support of their respective claims. 14. The respondents (plaintiffs) have produced the following witnesses :- (1) P.W. No, 1 Rais Ahmed (Exh. 19).-He is employee of the Cooperative Department and has produced copy of the Bye-laws (Exh. 21) of the Society, showing that bye-law r4o. 7 was amended on 13th May, 1952 so as to open the membership of the Society to all citizens of Pakistan. According
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to the unamended bye-law No, 7, the membership was restricted to bona fide residents of Sind only. (2) P.W. No, 2 Feroz Khanewal (Exh. 24).-He is an employee of Sind Patent Tiles Co. He has produced six vouchers (Exhs. 25/1 to 25/6) issued by his Company to Mr. Muqeemuddin Ansari for purchase of tiles in connection with construction on Plot No, 36 in the Society. (3) P.W. No, 3 Habibullah (Exh. 26).-Habibullah is -an employee of Lloyds Bank. He has produced statement of account of Muqeemuddin from 1952 onward. He has stated that from 27th February, 1956 the account was in the joint name of the Muqeemuddin and Mst. Asghari Begum, while before that it was exclusively in the name of the former. The statement of account in the name of Muqeemuddin is Exhs. 27/1-6, while the statement of joint account is Exhs. 28/1 to 17. (4) P.W. No, 4 Azam Muqeem Ansari (Exh. 32). As he is the main witness in the case, hence his evidence needs to be discussed in detail. He is respondent No, 2 and holds power of attorney on behalf of other contesting respondents. He has given the facts as stated in the plaint, the substance of which has been narrated above. He has further given the details of the cash which the deceased had brought with him from India while migrating to Pakistan in November, 1947. He has deposed that his father had paid to Ghulam Sabir the value of the plot in question i. e. Plot No, 36 in 1949. But he does not say how much amount was paid nor does he claim to be present at the time of such payment. He has produced allotment letter in respect of plot No, 36 in favour of Mr. Ghulam Sabir as Exh. 36 and the letter of the Society transferring this plot in 1949 to the appellant Msr. Asghari Begum as Exh. 37. He has further produced following documents in support of his claim that the house was constructed by his deceased father and not by the appellant : (i) Agreement between contractor Mir Gul and Muqeemuddin deceased for construction on Plot No, 36 (Exh. 38). (This is an unstamped document but was admitted in evidence subject to payment of prescribed penalty by the respondent's counsel who had undertaken to do the needful). i) Similar agreement of the deceased with another contractor B.A. Siddiqui (Exh. 39). This is also unstamped but was admitted on the same condition as were attached to the first agreement. (tit) Two receipts for payments made by the deceased to the contractors on 22nd September, 1949 and 2nd July, 1949 as Exhs. 40 and 41, respectively. (iv) Bills and letters addressed by contractor B. A. Siddiqui to the deceased as Exhs. 42 to 47. (v) 47 Vouchers for building material purchased by the deceased as Exhs. 48/1 to 47. All this material was purchased during the year 1950 (These documents were admitted subject to objection of the defendant's (appellant's) counsel Mr. Nizam Ahmed that the persons who had issued the vouchers shall be examined). (vi) 13 receipts for payments purported to have been made by the deceased to labourers as Exhs. 49/1 to 11 (These were also admitted subject to the same objection as above). It may be stated that neither the vouchers nor the receipts have any reference to construction on Plot No, 36. (vii) Letter of Architect Zaheeruddin Pathan and the estimate of the construction left incomplete by the first contractor Mir Gul as'Exhs. 50 and 51. (viii) Certified copies of documents from the record of Suit No, 982 of 1951 filed by the deceased against Ghulam Sabir for R s. 15,000 which was given as loan to the latter as Exhs. 52, 53, 54, 55 and 56, which are plaint, written statement, award, objections to the award filed by the deceased and order of the Court, dated 29th April, 1955 in that suit, respectiveiy. (ix) Diary maintained by the deceased as Exh. 35. Besides the above documents, this witness was confronted in cross-examination with some other important documents relating to this house. These documents were produced by the appellant alongwith her written statement. These documents are as under (a) Exh.
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14. This is copy of a letter to Income-tax Officer written by the appellant, the last sentence of which is : have no taxable income. The expenses on the construction of my (torn) roomed house mentioned in the return were incurred out of my inherited money, I had brought with me from India'. The witness admits that this letter is in the handwriting of his deceased father, but he cannot say if it bears signature of the appellant. This letter is dated 23rd September, 1963. (b) Exh. 30/1.-This is a letter written by the appellant to the Secretary of the Society saying that 'after may death my share and interest in the Society may be transferred to a charitable institution or to a deserving girl student studying medicines. I leave the choice to the Managing Committee'. This is dated 24th July, 1953." ' This is copy of the original letter and purports to have been signed by the appellant. The witness admits that this letter is in the handwriting of his deceased father. ' He further admits that the house was completed in 1950 or 1951 and that after the death of his father he lived in this house with the appellant upto September, 1956 and thereafter shifted to another house, leaving the appellant in exclusive possession of the house. He admits that the appellant was 23/24 at the time of her marriage with his father who was 52 at that time i,e, in 1943. He admits that dower money in Ansari family is usually fixed at Rs, 5,000 but the dower of his sister Aziza was fixed as Rs, 10,000 because she was marred outside the Ansari family. About payment of price for the plot in question the witness says : "as far as I remember my father paid Rs, 3,000 for the plot." (to Ghulam Sabir). He further says that some more amount was paid afterwards as`pugree'. This was Rs, 13,000 which was adjusted towards the loan taken by Mr. Ghulam Sabir from the deceased. But be also admits that he was not present at the time of negotiation between his father and Ghulam Sabir about the plot in dispute. #TBS (5) #TBE P.W. No, 5 Abdul Aziz (Exh. 59).-The next witness is Abdul. Aziz. He was Secretary of the Society at one time, but does not know anything about transfer of the plot in dispute. (6) P. W. No, 6 Qamaruddin (Exh. 60) -Qamruddin is Assistant Record Keeper of District Court, Karachi. He has produced the record of Suit No, 982 of 1951 (Muqeemuddin Ansari v. Ghulam Sabir) as Exh. 60/1. (7) P.W. No, 7 Zafar Alam (Exh. 61). -Zafar Alam has proved three vouchers Exhs. 48/3 to 48/5 issued by him to the deceased for tiles etc. Purchased by the deceased from him. (8) P.W. No, 8 Zaheeruddin Pathan (Exh. 62).-He is the Architect, who had prepared the estimate of the incomplete work done by Mir Gul. He has proved the documents Exhs. 50 and 51 already referred to above. In cross-examination he had made very significant statement which needs to be reproduced ad verbatim. It is as under : "I was introduced to Mr. Mokim Ansari by the late Mr. Usman Ali Ansari. I had found that very poor construction was being raised by Mr. Mokim Ansari on a good piece of land, and I pointed this out to Mr. Mokim Ansari, who told me that his wife could not afford more expenses." (Underlining is ours). ' This is the entire evidence in support of the plaintiffs (respondents) claim that the plot and the house in question actually belonged to the deceased and that the appellant is only Benamidar and not the real owner thereof. 15. In the rebuttal the appellant has produced the following witnesses :- ' D.W. No, 1 Mst. Asghari Begum (Exh. 30) is the appellant who has reiterated the same facts as stated by her in her written statement. She admits that she was married to Muqeemuddin Ansari in
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1943 in India and Rs, 20,000 was fixed as dower. She also admits that in Ansari family the dower is usually fixed at Rs, 5,000 and in the case of her own sister the dower was fixed as Rs, 5,000 but in her case due to vast difference between her age and that of her husband, the dower was fixed at Rs, 20,000 by way of security. In lieu of the dower she had received from her husband one diamond set worth Rs, 15,000 purchased in India through one Mehmooda Begum, and Rs, 5,000 in cash on 1st June, 1946 as per entry in the diary Exh. 35/1 (at page 13). Besides the above [Here in italics] ' property and cash, she claims to have received following amount and ornaments : (1) Ornaments worth Rs, 3,000 to 4,000 received from her parents at the time of her marriage ; (2) Rs, 500 per year as her share out of the income from the land left by her deceased father : and (3) Rs, 800 to 1,000 as per share from the income of other properties of her father. The diamond set was sold for Rs, 17,000 and the ornaments for Rs, 3,000 before coming to Pakistan. She says that all the above cash was kept by her with her husband. She has produced the approved plan of the building as Exh. 18, which bears her name as owner of the plot No, 36. She has claimed to have spent Rs, 25,000 to 30,000 on the construction of the house, through her husband, who only supervised the construction work. She has produced 25 receipts as Exhs. 17/1 to 25 for water tax paid to K.M.C. All the receipts are in her name. She has produced following more documents relating to this house :- Letter of K.E.S.C. Regarding electric connection (Exh. 16) ; Three receipts for payments made to K.E.S.C. In connection with electric connection-(Exhs. 15/1 to 3) ; Contract with Karachi Gas Company for supply of Gas.(Exh. 11). This document bears signatures of Mst. Asghari Begum as owner of the house and of Muqeemuddin as a witness ; (1) Receipts 14 in number for payment of gas charges (Exhs. 13/1 to 13) and (Exh. 12) ; (2) Letter to the Income-tax Officer, dated 23rd September, 1963 as Exh. 14, in which she has claimed that the house was built by her own money (P.W. Azam has admitted that this letter is in the hand of his father Muqeemuddin) ; (3) Letter dated 24th July, 1953 to the Secretary of the Society saying that 'my share in the Society be transferred to any charit- able institution after her death'. (P.W. Azam has admitted that this letter is also in the handwriting of his father). (4) Letter dated 17th October, 1965 of Secretary of the Society to the appellant, by which 5 share certificates of the face value of Rs, 250 were sent to her (Exh. 30/2). These are shares issued by the Society in favour of the appellant ; and (5) Receipts for payment of electric dues four in number (Exhs. 30/8 to 9). ' All the above documents are in the name of the appellant. ' In cross-examination she states that her husband might have spent one or two thousand rupees over the construction, but he never mentioned it to her, nor claimed the same from her. No nikahnama was prepared at the time of her nikah. She admits that her brother Ghulam Sabir had taken a loan of Rs, 16,000 from her husband, who had filed suit against him for recovery of this amount. This suit was referred to arbitrators, ' D.W. No, 2 Mehmooda Begum (Exh. 31).-Mehmooda Begum wife of Syed Ahmed has deposed that when she was at Dehra Doon (India) in 1944-45 the appellant had purchased a diamond set belonging to one Sheela for Rs, 15,000 through her. The…
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