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Petitioner: Mst. KISHWAR MALIK VS Respondent: Lt: Col. (Retd.) M. SADIO MALIK
Court Name: Lahore High Court Judge(s): Ch. Mushtaq Ahmad Khan Title: Mst. KISHWAR MALIK vs Lt: Col. (Retd.) M. SADIO MALIK Case No.: Civil Revision No. 180 of 1981 Date of Judgment:1993-11-28 Reported As: 1994 CLC 811 Result: Revision dismissed
JUDGMENT
JUDGMENT Lt.-Col.(Retd.) M. Sadiq Malik the respondent, who is ex-husband of Mst. Mishwar Malik the petitioner before this Court, applied to CDA, Islamabad for transfer of a residential plot through application Exh.P2 during the subsistence of their marriage. Supplementary application, and correspondence continued between him and the CDA through letters/documents Exh.P3 and Exh.P4. Ultimately in October, 1970, order of allotment of plot No.26, Hill Road F-6/3, Islamabad was passed allotted against the payment of Rs.15,104 which payment, was paid by him through Cheque No.12291 drawn on Standard Bank, Lahore which was encashed as is clear from statement of account, Exh.P9. Letter/order of the allotment was initially typed in his name, however, name of Mst. Kishwar Malik petitioner appears to have been subsequently was written in, pen and the said letter/order was hence issued in the name of the petitioner. Subsequently a Bungalow was constructed over the plot in question when the parties were still husband and wife and the petitioner was away in service which was given on rent to the Embassy of Saudi Arabia by the petitioner. It appears that differences arose between the spouses and the respondent instituted a civil suit against the petitioner seeking declaration to the effect that the petitioner is a Benami owner of the Bungalow in question and that it is he who is the real owner thereof, who has purchased the plot and has raised construction thereupon from his own funds. As a consequential relief a decree for permanent injunction restraining the petitioner from alienating or creating a charge or from recovering the rent has also been prayed for. This suit has been contested by the petitioner who also obtained a decree for dissolution of marriage against the respondent during the pendency of the aforementioned suit and has now contracted a second marriage. Plea raised by the petitioner in the written statement is that payment of price of the plot was made by her from
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her own sources and that the Bungalow has also been constructed by her through her own sources, therefore, she is the real owner of the Bungalow in question who is also entered as owner in the record of CDA, hence, the suit is liable to be dismissed. 2. On the basis of pleadings of the parties, .the learned trial Court settled the following issues: (1) Whether the suit in its present form is competent? (2) Whether the plaintiff is estopped by his conduct to bring the suit? (3) Whether the United Bank is a necessary party? (4) Whether the plaintiff has a cause of action for the suit? (5) Whether the suit is barred under the provisions of Specific Relief Act? (6) Whether the plaintiff is the real and beneficial owner and the defendant is a mere Benamidar in respect of the suit property? (7) Whether the plaintiff is entitled to the relief prayed for? In support of their respective contentions the parties led evidence. Learned trial Court vide judgment and decree dated 3-2-1980 decided issues Nos.l to 7 against the petitioner and decreed the suit in favour of the respondent. Aggrieved of this judgment and decree, the petitioner filed regular first appeal in. the Court of learned' District Judge, Rawalpindi which has been dismissed vide judgment and decree dated 20-5-1981, hence, this Civil revision. 3. Mr. Abdur Rashid Awan, Advocate has appeared on behalf of the petitioner whereas Mirza Anwar Baig, Advocate has appeared on behalf of the respondent. ' 4. Learned counsel for the petitioner has vehemently argued that the two Courts below have incorrectly and illegally appreciated the evidence produced in the case inasmuch as it stands established on the record that all the payments for purchase of the plot and for raising of the construction on the Bunglow in question were made by the petitioner from her own sources which amounts were arranged by her by sale of plot which was allotted in her name during the subsistence of her marriage with the respondent, by sale of car which stood registered in her name and by taking of debt from the respondent which was returned to him subsequently. According to the learned counsel two Courts have not at all adverted to this evidence and, hence, have committed a serious error of law while rendering a finding of fact against the petitioner. Learned counsel has further contended that the Bungalow in question stands recorded as being owned by the petitioner in the CDA records and was also let out by her, therefore, it shall be deemed to be in her possession and further that the title deeds are also in her possession, therefore, there is a strong presumption that it is the petitioner who is the real owner of the Bungalow in question which has not been sufficiently rebutted by the respondent who was a plaintiff in the suit and had to prove by positive evidence that it is he who had purchased the plot in question and had constructed the house over the said plot with his own funds but no cogent evidence has been produced by him therefore, the two Courts below have wrongly held that he is real owner of the Bungalow in question. Learned counsel has further contended that Exh.Dl which is a register containing the details of the expenditures which were provided by the petitioner and are duly entered therein, clearly proves that it is she who had constructed the house from her own sources. This document according to the learned counsel had been proved by P:W.6 Ghulam Sarwar who was a contractor who had constructed the house and, there is absolutely 'no evidence on the record showing that it is the respondent who had spent for raising of the construction of the Bungalow in question and hence is the real owner of the premises in question. Learned counsel has further referred to Exh.PW4/1 affidavit of the petitioner filed before the lower Court which was confronted proved during .the course of cross-examination of the petitioner according to which it stands established that the plot was purchased by her by her own sources and had also constructed the house thereupon from her own funds. This document according to the learned counsel is a very strong piece of evidence which gives the details of the sources wherefrom the
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funds were raised by the petitioner for spending upon the construction of the house as well as for purchase of the plot in question. Learned counsel has placed reliance on the following cases for the proposition that the concurrent findings of fact rendered by the Courts below are liable to be interfered with in exercise of revisional jurisdiction of this Court. (1) Muhibullah Khan v. Sadiq Khan (1986 SCMR 270). (2) Sarfraz Khan v. Federation of Pakistan (1986 SCMR 1950). (3) Shah Gul v. Mst. Shamim Akhtar (1990 SCMR 110). In the alternate, learned counsel has argued that in case the suit is decreed, the petitioner is entitled to the amount which has been spent by her, which according to the learned counsel stands established on record. Learned counsel however has not been able to point out any misreading or non-reading of any material piece of evidence by the two Courts below. His main argument is that on appreciation of evidence the two Courts below have rendered wrong findings of facts on the basis whereof judgments and decree in question has been rendered, hence is not maintainable in law. 5. As against the above arguments addressed by the learned counsel for the petitioner, Mirza Anwar Baig, Advocate, learned counsel for the respondent has argued that there is documentary evidence on the record to prove that the application for allotment of the plot was submitted by the respondent who was in service at that time and the payment of the plot was also made by him through a cheque from his account, therefore, there is nothing on the record on the basis whereof it could be said that it is the petitioner who had paid the price of the plot. Explaining the issuance of ultimate transfer order in he name of the petitioner, learned counsel has pointed out that initial order of allotment was typed in the name of the petitioner but on his request name of his wife was written by the office with pen which is quite usual and normal course keeping in view the practice and values of our society as at that time the parties were living as husband and wife a very happy life, and therefore, there is nothing unusual and unnatural if the husband out of love and affection. for his wife gets the formal order of transfer issued in her name. Learned counsel has further contended that the petitioner has failed to place on record any document or statement of accounts showing that she was possessed of funds wherefrom she could and has paid the price of the plot or spent for the construction of the house. The plot at Abbottabad was also got allotted by the respondent in the name of the petitioner, his wife which was subsequently sold, similarly the car was also purchased in her name and there is absolutely no proof about the exact amount for which the plot or the car was sold, particularly there is total absence of evidence regarding sources of income of the petitioner or proof of the fact that at the time of purchase of the above the petitioner had any independent source of income. According to the learned counsel even if the plot was allotted and the car registered in the name of the petitioner, during the subsistence of marriage between the parties, the presumption would be that both the properties were purchased by the funds of the husband unless and until the petitioner could show that she had purchased the same with her own independent source of income which evidence has no at all been led, therefore, the argument of the learned counsel for the petitioner to the effect that the payments were made by the petitioner is without any basis. Learned counsel further contends that the document Exh.DW4/1 is an affidavit of the petitioner which is an admission in her on favour and, therefore, it has no evidentiary value and at any rate it does not in any manner advance the case of the petitioner inasmuch as from this document it is not proved that the funds spent for the purchase of the plot as well as for construction of the house were raised by the petitioner from her "real" own sources. Merely because the petitioner has been supervising the construction or that entries regarding expenditure of construction have been made in register Exh.Dl which has been produced by the petitioner is not per se sufficient to prove that the funds for raising of construction were actually provided by her. The respondent being an employee living outside Islamabad it was quite
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natural that the petitioner who was his wife had to supervise the construction and to maintain the accounts as well as the regarding raising of construction of the house. Merely because the house was rented out by the petitioner to the Saudi Embassy also does not advance the case of the petitioner in any manner inasmuch as rent note had to be written in her name as she was recorded as an owner in the CDA record. It is contended that if some property is purchased during the subsistence of marriage, the presumption would be that the funds have been provided by the husband unless otherwise proved. In support of his contention learned counsel has placed reliance on the following cases: (1) Ismail Dada Adam Soomar v. Shorat Banoo (PLD 1960 (W.P.) Karachi 852). (2) Akram Moquim Ansari v. Mst. Asghri Begum (PLD 1971 Kar. 763). (3) Ch. Habibullah v. Sh. Central Cooperative Bank Ltd. (PLD 1987 SC 53). (4) Zafarul Hussan Qureshi v. M/s. Pakistan Tobacco Co. Ltd. (1991 CLC 1580). (5) Miss Qamar Ali v. Syed Nadir Ali (1993CLC 605). Learned counsel has further contended that the independent sources of income of the petitioner having not been established and it had rather been proved on he record that the payment for purchase of plot was made by the respondent and this is a strong presumption that the expenditure for construction of the house was also incurred by him, the transaction in question is proved to be Benami. In support of his contention learned counsel has placed reliance on the following cases:--- (1) Mrs. N. Johnstone v. Gopal Singh and others (AIR 1931 Lahore 419). (2) Akram Maquim Ansari v. Mst. Asghari Begum and another (PLD 1971 Kar. 763). Last argument of the learned counsel for the respondent is that the concurrent findings of fact recorded by the two Courts below cannot be interfered with in exercise of revisional jurisdiction of this Court as held in the following cases:-- (1) Kanwal Nain and 3 others v. Fateh Khan (PLD 1983 SC 53). (2) Haji M. Zaman v. Zafar Ali and others (PLD 1986 SC 88). (3) Guldar Khan v. Isa Khan and others (1993 SCMR 2099). 6. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record as well as the case-law cited at Bar. Admittedly the allotment of the plot in question was made on the basis of the application filed by respondent who was husband of the petitioner. The payment of the price of the plot is also proved to be made by him through cheque from his own account. There is no cogent evidence to rebut the aforementioned payment. No positive evidence about the taking of loan from the respondent and return thereof has been led. Even otherwise it looks quite unusual that wife who is living with her husband will take loan from him for making of particular payment and then return the same. A copy of the letter of the allotment order also shows that this document was originally typed in the name of the respondent but with pen name of the petitioner has been mentioned. It looks quite natural and probable that it must have been done on he asking of the respondent. In the usual course of prevalent practise in this country vis-a-vis the husband and wife regarding purchase of properties by the employees. Similarly the house has been constructed although under the supervision of the petitioner yet no evidence of her independent sources of income has been led. Merely because a plot which was allotted in the name of the petitioner during the subsistence of marriage was sold will not prove that the said plot was purchased by her from her own sources as the presumption would be that the same also must has been purchased by the respondent in the name of the petitioner who was his wife. She has led no evidence to prove that she had purchased the said plot from her own funds. Similarly there is no evidence of purchasing the car by the petitioner from her own funds, therefore even if certain funds were raised and were spent upon the construction of the house by sale of the plot and the car it will not prove that it were her funds. Raising of loan has also not been
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established on record from any documentary evidence for the exact amount which had been allegedly raised by the petitioner from her own sources has been proved by any cogent evidence. Supervising of the construction by the wife during absence of her husband who was an employee and renting out the premises in question by her is also not something unnatural and a judicial notice can be taken of the fact that in Pakistan the people who are in service they do purchase properties in the name of their wives and children who also in certain situations supervise the management thereof including renting out the same. Consequently keeping in view the relationship between the parties that of husband and wife, besides there being cogent evidence which has been relied upon by the Courts below in coming to the conclusion that it is the respondent who is the real owner of the Bungalow in question, there is a strong probability which also supports the conclusion that it is plaintiff-respondent who is the real owner. 7. In case of Said Wali v. Yaqoot Khan and another (PLD 1983 SC 440) and Fazle Ghafoor v. Chairman, Tribunal Land Disputes (1993 SCMR 1073) it has been held that even a probability is a strong piece of evidence and can be used as evidence is support of a fact in issue. Document Exh.DW4/1 is an affidavit of the petitioner which being an admission in her own favour is of no evidentiary value and at any rate does not prove that it is she who is the real purchaser of the plot and owner of the' Bungalow in question. Similarly register Exh.D1 also does not advance her case as it only reflects the details of the expenditure made during the course of construction. Independent evidence of sources of the petitioner lacking in the case it cannot be said that it is she who has either purchased the plot or has spent on the construction of the house in question. Although onus of transaction in dispute being Benami is upon suitor or yet question of onus loses importance when the evidence has been led by both the parties which has to be assessed on as a whole. In case of Muhammad Sajjad Hussain v. Muhammad Anwar Hussain (1991 SCMR 703) at pages 7081 and 709 of the report it has been held as under:-- "This leads us to the above firs submission made by Mr. Akhtar Mahmud, namely, that since the respondent had failed to establish sufficient financial resources as to make payment of about Rs.42,000 towards the purchase of the first and second houses, the two Courts below were not justified in decreeing the suit particularly in view of the statement of P.W.1 Mst. Hanifa Yazdani that the respondent had told her that he was not in a position to pay instalments for the two houses, it may be observed that we have examined the above contention with reference to the oral and documentary evidence produced by the parties in conjunction with the case law cited by the parties, namely, the case of Ismail Dad Adam Soomar v. Shorat Banoo PLD 1960 Kar. 852 the case of Mv. Md. Abdul Majid and others v. Mad. Jainul Abedin and others PLD 1970 Dhaka 414, the case of Dost Muhammad and others v. Mst. Sattan and others PLD 1981 Karachi 339 and the case of Mst. Sardar Khatoon and others v. Dost Muhammad and others 1988 SCMR 806 (the case relied upon by Mr. Akhtar Muhammad), and the case of Akram Moquim Ansari (represented by Heirs) and three others v. Mst. Asghri Begum and others PLD 1971 Kar. 763 referred to by Mr. Muzarfar Ali Khan. Some of the criteria for determining the question, whether a transaction is a Benami transaction or not, inter alia the following factors are to betaken into consideration:----- (i) Source of consideration; (ii) From whose custody the original title deed and other documents came in evidence; (iii) Who is in possession of the suit property? and (iv) Motive for the Benami transaction. 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 Benmidar 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
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of proof is shifted from a plaintiff on a defendant if he fails to discharge the burden of proof so shifted on him the plaintiff shall succeed." Similarly at pages 713 and 714 of the report it has been held as under: "Mr. Akhtar Mahmud has also relied upon the statement of the appellant made by him in his examination-in-chief wherein he had asserted that the respondent had received - from M/s. Dunlop Company a total of Rs.2,800.92 and has also urged that there has not been any cross- examination on the above statement and hence it remained unchallenged. It will suffice to observe that in presence of the other evidence on record, the appellant's above statement is insufficient to negate the other evidence. We have already pointed out hereinabove that it has been proved by sufficient evidence on record that factually the respondent had paid the amount of consideration for the first house partly by cash and partly by repayment of loan of the House Building Finance Corporation. In this view of the matter, we are inclined to hold that it becomes irrelevant from where the respondent arranged for the amount for payment of consideration. We may also point out that the appellant's version that in fact he had paid Rs.13,000 towards the consideration of the second house as adjustment of the earnest money of Rs.13,000 paid by the respondent towards the purchase price of the first house, has been disbelieved by us and in fact this was not pleaded by the appellant. His plea was that the respondent had obtained loan from him for payment of the consideration for the second house as pointed out hereinabove. The remaining amount of the consideration of the second house has been admittedly paid by the respondent partly in cash and partly by making repayment of the loan amount to the House Building Finance Corporation. It is true that D.W.1 Abdul Mujeeb Qureshi tried to help the appellant in his statement but the reason for doing so has been admitted by him by stating that the appellant was a student in his College where he used to teach and he was known to him. We are, therefore, of the view that the preponderance of evidence on record is that the respondent had paid the consideration for the first house. We may now advert to the second ingredient, namely, from whose custody the original title deed and other documents came in evidence. It is true that in the present case the appellant has produced the original sale-deed. The reason for production of the same by him is explainable. The statement of account of the amount paid by the respondent to the House Building Finance Corporation indicates that the respondent made the last payment of Rs.1,820 against receipt No.031453 dated 15-4-72. The respondent by his letter dated 18-4-72 addressed to the General Manager, House Building Finance Corporation stated and requested as follows:---- "Dear Sir, I am the attorney of Mr. Sajjad Hussain of the above account. I have cleared the balance outstanding loan of Rs.1,820 by depositing cash into Bank vide receipt No.031453, dated 15-4-1972. A photostat of the power of attorney duly registered at Karachi by the Sub-Registrar T-Division IV is enclosed for your perusal and record. Please arrange to hand over all the relevant documents of the- above account to me. Thanking you. Yours faithfully. (Sd.) Illegible." It appears that after the above payment of Rs.1,820 by the respondent on 15-4-1972, the appellant also remitted '& sum of Rs.1,820 through a cheque dated 18-4-1972 which is reflected from the certificate dated 21-3-1978 issued by the Manager of the House Building Finance Corporation (Exh.D9). It also appears that the appellant through a public notice published in an Urdu newspaper on 5-7-1972 purported to cancel the power of attorney without serving any notice upon the respondent though as per para 16 of the above registered power of attorney, it was irrevocable. It is not understandable as to how the appellant paid aforesaid some of Rs.1,820 on 18-4-1972 when
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factually the above sum was already paid by the respondent on 15-4-1972. From Exh.D21 which is a letter dated 30-5-1972 from the House Building Finance Corporation it appears that there was over payment of the amount which was refunded to the extent of Rs.110.97 to the appellant while issuing clearance certificate. Be that as it may, since the appellant was the ostensible owner of the second house, he obtained the title deed from the House Building Finance Corporation and, therefore, the production of the title deed by the appellant is itself not sufficient to negate the other evidence which tends to prove that the appellant was Benamidar particularly keeping in view as many as 41 receipts for the payment of loan amount to the Housing Building Finance Corporation, 8 receipts for the payment of the property tax for the years 1968-69 to 1976-77, 8 receipts focthe payment of K.M.C taxes for the period of 1969-70 to 1976-77, and four receipts for payment of ground rent to the KDA for the period from 1968 to 1971, were produced by the respondent. In case of Ismail Dada Adam Soomar v. Shorat Bano (PLD 1960 (W.P) Karachi 852) at pages 867 to 873 of the report it has been held as under: "The sale-deed of this property Exh..17 is in favour of defendant and as it is the plaintiff who is impeaching this deed and asserting that this was a Benami transaction, the burden of proving this is upon him. One of the recognized tests though not the only one in such cases is to see the source of the consideration for such a purchase. While dealing with issue No.5 I came to the consideration that the defendant did not have any money of her own and it was…
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