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Official Citation: 2025 SHC 18
Court / Jurisdiction: Sindh High Court
Year of Decision: 2025
Decision Date: 2025-01-18
Parties: Mst. Bushra Hamid And Others vs Mst. Farzana Nizam And Another
This judicial decision was delivered by the Sindh High Court on 2025-01-18. The matter involves proceedings between Mst. Bushra Hamid And Others and Mst. Farzana Nizam And Another, officially reported as 2025 SHC 18. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as 2025SHC18
Court Name: Sindh High Court Judge(s): Muhammad Abdur Rahman Title: Mst. Bushra Hamid And Others vs Mst. Farzana Nizam And Another Case No.: Suit No. 878 of 2020 Date of Judgment:2025-01-18 Reported As: 2025 SHC 18 Result: Order Accordingly
Judgment
ORDER MOHAMMAD ABDUR RAHMAN J. This order will decide CMA No. 4407 of 2022 that has been maintained by the Defendants under Rule 11 of Order VII of the Code of Civil Procedure,1908 seeking the rejection of the Plaint as being barred under Section 42 of the Specific Relief Act, 1877 and under Article 120 of the First Schedule read with Section 3 of the Limitation Act, 1908. A. Facts 2. The Plaintiff No. 1 and the Plaintiff No. 5 are both the widows of the (late) Tariq Nizam Malik, while the Plaintiffs No. 2 to 4 are the children of the (late) Tariq Nizam Malik and the Plaintiff No. 1. This Suit has been maintained by the Plaintiffs claiming a share, through inheritance, in two immovable properties bearing Plot No. B-121, Block 15, Gulistan e Jauhar, Karachi Development Authority Scheme No. 36, Karachi admeasuring 400 square yards which is recorded since 27 January 1998 as being owned by the Defendant No. 2, who is the sister of the (late) Tariq Niaz Malik, and Plot No. D- 16, Block 4, Gulshan e Iqbal, Karachi Development Authority Scheme No. 24, Karachi admeasuring 500 square yards which is recorded since 20 November 1996 as being owned by the Defendant No. 1, who is the mother of the (late) Tarqi Niaz Malik, on the basis: (i) that the real owner of each of these two immovable properties was one Ghulam Nizamuddin Malik, who was the father of the (late) Tariq Nizam Malik, the husband of the Defendant No. 1 and the father of the Defendant No. 2, as the Defendant No. 1 and the Defendant No. 2 each held these two immovable properties as benamidars; (ii) that the real owner of each of these two immovable properties was Ghulam Nizamuddin Malik and on whose demise on 15 May 2017 a share was inherited by his son the (late) Tariq Nizam Malik;
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(iii) that the share inherited by the (late) Tariq Nizam Malik in each of these two immovable properties, on the demise of the (late) Tariq Nizam Malik on 3 July 2020, devolved on the Plaintiffs and hence they were entitled to a declaration as to their entitlement to each of the immovable properties. B. Contentions of the Defendants. 3. Mr. Raj Ali Wahid entered appearance on behalf of the Defendants. He contended that as the (late) Ghulam Nizamuddin Malik had never maintained that he was the real owner of either of the two properties in his life time and as the (late) Tariq Nazim Malik had also not maintained that he had inherited to either of the two immovable properties in his life time, it was not open to the Plaintiffs to maintain this lis as: (i) the Suit was barred under Article 120 of the First Schedule read with Section 3 of the Limitation Act, 1908; (ii) the Plaintiffs had no right in either of the two immovable properties, the suit was barred under Section 42 of the Specific Relief Act, 1877. 3. In support of his contentions Mr. Raj Al Wahid relied on a decision of the Supreme Court of Pakistan reported as Mst. Faheeman Begum (Deceased) through L.Rs and others vs. Islam-ud- Din (Deceased) through L.Rs and others,[1] Muhammad Rustam and another vs. Mst. Makhan Han and others,[2] Abdul Haq and another v. Mst. Surrya Begum and others[3]and a decision of the High Court of Balochistan reported as Mst. Alim Taj vs. Mst. Sahib Jan and 2 others[4] wherein when a derivative claim was made through a person who had not challenged a mutation in their lifetime, the Supreme Court of Pakistan held that the legal heirs of the person who did not challenge the mutation, had no locus standi after that persons demise to challenge a mutation. He also relied on a decision of the Supreme Court of Pakistan reported as Haji Muhammad Yunis through L. Rs and another v. Farukh Sultan & others[5] wherein where an immovable property was purchased from the recorded owner, after the owners demise, some of the legal heirs of the owner maintained claims to the property as against the purchasers. Regarding the issue as to whether the Suits maintained by the legal heirs were barred under Section 3 of the Limitation Act, 1908, the Supreme Court of Pakistan while considering as to whether a new jamabandi issued every four years constituted separate causes of action, while interpreting Section 42 of the Specific Relief Act, 1877, after making a distinction as between what is an "actual denial of right" and an "apprehended or threatened denial of right" held that while an "apprehended or threatened denial of right" would result in a new cause of action arising on each occasion, where there was an "actual denial of a right" the period of limitation for obtaining a declaration as to a person's title as to property would be calculated from the date when the denial of right was made. In this context it was held that as entries made in the revenue record did not create or extinguish proprietary rights, such entries would be classified as "apprehended or a threatened denial of right" and hence whenever such an entry was made a new cause of action would arise. This situation was however to be contrasted where along with such a mutation, a person took possession of the Said Property and which act would be considered as an "actual denial of a right" and wherefrom limitation would calculated under Article 120 of the First Schedule of the Limitation Act, 1908. 4. He next referred to a Division Bench Judgement of this Court reported as Farrukh Afzal Munif vs. Muhammad Afzal Munif and 29 others[6] wherein while deciding an appeal as against an order of a Learned Single Judge of this Court for want of jurisdiction, it was considered that where property was purchased by a person in the name of his wife or child and possession of the property was also handed over, a legal presumption would exist that the person recorded as the owner was the legal owner and the only person who could challenge such a right could be the person who claims to be the real owner and which claim has to be maintained in that persons lifetime; his legal heirs having no locus standi to maintain such a claim after the demise of the real
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owner. He concluded by relying on a decision of a learned Single Judge of this Court reported as Mst. Parveen Raza Jadun through L.R.s and others vs. Bashir Ahmed Chandio and 5 others.[7] C. Contentions of the Plaintiff 6. Mr. Tasawar Hussain Rizvi entered appearance on behalf of the Plaintiff and contended that the Plaintiffs claimed their share to the estate of the deceased on the basis of inheritance and the law of limitation does not apply to such a lis. He therefore contended that there was no clog on the powers of this court to ensure that the rights of inheritance of the Plainitffs were secured and prayed for the dismissal of the application. He did not rely on any case law in support of his contentions. D. Opinion of the Court 7. I have heard Mr. Raj Ali Wahid and Mr. Tasawar Hussain Rizvi and have perused the record. (i) Devolution of an Immovable Property held as Benami as Applicable to Muslims 8. The expression "Estate" in the context of a person's real or personal property has been defined to mean:[8] " ... The amount, degree, nature and quality of a person's interest in land or other property." While such property in other jurisdiction may be subject to equitable interests, the law of Pakistan, on account of the codification of such rights, does not recognize equitable interest and which are hence to be considered as rights conferred by statute. Such a clarification was quite correctly made by the Supreme Court of India in the decision reported as Bai Dosabai and Ors. vs. Mathurdas Govinddas and Ors.[9] and wherein it was held that: " ... 7. We do not wish to go in any detail into the question whether the English Equitable doctrine of conversion of reality into personalty is applicable in India. However, we do wish to say that the English doctrine of conversion of reality into personalty cannot be bodily lifted from its native English soil and transplanted in statute bound Indian law. But, we have to notice that many of the principles of English Equity have taken statutory form in India and have been incorporated in occasional provisions of various Indian statutes such as the Indian Trusts Act, the Specific Relief Act, Transfer of Property Act etc. and where a question of interpretation of such Equity based statutory provisions arises we will be well justified in seeking aid from the Equity source. The concept and creation of duality of ownership, legal and equitable, on the execution of an agreement to convey Immovable property, as understood in England is alien to Indian Law which recognises one owner i.e. the legal owner : vide, Ramboran Prasad v. Ram Mohit Hazra and Ors. MANL/SC/0212/1966 : [1967]1 SCR 293 and Narandas Karsondas v. S.A. Kamtam and Anr. MANL/SC/0363/1976 : [1977] 2 SCR 341 . The ultimate paragraph of Section 54 of the Transfer of Property Act, expressly enunciates that a contract for the sale of Immovable property does not, of itself, create any interest in or charge on such property. But the ultimate and penultimate paragraphs of Section 40 of them Transfer of Property Act make it clear that such a contract creates an obligation annexed to the ownership of Immovable property, not amounting to an interest in the property, but which obligation may be enforced against a transferee with notice of the contract or a gratuitous transferee of the property. Thus the Equitable ownership in property recognised by Equity in England is translated into Indian law as an obligation annexed to the ownership of property, not amounting to an interest in the property, but an obligation which may be enforced against a transferee with notice or a gratuitous transferee. If we now turn to the Indian Trusts Act, we find "trust" defined as : "an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner", and "beneficial interest" defined as the interest of the beneficiary against the trustee as owner of the trust-property. Chapter IX of the Trusts Act enumerates in section after section cases where obligations in the nature of trust are created. Section 94 finally provides :
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94. In any case not coming within the scope of any of the preceding sections, where there is no trust, but the person having possession of property has not the whole beneficial interest therein, he must hold the property for the benefit of the persons having such interest, or the residue thereof (as the case may be), to the extent necessary to satisfy their just demands." I am clear that the principle as enunciated by the Supreme Court of India, on account of the codification of such equitable interests in statutes e.g. Contract Act, 1872, Specific Relief Act, 1877, Transfer of Property Act, 1882, Trusts Act, 1882 and the Succession Act, 1925, is also the correct position of the law regarding equitable interests in Pakistan in respect of obligations inter vivos or in respect of the transmission of an estate. 9. As far as a Muslim is concerned, the manner in which an estate is transmitted to legal heirs is to be determined according to the personal law of that person and which would, subject to statute, be determined subjectively in terms of that persons Fiqh. The manner in which the transmission of such an estate takes place has been clarified by the Supreme Court of Pakistan in the decision reported as Ghulam Ali and 2 others vs. Mst. Ghulam Sawar Naqvi[10] and in which it was held that: ... The main points, of the controversy in this behalf get resolved on the touchstone of Islamic law of inheritance. As soon as an owner dies, succession to his, property opens. There is no State intervention or clergy's intervention needed for the passing of the title immediately, to the heirs. Thus it is obvious that a Muslim's estates legally and juridically vests immediately on his death in his or her heirs and their rights respectively come into separate existence forthwith. The theory of representation of the estate by an intermediary is unknown to Islamic Law of inheritance as compared to other systems. Thus there being no vesting of the estate of the deceased for an interregnum in any one like an executor or administrator, it devolves on the heirs automatically, and immediately in definite shares and fraction. It is so notwithstanding whether they (the heirs) like it, want it, abhor it, or shun it. It is the public policy of Islamic law. It is only when the property has thus vested in the heir after the succession opens, that he or she can alienate it in a lawful manner. There is enough comment and case-law on this point which stands accepted." It is therefore quite well settled that whatever comprises part of the estate of a Muslim will be transmitted into the names of the legal heirs of the deceased at the moment of their demise in accordance with the legal heirs entitlement under the Islamic Law of Sharia, subject to statute, in accordance with the Fiqh of the deceased. 10. Issues can and do arise in determining as to what would constitute the estate of the deceased. Clearly a presumption that can be made, in terms of immovable property, is that where the title of the property has been established through registered documents the immovable property so identified would constitute a portion of the estate of the Deceased. 11. While, as clarified hereinabove, equitable interests are not recognised in Pakistan, it has been considered that a species of such interest referred to as an immovable property being held as "Benami" are statutorily recognized under Section 82 of the Trust Act, 1882, which provision parallels with Section 102 of the Sindh Trusts Act, 2020, and which reads as hereinunder: " ... 102. Transfer to one for consideration paid by another - Where property is transferred to one person for a consideration paid or provided by another person, and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration. Nothing in this section shall be affect the provisions of the Code of Civil Procedure, 1908" This section is a codification of the rule that was established in Dyer v Dyer[11] and in which it was held as hereinunder:
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"... The clear result of all the cases, without a single exception, is, that the trust of a legal estate, whether freehold, copyhold, or leasehold; whether taken in the names of the purchasers and others jointly, or in the name of others without that of the purchaser; whether in one name or several; whether jointly or successive, results to the man who advances the purchase-money. This is a general proposition supported by all the cases, and there is nothing to contradict it; and it goes on a strict analogy to the rule of the common law, that where a feoffinent is made without consideration, the use results to the feoffor. It is the established doctrine of a Court of equity, that this resulting trust may be rebutted by circumstances in evidence. The cases go one step further, and prove that the circumstance of one or more of the nominees, being a child or children of the purchaser, is to operate by rebutting the resulting trust; and it has been determined in so many cases that the nominee being a child shall have such operation as a circumstance of evidence, that we should be disturbing land-marks if we suffered either of these propositions to be called in question, namely, that such circumstance shall rebut the resulting trust, and that it shall do so as a circumstance of evidence. I think it would have been a more simple doctrine, if the children had been considered as purchasers for a valuable consideration. Natural love and affection raised a use at common law; surely then it will rebut a trust resulting to the father. This way of considering it would have shut out all the circumstances of evidence which have found their way into many of the cases, and would have prevented some very nice distinctions, and not very easy to be understood. Considering it as a circumstance of evidence, there must be of course evidence admitted on the other side. Thus it was resolved into a question of intent, which was getting into a very wide sea, without very certain guides. In the most simple case of all, which is that of a father purchasing in the name of his son, it is said that this shews the father intended an advancement, and therefore the resulting trust is rebutted; but then a circumstance is added to this, namely, that the son happened to be provided for; then the question is; did the father intend to advance a son already provided for? Lord Nottingham could not get over this, and he ruled that in such a case the resulting trust was not rebutted; and in Pole v. Pole, in Vezey, Lord Hardwicke thought so too; and yet the rule in a court of equity as recognized in other cases is, that the father is the only judge as to the question of a son's provision; that distinction, therefore, of the son being provided for or not, is not very solidly taken or uniformly adhered to. It is then said that a purchase in the name of a son is a prima facie advancement (and indeed it seems difficult to put it in any way); in some of the cases some circumstances have appeared which go pretty much against that presumption, as where the father has entered and kept possession, and taken the rents; or where he has surrendered or devised the estate; or where the son has given receipts in the name of the father; the answer given is, that the father took the rents as guardian of his son; now would the Court sustain a bill by the son against the father for these rents? I should think it pretty difficult to succeed in such a bill. As to the surrender and devise, it is answered that these are subsequent acts; whereas the intention of the father in taking the purchase in the son's name must be proved by concomitant acts; yet these are pretty strong acts of ownership, and assert the right, and coincide with the possession and enjoyment. As to the son's giving receipts in the name of the father, it is said that the son being under age, he could not give receipts in any other manner: but I own this reasoning does not satisfy me. In the more complicated cases, where the life of the son is one of the lives to take in succession, other distinctions are taken. If the custom of the manor be that the first taker might surrender the whole lease, that shall make the other lessees trustees for him; but this custom operates on the legal estate, not on the equitable interest; and therefore this is not a very solid argument. When the lessees are to take successive, it is said, that as the father cannot take the whole in his own name, but must insert other names in the lease, then the children shall be trustees for the father; and to be sure, if the circumstance of a child being the nominee is not decisive the other way, there is a great deal of weight in this observation. There
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may be many prudential reasons for putting in the life of a child in preference to that of any other person; and if in that case it is to be collected from circumstances whether an advancement was meant, it will be difficult to find such as will support that idea: to be sure taking the estate in the name of the child, which the father might have taken in his own, affords a strong argument of such an intent; but where the estate must necessarily be taken to him in succession, the inference is very different. These are the difficulties which occur from considering the purchase in the son's name as a circumstance of evidence only. Now if it were once laid down that the son was to be taken as a purchaser for a valuable consideration, all these matters of presumption would be avoided. ... I do not find that there are in print more than three cases which respect copyholds, where the grant is to take successive. Rundle v. Rundle, 2 Vern. 264, which was a case perfectly clear; Benger v. Drew, 1 P. W. 781, where the purchase was made partly with the wife's money; and Smith v. Baker, 1 Atk. 385, where the general doctrine as applied to strangers was recognized; but the case turned on the question, whether the interest was well devised. Therefore, as far as respects this particular case, Dickinson v. Shaw is the only case quite in point; and then the question is, whether that case is to be abided by? With great reverence to the memory of those two judges who decided it, we think that case cannot be followed; that it has not stood the test of time, or the opinion of learned men; and Lord Kenyon has certainly intimated his opinion against it. On examination of its principles, they seem to rest on too narrow a foundation, namely, that the inference of a provision being intended did not arise because the purchase could not have been taken wholly in the name of the purchaser. This we think is not sufficient to turn the presumption against the child; if it is meant to be a trust, the purchaser must shew that intention by-a declaration of trust; and we do not think it right to doubt whether an estate in succession is to be considered as an advancement, when a moiety of an estate in possession certainly would be so. If we were to enter into all the reasons that might possibly influence the mind of the purchaser, many might perhaps occur in every case upon which it might be argued that an advancement was not intended. And I own it is not a very prudent conduct of a man just married to tie up his property for one child, and preclude himself from providing for the rest of his family; but this applies equally in case of a purchase in the name of the child only; yet that case is admitted to be an advancement; indeed, if any thing, the latter case is rather the strongest, for there it must be confined to one child only. We think, therefore, that these reasons partake of too great a degree of refinement, and should not prevail against a rule of property which is so well established as to become a land-mark, and which, whether right or wrong, should be carried throughout. This bill must therefore be dismissed; but after stating that the only case in point on the subject, is against our present opinion, it certainly will be proper to dismiss it without costs." The decision confirms that where a person provides the purchase price of property in its entirety, then there is a presumption that he retains the beneficial interest in the property in its entirety, by virtue of a resulting trust and such a resulting trust would prevail over the argument that the purchase of the property was an advancement to the child, if there was no other evidence to rebut this presumption. In terms of advancement by a Muslim this would be even more arduous to rebut as it is now well settled that the doctrine of advancements is contrary to the Islamic Law of Sharia[12] and which therefore could not be a basis to rebut such a presumption and which evidence would therefore have to be premised on facts and circumstances to show the intention to create a resulting trust. It can also be seen, from a plain reading of Section 102 of the Sindh Trusts Act, 2020 that the principle of law settled in Dyer v Dyer[13] has been codified in that section. 12. The correlation as between Section 82 of the Trusts Act, 1882 and a "benami transaction" was clarified by in the decision reported as Muhammad Nawaz vs. Shahida Perveen and others[14] and in which it was held that:
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"... 18. In Pakistan, benami transactions were a recognized species of legal transactions pertaining to immovable properties. The genesis of the concept of benami is that the consideration for a transfer of property must flow from one person and the transfer is made in the name of the other person, and the consideration flowing for the transfer was not intended to be a gift in favour of the person in whose name the transfer is made. In other words, benami transactions are purchases of property in the name of a person, who does not pay consideration for the property, but merely lends his name to become an ostensible owner, while the real title vests in another person, who actually pays for the property and becomes the beneficial owner. Such transactions are rife in Pakistan. In the case of Guru Narayan v. Sheolal Singh (AIR 1918 PC 140), the Right Hon'ble Syed Ameer Ali also made the following general observations on benami transactions:- "The system of acquiring and holding property and even of carrying on business in names other than those of the real…
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