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Official Citation: 2024 PLD 289
Court / Jurisdiction: Sindh High Court
Year of Decision: 2022
Decision Date: 2022-06-01
Parties: Mst. Ishrat Parveen and another vs Syed Azhar Ali and others
Ruling Summary: This decision was rendered by the Sindh High Court on 2022-06-01, officially reported as 2024 PLD 289. In this matter between Mst. Ishrat Parveen and another and Syed Azhar Ali and others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as PLD 2024 Sindh 289
Court Name: Sindh High Court Judge(s): Zulfiqar Ahmad Khan Title: Mst. Ishrat Parveen and another vs Syed Azhar Ali and others Case No.: Civil Suits Nos. 102 and 323 of 2006 Date of Judgment:2022-06-01 Reported As: PLD 2024 Sindh 289 Result: Order accordingly
JUDGMENT
JUDGMENT ZULFIQAR AHMAD KHAN, J. The lis in hand sought through two separate suits, since these are two connected suits in which the property is same, therefore, it would be just and proper to decide the same through, a common deliberation. 2. The trivia and or minutiae of both Suits filed vice versa are as under:- (i). Suit No. 102 of 2006 Plaintiff No.1 (Mst. Ishrat Parveen) is the widow of deceased Musharraf Ali who purchased a residential plot No.A-348, Block-A, North Nazimabad, Karachi in the name of defendant and having purchased the said plot, constructed a house from his own funds. Plaintiff averred that her deceased husband paid the entire sale consideration of Rs.6,400/- Plaintiff (Mst. Ishrat Parveen) alleged in the plaint that her deceased husband so as to protect his interest in the said house, obtained a general power of attorney from the defendant in the year 1976, thereafter, in the year 1985 the deceased husband of the Plaintiff obtained a loan from National Bank of Pakistan and in lieu thereof deposited the original document of the said house after that the said loan was repaid by her deceased husband but unfortunately he left this mortal world and could not obtain the original documents from the bank. The Plaintiff further averred that her deceased husband gifted the said house to her and in this respect a gift deed was also executed in her favour. Plaintiff Ishrat Parveen went on to state further in her pleadings that her son i.e. plaintiff No.2 raised additional construction in the said house after the demise of her deceased husband. The plaintiffs further pleaded in the plaint that the defendant Syed Azhar Ali approached to the bank for the return of the title documents of the said house which demand of the defendant is illegal as the defendant is
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only a benamedar whereas the actual owner of the said house is deceased husband of the plaintiff, thereafter, the plaintiff filed the suit and made certain prayers which are delineated as under:- "i. Declaration that House No. A-348, Block-A, North Nazimabad, Karachi exclusively vested in and belonged to the late Syed Musharraf Ali and that defendant who is only his benamidar. ii. Declaration that the plaintiffs are the joint owners of the aforesaid property. iii. Permanent injunction restraining the defendant from selling, mortgaging, alienating or otherwise disposing of the said property. iv. Cost of the suit. v. Any other relief which this honourable court may deem fit and proper in the circumstances of the case." (ii). Suit No.323 of 2006 Plaintiff Syed Azhar Ali, deceased husband of the Defendant No.1 i.e. Syed Mushrraf Ali and one Syed Azhar Ali were three brothers inter se. The Plaintiff i.e. Syed Azhar Ali purchased a house bearing No.A-348, Block-A, North Nazimabad, Karachi, measuring 200 square yards (hereinafter referred as "said house"), thereafter, the said house was transferred in his favour. Having purchased the said house, the Plaintiff Syed Azhar Ali got completed the necessary construction and shifted his mother and brothers in the said house who used to reside in Hyderabad and so as to earn his livelihood, the Plaintiff Syed Azhar Ali left for abroad and executed a Power of Attorney in favour of deceased husband of Defendant No.1 with the sole object to look after the said house. Plaintiff averred that the deceased husband of the Defendant No.1 (Syed Musharraf Ali) faced financial crises who beseeched the Plaintiff (Syed Azhar Ali) to act as a Guarantor in obtaining the loan from National Bank of Pakistan for the reasons that the said house was in the name of Plaintiff being a bona fide and lawful owner. Resultantly, the Plaintiff (Syed Azhar Ali) mortgaged the said house with National Bank of Pakistan owing to which the deceased husband of the Defendant No.1 (Syed Musharraf Ali) obtained loan of Rs.1,50,000/-. Plaintiff (Syed Azhar Ali) further averred that neither the deceased husband of the Defendant No.1 (Syed Musharraf Ali) nor his legal heirs paid the loan amount rather the Plaintiff (Syed Azhar Ali) paid the entire amount and got redeemed the said house, Plaintiff further submitted that the Defendant No.2 is an estate agent and the Defendants hatched a conspiracy to deprive the Plaintiff (Syed Azhar Ali) from the said house hence introduced on record a Gift Deed which neither valid nor a registered instrument but a forged, fictitious and concocted document prepared by the Defendants just to deprive the Plaintiff (Syed Azhar Ali) from the said house who is Lawful and bona fide owner and having come to know the unlawful acts of the Defendants, the Plaintiff (Syed Azhar Ali) filed this suit beseeching, entreating therein as under:- "a. To declare that the plaintiff is lawful owner of house constructed on Plot No. A-348, Block-A, North Nazimabad, Karachi and further be pleased to declare that gift deed dated 05.10.1985 which is with plaint at page Nos. 91 to 93 is forged, fraudulent and illegal documents. b. Cancel the gift deed dated 5.10.1985, which is with the plaint at pages Nos. 91 to 93. c. Direct the defendants or anybody else if found in possession of house constructed on Plot No.A- 348, Block-A, North Nazimabad, Karachi, to hand over its peaceful and vacant possession to plaintiff. d. Direct the defendant to deposit monthly income of the suit house @ of Rs.10,000/- per month with Nazir of this Honourable Court and finally same may be paid to plaintiff. e. Permanently defendants may be restrained from damaging/creating any third party interest in suit house constructed on Plot No.A-348, Block-A, North Nazimabad, Karachi. f. Cost of the proceeding. g. Any other relief or reliefs which this Honourable Court may deem fit and proper for discharging of complete justice under prevailing circumstances of the case at the time of passing of judgment."
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3. The present cause was contested by the rival parties, both parties are plaintiffs and defendants in their respective suits filed vice versa filed their written statements and denied the assertions and claim made in the present lis. 4. The record reflects that originally the Suit No. 323 of 2006 was filed by the Plaintiff namely Syed Azhar Ali, however, with the passage of time, the Plaintiff Syed Azhar Ali in Suit No. 323 of 2006 and Defendant in Suit No.102 of 2006 left this mortal world (may Allah rest his soul in eternal peace) and now his legal heirs are in arena and such amended title was also filed in both the suits. 5. The record insinuates that on 30.10.2006 issues were framed and with mutual consent of the learned counsel for the respective parties matter was referred to Commissioner for recording evidence. The issues settled by this court are as under:- "1. Whether Syed Musharraf Ali (deceased) was the actual owner of the suit property and the defendant was only a benamdar? 2. Whether the deceased had constructed the house of the suit property from his own resources and was in its possession as owner? 3. Whether it was the deceased or the defendant who mortgaged the suit property with National Bank of Pakistan and obtained loan, and whether it was the deceased Syed Muhsarraf Ali or the defendant who repaid the loan and got the property redeemed? 4. Whether the deceased gifted the suit property in favour of the plaintiff in the' year 1985 and the gift is valid? 5. Whether the plaintiff No.2 has raised any additional construction and renovated the suit property after the death of his father. If so at what costs and what is its effect? 6. What should the decree be?" 6. Before starting the deliberations on the above issues, it would be appropriate to mention here that the expression Mst. Ishrat Parveen and Syed Dilawar Ali who are Plaintiffs in Suit No. 102 of 2006 and Defendants in Suit No. 323 of 2006 will be represented by their names instead of plaintiffs or defendants nonetheless Syed Azhar Ali who is plaintiff in Suit No. 323 of 2006 and defendant in Suit No.102 of 2006 will be represented by his name instead of plaintiff or defendant. 7. Mr. Shahenshah Hussain learned Senior Counsel presented the case of Mst. Ishrat Parveen and Dilawar Hussain (plaintiffs in Suit No. 323 of 2006 and defendants in Suit No. 102 of 2006). The main thrust of the submissions of Mr. Shahenshah is that the deceased husband of Mst. Ishrat Parveen was a businessm an who paid the entire consideration while Syed. Azhar Ali (defendant in Suit No. 102 of 2006 and plaintiff in Suit No. 323 of 2006) was only his Benamedar and at the time of purchasing the said house Syed Azhar Ali was only a student who had no sources of income and was totally dependent upon the deceased husband of Ishrat Parveen. His next stance is that Syed Azhar Ali executed a power of attorney in favour of deceased husband of Ishrat Parveen conveying all powers in respect of selling, transferring and gifting the said house as lawful owner who thereafter executed a Gift Deed in favour of Ishrat Parveen. He further contended that on the basis of power of attorney the deceased husband obtained loan from the National Bank of Pakistan and repaid the same in his life time. He next contended that Ishrat Parveen along with her son are in possession of the said house and her son also constructed the additional floor on the said house from his own resources and that Syed Azhar Ali was fully aware of the fact of such construction and did not raise any objection. He candidly contended that deceased husband of Mst. Ishrat Parveen was the actual and real owner of the said house while Syed Azhar Ali was only his Benamidar and the all title documents are in the possession of Mst. Ishrat Parveen. While summing up his submissions, he relied upon the precedents of Superior Courts reported as 2005 SCMR 577, 1991 SCMR 703, PLD 2011 SC 829 and 2009 SCMR 124. 8. Conversely, Mr. Sheikh Rehan made his appearance on behalf of Syed Azhar Ali and challenged the validity of the Gift Deed. He strenuously contended that the alleged Gift Deed is forged,
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fabricated as well as unregistered instruments and the Gift Deed is required to be registered under the Registration Act, therefore, the suit of Mst. Ishrat Parveen is liable to be dismissed. He next submitted that it is unequivocally proved that Mst. Ishrat Parveen and her witnesses in their evidence admitted that Syed Azhar Ali is the actual owner of the said house which was purchased by him and the loan amount was also repaid by Syed Azhar Ali. He further contended that sale agreement, sale receipts, transfer deed and other ancillary documents are in the name of Syed Azhar and consideration was also paid by him. Lastly, he submitted that Mst. lshrat Parveen and her son are unlawfully occupying the said house and that the alleged Gift Deed is liable to be cancelled by this Court and the suit filed by Syed Azhar may be decreed as prayed. In support of his submissions, he placed reliance on the case laws reported as PLD 2010 SC 569, PLD 2008 SC 146, 2010 SCMR 171, 1991 SCMR 703, PLD 2003 SC 494, 1997 SCMR 1811, 2009 CLC 324 and 2019 MLD 545. 9. Heard the arguments. Issue No.1 is correlated and concomitant to the ownership of the said house and other aspect of the Issue No.1 is Benami. It would be advantageous to discuss both aspects of the issue simultaneously, in same breath. 10. Since, the law relating to Transfer of Property and that of Registration Act does not recognize the Benami transaction because such transaction normally carries a motive/reason because of which one though pays the consideration yet avoids in taking the title in his/her own name but puts someone else with known status of 'owner' at all relevant places i.e. Record of the Rights. The term 'owner', per Black's Law Dictionary (Eighth Edition) is: "Owner.- One who has the right to possess, use, and convey something; a proprietor." 11. Per law, one would normally be regarded "owner" who is so appearing from the Record of the Rights else object of "Record of Rights" shall fail on basis whereof Transfer of Property and Registration are normally done/entertained. A reference to the case of Halima v. Muhammad Kassam [1999 MLD 2934] may be made for such view. In short, the whole scheme and object of Transfer of Property Act and that of Registration Act shall fail if every transaction is allowed to be challenged as benami. This is the only reason that all the laws, relating to transfer of title, neither recognize the consent of any other person except the one prima facie appearing to be owner with reference to Record of the Rights. 12. Now let me take up the attributes of benami transaction. In reality it means a transaction in the name of mother person to describe and express a transaction of a property who holds the said property being an ostensible owner for its beneficial owner. In fact it is a genre of transaction where somebody recompenses for the property but does not get hold of it in his personal name. The person in whose name this type of property is purchased is called benamidar and the property so purchased is called the benami property. Despite the fact a benami property is purchased on the name of someone else, the person who sponsored the transaction shall be the real owner. By and large, the assets acquired in the name of spouse or a child for which the money is paid from known corers of income is called the benami property. But a primary point at issue is who can challenge the benami transaction? The burden of proving whether a particular person is a benamidar is upon the person alleging the same. The probe whether the acquisition in the name of the wife by a husband is benami for his own benefit or not entirely depends on the intention of the parties at the epoch of buying. The litmus test for resolving the character of transactions is obviously the source of funds but it is not always conclusive and significant to the real ownership though it may prima facie show that the person who provided money did not intend to relinquish or give up the beneficial interest in the property but some other factors are also required to be considered i.e. possession of title documents, after purchase the conduct of the parties concerned in dealing with the property; who administers and oversees the property; who relishes the usufruct and who is recognized as titleholder in general as well as government departments. All these important
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physical characteristics depend on the facts of each case separately which requires concrete evidence to prove. In the case of Ch. Ghulam Rasool v. Nusrat Rasool (PLD 2008 SC 146), the apex court held that two essentials elements must exist to establish the benami status of the transaction. The first element is that there must be an agreement express or implied, between the ostensible owner and the purchaser for the purchase of the property in the name of ostensible owner for the benefit of such person and second element required to be proved is that transaction was actually entered between the real purchaser and the seller to which ostensible owner was not party. In the case of Abdul Majeed v. Amir Muhammad (2005 SCMR 577), the apex court held that the question whether a transaction is benami character or not has to be decided keeping in view a number of factors/consideration. 13. However, I regretfully acknowledge that typical culture, prevailing in our community, allows such transactions which otherwise should come to an end because such transaction always carries some deliberation on part of the actual owner which motivates him/her to avoid dressing up the status of ownership despite he/she otherwise pays consideration thereof. Since, the law of the land nowhere restricts one to purchase as many properties as one wishes but he/she shall always be legally obliged to explain the sources for such assets. Therefore, it is now well settled principle of law that to accept a challenge on ground of its being Benami one would require certain facts/circumstances which an actual owner otherwise would establish:-- "(i) source of consideration; (ii) from whose custody the original title deed and other documents come in evidence; (iii) who is in possession of the suit property; and (iv) motive of Benami transaction." 14. Each ingredient has its own peculiar reasons. Consideration, being the prime ingredient, for a sale transaction, hence has been placed on the top; since an absolute owner would also normally keep the original documents and other related documents and even same may be required to be produced by purchaser would be required therefore, an actual owner would be shown to possess such documents so as to show a resistance even not of much significance towards right of ownership which an owner otherwise must possess; then comes the question of possession and control over the property. Last but not the least the explanation for dressing some one else with status of owner. In absence of plausible motive/reason one would not be legally entitled to disbelieve he ownership of one who otherwise, per record of the rights, is owner of the property. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of 'Benanmi or establish circumstances reasonably raising an inference of that fact. Reference is made to the case of Muhammad Nawaz Minhas v. Surriya Sabir Minhas 2009 SCMR 124]. 15. It is pertinent to mention that one would not let another person to enjoy prima facie title (ownership) without having made something in his/her favour. This is the reason, required by an ordinary prudent mind, because of which the honourable Supreme Court of Pakistan in the case of Ghulam Rasoot v. Nusrat Rasool (PLD 2008 SC 146) that:-- "The first element is that there must be an agreement express or implied, between the ostensible owner and the purchaser for purchase of the property in the name of ostensible owner for the benefit of the person who has to make payment of the consideration and second element required to be proved is that transaction was actually entered between the real purchaser and seller to which ostensible owner was not party." 16. Let's examine the evidence of Mst. Ishrat Parveen on above touch-stone. The pleading of the Plaintiff (Mst. Ishrat Parveen) so also examination-in-chief are silent with regard to 'motive/reason' which made her deceased husband Syed Muhsarraf Ali to purchase the said house in the name of his brother Syed Azhar Ali. It has been established Syed Azhar Ali that he purchased the said house
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from one Raja Abdul Qayyum Khan on 05.04.1966 against sale consideration of Rs.6,400/- and such sale agreement was also entered between the Syed Azhar Ali and Raja Abdul Qayyum. Syed Azhar Ali during his examination-in-chief produced sale agreement as well as payment receipts which was also acknowledged by Raja Abdul Qayyum as Exh. D/1 (page No. 653 and page No. 655 of evidence file). Thereafter the said house was also transferred in favour of the Syed Azhar Ali through a Transfer Deed which was also produced by Syed Azhar Ali in his examination-in-chief as Exh D/3 (page No.659 of evidence file). Exhibit D/4 (page No. 675 of the evidence file) is letter issued by Karachi Development Authority declaring that the said house had been transferred in the name of the Syed Azhar Ali vide Transfer Letter dated 11.10.1966 and the said letter was also produced by the Syed Azhar Ali in his evidence. 17. Apart from above, Ishrat Parveen (Defendant No.1 in Suit No. 323 of 2006 and Plaintiff No.1 in Suit No. 102 of 2006) was thoroughly put to the test of cross-examination wherein she went on to admit that the said house was purchased by Syed Azhar Ali. Not only Ishrat Parveen admitted the ownership of Syed Azhar Ali but also the witnesses produced by the lshrat Parveen namely Shabbir Ahmed Khan who is representative of the National Bank of Pakistan went on to admit the ownership of the Syed Azhar Ali. So- as to reach at just and right conclusion of the issue under discussion, it is advantageous to reproduce the relevant excerpt of the admissions made in cross-examination by Ishrat Parveen and her witness namely Shabbir Ahmed Khan which reads as follows:- "It is correct that plot in dispute was purchased by defendant Sayed Azhar Ali on 05.04.1996. Voluntarily states that it was purchased by her husband Sayed Musharraf Ali. It is correct that an agreement of sale was executed in his favour by Raja Abdul Qayyum Khan on the same date. It is correct the subsequently a sale deed was executed and registered in his favour. Voluntarily states it was all done by Sayed Musharraf Ali." 18. Admission of like nature was also made by witness of Mst. Ishrat Parveen namely Shabbir Ahmed Khan who entered in appearance on behalf of National Bank of Pakistan which is reproduced here under:- "It is correct that owner of the property is Syed Azhar Ali." 19. An Austere look to the above reproduction explicates that not only the Ishrat Parveen (Plaintiff in Suit No.102 of 2006 and defendant in Suit No. 323 of 2006) but also her witness Shabbir Ahmed Khan went on to admit that the said house was purchased by the Syed Azhar Ali (defendant in Suit No.102 of 2006 and plaintiff in Suit No. 323 of 2006) not only the Sale Agreement is in his name but also the Transfer Deed. On examination of record it further reveals that the acknowledgement receipt of payment was also issued in the name of Syed Azhar Ali which suggests that Raja Abdul Qayyum acknowledged to have received a sum of Rs. 6,400/- from Syed Azhar Ali. 20. Mst. Ishrat Parveen in her cross-examination excerpt of which delineated supra voluntarily stated that all act was performed by her deceased husband Syed Musharraf Ali. It is by now judicially settled that the Voluntary statement by a witness in cross-examination has no legal evidentiary value, witness is not permitted to foist into his answer statement any material which is not in answer to or explanatory of his answer to the questions put to him. Such voluntary evidence is denominated as "irresponsive" testimony and the introduction of such evidence shall be against the rule of re-examination as contemplated under Article 133 of Qanun-e-Shahadat, 1984. The learned Lahore High Court in the case of Mushtaq Ahmed Malik v. Muhammad Sunawar Choudhary (2003 YLR 406) held the similar principal and it is considered imperative to reproduce the rule laid down in the latter case which reads as follows:- "(a) Qanun-e-Shahadat (10 of 1984)--- ----Art. 133--- Order of examination-- Scope---Voluntary statement by a witness in cross- examination has no legal evidentiary value---Witness is not permitted to foist into his answer statement any material which is not in answer to or explanatory of his answer to the questions put
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to him---Such voluntary evidence is denominated as "irresponsive" testimony and the introduction of such evidence shall be against the rule of re-examination as contemplated under Art.133 of Qanun-e-Shahadat, 1984---Principles. According to Article 133 of the Qanun-e-Shahadat Order, 1984, the order of examination of witnesses has been set down. The witnesses shall be first examined-in-chief and then if the adverse party so desires shall be cross-examined. The re-examination, however, is limited to the explanation of matters referred to in-cross-examination and if permission in this respect is granted by the Court. It would thus, be seen that the voluntary statement by a witness in cross- examination has no legal evidentiary value. It is not permissible for a witness to foist into his answer statement any material which is not in answer to or explanatory of his answer to the questions put to him. In jurisprudence, such voluntary evidence is denominated as "irresponsive" testimony and the introduction of such evidence shall be against the rule of re-examination as contemplated under Article 133 of the Qanun-e-Shahadat Order, 1984." 21. Reverting to the merits of the case, it is gleaned from the appraisal of the foregoing that the Syed Azhar Ali is Lawful owner of the said house and he has purchased the said house lawfully thereafter not only a Transfer Deed was executed in his favour but also it was also mutated in the record of Karachi Development Authority while Ishrat Parveen failed to produce any iota of documents favouring that the said house was purchased by her deceased husband Muhsarraf Ali. 22. In view of the above discussion, I am quite clear that Mst. Ishrat Parveen has failed in:- (i). Explaining that sale transaction was actually entered between his deceased husband Syed Musharraf…
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