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Petitioner: MUHAMMAD ZAMAN VS Respondent: Sheikh ABDUL HAMID
Court Name: Lahore High Court Judge(s): Mian Nazir Akhtar Title: MUHAMMAD ZAMAN vs Sheikh ABDUL HAMID Case No.: Civil Revisions Nos.2046/D and 2047 of 1996 Date of Judgment:2001-09-07 Reported As: 2002 CLC 1209 Result: Revision allowed
JUDGMENT
JUDGMENT ' This judgment will dispose of Civil Revisions Nos.2046 of 1996 and 2047 of 1996 in which common question of law and facts are involved. 2. This revision petition arises out of suit filed by Muhammad Zaman, petitioner No,1, on 2-9-1990 in the Court of learned Senior Civil Judge, Mianwali, for possession of shop built on Plot No,8, Grain Market, Mandi Town, Tehsil Liaqatabad District Mianwali (consisting of four rooms) measuring 6 Marlas and 5-1/2 Sarsahi. The petitioner claimed to be owner of shop through sale-deed, dated 16- 2-1988, Exh.P.1. (Annexure "A"). He claimed to have purchased it from the Housing and Physical Planning Department. Prior to its purchase, the shop was with one Umar Daraz on the basis of lease/purchase agreement. Umar Daraz surrendered his rights in favour of the petitioner, who purchased it from the Housing and Physical Planning Department. 3. The suit was resisted by the respondent, who filed his written statement pleading therein that the transaction in favour of the petitioner was Benami and that, in fact, he (the respondent) had purchased it from Umar Daraz. He added that he was a tenant under Umar Daraz, who had agreed to sell the shop to him for a sum of Rs,65,000. He further stated that the surrender deed was written by Umar Daraz in favour of the petitioner due to some pressing domestic/business circumstances. He averred that he had paid a sum of Rs,65,000 to Baqir Ali, father of Umar Daraz. 4. Another suit for declaration was filed by Abdul Hameed/ respondent and his son Muhammad Akhtar Hussain on 30-9-1991, which was consolidated with the petitioner's suit. The Court framed the following issues:-- (1) Who amongst the parties is actual owner of the disputed property? OP Parties
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(2) Whether the plaintiff is entitled to recover Rs,10,000 from the defendant as the rent of the disputed shop for the period of last 3 years? OPP (3) Whether Muhammad Zaman, plaintiff, is entitled to possession of disputed property as prayed for? OPP (4) Whether Muhammad Zaman is Benamidar and the entries in Housing Department and registered sale-deed, dated 16-2-1998 are wrong, illegal and inoperative on the rights of Muhammad Akhtar Hussain? OPP of Civil Suit No,159 of the year 1991. (5) Whether Muhammad Zaman plaintiff is estopped to bring his suit by his words and conduct? OPD (6) Whether civil suit, titled as Muhammad Zaman v. Sheikh Abdul Hamid is not properly valued for the purpose bf court-fee and jurisdiction? OPD (7) Whether civil suit titled as Muhammad Zaman v. Sheikh Abdul Hamid is time-barred? OPD (8) Whether any of the defendants are entitled to special costs? OPD (9) Relief. ' After recording evidence of the parties and perusing the same, the trial Court dismissed the petitioner's suit and decreed that of the respondent vide judgment and decree, dated 11-10-1992. 5. The petitioner filed two appeals against the impugned judgments and decrees, which were dismissed by the learned Additional District Judge, Mianwali, vide his judgment and decree, dated 22-4-1996. 6. The petitioner's learned counsel contends that Umar Daraz had surrendered his rights in favour of the petitioner on 18-10-1980 and the surrender deed was signed by the petitioner, who was himself present on the said date; that thereafter sale-deed was exec ted in favour of the petitioner on 16-2-1988 (Exh.P.1); that the Court below wrongly held that there was no evidence to show that the petition r used to send money to his father-in-law/the respondent from Sau I Arabia; that the respondent did not have sufficient resources to pay the price of the shop; that there was nothing to prevent the respondent to have the shop transferred in his own name or in the name of his son Akhtar Hussain; that the mere fact that price was actually paid through the hands of respondent, does not prove that the petitioner was .a Benamidar; that the trial Court wrongly observed that the original documents were produced by the defendant/respondent; that in fact the original surrender deed remained in possession of the petitioner; that the s e-deed was produced by the petitioner before the trial Court in evidence; that the petitioner was working at Saudi Arabia and at one stage gay a general power of attorney to the respondent in the year 1981 for vari us purposes including withdrawal of Zar-e-Punjam and price of land n a pre-emption suit decreed against the petitioner on 10-2-1980; that the respondent withdrew the price of the land amounting to Rs,1,28,000 from the Court on 23-12-1980 and did not pay it to the petitioner despite his repeated demands; that the petitioner filed a suit for recovery of Rs,1,28,000 against the respondent, which was decreed in his, favour on 14-7-1993; that the respondent's appeal was dismissed by e learned Additional District Judge, Mianwali on 7-2-1998, which is under challenge before this Court in Civil Revision No,8741 of 2000; that due to wrong conduct of the respondent, the petitioner's confidence was shaken and he cancelled his power of attorney from the name o the respondent in the year 1984; that the power of attorney itself shows that the disputed shop belonged to the petitioner; that the respondent was in occupation of the shop as a tenant under Umar Daraz and had got the water and telephone connections in his name but the same do not prove his title in property; that the concurrent findings of fact recorded by the Courts below are vitiated by misreading and non- reading of material evidence; that there are five ingredients for establishing Benami character of a transaction; first, the source of consideration and payment of price; second, from whose custody the original title documents were received in evidence; third, who was in actual possession of the property in question; fourth, motive for Benami transaction fifth, intentions of the parties at the
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relevant" time; that the above ingredients were not satisfied to relegate the petitioner to the status of a Benami owner. In support of his contentions, he relies on the following judgments:- (1) Mst. Muhammad Bibi and 2 others v. Abdul Ghani and 2 others PLD 1975 Kar. 979, (2) Sher Muhammad v. Muhammad Sharif PLD 1984 Lah. 117, (3) Mst. Zohra Begum and 6 others v. Muhammad Ismail 1995 CLC 242, (4) Jane Margrete William v. Abdul Hamid Mian 1995 CLC 1437, (5) Mst. Halima v. Muhammad Kassan and others 1999 MLD 2934 and (6) Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703. 7. On the other hand, learned counsel for the respondent contends that transfer in the name of the petitioner is Benami, therefore, there is nothing unusual that all the documents stand in the petitioner's name; that the essential ingredients of a Benami transfer are clearly made out in the present case; that it was proved on the record that price of the shop was paid by the respondent, the original document (Exhs.D.6 and 7) were brought on the record by the respondent; the respondent remained in possession of the disputed shop and exercised his right of ownership and that the property was transferred in the name of the petitioner because at the relevant time the petitioner's son Akhtar Hussain was a minor and the property could not be transferred in his name under the Colonization of Government Lands Act; that the P.Ws. Admitted that the petitioner used to send bank drafts from Saudi Arabia in the name of his wife and that there was nothing to show that he had ever provided the price of the shop to the respondent. Further contends that non- production of Umar Daraz as a witness does not affect the respondent's rights as the sale was not in dispute; that the respondent was carrying on business of "Aarhat" since long and had sufficient means to buy the property and that the question of Benami is one of fact and concurrent findings of the Court recorded in this behalf cannot be disturbed in revision. In this behalf, he relies on the judgments in the cases of Mst. Zohra Begum and 6 others v. Muhammad Ismail 1995 CLC 242, Mrs. Kishwar Malik v. Lt.-Col. M. Sadiq Malik PLD 1995 SC 457 and Mst. Halima v. Muhammad Kassam and others 1999 MLD 2934. 8. The question whether a transaction is Benami in character or not has to be decided keeping in view a number of factors/considerations which have been re-established through a dumber of judicial pronouncements. At first I would refer to the judgments cited by the petitioner's learned counsel. In the case of Mst. Muhammad Bibi, it was laid down that the source of purchase money is not conclusive in favour of the Benami character of a transaction though it is an important criterion and that where there are other circumstances showing that the purchaser intended the property to belong to the person in whose favour the conveyance was made, the essence of Benami being the intention of the purchaser, the Court must give effect to such an intention. It was further held that in a Benami transaction the actual possession of the property or receipt of rents of the property is most important. A similar view was expressed in the case of Sher Muhammad. In this case the appellant claimed to have purchased a house in the name of the respondent as a Benamidar. He was in possession of the disputed property and produced the original title deed in the Court. However, the trial Court and the First Appellate Court non-suit him on the ground that he was a tenant or a licensee under the ostensible owner. The High Court took the view that the subsequent conduct of the parties and the evidence was sufficient to lead the Court to an irresistible conclusion that the respondent was merely a Benamidar and the appellant was the real purchaser of the house. In this view of the matter, the judgments and decrees of the Courts below were set aside. In the case of Mst. Zohra Begum it was held that the question whether a particular sale is Benami or not, is largely one of fact, and for determining this question, no absolute formula or acid test uniformally applicable in all situations can be laid down. However, in the light f the rules laid down in the cases of Muhammad Sajjad Hussain v. Muha mad Anwar Hussain 1991 SCMR 703 and Jane Margrete William v. Ab ul Hamid Mian 1994 CLC 1437, the Court highlighted four considera,
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ions for deciding the question of Benami character of a transaction. Th se considerations are as follows:-- (i) It is the duty of the party who raises such plea to prove such plea by adducing cogent, legal relevant and unimpeachable evidence of definitiveness. The Court is not required to decide this plea on the basis of suspicions, however, strong they may be. (ii) That Court is to examine as to who has supplied the funds for the purchase of property in dispute, it is proved that purchase money from some person other than the person in whose favour the sale is made, that circumstance, prima facie, would be strong evidence of the Benami nature of the transaction. (iii) The character of a transaction is to be ascertained by determining the intentions of the parties at the relevant time which are to be gathered from all the surrounding circumstances i,e, the relationship of parties, the motives underlying the transactions and any other subsequent conduct. (iv) The possession of the property and custody of title deed. ' The cases of Jane Margrete William and Muhammad Sajjad Hussain have also been cited by the petitioner's learned counsel. The last judgment cited by him is that of Mst. Halima in which it was held that in Benami transactions the real owner keeps all the documents of title in his custody, continues to manage the property like an owner and often obtains a power of attorney from the Benami owner to avoid any difficulty in day to day management of the property. It was further held that the real owner must prove that the property was purchased with his funds and there should be an intention on his part to maintain the property as a Benami property. As regards the burden of proof it was held that, prima facie, the person in whose favour the document or instrument of title has been registered would be regarded as the owner unless the contrary is proved by the person claiming to be the real owner. The respondent's learned counsel has also relied on the judgments in the case of Mst. Zohra Begum and Mst. Halima (supra) and cited the judgment in the case of Mrs. Kishwar Malik. In the last referred judgment, the Honourable Supreme Court was pleased to hold that the wife in whose name plot was purchased neither had independent source of income nor funds of her own for purchasing the plot or raising construction thereon. Hence, she was rightly held by the Courts below to be a Benami owner. 8-A. From the above-quoted judgments and precedents it can be gathered that the following factors/considerations are relevant for deciding the Benami character of a transaction:-- (i) The source of consideration and its payment. (ii) Motive for Benami transaction. (iii) Real intention of the parties. (iv) Possession and production of original title deeds. (v) Possession and use of property in dispute. (vi) Subsequent conduct of the parties including any act done in exercise of right of ownership. ' Out of the above factors/considerations, one or more may assume greater importance in the given circumstances of a case. For example in an alienation in favour of a son or a daughter, particularly a minor who has no independent source of income and sufficient funds to purchase property, the factor that price was actually paid by his/her father or a guardian is very material to show that the ostensible owner is Benami owner and the title actually vests in the father or guardian with whose money the property was purchased. The same may be the position of a wife or a sister or any other female relative who neither has an independent source of income nor sufficient funds to purchase a property. However, the position is different where both, extensible owner and the person claiming to be the real owner, are finically well-off and have independent sources of income. In such a cai e mere payment o price by a person claiming to be the real owner, perse, will not establish his title. In such a case other factors like intention of the parties and
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motive for Benami transaction and subsequent conduct of the parties may outweigh the consideration of payment of price through the hands of person claiming to be the real owner. 10. Now I will proceed to examine the facts of the present case with reference to the above-quoted factors/considerations for determining the nature and character of the transaction. (i) The source of consideration and its payment to the vendor ' The evidence on the record shows that the petitioner has been working in Saudi Arabia since the year 1974 and was earning Rs,35,000 per month. He contracted marriage with the respondent's daughter Mst. Asmat Zaman on 9-7-1977. During his absence from Pakistan his wife and later when he was blessed with children, his children used to stay in the house of the respondent. Thus he remained at' Saudi Arabia for a number of years and was in the position to save money. In the year, 1980 he purchased agricultural land for a sum of Rs,1,28,000. This sale became subject-matter of a pre-emption suit as would be discussed later. Thus the petitioner was financially well-off. On the other hand, the respondent was carrying on Arhat business in the grain market as a tenant under one Umar Daraz in the disputed shop. A Om of Rs,70,000 was paid through the hands of the respondent to Umar Daraz for securing surrender of rights in favour of the petitioner. The question is as to who had actually arranged the amount of Rs,70,000. The petitioner claimed that his father- in-law i,e, the respondent owed a sum of Rs,1,25,000 to him and that before his marriage with the respondent's daughter he had sent bank drafts of Rs,15,000, 25,000 and 75,000 o the respondent. On the other hand, the respondent claimed that he had paid the price to Umar Daraz from his own pocket and brought on the record entries made in his account register as Exh.D.1 and Exh.D.2. The petitioner's claim of remittance through different bank drafts is not proved. So far as the self- serving entries made in the respondent's account register of the shop are concerned, the same were brought on the record under objection from the petitioner's side but the objection was not decided by the trial Court. Even if these entries are treated to be correct this cannot be necessarily construed as payment of price for the disputed shop with the following reasons:- (i) It was Umar Daraz who was right-holder under a lease purchase agreement from the Housing and Physical Planning Department. (ii) Payments were made to Baqir Ali (father of Umar Daraz) who was not the right-holder. (iii) Exh.D.1 and Exh.D.2 are photo copies of the entries and there is nothing to show that the original register was ever produced before the Court. ' Exh.D.1 contains entry, dated 23-10-1980 regarding payment of Rs,15,000 to Baqir Ali while Exh.D.2 contains entries, dated 22-10-1980 and 3-11-1980 showing payments of Rs,65,000 and Rs,4,000 to Baqir Ali. In this way, the total payment comes to Rs,84,000. It is nobody's case that the surrender of rights .Were obtained for a sum of Rs,84,000. Both the parties have unanimously stated that surrender of rights were obtained from Umar Daraz on payment of Rs,70,000. Thus the above- referred entries may be in respect of the normal business of the respondent and not necessarily in relation to the purchase of the shop. Therefore, I am not inclined to rely on the entries Exh.D.1 and Exh.D.2, in the account register of the respondent to prove payment of price to Umar Daraz. Notwithstanding this finding the fact remains that a sum of Rs,70,000 was paid by the respondent for securing surrender of rights from Umar Daraz. The question is as to who had provided this amount. The petitioner's claim that his father-in-law/respondent owed a sum of Rs,1,25,000 to him is supported by Mst. Asmat Zaman, daughter of the respondent and wife of the present petitioner who appeared in the Witness-box as P.W.3. Her statement is vitally important.. She had no motive or illwill to make a false statement against her own father. She stated that her father owed a sum of Rs,1-1/2 lacs from the petitioner; that the shop was purchased out of the petitioner's money which was already with her father. She firmly 'denied the suggestion that the shop was purchased by the respondent for his son Akhtar Hussain. P.W.3 being closely related to both the parties was aware of the inner family secrets. At the time when rights were surrendered by Umar Daraz in favour of the
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petitioner, Mst. Asmat Zaman P.W.3 was residing in the house of her father. Had the property been purchased with the funds of her father she would have, in the normal course, supported the claim made by her father. He statement rings true and can be safely relied upon for holding that the respondent owed money to the petitioner and surrender of rights was made in consideration of the said amount. In this way, the respondent liquidated a part of his loan liability. (ii) Motive for Benami transaction A person's motive for doing something is the basic to show as to why he committed a certain act. An act done wi out a motive is done without any reason. There is subtle difference in olive and intention. If a person picks up a glass and drinks water, his motive is to quench thirst and intention to pick up a glass and drink water. If a person hits somebody with a weapon his intention may be to cause hurt to him although his motive may be to take revenge or create terrorism or merely to demonstrate his chivalry. In some cases motive and intention may coincide but generally both are distinguishable. In matters in which law requires a party to prove its motive for doing an act failure to establish motive would defeat the claim made by the party. In disputes relating to Benami transactions, motive for alienation in favo r of a Benamidar must be proved by the person claiming to be the real owner. In the present case, the respondent asserted in the written state end that Umar Daraz entered into a bargain with him for sale of e shop for a sum of Rs,65,000; that he is neither a tenant nor a le see but himself is the owner-in-possession; that he had faith in the pla'ntiff/petitioner as he is his son-in-law and that due to some business/domestic constraints he got the rights surrendered in favour of the petitioner. However, while appearing as D.W.1 the respondent deviated fro the stand taken by him in the written statement. He stated that he w ted to have the shop transferred in the name of his son Akhtar Hussain who was then aged about 10/11 years but the T.D.A. Officials to him that proprietary rights would not be conferred on his son due to is minority; that due to business constraints he did not have the shop tra ferred in his own name and instead transferred it in favour of his son-in w due to confidence in him. In cross-examination he asserted that the al owner of the shop is his son Akhtar Hussain although in the written statement he had averred that he himself was the real owner. He admitted that there was no legal hurdle in his way to purchase property. Both the Courts below have accepted, the petitioner's claim that he had purchased the property for his son Akhtar Hussain. The Courts below failed to consider that the respondent could not legally deviate from the taken by him in the written statement. It was held by the Honour rle Supreme Court of Pakistan in the case of Muhammad Sajjad Hussain (supra) that the appellant had taken up a specific plea in the written statement, therefore, he could not be allowed to set up a case in his evidence which is inconsistent to the plea raised in the written statement. The motive canvassed by the respondent in the evidence that he had purchased the property for his son Akhtar Hussain but could not obtain surrender of rights in his name due to his minority is inconsistent with his plea set up in the written statement and has to be ruled out. Thus it can be safely concluded that there was no cogent motive for the respondent to have the shop transferred in the petitioner's name. (iii) Real intention of the parties 'Intention is also a latent state of mind and can be gathered from the acts of omission or commission of the parties and all the attendant E circumstances of the case including their conduct. It is relatable to the ultimate aim, purpose or design of the parties. In the present case, the intention of the parties, as deducible from their acts and conduct, appears to be that ownership rights would vest in the petitioner. The lukewarm explanation offered by the respondent that he could not purchase the property in his own name due to some business and domestic constraints " hardly satisfies the judicial conscience. He is a businessman and fully realized the implications of surrender of rights of the shop in favour of the petitioner. Ordinarily, a businessman, who invests money to purchase property or any other valuable commodity is doubly careful! To protect his
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rights/interests. Had the respondent invested a huge amount of Rs,65,000 in the year 1980, he would not have obtained surrender of rights in the name of the petitioner. On the facts and in the circumstances of the case, the intention of the parties seems from the very inception that the title of the shop would vest in the petitioner. That is why from the year, 1980 till January, 1991, the respondent remained content with possession and use of the shop alone and did not take any step to secure his alleged title whereas the respondent not only got the proprietary rights transferred in his name but also cancelled the general power of attorney from the respondent's name. Had the respondent any intention to be the real owner of the property he would have immediately taken some legal action against grant of proprietary rights to the petitioner and cancellation of the general power of attorney from his name. However, he remained quiet for more than six years after revocation of the general power of attorney by the petitioner. He filed his suit after about one year of institution of the suit by the petitioner. His conduct lays bare his state of mind that he fully knew that the real title-holder is the petitioner. (iv) Possession and production of original title deeds ' The basic document relating to transfer of title is the surrender deed. The respondent while appearing as D.W.1 stated as under:-- {{URDU TEXT}} ' It is significant to mention…
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