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Petitioner: JANE MARGRETE WILLIAM VS Respondent: ABDUL HAMID MIAN
Court Name: Lahore High Court Judge(s): Fazal Karim Title: JANE MARGRETE WILLIAM vs ABDUL HAMID MIAN Case No.: Regular First Appeal No. 2 of 1989 Date of Judgment:1992-08-23 Reported As: 1994 CLC 1437 Result: Appeal dismissed
JUDGMENT
JUDGMENT This regular first appeal by Mrs. Jane Margret (hereinafter to be referred to as the defendant) comes from a judgment and decree of the learned Additional District Judge, Lahore, dated 5-12- 1988 whereby the suit of the plaintiff, Ch. Abdul Hameed, respondent herein (hereinafter to be described as the plaintiff) was decreed and he was "declared an absolute owner of both the properties i.e. House No. 68-II, Gulberg-III, Lahore and commercial property bearing No. 5-B-1/B-2, Ghalib Market, Gulberg, Lahore" and the defendant was restrained "from denying the ownership of the plaintiff in respect of the aforesaid properties". 2. The plaintiff is a Pakistani national. The defendant was a British national. Somewhere before 1959, the plaintiff went to England for education. He was studying in the University College, Cardiff, South Wales, for his engineering degree; the defendant was also studying in the same College. As students, they became friends and the friendship resulted in their marriage on 10-1-1959. They came to Pakistan in 1961 but went back in March, 1962. They stayed there from MIrch, 1962 to January, 1968, when they came to Pakistan with a view to settling here. On 25-6-1968, Plot No. 68-II situated in Gulberg--III, Lahore, measuring 2 Kanals 5 Marlas 180 square feet was purchased in the name of the defendant. The house in dispute stands on that plot; it was built in December, 1968 and the parties shifted into it in January, 1969, a commercial plot situated in Ghalib Market, Gulberg-111, Lahore, was purchased in the name of the plaintiff and the defendant in equal shares. The shops in question stand on this plot: they were completed in November, 1969. 3. It appears that for reasons, into which it is not necessary to go and which if the story of the plaintiff is to be believed make a distasteful reading, the marriage ran into difficulties soon after their arrival in Pakistan. It broke down completely in the year 1971, so much so that the defendant
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left this country in April or May, 1972. The parties were separated by divorce in 1975. She has not returned to Pakistan since then. It also appears that the only child of the marriage is a daughter. 4. This suit was instituted by the plaintiff. on 12-1-1972. The case of the plaintiff, as laid in -his plaint, was as follows. After his graduation, he was employed as an Electrical Engineer in England. When they came to Pakistan in January, 1968, he brought two cars with him; the object being to "raise money in order to build some property in Pakistan". He sold one car and borrowed some money from his father and relatives and purchased plot No. 68-I1. He then constructed a house on the plot and moved into it in January, 1969. He also purchased the plot in Ghalib Market and built five shops over it. Therefore, "the house alongwith the land underneath and the shops are the property of the plaintiff, although the land of the shops was purchased by the plaintiff in his as well as in the name of defendants". According to him, "he had raised the finances for the construction and purchase of the aforesaid properties and it was with his money that the properties were constructed". He again left for England "as he was in debt and wanted to do some job in order to raise. money for the satisfaction. of his debts. So, he left Pakistan and in his absence he asked one Mr. Muhammad Nawaz Kasuri, Advocate, to look after the interests of the. plaintiff'. During his absence, Mr. Muhammad Nawaz Kasuri, Advocate, developed intimacy with the. defendant and "made a plan for grabbing the property of the plaintiff'. He came to know that Mr. Muhammad Nawaz Kasuri, Advocate, had "secured a general power of attorney from the defendant for the sale and management of the property of the plaintiff'. Mr. Muhammad Nawaz Kasuri, Advocate, "advised the plaintiff not to come to Pakistan as a case under Martial Law Regulation No. 35 was pending against him. The plaintiff received information from his friends and relatives that the defendant and Muhammad Nawaz Kasuri were living in adultery". He suddenly came to Pakistan and arrived in Lahore on 18th December, 1971. When he went to his house at about 6-00 p.m., he found the defendant and Mr. Muhammad Nawaz Kasuri, Advocate, in the bed-room. Mr. Muhammad Nawaz Kasuri, Advocate, left the house. When he asked the defendant to explain her position, she said that she wanted a divorce. The plaintiff, after few days, took away his daughter "as he did not want to keep her under the influence of the defendant". On 6-1-1972, the defendant in collusion with Mr. Muhammad Nawaz Kasuri, Advocate lodged a false report with the police that the plaintiff had abducted his daughter and stolen a television. Thereafter, the defendant started asserting that she was the owner of the house and the shops. The plaintiff told her ".that she was a `benamidar' and he had made this arrangement in order to provide her a secure living but the defendant insisted on denying the title of the plaintiff'. The plaintiff went on to say that "the defendant had neither the means nor the money to purchase and construct the aforementioned properties when she came to Pakistan. The plaintiff had spent the entire money for the purchase and the construction of the property". 5. In her written statement, which was a detailed document, the defendant took a preliminary objection that as the plaintiff was not in possession of the suit properties, the suit was not maintainable. On merits, she stated that before their marriage, the plaintiff's father was supporting him in England but after the marriage, "his father stopped doing so and the latter became a destitute. He had no other source to continue his studies". She was the only daughter of her rich parents and was also "getting grant from the country for her studies". She, therefore, supported the plaintiff to enable him to complete his studies. After his graduation, the plaintiff was employed but his "meager income" was not sufficient to make their both ends meet. She graduated in 1960 and obtained a post-graduation diploma in 1961 and was immediately employed as a teacher. In November, 1961, they came to Pakistan but as the plaintiff could not get "suitably remunerative employment and the defendant's earning was not sufficient to feed the family", they went back to settle abroad, in March, 1962. The plaintiff was re-employed with South Wales Switchgear Ltd. He used to be out of Wales Post of the time and would see her and her daughter once a week. He
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could hardly support his cousin Abdul Latif, etc. and his family. The defendant maintained her and her daughter with her own money. During their stay in England from March, 1962 to 16th January, 1968, when they came to Pakistan, "the entire savings of the plaintiff were about Pounds 200 which he spent on purchasing of gifts, etc. for his relations and friends". She denied that he had brought two cars to Pakistan; according to her, "no one can import two cars at one time". In fact the cars were purchased by the defendant "and she paid the price out of her own earnings and bank account". The defendant purchased one car in the plaintiff's name and the other in her own name. The car purchased by the defendant in the plaintiff's name was in fact on trust with the plaintiff who had fraudulently and dishonestly sold the same on 5-1-1972 to Mr. Muhammad Nawaz Kasuri, Advocate. The second car which was purchased in the defendant's own name "was given by the plaintiff to his cousin and plot 68-II, Gulberg-III was purchased by the defendant accordingly". She stated further that "before the actual sale deed was registered, the defendant requested her mother abroad to advance the defendant money for the purchase of land for shops andconstructions thereonThe plaintiff, however, with the neurotic and vicious behavior forced the defendant to request her mother to send the money in plaintiff's name instead of defendant's name and the idea conveyed by the plaintiff to the defendant was that a foreigner cannot send money to a foreigner but in fact the plaintiff fraudulently got bonus from the Government to the ignorance of the defendant. Accordingly, the defendant's mother started depositing money in the bank in the plaintiff's name "by getting signatures of some of the plaintiff's relatives on the remittance forms". This statement is followed by a detail of 12 cheques with their dates and amounts sent to Pakistan during the period from 12-4-1968 to 2-12-1969, the total amount of these cheques being Pounds 13063. Thus, the plaintiff first "defrauded the Government of Pakistan and illegally obtained bonus on the amount given to the defendant by her mother" and "secondly the defendant purchased a commercial plot and the plaintiff introduced himself as a co-owner to the extent of one-half. The impression given to the defendant was that if both the plots were purchased only in the name of the defendant, she will be burdened with heavy income-tax as she was already earning about Rs.2,400 per mensem from the American School, where she is still employed and the plaintiff became a co-owner to the extent of half share fraudulently". 6. Thus, according to her, both the plots were purchased and the construction thereon was raised with her mother's money; she had been in the physical possession of the house and out of the five shops, four were in possession of her tenant and the 5th in her exclusive possession. She claimed, therefore, that she was also the owner of one-half of the shops which stood in the name of the plaintiff. Even if it be proved that the plaintiff was the owner of that one half of the shops, "even then the so-called half share was purchased for the defendant's benefit and advancement with the object of making her absolute owner". With this purpose in view, the plaintiff executed a power of attorney in favour of the defendant and she has been enjoying the property to her own benefit throughout". 7. As regards the allegations of adultery, they were, according to her, not only defamatory, libellous in nature and malicious but also preposterous, false and concocted. She had on 18-9-1970, received a letter from the State Bank of Pakistan accusing her of violation of Martial Law Regulations by the plaintiff. The wife of Mr. Muhammad Nawaz Kasuri, Advocate, was also a foreigner; she and Mr. Muhammad Nawaz Kasuri's wife were not only colleagues but were also fast friends. Through Mr. Kasuri's wife, she consulted Mr. Muhammad Nawaz Kasuri, Advocate, when a dispute with one of her tenants arose and when the State Bank of Pakistan accused her of illegalities. . It will be noticed that the defendant had in her written statement stated a number of new facts. In particular, she had in para. 1 of the written statement stated facts throwing light on the financial status of the parties. In particular, she disclosed that it was her mother, who had on her request
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remitted as much as Pounds 13063 in the name of the plaintiff during the period from 12-4-1968 to 2-12-1969; according to her, it was with that money that the plots were purchased and the buildings were made. These new facts, therefore, required a reply from the plaintiff. Accordingly, he filed a replication. In reply to para. 1 of the written statement concerning the statement of facts that the defendant's mother had sent the abovementioned sum of Pounds 13063, he said: "It is denied that the mother of the defendant remitted the amount mentioned in the para. The suit properties were purchased by the plaintiff with his own money and the defendant had no means to purchase the properties at the time when the properties were purchased. It is further submitted that when the defendant got employment in Lahore American School, she remitted her salary for the first two years to her mother in U.K. through Ist City National Bank and Bank of America." He specifically mentioned a sum of Pounds 700 which,- it should be mentioned here, was the sum remitted by one of the cheques dated 2-12-1969 mentioned in para. 1 of the written statement; he said that sum was sent to him and was his earnings in UK He denied that the defendant was entitled "to any counter--claim since she is not the owner of the suit properties". 8. On the parties' pleadings, the following issues were formulated and tried:--- (1) Whether the suit is not maintainable in its present form? OPD - (2) Whether the allegation :Hagainst Mr. Muhammad Nawaz Kasuri describing his rolein relation to the case, are . irrelevant and scandalous? OPD (3) Whether the plaintiff received any money from defendant's mother, if so, what was this money and how was it spent? OPD. (4) Whether the plaintiff is the owner. and defendant a "benamidar" of both the suit properties? OPD (5) Whether the defendant is estopped from setting up her own title as against the plaintiff? OPP (6) Relief. The suit was first tried by a learned Civil Judge, Lahore, who by his order dated 25-6-1979 decided the first issue against the plaintiff, holding that the possession of the house was admittedly with the defendant and the suit was not maintainable in its present form. On the plaintiff's appeal, however, the learned Additional. District Judge, Lahore; set aside that order and by his judgment dated 10-1- 1981, remanded the case "for decision in accordance with law after taking evidence on all the points in controversy and on the basis of pleadings". 9. When the suit went back, a prayer was made that issue No. 1 should be struck off. The learned Civil Judge, however, observed by his order dated 13-6-1988 that issue stood decided and no question of deleting it arose. He was, however, of the opinion that the issue could not be decided afresh. 10: At the trial, the plaintiff called 22 witnesses. He himself appeared into the witness-box as P.W.15 P.W.23~ was his attorney Mian Ejaz Ahmed. The latter gave evidence in rebuttal after the defendant had closed her evidence. On the other hand, the defendant called three witnesses, D.W.3 Mr. Muhammad Nawaz Kasuri, Advocate being her attorney. As many as 30 documents were produced by the plaintiff; the defendant produced 25 documents. 11. The learned Additional District Judge thought that issue No. 1 could not be reopened "in the presence of order dated 13-6-1988 which is still in the field and the same has not been appealed against by way of appeal or revision". Issue No. 2 which was whether the allegation against Mr. Muhammad Nawaz Kasuri, Advocate was irrelevant and scandalous should in the opinion of the learned Additional District Judge be struck off and was accordingly struck off under Order 14, Rule 5 of the C.P.C. On issue No. 3, which was whether the plaintiff had received any money from defendant's mother, if so, what was this money and how was it spent, the learned Additional District Judge referred to the cheques Exh. D.W.3/2 to Exh. D.W.3/16 from Mrs. V.E. Monte, mother of the defendant which money, according to the plaintiff! was his money and not that of the defendant's
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mother. The case tried to be made by him, to quote the learned Additional District Judge, being that "the said amount is in fact the amount of salary of the plaintiff which according to the family settlement firstly used to go in the account of the defendant and then from defendant's account to that of her mother's account and the said amount was then sent to Pakistan through cheques". The learned Additional District Judge referred to the document "Exh. P.W.23/1 which was a letter from Lloyds Bank, Queens Road, Cardiff, England. This document, so held the learned Additional District Judge, made it crystal clear "that the amount so sent by defendant's mother through cheques Exh. D.W.3/2 to D.W.3/16 was the money belonging to 'the plaintiff'. This document, the learned Additional District Judge held further "has totally smashed the very claim of the defendant". He was, therefore, of the view that "the said amount which was sent by the mother of defendant was the money of plaintiff and not that of the mother of defendant's and decided issue No. 3 accordingly. On issues Nos. 4 and 5, the learned Additional District Judge referred to the plaintiffs evidence. He had stated that when he came to Pakistan, he brought two cars and one thousand pounds (1000 Pounds). He obtained the money, a sum of Rs.30,000 by selling the cars, Rs.23,000 as loan from his mother and some other loans from Abdul Haque and Mian Ehsanul Haq P.W. 20. The plaintiffs monthly salary in England was Rs.50,000.00. His total income from March, 1962 to December, 1967, was about 16,000 Pounds. His salary used to be credited into the account of the defendant and from that account to her mother's account. The learned Additional District Judge then referred to oral and documentary evidence of the plaintiff, especially the evidence of P.W. 2 who was the contractor who had built the properties and also the evidence of P.Ws. Nos. 6, 11, 14 and 20 and found that "both the properties were built by the plaintiff after purchasing the vacant plots from his own money". There was, so observed the learned Addid-4nal District Judge, no evidence in rebuttal. The powers of attorney Exh. D. 17 and D. 18 also in the opinion of the learned Additional District Judge, went a long way to prove the ownership of the plaintiff. Referring to the defendant's explanation that the power of attorney was given to make the defendant full owner of the property and further to raise money after selling the same "so as to return the amount of her mother which was sent by her". It, so observed the learned Additional District Judge, "strengthens the case of the plaintiff that the plaintiff is the real owner of the property, otherwise there was no fun in getting the general power of attorney and this explanation further smashes the case of the defendant because when it is stated that general power of attorney was given in order to raise money so as the amount sent by her mother be returned to her, that would mean that the said amount was at the most for the sake of arguments nothing but a loan advanced to the plaintiff and that was not used in order to acquire the ownership by the defendant in respect of the said property". 12. Before the learned Additional District Judge, an application was made on .behalf of the plaintiff seeking "a relief of possession on the principle of status quo ante". The learned Additional District Judge, however, held that "relief of possession also cannot be granted as the same was not prayed in the very suit ... and "he cannot surpass the limits of prayer made in the suit which was filed as back as in January, 1972. He therefore, dismissed the application.' 13. Learned counsel for the defendant, appellant herein, criticised the judgment of the learned Additional District Judge on various grounds. He pointed out that although the parties' evidence consisted of 23 witnesses on one side, 3 witnesses on the other and as many as 25 witnesses on both sides, yet the learned Additional District Judge was content to refer to the cheques Exh. D.W.3/2 to D.W. 3/16 and to Exh. P.W. 23/1 to hold that the plaintiff was the real owner of the properties in question. He pointed out that Exh. P.W.23/1 was produced at a very late stage of the evidence; it had not been relied upon by the plaintiff and as it was produced in the evidence of the plaintiff's attorney in rebuttal evidence, after the defendant had closed her evidence, the defendant was taken by surprise and had no opportunity to rebut it. He argued that he case tried to be set up by the plaintiff in the evidence of P.W.23 was wholly inconsistent with the case as laid in
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the plaintiffs pleadings. He referred to a number of precedent cases, Muhammad Sajjad Hussain v. Muhammad Anwar Hussain (1991 SCM R 703) being one of them to contend that the source of consideration for the transactions in question was the most important criteria to determine whether the transactions in question were benami. The burden to prove that fact so contended the appellant's counsel was upon the plaintiff and even Exh. P.W.23/1 failed to discharge it. Learned counsel for the plaintiff, respondent herein, on the other hand, maintained that a benami transaction is a paradox: it is a transaction of faith and what matters is the psychology of the man who purchases the property in the name of another. In this case, this was, so argued the learned counsel, the more so, for nobody was being deceived. Here, two mentalities, one Eastern and other Western, were working: to apprehend the real nature of the transaction, it must, so argued the learned counsel for the plaintiff, be remembered that in the West people are compulsive spenders: they do not save that a man from this region must have for his future. In fact those who go abroad go with the idea to earn, save and then to return to their country to build property. In that context, he also wanted it to be kept in mind that while the plaintiff naturally wanted to come back to Pakistan to settle here the defendant had no interest to do so: she would not therefore, invest her own money here in acquiring property. These, so contended the plaintiffs counsel, are the primary facts and the truth cannot be reached unless they are' properly apprehended. He argued further that for the catastrophy that be fell the plaintiff, ruining his family life the blame lay entirely at the door of Mr. Muhammad Nawaz Kasuri, Advocate. In his opinion, the plaintiff was entitled to bring on record Exh. P.W.23/1: it was properly admitted in evidence and was rightly held by the learned Additional District. Judge to have the effect of smashing the defendant's case. He also thought that in the facts of the case, the plaintiff was entitled to the relief of possession also and if need be, the plaintiff should be allowed to amend his plaint and given that relief by this Court. 14. The word "benami" is used "to denote two classes of transactions which differ from each other in their legal character and incidents. In one sense, it signifies a transaction which is real as for example when A sells properties to B but the sale deed mentions X as the purchasers. Here the sale itself is genuine, but the real purchaser is B, X being his benamidar. This is the class of transactions which is usually termed as benami. But the word `benami' is also occasionally used perhaps, not quite accurately to refer to as sham transaction, as for example, when A purports to sell his property to B without intending that his title should cease or pass to B. The fundamental difference between these two classes of transactions is that whereas in the former there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none such, the transferor continuing to retain the title notwithstanding the execution of the transfer deed. It is only in the former class of cases that it would be necessary, when a dispute arises as to whether the person named in the deed is the real transferee or B, to enquire into the question as to who paid the consideration for the transfer, X or B. But in the latter class of cases, when the question is whether the transfer is genuine or sham the. point for decision would be, not who paid the consideration but whether any consideration was paid:' (See Sres Meenakshi Mills Ltd., Maduraj v. Commissioner of Income-tax, Madras AIR 1957 SC 149). 15. This case belongs to the first category, that is, the category in which the transaction was a real and not a sham transaction. 16. To such transactions, section 82 of the Trusts Act, 1882, applies. That section enacts: . "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." In the words of the Privy Council in Bilas Koer v. Deoraj (AIR 1915 PC 96), where it is asserted that art assignment in the name of one person is really for the benefit of another person, the principle
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applies that ,the trust of the legal estate results to the man who pays the purchase money. 17. It is well-settled that in this sub-continent the English doctrine of advancement does not apply and it must be said in fairness to learned counsel for the defendant that though she was an English lady, yet he did not invoke it. And, as section 82 of the Trusts Act itself provides expressly, the crucial question is whether…
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