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Petitioner: MUHAMMAD SADIQ KHAN VS Respondent: Mst. TEHZEEB KHANUM and 6 others
Court Name: Sindh High Court Judge(s): Salahuddin Panhwar Title: MUHAMMAD SADIQ KHAN vs Mst. TEHZEEB KHANUM and 6 others Case No.: Suit No,1400 of 2011 Date of Judgment:2016-01-02 Reported As: 2017 YLR 341 Result: Suit dismissed
JUDGMENT
JUDGMENT ' SALAHUDDIN PANHWAR, J.---This judgment will dispose of the above suit, for Declaration, Cancellation, Damages, Permanent and Mandatory Injunctions with following prayers:-- a) For declaration that the plaintiff is the actual owner in possession/ occupation, and the Defendant No,1 is simply Benamidar, of the Leased commercial Property bearing plot No,28-C, 22nd East Street Phase-I Ext. Measuring 200 Sq. Yds, D.H.A. Karachi with entire school construction thereon; b) For declaration that the defendants Nos.2, 3 and 4 have fraudulently, deceitfully and collusively managed and manipulated by obtaining the signatures and thumb impressions of the defendant No,1, over the deed of Declaration and Confirmation of Oral Gift, deed dated 27.6.2006, bearing R.No,305, Book No,1, SubRegistrar-1, Clifton Town Karachi M.F. Roll No,49979 dated 29.6.2006 in respect of suit property and the defendants Nos.2 and 3 have clandestinely taken away its Original File containing title documents, and they on the basis of the same mutated their names in the records of official defendants; ' For cancellation of deed of declaration and confirmation of oral gift dated 27.6.2006 bearing R. No,3015, Book No, 1 , Sub-Registrar-1, Clifton Town Karachi M.F. Roll No,9979 dated 29.6.2006 and Transfer/Mutation in respect of Suit Property in the Records of official defendants as the same have got no value in the eyes of law and the same are void; ' For Recovery of damages to the tune of Rs,5,00,00,000/- (rupees Five Crore only) from the defendants Nos.2 and 3; ' For Mandatory injunction thereby directing the defendants Nos.2 and 3, to return the Original File of the Suit Property back to the plaintiff and also direct the defendants Nos. 2 to 7 surrender and
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cancel the said Registered Deed of declaration and confirmation of oral Gift and Transfer/Mutation, in respect of the suit property, in the Official Records, and in case of their failure the Nair of this Hon'ble Court be directed to do the same; ' For permanent injunction thereby restraining the Defendants, their heirs, successors, attorneys, agents, nominee, servants, subordinates and all persons directly or indirectly under them, from creating any third party interest and disturbing/dispossessing/ ejecting from the occupation/ possession of the plaintiff in any manner whatsoever in respect of Suit property; g) Full cost of the suit; h) And any other relief that this Hon'ble Court may deem fit and proper in favour of the plaintiff. 2. Succinctly, relevant facts are that plaintiff has been rendering services to promote education and educated thousands of students. The defendant No,1 is wife of plaintiff while defendants Nos.2 and 3 are his real daughters besides other daughters and sons. Plaintiff after matriculation joined service as Jr. Clerk in Pakistan Railways and during service completed his education up to M.Ed. In the year 1965 plaintiff was transferred from Hyderabad to Karachi and he was promoted to post of Teacher in Railway High School. He, apart from teaching in school, used to teach students in evening as a private tutor. In year 1970 plaintiff purchased a residential plot bearing No,S-42, measuring 120 Sq. Yds, situated at Staff Line, 8th Street, Phase-1, DHA Karachi' in his name, against a total sale consideration of Rs,5000/- and made construction thereon for residential purpose. In the year 1977, he retired from his said service and joined another school namely Pakistan Navy High School as a senior teacher and also continued private tuitions to students at their residences. As such plaintiff did hard work to facilitate his family members to meet their basic needs i,e, good accommodation and proper education. He resigned from service to establish his own school, hence he purchased a residential plot bearing No,S-32, measuring about 200 Sq.Yds situated at 18th East Street, Phase-1, D.H.A. Karachi against a total consideration of Rs,45,000/- and made construction thereon. In year 1982 plaintiff sold said houses and purchased a residential plot No,X- 30, measuring 500 Sq.Yds, 18th East Street Phase-1 DHA Karachi in his name against a consideration of Rs,200,000/-. He started his school in said house with name and style of 'Model Public School' and got it registered from the Board of Secondary Education, Karachi. 3. It is further case of the plaintiff that in year 1993, from his own sources, he purchased a commercial plot No,28-C, 22nd East Street, Phase-1 Ext. Measuring 200 Sq.Yds, DHA Karachi and got it registered in the name of his wife/defendant No,1 vide 'C' lease Reg. No,3015, with Sub-Registrar, Clifton Town Karachi and raised ground mezzanine and three floors construction thereon and shifted his said school from the said residential plot No,X30, to said Commercial plot No,28-C, property in question, as the Defence Housing Authority/defendant No,5, objected the running of the said school in the residential premises. The plaintiff being the actual owner and landlord of said school property/suit property wherein the plaintiff since beginning has rented out ground floor two shops and one Canteen to his different Tenants and presently the Tenants are (a) Nasir (b) Intizar Hussain, and (c) Mehmood, who are paying the taxes in respect of the same. For extension of said school plaintiff in the year 1995 purchased another commercial plot No,25-C, measuring 200 Sq. Yds, situated at 23rd East Street, Phase-1, DHA Karachi vide 'C' lease, in his own name, and raised construction thereon. Plaintiff has six children whom five are married. In the month of April, 2011 plaintiff came to know through the official of DHA/ defendant No,5 that defendants Nos.2 and 3 are attempting to transfer of the suit property bearing No,28-C, 22nd Street, Phase-1 Ext. DHA Karachi in their names, on the basis of some Gift documents and the plaintiff obtained photocopies of Deed of Declaration and Confirmation of Oral Gift, dated 27.6.2006 bearing R.No,3015, Book-1 Sub- Registrar-1, Clifton Town Karachi M.F.Roll No,49979 dated 29.6.2006 and Mutation letters of defendants Nos.6 and 7 in the names of defendants Nos.2 and 3. Plaintiff was shocked and surprised to see same and rushed to his wife/defendant No,1 who also got surprise and shock when
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the contents of the same were read over in Urdu. Defendant. No,1 disclosed that at that time the Defendants Nos.2 and 3, on the excuse of medical treatment, took the defendant No,1 in their car and they (defendants Nos.2 and 3) in collusion with defendant No,4, obtained/got the signature and thumb impressions of defendant No,1 who at that time, was not physically and mentally well rather she was under medical treatment. Defendants Nos.2 and 3, being elder daughters of the plaintiff and defendant No,1, were having visiting terms to their parents and also looking after the defendant No,1 and as such the defendants Nos.2 and 3 taking advantage of situation played said fraud with the defendant No,1 and clandestinely took away the original file, containing title documents of the suit property from the house of defendant No,1, who has never gifted the said suit property to the defendants Nos.2 and 3 in any manner whatsoever and her signature and thumb impression have been obtained fraudulently and deceitfully by defendants Nos.2 and 3 in spite of fact they were very much in knowledge that the suit property actually belongs to the plaintiff. As such the defendant No,1, made protest over the same to the defendants Nos.2 and 3 and complained to the relatives in respect of the same and ultimately filed Suit bearing Suit No,584/2011 for Declaration, Cancellation of Oral gift deed and permanent injunction in respect of suit property in the court of Vth Senior Civil Judge (Sought) Karachi against the defendants Nos.2, 3 and DHA. Defendants Nos.2 and 3 filed their written statement and twisted the real facts falsely and mala fide and raised false contentions and allegations against the defendant No,1, and plaintiff, which are all false and mala fide rather the same are after thought for wrongful gain on the part of defendants Nos.2 and 3. The plaintiff made serious protest to the defendants Nos.2 and 3 personally and through relatives and called upon them to surrender and withdraw their fraudulent and deceitful ownership rights in respect of the suit property but the defendants Nos.2 and 3 misbehaved and insulted the plaintiff and rather threatened the plaintiff of dire consequences. The plaintiff claimed that defendant No,1 was simply a Benami and the plaintiff was actual owner of the suit property hence he filed the instant suit. 4. In response to notice(s)/summon(s) the defendant No,1, filed her written statement wherein she admitted the plaintiff to be 'actual owner' and acknowledged her status as 'benami'. She admitted almost all the contentions of the plaintiff even that defendant Nos.2 and 3 obtained title fraudulently. She also admitted that she filed Suit No,584/2011 for Declaration, Cancellation of Oral gift deed in respect of suit property which was returned under Order VII Rule 10, C.P.C. And same was then filed in this Court, having pecuniary jurisdiction. 5. The defendants Nos.2 and 3 filed their joint written statement whereby took preliminary legal objections. They claimed that they themselves continued their education by earning of their own. They denied that plaintiff sold houses in year 1982 but on 8th July 2006 plaintiff gifted house No,S- 32, 18th East Street to the defendant No,2 and he (plaintiff) sold out only house No,S-42, Jami Staff Lane No,8, Phase-1. It was further pleaded that defendant No,3 and plaintiff jointly started running school in 1984. It was claimed that subject property was purchased from joint income of plaintiff and defendant No,3 in name of defendant No,1 who in October, 2004 handed over the property to defendants Nos.2 and 3 simultaneously the plaintiff took the suit property on rent at the rate of Rs,40,000/- per month although the rent of said building at the relevant time should have been at least 100,000/- rupees per month. In June 2006 the defendant No,1 gifted the suit property in joint names of defendants Nos.2 and 3 and declaration of confirmation of gift in this regard was also duly registered with Sub-Registrar Clifton Karachi. The defendant No,3 de-attached and disassociated from the joint venture and started her own school separately and independently under name and style of 'LINKS PUBLIC SCHOOL' and simultaneously called upon the plaintiff to vacate the building (subject matter) but plaintiff, instead of vacating the premises, stopped paying rent and got Suit No,584/2011 instituted by defendant. The original lease deed/title documents of said property No,25-C are still with answering defendants. The defendants claimed the gift legal,
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valid and lawful and pleaded that suit was filed by defendant No,1 which she later withdrawn; defendants Nos.2 and 3 have filed rent case No,91/2011 against the plaintiff before Additional Controller of Rents, Clifton Cantonment Karachi. 6. The defendant No,5, in its written statement, pleaded that suit property was mutated in name of defendants Nos.2 and 3 in year 2009 through oral gift deed dated 27 June 2006; Civil Suit No,584/2014 is pending in court of Vth Senior Civil Judge, Karachi South. It was further asserted that there is no concept of benami transaction as per rules and regulations of DHA. 7. Out of the pleadings of the respective parties, the following issues were framed:-- (1) Whether the suit, in its present form, is maintainable? (2) Whether the plaintiff is actual owner of the suit property? (3) Whether the gift deed executed in favour of defendants Nos.2 and 3 by defendant No,] is a forged document? (4) Whether declaration of confirmation of oral gift dated 27.6.2006 is liable to be cancelled? (5) Whether the plaintiff is to be entitled to claim damages, if yes, to what extent? (6) What should the decree be? 8. The matter was referred to Commissioner for recording the evidence. Accordingly, in order to prove the issues, the PW-1 Muhammad Sadik Khan (Ex.P/1) filed his affidavit in evidence and produced other documents as Ex.P/1 to Article 0/16 and that of PW-2 Shahzad Haider filed his affidavit in evidence. They were cross-examined. 9. The attorney of the defendant No,1, also filed his affidavit in evidence and filed copy of Suit No,363/2012 'ReMst. Tehzeeb Khanum v. Mst. Asia Malak and others documents as Article-X, X/1 and D/2; he was cross-examined. 10. One Nasir Mehmood, attorney of defendants Nos.2 and 3, filed his affidavit in evidence (Ex.D) and produced number of documents from Ex.D/1 to D/39. He was cross-examined. 11. On conclusion of trial, the learned counsel for the plaintiffs has argued that suit is maintainable under Sections 39, 42 and 55 of Specific Relief Act, 1877 and is filed within time. Since it is a case of fraud hence question of delay is immaterial. Reliance is placed reliance on case laws reported as Qureshi Noor Hussain v. Ghulam Jan [PLD 1984 Pesh. 86]; Pahloomal Motiram v. Abdul fuddus Behari and 7 others [PLD 1971 Karachi 250]; Fatahuddin v. Zarshad [1973 SCMR 248]; Zaheer Ahmad v. Government of Sindh [1999 MLD 2881]; Muhammad Aziz Khan v. Muhammad Hanfi [2012 CLC 1521]. He added that plaintiff purchased property from his own source of income and title in name of defendant No,1 was benami which she (defendant No,1) herself admitted; defendants Nos.2 and 3 admitted in their affidavit-in-evidence that suit property was purchased by joint income of plaintiff and defendant No,3 which admission indicates undisputed ownership of plaintiff to extent of 50 paisa. He placed reliance on case laws reported as Daulat Ali v. Ahmad [PLD 2000 SC 792]; Naseer Ahmad v. Asghar Ali [1992 SCMR 2300]; S. Lqbal Ahmad v. Jawaid lqbal [2011 CLC 29]; Sher Muhammad v. Muhammad Sharif [PLD 1984 Lah. 117]; Mst. Nasira Ansari v. Mst Tahira Begum [2007 CLC 92] and Abdul Majeed and others v. Amir Muhammad [2005 SCMR 577]. He further argued that since no marginal witnesses of gift deed were produced nor requirement of Article 79 of Qanun-e- Shahadat Order 1984 were complied by defendants. Reliance was placed on Abdul Ghafoor and others v. Mukhtar Ahmed Khan and others 2006 SCMR 1144; Sahib Noor v. Feroz Khan [1992 MLD 2563] and Abdul Hameed v. Shamasuddin [PLD 2008 SC 140]. He concluded that plaintiff has proved his case hence suit may be decreed. 12. The counsel for the defendant No,1 also supported the contentions, raised by counsel for the plaintiff. 13. On the other hand, the learned counsel for the defendants Nos.2 and 3 stoutly argued that suit is not maintainable and is hit by Articles 91 and 120 of Limitation Act; suit is also barred as third person cannot seek revocation or cancellation of a gift because such matter is in between Donor and
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Donee. Reliance was placed on Jamal, Din v. Syed Altaf Hussain Shah and others [2005 MLD 1351]; plaintiff since 1993 never claimed himself as real owner hence suit is not maintainable. He while referring to number of admissions of the plaintiff argued that plaintiff failed to establish his status as actual owner; gift deed was duly registered as per law, rules and procedure hence presumption of truth is attached to such document. Reliance was placed on Muhammad Hanif v. Province of Punjab [2007 CLC 1309]; Muhammad Bashir and others v. Muhammad Ashraf and others 2004 PLC (C.S.) 361 = 2004 SCMR 279; Lt. Muhammad Sohail Anjum Khan v. Abdul Rasheed Khan [2003 MLD 1095] and Mehfooz-ur-Rehman and 4 others v. Mst. Riffat Ahad and 2 others [2007 MLD 382]. He concluded that plaintiff failed in proving the issues hence suit is liable to dismissal. 14. Heard learned counsel for plaintiff and defendants and have also meticulously examined the available material. My findings on the issues with reasoning are as under:- ' FINDINGS Issue No,1 'affirmative' ' Issue No,2 'Negative' ' Issue No,3 'as discussed' ' Issue No,4 'as discussed' ' Issue No, 5. 'negative' ' Issue No,6 suit is dismissed. ' ISSUE NO.1. Whether the suit is maintainable under the law in its present form?' 15. The burden to prove this issue also rests upon the plaintiff. Since, there can be no denial to the legally established principle of law that locus standi and legal character are mandatory requirement for one to maintain a suit and in absence thereof a suit shall not be maintainable. The present plaintiff filed the instant suit not only for declaration of his own legal status as actual owner but also sought cancellation of the registered document to which he (plaintiff) is not a party. The plaintiff could maintain the suit for declaration of his legal status and could also maintain a suit for cancellation of a document under such declaration. The legal position, being so, shall stand clear from a reference to Section 39 of the Specific Relief Act, 1877 which reads as:-- "39. When cancellation may be ordered: Any person against whom a written instrument is void or voidable, who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the Court may, in its discretion, so adjudge it an order it to be delivered up and cancelled." ' From perusal of above, it appears that 'any person' can seek cancellation of a written instrument as 'void or voidable' only if remaining of such document outstanding may cause him serious injury. The question, relating to limitation, being a mixed question of law and fact, would require adjudication and determination hence suit cannot be said to be not maintainable in its present form. Accordingly, I answer this issue in affirmation. ' ISSUE NO.2 Whether the plaintiff is actual owner of the suit property?' 16. The burden to prove this issue squarely falls upon the plaintiff. The language in which the above issue is couched though is not containing the word 'benami transaction' however, since the pleadings of the parties leave nothing ambiguous that the issue in question was framed in this respect. If things are allowed to remain within four corners of the issue, so worded, yet the term 'actual owner', used in this issue, would permit to include the term 'benami transaction'. Therefore, do not find myself in agreement with the argument of the learned counsel for the defendants Nos.2 and 3 that issue with regard to 'benami transaction' is not framed hence pleas, raised by plaintiff's side, in this regard cannot be legally considered.
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17. 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.' ' 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. 18. 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 as property 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; 19. 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 someone else with status of owner. In absence of plausible motive/reason one would not be legally entitled to disbelieve the 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]. 20. 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 Rasool 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."
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Underlining is provided for emphasis. 21. Let's examine the evidence of the plaintiff on above touch-stone. The pleading of the plaintiff so also examination-in-chief are silent with regard to 'motive/reason' which made him to purchase the suit property in name of his wife, the defendant No,1 particularly when he (plaintiff) undeniably purchased number of properties in his own name and even gifted to his other children as is evident from his admissions made in cross-examination i,e,: "It is correct to suggest that I gifted the building of 25-C, East Street, Phase-I to my son Arif Jamal in the year 2009. It is correct to suggest that I have purchased the plot No, Y-23, 19th East Commercial Street to my son Arif Jamal. It is correct that I also given the Plot No,25-C Gali No,1, Sector A, Akhtar Colony in the name of my son Tariq Khan. It is correct that I have also given the plot measuring 160 square Yards situated in Azam Town to my son Tariq Khan. ...It is correct that I have given the Flat No,], Plot No,27-C, DHA Karachi to my daughter Bushra Sadiq." 22. There is no explanation from the side of the plaintiff for obtaining title in name of his wife, the defendant No, 1. The status of the defendant No, 1 as house-hold lady is not challenged by the defendants Nos. 2 and 3 but this alone shall not be sufficient to believe the transaction as 'benmai' particularly when it is also a matter of record that defendant No,1, at first available opportunity, (at time of filing the Suit No,584/2011 'ReTehzib Khanam v. Mrs. Asia Malik and others' had pleaded in first para of that plaint as:-- 'That the plaintiff is owner and in possession of constructed plot (ground plus three) bearing number 28-C, 22nd East Street measuring 200 sq. Situated at Phase-1 Defense Housing Society, Karachi...." 23. That, defendant No,1 in her written statement admitted her ownership as 'benami' but she (defendant No,1) did not examine herself nor she (defendant No,1) was called by the plaintiff which he…
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