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Petitioner: Syed ALI MUHAMMAD NAQVI through L.Rs, and others VS Respondent: ABBAS RAZA and JUDGMENT
Court Name: Sindh High Court Judge(s): Nazar Akbar Title:Syed ALI MUHAMMAD NAQVI through L.Rs, and others vs ABBAS RAZA and
JUDGMENT
Reported As: 2018 YLR 1616 Result: Order accordingly Judgment JUDGMENT NAZAR AKBAR, J.---Plaintiffs have jointly filed this suit on'19.9.1997 for Declaration, Possession, Cancellation of Sale Deed and Injunction against the sole private defendant and have also impleaded KDA as proforma defendant in respect of House bearing Plot No,4, Row No,2, Block-II, Sub-Block 'E' measuring 216 sq. yards situated at Nazimabad, Karachi, (suit property). Plaintiff No,1 is real grandfather and plaintiffs Nos,2 to 6 are real uncles and aunties of the sole private defendant who claimed to have purchased the suit property on 31.12.1996 from his grandmother Mst. Saeeda Begum. The plaintiffs have prayed for the following relief(s):-- a) To declare that the Plaintiffs and late Mr. M.A Kazim are the sole and absolute owners in respect of House bearing Plot No,4, Row No,2, Block-II, Sub-Block 'E' measuring 216 sq. yards situated at Nazimabad, Karachi, and that Mrs. Saeeda Begum was only a Benamidar in respect of the said house and has no right, ownership, title thereto in any manner whatsoever. b) To grant judgment and decree cancelling the Sale Deed dated 31.12.1996 executed by Mrs. Saeeda Begum in the name of Defendant No,1 in respect of House on Plot No,4, Row No,2, Block-II, Sub-Block `E' measuring 216 sq. yards having been registered with Sub-Registrar, T Division Karachi on31.12.1996, bearing Registration No,3977 by Mrs. Saeeda Begum without having any right, ownership and title thereto and declare the mutation carried out by the Karachi Development Authority based on said so-called sale deed of no legal effect. c) To grant judgment and decree for possession in favour of the plaintiffs of the said House bearing Plot No,4, Row No,2, Block-I4 Sub-Block 'E' measuring 216 sq. yards situated at Nazimabad, Karachi or in the alternative and without prejudice to relief
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(a), (b) (c) under Para 21 above To declare that the sale deed dated 29th October, 1996 bearing Registration No,3977, dated 31.12.1996, has been executed and registered by Mrs. Saeeda Begum in the name of Defendant No,1 without any consideration having no legal right, title and ownership and by misrepresentation and fraudulent means having no legal effect whatsoever. d) To grant permanent injunction restraining the defendants, their servants, their employees or any body claiming through them form interfering with the possession of plaintiffs Nos,1 and 2 of the said house and from further negotiating, entering into agreement to sell or in any way transferring the said House by way of sale, gift or otherwise and giving the said sale deed dated 29.10.1996 any legal effect whatsoever. e) To grant any other relief or reliefs as this Hon'ble Court may deem fit in the circumstances of the case. f) To award costs of the suit to the plaintiffs. 2. Brief facts of the case are that plaintiff No,1, Syed Ali Muhammad Naqvi, Plaintiff No,3, Syed Hasnain Raza, Plaintiff No,4 Mrs. Naheed Fatima and Mohammad Agha Kazim, (who died in January, 1977) had jointly purchased the suit property and paid the entire sale consideration of Rs,9,500/- in the name of Mrs. Saeeda Begum (Wife of Plaintiff No,1 and mother of remaining plaintiffs and M.A Kazim (late) father of defendant No,1) as Benamidar. The plaintiffs as well as Mr. M.A Kazim had renovated and re-constructed the suit property from September, 1963 to early 1964. Plaintiffs Nos,1 to 5 and (Late) M.A Kazim had started living in the suit property. The plaintiffs and Mr. M.A Kazim during 1976 to June, 1977 further constructed first and second floors of the suit property from personal resources and loan of Rs,57,000/- from House Building Finance Corporation (HBFC). Their personal contribution was as under:-- 1. Plaintiff No,2 Rs, 172,000-00 2. Plaintiff No,3 Rs, 110,000-00 3. M.A. Kazim Rs, 43,000-00 Total Rs,325,000-00 The funds for initial purchase of the suit property in 1963 together with renovation/ rebuilding followed by 1st and 2nd floor construction in 1976/77 were pooled out of personal savings of plaintiffs Nos,1 to 4 and late M.A. Kazim, father of defendant No,1 and remittances from abroad to Pakistan by plaintiff No,2. Plaintiff No,2 Mr. Saqlain Raza Naqvi was in U.K during 1970-77 and plaintiff No,3 Mr. Hasnain Raza Naqvi was on Government special training in Canada and USA during 1977. Mrs. Saeeda Begum had no source of income whatsoever. She was living with the plaintiffs in joint family. All the plaintiffs and late M.A Kazim had provided her proper maintenance and other amenities of life. She was heart patient and in the year 1995 she had a severe heart attack, she was in a very bad state of her health and not in a position to understand the things properly and she was also hard of hearing and almost deaf. 3. It was averred that the plaintiffs are the sole and absolute owners and Mrs. Saeeda Begum was only a Benamidar and she was not real owner of the suit property and as such she had no lawful right or authority to execute the purported sale deed dated 31.12:1996 of the suit property in favour of defendant No,l. Mrs. Saeeda Begum lived with plaintiff No,3 at Islamabad for just over two months from 19.11.1996 till 22.1.1997 when she died due to heart failure. She never disclosed anything about the singing of sale deed in favour of defendant No,1 regarding the sale of the suit property on 31.12.1996 against consideration of Rs,6,60,000/-. Therefore, the sale deed transferring the suit property to defendant No,1 is without consideration and had been obtained by misrepresentation and fraudulent means and does not appear to have been signed and executed by her. On 24.2.1997 at time of chehlum of deceased Saeeda Begum at Islamabad, the plaintiffs within the knowledge of all the family members decided to transfer the suit property in the names of the
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plaintiffs. Therefore, the plaintiffs carried out search of all the documents relating to the suit property including National ID of Mrs. Saeeda Begum but the same were missing and not traceable. On 20.3.1997 the plaintiffs informed KDA (defendant No,2) and Excise Department in writing about the death of Mrs. Saeeda Begum and requested them to refrain from recording any change of ownership in their record.. Later on it was learnt that the suit property has allegedly been. sold by Mrs. Saeeda Begum to defendant No,1 and the request for mutation was pending in KDA. Plaintiff No,2 on 5.4.1997 again sent an application to KDA requesting them not to carry out mutation. The KDA, however, on 6.6.1997 carried out mutation without giving notice to the plaintiffs and ignored the correspondence on the ground that it was a family dispute and it has nothing to do with the mutation. The plaintiffs had therefore, filed the instant suit. 4. Defendant No,1 filed his written statement wherein he denied that the suit property was purchased in the name of Mst. Saeeda Begum as Benamidar by plaintiffs Nos,1, 3, 4 and by Mohammad Agha Kazim, his own father jointly as alleged. It is alleged that in the year 1963/64 plaintiffs Nos,2 and 3 were minors/students and had no source of income. The only earning member of the family at the time was plaintiff No,1, who was a teacher at monthly salary of about Rs,200/- and the father of defendant No,1 (M.A Kazim), was in Custom department. Since the parties were living in a joint family system and the father of defendant No,1 was unmarried, he used to give all his income in the hands of his mother Mst. Saeeda Begum. He admitted that a sum of Rs,57,000/- was taken as loan by Mst. Saeeda Begum from HBFC in the year 1976/77 but he denied that plaintiffs Nos,1 and 3 contributed any amount towards the construction of first and second floor or they contributed any amount for the repayment of HBFC loan. Defendant No,1 had, however, admitted that Mst. Saeeda Begum had no source of income and she was living in a joint family system but he denied that except his father any of the plaintiffs had provided any maintenance to said Mst. Saeeda Begum. 5. Defendant No,2/KDA had also filed written statement wherein different legal pleas were taken including suit is not maintainable, the relief claimed against KDA is barred under Sections 42 and 56 of the Specific Relief Act, 1877 and no cause of action has accrued to the plaintiff against the defendant/KDA. It was averred that the plot in dispute has been mutated in the name of defendant No,1 Mr. Abbas Raza on the basis of Registered sale deed executed in his favour by Mst. Saeeda Begum, the owner of the plot. 6. The court from pleadings of the partiers on 12.10.1998, had framed seven issues. However, on 29.11.2017, before the arguments, learned counsel for parties have conceded that issues adopted on 12.10.1998 may be re-casted as there are only two main issues and the decision on the two issues would cover the entire controversy. These two issues are as follows:- i. Whether plaintiffs Nos,1 to 4 and late M.A Kazim, father of defendant No,1 were absolute joint owner of the property in dispute and Mst. Saeeda Begum was benamidar and therefore, she had no right and title in the said house? ii. Whether the defendant No,] has obtained the sale deed dated 31.12.96 of the said house in his name by misrepresentation and fraudulent means without payment of sale consideration, if so, the said sale deed is liable to be cancelled? iii. What should the decree be? 7. Evidence of the parties was recorded by Mr. Tehsin Ahmed Bhatti, Retired District Judge, who was appointed as Commissioner for recording evidence. Plaintiff No,2 Syed Saqlain Raza Naqvi had filed his affidavit in evidence as Ex.P/1 along with various documents. He was cross-examined by defence counsel and learned counsel for the plaintiffs closed their side for evidence. Defendant No,1, S. Abbas Raza Naqvi had filed his affidavit in evidence as Ex.D/1. He filed original Sale Deed dated 31.12.1996 Ex:D/21 and several other documents. Defendant No,1 also produced one S. Hassan Raza jaffery as his witness Ex:DW-2, he has filed affidavit in evidence as Ex;D/26. The plaintiffs'
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counsel cross-examined both the witnesses of defendant No,1 and his counsel closed the side of defendant No,1 for evidence. 8. I have heard learned counsel for the parties at length and perused the record. 9. Learned counsel for the plaintiff has contended that Mst. Saeeda Begum was housewife and she never had independent source of earning. She was so illiterate that she had affixed her thumb impression on the sale deed in 1963 (Ex.D/3). The deceased Saeeda Begum was 81 years of age when the alleged sale deed was executed by her in favour of defendant No,1. He has further contended that the defendant himself has admitted that Mst. Saeeda Begum had no source of income and. the entire family has been living under one roof right from 1963 when the suit property was purchased from the joint fund of the earning members of the family namely the grandfather of defendant No,1, his own father late M.A. Kazim and his two uncles and one aunty (plaintiffs Nos,2, 3 and 4). Learned counsel has further contended that the fraud and misrepresentation in getting the sale executed in favour of defendant No,1 is apparent from the perusal of the sale deed itself that the executants Mst. Saeeda Begum has never appeared before the Sub-Registrar nor even the sale consideration has been paid before Sub-Registrar. The witnesses of execution of sale deed were one woman who was mother of defendant No,1 and one man who was maternal uncle of defendant No,l. His mother was not witness of payment of sale consideration to Mst. Saeeda Begum, though it was said to have been allegedly paid to her in her home, the suit property. He further contended that the very fact that defendant No,1 before purchasing the suit property from his old grandmother did not prefer to seek objection to the proposed sale transaction by publishing a public notice is sufficient to appreciate that he knew his grandfather who was then alive and living in the suit property and all uncles and aunties would object to such transfer as the suit property actually did not belong to her (Saeeda Begum) as she was ostensible owner out of respect and love for her being wife of plaintiff No,1 and mother of other plaintiffs and grandmother of defendant No,1. Even mother and sister of defendant No,1 have not come forward to support the sale transaction in favour of defendant No, 1. Learned counsel has provided list of the books of following case law. i. Abdul Hameed through L.Rs, and others v. Shamasuddin and others (PLD 2008 SC 140); ii. Shams-ud-Din and others v. Nusrat Hussain Cheema and others (2002 YLR 1568); iii. Mirza Allah Ditta alias Mirza Javed Akhter v. Mst. Amna Bibi and another (2004 YLR 239); iv. Mst. Akbar Jan through L.Rs, and 9 others v. Mst. Kalsoom Bibi and 6 others (2015 CLC 549); v. Mst. Bakhan v. Ahmad Yar (2006 YLR 831). 10. In rebuttal learned counsel for the defendant has contended that Mst. Saeeda Begum at all times has been real owner of the suit property and she was not benami. She exercised her authority on the suit property by letting it out to different tenants in her lifetimes namely WAPDA and PIA etc. and the original title documents had always been in her possession. None of the plaintiffs including her husband has disputed her title in her lifetime and therefore, she was not benami owner. He has further contended that she had furnished the title documents of the suit property as surety in G & W Suit No,503/1978 when after the demise of father of defendant No,1, his mother Mst. Tasneem Fatima Naqvi, had filed an application under Section 10 of the Guardians and Wards Act, 1890 for her appointment as Guardian of the person and property of the minors namely defendant No,1, who was 05 years of age in 1978 and his sister Farwa who was only 3 years. The surety furnished by Saeeda Begum was released from the Court in September, 1996 on the application of Mst. Saeeda Begum before it could be sold by her to defendant No,1 on 29.10.1996. He has contended that plaintiff has failed to discharge the burden of proving that the said Mst. Saeeda Begum was benami owner since the basic ingredients of benami transaction could not be established by the plaintiff. The possession of the suit property and original title documents had always been with the seller Mst. Saeeda Begum and the same were handed over to defendant No, 1
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when it was purchased by him. The counsel for the defendant at the end of arguments has provided list of the following case-law. i. Muhammad Sajjad Hussain v. Muhammad Anwar Hussain (1991 SCMR 703) ii. Manzoor Ahmed and 4 others v. Mehrban and 5 others (2002 SCMR 1391) iii. Abdul Majeed and others v. Amir Muhammad and others (2005 SCMR 577) iii. Wasi-ud-Din v. Fakhra Akhtar and 4 others (2011 SCMR 1550) iv. Dr. Muhammad Riaz Mirza and others v. Muhammad Yousaf Mirza and others (2005 YLR 2213) v. Salman Ashraf v. Begum Asmatun Nisa (1997 CLC 176) vi. Din Muhammad Wagan v. Mst. Rashida Khatoon through L.Rs, (2002 CLC 1573) vii. Mst. Asia Bibi v. Dr. Asif Ali Khan and others (PLD 2011 SC 829) viii.Mst. Sharifan Bibi and others v. Abdul Majeed Rauf and others (PLD 2012 Lahore 141) 11.My findings on the above issues with reasons thereon are as under:-- ISSUE NO.1 12.The initial burden of proving the title of the deceased Saeeda Begum as Benami owner was on the plaintiffs and the plaintiff in his cross-examination has been consistent to the plea that the property has been jointly purchased from the funds of the plaintiff No,1 (Late grandfather of defendant), plaintiff himself and other plaintiffs and even father of defendant No, 1. In the cross- examination, it has been categorically stated by the plaintiff that Mrs. Saeeda Begum, who was mother of the plaintiffs and grandmother of defendant No,1 had not purchased the suit property from her own resources and savings. The relevant portion of evidence regarding the payment of the sale consideration by the plaintiffs and not by Saeeda Begum is as follows:-- It is incorrect to suggest that the suit property was purchased by my mother from her resources and savings. Voluntarily states, "my mother had no independent source of income or savings." S. Ali Muhammad Naqvi one of the plaintiffs was School Head Master in 1963 and his salary was and Rs,500/- per month. Nahid the plaintiff No,4 is my sister and was School teacher from 1960 to 1970 and she got married in 1967 which marriage was dissolved but she again married in 1969. Mst. Nahid the co plaintiff is presently settled in Bolton U.K since 1974. It is incorrect to suggest that Mst. Nahid the co-plaintiff was not working or employed before her marriage or that she is still without any work or job. The suit property was purchased for Rs,9,500/- but it, is incorrect to suggest that the purchase money was not pooled by plaintiffs Nos,1, 3, 4 and M.A. Kazim. 13. The plaintiff has also produced some of the original documents regarding disbursement and repayment of House Building Finance loan obtained by Saeeda Begum on 12.7.1976 which include letters from House Building Finance Corporation confirming repayment and release of title documents and even refund of extra amount repaid. (Ex.P/60, Ex: P/61 and Ex:P/62). The payments to the House Building Finance Corporation too have been deposited by one of the plaintiffs as it is mentioned in the receipts. The original counter foils of the payment towards clearance of loan have also been produced by defendant No,1 himself as Ex:D-5/1 to D-5/7. The plaintiffs have also produced proof of remittances from abroad in favour of plaintiff No,1 as well as in favour of father of defendant No,1 during the year 1971-1976. At least more than 23 exhibits of remittances out of Ex:P/6 to P/51 indicate that remittances were also in favour of M.A. Kazim Naqvi, father of defendant No,1 prior to his death in January, 1977. The dates of remittances are from 1971 to November, 1976. The burden of proof of issue No,1 on the evidence referred hereinabove was then shifted on Defendant No,1 to prove that Saeeda Begum was absolute and actual owner of the suit property. But unfortunately defendant No,1 himself has admitted in his cross-examination as under:-- At the time when the suit house was purchased, Mst. Saeeda Begum was neither in service nor having any source of income. The loan from HBFC is sanctioned in the name of the owner of the property. It is a fact that the said loan was repaid after the death of my father. It is a fact that the loan repayment can be made by any one but its receipt is issued in the name of the person who
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was sanctioned the loan. In the receipts issued at the time of repayment of loan, the names of plaintiffs Nos,1 and 2 are given as depositors. It is a fact that I have not produced any documents to show that my grand mother had any savings. He has also stated in his cross-examination as under:-- I have been residing in that house since my birth along with my father Mr. M.A Kazim Naqvi, my mother Tasnim Fatima and my sister Umme Farwa. Plaintiff No,3 namely Syed Hasnain Raza Naqvi was in Islamabad in 1972 where he was serving in the Oil & Gas Department. It is a fact that we all used to reside as a joint family having common kitchen in the suit house. Plaintiff No,2 namely Saqlain Raza was in United Kingdom in the year 1970 and even at that time we continued with the joint family system having common kitchen. I do not know whether plaintiff No,2 used to send any remittance from U.K to any one from our family. Mst. Saeeda Begum my grandmother lived in the suit house since from the date she purchased the suit house till 19.11.1996. The above evidence shows that even repayment of loan to HBFC was from the common funds arranged by the plaintiffs and Mst. Saeeda Begum had not contributed single penny for it. 14. The learned counsel for the defendant has contended that the seller Saeeda Begum was in possession of the suit property and the original title documents were also in her possession, therefore, it cannot be said that the burden of proof of Benami ownership on the plaintiff stands discharged. As far as the claim of defendant No,1 that deceased Saeeda Begum was in possession of the suit property is concerned, Saeeda Begum, as Vendor, had never handed over possession of the suit property to defendant No,1 though it is expressly mentioned in para-2 of the sale deed that "The vendor doth hereby agree, and covenant with the Vendee to deliver to the Vendee on the execution of these presents possession of the said plot of land alongwith construction thereon." It was only about the delivery of documents to which same covenant of sale deed says that "The Vendor has already delivered to the Vendee all Documents and Deeds relating to the said property in Vendor's possession." The plaintiffs were in continuous possession of the suit property even before and at the time of so-called sale and thereafter Mst. Saeeda Begum pursuant to registered covenant referred above had never handed over possession of the suit property to defendant No,1 and that is why in his written statement he has raised counter claim of mense profit and possession. Defendant No,1 without offering Court fee has prayed from the Court-for the following relief(s):-- PRAYER It is, therefore, respectfully prayed that this Hon'ble Court would be pleased to pass a judgment and decree against the plaintiffs Nos,1 to 3 jointly and/or severally as under: - (a) Directing the plaintiffs to vacate the house bearing No, 2.E, 2/4 Nazimabad, Karachi and handover its vacant physical possession to the defendant No, 1. (b) Mesne profit and Rs,15,000/- per month from the date of filing of the suit till the defendant No,1 is put in physical possession of the suit property. (c) Cost may also be awarded. 15. The plaintiffs' counsel has very elaborately discussed the circumstances in which the documents had come in the hands of the plaintiffs. The perusal of annexure P/81, para-7 shows that Saeeda Begum pursuant to order dated 5.10.1978 stood surety by depositing title documents of the suit property in the Court of District and Sessions Judge, Central, Karachi in Guardian and Ward Suit No,503/1978 (ReTasneem Fatima Naqvi) since the defendant's mother wanted to sell another property in which defendant No,1 and his sister were major shareholders by inheritance. The suit property was released from G&W Court after 18 years in September, 1996 when grandmother Saeeda Begum filed an application of discharge of surety and release of the documents from the Court as defendant No,1 and his sister had become major. Therefore,
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defendant had received the original documents which were deposited by Saeeda Begum as security from the office of the Nazir of District and Sessions Judge, East, Karachi pursuant to the order dated 15.9.1996 in G&W Suit No,503/1978. Then within hardly 30 days he manipulated the execution of sale deed in respect of the suit property showing signatures of Saeeda Begum affixed on 29.10.1996 on sale deed (Ex:D/21). However, the registration of the document was deferred and subsequently the document was admitted for registration on 31.12.1996. Defendant No,1 has not offered any explanation as to why the registration was adjourned/ deferred on 29.10.1996 and how it was registered on 31.12.1999 when on both dates it was not signed and/or it remained unsigned by at least two witnesses before the Sub-Registrar. 16. The real owners who have jointly contributed funds to purchase the suit property had never parted with possession and they on account of their relation with Saeeda Begum never had any occasion to seek any declaration about the status of Mst. Saeeda Begum as owner for the simple reason that none of the co-owner was under threat that he/she would be denied his/her legitimate share in the suit property to the extent of their respective share as per Sharia Law in her life time by Mst. Saeeda Begum herself or on her death by any one else. The occasion to challenge the title of Saeeda Begum had arisen to the plaintiffs only after her death, when they came to know that defendant No,1 has fraudulently taken over title documents and claiming title of the suit property through a fraudulently registered sale deed dated 31.12.1996. Had defendant No,1 published his intention to buy and Saeeda Begum's desire to sale the suit property to him through public notice in newspaper or even subsequently had Saeeda Begum ever requested the real owners in possession to hand over physical possession of the suit property to defendant No,1, then only suit could have been filed in her life time. Defendant No,1 in his cross-examination admitted that:-- I had not got published…
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