2002 PLP 3481 (YLR)

Muhammad Saleem Shahnazi for Petitioners. Syed Nasir Hussain Respondents Nos. 1 and

2. Jawad Hassan for Respondent No.3. On 9‑9‑1999, the petitioners filed a suit against the respondents. In the plaint, it was stated that Mian Muhammad Munshi, who died on 3‑4‑1996, was the husband of petitioner No.1 and respondent No.1 and father of petitioners Nos.2 to 5 and respondent No.2. The said Mian Muhammad Munshi purchased D.S.Cs. of the value of Rs.1,10,50,000 in the name of respondent No.1 on 23‑8‑1995. These certificates were purchased from respondent No.3. It was asserted that this amount vested absolutely in Mian Muhammad Munshi and was so understood by all the heirs that it formed part of the estate of the deceased. An application was filed for grant of succession certificate in goods of Mian Muhammad Munshi including the said certificates; that in the said proceedings the respondents Nos.1 and 2 took the plea that the certificates belonged to respondent No.2; that the learned Court dealing with the matter excluded the said certificates from goods of Mian Muhammad Munshi and treated them to be the property of respondent No.2. An appeal filed stands dismissed. With these averments, a decree for a declaration was sought that the said D.S.Cs were owned Mian Muhammad Munshi and that respondent No.2 was a Benami. In their written statement, respondents Nos. 1 and 2 admitted that the amount belong to the said Mian Muhammad Munshi but it was invested for the sole benefit of respondents No.2 and was intended to so vest in the said respondent No.2. Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed the suit vide a judgment and decree dated 31‑5‑2000. A first appeal filed by the petitioners was dismissed by a learned Additional District Judge, Lahore on 11‑11‑2000.

2. Mr. Muhammad Saleem Shahnazi, learned counsel for the petitioners argues that respondents Nos.1 and 2 had not pleaded a gift in favour of respondent No.2 of his father and as such evidence to the said effect ought to have been ignored. Refers to the case of Mst. Farida Malik and others v. Dr. Khalida Malik and others (1998 SCMR 816) to contend since the amount belonged to the father, then on the recognized criteria in the matter of Benami transaction the suit ought to have been decreed. Vehemently argues that even going by the evidence‑on‑record, the deceased never divested himself of the ownership of the property i.e. the money deposited in the said certificates. Syed Nasir Hussain, learned counsel for respondents Nos.1 and 2 on the other hand, argues that necessary pleadings have been made by respondents Nos.1 and 2 to claim a gift in favour of respondent No.2 and that a complete gift under the Muslim Law stands proved on record.

3. I have gone through the copies of the records appended with the civil revision, with the assistance of the learned counsel for the parties. I have examined the written statement and I find that it stands duly stated in preliminary objection No.6 in the written statement that Mian Muhammad Munshi purchased the certificates for the sole benefit of respondent No.2 and that this was the intention of the deceased. The plea is re iterated in reply to para. 2 of the plaint on merits. I, therefore, find that although the word gift had not been used in the written statement yet the said plea, in fact, is the plea of gift by the father in favour of the minor son. I also find that it has come in evidence and not controverted by the petitioners that earlier the deceased purchased D.S.Cs. of the value of Rs.63,84,000 in the name of the said minor vide a document, Exh. D/1, proved by Ali Ammar, D.W.1, an officer of the respondent No.3 Bank. According to the said witness who had brought the record with him, these certificates were encashed on 23‑8‑1995 and on the same date Mian Muhammad Munshi purchased the D.S.Cs. of the value of Rs.1,10,50,000 According to the note made. on Exh.P/1, against the column "Mode of payment", the amount entered are Rs.1,10,49,108 and Rs.892 in cash. Thus out of the face value of the said certificates barring Rs.892 the remaining amount was the proceeds of the D.S.Cs. already being held by the minor respondent which was enchased by his father and again invested in his name. To my mind, there is no question of benami arising in this case. In the first instance, it stands proved on record that the deceased had invested the amount in the said deposit in the name of minor son, got these certificates encashed and invested the amount so received again in the name of his minor son. Now even if I go by the contents of the plaint, it is not a case where a property has been purchased or acquired from a third party with the money of the beneficiary owner in the name of the Benami. On the other hand, this is the case for all purposes where father gave the money to his son. Thus, the money was delivered on to the son and both under the principles of Muslim Law as also of the statute applicable i.e. section 123 of the Transfer of Property Act, 1882, the gift stood completed by delivery of money.

4. In support of his contention that the deceased never divested himself of the ownership of the money, the learned counsel for the petitioners relies upon the column of the entries in the Form, Exh. P/1, which states that the certificates can be encashed during the minority of the holder by Mian Muhammad Munshi. The contention loses sight of the fact that the deceased was the father and guardian of the minor. In the whole world it was only the said person who could have dealt with property of his minor son. Nothing, therefore, turns on the said contention. I have also examined the D.B. Judgment in the case of Mst. Zaitoon begum and another v. The Central Exchange Bank Ltd. Lahore (In Liquidation) and another (PLD 1961 (W.P) Lahore 888). This judgment has been relied upon by the learned Additional District Judge and I find that it fully supports the conclusion arrived at by the learned Court of first appeal. In the said case their Lordships were dealing with some deposits made by the debtor of a Bank in the name of his wife and a minor daughter. The learned Liquidation Judge observed that the deposit receipts were the property of the said debtor i.e. husband and father of the persons in whose name the deposits were made Chief Justice, M. R. Kayani (as his Lordship then was) observed as follows in para. 18 of the judgment at page 895 of the report:‑ "But even if she did not know these details from memory when she appeared before the Liquidation Judge, the worst what can be assumed against her; that husband deposited these money in her name or in the name of her minor daughter and since this is one of the recognized modes of making of gift to wife or daughter, it cannot be presumed that because the money belong to the husband or father, the purchase was Benami. "

5. Needless to state that there is no allegation of any fraud or mala fides in the matter of said suit deposits.

6. No other point has been urged, the civil revision accordingly is dismissed in limine. S.A.K./K‑132/L Petition dismissed.