1991 PLP 703 (SCMR)

(iv) motive for the Benami transaction.

7. It is also a well‑settled law that the initial burden of proof is on the party who alleges that an ostensible owner is a Benamidar for him and that the weakness in the defence evidence would not relieve a plaintiff from discharging the above burden of proof. However, it may also be stated that the burden of proof may shift from one party to the other during the trial of a suit. Once the burden of proof is shifted from a plaintiff on a defendant and if he fails to discharge the burden of proof so shifted on him, the plaintiff shall succeed.

8. Keeping in view the above principles of law, we may now examine the question of source of consideration. It may be stated that the sale consideration for the first house was Rs.32,

000. It is an admitted position that the respondent had paid a sum of Rs.13,000 as earnest money against receipt dated 16‑5‑1968 (Exh.P.6), which factum has been admitted by P.W.1 Mst. Hanifa Yazdani, the vendor, and so also by the appellant. The balance amount of the sale consideration was paid in the form of repayment of loan to the House Building Finance Corporation which was Rs.11,020.07 and cash amount to the vendor by the respondent. The factum that the respondent had paid all the instalments to the House Building Finance Corporation except one, has been even admitted by the appellant. However, his case was that the above payments were made by the respondent on behalf of the appellant after having received the above amounts from him. In this regard, it may be pertinent to refer to the appellant's following admission in his cross‑examination:‑‑ .... I do not remember that how much amount was paid to House Building Finance Corporation but all the amount was paid by me through the plaintiff

I have, not made any payment to any department till this date." All the receipts of the payment numbering 41, the detail of which is given in Exh.14(41) containing in Paper Book No.2, have come from the custody of the respondent. The total amount of which, according to the learned counsel for the respondent, comes to Rs.13,193.38 which includes, the amount of interest. The appellant has not been able to establish that factually he had paid the various amounts mentioned in the above receipts, the first of which is dated 27‑3‑1969 and the last being dated 15‑4‑1972. The appellant has come out with two different versions as to how the above receipts and the receipts for the payment of property taxes etc. came into the possession of the respondent. The appellant in his examination‑in‑chief at page 135 of the paper book has stated as follows:‑‑‑ "... In August 1971 some dispute arose between me and the plaintiff and my cousin took me to his house, and my other entire documents and articles were lying with the plaintiff and the plaintiff took these receipts and other documents from my articles." Whereas in his cross‑examination at page 138 of the paper book, the appellant stated as follows:‑‑ .... I have paid property tax and other taxes in this regard and all then receipts were handed over to the plaintiff by me when I intended to go abroad, therefore, I cannot produce the same."

9. In view of the above shaky evidence of the appellant, it cannot be concluded that factually the balance of the loan amount was repaid by the appellant and not by the respondent. As regards the balance of the sale consideration paid by the respondent to Mst. Hanifa Yazdani, it may be observed that she in her statement has supported the respondent by stating that she had received the sale consideration from him. However, Mr. Akhtar Mahmud has vehemently urged that in the above sale‑deed (Exh.D.l) there is an endorsement made by the Sub‑Registrar to the effect that the balance amount was paid by the appellant to Mst. Hanifa Yazdani, the vendor. This submission seems to be factually incorrect as the endorsement reads as follows:‑‑‑ "The above executing parties admit execution. The vendor acknowledges the receipt of consideration before the Sub‑Registrar, Karachi." Though the appellant in his written statement has not pleaded that he had paid Rs.13,000 on behalf of the respondent towards the sale consideration of the second house partly himself by making payment of Rs.6,000 through cheques and partly by cash payment of Rs.7,000 through his mother to the vendor of the second house for adjusting the earnest money paid by the respondent for the first house, but in the evidence an attempt has been made to prove the above factum without examining the mother.

10. In furtherance of his above version, he has relied upon the oral evidence of D.W.l Abdul Mujeeb Oureshi, the vendor of the second house in favour of the respondent's wife who has deposed that a sum of Rs.6,000 against receipt, dated 18‑5‑1968 (Exh.D.3) towards the sale consideration was paid by the appellant on behalf of the respondent's wife. The above statement and the receipt are belied by the appellant's own documents i.e. Exh.25, which is a certificate dated 10‑4‑1979 issued by Messrs National Bank of Pakistan, Guzdarabad (Bohrapir) Branch, Karachi, certifying that cheque mentioned therein for a sum of Rs.5,155.06 dated 17‑5‑1968 in favour of Abdul Mujeeb Qureshi drawn by Muhammad Sajjad Hussain was paid by them on 18‑5‑1968 at the above Branch and Exh.D.2 another certificate, dated 15‑5‑1973 issued by the Manage‑, Messrs Habib Bank Limited, Kharadar Branch, Karachi, certifying that the cheque mentioned therein for Rs.1,000 in favour of Abdul Mujeeb Qureshi drawn by Muhammad Sajjad Hussain was paid by the bank on 18‑5‑1968. If we total the above two sums mentioned in the above two certificates, it comes to Rs.6,155.06 which figure does not tally with the figure mentioned in the above receipt, dated 18‑5‑1968 (Exh.D.3). The above version that the above payments by the appellant and his mother were made on his behalf was not mentioned in the above legal notice, dated 21‑6‑1972 (Exh.17/1) nor this was pleaded in the written statement. On the contrary in the written statement in para.3, the following averments were made:‑‑ "... It was the plaintiff who asked for a loan from him in connection with . the purchase of a house in the name of his wife, which was paid to the vendor of the said property on behalf of the plaintiff by the defendant through a cheque." The above plea completely demolishes the appellant's above case set up in the evidence. It may be observed that in view of the above specific plea taken up by the appellant in his written statement, he could not have set up a case inconsistent in his evidence to the above plea.

10. However, Mr. Akhtar Mahmud, learned counsel for the appellant, has urged that any weakness in the defence evidence cannot absolve the respondent from discharging the burden of proof that he had paid the amount of consideration, keeping in view the averment of the respondent that he had paid a total sum of Rs.42,480 towards the sale prices of the first and second houses. He has further urged that the main source of money of the respondent was the alleged receipt of Rs.35,000 from his employer upon his retirement, which statement is belied by the evidence of D.W.3 R.B. Fernandes read with Ex.D.13 which is a certificate dated 10‑9‑1977 issued by Messrs Pakistan Tyres and Rubber Company Limited. The above D.W.3 in fact produced the above Exh.D.13 and stated that the above certificate indicates the amount of Provident Fund paid by the Company to the respondent, namely, Rs.1,732.92. Suffice to reproduce the last para of the above certificate and the statement made by the above D.W.3 in the cross‑examination, which read as follows:‑‑ Last para of Exh.D.13. "Alongwith other dues, the sum of Rs.1,732.92 (Rupees one thousand, seven hundred thirty two and paisa ninety‑two only), being contribution of Provident Fund were paid to Mr. Muhammad Anwar Hussain as his final settlement." Extract from the cross‑examination of D.W.3. "I have absolutely no knowledge about the amount which the plaintiff had in his bank account or the properties he held at that time. Beyond Exh.D.13 I can say nothing." From the above‑quoted portions of the certificate and the statement made by D.W.3 in the cross‑examination, it is evident that the above certificate does not reflect the total amount received by the respondent from the Company as it states that `alongwith other dues, the sum of Rs.1,732.92 (Rupees one thousand, seven hundred thirty‑two and paisa ninety‑two only), being contribution of Provident Fund were paid to Mr. Muhammad Anwar Hussain on his final settlement', whereas the above witness admits that he had no knowledge about the financial status of the respondent. It may also he pointed out that the above witness in his examination‑in‑chief has stated that maximum gratuity payable to staff was one month salary for each year of service. The above gratuity admittedly is not reflected my the above certificate besides other items. According to the respondent, he joined the service of Messrs Dunlop Company in 1948 and remained in service till December, 1963 i.e. upto the date of general retrenchment. It may also be pertinent to observe that besides the above amount of Rs.35,000 according to the respondent, he had Defence Certificates valuing Rs.5,000 which he sold. It may also he stated that after the general retrenchment in December, 1963, apparently the respondent rejoined the service of Messrs General Tyres and Rubber Company. In this regard, it may be pertinent to reproduce herein below an extract from his cross‑examination which also contains his explanation as to the source, which reads:‑‑ . ".... The total amount paid by me in respect of the two purchased houses was Rs.42,

480. I paid P.W.I on 16‑5‑1968, 27‑6‑1969, 4‑4‑1970 and the owner of the other house on 17‑5‑1968. 1 used to do business but I did not profit there from. I saved Rs.7,000 from my employment with National Tyre and Rubber Co., Karachi. When 1 worked in Karachi for about 1 year, I saved about Rs.2,000 to Rs.3,000. 1 had been in Lahore and I was transferred to Karachi in July, 1967. I was getting a salary of Rs.550 p.m. in July, 1967, and there were 8 members in my family then. Karachi was less expensive than Lahore in 1967. I did not pay the amount of Rs.42,000 all on one occasion. I also had Defence Certificates amounting to Rs.5,000 which 1 sold. I have no proof that I sold the same. I had no experience of purchasing houses with the help of House Building Finance Corporation prior to 1968. I took no help from Mr. Muqeet Qureshi. I can produce my friend Mr. Farhat Ali as a witness to support my statement that I received the sum of Rs.35,000 back from him."

11. Mr. Akhtar Mahmud has also relied upon the statement of the appellant made by him in his examination‑in‑chief wherein he had asserted that the respondent had received from Messrs Dunlop Company a total of Rs.2,800.92 and has also urged that there has not been any cross‑examination on the above statement and hence it remained unchallenged. It will suffice to observe that in presence of the other evidence on record, the appellant's above statement is not sufficient to negate the other evidence. We have already pointed out hereinabove that it has been proved by sufficient evidence on record that factually the respondent had paid the amount of consideration for the first house partly by cash and partly by repayment of loan of the House Building Finance Corporation. In this view of the matter, we are inclined to hold that it becomes irrelevant from where the respondent arranged for the amount for payment of consideration. We may also point out that the appellant's version that in fact he had paid Rs.13,000 towards the consideration of the second house as adjustment of the earnest money of Rs.13,000 paid by the respondent towards the purchase price of the first house, has been disbelieved by us and in fact this was not pleaded by the appellant. His plea was that the respondent had obtained loan from him for payment of the consideration for the second house as pointed out hereinabove. The remaining amount of the consideration of the second house has been admittedly paid by the respondent partly in cash and partly by making repayments of the loan amount to the House Building Finance Corporation. It is true that D.W.1 Abdul Mujeeb Qureshi tried to help the appellant in his statement but the reason for doing so has been admitted by him by stating that the appellant was a student in his College where he used to teach and he was known to him. We are, therefore, of the view that the preponderance of evidence on record is that the respondent had paid the consideration for the first house.

12. We may now advert to the second ingredient, namely, from whose custody the original title deed and other documents came in evidence. It is true that in the present case the appellant has produced the original sale‑deed. The reason for production of the same by him is explainable. The statement of account of the amounts paid by the respondent to the House Building Finance Corporation indicates that the respondent made the last payment of Rs.1,820 against receipt No.031453 dated 15‑4‑1972. The respondent by his letter dated 18‑4‑1972 addressed to the General Manager, House Building Finance Corporation, stated and requested as follows:‑‑ "Dear Sir, I am the attorney of Mr. Sajjad Hussain of the above account. I have cleared the balance outstanding loan of Rs.1,820 by depositing cash into bank vide receipt No.031453, dated 15‑4‑1972. A photostat of the power of attorney duly registered at Karachi by the Sub‑Registrar T‑Division IV is enclosed for. your perusal and record. Please arrange to hand over all the relevant documents of the above account to me. Thanking you, Yours faithfully, (Sd.) Illegible,'

13. It appears that after the above payment of Rs.1,820 by the respondent on 15‑4‑1972, the appellant also remitted a sum of Rs.1,820 through a cheque dated 18‑4‑1972 which is reflected from the certificate dated 21‑3‑1978 issued by the Manager of the House Building Finance Corporation (Exh.D.9). It also appears that the appellant through a public notice published in an Urdu newspaper on 5‑1‑1972 purported to cancel the power of attorney without serving any notice upon the respondent though as per para. 16 of the above registered power of attorney, it was irrevocable. It is not understandable as to how the appellant paid aforesaid sum of Rs.1,820 on 18‑4‑1972 when factually the above sum was already paid by the respondent on 15‑4‑1972. From Exh.D.21 which is a letter dated 30‑5‑1972 from the House Building Finance Corporation, it appears that there was over payment .of the amount which was refunded to the extent of Rs.110.97 to the appellant while issuing clearance certificate. Be that as it may, since the appellant was the ostensible owner of the second house, he obtained the title deed from the House Building Finance Corporation and, therefore, the production of the title deed by the appellant is itself not sufficient to negate the other evidence which tends to prove that the appellant was Benamidar particularly keeping in view as many as 41 receipts for the payment of the loan amount to the House Building Finance Corporation, 8 receipts for the payment of the property taxes for the years 1968‑69 to 1976‑77, 8 receipts for the payment of K.M.C. taxes for the period of 1969‑70 to 1976‑77, and four receipts for the payment of ground rent to the KD.A. for the period from 1968 to 1971, were produced by the respondent.

14. Reverting to the question of possession of the suit property, it may be observed that the respondent has been in possession of the first house even till today. The appellant's plea in his legal notice as well as in the written statement was that pursuant to the execution of the power of attorney, the respondent was allowed to occupy the first house and he remained as such till 31‑7‑1.970 when he offered to pay rent at the rate of Rs.225 per month with effect from 1‑8‑1970 and paid the same upto 28‑2‑1971. The above plea on the face of it is untenable. In this regard, it may be pertinent to point out that the stamp paper of the power of attorney which is Exh.P.16 was purchased on 28‑6‑1969 i.e. prior to the date of registration of the sale‑deed of the first house, though it was registered with the Sub‑Registrar on 22‑10‑1969. Para. 16 of the above power of attorney reads as follows:‑‑ "

16. That I the said executant hereby agree that this power of attorney shall be irrevocable." The above power of attorney also contains the power to sell or to mortgage the property. The appellant's version is that he had executed the above power of attorney as he had received an admission in an educational institution in U.S.A. in 1969 and, therefore, he had executed the above power of attorney. Admittedly the appellant had not gone to U.S.A. for his studies. If the above story of the appellant would have been true, there was no occasion for him to execute an irrevocable power of attorney, and secondly, since admittedly he had not gone to U.S.A., there was no reason for keeping the above power of attorney intact till the publication of notice in the Press on 5‑1‑1972 without serving any personal notice of revocation upon the respondent.

15. We are, therefore, of the view that factually the respondent obtained the possession of the first house pursuant to the execution of the sale‑deed as the real owner of the same and not in October, 1969, as alleged by the appellant. The above conclusion is corroborated besides by the evidence on record by the appellants conduct, namely, after the relations between the parties had become strained in August, 1971, the appellant left the respondent's house and had started putting up with his cousin, instead of causing ejectment of the respondent. Even the above legal notice (Exh.17/1) was served by the appellant on the respondent after the expiry of about 10 months from the date of dispute. It may also be pertinent to quote herein below a portion of the appellant's statement made by him in his examination‑in‑chief, which negates the appellant's above plea and which reads as follows:‑‑ " .... I had sent cheque Exh.D.11 amounting to Rs.2,500 with regard to the 5 months rent which was due to the plaintiff and added that dues of K.M.C. were paid to the department. The rent amounting to Rs.1,125 for five months at the Rate of Rs.225 was due to the plaintiff at that time:' The above statement runs contrary to the appellant's above plea.

16. As regards the motive, it may be observed that the motive pleaded by the respondent is that as per House Building Finance Corporation Rules, two loans could not have been transferred to the husband and wife. The above plea does not seem to be an afterthought as is evident from the respondent's letter dated 30‑6‑1968 and Mst. Hanifa Yazdani's reply dated 2‑7‑1968, which read as follows:‑‑ Letter of the respondent to Mst. Hanifa Yazdani "My dear Madam Yazdani, I am sorry to inform you that enquiry made by me from House Building Finance Corporation reveals that they do not transfer at a time two loans in one family i.e. husband, wife or other members of the family of the applicant. Therefore, I am unable to proceed further in the matter and you are requested to please refund the amount paid to you so far in connection with the purchase of your house No.461‑462, Block 14, F.BA., Karachi." Letter of Mst. Hanifa Yazdani to respondent. "Mr. Anwar Hussain, Please refer to our discussion regarding the sale of my house No.461‑462 Block No.14, F.B. Area, Karachi. In case you are finding any difficulty in the transfer of two houses in your name or in the name of your wife I have no objection if you get the loan transferred in the name of your nephew Mr. Sajjad Hussain and get the sale‑deeds registered in his name accordingly. I have already spent the money and unable to refund the same to you. Kindly mention to me whether you get the sales‑deed registered in our names or in the name of your nephew."

17. The above version has also been supported by the appellant's witness D.W.7 Noor Muhammad, who appeared on behalf of the House Building Finance Corporation by stating as follows in his cross‑examination:‑‑ " .... Previously it was a rule/restriction in the House Building Finance Corporation that more than one family members were not allowed loan facility by the Corporation but at present there is no such restriction. I do not remember as to upto what time this restriction continued." The above motive, therefore, stands proved.

18. The upshot of the above discussion is that the above appeal has no merits and, therefore, it is dismissed but the parties shall bear their own costs. M.B.A./M‑1469/S Appeal dismissed