2003 PLP 1430 (MLD)

JAWWAD S. KHAWAJA, J.

The appellant Jane Margaret married the respondent Abdul Hameed Mian on 10-1-1959. In this judgment we have referred to Jane Margaret as the defendant and to Abdul Hameed Mian as the plaintiff. They have a daughter Surayya Hameed born to them in October, 1959. At the time of and subsequent to their marriage, they were residing in England. They came to live in Pakistan in 1961, but went back after a few months. They returned 'to Pakistan in 1968. They are now divorced and both have remarried.

2. The dispute between them relates to two properties. The first is a house built on Plot No.68-H, Gulberg-III, Lahore, measuring 2 Kanals, 5 Marlas, 180 sq. ft. The second is a commercial property comprising of 5 shops bearing Nos.5-B-1/B-2 in Ghalib Market, Lahore. The land for the house was purchased through registered sale-deed dated 22-5-1968 for a total consideration of Rs.27,

776. The sale deed is in favour of the defendant Jane Margaret. The property in Ghalib Market was purchased through sale-deed dated 28-5-1969 for a total consideration of Rs.55,

000. This property was purchased by the plaintiff and the defendant in their joint names.

3. It appears from the, pleadings that differences arose between husband and wife towards the end of 1971 and thereafter a suit, out of which the present appeal arises, was instituted by Abdul Hameed Mian plaintiff on 12-1-1972. The plaint which was originally filed in the trial Court and an amended plaint, which was filed in the High Court during the pendency of this appeal, set out the case, of the plaintiff Abdul Hameed Mian. It is averred therein that when the plaintiff and the defendant returned to Pakistan from England, the respondent brought two cars with him. One car was sold and some money was borrowed by the plaintiff from his father and relatives to purchase the plot of land at No.68-H, Gulberg-III, Lahore. Thereafter a house was constructed on the said plot. Likewise, a plot of land was purchased in Ghalib Market and five shops were constructed on it. It is also asserted in the plaint that the finances for purchase of the aforesaid plots of land and for construction thereon were raised by the plaintiff alone. According to the plaint, the interest of the defendant Jane Margaret in the aforesaid house and shops was merely a benami interest. The beneficial ownership in the properties was claimed by the plaintiff.

4. Paragraph 6 of the plaint, which is of special significance in highlighting the case of the plaintiff, reads as under:-- "That [....] the defendant started asserting that she was the owner of Bungalow No.68-H, Gulberg-III, and joint owner of five shops bearing No.5-B-1/B-2. 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 that title of the plaintiff. 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. The case of the defendant as set out in the amended written statement filed by her in the High Court, was that the properties were constructed by her through her own funds received by her from her mother. A total of pound sterling 13,053 was allegedly received by the appellant from her mother in U.K. between 17-3-1968 and 2-12-1969. On this basis, it was asserted by the defendant that she was the full and absolute owner of her interest in the aforesaid house and shops, in her own right. The beneficial interest of the plaintiff was specifically denied by her. The amended written statement contains a few material departures from the written statement originally filed in the trial Court. These changes in the stance of the defendant have been examined in a later part of this judgment.

6. A replication was submitted by the respondent in which, among other things, it was denied that the mother of the defendant remitted the aforesaid amount of pound sterling 13,053 to the defendant.

7. Based on the pleadings the following issues were framed by the learned trial Court: "(1) Whether the suit is not maintainable in its present form? OPD (2) Whether the allegation against Mr. Muhammad Nawaz Kasuri describing his role in 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? OP Parties (5) Whether the defendant is estopped from setting up her own title as against the plaintiff? OPP (6) Relief. "

8. The learned trial Court decreed the suit of the plaintiff Abdul Hameed Mian vide judgment and decree dated 5-12-1988.

9. At this stage, it is important to note that the trial of the case which had commenced before a learned Civil Judge, was transferred to the Court of a learned Additional District Judge, pursuant to an order passed by the High Court. It is for this reason, this appeal was in the first instance, heard and decided by a learned Single Bench although on the basis of the valuation of the suit for the purpose of jurisdiction, as set out in the original plaint, the first appeal in the normal course would have fallen within the jurisdiction of the District Judge.

10. The learned Judge in Chambers of this Court dismissed the appeal of the defendant Jane Margaret vide judgment 'and decree dated 23-8-1992 and as a result, the decree passed by the learned Additional District Judge, as the Court of first instance, was upheld.

11. While dismissing the appeal of Jane Margaret, the learned Judge in .Chambers considered the question as to whether the plaintiff Abdul Hameed Mian could be granted the relief of possession although the same had not been prayed for in his plaint. It was held by the learned Judge that in view of the declaration of title to which the plaintiff had been found entitled, he was also entitled to get the possession of the suit properties by way of consequential relief. It was, therefore, held by the learned Judge in Chambers that in order to do complete justice and to save the parties from further litigation, the plaintiff could be allowed relief by way of possession consequential to the declaration that he was owner of the suit properties. As a result, the plaintiff was held entitled to a decree for possession of the suit properties.

12. The stated expectation of the learned Judge in Chambers that further litigation between the parties will be avoided by the course of action adopted by him, however, was not realized. The defendant Jane Margaret sought leave to appeal from the Honourable Supreme Court to challenge the concurrent decrees passed against her by the trial Court and by the learned Judge in Chambers of the High Court, inter alia, to consider whether the, learned Single Judge deciding the appeal could, in the circumstances, hay, suo motu granted the relief of possession. The relevant part of the order of the Honourable Supreme Court granting leave reads as under:-- "It also requires to be seen whether the learned Single Judge deciding the appeal could have suo motu granted the relief of possession without the plaintiff seeking amendment of the plaint. The matter assumes importance because the inclusion of the relief of possession would result in raising the jurisdictional value in this matter to an amount exceeding Rs.2,00,000 and in such a case the appeal would. normally have to be heard by a Bench of two Judges of the Lahore High Court. Consequently a learned Single Judge would be unable to grant the relief of possession."

13. The defendant's appeal was allowed by the Honourable Supreme Court. It was held that the addition of the relief of possession had resulted in increase in the valuation of the appeal and as a result of such increased valuation, the appeal could only have been heard by a Bench of two Judges of the High Court as per Rule 4, Chapter 3-B, Volume 5 of C the High Courts Rules and Orders. On this basis, this appeal .was remanded to the High Court with the direction that it be heard by an Appellate Bench consisting of two Judges. It is, in these circumstances that we are now seized of the matter.

14. Before considering the submissions of learned counsel for the defendant, we need to make a brief note of the findings of the learned trial-Court on the issues. The first issue as to the form of the suit was decided separately. It was held that possession of the house in dispute was with the defendant and, as such, a suit framed without claiming possession consequential to a declaration of title was not maintainable. As a result the suit of the plaintiff was dismissed. The aforesaid decision on Issue No. 1 was made when the suit was still before the learned Civil Judge. The plaintiff preferred an appeal against the dismissal of his suit. The said appeal was heard by a learned Additional District Judge, who set aside the order of the learned Civil Judge and by his judgment dated 10-1-1981 remanded the case to the learned Civil Court with a direction that the suit be decided after taking evidence on all issues in controversy. After full trial of the case, the learned Additional District Judge, who was then seized of the matter as Court of first instance, held that the decision on Issue No.1 could not be reopened in view of the finding earlier recorded in respect of the said issue.

15. Issue No.2 was struck off under Order XIV, rule 5, C.P.C. As regards Issue No.3, it was held that the money received by the plaintiff from Mrs. -V.E. Monte, mother of the defendant was the plaintiff's own money. Issues Nos.4 and 5 were also decided in favour of the plaintiff. The plaintiff was held to be the owner of the suit properties and the defendant was held to be a benamidar only. Before us learned counsel for the parties have confined their arguments to Issues Nos.3 and

4. Learned counsel for the plaintiff did make a half-hearted attempt to resurrect Issue No.

1. However, in view of the fact that the plaintiff has re-framed the suit through his amended plaint and has prayed for possession, we have not considered it necessary to discuss Issue No. 1.

16. Learned counsel for the defendant has formulated four legal propositions to impugn the aforesaid judgment and decree of the learned trial Court: He has, firstly, contended that there is nothing on record to establish a motive for creating a benami interest as alleged in the plaint. Secondly, it has been argued that in order for the plaintiff to prove his case, it was necessary for him to establish that the house and shops in dispute were purchased/constructed exclusively from his earning. This, according to learned counsel for the defendant, the plaintiff has failed to establish through evidence on record. Thirdly, it was contended that the conduct of the plaintiff himself went a long way in showing that he was not the owner of the disputed properties. To support this contention, learned counsel for the defendant submitted that if, indeed, there had been an intention to create a benami interest, there was no necessity for acquiring the shops in Ghalib Market in the joint names of the parties in equal shares. According to him, there is nothing on the record to justify deviation from the earlier transaction in relation to the disputed house, which admittedly had been acquired exclusively in the name of the defendant. Fourthly, learned counsel for the defendant submitted that even if the funds for the acquisition and construction of the disputed house and shops came from the plaintiff himself, the fact that the house was purchased in the name of the defendant, while the shops were purchased jointly in the name of the plaintiff and defendant showed an intention that the properties were given to the defendant by way of gift as the wife of the plaintiff. We propose to consider these submissions in the light of the evidence on record.

17. The evidence led by the parties in the present case is oral as well as documentary. The plaintiff produced as many as 15 witnesses to prove affirmatively the issues in respect of which the burden of proof was placed on him. He himself appeared as P.W.15. He also produced another 8 witnesses in rebuttal after the defendant had led her evidence. These witnesses included Mian Ejaz Ahmad P.W.23, who was the attorney of the plaintiff. The defendant did not appear as a witness but produced three witnesses to support her case including her attorney Muhammad Nawaz Kasuri, Advocate, who appeared as D.W.3.

18. From the testimony of the plaintiff and of Karam Ilahi P.W.2 who as contractor undertook construction of the house and shops in dispute, it is clear that the sum of Rs.1,70,000 to Rs.1,80,000 was spent on the construction of the house, while a sum of Rs.1,15,000 was spent on the construction of the shops. The cost of the land on which the house was constructed was Rs.27,776, while the cost of the land under the shops was Rs.55,

000. As such, approximately Rs.3,70,000 to Rs.3,80,000, according to the plaintiff, was the amount spent on the acquisition/construction of the house and shops in dispute. This evidence is not disputed by the defendant/appellant. The aforesaid approximate amount expended on the acquisition and construction of the suit properties is, therefore, established from the evidence on record.

19. Barring the absence of dispute between the parties as to the aforesaid amount, they are not in agreement on any other material fact. The mass of evidence led by the parties is both confusing and contradictory. Fortunately, however, it has been possible for us to gather from it a few kernels of truth on which to base our judgment. In this respect, we have also been assisted by the contents of the pleadings of the parties and certain documents discussed below, notwithstanding oral testimony to the contrary.

20. It can safely be gathered from the evidence on record that the dispute between the parties, which is reflected in the present unfortunate litigation; started in December, 1971. Prior to that date, the husband and wife appear to have led a reasonably normal marital life. The evidence also shows that both plaintiff and defendant were employed gainfully while in England. As is to be expected in a working marriage, the husband and wife were not particular as to whose earnings were going towards meeting what expenses and through whose bank account. The statements of account and cheques produced on record, touched upon below, show that the bank accounts of the parties and the mother of the defendant were at times funded by the plaintiff. This, of course, is entirely natural considering that while the parties were residing in England, and even after their return to Pakistan in 1968, they could not have foreseen the unfortunate events which were to overtake and ultimately undo their marriage. It is only when the present litigation was commenced that the acrimony between the parties appears to have motivated them into adopting the opposing positions which they have taken in Court, particularly in respect of the source of the, funds from which the disputed house and shops were acquired.

21. There is serious contention between the parties as to the source of such funds. As noted above, the case of the plaintiff is that he alone had provided the funds either from his own earnings or from monies borrowed by him from family and friends. The defendant, however, appears to have adopted somewhat inconsistent position in her pleadings. Before us, the mainstay of her case, as argued by her learned counsel, has been that the funds were hers. This position has been adopted by her in the amended written statement filed in the High Court and is contrary to the averments (discussed below) in her original written statement before the trial Court. Since she did not appear as a witness to support her own case, we have no basis for determining what stance she would have adopted had she testified on oath and if she had been subjected to cross-examination by the plaintiff.

22. Before us, learned counsel for the defendant argued that a sum of pound sterling 13,053 detailed in paragraph No.2 of the amended written statement, had been proved on record to have been sent to Pakistan by Mrs. V.E. Monte, mother of the defendant. According to him, this circumstance alone was sufficient to show that the said sum belonged to Mrs. V.E. Monte and .had been sent to Pakistan for the benefit of the defendant. Although it was not expressly so stated by the learned counsel for the defendant, we infer from his submissions that the said amount was meant as a gift from Mrs. V.E. Monte to her daughter, the defendant.

23. Learned counsel for the defendant did concede that the aforesaid amount was remitted to the account of the plaintiff and not to the defendant. He also acknowledged that the amount was actually paid by Mrs. V.E. Monte to certain person of Pakistan origin in England, who thereafter, remitted the amount to the plaintiff's account in Pakistan through banking channels. This device, however, according to him, was adopted with the object of taking advantage of a bonus voucher scheme, which had been introduced by the Government of Pakistan to encourage foreign currency remittances to Pakistan. Although the bonus voucher scheme is not on record, there is evidence on record, including the testimony of M. Nawaz Kasuri D.W.3, to the effect that a Premium was paid by the State Bank of Pakistan for encouraging remittances of foreign currency to Pakistan. Such premium was over and above the officially declared rate of exchange. As a consequence, while one pound sterling was, at the relevant time, worth Rs.13 approximately at the official rate of exchange, the State Bank paid to the recipient a sum of Rs.19 to Rs.20 per pound sterling received in Pakistan.

24. There is also evidence on record that the aforesaid bonus was only claimable where the remittance was made by a Pakistani National and not otherwise. It is for this reason, according to learned counsel, that the amount was not directly remitted by Mrs. V.E. Monte to the plaintiff and instead the intermediation of Pakistani nationals living in England was necessitated. According to learned counsel for the defendant the individuals, who acted as intermediaries, were not related to the plaintiff although the plaintiff claims that they were his relatives. This submission of learned counsel for the defendant is contrary to the contents of the written statement wherein it has been admitted that the remittance forms were signed by the plaintiff's relatives. However, for reasons appearing below, this question is not material for the purpose of our decision.

25. What is clear from the record is that the amount of pound sterling 13,053 originated from the account of Mrs. V.E. Monte and ended up in the account of the plaintiff maintained by him in Pakistan. The plaintiff's case is that the said amount was his own money while, as noted above, the case of the defendant is that it was money belonging to her mother Mrs. V.E. Monte. On this matter we have only the plaintiff's direct testimony to go by. The defendant, as noted, has not appeared as a witness in the case nor has her mother, to controvert the assertion. made by the plaintiff that it is his own money which was remitted by Mrs. V.E. Monte. to his account.

26. Apart from the fact that the plaintiff's testimony on the question of ownership of the aforesaid funds is uncontroverted, there is strong circumstantial evidence from which we can infer that the aforesaid money did not belong to Mrs. V.E. Monte. The circumstances have been discussed by the learned trial Court. We have also, in a later part of this judgment, considered the same.

27. However, before examining these facts we need to advert to an aspect of the original written statement of the defendant wherein she has made a material admission. According to this admission, even if it is, for a moment, conceded that the amount in question belonged to Mrs. V.E. Monte, this circumstance alone does not establish that it was sent to the defendant by way of gift as has been implied by her learned counsel. In this respect, we find the following portion of the written statement to be conclusive. While making averments in respect of the aforesaid amount in her written statement, the defendant asserted as under:-- "In May, 1971, when the plaintiff came to Lahore for about 5 days, the defendant's mother pressed for the return of her money. In order to clear the money advanced by the defendant's mother, the plaintiff, who had fraudulently obtained one half share in the shops in his own name, executed a general power of attorney in favour of the defendant so that the money taken by the defendant from her mother could be returned back to the old lady by disposing of the property."

28. In the amended written statement, filed by the defendant in the High Court, she has adopted a stance which is diametrically opposed to the above averment. In paragraph 2 of the amended written statement the defendant claims that the amount of pound sterling 13,053 received in the account of the-plaintiff was, in fact, her own money which had been sent by her mother Mrs. V.E. Monte. It is to be noted that the need for an amended written statement only arose because of an amended plaint filed by the plaintiff whereby the frame of the suit was changed pursuant to the judgment of the Honourable Supreme Court noted above and as a consequence, relief by way of possession was included in the plaint. The defendant, therefore, was obliged to confine the amendments in her written statement to the corresponding amendments made in the amended plaint. It was not open to her, without leave of the Court to introduce omnibus changes in the original written statement. If the defendant had any need for making changes in the original written statement (other than those necessitated on account of the amended plaint) she ought to have applied to the Court under Order VI, rule 17, C.P.C. setting out the justification for such changes. Such amendments could only have been made with the permission of the Court. Permission, needless to say, would only have been possible after allowing the plaintiff an opportunity to oppose the amendments applied for. Learned counsel for the plaintiff, in the circumstances applied for. Learned counsel for the plaintiff, in the circumstances, rightly objected to the averments in the amended written statement which deviate from the position taken by the defendant in her original written statement. We also note that no reason has been given in the amended written statement or before us by learned counsel for the defendant, to justify departure from the contents of the original written statement. In these circumstances, the above noted contents of the original written statement will be considered by us as the defendant's pleadings and not the contents of paragraph 2 of the amended written statement. This is particularly so when the defendant has chosen not to testify in Court.

29. It is clear from the above noted contents of the written statement that even if the money remitted to the plaintiff from Mrs. V.E. Monte's account was her mother's money, it was, at most, advanced to the plaintiff by way of loan, to be repaid by the plaintiff. One thing, however, which is clear from the written statement, is that the defendant could lay no claim to the said money as a gift from her mother as has been attempted to be done by her learned counsel before us. The plaintiff, in the circumstances, could, at most, be accountable to Mrs. V.E. Monte but that is a matter between the plaintiff and' Mrs. V.E, Monte. It is our understanding that to date Mrs. V.E. Monte has not claimed the aforesaid amount from the plaintiff, whether through legal action or otherwise. For the purpose of the present litigation, it is wholly irrelevant that the said amount of pound sterling 13,053 had been raised from the earnings of the plaintiff or was raised through loans advanced to him. For the purpose of the plaintiff's suit, money borrowed by him for the acquisition/construction, the suit properties, has to be treated as money sourced and funded by the plaintiff.

30. In view of the fact that the defendant and her mother have not controverted the testimony of the plaintiff and for the reasons discussed below, we have reached the conclusion that the aforesaid amount remitted to the plaintiff's account was not even a loan, but was money belonging to the plaintiff.

31. Numerous documents including letters written by the plaintiff, have been produced on record on behalf of the defendant. There is, however, no request for a loan from the plaintiff, nor is there any receipt executed by him, which would acknowledge that the amount remitted from the account of Mrs. V.E. Monte was by way of loan. Ordinarily, this circumstance may not have sufficed to justify the conclusion is the preceding paragraph considering that Mrs. V.E. Monte was so closely related to the plaintiff that a written request for a loan or an. acknowledgement of debt may not have been thought necessary by her. There is, however, material evidence available on record (produced by the defendant) which highlights certain aspects of Mrs. Monte's character, in particular respecting money matter. Such evidence renders it extremely unlikely that Mrs. Monte would have advanced such a substantial amount by way of loan, or that she could have done so without obtaining a written acknowledgment or IOU.

32. In this behalf, we refer to certain letters Written by the plaintiff which were produced in evidence on behalf of the defendant. The first of these letters is dated 19-6-1971 and is Exh.D.4 on the record. Since this letter was written prior to the present dispute, contemporaneously with the events mentioned therein and was produced on record on behalf of the defendant, we can rely on its veracity both as all admitted document relied upon by the defendant herself and also as res gestae under Article 18 of the Qanun-e-Shahadat Order. This letter shows to us an important facet of Mrs. V.E. Monte's personality adverted to above. In matters of money, to state it mildly, she appears to be particularly stingy. Relevant portions of the said letter which was addressed by the plaintiff to Mr. Nawaz Kasuri (D.W.3) are reproduced as under:-- "Dear Nawaz, You may have learnt from Jane by now that, I had to clear off her mother's place on Thursday. She arrived on Tuesday night and started her usual moans and groans. As soon as she entered she asked me what, I had done to the bottles of whisky and brandy, I got on the plane on way back. I handed them over to her. She got out a package of 200 cigarettes and put them on the table. Obviously she meant to exchange. It was pathetic. It was quite a big surprise to me." "Then she started again. Long and short of it, she meant that if, I wanted stay, I had to do everything and it mainly meant money and work around the house and she had no intention of paying me back for the airfare ticket." "I went to sleep early and got up in the morning. I made the breakfast and called her. I asked her to give me a cheque to repay South Wales switch-gear whose money, I had taken to buy her the air ticket. She refused and demanded more as I had been away to Burma and not cut her garden."

33. For the reasons given in the preceding paragraph, we have little doubt that the above letter contains a truthful portrayal of Mrs. V.E. Monte's character, particularly in financial matters. Keeping this in view, it is not possible for us to accept that she simply remitted the substantial amount of pound sterling 13,053 to the plaintiff without a request from him and without a written acknowledgement or receipt.

34. The said letter Exh.D.4 appears to have been produced in evidence on behalf of the defendant to show that she and Mrs. V.E. Monte had financial resources to justify having pound sterling 13,053 in her account. For this purpose a great deal of emphasis was placed by learned counsel for the defendant on the following sentence appearing in the letter Exh.D.4: "I feel happier about Jane that she was able to recover something from the old "B" to what she was entitled when her father died."

35. Keeping in mind the tone of the letter, we can only assume that "old B" means old "bastard", an epithet used elsewhere in the same letter for the defendant's mother.

36. On the basis of this one sentence appearing in the aforesaid letter of 19-6-1971, learned counsel for the defendant wanted the Court to infer that the defendant's father had left an estate which was the source of the aforesaid funds remitted to the plaintiff's bank account in Pakistan. We are clear that no such inference can be drawn from the sentence in Exh.D.4, reproduced above. The defendant has not produced in evidence any document to establish the nature and extent of the estate of the defendant's father. Furthermore, no probate or letters of administration have been produced on record to show that either the defendant or Mrs. V.E. Monte were entitled to any sum of money or other property from the estate of the defendant's father. Here we must note that the defendant has gone to great expense and trouble to produce in Court a host of documents in support of her case including statements of account and letters from bankers and solicitors in England. It would, therefore, have been the easiest thing for her to produce on record probate or letters of administration, if any, from a competent Court in England to establish that she or her mother had inherited the amount, which was remitted to the plaintiff's account in Pakistan. From the absence of such probate or letters of administration, we can safely conclude that the defendant and her mother did not come into money through inheritance.

37. Emphasis was also placed by defendant's learned counsel on the plaintiff's denial, set out in para. 1 of his replication, that the defendant's mother had remitted the sum of pound sterling 13,053 to him. Learned counsel contended that the remittance of the amount stood proved on the record. He argued that in view of the aforesaid denial the assertion of the plaintiff that the amount was his own money should not be accepted. We have considered this submission and find it has no merit. Firstly, it has been established through evidence that the aforementioned sum had not in fact been remitted by Mrs. V.E. Monte. It had been remitted by persons of Pakistani extraction who were (as admitted in the defendant's written statement) relatives of the plaintiff. Secondly, on the basis of our discussion in the preceding paragraphs we are not in any doubt that even though the money may have originated from Mrs. V.E. Monte's bank account, it was money belonging to the plaintiff. As such the remittance can only be taken as having been made by the plaintiff himself albeit through the instrumentality of Mrs. V.E. Monte and his relatives in England. Furthermore, the denial of remittance referred to by learned counsel for the defendant cannot be read out of context. It appears in a single sentence in the middle of paragraph 1 of the replication and is followed by the emphatic assertion that the disputed properties were acquired by the plaintiff from his own money. In these circumstances, the reliance of the defendant's learned counsel on the plaintiff's replication, in the matter suggested by him, is wholly misconceived.

38. As to how the money was spent is the next question to be I answered while deciding Issue No.3. We have the uncontroverted testimony of the plaintiff and his witnesses to show that the money was expended on the acquisition/construction of the disputed properties. While the defendant has attempted (though unsuccessfully) to prove that the sum of pound sterling 13,053 was money belonging to her to her mother, it is not disputed by her that the amount was spent on the purchase of land for the disputed properties and for the structures raised thereon.

39. In view of the foregoing discussion, we confirm the findings of the learned trial Court on Issue No.3.

40. We next take up for consideration Issue No.4, which was the only other issue in contention argued before us.

41. As noted above, the total cost of purchasing land and constructing the disputed house and shops was Rs.3,70,000 to Rs:3,80,

000. Of this amount a sum of Rs.2,55,000 approximately is accounted for through the above referred sum of pound sterling 13,053 received by the plaintiff through remittance. In arriving at the rupee amount, we have applied the conversion rate of Rs.19.50 per pound sterling. This is average of Rs.19 to Rs.20 which, according to the evidence on record, was paid per pound sterling by the State Bank at the relevant time, under the Bonus Voucher Scheme.

42. The balance amount of Rs.1,20,000 approximately is also claimed to have been spent by the plaintiff. The plaintiff has led evidence to show that the requisite amount was either borrowed by 'him or was part of his earnings. This evidence has not been controverted by any admissible evidence on behalf of the defendant. On the other hand it has been contended on her behalf that she was an earning hand in England and later on in Pakistan. One of the cars brought to Pakistan by the couple was also in her name. We have also noted in our discussion above that the earnings of the husband and wife were commingled. Their savings and investments also show that regardless of the source of earnings, the plaintiff and defendant considered themselves to be equal joint owners of the same. In this behalf, we refer to Exh.P.W.23/1, which is a letter dated 10-2-1988 addressed by the Lloyd's Bank in Cardiff to Messrs Weaver & Co. Solicitors of the plaintiff. This letter confirms among other things the transfer of funds between the accounts of the plaintiff, the defendant and her mother Mrs. V.E. Monte, It is also significant to note instances where savings and investments of the parties have been made in their names on equal basis even though the funds for such investments appear to have been provided by the plaintiff. Exh.P.W.23/4/4 is an extract from a statement of account maintained by the couple, with Lloyd's Bank in England. Although the title of the account shows that it is in the name of the plaintiff Abdul Hameed, it has be been clarified in Exh. P.W.23/1 that it was an account in the name of the defendant Jane Margaret. Exh.P.W.23/4/4 shows that a sum of pound sterling 3,970 was received in the said account from Halifax Building Society. The said sum was utilized for buying funding stock for pound sterling 1960 each for both parties.

43. We have also gathered from Exh. P.W.23/1 that a total of pound sterling 5,000 (Nominal) funding 6-1/2% stock was purchased and the cost was debited to the aforesaid account. Although it is not mentioned in Exh.P.P.23/1 itself, we find from Exh.P.W.23/4/13 and Exh.P.W.23/4/16 that funding stock was purchased from time to time from the amounts lying in the said accounts, in the names of the plaintiff and defendant in equal amounts.

44. From another document (Exh.P.W.23/9) we find that the account with the Halifax Building Society was being maintained by and in the name of the plaintiff alone. However, when the said account was closed, the amount lying therein was remitted to the above referred account of the defendant with Lloyd's Bank and was thereafter, used for investment equally in the names of the two parties.

45. Exh. P.W.23/4/8 is also an extract from the statement of account with Lloyd's Bank which shows payments from the said account to the account of Mrs. V.E. Monte. In Exh.P.W.23/1 Lloyd's Bank has further confirmed that amounts were transferred from the above referred account of the defendant to the account of her mother Mrs. V.E. Monte.

46. The above referred documents, which were produced on record by the plaintiff himself, amply demonstrate that the husband and wife considered themselves to be the equal joint owners of their investments. As noted by us in an earlier part of this judgment, this course of conduct is entirely natural and not at all unusual in a functioning marriage. The savings and properties of the parties were common family property and were treated as such by them.

47. When the plaintiff and defendant returned to Pakistan the arrangement, which had existed between them in England, in respect of family assets, appears to have continued. We, refer to Exh.D.6 and Exh.D.10, which are two letters addressed by the plaintiff to Muhammad Nawaz Kasuri, D.W.3, who at the time the letters were written, was the plaintiff's legal advisor. The first of these letters (Exh.D.6) is dated 26-4-1971. The following two extracts from this letter are important in showing to us that before this litigation commenced, the plaintiff and defendant did not think in terms of "mine" and "throe". The plaintiff has stated in his letter:-- "As the days pass I am beginning to believe increasingly that we may have made a serious mistake by transferring our money to Pakistan." (The underlining is ours) What bears emphasis in the above statement is that the plaintiff clearly considered the money transferred to Pakistan as belonging to both husband and wife. This is regardless of the fact established above that the money may have been earned and founded by the plaintiff alone.

48. Another part of Exh.D.6 reads as under:-- "Turning back to the problem of shops, I am thinking, but I want to take your advice, if it is better that we sold them. Jane and you can think about it and advise me accordingly."

49. Exh.D.10, which is a letter dated 25-10-1971, was also addressed to Muhammad Nawaz Kasuri D.W.3. We find the following part of the Exh.D.10 to be relevant:-- "I built the bungalow in her name. Quite a bit of that money was mine and my parents. Half of the shops were built in her name. Most of that money M mine. The stock in her name was my earnings."

50. The above letter, which also was produced in evidence on behalf of the defendant, shows clearly that it was only in late October, 1971 i.e. less than two months prior to the time to which the present dispute can be dated that the question of whose money it was, cropped up for the first time during the course of the marriage between the parties.

51. From late December, 1971 when the plaintiff imputed adultery to the defendant the parties went into an acrimonious dispute resulting in criminal proceedings as well as the present litigation between them. Considering the circumstances discussed above, we have little doubt that W the respective posturing adopted by the parties in this case, is far from the reality which existed before the dispute arose. Both parties as noted, have led extensive oral as well as documentary evidence. The testimony of their respective witnesses as to the competing claims of ownership of the disputed properties, is self-serving and unreliable.

52. Fortunately for us we have the documentary evidence discussed above which dates from before the current dispute: From the said evidence we are not left in the slightest doubt that husband and wife are, in fact, equal joint owners of the house and shops in dispute. This is so notwithstanding our finding that the plaintiff alone provided the funds for the acquisition/construction of the disputed properties.

53. Based on the foregoing discussion, it is also clear to us that the plaintiff and the defendant were exercising joint proprietary and possessory control over the suit properties. The fact that the disputed house was purchased in the name of the defendant does not negate the aforesaid conclusion, in the circumstances discussed above the intention of the parties, at all material times, including the dates when the suit properties were acquired/constructed has been manifested in the evidence and their course of conduct discussed above. It therefore, follows that the defendant was a benamidar to the extent of one-half of the disputed house. She held legal title to the said one-half for and on behalf of the plaintiff who is declared to be the real and beneficial owner of one half of the disputed house. As for the disputed shops, we declare that the legal title of the parties therein represents also their beneficial interest, as equal joint owners of the said shops.

54. At this point, as a consequence of the above finding we need to note that the defendant, or persons under her are in the possession of the disputed house from end 1971 todate, to the total exclusion of the plaintiff although the parties were entitled to and were previously enjoying joint possession of the said house. The plaintiff is, therefore, equally entitled to possession of the disputed house. He has been wrongly excluded from and denied the benefit of his right therein. We will, therefore, be remiss in the performance of our duties if we do not allow relief to the plaintiff to redress the wrong done to him. In view of his wrongful exclusion from the disputed house we, therefore, consider it fair to pass a preliminary decree for mesne profits in favour of the plaintiff for the period starting from the date of filing of the plaintiff's suit until such time he is put in possession. An inquiry shall be conducted by the learned trial Court to determine the quantum of mesne profits whereafter a final decree shall be passed for the amount so determined.

55. As a result of the above discussion the suit of the plaintiff is decreed in part, in terms of paragraphs 53 and 54 of this judgment.

56. The parties are left to bear their own costs. This is an application moved on behalf of the appellant under Order XIV, rule 16, C.P.C. praying that certain unnecessary embarrassing and scandalous contents of the plaint filed by the respondent be struck out. The ground urged in support of the application is that the trial Court had struck off Issue No.2 and, as such, the aforesaid averments in the plaint, which relate to the said issue, were not necessary. We have considered the application. Even though Issue No.2 was struck off by the learned trial Court, we find that the contents of the plaint objected to by the applicant, are relevant inasmuch as these averments explain an important aspect of the conduct of the parties. We have also, in our judgment in appeal, commented on the part of the plaint in which the respondent/plaintiff has impugned adultery to the applicant. In these circumstance, the portions of the plaint objected to by the applicant, cannot be struck out. This application, as a consequence, is dismissed.

2. This is an application moved on behalf of the appellant under Order XLI, rule 24 read with Order XIV, rule 5, C.P.C. Through this application the appellant has sought refraining of issues in the light of the judgment of the Honourable Supreme Court in Civil Appeal No.752 of 1992. The issues framed by the trial Court adequately cover the controversy arising out of the pleadings of the parties. The parties have also led evidence, being fully aware of such controversy. Upon examination of the evidence while recording our judgment in the appeal of even date, we have come to the conclusion that there is no need to reframe the issues in the case. We are also of the view that no prejudice has been caused to either party as a result of the frame of issues in the case. In the circumstances, this application being without merit is dismissed.

3. This is an application filed on behalf of the appellant under Order XLI, rule 27, C.P.C. praying that she be allowed to produce in evidence original sale-deeds dated 2-5-1968 and 27-5-1969 respectively relating to the house and shops in dispute in the appeal. In our judgment deciding the appeal we find that nothing turns on the original sale-deeds which, in any event, are not disputed documents. Since these documents are not relevant for the purpose of the deciding 'the appeal, this application is dismissed. S.A.K./J-79/L Suit decreed accordingly.