P L D 1971 Karachi 763 (PLP)

"Rs. 5,000 paid in cash to Asghari Begum on 1-6-46 on account of her Mehr in full.". This entry has been admitted by the defendant No. 1 in the deposition to be in the hand of her late husband. There is no entry in the whole of this book that the late Moquimuddin Ansari bought any diamond jewellery set for the defendant by way of payment to her of the balance of "Mehr" amounting to Rs. 15,000.00. The defendant stated in her evidence that this diamond jewellery set had been bought through Mst. Mahmooda Begum, widow of Syed Ahmad at Dehradun. But in her cross examination she stated that she did not clearly remember the period or time when her husband was posted at Dehradun. She stated that this set belonged to one Sheela and the late Maquim uddin Ansari purchased the set through this witness. A receipt for this amount was given to late Moquimuddin Ansari. But the witness did not remember whether the defendant No. 1 was present or not. She admitted that he had never seen the defendant No. 1 wearing this diamond set. She also admitted her friendship with this defendant. I find it difficult to place any reliance on the statement of this witness. Admittedly she is very friendly with the defendant No.

1. Further, even if it be admitted that the late Moquimuddin Ansari purchased the diamond jewellery set for Rs. 15,000.00 then it has not been proved that this set was gifted to the defendant No. 1 by him. It would appear that the story as regards the diamond jewellery set has been put up to support the defendant No. 1's contention that her "Mehr" was fixed at Rs. 20,00100 and that the whole money for the disputed property came from her own resources. The evidence on record does not support defendant No. 1 in her contention that whole of the consideration, or any part thereof, for this property came from her. On the other hand, the evidence supports the plaintiff's case that the whole con sideration for this property came from the late Moquimuddin Ansari's own resources. It is the admitted position that the said deceased retired as Superintendent, Survey of India, in 1945, when he was drawing a salary of Rs. 1,800.00 per month. On retirement his pension was Rs. 583.00. He had a house in Dehradun, the claim in respect of which was verified in the sum of Rs. 1,22,600.00 under Exh. 33 and Exh. 34, which are orders of verification. The claim on account of rent of this property was verified at Rs. 22,000.00 under the same exhibits. Further, before coming over to Pakistan the deceased had agreed to sell this property to a local and received Rs. 10,000-00 as advance, which fact is noted in the order of verification, which is Exh.

33. The deceased's diary-cum-account book, Exh. 35, shows the following further assets of the deceased: (i) Post office national saving certificates purchased by the deceased on 29-5-1946 in his name and in that of the defendant No. 1-Rs. 10,000'00. (ii) Post office national saving certificates purchased by the deceased on 31-5-1946, in his name and in that of his son Ahsan Moquim Ansari

Rs. 4,000.00. (iii) Post office national saving certificates purchased on 31-5-1946 by the deceased in his name and in that of his son Azam Moquim Ansari--Rs. 6,000.00. (iv) Fixed deposit in the Imperial Bank of India, Dehradun made on 14-9-1947-Rs. 10,000.00. (v) Loan to Mr. Ghulam Sabir Ansari, the brother of defendant No, 1--Rs. 5,000.00. All these entries are in the hand of the late Moquimuddin Ansari, as admitted by the first defendant herself. Moreover, according to Azam Moquim Ansari, one of the plaintiffs, his father, the late Moquimddin Ansari, also brought with him from India the amount of his provident fund in the sum of Rs. 25,000.00. The plot on which the bungalow in dispute stands was originally in the name of Mr. Ghulam Sabir Ansari, who had acquired it for Rs. 3,OOJ.00 paid to the Muslimabad Co operative Housing Society Limited. I would believe P. W. Azam Ansari that the late Moquimuddin Ansari paid Rs. 3,000.00 to Mr. Ghulam Sabir Ansari in consideration of the latter trans ferring this plot to the name of the defendant No. 1 Mr. Ghulam Sabir Ansari also owed Rs. 15,000.00 to the late Moquirnuddin Ansari as admitted by him in his written statement Exh. 5.1 in Suit No. 982 of 1951 filed against hint by Moquimud din Ansari and in another document Exh. 63/1 signed by Mr. Ghulam Sabir Ansari on 24-5-1949. When Moquimuddin Ansari claimed this amount in Suit No. 982 of 1951, Mr. Ghulam Sabir Ansari's defence was that this amount had been adjusted against tile "Pagree" of the aforesaid plot, which he had transferred, at the instance of Moquimuddin Ansari, to the defendant No.

1. The dispute was referred to arbitration and under the award the late Moquimuddin Ansari was given only Rs. 2,000, out of his claim of Rs. 15,000,

00. Thus, the consi deration, which Moquimuddin Ansari paid for the plot, comes to its. 16,000.00. Even tae documents relating to construction are all in the name of Moquimuddin Ansari. P. W. Feroze Khane wal, Manager of Sind Patent Tiles Company, produced order form and vouchers, Exhs. 25/1 to 25/6, showing sale of tiles to Moquimuddin Ansari for the disputed house. In the agree ments relating to construction, entered into with the contractor Gal Muhammad, which are Exhs. 38 and 39, Moquimuddin Ansari is shown as owner of the prop:rty in dispute. Their there are Exhs. 40 and 41, which are receipts of Messrs Mir Son,, Architects and Engineers, showing receipt of two amounts of Rs. 8,OOJ.00 and of Rs. 5,010.00 from the late Moquimud din Ansari by cheque drawn on the account of the said deceased. In Exhs. 50 and 51, which are estimates made by Koh-i-Noor Construction Company of the value of the construction on the said plot. Mr. Moquimuddin Ansari is again shown as owner of the property. In Exh. 58, the notice sent by Mr. Khalid M. Ishaq, an Advocate of this Court, to Mir Gul Muhammad, who was the first contractor engaged for construction of the disputed property, the late Moquimuddin Ansari is shown as owner of the property. The said deceased is also shown as owner of the property in several vouchers and receipts for purchase of building materials which are Exhs. 48/1 to 48/7 and 49/1 to 49/3. Then the bills of another contractor, B. A. Siddiqi, Exhs. 42 to 47, have been addressed to the deceased as owner of the said property. All this documentary evidence abundantly proves that the whole of the consideration for the said property came from the late Moquimuddin Ansari himself, and that the defendant No. 1 was only "Benamidar" for her late husband. Mr. Nizam Ahmad, the learned Advocate for the defendant No. 1, objected to the admissibility in evidence of some of the documents, that is, vouchers and receipts for building materials and agreements with contractors. But these objections are misconceived, as these documents are admissible in evidence under section 32 (2) of the Evidence Act, as the statements therein were made in the ordinary course of business by persons whose attendance could not be procured without undue delay and, expense.

4. Mr. Nizam Ahmad took up the contention that the purpose of Moquimuddin Ansari in acquiring the said property in the name of his wife was to defeat the bye-laws of the Muslimabad Co-operative Housing Society under which no person, who was not a Sindi Muslim, could become a member of the said Society or acquire any land therein. According to Mr. Nizam Ahmad, the purpose in acquiring the disputed land in defendant No. 1's name was, therefore, fraudulent and the heirs of the late Moquiumuddin Ansari should not be allowed to take advantage of their father's fraud. Mr. Nizam Ahmad placed reliance on my own judgment in Sultan v. Nawab Mouladad (P L D 1969 Kar. 221). But that judgment proceeded more on considerations of public policy, which was to prevent concentration of agricultural land in the hands of big Zamindars and instead to grant allotments of Barrage lands to landless 'Haris'. In the present case, the object would appear to be merely to evade the restric tion contained in the original Bye-law No. 7 of the Muslimabad Co-operative Housing Society Limited, which confined member ship of the Society to Muslims holding Sind domicile. The bye-laws of a Co-operative Society are only domestic matters and do not have the force of law so that the breach thereof may come within the mischief of section 23 of the Contract Act. This is the view taken in a Nagpur decision Hanmantrao Ramrao v. Wasudeo Khandero (A I R 1926 Nag. 463). Kunwar Mukhtar Ahmed, the learned Advocate for the plaintiffs, brought to my notice a decision of the Indian Supreme Court, Sm. Surasatibalini Debi v. Phanindra Mohan Majumdar (A I R 1965 S C 1364). In this case, an employee of the Court of Wards started a business "Benami" in the name of another against his service rules. In a suit to recover possession of this business it was held that the object of starting business "Benami" in the name of another by such a person could not be said to be fraudulent, as the service rules were not statutory rules. This decision would appear to follow the Nagpur view, which is to the effect that where rules are merely domestic matters, a transaction which has the object of evading such C rules, cannot be treated as unlawful or fraudulent. Moreover, as deposed by P. W. Rais Ahmad, Inspector of Co-operative Societies, Bye-law No. 7 of the Muslimabad Co-operative Housing Society was amended subsequently and the restriction confining the membership to Muslims of Sind domicile alone was removed and the membership of the society was thrown open to all Muslims holding Pakistan domicile. Thus this suit cannot be defeated merely on the ground that the late Moquim uddin Ansari acted to defeat the bye-laws of the Muslimabad Co-operative Housing Society Limited in acquiring the disputed land "Benami" in the name of his wife, the defen dant No.

1. Moreover, this particular objection was not raised in the written statement. An attempt was made to raise this question in the issues, and Issue No. 2 was accordingly framed to consider this point. But at the hearing of the suit before me this issue was dropped and the question cannot now be re agitated. In view of the above discussion the answer to Issues 3 and 4 is as follows: (a) The disputed plot, namely, plot No. 36, measuring 1500 sq. yds. situtated within the area of Muslimabad Co-operative Housing Society Limited, Karachi was acquired by the late Moquimuddin Ansari from his own funds, but "Benami" in the name of his wife, defendant No. 1. (b) The bungalow on the said plot of land was constructed by the late Moquimuddin Ansari out of his own resources and funds and the first defendant held it only "Benami" for her husband.

5. Issue No. S.

It is admitted that the plaintiff's and the Defendant No. 2 are heirs of the late Moquimuddin Ansar

4. Accordingly, these persons, together with the defendant No. 1, are entitled to have shares in the disputed property, namely, land End bungalow herring No. 36, measuring 1500 sq. yds. situated within the area of Muslimabad Co-operative Housing Society Limited., Karachi.

6. Issues 9 and 10.

In view of the above conclusions and there being numerous co-sharers, it is a fit case for a decree declaring the rights of several parties interested in the disputed property and giving necessary directions with respect to the said property. Accordingly, the rights of the heirs of the late Moquimuddin Ansari in the said property are declared as follows: Share (1) Defendant No. 1, namely, Mst. Asghari Begum Ansari, widow of late Moquimuddin Ansari. 1/8 (2) Defendant No. 2, Mst. Mahmooda Moquim Ansari, daughter of late Moquimuddin Ansarl. 7/64 (3) Plaintiff No. 1, late Akram Moquim Ansari, who died during the pendency of the suit, leaving behind the following heirs and legal representatives, brought on record in the suit: 7/32 (to be further distributed amon gst heirs of the deceased plaintiff No. 1, as under:-- (a) Mst. Noor Elahi, widow of deceased Akram Moquim Ansari. 7/256 (b) Mst. Shagufta Nasreen Ansari, daughter of late Akram Moquim Ansari. 49/1280 (c) Saleem Akram Ansari son of late Akram Moquim Ansari. 49/640 (d) Nadeem Akram Ansari son of late Akram Moquim Ansari. 49/640 (4) Plaintiff No. 2, Ahsan Moquim Ansari son of late Moquimuddin Ansari. 7/32 (5) Plaintiff No. 3, Aziza Moquim Ansari. 7/64 (6) Plaintiff No. 4, Azam Moquim Ansari son of Moquimuddin Ansari. 7/32 Total: 1/8+7/64+7/32+7/32+7/64+7/22+=64/64. (7) Since there are several co-sharers, it would not be, convenient to divide the disputed property between them be metes and bounds. It is, therefore, directed under section 2 of the Partition Act, 1893 (Act No. IV of 1893) read with Order XX, rule 18 (2), C. P. C. that the property be sold and its sale proceeds be distributed amongst the heirs of the late Moquimuddin Ansari in the proportion specified above, bur that it would be open to any co. sharer to apply to the Court under section 3 of the Partition Act, 1893 for leave to buy at a valuation, which may be determined by the Court, the share or shares of the party or parties asking for sale. As regard; costs, the plaintiffs shall be reimbursed out of the sale proceeds of the said property. K. B. A.Suit decreed.