1994 PLP 1437 (CLC)

In the words of the Privy Council in Bilas Koer v. Deoraj (AIR 1915 PC 96), where it is asserted that art assignment in the name of one person is really for the benefit of another person, the principle applies that ,the trust of the legal estate results to the man who pays the purchase money.

17. It is well‑settled that in this sub‑continent the English doctrine of advancement does not apply and it must be said in fairness to learned counsel for the defendant that though she was an English lady, yet he did not invoke it. And, as section 82 of the Trusts Act itself provides expressly, the crucial question is whether "such other person did not intend to pay or provide such consideration for the benefit of the transferee": in other words, the real question is always one of intention. If I may say, the true rule as it emerges :rom decided cases was neatly summed up by A.S. Farooqi, J. in Ismail Dada Soomar v. Shorat Banoo (PLD 1960 Karachi 852) as follows: "The English principle of advancement does not apply to India (also Pakistan) no distinction has been made between the cases of Hindus and Muslims on this question. The doctrine of intended advancement in favour of the wife not being applicable in this country, there would be resulting trust in favour of the husband who provided the purchase money in the absence of proof of contrary intention. The question whether a transfer in the name of the wife for which the consideration was paid by the husband is a Benami transaction or amounts to a gift is always one of intention. And the intention to be determined is of the time when the transaction took place. The question which must be squarely answered is Did the husband intend to make an absolute gift of the property to the wife? In determining the true intention regard must naturally be that is the surrounding circumstance, and the subsequent conduct in so far as it is relevant to the understanding of the plaintiff's intention."

18. The question whether a particular' transaction is benami or not, is largely one of fact and for determining this question no absolute formulae or test, uniformly applicable in all situations, has bean laid down. But, as was held in Muhammad Sajjad Hussain v. Muhammad Anwar Hussain (1991 SCMR 703) in determining the question, the following factors are to be taken into consideration: (i) the source of consideration; (ii) from whose custody the original title deed and other documents came in evidence; (iii) who is in possession of the suit property; and (iv) motive for the Benami transaction.

19. As that great Judge, Mr. Ameer Ali said in AIR 1916 PC 96, of these factors, the most important is the first factor, namely, the source wherefrom the consideration came. This was received legislative recognition in India; there, by the Benami Transactions (Prohibition) Act, 1988. (Act No. 45 of 1988) Benami transactions have been prohibited and to enter into such a transaction has been made an offence. By section 2 thereof, the expression "benami transaction" has been defined to mean "any transaction in which property is transferred to any person for a consideration paid or provided by another person". (For this, I am indebted to the learned counsel for the defendant who has placed before me a copy of the Indian Act No. 45 of 1988). The plaintiff's oral evidence can be shortly dealt with as follows, Mehmood Khan (P.W.1) was a Superintendent of the State Insurance, Company, Lahore. He stated that his company had sold Plot No. 68‑II. Gulberg‑111, Lahore, to the plaintiff the plaintiff had paid Rs.3,000 through his broker; the remaining sale consideration had been paid earlier. Later, the plaintiff had purchased three policies: for them, payments were made sometimes by the plaintiff and sometimes by his wife. He added that the plot was purchased by the plaintiff in the name of his wife. He had also purchased the plot in Ghalib Market, Gulberg‑I1, Lahore: in that plot, his wife's share was one‑half. Karam Elahi (P.W.2) was the contractor who had constructed the buildings on both the plots; he said that a sum of Rs.1,78,999.00 was the cost of the construction of the house; this included the cost of the furniture; the whole of it was paid by the plaintiff. On the construction of the shops, the total expenditure was Rs.1,15,000.00, that too was paid by the plaintiff. Muhammad Akhtar Ahmed (P.W.3) was the Assistant Manager of National Bank of Pakistan, Gulberg‑III, Lahore. He produced the statements of the plaintiff's account P.1 and P.2. Syed Fida Hussain (P.W.4) was a neighbour of the plaintiff; he testified to various facts including the visits of Mr. Muhammad Nawaz Kasuri, Advocate to the plaintiffs house. Mashkurul Hassan (P.W.5) was a Clerk of the First City National Bank. He produced the record of the defendant's. correspondence with their London Branch. This is Exh. P.W.5/1. Bashir Ahmed (P.W.6) was a son of the Chowkidar engaged when the house was under construction. Ghulam Nabi (P.W.7) A.S.I. stated with reference to an FIR. dated 16‑2‑1972. ShaukatAli (P.W.8) of the State Life Insurance Company deposed to some policies held by the defendant. Badar Siddiqi (P.W.9). Manager Lahore American School, Lahore, stated that the defendant was employed as a teacher in their school; she had joined the school on 28‑8‑1968 and left the school in 197.1‑

72. Her annual salary, he added, was Rs.21,592, she had received Rs. 3,700 as her salary for the year 1968‑

69. Muhammad Din (P.W.10) was the maternal uncle of the plaintiff. He testified that he had received Rs.5,400 from the plaintiff's mother; later, he had paid Rs.18,000, for the plaintiff needed money for the construction of his house. Muhammad Shafiq Abbasi (P.W.11), City Inspector, did not say anything relevant to the issue. Mansoor Mehmood Mirza (P.W.12) of the Muslim Commercial Bank deposed to two cheques Exh. P.1 and P.2, one issued by Ch. Abdul Haq and the other issued by Mian Ehsanul Haq for Rs.1,500 and Rs.3,500 respectively; they were in the name of the plaintiff. Muhammad Iqbal (P.W.13) of the National Bank of Pakistan, Lahore, also deposed to the plaintiffs account. Muhammad Jamil (P.W.14) was a tenant of one of the shops; he had obtained it from the plaintiff and had been paying rent to him. Faiz Ahmed Siddiqui (P.W.16) of the Muslim Commercial Bank produced Certificate Exh. P.W.16/1. Munir Hussain Shah (P.W.17) of the State Bank of Pakistan produced the file of a case against the plaintiff. Mian Ehsanul Haq (P.W.2) was a distant cousin of the plaintiff. He testified that the parties had come to Pakistan in 1961 and had stayed with them. They had again come to Pakistan in 1967 or 1968 and had stayed again with them. Later, they constructed their own house in Gulberg and shifted into it. He stated that the properties were those of the plaintiff, for he had been running about in connection with their construction. It was put to him that he had purchased a car from the plaintiff; he denied that fact. Ashraf Ali (P.W.21) of Habib Bank said that the defendant had opened an account with their Bank in March, 1968 and had been operating till April, 1969.

20. The substance of the evidence of the plaintiff, Abdul Hamid (P.W.15) is as follows. He had done his B,Sc. Mathrmatics from F.C. College, Lahore, in 1956. He did his B.Sc. in Electrical Engineering from England in 1969. He was a chartered engineer and his salary (at the date of his statement which was recorded on 4‑6‑1986) was Rs.50,

000. He and the defendant were students in the University of Wales. They were married on 10‑1‑1959 when the was employed in South Wales Switchgear Ltd. and the defendant too was working in the Company. His father was supporting him in England as student. His father was a commission agent in Burewala. The defendant was receiving education the grant of the County Council. Their daughter was born on 12th October, 1959. His weekly income was between 35 to 40 pounds and his weekly expenditure was about 10 pounds. The defendant started receiving training in his school. Since September, 1960, his salary used to go in the defendant's account. He had worked in different countries such as Iraq, Behrain, East Pakistan, and Libya? From May, 1969 onwards, she had transferred her salary to her London account through the Bank of America. He went back to England on 26th November, 1969 to renew his residence status and also to earn money to pay all the debts which he had incurred in connection with the acquisition of his property. During his stay in England, he had been sending money to Pakistan. In 1970, her mother‑in‑law came to Pakistan. During that period, the defendant had some difficulties with the tenants. She consulted Mr. Muhammad Nawaz Kasuri, Advocate, whose wife also worked in the American School. As to the purchase of the plots and the construction thereon, he said that the house was completed in December, 1968; the total cost on the construction was one lac seventy or eighty thousand rupees. He had a sum of Rs.76,000.00 remitted to Pakistan through the National Bank of Pakistan, vide bank statements Exhs. P.1 and P.2. He had another sum of Rs.1,20,000.00 transferred from England in 1969. He had also obtained some money from his cousin Mian Ehsanul Haq. He had obtained Rs.8,500 from P.E.I. Company. He was also owner of a garden in Pakistan and his father had a shop in Burewala which he sold in 1976. Besides Rs.5,000 which he obtained from the sale of the car, he had received Rs.23,000.00 from his maternal uncle Muhammad Din. He added that he had lived in the house in dispute till 18th February, 1972. The defendant and Mr. Muhammad Nawaz Kasuri, Advocate, had him arrested on the allegations that he had abducted his own daughter and committed theft. When he was in jail, they took possession of the house; they also removed all his title deeds, etc. Since then, Mr. Muhammad Nawaz Kasuri, Advocate had been living in that house. When he had returned to Pakistan on 18th December, 1971, he had found the defendant Mr. Muhammad Nawaz Kasuri, Advocate in the bed‑room; later on 11th January, 1972, he had found them sleeping together.

22. The defendant's witnesses Mst. Firdous‑un‑Nisa (D.W.1) and Hamid Ali Shah (D.W.2) did not say anything helpful to the defendant, so much so that no reference was made to their testimony. Muhammad Nawaz Kasuri, Advocate (D.W.3) appeared as the defendant's attorney. The purport of his testimony is as follows. The properties. in question had been in the possession of the defendant; they had been purchased and built with the money which the defendant's mother had sent from England by cheques Exh. D.W.3/2 to Exh. D.W.3/16; those cheques found mentioned in the statement of accounts received from the Lloyds Bank vide Exh. D.W.3/17 to Exh. D.W.3/30. The parties had quarrelled over the properties in dispute; they used to meet in his chamber (as an Advocate) to resolve their differences. During this period, the defendant had appointed him (Mr. Muhammad Nawaz Kasuri, Advocate) as his attorney. The plaintiff sold his car to him on 28‑12‑1971. On 6‑1‑1972, the defendant informed him that the plaintiff had, with the help of certain persons kidnapped her daughter and removed certain household articles. A writ petition was filed in the High Court and a case was registered. He denied the allegation of adultery made in the plaint against him. In the years 1969 and 1970, the Government of Pakistan had floated the bonus scheme; under that scheme, all foreign remittance earned 60 to 70% bonus with the result that for one pound, which was worth Rs.13.00 in those days, he received Rs.19.00. The plaintiff had the cheques issued from the defendant's mother in fictitious names and received bonus. The amounts so received by the plaintiff from England were in fact the amounts belonging to the defendant's mother.

23. It is noteworthy that the statement of Mr. Muhammad Nawaz Kasuri, Advocate started ,on 25‑5‑1987; he remained under cross‑examination for a? number of days till 26‑7‑1987, when the defendant's evidence was‑closed. Thereafter, the rebuttal evidence of the plaintiff started on 30‑1‑1988. In that evidence only one witness Mian Ejaz Ahmed, Special Attorney of the plaintiff appeared as P.W.23. He testified to the various amounts which had, from the years 1962 to 1967, been deposited in the defendant's account in England but which were in fact the monies of the plaintiff. He also produced in evidence a letter Exh. P.W.23/1 from the Lloyds Bank, Queens Street, U.K. According to him, the plaintiff had asked for a statement of the account of the defendant but the statement sent by the Bank showed that the account was in the name of the plaintiff. The plaintiff then wrote a letter to the Bank that the correct statement of the account of the defendant should be supplied to him..

24. It will appear from the plaint that the draftsman was conscious of the importance of the fact that the most important factor in determining the real nature of the transaction in question was the factor of consideration; he did, therefore, try to give some details of the plaintiffs financial position. There can, however, be no doubt that it was sufficient for the plaintiff to say, as he did in para. 2 of the plaint, that it was with his money that the properties were purchased and constructed. The defendant went into great details in her written statement in describing 12 items of sums of money, which were during the period from 12‑4‑1968 to 2‑12‑1969, their total being pounds 13053, remitted from England by the defendant's mother, and which sums of money had gone into the account of the plaintiff. Much was tried to be made of the following sentence in the replication of the plaintiff: "It is denied that the mother of the defendant remitted the amount mentioned in the para." This sentence must, in my view, be read in its immediate context, namely, the sentence, which immediately follows it: "The suit properties were purchased by the plaintiff with his own money and the defendant had no means to purchase the properties at the time when the properties were purchased." The combined effect of these two sentences appeared to be that the money, which the plaintiff had received from England, was not the money of the defendant; nor was it the money belonging to the defendant's mother. It should be noticed here that though the defendant had, in para. 1 of the written statement, mentioned the various items of money with the dates, which the defendant's mother had allegedly sent to the plaintiff, yet the cheque numbers of these items were not mentioned.

25. It was the defendant who had pleaded that the sum of pounds 13055 was received by the plaintiff from her mother. Issue No. 3 reflected that para. of the pleading and its onus was upon the defendant. The defendant was content to place on record copies of cheques, Exh. D.W.3/2 to Exh. D.W.3/12; in those cheques, the payees were the National Bank of Pakistan and the Habib Bank of Pakistan. The cheques, Exh. D.W3/13, Exh.D.W3/14 and Exh.D.W.3/15, were in the name of the plaintiff and the cheque Exh.D.W.3/16 was in the name of the Lloyds Bank.

26. Now the admitted position was that the plaintiff was not maintaining an independent account in England. It was not that he had no source of income or had no monies to deposit in banks. He was an electrical engineer and his case was that his income used to go direct to the account of his wife, defendant herein. There was nothing unusual in this arrangement. I understand that this was consistent with the law of England or at least this was the general practice followed by the foreigners living in England. True that during the period from 1962 to 1967, the defendant too had been employed as a teacher and it may well be that her salary also went into her account. The agreed arrangement, according to the defendant, was that the money was transferred from the defendant's account to her mother's account. There was, however, not a speck of evidence to suggest that the parties' intention was that the money should become the money of the defendant's mother. Whatever the arrangement, the money remained that of the plaintiff. It may well be that as the parties were coming to Pakistan with a view to setting here for good, this arrangement was agreed upon, so that as and when necessary, the money could be had from the defendant's mother. No writing from the plaintiff, asking her mother to send her money to the plaintiff on her account, was produced. It was not the defendant's case that the money was her money; nor was there any evidence to that effect. In the absence of any such evidence, the inevitable conclusion must be that the money really belonged to the plaintiff and that was why the defendant's mother had so readily agreed to transfer it to his account in Pakistan. Englishmen and women are known to have a materialistic approach towards life and it is extremely hard to believe that old lady had advanced so much of her savings, at that age of her life, to the plaintiff without any writing from him or without even a written request from the*defendant. The defendant herself was the best witness on the point. The next best witness was her mother. That neither she nor her mother entered into the witness‑box must, therefore, raise an adverse inference against the truth of her case.

27. That the money sent by means of these cheques by the defendant's mother was in fact the plaintiffs money seems to me the natural inference to draw from these facts. And to this the presumption that "every negotiable instrument was made or drawn for consideration." (Section 118 of the Negotiable Instruments Act, 1881). '

28. But any doubt that there might have been was removed by the letter Exh. P.W.23/1 written by the Lloyds Bank to Messrs Weavers & Co., the plaintiff's solicitors, dated 10th February, 1988. This was in reply to the solicitor's letter dated 3rd September, 1987. Exh.P.W.23/8/3. They deserve to be reproduced in full. Exh.P.W.23/8/3, the Weaver & Co. wrote to the Lloyds Bank, P.O. Box 95, 31, Queen Street, Cardiff, requesting confirmation of the following: (a) Confirmation, as previously requested in our letter of 12th Ultimo, that this account was in the name of Jane Margaret Hamid and not Abdul Hamid. (b) That pounds 3,970, 12s.2d was received from Halifax Building Society on or about 6th September, 1967 from the account of Abdul Hamid (the enclosed copy letter of 3rd February, 1972 from Halifax Building Society refers). (c) Abdul Hamid salaries from Merz and Mekollen, Consulting Engineers, New Castle‑Upon‑Tyne were paid into the account at your Branch. (d) Sums were transferred from this account to the account of Mrs. V.E. Monte at Lloyds Bank PLC, Blackwood, Gwent. (e) A total of pounds 5,000 (nominal) funding of parent stock was purchased from this account and the certificates were retained to the Bank for safekeeping. (f) This same stock was sold in 1969 and the entire proceeds were forwarded to the account of Mrs. V.E. Monte, at Lloyds Bank PLC., Blackwood, Gwent. By Exh. P.W.23/1, the Lloyds Bank sent the following reply: (a) As previously confirmed, the account was in the name of J.M. Hamid. (b) Pounds 3,970, 12s.2d was received from the Halifax Building Society on the 6th September, 1967. (c) Salaries from Merz Mekollen in the name of Abdul Hamid were paid into the account. (d) Sums were transferred from the account to the account of Mrs. V.E. Monte at Lloyds Bank PLC, Blackwood, Gwent. (e) A total of Pounds 5,000 (nominal) funding 6‑1/2% stock was purchased on the 4th September, 1967 and the cost was debited to the account. The Certificates were held for safe keeping. (f) The account was transferred to Blackwood Branch on the 3rd June,1969, before the? stock was sold and may I suggest, therefore, that you contact Blackwood Branch for confirmation of the sale.

29. It is to be noted that in some earlier letters, the Lloyds Bank had wrongly? informed the plaintiffs solicitors that the amount was in the name of the plaintiff; one of the facts confirmed by the Lloyds Bank by Exh. P.W.23/1 was that the account was in the name of J.M. Hamid (the letter "J.M." stood for Jane Margaret).

30. Thus, the result produced by the two letters, Exh. PW 23/8/3, Exh.PW 23/1 read together was that the plaintiff' had an account with Halifax Building Society; on 6th September, 1967, a sum of Pounds 3,970. 12s.2d was received fron Halifax Building Society from the amount of the plaintiff' into the account of the defendant that the salaries of the plaintiff from Merz and Melellan, Consulting Engineers, were paid into the account of the defendant; that a total of Pounds 5,000 funding 6‑1/2% stock was purchased from this account and the certificates were retained by the Bank for safe‑keeping; and that some stock was sold in 1969 and the entire sale proceeds of stock were transferred to the account of the defendant's mother. 31, The plaintiff was truthful enough to admit that of two cars that he brought to Pakistan in 1968, one was in the name of the defendant. He also admitted that the price of Goth the cars had been paid from the defendant's account in England. But it should now be clear that the monies lying in her account in England or at least that they were not exclusively hers, were not her monies. In any case, the price fetched by the defendant's car was paltry sum of Rs.5,000.

32. According to Karam Elahi contractor (P.W.2), the total sum of money expended on the construction of the house and the shops was Rs.2,93,000 the total cost of the land under the house was Rs.27,776 and the total cost of the land under the shops was Rs.55,

000. Thus, the total sum of money spent on these properties was Rs.3,75,

776. At the rate of 20% per sterling pound the value of pounds 13053 was about Rs.2,62,

000. True that in Pakistan, the defendant was earning as a teacher in the American School, but there was no evidence whatever to show that she had put any part of her salary into the properties in question.

33. As was held in Muhammad Sajjad Hussain v. Muhammad Anwar Hussain (1991 SCMR 703), it is 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." There is a presumption that when a property is purchased by a husband in their name of his wife, or by a father in the name of his son, it is presumed that they are Benamidars and if they claim it as their own by alleging that the husband or the father intended to make a gift of the property to them, the onus rests? upon them to establish such a gift (See Controller of Estate Duty v. Aloke Mitra AIR 1981 SC 102).

34. The evidence referred to above was, in my view, overwhelming in character to prove that the money invested in the purchase and construction of the properties in question all came from one source and that was the plaintiff's own source. Learned counsel for the defendant referred to the averment in para. 6 of the plaint that the plaintiff had "made this arrangement in order to provide her a secure living", his contention being that even if the money spent on these properties was the plaintiff's money, he had made a gift of properties to the defendant. The plea that it was her mother's money and in the alternative that it was a gift are mutually destructive; for the basis of the first is in the fact that she owned the property. It is clear that if she owned it, then there was no title in the plaintiff, and the latter had nothing to gift. Be that as it may, these words too should not, in my view, be read divorced from their context. The context, in which those words occur, isas follows:‑‑ "Thereafter the defendant started asserting that she was the owner of bungalow No. 68‑I1, Gulberg‑II, and joint owner of five shops bearing No. 5/B‑1 and B/2. The plaintiff told her that she was a "Benamidar" and he had made this arrangement in order to provide a secure living but the defendant insisted on denying the title of the plaintiff." Read in this context, I cannot think that they lend themselves to the interpretation that the plaintiff had admitted‑to have made a gift of these properties to the defendant

35. Learned counsel then referred to the documents Exhs. D4, D9, D10, D17 and D18 in order to show that if, in the circumstances of the case, the burden of proof shifted on to the defendant, that stood sufficiently discharged. Exh. D4 is a letter, dated 19th June, 1971; this letter was written by the plaintiff to Nawa2 Kasuri. In it he complained about the conduct of the defendant's mother namely how she behaved to him when he was living in her house in Blackwood in England. One of the statement of facts in this letter is about the air ticket which has obvious reference to the air ticket of the defendant's mother for her journey to Pakistan. The sentence upon which the defendant's counsel relied was "I feel happier about Jane that she was able to not recover something from the old B to what she was entitled to when her father died." Her father died somewhere in the year 1956 and I can see nothing in this sentence in any way helpful to the defendant. Exh. D9 was a letter dated 3rd October, 1971 from the plaintiff to Nawaz Kasuri. In it, there is a reference to the selling of shops and in that context occurs the sentence: "In fact she owns them". This sentence too, by itself, did not account to an admission that the shops were intended to be the defendant's properties. The letter shows that the plaintiff was, for reasons which had probably something to do with the defendant's conduct, in a very bad state of mind. He said that in his present "helpless state", he was "unable to take any decision. As a matter of fact, I am lost". It is obvious that when a man writes such a thing in that frame of mind, he is not to be taken literally. In Exh. D10 also, the sentence caught at by the appellant's counsel was: "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 was mine. The stock in her name was my earnings." This letter was dated 25th of October, 1971, and was again from the plaintiff to Nawaz Kasuri. These words rather go to show that the properties were the properties of the plaintiff. There was no mention of the defendant's money or her mother's money having gone into these buildings. Exh. D17 and D18 were powers of attorneys in the name of the defendant. Exh. D17 was dated 19‑6‑1970 and was executed in England and Exh. D18 was dated 3‑5‑1971 and was executed in Pakistan. They related to the shops and by them, the plaintiff authorized the defendant to deal with them on his behalf. They too are not evidence of the defendant being the real owner of the properties. 36. 1 can deal with the remaining three factors briefly. As regards the custody of the title deeds, etc. and the possession of the suit property, it was common ground between the parties that they were living together in the house in suit as husband and wife, when the plaintiff left for England on 28‑11‑1968. The plaintiff had been living in the house in suit and must also have been in possession of the deeds of title. In the circumstances of the case, therefore, nothing turns upon these two factors.

37. The expression "motive" has two distinct but related meanings. Both are used but it is important to realize that these are not the same. In one sense, motive means an emotion prompting an act. In this sense, motive is entirely different from the other sense, namely, intention of purpose. (Lord Hailsham L.C. in Reg. v. Hyam (1975), AC 55, 73).

38. I agree with the learned counsel for the plaintiff that in considering motive, it is important to bear in mind what he described as the "primary facts". They are that the plaintiff is a Muslim; he is a citizen of, and has his roots in, Pakistan. The defendant was an educated lady. She came from England, where they have the system of social security and one is generally not worried about his future. Not unnaturally the instinct to save money and to build property is not as strong in England or in other Western countries as it is in Pakistan where one must need save money for the future. The defendant had come to Pakistan with the plaintiff with a view to settling here but it is a well‑known fact of life that these ladies rarely fit in our society, and more often than not they go back to their own countries. It is in evidence that while in Pakistan when she was earning as a school teacher, she had been 'maintaining her on independent account and the circumstances of the case suggest, and suggest strongly, that she had not invested a penny in the properties in question. Viewed in this context the plaintiff could not have intended to pay or provide the consideration for the benefit of the defendant. In other words, his motive and intention could not be that she should be the real owner.

39. For these reasons, I would affirm the finding of fact that the defendant? was a mere Benamidar and that the real and true owner of the properties in question was the plaintiff.

40. There remains the question whether the plaintiff is also entitled to the relief of possession. As has been noticed above, the defendant left this country in April or May, 1972 and since then, she has not returned. The contention was that to deny the relief of possession to the plaintiff would amount to allowing Mr. Nawaz Kasuri, a complete stranger, to remain in possession and to enjoy the properties without any right. Learned counsel for the plaintiff thought that the defendant or Mr. Nawaz Kasuri had taken possession of the properties, when there was a restraint order in operation. That restraint order was said to have been maintained in another suit. It is not necessary to go into the question whether the defendant had entered into possession despite such a restrain order. The fact of the matter is that the plaintiff has not been in possession of he properties. There is no question that in view of the declaration of title, to which he has been found to be entitled, he is also entitled to get the possession of the properties. To do complete justice and to save the parties of further litigation, there is power in the Courts to allow the amendment of the plaint at any stage of the suit, (See Mst.. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 Supreme Court 345). To quote what I regard as the classic statement of the law on the subject "the idea must always be a system that gives to every person what is his". (Kaikaus J. In Imtiaz Ahmad v. Ahmad Ali PLD 1963 SC 382). In case, the relief of possession flows from the main relief of declaration of title and the case squarely falls under section 42 of the Specific Relief Act and section 7, clause rv), (c) of the Court Fees Act. I would,. therefore, allow the plaintiff to amend his plaint, so as to ask for the relief of possession as a consequential relief.

41. Consequently, the appeal is dismissed with costs throughout and the plaintiff is allowed a decree for a declaration that he is the owner of the properties in question; he is also as consequential relief granted a decree for the possession of the properties against the defendant. As the defendant has already left Pakistan, the parties are ‑left to bear their own costs throughout. AA./J‑74/L ???????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.