2006 PLP 810 (CLC)

MIAN SAQIB NISAR; J.

All the three Civil Revisions Nos.2264 of 2003, 2265 of 2003 and 2266 of 2003, arise out of the consolidated judgments and decrees of the two Courts below, thus, are being disposed of together.

2. Briefly stated the facts of the case, are that Khalid Bashir Bhatti, the son of Mst. Rashida Bano, the petitioner and the husband of respondent No.1, Mst. Samina Yousaf and father of respondents Nos.2 to 5 died; he at the time of his death, owned certain assts including the Cumulative Deposit Certificate (C.D.Cs.), which were purchased in the year 1982 jointly in the name of Khalid Bashir Bhatti and Mst. Rashida Bano. It may be pertinent to state, that with the passage of time certain amount of profit has accrued on the C D.Cs. After the death of Khalid Bashir, the petitioner brought a suit claiming that such C.D.Cs. were in fact exclusively owned by her and Khalid Bashir Bhatti, was only a Benamidar; the certificates are not the part of he estate left by Khalid; she therefore, also challenged the act of respondent No.1 in including these certificates in the application for the grant of succession certificate moved by her. Besides, respondent No.1, Mst. Samina Yousaf, also brought a suit for declaration, claiming Khalid Bashir as the exclusive owner of these C.D.Cs. and asserting the petitioner his Benamidar. She as mentioned above also filed the application for the succession certificate pertaining to the C.D.Cs. All the three matters were consolidated, issues were framed, parties were put to trial, and the learned Civil Judge, vide judgment and decree, dated 28-6-2003, dismissed the suit of the petitioner, allowed that of respondent No.1, her application for the grant of succession certificate was also accepted. Aggrieved, the petitioner challenged these decisions through appeals, but without any success, which were dismissed on 7-10-2003. Hence these revision petitions.

3. Mian Asrar-ul-Haq, learned counsel for the petitioner has vehemently argued, that Khalid Bashir Bhatti in the year 1982, when the C.D.Cs. were purchased was a student and was of the age of about 20 years; he had no independent source of income, whereas the petitioner along with her father and husband; have been working in Dubai, where she was stitching/supplying the uniforms for the police personnel and had earned income which is the source of the purchase of the C.D.Cs. And the motive for putting those into the joint name was that she wanted to show trust and confidence upon her only young son as advised by her brother. It is also submitted, that the C.D.Cs. were lying though in the locker in the name of Khalid Bashir, but the key of the locker was with the petitioner, as it is she who had produced the same before the Local Commission, who under the orders of the Court, opened the locker. Resultantly, the most important of the ingredients to establish Benamiship are in favour of the petitioner. .The view thus, taken by the two Courts below, that the C.D.Cs. are not exclusively owned by the petitioner, rather Khalid Bashir is illegal, unlawful and due to the amiss in the reading of the evidence on the record.

4. Mr. Ahmad Awais, Advocate, the learned counsel for the respondents Nos.1 to 5, while responding to the above, has relied upon the findings of the Court of appeal, given in paragraph 6 of the impugned judgment, and argued that the Court has taken pains to discuss the evidence and to give reasons, as to why Khalid Bashir was not a Benamidar, rather was the exclusive owner of the C.D.Cs. He submits that because of the concurrent finding of fact, reached by the two Courts below, which are not shown to be either perverse or erroneous on account of the reading of the evidence, should not be interfered in the revisional jurisdiction. 4-A. I have heard the' learned counsel for the parties. Admitted facts are; that the C.D.Cs. were purchased in the year 1982; these are in the joint name of the mother and the son; there is no evidence as to who out of the two contributed to what extent and the proportion; both the parties have failed to establish their independent and exclusive source of the purchase. Khalid Bashir was 20 years of the age and was a student. The motive of Benami has also not been pro led by either of the side. If C.D.Cs. were lying in the locker of Khalid Bashir and thus, his possession is claimed to be exclusive, the key of the locker was possessed by the mother, which she has produced before the Local Commission.

5. From all the above factors, it is clear to me that, the money, which was used for the purpose of purchase/issuance of the C.D.Cs. were the family money which shall be deemed and assumed to have been equally contributed by both the mother and son, and thus, the C.D.Cs. shall also be owned by them, in the equal share. The view of the learned Courts below particularly, the Court of appeal, that because after the death of Khalid Bashir, the petitioner moved to the authority for the issuance of the duplicate certificates and wanted the endorsement "either or survivor" made thereupon, which action should go against her and also that Khalid Bashir Bhatti owned considerable properties, therefore, the presumption should be that he was the actual owner of the C.D.Cs. and that the petitioner as Benamidar is flawed, erroneous, against the record, and based upon an illegal presumption. Thus, notwithstanding any such move of the petitioner in applying for the duplicates, the admitted facts remain that C.D.Cs. which were purchased in the year, 1982 were, in the name of both the deceased and the petitioner. As stated above, in the year 1982, Khalid Bashir was only about 20 years of age and was a student, having no independent source of his money, therefore, if subsequently, he had acquired certain assets, that by itself shall have no retrospective nexus to prove that it is he, who exclusively purchased/got the issuance of C.D.Cs. and therefore, was the owner and that the petitioner was a Benamidar. Likewise, as mentioned earlier, the petitioner has also failed to prove her exclusive ownership and the Benamiship of his son. Therefore, I am constrained to hold that the C.D.Cs. were equally owned by both the petitioner and the deceased, and thus, they are entitled to share the amount with the accrued interest thereupon in equal. Out of the half share which is the estate of Khalid Bashir, the petitioner as a mother, shall also be entitled to 1/6th which share she has already received under the orders of this Court dated 25-11-2004. In the light of above, the suits of both the parties seeking the declaration against each other, about their exclusive ownership and the Benamiship of the other side stand dismissed. And respondent No.1, shall only be entitled to the succession certificate about the C.D.Cs. in the proportion to the estate of her late husband minus 1/6th share of the petitioner. The remaining half share of the C.D.Cs. shall go to the petitioner and she shall be entitled to receive the same without further applying to any Court. Disposed of accordingly. Before parting, it may be mentioned that application for additional evidence (C.M. No.749/C of 2004) has been withdrawn by Mian Asrar-ul-Haq, Advocate for the petitioner. Disposed of as such. S.A.K./R-152/L Order accordingly