2002 PLP 1209 (CLC)

7. On the other hand, learned counsel for the respondent contends that transfer in the name of the petitioner is Benami, therefore, there is nothing unusual that all the documents stand in the petitioner's name; that the essential ingredients of a Benami transfer are clearly made out in the present case; that it was proved on the record that price of the shop was paid by the respondent, the original document (Exhs.D.6 and 7) were brought on the record by the respondent; the respondent remained in possession of the disputed shop and exercised his right of ownership and that the property was transferred in the name of the petitioner because at the relevant time the petitioner's son Akhtar Hussain was a minor and the property could not be transferred in his name under the Colonization of Government Lands Act; that the P.Ws. admitted that the petitioner used to send bank drafts from Saudi Arabia in the name of his wife and that there was nothing to show that he had ever provided the price of the shop to the respondent. Further contends that non‑production of Umar Daraz as a witness does not affect the respondent's rights as the sale was not in dispute; that the respondent was carrying on business of "Aarhat" since long and had sufficient means to buy the property and that the question of Benami is one of fact and concurrent findings of the Court recorded in this behalf cannot be disturbed in revision. In this behalf, he relies on the judgments in the cases of Mst. Zohra Begum and 6 others v. Muhammad Ismail 1995 CLC 242, Mrs. Kishwar Malik v. Lt.‑Col. M. Sadiq Malik PLD 1995 SC 457 and Mst. Halima v. Muhammad Kassam and others 1999 MLD 2934.

8. The question whether a transaction is Benami in character or not has to be decided keeping in view a number of factors/considerations which have, been re‑established through a number of judicial pronouncements. At first I would refer to the judgments cited by the petitioner's learned counsel. In the case of Mst. Muhammad Bibi, it was laid down that the source off purchase money is not conclusive in favour of the Benami character of a transaction though it is an important criterion and that where there are other circumstances showing that the purchaser intended the property to belong to the person in whose favour the conveyance was made, the essence of Benami being the intention of the purchaser, the Court must give effect to such an intention. It was further held that in a Benami transaction the actual possession of the property or receipt, of rents of the property is most important. A similar view was expressed in the case of Sher Muhammad. In this case the appellant claimed to have purchased a house in the name of the respondent as a Benamidar. He was in possession of the disputed property and produced the original title deed in the Court. However, the trial Court and the First Appellate Court non‑suited him on the ground that he was a tenant or a licensee under the ostensible owner. The High Court took the view that the subsequent conduct of the parties and the evidence was sufficient to lead the Court to an irresistible conclusion that the respondent was merely a Benamidar and the appellant was the real purchaser of the house. In this view of the matter, the judgments and decrees of the Courts below were set aside. In the case of Mst. Zohra Begum it was held that the question whether a particular sale is Benarrri or not, is largely one of fact, and for determining this question, no absolute formula or acid test uniformally applicable in all situations can be laid down. However, in the light of the rules laid down in the cases of Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703 and Jane Margrete William v. Abdul Hamid Mian 1994 CLC 1437, the Court highlighted four considerations for deciding the question of Benami character of a transaction. These considerations are as follows:‑‑ (i) It is the duty of the party who raises such plea to prove such plea by adducing cogent, legal relevant and unimpeachable evidence of definitiveness. The Court is riot required to decide this plea on the basis of suspicions, however, strong they may be. (ii) That Court is to examine as to who has supplied the funds for the purchase of property in dispute, it is proved that purchase money from some person other than the person in whose favour the sale is made, that circumstance, prima facie, would be strong evidence of the Benami nature of the transaction. (iii) The character of a transaction is to be ascertained by determining the intentions of the parties at the relevant time which are to be gathered from all the surrounding circumstances i.e. the relationship of parties, the motives underlying the transactions and any other subsequent conduct. (iv) The possession of the property and custody of title deed. The cases of Jane Margrete William and Muhammad Sajjad Hussain have also been cited by the petitioner's learned counsel. The last judgment cited by him is that of Mst. Halima in which it was held that in Benami transactions the real owner keeps all the documents of title in his custody, continues to manage the property like an owner and often obtains a power of attorney from the Benami owner to avoid any difficulty in day to day management of the property. , It was further held that the real owner must prove that the property was purchased with his funds and there should be an intention on his part to maintain the property as a Benami property. As regards the burden of proof it was held that, prima facie, the person in whose favour the document or instrument of title has been registered would be regarded as the owner unless the contrary is proved by the person claiming to be the real owner. The respondent's learned counsel has also relied on the judgments in the case of Mst. Zohra Begum and Mst. Halima (supra) and cited the judgment in the case of Mrs. Kishwar Malik. In the last referred judgment, the Honourable Supreme Court was pleased to hold that the wife in whose name plot was purchased neither had independent source of income nor funds of her own for purchasing the plot or raising construction thereon. Hence, she was rightly held by the Courts below to be a Benami owner. 8‑A. From the above‑quoted judgments and precedents it can be gathered that the following factors considerations are relevant for deciding the Benami character of a transaction:‑‑ (i) The source of consideration and its payment. (ii) Motive for Benami transaction. (iii) Real intention of the parties. (iv) Possession and production of original title deeds. (v) Possession and use of property in dispute. (vi) Subsequent conduct of the parties including any act done in exercise of right of ownership. Out of the above factors/considerations, one or more may assume greater importance in the given circumstances of a case. For example in an alienation in favour of a son or a daughter, particularly a minor who has no independent source of income and sufficient funds to purchase a property, the factor that price was actually paid by his/her father or a guardian is very material to show that the ostensible owner is Benami owner and the title actually vests in the father or guardian with whose', money the property was purchased. The same may be the position of al wife or a sister or any other female relative who neither has an independent source of income nor sufficient funds to purchase a property However, the position is different where both, the ostensible owner and the person claiming to be the real owner, are financially well‑off and, have independent sources of income. In such a case mere payment of, price by a person claiming to be the real owner, per se, will not establish his title. In such a case other factors like intention of the parties and motive for Benami transaction and subsequent conduct of the parties may outweigh the consideration of payment of price through the hands of person claiming to be the real owner

10. Now I will proceed to examine the facts of the present case with reference to the above‑quoted factors/considerations for determining the nature and character of the transaction. (i) The source of consideration and its payment to the vendor The evidence on the record shows that the petitioner has been working in Saudi Arabia since the year. 1974 and was earning Rs.35,000 per month. He contracted, marriage with the respondent's daughter Mst. Asmat Zaman on 9‑7‑1977. During his absence from Pakistan his wife and later when he was blessed with children, his children used to stay in the house of the respondent. Thus he remained at Saudi Arabia for a number of years and was in the position to save money. In the year, 1980 he purchased agricultural land for a sum of Rs.1,28,

000. This sale became subject‑matter of a pre‑emption suit as would be discussed later. Thus the petitioner was financially well‑off. On the other hand, the respondent was carrying on Arhat business in the grain market as a tenant under one Umar Daraz in the disputed shop. A sum of Rs.70,000 was paid through the hands of the respondent to Umar Daraz for securing surrender of rights in favour of the petitioner. The question is as to who had actually arranged the amount of Rs.70,

000. The petitioner claimed that his father‑in‑law i.e. the respondent owed a sum of Rs.1,25,000 to him and that before his marriage with the respondent's daughter he had sent bank drafts of Rs.15,000., 25,000 and 75,000 to the respondent. On the other hand, the respondent claimed that he had paid the price to Umar Daraz from his own pocket and brought on the record entries made in his account register as Exh.D.1 and Exh.D.2. The petitioner's claim of remittance through different bank drafts is not proved. So far as the self -serving entries made in the respondent's account register of the shop are concerned, the same were brought on the record under objection from the petitioner's side but the objection was not decided by the trial Court. Even if these entries are treated to be correct this cannot be necessarily construed as payment of price for the disputed shop with the following reasons:‑‑ (i) It was Umar Daraz who was right‑holder under a lease purchase agreement from the Housing and Physical Planning Department. (ii) Payments were made to Baqir Ali (father of Umar Daraz) who was not the right‑holder. (iii) Exh. D.I and Exh. D.2 are photo copies of the entries and there is nothing to show that the original register was ever produced before the Court. Exh.D.1 contains entry, dated 23‑10‑1980 regarding payment of Rs.15,000 to Baqir Ali while Exh.D.2 contains entries, dated 22‑10‑1980 and 3‑11-1980 showing payments of Rs.65,000 and Rs.4,000 to Baqir Ali. In this way, the total payment comes to Rs.84,

000. It is nobody's case that the surrender of rights were obtained for a sum of Rs.84,

000. Both the parties have unanimously stated that surrender of rights were obtained from Umar Daraz on payment of Rs.70,

000. Thus the above -referred entries may be in respect of the normal business of the respondent and not necessarily in relation to the. purchase of the shop. Therefore, I am not inclined to rely on the entries Exh. D. 1 and Exh. D.2, in the account register of the respondent to prove payment of price to Umar Daraz. Notwithstanding this finding the fact remains that a sum of Rs.70,000 was paid by the respondent for securing surrender of rights from Umar Daraz. The question is as to who had provided this amount. The petitioner's claim that his father‑in‑law/respondent owed a sum of Rs.1,25,000 to him is supported by Mst. Asmat Zaman, daughter of the respondent and wife of the present petitioner who appeared in the witness‑box as P.W.3. her statement is vitally important.. She had no motive or ill-will to make a false statement against her own father. She stated that her father owed a sum of Rs.1‑1/2 lacs from the petitioner; that the shop was purchased out of the petitioner's money which was already with her father. She firmly denied the suggestion that the shop was purchased by the respondent for his son Akhtar Hussain. P. W .3 being closely related to both the parties was aware of the inner family secrets. At the time when rights were surrendered by Umar Daraz in favour of the petitioner, Mst. Asmat Zaman P.W.3 was residing in the house of her father. Had the property been purchased with the funds of her father she would have, in the normal course, supported the claim made by her father. He statement rings true and can be safely relied upon 'for holding that the respondent owed money to the petitioner and surrender of rights was made in consideration of the said amount. In this way, the respondent liquidated a part of his loan liability. (ii) Motive for Benami transaction A person's motive for doing something is the basic to show as to why he committed, a certain act. An act done without a motive is done without any reason. There is subtle difference in motive and intention. I a person picks up a glass and drinks water, his motive is to quench thirst and intention to pick up a glass and drink water. If a person hits somebody with a weapon his intention may be to cause hurt to him although his motive may be to take revenge. or create terrorism or merely to demonstrate his chivalry. In some cases motive and intention may coincide but generally both are distinguishable. In matters in which law requires a party to prove its motive for doing an act failure to establish motive would defeat the claim made by the party. In disputes relating to Benami transactions, motive for alienation in favour of a Benamidar must be proved by the person claiming to be the real owner. In the present case, the respondent asserted in the written statement that Umar Daraz entered into a bargain with him for sale of the shop for a sum of Rs.65,000; that he is neither a tenant nor a lessee but himself is the owner‑in‑possession; that he had faith in the plaintiff/petitioner as he is his son‑in‑law and that due to some business/domestic constraints he got the rights surrendered in favour of the petitioner. However, while appearing as D.W.1 the respondent deviated from the stand taken by him in the written statement. He stated that he wanted to have the shop transferred in the name of his son Akhtar Hussain who was then aged about 10/11 years but the T.D.A. officials told him that proprietary rights would not be conferred on his son due to his minority; that due to business constraints he did not have the shop transferred in his own name and instead transferred it in favour of his son‑in‑law due to confidence in him. In cross‑examination he asserted that the real owner of the shop is his son Akhtar Hussain although in the written statement he had averred that he himself was the real owner. He admitted that there was no legal hurdle in his way to purchase property. Both the Courts below have accepted, the petitioner's claim that he had purchased the property for his son Akhtar Hussain. The Courts below failed to consider that the respondent could not legally deviate from the stand taken by him in the written statement. It was held by the Honourable Supreme Court of Pakistan in the case of Muhammad Sajjad Hussain (supra) that the appellant had taken up a specific plea in the written statement, therefore, he could not be allowed to set up a case in his evidence which is inconsistent to the plea raised in the written statement. The motive canvassed by the respondent in the evidence that he had purchased the property for his son Akhtar Hussain but could not obtain surrender o rights in his name due to his minority is inconsistent with his plea set up in the written statement and has to be ruled out. Thus it can be safely concluded that there was no cogent motive for the respondent to have the shop transferred in the petitioner's name. (iii) Real intention. of the parties Intention is also a latent state of mind and can be gathered from the acts of omission or commission of the parties and all the attendant circumstances of the case including their conduct. It is relatable to the ultimate aim, purpose or design of the parties. In the present case, the intention of the parties, as deducible from their acts and conduct, appears to be that ownership rights would vest in the petitioner "The lukewarm explanation offered by the respondent that he could not purchase the property in his own name due to some business and domestic constraints hardly satisfies the judicial conscience. He is a businessman and fully realized the implications of surrender of rights of the shop in favour of the petitioner. Ordinarily, a businessman, who invests money to purchase property or any other valuable commodity is doubly careful to protect his rights/interests. Had the respondent invested a huge amount of Rs.65,000 in the year 1980, he would not have obtained surrender of rights in the name of the petitioner. On the facts and in the circumstances of the case, the intention of the parties seems from the very inception that the title of the shop would vest in the petitioner. That is why from the year, 1980 till January, 1991, the respondent remained content with possession and use of the shop alone and did not take any step to secure his alleged title whereas the respondent not only got the proprietary rights transferred in his name but also cancelled the general power of attorney from the respondent's name. Had the respondent any intention to be the real owner of the property he would have immediately taken some legal action against grant of proprietary rights to the petitioner and cancellation of the general power of attorney from his name. However, he remained quiet for more than six years after revocation of the general power of attorney by the petitioner. He filed his suit after about one year of institution of the suit by the petitioner. His conduct lays bare his state o: mind that he fully knew that the real title‑holder is the petitioner. (iv) Possession and production of original title deeds The basic document‑ relating to transfer of title is the surrender deed. The respondent while appearing as. D.W.1 stated as under:‑ It is significant to mention that at the time when bargain was struck with Umar Daraz, the petitioner was at Saudi Arabia but at the time when the surrender deed was executed, he came to Pakistan and personally saw to it that rights were surrendered by Umar Daraz in his favour. The petitioner also signed the deed and then took it in his own possession. The other title document is the sale‑deed, dated 16‑2‑1988 regarding grant of proprietary rights to the petitioner. The petitioner produced the original sale‑deed before the Court as EXh.P.1. So far as the original surrender deed is concerned, it was submitted by the petitioner before the concerned department for obtaining proprietary rights. Its certified copy was placed on the record by the respondent as Exh.D.7. The argument that the respondent was in possession of the original lease purchase agreement, dated 27‑2‑1962 in favour of Umar Daraz and produced it in evidence as Exh.D.6 is not of much help to the respondent. This document, though relevant, is not the title document to establish ownership of the contesting parties. It merely shows the rights and interests of the previous right‑holder namely Umar Daraz. So far as Exh.D.7 produced by the respondent is concerned, it is a certified copy of the surrender deed obtained by the respondent from the office of the Sub‑Registrar, Mianwali. The original surrender deed, as mentioned above, was in possession of the petitioner who had submitted it before the concerned department for obtaining proprietary rights. Thus it is established that both the title documents i.e. the‑surrender deed and the sale‑deed were in possession of the petitioner. (v) Possession and use of property in dispute The respondent was in occupation of the shop as a tenant' under Umar Daraz since before surrender of rights in, favour of the petitioner. He being father‑in‑law of the petitioner was allowed by him to remain in possession and use the shop for running his Arhat business. There is no cogent material on the record to show that the respondent became a tenant under the petitioner. He was merely a licensee and after termination of the licence became an unauthorized occupant of the shop. The respondent did not set up his own title in the shop therefore, his acts of use and possession of the shop cannot be treated to have been done in exercise of his right of ownership. In the totality of the facts and circumstances of the case, use and possession of the shop by the respondent cannot be given much weight for holding that the Petitioner is a Benami owner. (vi) Subsequent conduct of the parties including any act done in exercise of right of ownership As mentioned above, at the time when bargain to purchase the disputed shop was struck between Umar Daraz and the respondent the petitioner was at Saudi Arabia. The first significant act on the part of the petitioner is that at the time of execution of the surrender deed he returned to Pakistan and ensured that rights of the shop were surrendered in his name. His presence at the relevant time is proved by his signatures borne on the surrender deed. He took the surrender deed in his possession and did not hand it over to the respondent. Thereafter, he executed a general power of attorney in favour of the respondent. A careful reading of the entire document makes it abundantly clear that the petitioner asserted his own title in the shop but allowed his father‑in- law/respondent to use it for his business. He also allowed him to alienate the shop after grant of proprietary rights to him (petitioner). However, in that eventuality the respondent was required to open an account in the petitioner's name. The remittances of money (if any) made by the petitioner from abroad were also to be deposited in the petitioner's account. This was a mode to secure the petitioner's interest. By virtue of this power of attorney the respondent was allowed by the petitioner to withdraw Zar‑e‑Punjam and price of the rent deposited in his name in a pre‑emption suit decided on 10‑12‑1980. Accordingly the respondent withdrew an amount of Rs.1,28,000 from the Court on 23‑12‑1980 but failed to pay it to the petitioner despite his demands. Resultantly, the petitioner lost confidence in the respondent and revoked the general power of attorney from his name in the year 1984. This was a vitally important step taken by the petitioner to assert his own right and title in the disputed shop. The respondent, a mature businessman fully knew the effect of cancellation o the power of attorney but took no step whatsoever to protect his alleged title in the shop. He neither issued any notice to the petitioner nor, filed any suit against him promptly. This clearly amounted to acquiescence on the part of the respondent. Not only that, the petitioner approached the Housing and Physical Planning Department and prayed for grant of proprietary rights of the shop on the strength of the surrender deed. Accordingly sale‑deed, dated 16‑2‑1988 Exh. P.1. was executed by the department in favour of the petitioner. Again the respondent quietly accepted transfer of proprietary rights in favour of the petitioner. It may be mentioned that the petitioner filed a suit for recovery of Rs.1,28,000 against the respondent in the Court of learned Senior Civil Judge, Mianwali on 8‑10‑1990 which was decreed in his favour on 14‑7‑1993. The respondent's appeal was dismissed by the learned Additional District Judge; Mianwali vide his judgment and decree, dated 7‑2‑1998. The respondent's revision petition (Civil Revision No. 1741 of 2000) has been dismissed by me as being time barred vide a separate order, dated 8‑6‑2001. As mentioned above, the petitioner was working in Saudi Arabia. After obtaining proprietary rights, for sometime he remained abroad and on his return to Pakistan demanded possession of the disputed shop from the respondent. Even at this juncture the respondent did not approach the Court firstly to claim ownership of the shop. On the respondent's refusal to vacate the shop the petitioner filed a suit for possession of the shop on 2‑9‑1990. After more than six months, the respondent also instituted a suit for declaration and injunction against the petitioner on 31‑3‑1991. Thus the subsequent conduct of the parties firmly establishes that the petitioner is the real owner of the shop and that the respondent was simply allowed to use the disputed shop as a licensee due to his close relationship with the petitioner. The respondent's claim that the real owner is his son Akhtar Hussain and that the petitioner is merely a Benami owner has not been proved from the material on the record.

11. It is true that ordinarily concurrent findings of fact recorded by the lower Courts are not interfered with but in the present case the Courts below have not only misread the evidence on record but also drawn wrong inferences therefrom: The trial Court while deciding Issues Nos.1 to 4, misread the evidence and wrongly observed, "the original documents are in favour of the defendant (respondent) which have been tendered by him". The original title deeds i.e. the surrender deed from Umar Daraz and the sale‑deed are in the name of the present petitioner who was in possession of the same and brought the sale‑deed on the record as Exh. P.l. The trial Court again misread the record and wrongly held that the shop was actually purchased by the defendant/respondent for his minor son and due to his minority Dastbardari Nama was written in the name of the plaintiff/petitioner. This is not the respondent's case in the written statement. He had pleaded that he himself was the owner of the shop and added that surrender of rights could not be made in his favour due to some domestic/business constraints. While dealing with the aspect of motive, the trial Court held, "the defendant has his son and it is noteworthy that why he could not obtain Dastbardari Nama in favour of his son. Admittedly, his son was minor at that time and that is why he obtained Dastbardari Nama in favour of the plaintiff who is his son‑in -law. The motive is, therefore, obvious that the defendant wanted the suit shop for his minor son". As mentioned above, This is not the respondent's plea in his written statement. Therefore, the above findings of the trial Court are contrary to the record. The Courts below wrongly gave weight to the fact that water and telephone connections are in the name of the defendant/respondent, therefore, he is the owner of the shop. The respondent is a tenant in the shop since the year, 1970 and a tenant can also have the water and telephone connections installed in his name. This fact hardly proves the respondent's title. Similarly, the Appellate Court misread the record and wrongly held that the original title documents concerning the suit shop were in possession of the defendant/respondent and that he had tendered the same in evidence. As mentioned above, the title documents in the shape of the surrender deed‑and the sale‑deed were in possession of the petitioner who produced the sale‑deed in evidence as Exh.P.1. The Appellate Court wrongly held, in para. 13 that Baqir Ali was the original owner of the shop. The original right‑holder was Umar Daraz and not Baqir Ali. The Appellate Court further wrongly held that the shop was actually purchased by the defendant/respondent for his minor son and only due to minority of his son Dastbardari Nama was written in favour of the petitioner. The respondent's own case in the written statement is that he himself is the owner and that surrender of rights could not be made in his name due to some business and domestic constraints. Thus, both the Courts below have not only misread the record but also drew wrong conclusions therefrom which do not legitimately flow from the same.

12. For the foregoing discussion, the findings of the Courts below on Issues Nos. 1, 3 and 4 are set aside and it is held that the petitioner is the lawful owner of the disputed shop and is entitled to obtain possession of the disputed property from the respondent. The entries made in the record of the Housing and Physical Planning Department in favour of Muhammad Zaman, petitioner and the registered sale‑deed, dated 16‑2‑1988 are perfectly lawful. Muhammad Zaman, petitioner is not estopped by his words or conduct to bring the present suit. Therefore, the findings of the Courts below on Issue No.5 are also reversed.

13. Issue No.2 as framed by the ‑Trial Court pertains to the petitioner's entitlement to recover Rs.10,000 from the respondent as "rent" of the disputed shop. The Court should have mentioned the word "compensation" instead of rent in this issue in the light of the pleadings of the parties. However, the petitioner did not object to the form of Issue No.2 in his memo. of appeal before the learned Additional District Judge or in the present revision petition. Therefore, I need not modify the issue at this stage in exercise of revisional jurisdiction under section 115 of the C.P.C. The Courts below have given cogent reasons for recording their findings on Issue No.2 against the petitioner which are maintained.

14. For the foregoing discussion, the revision petition is accepted, the impugned judgments and decrees of the Courts below are set aside and the petitioner's suit is decreed in his favour with costs throughout. Q.M.H./M.A.K./M‑927/L Revision allowed.