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2005 SCMR 577 [Supreme Court of Pakistan] Present 2005 S C M R 577 [Supreme Court of Pakistan] Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ ABDUL MAJEED and others---Appellants versus AMIR MUHAMMAD and others ---Respondents Civil Appeal No.191 of 1999, decided on 16th September, 2004. (On appeal from the judgment/order, dated 31-12-1998 passed by High Court of Balochistan, Quetta in R.F.A. No.35 of 1998). (a) Benami transaction--- ----Determination of question as to whether transaction was Benami or not---Factors to be taken into consideration---Burden of proof---Principles. For determining the question, whether a transaction is a Benami transaction or not, inter alia the following factors are to be taken into consideration:- (i) 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. 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, 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. The question whether a transaction is Benami in character or not has to be decided keeping in view a number of factors/considerations. The source of 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. In a Benami transaction the actual possession of the property or receipt of rents of the property is most important. The question whether a particular sale is Benami 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. Following are considerations for deciding the question of Benami character of a transaction. (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 not 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. If 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. Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703; Muhammad Zaman v. Sheikh Abdul Hamid 2002 CLC 1209 and Din Muhammad Vagan v. Mst. Rashida Khatoon 2002 CLC 1573 ref. (b) Benami transaction--- ----Burden of proof---If plaintiffs were shown to be owners of the property on account of Benami transaction, defendant had to show the source of payment of amount---Defendant, who was in Government service had failed to disclose his income/savings to substantiate that the sale consideration of the disputed plot was paid by him exclusively---No material was available on the record to ascertain as to whether the construction of the house on the plot was raised by the defendant or jointly by all the brothers (plaintiffs) after purchase of land---Held, defendant having failed to discharge the burden regarding the payment of the consideration of the plot of land as well as cost, which was incurred on construction of the house by him, no other conclusion could be drawn except that it was a joint property, its consideration was paid by their father and he purchased it through his elder son (defendant) that was why he did not demand his share from the father and later on, on his death, other brothers demanded partition of the land, as such he, dishonestly, raised the plea of Benami transaction---Defendant, in circumstances, had failed to establish that the plaintiffs were not recorded as owners in the mutation entry. (c) Benami transaction--- ----Contention was that defendant had got sanctioned electricity connection etc, which would have been disallowed by the concerned Authorities, if he was not exclusive owner of the property---Held, merely for such reason, inference could not be drawn in respect of proprietary/ownership rights of a person over the property under any principle of law. Tariq Mehmood, Advocate Supreme Court, S.M. Wahab, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Appellants. Muhammad Munir Piracha, Advocate Supreme Court and S.A.M. Quadri, Advocate-on- Record (absent) for Respondent No.1. Respondent No.2: Ex parte. Date of hearing: 16th September, 2004. JUDGMENT IFTIKHAR MUHAMMAD CHAUDHRY, J.--- Appellants have instituted instant appeal under Article 185(2)(e) of the Constitution of Islamic Republic of Pakistan against the judgment dated 31st December, 1998 passed by learned Division Bench of the High Court of Balochistan, Quetta in R.F.A. No.35 of 1998, whereby the judgment of the Civil Judge 1st Class, Quetta dated 14th January, 1998, decreeing their suit has been set aside, as a result whereof suit filed by them on 5th October, 1995 for partition of the property in question has been dismissed. 2. Precisely stating the facts necessary for disposal of instant appeal are that vide Mutation No.259, attested on 2nd June, 1971, a plot of land measuring 2 rods and 1 pole, situated in Mahal Chashma Habib, Mouza Habib, Tappa Saddar Kansi, Tehsil and District Quetta was mutated in favour of appellants (1 and 2) and the predecessor-in-interest of appellants (3-10) as well as respondent No.1, as owners which they had jointly purchased with possession from its previous owner against sale consideration of Rs.3,796. On 5th October, 1995, appellants (1 and 2) and predecessor-in-interest of appellants (3-10) instituted a suit against respondent No.1 for declaration, possession, partition and injunction, on the averments that they had jointly purchased the disputed piece of land and thereafter raised construction of 9 Kacha dwelling rooms and a Kitchen. The construction was improved in 1993/94, three 7 type rooms were also constructed by respondent No.1. they called upon respondent No.1, who is their real brother, for partitioning of the property, division of which was possible without making any structural change but he avoided to accede to their request, as such they instituted a suit. In the written statement respondent No.1 resisted the suit, inter alia, contending that neither the appellants/plaintiffs nor one of their brothers namely Pir Muhammad, who had died issueless, are/were the true and lawful owners of the property as it was only a „Benami‟ transaction and he out of his own resources, exclusively, purchased the plot in question in the year, 1971 and got it entered in the name of his brothers in equal shares by way of „Benami‟ transaction. He further explained that at that time he was in Government service and to please his parents, he got entered the plot, purchased by him, in the names of his remaining brothers. In addition to it, they were minors at the relevant time except Pir Muhammad predecessor-in-interest of the appellants (3- 10) who was also jobless and had no source of income, whatsoever, etc. 3. Learned trial Court after framing issues, recorded evidence produced by both the sides, in support of their respective pleas and ultimately vide judgment dated 14th January, 1998 decreed the suit. Respondent No.1 feeling aggrieved from the order/decree of the trial Court, preferred appeal before the High Court of Balochistan, Quetta, which has been accepted by means of impugned judgment, as such instant appeal has been filed. 4. Learned counsel stated that appellants were recorded owners of the land in dispute since 2nd June, 1971 vide Mutation (Exh.P.1), which was attested in presence of respondent No.1 being one of the purchasers and in the said document appellants (1 and 2) and predecessor-in- interest of appellants (3-10) as well as late Pir Muhammad one of their brothers, were not shown as minors, therefore, unless respondent No.1 had proved his ownership, presumption of being owner of the disputed property will rest in favour of appellants. Besides it, oral evidence has also been produced to substantiate their plea and respondent No.1 has failed to establish his case, inasmuch as one of his own witness i.e. Muhammad Ghous (D.W.1) had admitted certain facts, on the basis of which safe conclusion can be drawn that it was a joint property. According to learned counsel no sooner, respondent No1. raised the plea of „Benami‟ transaction, burden has shifted upon him to prove that he was the sole owner of the property but he has failed to discharge the burden, therefore, in view of the law laid down in the case of Muhammad Sajjad Hussain v.
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