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.

----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. Muhammad Anwar Hussain 1991 SCMR 703, the impugned judgment calls for interference by this Court.

5. On the other hand, learned counsel appearing for respondent No.1 contended that at the time of purchase of land in dispute, i.e. 2nd June, 1971, appellants/plaintiffs as well as late Pir Muhammad were minors, whereas Wazir Muhammad predecessor-in-interest of appellants (3- 10) was jobless, therefore, sale consideration was paid by respondent No.1 as he was in the Government service at that time. According to him learned High Court after having appreciated the evidence available on record has rightly concluded that he is owner of the land in dispute and as far as the appellants/plaintiffs and late Pir Muhammad are concerned, they were not owners and on account of „Benami‟ transaction their names were entered in the Revenue Record. According to him as the learned High Court, on correct appreciation of evidence, has accepted his claim, therefore, no interference is called for.

6. We have heard learned counsel for the parties and have also gone through the impugned judgment as well as available record carefully. It is an admitted fact that as per mutation entries (Exh.P.1) dated 2nd June, 1971, appellants (1 and 2) and predecessor-in-interest of appellants (3- 10) as well as one of their brothers i.e. Pir Muhammad (deceased) have been recorded owner of the open plot of land measuring 2 rods and one pole. According to him presence of purchaser at the time of attestation of the mutation is not mandatory in view of the provision of section 42 of the Land Revenue Act, which emphasizes upon attendance of the seller of the property to ensure that he is not be deprived of his proprietary rights. Moreover, it has been noted that as per the report of Revenue Officer, available on Mutation Entry (Exh.P.1), that the appellants (1 and 2) and predecessor-in-interest of appellants (3-10) namely Nazir Muhammad and their late brother Pir Muhammad have not been shown as minors.

7. The respondent No.1, being a Revenue Officer, as per his own admission that at the time of purchase of land, he was Naib Tehsildar in Chamman, could have got recorded that the plaintiffs and their other deceased brother were minors at the time of attestation of mutation entries and in absence thereof, presumption would be that respondent No.1 consciously got their names incorporated in the mutation entry as joint owners, having equal share in the plot of land in dispute, possession of which was also delivered to all of them through the respondent. Interestingly, as per available record, father of the parties namely Agha Muhammad was alive on 2nd June, 1971 when the mutation (Exh.P.1) was recorded. If respondent No.1 wanted to please his parents, he should have purchased the land in dispute in his father‟s name. Thus, irresistible conclusion would be that as the appellants/plaintiffs and their two other brothers had started earning their livelihood, they had jointly purchased the property in dispute out of their respective resources.

8. Learned counsel for respondent No.1 persuaded us to believe that at the time of purchase of plot of land in dispute, appellants/ plaintiffs were minors as one of them was of 13 years old, therefore, how was it possible that they would contribute their shares to purchase the plot in dispute.

9. On having gone through the evidence of both the sides, we are not inclined to subscribe to his argument which is contrary to record. Here the question is not as to how the appellants/plaintiffs had contributed their shares because they have successfully established through evidence that property was purchased by all of them jointly. But conversely, respondent No.1 took the plea that it was a „Benami‟ transaction, therefore, he ought to have proved its essential ingredients, which have been highlighted from time to time in the precedent law, including the one i.e. judgment in the case of Muhammad Sajjad Hussain (ibid). Relevant paras. therefrom for convenience are reproduced hereinbelow:--

“This leads us to the above first submission made by Mr. Akhtar Mahmud, namely, that since the respondent had failed to establish sufficient financial resources as to make payment of about Rs.42,000 towards the purchase of the first and second houses the two Courts below were not justified in decreeing the suit particularly in view of the statement of P.W.1 Mst. Hanifa Yazdani that the respondent had told her that he was not in a position to pay instalments for the two houses, it may be observed that we have examined the above contention with reference to the oral and documentary evidence produced by the parties in conjunction with the case-law cited by the parties, namely, the case of Ismail Dada Adam Soomar v. Shorat Banoo PLD 1960 Kar. 852, the case of Mv. Md. Abdul Majid and others v. Md. Jainul Abedin and others PLD 1970 Dacca 414, the case of Dost Muhammad and another v. Mst. Satan and another PLD 1981 Kar. 339 and the case of Mst. Sardar Khatoon and others v. Dost Muhammad and another 1988 SCMR 806 (the cases relied upon by Mr. Akhtar Mahmud), and the case of Akram Moquim Ansari (represented by heirs) and 3 others v. Mst. Asghari Begum and another PLD 1971 Kar. 763 referred to by Mr. Muzaffar Ali Khan. Some of the criteria 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.

It is also well-settled law 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 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.”

10. Above principles are being followed consistently. Reference may be made in this behalf to the cases of Muhammad Zaman v. Sheikh Abdul Hamid 2002 CLC 1209, Din Muhammad Vagan v. Mst. Rashida Khatoon 2002 CLC 1573. Relevant para. from the case of Muhammad Zaman (ibid) is reproduced hereinbelow, wherein after having referred to the earlier judgments on the subject, certain facts/ considerations, being relevant for deciding the „Benami‟ transaction were highlighted.

“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 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. 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 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. 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:--

(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.

(iv) The possession of the property and custody of title deed.

Testing the case in hand, at the touchstone of the above factors, we feel no esitation in holding that if appellants/plaintiffs were shown to be owners on account of „Benami‟ transaction, then the respondent/ defendant has to show the source of payment of amount, whereas, nothing has come on record to highlight this aspect of the case because on the one hand the respondent claims that he had paid the sale consideration in 1971 to the tune of Rs.3,796 at the time of attestation of mutation entry and simultaneously his stand is that he had responsibility to support his parents as well as his brothers, whereas in 1971, he was in the Government service and he failed to disclose his income/savings to substantiate that the sale consideration of the disputed plot was paid by him exclusively.

11. It is important to note that if it is assumed for sake of arguments that he had paid the price of land then obviously there is no material on record to ascertain as to whether the construction of 9 Kacha rooms of the house was raised by him or jointly by all the brothers, after purchase of the land. Contrary to it, appellants/plaintiffs have not shown themselves to be owners of the whole of the superstructure, as in the plaint it is stated that subsequently three 7 type rooms were constructed by respondent No.1. Therefore, examining the case from this angle, it can safely be held that the respondent has 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 house by him. Although in the written statement, mutation of „Benami‟ transaction has been disclosed by the respondent but in the cross-examination he deposed that his father during his life time neither demanded his share in the land in dispute nor in his life time any suit was filed, inasmuch as he was not aware that „Intiqal‟ of the property had been attested in his name or not. Thus, in view of these circumstances, no other conclusion can be drawn except that it was a joint property, probably its consideration was paid by their father and he purchased it through his elder son, that is why he did not demand his share from the respondent and later on, on his death, other brothers demanded partition of the land, as such he, dishonestly, raised the plea of „Benami‟ transaction. Thus, it is held that the respondent has failed to establish that the appellants/plaintiffs were not recorded as owners in the mutation entry in the year 1971.

12. It is an admitted fact that mutation entry (Exh.P.1) has come from the possession of the appellants/plaintiffs because their names were entered therein as the owners and the respondent never objected to the same as evident from the available record. In this behalf reference may be made to the statement of Wali Jan (D.W.2) who instead of advancing the case of respondent made certain important admissions which can be noticed on having gone through the same and on the basis whereof it can be safely held that the plot in dispute and the construction raised thereon except three 7 type rooms, are jointly owned by appellants/plaintiffs and respondent defendant. As far as three 7 type rooms are concerned, appellants/plaintiffs themselves have admitted that he has constructed the same subsequently whereas they were living in the Kacha rooms, construction of which was raised in 1972, after purchasing the plot. It is uncontroverted fact that till 1985, all the brothers were in joint possession of the property and perhaps, thereafter, appellants/plaintiffs wanted to have it partitioned. Subsequently, after the death of their father, they filed a suit for partition, therefore, their possession from 1972, when the construction was raised till 1985, goes to prove that they were in possession of land as well as Kacha rooms constructed thereon and throughout this period they had been enjoying the status of owners of the property.

13. Learned counsel then contended that the respondent/defendant got sanctioned electricity connection etc. which would have been disallowed by the concerned authorities, if he was not exclusive owner of the property.

Suffice it to observe that merely for such reason, inference cannot be drawn in respect of proprietary/ownership rights of a person over the property under any principle of law.

Thus, for the foregoing reasons, appeal is allowed, as a result whereof impugned judgment, dated 31st December, 1998 is set aside and the judgment/decree of the trial Court dated 14th January, 1998 is restored. Parties are left to bear their own costs.

M.B.A./A-122/S Appeal allowed.