-Sale agreement--Possession was delivered--Ostensible allottee--Benami transaction--Non-producing of documentary evidence by plaintiff regarding sale consideration--

 PLJ 2021 Lahore 870

Specific Relief Act, 1877 (I of 1877)--

----S. 42--Sale agreement--Possession was delivered--Ostensible allottee--Benami transaction--Concurrent findings--Plaintiff was not close relative of transfree--Non-producing of documentary evidence by plaintiff regarding sale consideration--Omission of plaintiff to prove motive--Non-establishment of ingredient motive for extensible sale--Challenge to--Neither suit was filed in lifetime of (original transferee) nor any of his descendants was added in suit--Plaintiff was, not a close relative of transferee, rather he was his remote distant kinder--Plaintiff did not adduce any documentary evidence to demonstrate that sale consideration was paid by him, whose version that he used to transmit amount from Kuwait also could not be established from record as he did not bring on record any proof in this behalf--Witnesses examined by plaintiff also failed to speak respecting this most important feature of benami transaction, as such plaintiff failed to prove payment of sale consideration--Better course for respondents was to summon any of persons before whom sale consideration paid, but it was not examined--Plaintiff omitted to plead and prove motive that why subject plot was ostensibly purchased in name of transfree rather only mentioned therein that for love & affection it was done so--Counsel for petitioners has failed to point out any misreading or non-reading of material evidence available on record to render impugned judgments and decrees passed by two Courts below to be illegal, unlawful and without jurisdiction for calling interference by High Court in exercise of revisional jurisdiction--Revision petition dismissed.         [Pp. 872, 873, 875] A, B, C, D & E

PLD 2010 SC 569, 1986 SCMR 1591 and PLD 2008 SC 146 ref.

Mr. Sana Ullah Zahid Advocate for Petitioners.

Mr. Muhammad Shoaib Abbasi, Advocate for Respondents.

Date of hearing: 28.6.2021.

 PLJ 2021 Lahore 870
[Rawalpindi Bench Rawalpindi]
Present: Ch. Muhammad Masood Jahangir, J.
Raja MUHAMMAD YOUSAF (deceased) through LRs.--Petitioners
versus
MUHAMMAD ASHRAF, etc.--Respondents
C.R. No. 31-D of 2013, heard on 28.6.2021.

Judgment

The judgments dated 16.10.2010 & 01.10.2012 are the subject of Civil Revision in hand, whereby declaratory suit instituted by predecessor-in-interest of present petitioners claiming him to be exclusive owner of entire building superstructure of plot No. B/131, Satellite Town, Rawalpindi, was concurrently dismissed by the two Courts below.

2. The condensed facts of the case are that the subject plot had been transferred to one Muhammad Yousaf by the Housing & Planning Department, who (transferee) via registered sale agreement dated 11.06.1964 (Exh.P22) agreed to sell out the same to his nephew Muhammad Ashraf/Respondent No. 1 while endorsing that double-storey building plan had already been sanctioned in his favour, whereas ground floor was constructed with the finance of Rs. 21,000/- provided by the vendee and possession thereof delivered to him as well. Thereafter, on 06.01.1973, Raja Muhammad Yousaf, original plaintiff (decensed now represented by petitioners) instituted declaratory suit asserting that Muhammad Yousaf being ostensible allottee was mere benamidar, whereas funds were provided by the former to purchase the said plot from the concerned Department; that construction was raised thereupon through his resources; that he was in its occupation since inception of the allotment, and that for love & affection and to accord respect, the said plot was ostensibly got allotted to Muhammad Yousaf, whereas indeed the plaintiff was its actual owner. The suit was contested by Respondent No. 1 and finally vide unanimous judgments cited in preceding para, it as well as appeal dismissed by the two Courts below, thus this petition.

3. Arguments heard and record scanned.

4. Without going into deeper/detail facts of the case, the question whether a particular transaction is benami or not, is largely one of the facts and for its determination, no absolute formula or test has been laid down, but while seeking guidance from the dicta laid down in judgment reported as Muhammad Sajjad vs. Muhammad Anwar (1991 SCMR 703), the following elements are to be proved by a quester:

i.        Source of consideration.

ii.       From whose custody original title deed came.

iii.      Who is in possession of the property, and

iv.      Motive of benami.

These essential elements must co-exist for proving a benami transaction between the ostensible owner and actual purchaser, who purchased it through his own funds in the name of ostensible owner for certain reasons/motive to gain ultimate benefits.

5. Undeniably neither the suit was filed in the lifetime of Muhammad Yousaf (original transferee) nor any of his descendants was added in the suit in any capacity. It was also borne out from the record that plaintiff was not a close relative of the transferee, rather he was his remote distant kinder. It was again admitted fact that at the time of transfer of subject plot to late Muhammad Yousaf, the father, brothers & sisters of the plaintiff being alive were also available. In such situation, the plea of the plaintiff did not appeal to prudent mind that he ostensibly purchased the subject property in the name of a person, who was not closely related to him. Anyways, heavy onus to prove the benami transaction was upon the plaintiff, who neither could establish that he got the subject plot allotted in the name of Muhammad Yousaf (deceased) nor could prove that building was constructed by him. No doubt, letters allegedly written by original transferee to plaintiff were brought on record, but neither it was disclosed therein that those pertained to the subject house nor such private documents could be given preference over registered agreement (Exh.P22), the veracity/genuineness whereof was never challenged by any one including the plaintiff. Moreover, none from the post office was examined to establish that in fact said letters were dispatched by the original transferee & received to the plaintiff, but those were brought on file even after the death of the alleged sender and no effort was ever made to have compared its writing with the admitted one of the deceased from the Expert.

6. It is drastic aspect that the plaintiff did not adduce any documentary evidence to demonstrate that sale consideration was paid by him, whose version that he used to transmit amount from Kuwait also could not be established from the record as he did not bring on record any proof in this behalf. The witnesses examined by the plaintiff also failed to speak respecting this most important feature of benami transaction, as such the plaintiff failed to prove the payment of sale consideration. Indeed, better course for the respondents was to summon any of the persons before whom the sale consideration paid, but it was not examined. The withholding of best evidence definitely created hostile inference against the plaintiff/petitioners. As far as argument of learned counsel for the petitioners that Muhammad Yousaf had no independent source to purchase the suit house, whereas plaintiff provided the funds is not well founded for the counts; firstly that it was nowhere proved that the latter paid the sale price and secondly that mere proof that it was made by him in such like cases is not enough.

7. The next damaging aspect of the case was that original title document was also not produced by plaintiff, rather it was made available on record by Respondent No. 1, as such plaintiff failed to establish second ingredient too in his favour.

Moreover, admittedly both of the parties are jointly residing in the subject property, thus the plaintiff/petitioners failed to meet with the third ingredient of the benami transaction (detailed hereinabove) to claim their exclusive possession therein.

8. Another setback of the case was that the plaintiff omitted to plead and prove the motive that why the subject plot was ostensibly purchased in the name of Muhammad Yousaf, rather only mentioned therein that for love & affection it was done so. The ingredient of motive for creation of benami transaction is essential and relevant factor for the purpose of determining, whether title vesting is merely a benami and absence of motive always goes against the party claiming to be actual owner, thus heavy onus was on the shoulders of the petitioners to prove that actually their father had purchased it, but for certain reasons ostensibly got it transferred to someone else. It was neither the case of the plaintiff/petitioners that he was a taxpayer and the name of Muhammad Yousaf was added in the transfer papers, so that taxes could be evaded, nor it was their stance that plaintiff had black money and to save himself from the inquiries, benami transaction was effected in favour of original transferee. Even he failed to allege that Muhammad Yousaf was required to show himself to be owner of some immovable property for his benefit, thus the alleged transfer was effected in his name and in absence thereof, the purported transaction could not be declared as sham one. For the sake of arguments, if stance of the plaintiff that for love & affection, the suit property was purchased in the name of the said person is taken as correct, even then it could not be dubbed as benami. Once having purchased the suit property when there was benevolence as well as benignancy towards the transferee, thereafter plaintiff could not turn around to claim himself actual owner after liaisons became hostile and they fell apart. This view finds support from judgment of the apex Court reported as Ghulam Murtaza vs. Mst. Asia Bibi and others (PLD 2010 SC 569). The relevant paras 7 & 8 being all four corners applicable are reproduced here:

7. At this juncture, we may clarify that the motive part in the benami transactions is the most important one. A transaction cannot be dubbed as benami simply because one person happened to make payment for or on behalf of the other. We come across innumerable transactions where a father purchases property with his own sources for his minor son or daughter keeping in mind that the property shall best in the minor. Such transaction subsequently cannot be challenged by father as benami simply because the amount was paid by him. There are people who with positive application of mind, purchase properties in the name of others with intention that the title shall vest in that other.

8. As said earlier, there are certain transactions in peculiar circumstances of those peculiar cases where, for reason of certain emergencies or contingencies, the properties are purchased in the name of some other person without they intention that the title shall so vest permanently. If such motive is available and also is reasonable and plausible, a transaction can be held as benami, otherwise not. A property purchased with ones own sources in the name of some close relative like wife, son or daughter cannot be dubbed as benami when purchased with full intention of conferring title to the purchaser shown. If this principle is denied and that of benami attracted simply because the sources of consideration could not be proved in favour of the named vendee, it would shatter the most honest and bona fide transaction thereby bringing no end to litigation.

In addition thereto, any transaction effected for love & affection can, at the most, be taken as gift and for the said motive/reason, it cannot be termed as benami. See Ahamd Sultan Khan vs. Mst. Sanin Kausar and another (1986 SCMR 1591). In said case the father purchased the property for his minor daughter at his own sake and when subsequently the transaction was claimed to be benami, the apex Court declared as under:

***We agree with the learned Judge of the High Court that there was nothing wrong or unusual for a father, in a society to which the parties belong, purchasing a plot of land for building a house for a minor daughter in her name. The question of Benami transaction or the purchase having been made by Umar Khan for his own sake, therefore, did not arise. Reliance of the learned counsel on Iman v. Saifur Rehman 1982 PSC 1474 is of no avail to the petitioner because that case is distinguishable from the present case.***

For the reasons discussed hereinabove and law already laid down by the apex Court on the subject in hand, the ingredient ‘motive’ for ostensible sale in favour of Muhammad Yousaf was not established as well. The apex Court while dealing with a case involving benami transaction through authoritative judgment titled as Ch. Ghulam Rasool vs. Mrs. Nusrat Rasool and 4 others (PLD 2008 SC 146) besides proving of the essential elements discussed hereinabove also introduced an additional rule that sine qua non for claimant of benami transaction to establish that there was some mutual understanding between him and ostensible owner and as a result thereof, sham transaction was germinated. For better understanding, the relevant extract of the cited judgment (supra) is reproduced here:

***This may be seen that two essential elements must exist to establish the benami status of the transaction. The first element is that there must be an agreement express or implied between the ostensible owner and the purchaser for purchase of the property in the name of ostensible owner for the benefit of the persons who has to make payment of the consideration and second element required to be proved is that transaction was actually entered between the real purchaser and seller to which ostensible owner was not party. In the present case, the evidence brought on record would not directly or indirectly suggest the existence of any of the above elements to prove the benami character of the transaction of sale.***

This aspect is also lacking in the case in hand, therefore, plaintiff failed to cross the barrier set down by the august Supreme Court, whose decisions in terms of Article 189 of the Constitution are binding on each & every organ of the State including the subordinate Courts.

9. As far as argument of learned counsel for the petitioners that indeed the plaintiff while living abroad provided funds to Muhammad Yousaf for purchase of the subject property in the name of the former, but the latter cheated him in getting transferred the same in his favour is concerned, suffice it to say that the said emphasis is not valid for the counts; firstly that it was beyond the story narrated in the plaint, thus could not be considered, and secondly that if for the sake of arguments such stance is taken as correct, then the plaintiff/petitioners had the sole remedy to bring suit for cancellation of alleged transfer maneuvered by late Muhammad Yousaf through cheating, whereas suit in hand was not maintainable.

10. The learned counsel for the petitioners has failed to point out any misreading or non-reading of the material evidence available on the record to render the impugned judgments and decrees passed by

the two Courts below to be illegal, unlawful and without jurisdiction for calling interference by this Court in the exercise of revisional jurisdiction. Consequently, the instant Revision Petition being devoid of any merit is hereby dismissed.

(Y.A.)  Petition dismissed