KALEEM HYDER ZAIDI duly Constituted Attorney vs MEHMOODA BEGUM and 4

1. ' FAISAL ARAB, J.---A residential double storey house constructed on Plot No.C-207, Block 6, Gulshan-e-Iqbal, Karachi, measuring 600 square yards stands in the name of late Syed Shamim Hyder Zaidi. It was purchased in 1979 under an agreement of sale, dated 6-1-1979 executed between Muhammad Yousuf son of Abdul Ghaffar, the previous owner and late Syed Shamim Hyder Zaidi. Thereafter in 1980 lease deed and mutation in the relevant records were made in the name of Syed Shamim Hyder Zaidi. Syed Shamim Hyder Zaidi died on 22-6-1991. He left behind plaintiff who was born from his first wife, the second wife and four sons from the second wife. The defendant No.1 is the second wife, defendants Nos.2 to 4 are three of his four sons from the second wife. The fourth son Syed Naseem Haider Zaidi died in 1995 but his legal heirs have not been joined as party to this suit.

2. ' The case of the plaintiff is that in reality he had purchased the house for his own use and the entire sale consideration for the purchase of, the house was paid by him. Purchase of the house in the name of the late father was just for the convenience sake as the plaintiff was permanently settled aboard. Therefore plaintiff seeks that his late father should be regarded only an ostensible owner. The plaintiff further claimed that he purchased the said house for his permanent settlement in Pakistan and until then for his short visits to Pakistan. The plaintiff further stated that he had reserved one room in the house for his own use and the possession of the rest of the accommodation of the house was given by him to his deceased father. It is also the case of the plaintiff that his deceased father was a man of little means as he retired as mason from Pakistan P.W.D on 4-1-1980 and received benefits of only Rs.176,710 and pension of Rs.110.69 per month and therefore could not buy the house from his own personal resources.

3. ' The case of the defendant No.1 who is widow and defendants Nos. 2 to 4 who are sons of the deceased Syed Shamim Haider Zaidi is that the house belonged to the deceased and the plaintiff is only one of the legal heirs of the deceased being son from the first wife of the deceased. The defendants Nos.1 to 4 further averred that Syed Naseem Haider Zaidi, who is also one of the sons of deceased Syed Shamim Haider Zaidi but his legal heirs have not been made party to this suit though they are necessary party.

4. ' On the basis of above pleadings this Court framed following issues for trial:--

(1) Whether the suit is barred under Article 91 of the Limitation Act?

(2) Whether the suit property is to be inherited by all the parties in the suit?

(3) What should the decree be?

5. ' The defendant did not lead any evidence nor did their counsel advance any arguments. However, for the plaintiff to succeed in the case the burden of proof of the above issues was on the plaintiff.

6. As the issue of limitation is mixed question of fact and law the same is discussed along with the Issue No.2.

7. ' Issues Nos.1 and 2: ' The plaintiff claims that he purchased the house in 1979 from his own personal resources but the late father purchased it in his own name, therefore father is only a benami owner. Nothing has brought in evidence to establish that the amount from which the house was purchased in 1979 was earned by the plaintiff from his own business. To purchase a build-up house in 1979 one has to have a profitable business or financial resources on or prior to 1979. When did the plaintiff start his own business and what was his financial strength from his own income at the relevant time has not come in evidence. The burden to establish this was on the plaintiff.

8. The amount which the plaintiff extended to his late father from his bank account could late father's lifetime savings which the deceased may have kept with the plaintiff. It could also be return of loan which the plaintiff may have obtained from his late father. All these possibilities cannot be ruled out. In absence of any evidence as to plaintiff's own source of income the consideration for purchase of the house B would always remain a mystery. In such circumstances, it is too late in the day for the plaintiff to claim the house to be his on the basis of payments made by him to his late father in 1979 i.e. 20 years prior to the filing of this suit. The very fact that the plaintiff kept quite for eight long years after his father's death and did not bring his exclusive claim to the house to the notice of the defendants, leads to the inference that the existence of other possibilities as discussed above, cannot be ruled out.

9. It is also not the case of the plaintiff that his late father being in domineering position purchased the house in his name instead of the plaintiff. No plausible reason has been given to demonstrate the compulsions, which forced the plaintiff not to buy the house in his own name. The plaintiff all along knew that his father had children from his second marriage and they too would become heirs of his late father. Not only this, even after the father's death in 1991 the plaintiff took not a single legal step to establish that his father was only an ostensible owner of the house and he was its real owner. At least in 1991 when father died, the plaintiff ought to have claimed that late father was only a benami owner and he was its real owner. He did nothing for eight long years of his father's death and his stepmother and stepbrothers continued to live and enjoy the house, which stood in the name of late Syed Shamim Haider Zaidi.

10. After keeping quite for eight years, the plaintiff raised his claim to the house for the first time in April, 1999 when plaintiff asked the defendants to hand over possession of the house to him and thereafter he served legal notice, dated 28-6-1999. Prior to serving legal notice, dated 28-6-1999 all lived jointly in the house as if they were enjoying property inherited from the deceased father. The plaintiff ought to have raised his claim to the house within six years of his father's death if not after its purchase in 1979. Nothing has come on record to establish that plaintiff raised his exclusive claim to the house within 6 years of his father's death. The plaintiff's pleadings as well as evidence are absolutely silent on this aspect of the matter. Therefore, on account of plaintiff's own silence for years together and the fact that defendants continued to live jointly in the house after the death of Syed Shamim Haider Zaidi, the principles of waiver and acquiescence would be attracted to the case. Had the plaintiff been in exclusive possession and enjoyment of the house and the defendant's have raised their claim of joint ownership based on inheritance, then it would have been a different matter as time for filing of suit for the plaintiff would have started from the date of such adverse claim raised by the defendants. But this is not the situation here. The defendants were also living in the house jointly since, 1979 without any legal threat from the plaintiff treated the house as inherited property.

11. Limitation Act has provided different periods of limitation under different Articles depending upon the situations and circumstances stated therein. Article 91 of the Limitation Act is clearly not attracted to the case for the reason that Article 91 applies to cases where an instrument is sought to be cancelled or set aside. In the present case cancellation of documents of sale transaction would amount to setting at naught the entire transaction F entered into with Muhammad Yousuf in favour of the late Syed Shamim Hyder Zaidi. It would amount to reverting the property back to the seller Muhammad Yousuf. This is not the scope of the controversy in the present suit. In the present suit plaintiff seeks declaration with regard to his claim to the house on the basis that it was purchased by him but in the name of his later father Syed Shamim Hyder Zaidi who was only its benami owner. Under Article 120 of the Limitation Act a declaration with regard to an exclusive claim to a property on the basis that it was purchased as benami is to be brought in Court within six years whereas a claim for a share in a joint family property on the basis that it is a benami property is to be brought within twelve years under Article 127 of the Limitation Act. In the present case situation envisaged by Article 127 is not applicable and therefore Article 120 would be applicable which provides six year period. The claim of the plaintiff ought to have been filed within six years of the death of the deceased Syed Shamim Haider Zaidi, who died on 22-61991, whereas this suit has been filed on 26-7-1999 and is therefore clearly barred by two years and 33 days.

12. Issues Nos.1 and 2 are answered accordingly.

13. 'In the circumstances narrated above the suit being barred by time is dismissed. However there shall be no order as to costs.