GHULAM MURTAZA vs Mst. ASIA BIBI and others

' SARDAR MUHAMMAD RAZA KHAN, J.---Ghulam Murtaza son of Mehr Habib, with leave of the Court, has filed these appeals against the judgment dated 17-5-2004 of a learned Judge in chambers of Lahore High Court, whereby, exercising revisional jurisdiction, the learned Judge had set aside the concurrent findings of two Courts below in favour of the appellant and had dismissed his two suits decreeing the third one of Mst. Asia against him.

2. All the appeals involving same questions of law and fact are taken up together. The relevant background is to the effect that appellant Ghulam Murtaza and Asia Bibi, were husband and wife.

They fell apart whereafter the present litigation ensued regarding properties purchased during the subsistence of the wedlock.

3. Through a registered sale-deed dated 28-6-1989, Exh.P-7/2 (P:185), both Ghulam Murtaza and Asia Bibi had purchased property measuring four Marlas 25 sq. Ft. From one Haji Muhammad Sharif. Similarly another property measuring four Marlas 98 sq. Ft. Was purchased in the name of husband and wife from one Masood Ahmed vide registered sale-deed dated 20-3-1985, Exh.P-7/1 (P:181). Through another registered sale-deed dated 20-2-1992, Exh.P-7/16 (P:224), the husband Ghulam Murtaza sold the same in favour of his wife Asia Bibi for a sum of Rs,80,000.

4. After separation, Mst. Asia Bibi brought a suit on 12-5-1993, claiming her title to the properties purchased as aforesaid. As a counterblast, the husband Ghulam Murtaza also brought two suits on 26-6-1993 and 3-7-1993 claiming exclusive title to the aforesaid properties on the ground that the wife, in disputed transactions, was a mere benami and husband was the real owner having paid the entire amount of consideration. All the three suits were consclidated. The learned trial Court vide judgment and decree dated 22-5-2001, decreed both the suits of husband and dismissed that of the wife. The three appeals filed by the wife were also dismissed by the learned District Judge vide judgment dated 3-8-2002. The same decisions were, however, upset by the High Court as aforesaid.

5. The learned Judge in chambers of Lahore High Court has minutely appreciated the entire evidence, oral as well as documentary and thereafter proceeded to disagree with both the learned Courts holding that the evidence on record was seriously non-read as well as misread. That the learned Additional District Judge never applied his own mind and wrote a judgment that happened to be a verbatim copy of the judgment of the trial Court. In the given conditions, we have also minutely gone through the evidence on record produced by both the parties and hold that it was rightly appreciated by the learned High Court.

6. The evidence aforesaid was appreciated in the light of the judgment of this Court in case of Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCM R 703, wherein a criteria was given in order to check as to whether some transaction was benami in character or not. It included the (i) source of consideration; (ii) from whose custody the original title deed came; and (iii) who is in possession and (iv) motive for benami transaction. From the detailed appreciation of evidence, we are led to observe that both the husband and wife claim to have worked in Saudi Arabia. The husband could not tell the exact nature of job while the wife, during her total stay of six years, had earned a lot through the job of independent stitching. Regarding the sending of money to Pakistan or keeping that amount in their specific account, the evidence of both is at par and not very conclusive. The payment of amount of consideration exclusively by the husband was not proved though the initial burden lay upon him. On the other hand, the payment of Rs,80,000 before the Registrar at the time of attestation of deed (Exh.P-7/16) by the wife is sufficiently proved. It is also on record that the shops in question are managed and tenants are dealt with by the wife. Resultantly, we hold that the learned High Court has rightly appreciated the evidence and has rightly differed with the concurrent findings of two Courts, which as said earlier, is practically the finding of only one Court. We have no reasons to differ.

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 A 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 vest 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 the 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 one's 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 transactions thereby bringing no end to litigation.

9. In the instant case, we have already held that the ingredients of a benami transaction have not been proved by the husband in all the three transactions. Still, we are of the view that even if the husband had proved himself to be the source of consideration, yet no transaction could have been set aside if made with positive intention of transferring or conferring title to the other beneficiary.

We also hold that while purchasing property from Haji Muhammad Sharif vide deed dated 28-6- 1989, the positive intention was that Asia Bibi should be a bona fide co-vendee or co-owner. Same is the case of the other transaction vide deed dated 20-3-1985 (Exh.P-7/1), whereby both husband and wife had purchased the same from Masood Ahmed. At one time the husband came out with reason that name of his wife was entered merely to please her. Here comes the principle of bona fides, goodwill and sanctities attached to a transaction. Once having done so, when the husband and wife were amicably living, no one can turn around subsequently to claim exclusive title when the relations become strained and the spouses fall apart. We, therefore, hold in the instant case that even if the amount had been paid by the husband (which it is not proved) yet he could not have turned around to claim that the wife was a benami beneficiary.

10. Consequent upon what has been discussed above, we find no merit in the appeals which are hereby dismissed.