Mst. KAUSAR HASEEN Versus Mst. ANIS BEGUM

1. This is a suit for declaration, cancellation of documents, possession and mesne profit. The brief facts leading to this suit are, that the plaintiff No. 1 is widow of Malik Akhlaquo Ahmed, while plaintiffs Nos. 2 to 6-are daughter and sons of the said Akhlayue Ahmed. Defendant No. 1. was sister of Syed Akhlaque Ahmed, while defendant No. 2 is husband of defendant No. 1. The dispute between the parties is over a plot of land measuring 400 square yards bearing No. 2/75-L, Survey Sheet No. 35/P/1, Chatla No, 23, Survey No. 65, situated in Pakistan Employees Co-operative Housing Society Limited and the house raised thereupon. This plot originally belonged to one Syed Sajid Ali, who entered into a sale-agreement with said deceased Akhlaque Ahmed in respect of plot in question. In pursuance of Gale-agreement the seller executed power of attorney in favour of one Races Ahmed. Deceased Akhlaque. Ahmed got the house constructed under the supervision of one Shafique Ahmed, who was his Uncle. According to the plaint a the defendants had no financial means the deceased allowed the defendants tai reside in the upper-floor of the house after it was constructed. Defendant No. 2 induced the deceased to run a business under the name and style of M/s. M. Nisar Sons.

2. The deceased had great trust in defendant No. 2 who used to run the said business, and as such he forged the signature of the deceased on different forms for the purposes of running business etc. After the house was constructed the defendant No. 2 pursuaded the deceased not to get the house transferred in his name, or that of his children, so that, to avoid any action by Income-tax authorities or by any other authority, and therefore, got the property in question registered in the name off defendant No. 1. After the death of the deceased, Akhlaque Ahmed, the defendant No. 2 got the mutation done from P.E.C.S. on 5-8-1978 in favour of defendant No. 1. After the mutation defendants started claiming the house in dispute be theirs, and hence this suit filed by the plaintiffs. The defendants, on the other hand, claim that the house and plot in question was purchased by defendant Nay. 1 from said seller Syed Sajid Ali, and she through her own funds got the house . constructed thereupon. It is further averred that the deceased was allowed to reside in the ground-floor of the said house. All other averments made in the p4aint are denied. On the pleadings of the parties the Court settled the following issues:--

3. "(1) Whether the transaction in respect of plot of land bearing No. 2/75/L was entered into it by means of sale agreement with the deceased Akhlaque Ahmed 1by one Mr. Syed Sajid Ali?

(2) Whether the defendant No. 2 got the property in dispute registered in favour of his wife: i.e. the defendant No. 1, by misrepresentation and fraud?

(3) Whether the property was purchased through Mr. Shafique and the construction was raised under his supervision with the funds of deceased Akhlaque Ahmed?

(4) Whether the defendants had financial means in the year 1964 to purchase plot of land in dispute and raised construction thereon?

(5) Whether the taxes of the property in dispute were paid by the deceased husband of the plaintiff or by defendant No. 1?

(6) Whether defendant No. 2 suggested to deceased Akhlaque Ahmed to run a business under name and style of M/s. Nisar Sons, and further suggested, that conveyance deed of the property in question be registered in favour of Mst. Anis Begum defendant No. 1 to avoid action of Income -tax Authorities.

(7) Whether the transfer of house bearing No. 2/75-L Survey Sheet No. 35/P/1, Challan No. 23, Survey No. 65, situated in P.E.C.H. Society Karachi by registered documents dated 30-9-1971, in favour of defendant No. 1 was a mere Benami transaction and for the benefit of the plaintiff?

(8) Whether the claim of Benami is barred by limitation?

(9) Whether proper court-fee is paid or not?

(10) To what relief, if any, the plaintiffs are entitled?

4. My findings on the above issues for the reasons recorded are as under:-

5. ISSUE NO. 1.

6. Plaintiff, Mst. Kausar Hassan has examined herself as Exh.

7. She also examined Syed Jamshaid Ali son of the vendor Late Sajid Ali as Exh.

8. She also examined MA. Gahyour as Exh. 9, who had attested the sale agreement as Notary Public. P.W. Shahzad Ali, Exh. 10, is an employee of P.E.C.H. Society, Karachi. P.W. Ibrarul Haque, Ex. 11,Js neighbour. In rebuttal defendant No. 1, Mst. Anis Begum has examined herself and P.W. Shahzad, who is also an employee of P.E.C.H. Society, Karachi.

7. The facts that emerge from the evidence on record are that on 25-9-1964 Syed Sajid Ali the original owner of the plot in suit entered into an agreement. It is not a direct agreement of sale but is indirectly an agreement of sale. It is stated at the Bar, which appears to be correct from the circumstances of the case, that at the relevant time viz. in 1964 the plots in P.E.C.H. Society were not transferable before the construction was raised upon such plots. The agreement disclosed that the plot was given to the second party, who the second party was is the question at issue, which I will discuss later. Under this agreement the second party was to raise construction on the plot and after the construction was completed, within fifteen days from the receipt of the notice from the second party, the first party viz. the original allottee Syed Sajid Ali, was to pay Rs. 85,000 to the second party failing which the second party would become absolute owner of the plot and construction thereupon and could get the land mutated in his favour. As a security for the performance of the said contract, the second party was to keep Rs. 22,300 as security with the first party, which in fact appears to be sale price of the plot. Admittedly on the same day viz. 25th September, 1987 said Syed Sajid Ali executed a general power of attorney in respect of suit plot in favour of one Races Ahmed delegating to him various powers including power to sublease the plot in dispute. This power of attorney was registered with the Sub-Registrar Karachi on the same day and has been produced as Exh. 8/2. It may also be pointed, that this Races Ahmed is cousin of deceased Akhlaque Ahmed and defendant No. 1, Mst. Anis Begum.

8. Three copies of the aforesaid agreement have been produced by the plaintiff as Exhs. 7/1, 7/3 and 7/4. Exh. 7/1 is a simple copy of the agreement which is signed by Syed Sajid Ali and deceased Akhlaque Ahmed. It shows, that this agreement was entered into between Sajid Ali and deceased Akhlaque Ahmed. Exh. 7/3 is agreement on four rupees non-judicial stamp paper. It purports to have bear executed between Sajid Ali and Mst. Anis Begum defendant No. 1. Exh. 7/4 is the photo-stat copy of the Exh. 7/1. It is admitted by Mst. Anis Begum, that in the agreement Exh. 7/3 first name of Akhlaque Ahmed was typed and then it was erased and her name was typed, as according to her, Akhlaque Ahmed asked her to purchase the plot. She has further admitted, that same is position in the type written portion of the agreement wherever her name appears. She further admitted, that stamp paper was also purchased by deceased Akhlaque Ahmed. Agreements Exhs. 7/1 and 7/3 are attested by P.W. MA. Ghayour, a Notary Public. He has stated, that in Exh. 7/3 the name of Mst. Anis Begum appeared to have been retyped after erasing the typed matter. He has further admitted, that none of these substitutions bears his initial or signature and that appears to have been done afterwards, because had the same been there at the time of attestation he would have initialled the corrections and would have put his signature therein. Naim Hassan who is witness of this agreement has not been examined by any party. According to defendant No. 1, Mst. Anis Begum, no person witnessed the agreement at the time when she signed it. The agreement and the admissions by the defendant clearly show, that initially the agreement was entered into by Syed Sajid Ali with deceased Akhlaque Ahmed. The substitution of the name of Mst. Anis Begum in the agreement Exh. 7/3 appears to be done at later stage. Had the substitution taken place on the same day viz. on 25th September, the substitution would also have appeared in the simple copy which is Exh. 7/1 and its photo-stat copy Exh. 7/4. It is suggested to plaintiff in cross -examination that the signature of Akhlaque Ahmed on agreement Exh. 7/1 was forged, which she has denied. The burden to proved, that the signature is forged, is upon the party who asserts such forgery. Admitted signature of Akhlaque Ahmed was on record on the sale-deed produced by the plaintiff as Exh. 7/11 as well as on the passports of Akhlaque Ahmed produced by the plaintiffs as Exhs. 7/8 and 7/9 and Identity Card No. Exh. 7/10. The defendants could have produced alleged forgery of signature by getting disputed signature compared by the handwriting expert with the admitted signature of deceased on the said documents and thereafter examining the handwriting expert. Non production of such evidence by the defendants, which they could have produced, would raise adverse presumption' against them. Furthermore, this document Exh. 7/1 is attested by a Notary Public and no question has been put to him to show, that the signature of deceased was forged. His signature has been identified by his wife, who would be proper person to identify the signature of deceased Akhlaque Ahmed. Under the circumstances of the case, when all these agreements are considered with admission of defendant, there appears to be no doubt as to genuineness of this document Exh. 7/1. It may be pointed, that Exh. 7/1 is the verbatim copy of Exh. 7/3, except that name of defendant No. 1 is substituted in Exh. 7/3 for name of deceased. The inference, that initially said Syed Sajid Ali entered into said agreement with deceased Akhlaque Ahmed further gets support from the fact, that on the same day Syed Sajid Ali also swore an affidavit wherein he nominated deceased Akhlaque Ahmed as his nominee for the purpose in respect of said plot and had further declared therein, that the name of Akhlaque Ahmed could be inserted in the record of Society. P.W. Shahzad Ali, Exh. 10, has stated, that photo copy of this affidavit Exh. 7/2 is on the record of Society, which was produced as Exh. 10/1. He has further stated, that by this affidavit Syed Said Ali nominated Akhlaque Ahmed as his nominee but he has not filed the nomination paper. Be that as it may, the fact remains, that not only Syed Sajid Ali' swore in the affidavit declaring Akhlaque Ahmed to be his nominee, but the said affidavit was also produced before the P.E.C.H. Society for the entry in record, but no entry appears to have been made, because certain other formalities viz. filing of nomination form was not done. Had the initial agreement dated 25-9-1964 been entered into with defendant No. 1 normally and naturally the affidavit would have shown her as nominee and not Akhlaque Ahmed as nominee. This inference further finds support from the evidence of P.W. Syed Jamshaid Ali who is son of deceased Sajid Ali. He states, that his father had told him, that he had sold the plot to Mr. Akhlaque Ahmed. It may be pointed that plaintiff has stated, that the said Syed Sajid Ali used to attend the Court to give evidence for several dates of hearing, but the case could not proceed and in the meantime the said Syed Sajid Ali died. It may also be pointed that the suit was instituted in 1976, but the first witness was examined by the Court on 27-10-1980, viz. after 10 years of the institution of the suit.

9. The plaintiffs have also produced through P.W. Syed Jamshaid Ali son of late Syed Sajid Ali, the original vendor, an affidavit Exh. 8/1 sworn in by Syed Sajid Ali on 23-8-1982 before the Oath Commissioner. He has identified the signature of his father who had died. In the cross-examination of the said witness the factum, that Syed Sajid Ali had sworn this affidavit has not been challenged. In the affidavit Syed Sajid Ali has stated that he had entered into an agreement of sale with Akhlaque Ahmed only and with no other person at any time or at any day particularly that he never entered into any agreement of sale with Mst. Anis Begum. He has further stated therein that he had been shown photo copy of an agreement dated 25th September, 1964 between himself and Mst. Anis Begum and that he could say that on face of it the agreement had been interpolated and this agreement has been forged by the interested parties. He denied the execution of the agreement.

10. In view of the aforesaid evidence and discussion there can be no doubt that the agreement of sale was executed by the said Sajid Ali with deceased Akhlaque Ahmed.

11. My finding on issue No. 1 is accordingly.

12. ISSUES NOS. 2 TO 7:

13. The evidence on the said issues is same and the findings are interdependent. As such I will deal with them together.

14. In the foregoing issue I have already discussed the evidence with regard to the agreement of sale and have come to the conclusion that the sale agreement was initially entered into by the vendor Syed Sajid Ali with deceased Akhlaque Ahmed. The name of defendant No. 1 in the sale agreement was substituted much later with or without the consent of deceased Akhlaque Ahmed.

15. After the first initial agreement the name of Akhlaque Ahmed from the agreement Exh. 7/3 was erased and the name of Mst. Anis Begum defendant No. 1 was inserted and this document admittedly came from the possession of defendant No. 1. She has produced another agreement Exh. 12/1 which purports to be executed by Syed Sajid Ali, through his attorney Mr. Raees Ahmed with Mst. Anis Begum agreeing to sell the plot and building thereupon for Rs. 85,000. This agreement purports to be signed by some witnesses including Akhlaque Ahmed. It may be pointed, that this agreement is not attested by any Notary Public and neither Raees Ahmed nor any other witness has been examined. It may also be pointed that the signature purporting to be of Akhlaque Ahmed is in Urdu while all other his signatures on the other documents on record are in English. It may also be pointed, that the plaintiff has not been confronted with the signature of Akhlaque Ahmed on this document. However, the main document is the deed of convevancc produced by the defendants through plaintiff as Exh. 7/11, whereby Races Ahmed as attorney for Syed Sajid Ali, sold the plot with building thereupon to defendant No. 1 for Rs. 85,000 and this is witnessed by deceased Akhlaque Ahmed and is dated 30th September 1974. It is duly registered with the Sub-Registrar, E' Division-1 on 2nd October, 1971.

16. The fact that the sale-deed was executed in favour of defendant No. 1 is not denied. However, it is averred by the plaintiff in the plaint, that this was Benami transaction and that the defendant No. 2, who is husband of defendant No. 1 and was the business partner of deceased induced the deceased to transfer building in the name of defendant No. 1 in order to avoid any action by the income-tax authorities or any other authority.

17. In the case of Muhammad Abdul Lateef and ,others v. Muhammad Zainul Abdin and others P L D 1974 Dacca 44 a Division Bench of Dacca High Court has enumerated the questions to be considered, while deciding whether the transaction was Benami. They are as under:--

(i) Source of consideration.

(ii) From whose custody the original title deed of the property is produced and who possessed the prior deed which, the vendors prove their own title?

(iii) Who is in possession of the property?

(iv) Motive for the Benami transaction.

18. Admittedly the main witness who could have thrown light upon real facts and assisted the Court in coming to a definite conclusion would have been Raees Ahmed, who was appointed as a general attorney by the vendor and who subsequently entered into agreement of sale and also executed conveyance-deed in favour of defendant No. 1. This witness has not been produced by either party. As pointed above this witness is real cousin of deceased Akhlaque Ahmed and defendant No. 1. Admittedly the house in question was constructed through this Races Ahmed and his father Shafique Ahmed. The plaintiff No. 1 has stated, that Races Ahmed and his father Sharique Ahmed know the real fact, but they are avoiding summons to appear in Court as defendant No. 2 is threatening them, that in case they appeared as witness for her in the Court, he would divorce defendant No. 1, who is niece of Shafique Ahmed. Defendant No. 2 has not come in box to rebut or refute allegation of the plaintiff, that he threatened to divorce defendant No. 1 in case Races Ahmed and Sharique Ahmed gave evidence.

19. However, the burden of proof was upon the plaintiff to prove that the transaction was Benami.

20. Admittedly, both the parties after construction of house since 1966 are living in the house in dispute. Admittedly the ground-floor is occupied by the plaintiffs while the upper-floor is occupied by defendants and mother of defendant No. 1. Admittedly, the sale agreement Exh. 7/3, the subsequent agreement Exh. 12/1, and the conveyance deed Exh. 7/11 have come from possession of defendant No. 1. I have already pointed the averment in the plaint as to why the sale-deed of house was executed in the name of defendant No. 1. In this context certain dates are very material. The sale agreements Exhs. 7/1, 7/3 and 7/4 are dated 25th September, 1971. Affidavit of the vendor Exh. 7/2 nominating Akhlaque Ahmed as nominee is also dated 23rd September, 1971. The sale agreement Exh. 12/1 purporting to be executed by Raees Ahmed as attorney of Syed Sajid Ali in favour of defendant No. 1 is dated 20th October, 1966. Conveyance deed Exh. 7/11 executed by the said attorney in favour of defendant No. 1 is dated 30th September, 1981 and was registered on 2-1-1971. Exh. 12/3 is a letter of the Section Officer, Government of Pakistan, Ministry of Housing and Works Division, Islamabad, dated 13-3-1978, whereby defendant No. 1 was informed that with reference to her letter, dated 25-1-1978, the mutation of the plot in question had been made in her name. Mutation was sanctioned by the Secretary P.E.C.H. Society vide Exh. 12/4 dated 5-4-1978. Such entry was also kept on record of rights with Mukhtiarkar vide dated 4-11-1978, certificate copy of which is produced by the defendant No. 1 as Exh. 12/5. From the above dates it would be clear, that house was completed in 1966 and the parties started living in the house in the said year, but the conveyance deed was executed in 1971. However, no efforts were made to have the record of rights mutated till 1978. It is admitted by the defendant No. 1 that he applied for mutation during the illness of her brother, who died on 7-2-1978.

21. Admittedly the plot with construction thereupon which is subject-matter of the suit has been sold by registered sale-deed in the name of defendant No. 1 and her name has already been entered into the records of P.E.C.H. Society, with the permission of the Ministry of Works, Islamabad. However, the plaintiffs claim, that this was Benami transaction and in fact real purchaser/owner of the property in question was deceased Akhlaque Ahmed. Judging the case of the parties in the light of decision in above said case of Abdul Aziz it would be found, that both the parties are in possession of a portion of the disputed house. The plaintiffs are admittedly in possession of the ground floor, while the defendants are in possession of upper floor. Both the parties contend, that the other party is in occupation of the portion in his possession with permission of the other party. Admittedly the parties are very close relatives as defendant No. 1 was sister of deceased Akhlaque Ahmed. Under the circumstances the factum of the possession of the premises by either party does not help in resolving the question of Benami transaction.

22. Admittedly, the document, viz. sale-agreement Exh. 7/3 which is alleged to have been executed by the original vendor Syed Sajid Ali has come from the possession of the defendant No. 1. However, the dubious nature of this document makes it lose its importance and evidentiary value. The other document is the sale-agreement Exh. 12/1 which purports to have been executed by Raees Ahmed attorney of Syed Sajid Ali in favour of defendant No. 1 on 20-10-1966. As pointed above this document has not been properly proved as none of the attesting witnesses or executant has been examiners. The most important document coming from the possession of defendant No. 1 is the registered deed of conveyance executed by Races Ahmed as general power of attorney of the vendor Syed Sajid Ali. This document is Exh. 7/11 dated 30th day of September, 1971. It is registered on 2-t0-1971 and has been signed by deceased Akhlaque Ahmed. The possession of this document does have some evidentiary value. This document was executed when Akhlaque Ahmed was very much alive and there was no reason for him to hand over the documents to defendant No. 1, if the transaction was benami. The production of the three relevant documents by defendant No. 1 lends support to the case of the defendant No. 1.

23. The next important point to be considered is the motive for Benami transaction. In the plaint, it is averred that the defendant No. 2 induced the deceased not to get the house and the plot registered in his name in order to avoid any enquiry or action by the Income-tax authorities or other authorities. However, no evidence has been produced by the plaintiffs in support of this averment. Even the plaintiff No. 1 in her evidence has not stated that the C defendant No. 2 so induced the deceased. She states, that the defendant No. 2 fraudulently got the house transferred in the name of the defendant No. 1. It may also be pointed, that even in the cross-examination of defendant No. 1 no question with regard to the alleged motive of Benami transaction has been put to her. Thus, no evidence has been produced by the plaintiff to show any motive of Benami transaction.

24. Next I come to the question of financial position-of the parties at the relevant time. The plaintiffs claim the transaction to be Benami and as such burden of proof lies heavily upon them to prove that at the relevant time deceased Akhlaque Ahmed had resources to purchase the plot and constructed the house thereupon and defendants were not in such position. The only evidence on this point is that of plaintiff No. 1. In the cross-examination the plaintiff has stated that her husband used -to carry on export business in partnership with defendant No. 2. She has produced one shipping bill/document Exh. 7/5 m the name of M/s. Syed Nisar & Sons relating to period 1973-74 whereas the plot was purchased m 1964 and the construction thereupon was raised in between 1964-6ti and the sale-deed was executed in 1971. This document therefore is not of much help to the plaintiffs' case. Even on her own admission both the deceased and defendant No. 2 were partners in the business. Therefore, this document would at the most show the financial status of the parties to be equal. In the cross examination it is suggested to the plaintiff but she has denied that her husband had no business. She has stated, that her husband was doing business of Banarsi Saris in the shop in Mahboob Market. She has further admitted that her late husband had gone to Dubai in 1970-71 and that even in his absence his shop was looked after by Razi Ahmed and that merchandise of the shop was sold and was taken away by defendant No. 2 and that she did not know what happened to the shop. She does not even know that her husband paid any income-tax or that he had any amount in the Bank. She further alleges, that she knows that deceased had transferred the bank account in the name of his mother, which was ultimately got transferred in the name of defendant No. 1 in her own account. No evidence has been produced to show, that the deceased had any shop in the Mahboob Market, or that he had any bank account, that he transferred in the name of his mother. Her evidence further shows, that the business of the deceased, it' any, was not going on well and that he had left for Dubai and in his absence whatever little business he had also withered away. She has also admitted, that in 1964, her husband had sold away another plot measuring about 400 sq. yards in the P.E.C.H. Society of which she came to know later, after his death. She did not state, that from sale proceeds of this house, the deceased had purchased. or constructed house in dispute. The fact, that at the relevant time, the deceased was selling away the house, that he had, would also indicate that his financial position was not strong. No other evidence or witness has been produced to show the financial position of the deceased at the relevant time.

25. The plaintiff has stated, that defendant No. 2 was a mere a clerk in National Bank drawing salary of Rs. 60 P.M. though at the time, she has admitted, that defendant No. 2 was carrying on business with her husband. However, defendant No. 1 does not allege, that she purchased the house with money, that she got from her husband. She states, that she had her own funds and further that she got Rs. 50,000 from her mother. She has further stated, that her mother had received a garden near Lahore in her claim. Admittedly defendant No. 1, her mother and deceased Akhlaque Ahmed were living in the same house, but the mother was not living with her son but with her daughter the defendant No:

1. Even according to plaintiffs, the mother of the defendant No. 1 had transferred her bank account in the name of defendant No. 1, though she claims, that bank account was in fact of the deceased, which he had transferred in the name of his mother. I have already pointed that there is no evidence to show, that the deceased had transferred any bank account in the name of his mother. The contention of defendant No. 1 that her mother gave her Rs. 50,000 receives some support from this admission of the plaintiffs. Admittedly the mother died before the case proceeded and as such her non-examination would not raise any adverse presumption against defendant No. 1. Even if it is held, that both the parties have not been able to satisfactorily show, that they were in a position to purchase or construct the house, still as house has been transferred in the name of defendant No. 1 by registered sale-deed, the presumption would be in her favour and heavy burden lies upon the plaintiff to prove, that defendant No. 1 was not in a position to purchase the house but the deceased was in a position to purchase the house.

26. Admittedly the house was got constructed through Raees Ahmed As pointed above Races Ahmed was not examined. His non-examination would raise adverse presumption against the party upon whom the burden of proof lies which in the instant case is the plaintiff.

27. Next I proceed to consider the circumstances of the case. As pointed above the main documents viz. Exhs. 7/3, 12/1 and 7/11 have come from possession of defendant No. 1. Admittedly the registered sale-deed was executed in 1971 and it is witnessed by Akhlaque Ahmed deceased though the agreement initially was entered into by Akhlaque Ahmed with Syed Sajid Ali. These circumstances indicate, that the sale-deed was executed in the name of defendant No. 1 with consent of the deceased. The fact that name of deceased was erased and name of defendant No. 1 was substituted to the agreement Exh. 7/3 also indicates that it was done with his consent, otherwise he would not have signed the sale-deed as a witness. The evidence on record does not show that the deceased obtained any writing from the defendant No. 1 to show that the sale -deed was a Benami transaction and that the property in fact belongs to him. I have held that the financial position of the deceased was not strong, and that he had sold one house in 1964. Under the circumstances there was no reason for him to be afraid of income-tax authorities so as to enter into such Benami transaction for amount of Rs. 85,000 only. The deceased was alive for seven years even after sale -deed was executed. There is nothing on record to show, that in the meantime, he had asked his sister to re-transfer the house in his name or in the name of his wife or children. Even such question was not suggested to defendant No. 1 in the cross-examination. All these facts and circumstances belie the contention of the plaintiff, that it was Benami transaction. The mere fact, that deceased used to pay taxes or that .his name was entered in Excise register would not raise any presumption of ownership in his favour. The defendant No. 1 states, that she used to make payment to the deceased to pay taxes on her behalf. This is not unbelievable looking to the relationship between the parties.

28. The plaintiffs have examined P.W. lbrarul Haque, Exh.

11. He states, that he is neighbour and that deceased had constructed his own house adjoining to his house. In the cross-examination, he has denied the suggestion that the deceased did not construct the house and did not deal with the labour at the site, while house was under construction. His evidence does not inspire confidence. It is admitted, that the construction was carried on not by the deceased, but through Races Ahmed and this witness has not said a single word, that Raees Ahmed was raising construction, but instead. he has stated, it was deceased, who was raising the construction and dealing with the labour. He further states, that the deceased died 5/6 years after completion of the house. The parties shifted to the house in 1966, whereas, the deceased died in 1978 i.e. after 12 years. His evidence is not of much help to the plaintiff.

29. Defendant has examined P.W. Shahrad Ali, who is employee of P.E.C.H. Society. He has produced the application of Raees Ahmed as Exh. 13/1 informing the P.E.C.H. Society that house had been constructed and the lease amount had been paid. He has also produced a letter Exh. 13/2 addressed to the vendor Sajid Ali, which is occupation certificate in respect of building on the plot Exh. 12/2 is lease deed executed in favour of Syed Sajid Ali. He states, that the lessee had sold his plot to Mst. Anis Begum without seeking permission of the Ministry of Works. He further states, that Mst. Anis Begum applied for mutation of her name in the Society records, which was referred to Ministry of Works for sanction, which was received from Ministry of Works on 13-3-1978, which is Exh.12/3. He states that on receipt of sanction from the Ministry of Works; P.E.C.H. Society issued such letter to Mst. Anis Begum on 5-3-1979 vide Exh. 12/4.

30. All this evidence shows, that the defendant No. 1 had purchased the house through sale-deed and that purchase had been approved by the Ministry of Works and P.E.C.H. Society and her name has been mutated as sub-lessee and entered in the record

31. In the case of Malik Muhammad Ishaque v. Eros Theatre P L D 1973 I Kar. 522 a Division Bench of this Court has observed, that the allegation, that the lady partners of firm were Benamidars must be proved by the person making such allegation. From the evidence on record the plaintiffs have not beer- able to discharge their burden of proof in proving that the defendant No. 1 was Mr. Mahamoodul Hassan has relied upon P L D 1972 SC 25 wherein their Lordships have held, that under provision of section 27(b) of the Specific Relief Act a contract can be specifically performed against any person claiming title to the property arising subsequently to the original contract, but exception has been made in the case of transferee for value, who has paid him money in good faith and without notice of original contract. It is, therefore, for transferee to prove that he was transferee in good faith and without notice of original contract for valuable consideration.

32. In the instant case as pointed above, though the original contract was entered into by deceased with the vendor, but apparently with the consent of the deceased, his name in the sale-agreement was substituted with the name of defendant No. 1 and furthermore the deceased himself witnessed the sale-deed executed in favour of the defendant No. 1. The instant case is therefore distinguishable from the reported case.

33. In view of the aforesaid discussions my finding is in negative on issues Nos. 2 and 3 and in affirmative on issue No. 4. My finding is in negative on issues Nos. 6 and 7, and my finding on issue No. 5 is that taxes of the property were paid by the deceased on behalf of defendant No. 1.

34. ISSUE NO. 8:

35. This suit in fact is for cancellation of the document viz. sale-deed on the t ground, that the transaction was Benami transaction. Article 91 of the Limitation Act provides limitation of three years for filing a suit to cancel or set aside the instrument not otherwise provided for. The limitation is to run, when the fact entitling the plaintiff to have the instrument cancelled or set aside becomes known to him. The instrument was admittedly executed in 1971 and deceased Akhlaque Ahmed was a signatory to this document. Thus, there is no doubt, that Akhlaque Ahmed had the knowledge of the document in 1971. Therefore, period' of limitation started running from 1971. The plaintiffs claim through this Akhlaque Ahmed and period of limitation expired m 1974 viz. during the lifetime of Akhlaque Ahmed. As such the death of Akhlaque Ahmed would not revive the period of limitation in favour of the plaintiffs because they cannot have greater right than the deceased. My finding on issue No. 8 is in affirmative.

36. ISSUE NO. 9:

37. This issue was not pressed, therefore, no finding is necessary.

38. ISSUE NO. 10:

39. The suit is dismissed, but under the circumstances the parties are directed to bear their own costs.

40. AA./K-103/K

41. Suit dismissed.