BAQAR HUSSAIN SHAH Versus RASHIDA BEGUM

The present appeal is directed against the judgment and decree, dated 30‑10‑1986, passed by the learned First Senior Civil Judge, Hyderabad, whereby he dismissed the suit filed by the appellant, against the respondent for declaration ,that the appellant was owner of the property, bearing Plot No.5, Survey No.142, situated in Defence Officers Colony, Cantonment, Hyderabad and that the sale‑deed purporting to be in favour of the respondent was a Benami transaction and in fact the sale was in favour of the appellant who is the real owner. The appellant also prayed for perpetual injunction restraining the respondent from interfering with the ownership and possessory rights of the appellant or alienating the suit property in any manner.

2. The case set up by the appellant in the plaint in brief is that the appellant owned a commercial plot, bearing No.89, situated in Defence Housing Society, Karachi and one Major (Retd.) M.K.A. Siddiqui was the owner of the suit property. The said Mr. Siddiqui and the appellant had exchanged their aforesaid two plots but since the exchange deed could not be executed, the appellant transferred the aforesaid commercial plot in favour of the said Mr. Siddiqui, who ‑ in lieu thereof executed irrevocable power of attorney in favour of the appellant, authorising him to alienate the suit property. On 18‑12‑1973, the appellant executed sale‑deed in respect of the suit property "ostensibly" in the name of the respondent. The respondent had no source of income to pay the sale consideration in respect of the suit property. The consideration was paid and the construction was raised on the plot by the appellant from his own income. On 2nd March, 1983, the respondent for the first time disputed the title of the appellant and started negotiating sale of the suit property. The above act on the part of the respondent led to filing of the above suit.

3. The respondent in her written statement generally denied the averments. of the plaint. It was stated that the respondent had got the power of attorney executed in favour of the appellant, as at the time of purchase of the property, sale‑deed could not begot registered in favour of the respondent. It has been admitted that the sale‑deed was executed by the appellant as attorney of the said Mr. Siddiqui, but the appellant has nothing to do with the suit property and the same is exclusively owned by the respondent and the suit property was purchased by her through her own means and resources. The property was got constructed by the respondent herself and the appellant was not capable of investing anything in the property. The property is claimed to be in undisputed possession of the respondent as owner from the very beginning. It is further stated that the, plaintiff has filed this suit with ulterior motive to cow down and pressurise the respondent, her daughter and son from giving any statement against his brother Major (Recd.) Jaffar Hussain Naqvi, who had committed cold‑blooded murder of the younger son of the parties on 16th July, 1982 and had also fired upon the respondent and her daughter. The appellant is said to be under influence and control of his aforesaid brother who is extending threats, in case the respondent gave evidence in the Court against him. The suit was alleged to be undervalued and proper court‑fee was not paid as the market value of the property was Rs.14,00,000. The maintainability of the suit was challenged. It was stated that the suit property was in possession of the respondent.

4 The learned trial Judge framed the following issues:

"(1) Whether the suit is not maintainable?

(2) Whether the suit is not properly valued?

(3) Whether real purchaser of the suit property is plaintiff and the defendant is Benami?

(4) Whether plaintiff purchased the suit property in lieu of commercial Plot No.89?

(5) Whether construction is raised by plaintiff?

(6) Is it a fact that the suit property was registered by the plaintiff in favour of the defendant and now he is legally barred from disputing the title of the defendant?

(7) What should the decree be?"

5. The appellant examined himself as his own witness and generally supported the submissions made by him in the plaint. In the examination‑in- chief, he claimed to be in possession of the suit property. He also produced several documents which will be discussed at the proper place. However, he did not produce the documents of exchange of two properties between himself and the aforesaid Mr. Siddiqui. In cross-examination he disclosed that the receipts of the bricks purchased for .the construction of the building were with the respondent. He alleged that all the record including the documents pertaining to purchase of cement were burnt by the respondent. He admitted that he had gifted a sum of Rs.50,000 to the respondent but subsequently he had taken it back from the respondent without disclosing when and how it was done. He was confronted with the gift deed in respect of the aforesaid amount and he admitted the execution thereof. He admitted in clear words that he was not living in the disputed property and he admitted that the respondent was in possession of the property in suit at that time.

6. Respondent examined her son Baqar Hussain Shah and her brother Badruddin in support of her case.

Baqar Hussain Shah generally supported the averments made in the written statement, denied the case of the appellant and produced certain documents in support of the version of the respondent's case. Some of the documents produced by him are original agreement to sell, dated 22‑9‑1973 executed between the aforesaid Mr. Siddiqui and the respondent in respect of the sale of the suit property, receipt of payment of land rent, original sale‑deed executed by the aforesaid Mr. Siddiqui through the appellant, as his attorney, in favour of the respondent, in respect of the property in suit. This witness stated that after construction of the house, the appellant did reside in the house but he denied that the appellant was yin possession of the house. He further deposed that all the taxes, charges and levies are being paid by the respondent. Respondent's brother Badruddin deposed that his father had died in 1968 and left behind properties worth Rs.20,00,000 and the present market value thereof is Rs.50,00,000. The respondent, apart from above, had inherited a sum of Rs.1,00,000 in cash and about 8 to 10 tolas of golden ornaments from her father. He had produced two letters dated 3rd November, 1972 and 6th July; 1972, written by him to the respondent, evidencing the fact that some amount was sent by him to the respondent. He further deposed that the appellant was not in possession of the suit property and that it was in possession of the respondent and that presently he,. i.e. the witness, was staying in the disputed property.

7. On the basis of the evidence produced, the learned trial Judge reached the conclusion that the respondent had purchased the property under agreement dated 22‑9‑1973 and the entire sale consideration was paid by her to the vendor. He also reached the conclusion that the sale consideration paid by the respondent was gifted to her by the appellant‑for which he had executed gift deed dated 15‑9‑1973. He reached the finding that the respondent was the real owner of the property. With regard to legal issues he held the suit to be maintainable and not barred by limitation. It was opined that the suit was properly stamped.

8. I have heard Mr. Jhamat Jethanand, learned Advocate for the appellant and Dr. Races A. Mushtaque, Advocate for the respondent.

9. The learned Advocate for the appellant urged as under:‑‑‑

(i) The learned trial Court Judge instead of dealing with each issue: separately, took up Issues Nos.3 to 6 together, in violation of the requirements of Order XX, Rule 5, C.P.C. Therefore, the case should be remanded for consideration of each of the issues and giving findings thereon separately as the above irregularity has rendered the judgment nullity in the eyes of law. He placed reliance on the cases of Amjad H. Malik v. Razia Begum 1988 SCMR 1414 and Ghulam Rahullah Khan v. Amir Sher Bahadur Khan and 142 others 1990 CLC 1883.

(ii) No findings have been given in respect of Issues Nos.4 and 5 and ends of justice will be satisfied by remanding the case under Order XLI, Rule 23, C.P.C.

(iii) The respondent did not examine herself. Therefore, the evidence of the appellant should be construed as having remained unchallenged and unrebutted.

(iv) The respondent had not pleaded that Rs.50,000 were gifted to her by the appellant and as such evidence in respect of the above plea is to be ignored and the learned trial Judge, acted illegally in considering and accepting the above evidence.

He relied on:

(a) Yousaf v. Hashim Bhoya & Co. and others PLD 1966 Kar. 456;

(b) Nadir Ali and another v. Muhammad Adam Khan 1985 CLC 373;

(c) S.K. Abdul Aziz v. Mahmoodul Hasan and 3 others 1988 CLC 337;

(d) Ch. Brothers Ltd. v. Jaranwala Central Cooperative Bank Ltd. 1968 SCMR 804;

(v) On merits of the case it was contended that the plot in dispute was acquired by the appellant in exchange with his plot in Karachi and that the construction was also raised by the appellant thereon.. He referred to Exh.39 to Exh.43 to prove the plea of exchange and Exhs.45/1 to 25, 46/1 to 3, 47 and 48 in support of latter part of his submissions. He referred contended that Exhs.67 and 68, the letters of the respondent's brother, referring to remittance of money to her for raising construction on the disputed plot pertain to the year 1972, whereas the plot in dispute was acquired in the year 1973, which fact clearly shows that the respondent had manipulated the documents in support of her false plea.

He on the above basis submitted that the respondent had no resources to purchase the plot or raise construction. It is, therefore, established that the transaction was Benami in nature and the appellant is the real owner of the property in dispute. He referred to the cases of Ismail Dada v. Shorat Banoa PLD 1960 Kar. 852, Imtiaz Ahmed Khan v. Islamic Republic of Pakistan PLD 1983 FSC 28 and Sher Mohammed v. Mohammed Shafiq PLD 1984 Lah. 117.

10. Learned advocate for the respondent made following submissions:‑‑‑

(i) The trial Court has given cogent reasons and the burden of proof has been correctly placed on the shoulders of the appellant.

(ii) It is not a case of Benami transaction for the reasons that Exh.69, the Agreement of Sale has been executed independently by the respondent for the purchase, the registered sale‑deed was executed by the appellant himself as attorney of the then owner and the original title documents have been all along in possession of the respondent. The payment of sale consideration by the respondent and its source, has been established on record. .

In support of his contention, he referred to the following cases:‑‑‑

(a) Shalimar Ltd. v. Raeesuddin Siddiqui and 3 others 1979 CLC 338;

(b) Abdul Rashid v. Mst. Fayyaz Begum 1988 CLC 1493;

(c) Mst. Sardar Khatoon and another v. Dost Muhammad and another 1988 SCMR 806.

(iii) The documents produced by the appellant in respect of the construction are not proved and do not contain anything to show that they pertain to the plot in question.

(iv) He lastly contended that the suit was barred by law, Article 120 of the Limitation Act, 1908, being applicable to the case.

11. It is proposed to consider together the first two submissions made on behalf of the appellant.

The learned advocate relied on the aforesaid two cases and Order XX, Rule 5, C.P.C. The said rule provides that the Court shall state its finding or decision, with reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit.

It is important to observe that the case of the appellant is not that any prejudice has been caused to him because of the above defect or irregularity in the judgment.

It will be going too far, to say that merely because the Court has given consolidated decision on all the issues, the decision should be treated as illegal, even if, no prejudice is caused to the case of the party. Such a proposition cannot be subscribed to, particularly, in view of the facts of this case, issues Nos. 3, 4 and 5, being inter‑related. Finding in respect of third issue, logically and legally covers finding on the fourth issue. So far as fifth issue is concerned, as will be seen hereafter, has become redundant.

A Division Bench of this Court in the case of Muhammad Hussain v. Ghulam Nabi and another, reported in 1982 CLC 888, has observed that where the learned Judge has decided all the issues in a consolidated manner, there would be no serious objection to the decision in respect of all the issues together when no prejudice has been caused to any party.

The trial Court took up Issues Nos. 3 to 6 together for reasoning and decision. The Court gave finding against the appellant on the third issue after detailed discussion of the material on record. No finding at all was given on the fifth issue. There is also no discussion on the said issue and no reference has been made to the material on record in respect thereof.

The questions before the Court were (i) whether the suit property was purchased by the respondent on payment of sale consideration, in cash, to the vendor or (ii) whether it was acquired in her name in exchange of the plot owned by the appellant. Answer of the first in affirmative, would logically lead to answer in negative for the second question. Thus reply to the fourth issue is inherent in and is natural and logical concomitant of the finding on the third issue, if seen in the context of the pleadings and the evidence on record.

However, the learned advocate for the appellant urged that as no findings have been given on Issues Nos.4 and 5, the case should be remanded to the trial Court under Order XLI, Rule 23, C.P.C.

The submission of the learned advocate is not warranted under the law.

The aforesaid rule is attracted where, the suit has been disposed of upon a preliminary point and the decree is reversed. However, rule 23‑A of Order XLI does provide that where a case is disposed of otherwise than on a preliminary point and the decree is reversed in appeal, the Court may exercise's powers of remand if retrial is considered necessary.

In so far as appeal in hand ' concerned, if Order XLI, Rule 24 is read with section 99, C.P.C., the former is found more appropriately attracted, in the facts and circumstances of the case, which confers wide powers on the G Appellate Court to pronounce judgment, where the evidence upon the record is sufficient to pronounce it, or may even resettle the issues, if necessary, or proceed to do it on some ground other than the one on which trial has proceeded.

Section 99, C.P.C. specifically provides that no decree shall be reversed or substantially varied nor shall any case be remanded, in appeal, on account of any error, defect or irregularity, in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.

The trial Court has not given any finding in respect of Issue No.5. The parties have led evidence on the said issue. Under the circumstances of this case, which will be attended to at proper place, the above error has not affected the merits of the case. Even otherwise if the said issue is taken up for decision at this stage neither of the parties will be taken by surprise and no prejudice is to be caused to either of them. Reference may be made to the cases of Muhammad Yousuf v. Faiz‑ud‑Din and another 1982 SCMR 153 and Mst. Sardaran and others v. Mst. Badshah Begum 1()80 CLC 53.

Coming to the case‑law cited at the bar, it may be observed that in so far as the case of Amjad H. Malik is concerned, it was noted that the District Judge did not take into consideration the evidence produced by one of the respondents and the documentary evidence. It was further found that the evidence of 7 witnesses also was not considered by the Appellate Court. It was under these circumstances that an observation was made by the Hon'ble Supreme Court that the High Court has rightly observed that the first Appellate Court under the law is to see and consider the evidence produced by the parties and thereafter give the reasons for recording the judgment.

In the second case relied upon, the case was remanded for non observance of the provisions of Order XX, Rule 4(2), C.P.C. and not Rule 5 thereof. In that case several properties were in dispute but, however, the issues were not properly framed. Some of the proper and necessary parties were not joined in the suit but their title in respect of certain property was jeopardised. It was further noted that certain property was purchased by a party to the suit but the trial Court had not at all adverted to its claim. It was further noted that the trial Court had not specified the properties which he held to be not liable to partition. It was in the specific circumstances of the case that the High Court held that the Appellate Court had rightly remanded the case, and it was ordered that judgment should be strictly in accordance with the aforesaid provisions of C.P.C. The facts of the said case and the observations made therein have no relevancy with the case in hand.

The above case‑law does not advance the case of the appellant and on the contrary in the case of Amjad H. Malik, it. has been observed that the first Appellate Court under the law is to see and consider the evidence.

The contention of the learned counsel for the appellant with regard to remand of the case is, therefore, repelled. It is not necessary, nor is the requirement of law to remand the case.

12. Third submission of the learned counsel for the appellant is also without substance. Article 118 of the Qanun‑e‑Shahadat (Order 10 of 1984) lays down that the burden of proof in a suit lies on that person who would fail if4no evidence at all were given on either side.

If no evidence had been recorded in this case, the appellant would have failed. The ONUS PROBANDI, therefore, was on the shoulders of the appellant and he had to prove his case positively which he failed to do. He, therefore, cannot succeed on the weakness of the case of the respondent, if any. The question of .disproof or rebuttal will come up only when the plaintiff has by positive evidence established his case. When the plaintiff has failed to prove his case, the defendant may not lead any evidence.

It is also not the requirement of law that the defendant should in every case enter into the witness‑box even where rebuttal becomes necessary, unless i3 can be unequivocally demonstrated that a particular fact is exclusively within the knowledge of the party.

Nothing has been pointed out which could be said to be exclusively within the knowledge of the respondent, to hold that the respondent's personal evidence was indispensable and in absence of such evidence any inference could be drawn against the respondent.

The witnesses examined by the respondent. have deposed to the facts within their knowledge and were competent witnesses.

In view of the above, nothing turns up on the submission under consideration. .

13. The fourth submission of the learned counsel for the appellant is based on the principle of law SECUNDUM ALLEGATA ET PROBATA. It is settled law that the party has to prove the case, as pleaded. The learned counsel contended that the respondent had not pleaded that the appellant had gifted Rs.50,000 to her and as such, the trial Court ought to have ignored the evidence in this regard.

The above cases relied upon by the learned advocate for the appellant lay down the said principle to the effect that the party has to prove the case pleaded by it.

But the above rule is not attracted to the facts of this case. What the learned trial Judge has relied upon is the admissions of facts made by the appellant to the effect that he had gifted the aforesaid amount to the respondent and that he had executed gift deed in respect of the said amount. He was confronted with the deed and he admitted it.

Under the circumstances the cases cited at the bar do not advance the case of the appellant. .

The trial Court has thus based the above finding on the admission of the appellant and not on the plea of the respondent or on the evidence tendered by the respondent.

Therefore, the above admission of the appellant cannot be discarded for the reason that it was not pleaded by the respondent.

14. The case of the appellant, as set up in the plaint, was that he had acquired the plot in dispute by way of exchange of his plot situated in Karachi.

The appellant had to prove the case as pleaded by him as laid down in the aforementioned cases of Yousuf, Nadir Ali and another, S.K. Abdul Aziz and Chaudhry Brothers Limited.

It is also settled law that burden of proof of the fact that the transaction was benam4 is on the person who alleges that he had purchased the property in the name of the ostensible owner.

The Hon'ble Supreme Court in the case of Mst. Sardar Khatoon and another (supra) has observed that if the plaintiff had purchased the property ostensibly in the name of the defendant, then the burden of proof was on the plaintiff to prove his case as pleaded by him and he could not succeed on the weakness of the case set up by the defendant.

In this regard the learned counsel for the appellant referred .to Exhs.39 to 43. Exhibit 42 is the copy of affidavit of the appellant sworn . on 29‑9‑1972, whereby he surrendered all his rights in and title to Plot No.89, situated in Defence Officers Cooperative Housing Society, Karachi (now Authority) in favour of Major (Retd.) Muhammad Khairuddin Ahmed Siddiqui. This document does not establish that the said plot was being surrendered in exchange of the plot in dispute. No document has been produced to establish the alleged exchange. The appellant had thus failed to prove that the said plot was acquired in exchange as alleged.

In support of Issue No.5, reference was made to Exhibits 45/1 to 25 and 46/1 to 3. Exhibits 45/1 to 25 pertain to purchase of building construction material, electric items, sanitary fittings, wood works, etc. from 24‑3‑1972 (Exh.45/22) to 7‑1‑1973 (Exh.45/25) from different shopkeepers and Exh.46/1 to 3 are the estimates of the works. They are dated 8‑7‑1972, 18‑6‑1972 and 8‑7‑1972 respectively, issued by M/s. Al‑Hamra Architects, Engineers, Surveyors & Planners. These documents do not show that they have any concern with the construction' of the building on the plot in question. If they be so assumed, it will lead to the conclusion that the building was constructed on the plot, before it was purchased by the respondent, that is in the year 1972 and early 1973. If it be that Exhs.67 and 68, which are letters dated 6‑7‑1972 and 3‑11‑1972, written by respondent's brother about the remittance of money to her raising construction also become relevant and cut across the submission of the learned counsel for the appellant that the above documents were manipulated.

Agreement to sell dated 22‑9‑1973, sale‑deed dated 18‑12‑1973 establish that the plot was conveyed to the respondent together with superstructure thereon. Therefore, the question as to .who raised the construction has become superfluous and redundant.

It is the maxim of law that whatever is affixed to the soil belongs thereto, QUICQUID PLANTATUR SOLO SOLO CEDIT.

15. It is pertinent to note that the appellant did not deny the execution of Sale Agreement between the respondent and the vendor and did not even challenge the same in the cross‑examination. It is thus admitted by him that the said Agreement was so executed and the sale consideration was paid by the respondent to Mr. Siddiqui.

16. The above leads to the inescapable conclusion that the plot in question together with structure thereon, even if the construction was raised thereon by the appellant, was purchased by the respondent. There is evidence on record to lead to the conclusion that the said plot was purchased by the respondent out of the money inherited by her from her father. Assuming that the sale consideration was provided by the appellant by gifting the said amount to the respondent, she had become absolute owner of the said sum and she utilised it for the said purpose.

17. It would be proper at this stage to consider the question whether the respondent is benamidar, on the assumption that the plot in question was acquired by the appellant in exchange with his plot situated in Karachi and that he had raised the construction thereon and subsequently executed the sale deed in favour of the respondent.

It has been held in several cases that the question whether a transaction is a benami transaction or not, mainly depends upon the intention of the person who has provided sale consideration. ,

In the case of Muhammad Bibi and 2 others v. Abdul Ghani and 2 others PLD 1975 Kar. 979, Fakhruddin G. Ebrahim, J. (as he then was) has observed as under:‑‑‑

" ..It is now well settled that the source of purchase money is not conclusive in favour of the benami character of a transaction though it s an important criteria. Where there are other circumstances showing that the purchaser intended the property to belong to the person in whose favour the conveyance was taken, the essence of benami being the intention of the purchaser, the Court must give effect to such an intention. The law has been well summed up by Mr: KA. A. Qamaruddin in his book "Law of Benami Transactions in India and Pakistan" at pages 86 and 87 as follows:‑‑‑

`It would, therefore, seem clear upon the authorities cited so far that there is no conclusive presumption, either in favour of or against, benami transfers. Wh4tever presumption may arise from a transaction which is benami, such presumption is rebuttable. The long line of decisions of different High Courts in British India and the Privy Council firmly established the rules that in a benami transfer or purchase the source of purchase money for acquisition of the property must come from some one other than the ostensible transferee of the purchaser, that there will always be an initial and primary presumption in benami that the property belongs to the real purchaser. But it is also a well settled and established rule of law, that notwithstanding that doctrine of advancement does not apply in India and Pakistan, the presumption of resulting trusts in benami transfers is always liable to be rebutted upon evidence that the purchaser, grantor or donor intended to benefit the person in whose name the property was acquired and the conveyance of the legal estate was taken. And, it seems necessary to point out here that this doctrine of Indo‑Pakistani law of "Intention to Benefit" has not only been established by judicial decisions but the very essence of it is contemplated and embodied in section 82 of the Trusts Act, 1882, which deals, as we have seen earlier, with the application of the principles of resulting trusts in benami purchases. For section 82 of the said Act provides:

`Where property is transferred to one person for a consideration paid or provided by another and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, transferee must hold the property for the benefit of the person paying or providing the consideration,' and the above clause put in italic type abundantly makes it clear that a resulting trust in benami will only arise if the, ,person paying or providing the purchase money pays or provides without any intention to benefit the transferee. It will be seen that section 82, Trusts Act, was so interpreted in Chittaluri v. Sittapati Rao AIR 1938 Mad. 8, where their Lordships of the Madras High Court held that:‑‑‑

`It is true that in Indian law, the English rule as to the presumption of advancement has not been adopted, but section 82, Trusts Act, recognises that money may have been contributed by another towards a purchase with the intention of giving a beneficial interest to the person in whose name the purchase is made':'

This case was relied upon in Sher Muhammad v. Muhammad Sharif PLD 1984 Lah. 117.

In the case of Ismail Dada v. Sher Bano PLD 1960 Kar. 852, relied upon by the learned counsel for the appellant, late SA. Farooqui, J. has referred to the case of Mst. Nawab Begum and others v. Hussain Ali Khan and reproduced the following observations:‑‑‑

"The main principle deducible from the cases cited by the either side appears to us to be this that it is the intention of the husband that mainly counts in the determination of the question whether he intended to make an absolute gift in favour of his wife or whether the transaction was merely intended to be a benami transaction."

In the case of Nawab Mirza Muhammad Sadiq Ali Khan and others v. Nawah Fakr Jahan Begum and another AIR 1932 PC 13 Baqar Ali bought an immovable property taking the conveyance in the name of his daughter who was 5 years of age. The income of the property was credited to a separate account but it was, in part, applied to purposes with which she had no concern. At the time of her marriage, the deed was sent for inspection of her would be father‑in‑law. After the death of Baqar. Ali, it was contended that the property was part of his estate and the said daughter was a benami. The Privy Council held that there was a valid gift to the daughter because there was proof of bona fide intention to give and that intention was established, the following words:‑‑‑

"The purchase of this property was a very natural provision by Baqar Ali for the daughter of his favourite wife, and though there may be no presumption of advancement in such cases in India, VERY LITTLE EVIDENCE OF INTENTION WOULD BE SUFFICIENT TO TURN THE SCALE, The sending of the deed for inspection of the lady's father‑in‑law, which the Chief Court held to be established, was clearly a representation that the property was hers."

Apart from intention the judicial pronouncements indicate that following, inter alia, are some of the criteria for determining the question whether a transaction is a benami transaction or not.

(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 said property, and

(iv) motive for the benami transaction.

Reference may be made to Muhammad Sajid Hussain v. Muhammad Anwar Hussain 1991 SCMR 703; Kulsum Bibi v. Allah Dad 1989 MLD 3317; Abdul Ghani v. Muhammad Shafi 1991 CLC 1708 and Abdus Samad Khan v. Abdullah 1989 CLC 1563.

18. The intention of the appellant is to be gathered from the attending circumstances, his conduct before and after the purchase of the property and it is proposed to scrutinise the case on the basis of criteria laid down in the aforesaid authorities:

The appellant was the attorney of the then owner since 1971. He could have executed sale‑deed directly in favour of the respondent.

If the Agreement was considered necessary, it could have been between the respondent and the appellant as attorney. What was the intention behind execution of the sale agreement between the respondent and the then owner himself against the consideration of Rs.50,000, by‑passing the attorney.

Again, for what it was considered necessary to execute Gift Deed equal to the amount of sale consideration, just a couple of days before execution of the Agreement of Sale.

The only answer possible is that the parties were acting with great caution, circumspection and vigilance, to guard against the future eventualities, in demonstration of the fact that the respondent is the real purchaser of the property.

In our country English concept of advancement is not applicable and it is common phenomenon that the properties are purchased in the names of one's wife or children. But no such unusual acts are performed, as are obtaining in this case, which clearly establish the intention on the part of the parties, to make the transaction to be clearly and above all doubts, really in the name of the respondent and not ostensibly.

The parties were fully aware that the source of purchase money is the first index of the real ownership and, therefore, the appellant first gifted the required sum to the respondent, evidencing it with gift deed and then the sale agreement was executed directly between the respondent and the then owner, reciting receipt of entire sale consideration by the then owner, so that no scope is left to term the transaction as benami.

In benami transactions the real purchaser normally intends to conceal the acquisition of property for some oblique motive. In the case of Ismail Dada '(supra), relied upon by the learned counsel for the appellant, the properties were purchased by him in the name of his wife Shohrat Banco to save himself from the incidence of heavy income‑tax and such fact was established by him in his evidence and the Court reached the conclusion that such was the reason for acquiring the properties ostensibly in the name of his wife. So far as the present case is concerned, there is no evidence available as to the existence of circumstances which compelled the appellant to purchase the property in the name of respondent. There was no motive for the appellant to resort to benami transaction. On the contrary there are circumstances obtaining in this case which show that something was brewing up between the respondent and her in laws which is indicated from the fact that the brother of the appellant is facing the charge of murder of the son of the couple and it is also alleged that the brother of the appellant had in the same incident fired at the respondent and her daughter. Nonetheless it appears that it was probably because of such circumstances that the parties decided to take extraordinary steps to keep the transaction beyond all doubts to be really in the name of the respondent for all purposes and intents.

It is the case of the respondent that the suit has been filed by the appellant to compel the respondent and her daughter to abstain from giving evidence in the said murder case.

19. Even by subsequent conducts it is established that the respondent is the real. owner. All the original property documents have come from the possession of the respondent and so also all the taxes and charges in respect of the suit property are being paid by the respondent. Evidence to this effect was not challenged in cross‑examination by the appellant.

20. In so far as possession is concerned, it is not of much importance as the parties are husband and wife and have been living together. Evidence, however, discloses that the appellant had ceased to be in possession of the property as it was admitted by him in his cross‑examination and if his evidence is analysed, it shows that he had been out of possession for about six years prior to the date he was being cross‑examined which fact is revealed by the assertion that he had to leave Hyderabad for his treatment in Punjab.

21. The learned counsel for the appellant had put much reliance on the case of Ismail Dada (supra) in support of his case. No doubt in the said case the purchase of properties in the name of wife were held to be benami transaction. It was so held for the reason that the Court had reached the conclusion on the facts of the case that the properties standing in the name of wife Mst. Shohrat Banoo were purchased from the funds of the partnership. His wife was claiming to be partner in the said firm and had specifically pleaded that she had contributed towards the capital of the firm. The Court reached the contrary conclusion and found that the aforesaid firm was a proprietary concern and entire capital belonged to her husband. It was after reaching such findings of facts that the conclusion was drawn that the property was purchased from the funds of the appellant. The Court also reached the conclusion that Ismail Dada had purchased the properties in the name of his wife to escape the incidence of income‑tax, dispute with regard to which was found to be pending at the relevant time before the Income Tax Authorities. The aforesaid case, therefore, is distinguishable.

The case of Imtiaz Ahmed (supra) has no relevance to the proposition canvassed by the learned counsel. The case of Sher Mohammed (ibid) has been already referred to above.

22. The submission of the learned counsel for the respondent that the suit was barred by limitation needs to consideration, as neither it was pleaded, nor any issue was urged to be framed in this connection.

I, therefore, find no force in this appeal which is dismissed with costs.

A.A./B‑230/K Appeal dismissed.