1994 C L C 1437 [Lahore] Before Fazal Karim, J JANE MARGRETE WILLIAM---Appellant versus ABDUL HAMID MIAN---Respondent Regular First

Appeal No. 2 of 1989, decided on 23rd August, 1992 (a) Benami transaction------ Two classes of transactions differing from each other in their legal character and incidents were denoted by .the word "benami"---Benami transaction in one sense would signify a real transaction i.e., where sale itself was genuine but the real purchaser being "B", 'X' was his benamidar --- Word "benami" was also occasionally used to refer to a sham transaction i.e., where "A" purports to sell his property to "B" without intending that his title should cease or pass to "B"---Fundamental difference between such two classes of transactions is that whereas in the former there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is no such thing; transferor continuing to retain the title notwithstanding the execution of transfer deed---Scope of enquiry in the former case would be as to who had paid the consideration for the transfer while in the latter class of cases when the question would be whether transfer in question was genuine or sham, the point for decision would not be as to who paid the consideration, but whether any consideration was paid at all. Sres Meenakshi Mills Ltd., Maduraj v. Commissioner of Income-tax, Madras AIR 1957 SC 149 rel. Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703 ref. (b) Words- and phrases------"Benami"---Connotation. (c) Benami transaction------ Determining of nature of transaction---Essentials---Factors for determining whether any particular transaction was benami transaction or not would be the source of consideration; from whose custody original title deed and other documents came in evidence; who was in possession of property in question; and motive for benami transaction.

Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703 rel. (d) Benami transaction------ Presumption relating to benami transaction---Where any property was purchased by a husband in the name of his wife or by a father in the name of his son, presumption was that the beneficiaries were benamidars and if they claimed it their own by alleging that husband or father intended to make a gift of property to them, onus would rest upon them to establish such a gift ---Qanune-e-Shahadat (10 of 1984), Art. 129.---[Muhammadan Law]. Controller of Estate Duty v. Aloke Mitra AIR 1981 SC 102 rel. (e) Words and phrases------"Motive"---Connotation. (f) Motive----- Expression "motive"---Meaning, scope and import of---Expression "motive" in one sense would mean an emotion prompting an act while in other sense it would mean intention or purpose. [p. 1456] D Reg v. Hyam 1975 AC 55 rel.

(g) Specific Relief Act (I of 1877)------5.42---Court Fees Act (VII of 1870), S. 7(iv)C---Suit for declaration of title only---Plaintiff had not sought relief of possession---Effect---Where relief of possession flows from the main relief of declaration of title and case squarely falls under S. 42, Specific Relief Act, 1877 and S. 7(iv)C, Court Fees Act 1870, plaintiff would be allowed to amend his plaint so as to ask for relief of possession as a consequential relief. Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 and Imtiaz Ahmad v. Ahmad Ali PLD 1963 SC 382 rel. (h) Benami transaction------ Nature of transaction---Wife claiming to be the owner could not prove source of her income for the purchase of property in question and also could not prove that husband having purchased the same from his own income had gifted the same to her---Evidence on 'record clearly established that husband had purchased such property from his own income and that wife was a mere benamidar---Husband was entitled to and was granted decree for declaration of title and was granted possession thereof, as a consequential relief.

(i) Trusts Act (II of 1882)------S. 82---Transfer to wife for consideration paid by husband---Crucial question for determining in such transaction was whether husband did not intend to pay or provide such consideration for the benefit of the wife/transferee---Real question, was, thus, always one of intention. Ismail Dada Soomar v. Shorat Banoo PLD 1960 Kar. 852 rel. Syed Jamshed Ali Shah for Appellant. S. Birgees Nagi and Abdul Majid Sheikh for Respondent. Dates of hearing: 30th, 31st, May; 2nd, 7th and 10th June, 1992. JUDGMENT This regular first appeal by Mrs. Jane Margret (hereinafter to be referred to as the defendant) comes from a judgment and decree of the learned Additional District Judge, Lahore, dated 5-12-1988 whereby the suit of the plaintiff, Ch. Abdul Hameed, respondent herein (hereinafter to be described as the plaintiff) was decreed and he was "declared an absolute owner of both the properties i.e. House No. 68-II, Gulberg-III, Lahore and commercial property bearing No. 5-B-1/B-2, Ghalib Market, Gulberg, Lahore" and the defendant was restrained "from denying the ownership of the plaintiff in respect of the aforesaid properties". 2. The plaintiff is a Pakistani national. The defendant was a British national. Somewhere before 1959, the plaintiff went to England for education. He was studying in the University College, Cardiff, South Wales, for his engineering degree; the defendant was also studying in the same College. As students, they became friends and the friendship resulted in their marriage on 10-1-1959. They came to Pakistan in 1961 but went back in March, 1962. They stayed there from MIrch, 1962 to January, 1968, when they came to Pakistan with a view to settling here. On 25-6-1968, Plot No. 68-II situated in GulbergIII, Lahore, measuring 2 Kanals 5 Marlas 180 square feet was purchased in the name of the defendant. The house in dispute stands on that plot; it was built in December, 1968 and the parties shifted into it in January, 1969, a commercial plot situated in Ghalib Market, Gulberg-111, Lahore, was purchased in the name of the plaintiff and the defendant in equal shares. The shops in question stand on this plot: they were completed in November, 1969. 3. It appears that for reasons, into which it is not necessary to go and which if the story of the plaintiff is to be believed make a distasteful reading, the marriage ran into difficulties soon after their arrival in Pakistan. It broke down completely in the year 1971, so much so that the defendant left this country in April or May, 1972. The parties were separated by divorce in 1975. She has not returned to Pakistan since then. It also appears that the only child of the marriage is a daughter. 4. This suit was instituted by the plaintiff. on 12-1-1972. The case of the plaintiff, as laid in -his plaint, was as follows. After his graduation, he was employed as an Electrical Engineer in England. When they came to Pakistan in January, 1968, he brought two cars with him; the object

being to "raise money in order to build some property in Pakistan". He sold one car and borrowed some money from his father and relatives and purchased plot No. 68-I1. He then constructed a house on the plot and moved into it in January, 1969. He also purchased the plot in Ghalib Market and built five shops over it. Therefore, "the house alongwith the land underneath and the shops are the property of the plaintiff, although the land of the shops was purchased by the plaintiff in his as well as in the name of defendants". According to him, "he had raised the finances for the construction and purchase of the aforesaid properties and it was with his money that the properties were constructed". He again left for England "as he was in debt and wanted to do some job in order to raise. money for the satisfaction. of his debts. So, he left Pakistan and in his absence he asked one Mr. Muhammad Nawaz Kasuri, Advocate, to look after the interests of the. plaintiff'. During his absence, Mr. Muhammad Nawaz Kasuri, Advocate, developed intimacy with the. defendant and "made a plan for grabbing the property of the plaintiff'. He came to know that Mr. Muhammad Nawaz Kasuri, Advocate, had "secured a general power of attorney from the defendant for the sale and management of the property of the plaintiff'. Mr. Muhammad Nawaz Kasuri, Advocate, "advised the plaintiff not to come to Pakistan as a case under Martial Law Regulation No. 35 was pending against him. The plaintiff received information from his friends and relatives that the defendant and Muhammad Nawaz Kasuri were living in adultery". He suddenly came to Pakistan and arrived in Lahore on 18th December, 1971. When he went to his house at about 6-00 p.m., he found the defendant and Mr. Muhammad Nawaz Kasuri, Advocate, in the bed-room. Mr. Muhammad Nawaz Kasuri, Advocate, left the house. When he asked the defendant to explain her position, she said that she wanted a divorce. The plaintiff, after few days, took away his daughter "as he did not want to keep her under the influence of the defendant". On 6-1-1972, the defendant in collusion with Mr. Muhammad Nawaz Kasuri, Advocate lodged a false report with the police that the plaintiff had abducted his daughter and stolen a television. Thereafter, the defendant started asserting that she was the owner of the house and the shops. The plaintiff told her ".that she was a `benamidar' and he had made this arrangement in order to provide her a secure living but the defendant insisted on denying the title of the plaintiff'. The plaintiff went on to say that "the defendant had neither the means nor the money to purchase and construct the aforementioned properties when she came to Pakistan. The plaintiff had spent the entire money for the purchase and the construction of the property". 5. In her written statement, which was a detailed document, the defendant took a preliminary objection that as the plaintiff was not in possession of the suit properties, the suit was not maintainable. On merits, she stated that before their marriage, the plaintiff's father was supporting him in England but after the marriage, "his father stopped doing so and the latter became a destitute. He had no other source to continue his studies". She was the only daughter of her rich parents and was also "getting grant from the country for her studies". She, therefore, supported the plaintiff to enable him to complete his studies. After his graduation, the plaintiff was employed but his "meager income" was not sufficient to make their both ends meet. She graduated in 1960 and obtained a post-graduation diploma in 1961 and was immediately employed as a teacher. In November, 1961, they came to Pakistan but as the plaintiff could not get "suitably remunerative employment and the defendant's earning was not sufficient to feed the family", they went back to settle abroad, in March, 1962. The plaintiff was re-employed with South Wales Switchgear Ltd. He used to be out of Wales Post of the time and would see her and her daughter once a week. He could hardly support his cousin Abdul Latif, etc. and his family. The defendant maintained her and her daughter with her own money. During their stay in

England from March, 1962 to 16th January, 1968, when they came to Pakistan, "the entire savings of the plaintiff were about Pounds 200 which he spent on purchasing of gifts, etc. for his relations and friends". She denied that he had brought two cars to Pakistan; according to her, "no one can import two cars at one time". In fact the cars were purchased by the defendant "and she paid the price out of her own earnings and bank account". The defendant purchased one car in the plaintiff's name and the other in her own name. The car purchased by the defendant in the plaintiff's name was in fact on trust with the plaintiff who had fraudulently and dishonestly sold the same on 5-1-1972 to Mr. Muhammad Nawaz Kasuri, Advocate. The second car which was purchased in the defendant's own name "was given by the plaintiff to his cousin and plot 68-II, Gulberg-III was purchased by the defendant accordingly". She stated further that "before the actual sale deed was registered, the defendant requested her mother abroad to advance the defendant money for the purchase of land for shops and constructions thereon The plaintiff, however, with the neurotic and vicious behavior forced the defendant to request her mother to send the money in plaintiff's name instead of defendant's name and the idea conveyed by the plaintiff to the defendant was that a foreigner cannot send money to a foreigner but in fact the plaintiff fraudulently got bonus from the Government to the ignorance of the defendant. Accordingly, the defendant's mother started depositing money in the bank in the plaintiff's name "by getting signatures of some of the plaintiff's relatives on the remittance forms". This statement is followed by a detail of 12 cheques with their dates and amounts sent to Pakistan during the period from 12-4-1968 to 2-12-1969, the total amount of these cheques being Pounds 13063. Thus, the plaintiff first "defrauded the Government of Pakistan and illegally obtained bonus on the amount given to the defendant by her mother" and "secondly the defendant purchased a commercial plot and the plaintiff introduced himself as a co-owner to the extent of one-half. The impression given to the defendant was that if both the plots were purchased only in the name of the defendant, she will be burdened with heavy income-tax as she was already earning about Rs.2,400 per mensem from the American School, where she is still employed and the plaintiff became a co-owner to the extent of half share fraudulently". 6. Thus, according to her, both the plots were purchased and the construction thereon was raised with her mother's money; she had been in the physical possession of the house and out of the five shops, four were in possession of her tenant and the 5th in her exclusive possession. She claimed, therefore, that she was also the owner of one-half of the shops which stood in the name of the plaintiff. Even if it be proved that the plaintiff was the owner of that one half of the shops, "even then the so-called half share was purchased for the defendant's benefit and advancement with the object of making her absolute owner". With this purpose in view, the plaintiff executed a power of attorney in favour of the defendant and she has been enjoying the property to her own benefit throughout". 7. As regards the allegations of adultery, they were, according to her, not only defamatory, libellous in nature and malicious but also preposterous, false and concocted. She had on 18-9-1970, received a letter from the State Bank of Pakistan accusing her of violation of Martial Law Regulations by the plaintiff. The wife of Mr. Muhammad Nawaz Kasuri, Advocate, was also a foreigner; she and Mr. Muhammad Nawaz Kasuri's wife were not only colleagues but were also fast friends. Through Mr. Kasuri's wife, she consulted Mr. Muhammad Nawaz Kasuri, Advocate, when a dispute with one of her tenants arose and when the State Bank of Pakistan accused her of illegalities. .

It will be noticed that the defendant had in her written statement stated a number of new facts. In particular, she had in para. 1 of the written statement stated facts throwing light on the financial status of the parties. In particular, she disclosed that it was her mother, who had on her request remitted as much as Pounds 13063 in the name of the plaintiff during the period from 12-4-1968 to 2-12-1969; according to her, it was with that money that the plots were purchased and the buildings were made. These new facts, therefore, required a reply from the plaintiff. Accordingly, he filed a replication. In reply to para. 1 of the written statement concerning the statement of facts that the defendant's mother had sent the abovementioned sum of Pounds 13063, he said: "It is denied that the mother of the defendant remitted the amount mentioned in the para. The suit properties were purchased by the plaintiff with his own money and the defendant had no means to purchase the properties at the time when the properties were purchased. It is further submitted that when the defendant got employment in Lahore American School, she remitted her salary for the first two years to her mother in U.K. through Ist City National Bank and Bank of America." He specifically mentioned a sum of Pounds 700 which,- it should be mentioned here, was the sum remitted by one of the cheques dated 2-12-1969 mentioned in para. 1 of the written statement; he said that sum was sent to him and was his earnings in UK He denied that the defendant was entitled "to any counterclaim since she is not the owner of the suit properties". 8. On the parties' pleadings, the following issues were formulated and tried:--(1) Whether the suit is not maintainable in its present form? OPD (2) Whether the allegation :Hagainst Mr. Muhammad Nawaz Kasuri describing his role in relation to the case, are . irrelevant and scandalous? OPD (3) Whether the plaintiff received any money from defendant's mother, if so, what was this money and how was it spent? OPD. (4) Whether the plaintiff is the owner. and defendant a "benamidar" of both the suit properties? OPD (5) Whether the defendant is estopped from setting up her own title as against the plaintiff? OPP (6) Relief. The suit was first tried by a learned Civil Judge, Lahore, who by his order dated 25-6-1979 decided the first issue against the plaintiff, holding that the possession of the house was admittedly with the defendant and the suit was not maintainable in its present form. On the plaintiff's appeal, however, the learned Additional. District Judge, Lahore; set aside that order and by his judgment dated 10-1-1981, remanded the case "for decision in accordance with law after taking evidence on all the points in controversy and on the basis of pleadings".

9. When the suit went back, a prayer was made that issue No. 1 should be struck off. The learned Civil Judge, however, observed by his order dated 13-6-1988 that issue stood decided and no question of deleting it arose. He was, however, of the opinion that the issue could not be decided afresh. 10: At the trial, the plaintiff called 22 witnesses. He himself appeared into the witness-box as P.W.15 P.W.23~ was his attorney Mian Ejaz Ahmed. The latter gave evidence in rebuttal after the defendant had closed her evidence. On the other hand, the defendant called three witnesses, D.W.3 Mr. Muhammad Nawaz Kasuri, Advocate being her attorney. As many as 30 documents were produced by the plaintiff; the defendant produced 25 documents. 11. The learned Additional District Judge thought that issue No. 1 could not be reopened "in the presence of order dated 13-6-1988 which is still in the field and the same has not been appealed against by way of appeal or revision". Issue No. 2 which was whether the allegation against Mr. Muhammad Nawaz Kasuri, Advocate was irrelevant and scandalous should in the opinion of the learned Additional District Judge be struck off and was accordingly struck off under Order 14, Rule 5 of the C.P.C. On issue No. 3, which was whether the plaintiff had received any money from defendant's mother, if so, what was this money and how was it spent, the learned Additional District Judge referred to the cheques Exh. D.W.3/2 to Exh. D.W.3/16 from Mrs. V.E. Monte, mother of the defendant which money, according to the plaintiff! was his money and not that of the defendant's mother. The case tried to be made by him, to quote the learned Additional District Judge, being that "the said amount is in fact the amount of salary of the plaintiff which according to the family settlement firstly used to go in the account of the defendant and then from defendant's account to that of her mother's account and the said amount was then sent to Pakistan through cheques". The learned Additional District Judge referred to the document "Exh. P.W.23/1 which was a letter from Lloyds Bank, Queens Road, Cardiff, England. This document, so held the learned Additional District Judge, made it crystal clear "that the amount so sent by defendant's mother through cheques Exh. D.W.3/2 to D.W.3/16 was the money belonging to 'the plaintiff'. This document, the learned Additional District Judge held further "has totally smashed the very claim of the defendant". He was, therefore, of the view that "the said amount which was sent by the mother of defendant was the money of plaintiff and not that of the mother of defendant's and decided issue No. 3 accordingly. On issues Nos. 4 and 5, the learned Additional District Judge referred to the plaintiffs evidence. He had stated that when he came to Pakistan, he brought two cars and one thousand pounds (1000 Pounds). He obtained the money, a sum of Rs.30,000 by selling the cars, Rs.23,000 as loan from his mother and some other loans from Abdul Haque and Mian Ehsanul Haq P.W. 20. The plaintiffs monthly salary in England was Rs.50,000.00. His total income from March, 1962 to December, 1967, was about 16,000 Pounds. His salary used to be credited into the account of the defendant and from that account to her mother's account. The learned Additional District Judge then referred to oral and documentary evidence of the plaintiff, especially the evidence of P.W. 2 who was the contractor who had built the properties and also the evidence of P.Ws. Nos. 6, 11, 14 and 20 and found that "both the properties were built by the plaintiff after purchasing the vacant plots from his own money". There was, so observed the learned Addid-4nal District Judge, no evidence in rebuttal. The powers of attorney Exh. D. 17 and D. 18 also in the opinion of the learned Additional District Judge, went a long way to prove the ownership of the plaintiff. Referring to the defendant's explanation that the power of attorney was given to make the defendant full owner of

the property and further to raise money after selling the same "so as to return the amount of her mother which was sent by her". It, so observed the learned Additional District Judge, "strengthens the case of the plaintiff that the plaintiff is the real owner of the property, otherwise there was no fun in getting the general power of attorney and this explanation further smashes the case of the defendant because when it is stated that general power of attorney was given in order to raise money so as the amount sent by her mother be returned to her, that would mean that the said amount was at the most for the sake of arguments nothing but a loan advanced to the plaintiff and that was not used in order to acquire the ownership by the defendant in respect of the said property". 12. Before the learned Additional District Judge, an application was made on .behalf of the plaintiff seeking "a relief of possession on the principle of status quo ante". The learned Additional District Judge, however, held that "relief of possession also cannot be granted as the same was not prayed in the very suit ... and "he cannot surpass the limits of prayer made in the suit which was filed as back as in January, 1972. He therefore, dismissed the application.' 13. Learned counsel for the defendant, appellant herein, criticised the judgment of the learned Additional District Judge on various grounds. He pointed out that although the parties' evidence consisted of 23 witnesses on one side, 3 witnesses on the other and as many as 25 witnesses on both sides, yet the learned Additional District Judge was content to refer to the cheques Exh. D.W.3/2 to D.W. 3/16 and to Exh. P.W. 23/1 to hold that the plaintiff was the real owner of the properties in question. He pointed out that Exh. P.W.23/1 was produced at a very late stage of the evidence; it had not been relied upon by the plaintiff and as it was produced in the evidence of the plaintiff's attorney in rebuttal evidence, after the defendant had closed her evidence, the defendant was taken by surprise and had no opportunity to rebut it. He argued that he case tried to be set up by the plaintiff in the evidence of P.W.23 was wholly inconsistent with the case as laid in the plaintiffs pleadings. He referred to a number of precedent cases, Muhammad Sajjad Hussain v. Muhammad Anwar Hussain (1991 SCMR 703) being one of them to contend that the source of consideration for the transactions in question was the most important criteria to determine whether the transactions in question were benami. The burden to prove that fact so contended the appellant's counsel was upon the plaintiff and even Exh. P.W.23/1 failed to discharge it. Learned counsel for the plaintiff, respondent herein, on the other hand, maintained that a benami transaction is a paradox: it is a transaction of faith and what matters is the psychology of the man who purchases the property in the name of another. In this case, this was, so argued the learned counsel, the more so, for nobody was being deceived. Here, two mentalities, one Eastern and other Western, were working: to apprehend the real nature of the transaction, it must, so argued the learned counsel for the plaintiff, be remembered that in the West people are compulsive spenders: they do not save that a man from this region must have for his future. In fact those who go abroad go with the idea to earn, save and then to return to their country to build property. In that context, he also wanted it to be kept in mind that while the plaintiff naturally wanted to come back to Pakistan to settle here the defendant had no interest to do so: she would not therefore, invest her own money here in acquiring property. These, so contended the plaintiffs counsel, are the primary facts and the truth cannot be reached unless they are' properly apprehended. He argued further that for the catastrophy that be fell the plaintiff, ruining his family life the blame lay entirely at the door of Mr. Muhammad Nawaz Kasuri, Advocate. In his opinion, the plaintiff was entitled to bring on record Exh. P.W.23/1: it was

properly admitted in evidence and was rightly held by the learned Additional District. Judge to have the effect of smashing the defendant's case. He also thought that in the facts of the case, the plaintiff was entitled to the relief of possession also and if need be, the plaintiff should be allowed to amend his plaint and given that relief by this Court. 14. The word "benami" is used "to denote two classes of transactions which differ from each other in their legal character and incidents. In one sense, it signifies a transaction which is real as for example when A sells properties to B but the sale deed mentions X as the purchasers. Here the sale itself is genuine, but the real purchaser is B, X being his benamidar. This is the class of transactions which is usually termed as benami. But the word `benami' is also occasionally used perhaps, not quite accurately to refer to as sham transaction, as for example, when A purports to sell his property to B without intending that his title should cease or pass to B. The fundamental difference between these two classes of transactions is that whereas in the former there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none such, the transferor continuing to retain the title notwithstanding the execution of the transfer deed. It is only in the former class of cases that it would be necessary, when a dispute arises as to whether the person named in the deed is the real transferee or B, to enquire into the question as to who paid the consideration for the transfer, X or B. But in the latter class of cases, when the question is whether the transfer is genuine or sham the. point for decision would be, not who paid the consideration but whether any consideration was paid:' (See Sres Meenakshi Mills Ltd., Maduraj v. Commissioner of Income-tax, Madras AIR 1957 SC 149). 15. This case belongs to the first category, that is, the category in which the transaction was a real and not a sham transaction. 16. To such transactions, section 82 of the Trusts Act, 1882, applies. That section enacts: . "Where property is transferred to-one person for a consideration paid or provided by another person, and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, the transferee must hold the property for the benefit. of the person paying or providing the consideration." In the words of the Privy Council in Bilas Koer v. Deoraj (AIR 1915 PC 96), where it is asserted that art assignment in the name of one person is really for the benefit of another person, the principle applies that ,the trust of the legal estate results to the man who pays the purchase money. 17. It is well-settled that in this sub-continent the English doctrine of advancement does not apply and it must be said in fairness to learned counsel for the defendant that though she was an English lady, yet he did not invoke it. And, as section 82 of the Trusts Act itself provides expressly, the crucial question is whether "such other person did not intend to pay or provide such consideration for the benefit of the transferee": in other words, the real question is always one of intention. If I may say, the true rule as it emerges :rom decided cases was neatly summed up by A.S. Farooqi, J. in Ismail Dada Soomar v. Shorat Banoo (PLD 1960 Karachi 852) as follows:

"The English principle of advancement does not apply to India (also Pakistan) no distinction has been made between the cases of Hindus and Muslims on this question. The doctrine of intended advancement in favour of the wife not being applicable in this country, there would be resulting trust in favour of the husband who provided the purchase money in the absence of proof of contrary intention. The question whether a transfer in the name of the wife for which the consideration was paid by the husband is a Benami transaction or amounts to a gift is always one of intention. And the intention to be determined is of the time when the transaction took place. The question which must be squarely answered is Did the husband intend to make an absolute gift of the property to the wife? In determining the true intention regard must naturally be that is the surrounding circumstance, and the subsequent conduct in so far as it is relevant to the understanding of the plaintiff's intention." 18. The question whether a particular' transaction is benami or not, is largely one of fact and for determining this question no absolute formulae or test, uniformly applicable in all situations, has bean laid down. But, as was held in Muhammad Sajjad Hussain v. Muhammad Anwar Hussain (1991 SCMR 703) in determining the question, the following factors are to be taken into consideration: (i) the source of consideration; (ii) from whose custody the original title deed and other documents came in evidence; (iii) who is in possession of the suit property; and (iv) motive for the Benami transaction. 19. As that great Judge, Mr. Ameer Ali said in AIR 1916 PC 96, of these factors, the most important is the first factor, namely, the source wherefrom the consideration came. This was received legislative recognition in India; there, by the Benami Transactions (Prohibition) Act, 1988. (Act No. 45 of 1988) Benami transactions have been prohibited and to enter into such a transaction has been made an offence. By section 2 thereof, the expression "benami transaction" has been defined to mean "any transaction in which property is transferred to any person for a consideration paid or provided by another person". (For this, I am indebted to the learned counsel for the defendant who has placed before me a copy of the Indian Act No. 45 of 1988). The plaintiff's oral evidence can be shortly dealt with as follows, Mehmood Khan (P.W.1) was a Superintendent of the State Insurance, Company, Lahore. He stated that his company had sold Plot No. 68-II. Gulberg-111, Lahore, to the plaintiff the plaintiff had paid Rs.3,000 through his broker; the remaining sale consideration had been paid earlier. Later, the plaintiff had purchased three policies: for them, payments were made sometimes by the plaintiff and sometimes by his wife. He added that the plot was purchased by the plaintiff in the name of his wife. He had also purchased the plot in Ghalib Market, Gulberg-I1, Lahore: in that plot, his wife's share was one-half. Karam Elahi (P.W.2) was the contractor who had constructed the buildings on both the plots; he said that a sum of Rs.1,78,999.00 was the cost of the construction of the house; this included the cost of the furniture; the whole of it was paid by the plaintiff. On the construction of the shops, the total expenditure was Rs.1,15,000.00, that too was paid by the plaintiff.

Muhammad Akhtar Ahmed (P.W.3) was the Assistant Manager of National Bank of Pakistan, Gulberg-III, Lahore. He produced the statements of the plaintiff's account P.1 and P.2. Syed Fida Hussain (P.W.4) was a neighbour of the plaintiff; he testified to various facts including the visits of Mr. Muhammad Nawaz Kasuri, Advocate to the plaintiffs house. Mashkurul Hassan (P.W.5) was a Clerk of the First City National Bank. He produced the record of the defendant's. correspondence with their London Branch. This is Exh. P.W.5/1. Bashir Ahmed (P.W.6) was a son of the Chowkidar engaged when the house was under construction. Ghulam Nabi (P.W.7) A.S.I. stated with reference to an FIR. dated 16-2-1972. ShaukatAli (P.W.8) of the State Life Insurance Company deposed to some policies held by the defendant. Badar Siddiqi (P.W.9). Manager Lahore American School, Lahore, stated that the defendant was employed as a teacher in their school; she had joined the school on 28-8-1968 and left the school in 197.1-72. Her annual salary, he added, was Rs.21,592, she had received Rs. 3,700 as her salary for the year 1968-69. Muhammad Din (P.W.10) was the maternal uncle of the plaintiff. He testified that he had received Rs.5,400 from the plaintiff's mother; later, he had paid Rs.18,000, for the plaintiff needed money for the construction of his house. Muhammad Shafiq Abbasi (P.W.11), City Inspector, did not say anything relevant to the issue. Mansoor Mehmood Mirza (P.W.12) of the Muslim Commercial Bank deposed to two cheques Exh. P.1 and P.2, one issued by Ch. Abdul Haq and the other issued by Mian Ehsanul Haq for Rs.1,500 and Rs.3,500 respectively; they were in the name of the plaintiff. Muhammad Iqbal (P.W.13) of the National Bank of Pakistan, Lahore, also deposed to the plaintiffs account. Muhammad Jamil (P.W.14) was a tenant of one of the shops; he had obtained it from the plaintiff and had been paying rent to him. Faiz Ahmed Siddiqui (P.W.16) of the Muslim Commercial Bank produced Certificate Exh. P.W.16/1. Munir Hussain Shah (P.W.17) of the State Bank of Pakistan produced the file of a case against the plaintiff. Mian Ehsanul Haq (P.W.2) was a distant cousin of the plaintiff. He testified that the parties had come to Pakistan in 1961 and had stayed with them. They had again come to Pakistan in 1967 or 1968 and had stayed again with them. Later, they constructed their own house in Gulberg and shifted into it. He stated that the properties were those of the plaintiff, for he had been running about in connection with their construction. It was put to him that he had purchased a car from the plaintiff; he denied that fact. Ashraf Ali (P.W.21) of Habib Bank said that the defendant had opened an account with their Bank in March, 1968 and had been operating till April, 1969. 20. The substance of the evidence of the plaintiff, Abdul Hamid (P.W.15) is as follows. He had done his B,Sc. Mathrmatics from F.C. College, Lahore, in 1956. He did his B.Sc. in Electrical Engineering from England in 1969. He was a chartered engineer and his salary (at the date of his statement which was recorded on 4-6-1986) was Rs.50,000. He and the defendant were students in the University of Wales. They were married on 10-1-1959 when the was employed in South Wales Switchgear Ltd. and the defendant too was working in the Company. His father was supporting him in England as student. His father was a commission agent in Burewala. The defendant was receiving education the grant of the County Council. Their daughter was born on 12th October, 1959. His weekly income was between 35 to 40 pounds and his weekly expenditure was about 10 pounds. The defendant started receiving training in his school. Since September, 1960, his salary used to go in the defendant's account. He had worked in different countries such as Iraq, Behrain, East Pakistan, and Libya From May, 1969 onwards, she had transferred her salary to her London account through the Bank of America. He went back to England on 26th November, 1969 to renew his residence status and also to earn money to pay all

the debts which he had incurred in connection with the acquisition of his property. During his stay in England, he had been sending money to Pakistan. In 1970, her mother-in-law came to Pakistan. During that period, the defendant had some difficulties with the tenants. She consulted Mr. Muhammad Nawaz Kasuri, Advocate, whose wife also worked in the American School. As to the purchase of the plots and the construction thereon, he said that the house was completed in December, 1968; the total cost on the construction was one lac seventy or eighty thousand rupees. He had a sum of Rs.76,000.00 remitted to Pakistan through the National Bank of Pakistan, vide bank statements Exhs. P.1 and P.2. He had another sum of Rs.1,20,000.00 transferred from England in 1969. He had also obtained some money from his cousin Mian Ehsanul Haq. He had obtained Rs.8,500 from P.E.I. Company. He was also owner of a garden in Pakistan and his father had a shop in Burewala which he sold in 1976. Besides Rs.5,000 which he obtained from the sale of the car, he had received Rs.23,000.00 from his maternal uncle Muhammad Din. He added that he had lived in the house in dispute till 18th February, 1972. The defendant and Mr. Muhammad Nawaz Kasuri, Advocate, had him arrested on the allegations that he had abducted his own daughter and committed theft. When he was in jail, they took possession of the house; they also removed all his title deeds, etc. Since then, Mr. Muhammad Nawaz Kasuri, Advocate had been living in that house. When he had returned to Pakistan on 18th December, 1971, he had found the defendant Mr. Muhammad Nawaz Kasuri, Advocate in the bed-room; later on 11th January, 1972, he had found them sleeping together. 22. The defendant's witnesses Mst. Firdous-un-Nisa (D.W.1) and Hamid Ali Shah (D.W.2) did not say anything helpful to the defendant, so much so that no reference was made to their testimony. Muhammad Nawaz Kasuri, Advocate (D.W.3) appeared as the defendant's attorney. The purport of his testimony is as follows. The properties. in question had been in the possession of the defendant; they had been purchased and built with the money which the defendant's mother had sent from England by cheques Exh. D.W.3/2 to Exh. D.W.3/16; those cheques found mentioned in the statement of accounts received from the Lloyds Bank vide Exh. D.W.3/17 to Exh. D.W.3/30. The parties had quarrelled over the properties in dispute; they used to meet in his chamber (as an Advocate) to resolve their differences. During this period, the defendant had appointed him (Mr. Muhammad Nawaz Kasuri, Advocate) as his attorney. The plaintiff sold his car to him on 28-12-1971. On 6-1-1972, the defendant informed him that the plaintiff had, with the help of certain persons kidnapped her daughter and removed certain household articles. A writ petition was filed in the High Court and a case was registered. He denied the allegation of adultery made in the plaint against him. In the years 1969 and 1970, the Government of Pakistan had floated the bonus scheme; under that scheme, all foreign remittance earned 60 to 70%

bonus with the result that for one pound, which was worth Rs.13.00 in those days, he received Rs.19.00. The plaintiff had the cheques issued from the defendant's mother in fictitious names and received bonus. The amounts so received by the plaintiff from England were in fact the amounts belonging to the defendant's mother. 23. It is noteworthy that the statement of Mr. Muhammad Nawaz Kasuri, Advocate started ,on 25-5-1987; he remained under cross-examination for a number of days till 26-7-1987, when the defendant's evidence was-closed. Thereafter, the rebuttal evidence of the plaintiff started on 30-1-1988. In that evidence only one witness Mian Ejaz Ahmed, Special Attorney of the plaintiff appeared as P.W.23. He testified to the various amounts which had, from the years 1962 to 1967, been deposited in the defendant's account in England but which were in fact the monies of the plaintiff. He also produced in evidence a letter Exh. P.W.23/1 from the Lloyds Bank, Queens Street, U.K. According to him, the plaintiff had asked for a statement of the account of the defendant but the statement sent by the Bank showed that the account was in the name of the plaintiff. The plaintiff then wrote a letter to the Bank that the correct statement of the account of the defendant should be supplied to him.. 24. It will appear from the plaint that the draftsman was conscious of the importance of the fact that the most important factor in determining the real nature of the transaction in question was the factor of consideration; he did, therefore, try to give some details of the plaintiffs financial position. There can, however, be no doubt that it was sufficient for the plaintiff to say, as he did in para. 2 of the plaint, that it was with his money that the properties were purchased and constructed. The defendant went into great details in her written statement in describing 12 items of sums of money, which were during the period from 12-4-1968 to 2-12-1969, their total being pounds 13053, remitted from England by the defendant's mother, and which sums of money had gone into the account of the plaintiff. Much was tried to be made of the following sentence in the replication of the plaintiff: "It is denied that the mother of the defendant remitted the amount mentioned in the para." This sentence must, in my view, be read in its immediate context, namely, the sentence, which immediately follows it: "The suit properties were purchased by the plaintiff with his own money and the defendant had no means to purchase the properties at the time when the properties were purchased." The combined effect of these two sentences appeared to be that the money, which the plaintiff had received from England, was not the money of the defendant; nor was it the money belonging to the defendant's mother. It should be noticed here that though the defendant had, in para. 1 of the written statement, mentioned the various items of money with the dates, which the defendant's mother had allegedly sent to the plaintiff, yet the cheque numbers of these items were not mentioned.

25. It was the defendant who had pleaded that the sum of pounds 13055 was received by the plaintiff from her mother. Issue No. 3 reflected that para. of the pleading and its onus was upon the defendant. The defendant was content to place on record copies of cheques, Exh. D.W.3/2 to Exh. D.W.3/12; in those cheques, the payees were the National Bank of Pakistan and the Habib Bank of Pakistan. The cheques, Exh. D.W3/13, Exh.D.W3/14 and Exh.D.W.3/15, were in the name of the plaintiff and the cheque Exh.D.W.3/16 was in the name of the Lloyds Bank. 26. Now the admitted position was that the plaintiff was not maintaining an independent account in England. It was not that he had no source of income or had no monies to deposit in banks. He was an electrical engineer and his case was that his income used to go direct to the account of his wife, defendant herein. There was nothing unusual in this arrangement. I understand that this was consistent with the law of England or at least this was the general practice followed by the foreigners living in England. True that during the period from 1962 to 1967, the defendant too had been employed as a teacher and it may well be that her salary also went into her account. The agreed arrangement, according to the defendant, was that the money was transferred from the defendant's account to her mother's account. There was, however, not a speck of evidence to suggest that the parties' intention was that the money should become the money of the defendant's mother. Whatever the arrangement, the money remained that of the plaintiff. It may well be that as the parties were coming to Pakistan with a view to setting here for good, this arrangement was agreed upon, so that as and when necessary, the money could be had from the defendant's mother. No writing from the plaintiff, asking her mother to send her money to the plaintiff on her account, was produced. It was not the defendant's case that the money was her money; nor was there any evidence to that effect. In the absence of any such evidence, the inevitable conclusion must be that the money really belonged to the plaintiff and that was why the defendant's mother had so readily agreed to transfer it to his account in Pakistan. Englishmen and women are known to have a materialistic approach towards life and it is extremely hard to believe that old lady had advanced so much of her savings, at that age of her life, to the plaintiff without any writing from him or without even a written request from the*defendant. The defendant herself was the best witness on the point. The next best witness was her mother. That neither she nor her mother entered into the witness-box must, therefore, raise an adverse inference against the truth of her case. 27. That the money sent by means of these cheques by the defendant's mother was in fact the plaintiffs money seems to me the natural inference to draw from these facts. And to this the presumption that "every negotiable instrument was made or drawn for consideration." (Section 118 of the Negotiable Instruments Act, 1881). ' 28. But any doubt that there might have been was removed by the letter Exh. P.W.23/1 written by the Lloyds Bank to Messrs Weavers & Co., the plaintiff's solicitors, dated 10th February, 1988. This was in reply to the solicitor's letter dated 3rd September, 1987. Exh.P.W.23/8/3. They deserve to be reproduced in full. Exh.P.W.23/8/3, the Weaver & Co. wrote to the Lloyds Bank, P.O. Box 95, 31, Queen Street, Cardiff, requesting confirmation of the following: (a) Confirmation, as previously requested in our letter of 12th Ultimo, that this account was in the name of Jane Margaret Hamid and not Abdul Hamid.

(b) That pounds 3,970, 12s.2d was received from Halifax Building Society on or about 6th September, 1967 from the account of Abdul Hamid (the enclosed copy letter of 3rd February, 1972 from Halifax Building Society refers). (c) Abdul Hamid salaries from Merz and Mekollen, Consulting Engineers, New Castle-Upon-Tyne were paid into the account at your Branch. (d) Sums were transferred from this account to the account of Mrs. V.E. Monte at Lloyds Bank PLC, Blackwood, Gwent. (e) A total of pounds 5,000 (nominal) funding of parent stock was purchased from this account and the certificates were retained to the Bank for safekeeping. (f) This same stock was sold in 1969 and the entire proceeds were forwarded to the account of Mrs. V.E. Monte, at Lloyds Bank PLC., Blackwood, Gwent. By Exh. P.W.23/1, the Lloyds Bank sent the following reply: (a) As previously confirmed, the account was in the name of J.M. Hamid. (b) Pounds 3,970, 12s.2d was received from the Halifax Building Society on the 6th September, 1967. (c) Salaries from Merz Mekollen in the name of Abdul Hamid were paid into the account. (d) Sums were transferred from the account to the account of Mrs. V.E. Monte at Lloyds Bank PLC, Blackwood, Gwent. (e) A total of Pounds 5,000 (nominal) funding 6-1/2% stock was purchased on the 4th September, 1967 and the cost was debited to the account. The Certificates were held for safe keeping. (f) The account was transferred to Blackwood Branch on the 3rd June,1969, before the stock was sold and may I suggest, therefore, that you contact Blackwood Branch for confirmation of the sale. 29. It is to be noted that in some earlier letters, the Lloyds Bank had wrongly informed the plaintiffs solicitors that the amount was in the name of the plaintiff; one of the facts confirmed by the Lloyds Bank by Exh. P.W.23/1 was that the account was in the name of J.M. Hamid (the letter "J.M." stood for Jane Margaret). 30. Thus, the result produced by the two letters, Exh. PW 23/8/3, Exh.PW 23/1 read together was that the plaintiff' had an account with Halifax Building Society; on 6th September, 1967, a sum of Pounds 3,970. 12s.2d was received fron Halifax Building Society from the amount of the plaintiff' into the account of the defendant that the salaries of the plaintiff from Merz and Melellan, Consulting Engineers, were paid into the account of the defendant; that a total of

Pounds 5,000 funding 6-1/2% stock was purchased from this account and the certificates were retained by the Bank for safe-keeping; and that some stock was sold in 1969 and the entire sale proceeds of stock were transferred to the account of the defendant's mother. 31, The plaintiff was truthful enough to admit that of two cars that he brought to Pakistan in 1968, one was in the name of the defendant. He also admitted that the price of Goth the cars had been paid from the defendant's account in England. But it should now be clear that the monies lying in her account in England or at least that they were not exclusively hers, were not her monies. In any case, the price fetched by the defendant's car was paltry sum of Rs.5,000. 32. According to Karam Elahi contractor (P.W.2), the total sum of money expended on the construction of the house and the shops was Rs.2,93,000 the total cost of the land under the house was Rs.27,776 and the total cost of the land under the shops was Rs.55,000. Thus, the total sum of money spent on these properties was Rs.3,75,776. At the rate of 20% per sterling pound the value of pounds 13053 was about Rs.2,62,000. True that in Pakistan, the defendant was earning as a teacher in the American School, but there was no evidence whatever to show that she had put any part of her salary into the properties in question. 33. As was held in Muhammad Sajjad Hussain v. Muhammad Anwar Hussain (1991 SCMR 703), it is well-settled law that: "The initial burden of proof is on the party who alleges that an ostensible owner is a Benamidar for him and that the weakness in the defence evidence would not relieve .a plaintiff from discharging the above burden of proof. However, it may also be stated that the burden of proof may shift from one party to the other during the trial of a suit. Once the burden of proof is shifted from a plaintiff on a defendant and if he fails to discharge the burden of proof so shifted on him, the plaintiff shall succeed." There is a presumption that when a property is purchased by a husband in their name of his wife, or by a father in the name of his son, it is presumed that they are Benamidars and if they claim it as their own by alleging that the husband or the father intended to make a gift of the property to them, the onus rests upon them to establish such a gift (See Controller of Estate Duty v. Aloke Mitra AIR 1981 SC 102). 34. The evidence referred to above was, in my view, overwhelming in character to prove that the money invested in the purchase and construction of the properties in question all came from one source and that was the plaintiff's own source. Learned counsel for the defendant referred to the averment in para. 6 of the plaint that the plaintiff had "made this arrangement in order to provide her a secure living", his contention being that even if the money spent on these properties was the plaintiff's money, he had made a gift of properties to the defendant. The plea that it was her mother's money and in the alternative that it was a gift are mutually destructive; for the basis of the first is in the fact that she owned the property. It is clear that if she owned it, then there was no title in the plaintiff, and the latter had nothing to gift. Be that as it may, these words too should not, in my view, be read divorced from their context. The context, in which those words occur, isas follows:--

"Thereafter the defendant started asserting that she was the owner of bungalow No. 68-I1, Gulberg-II, and joint owner of five shops bearing No. 5/B-1 and B/2. The plaintiff told her that she was a "Benamidar" and he had made this arrangement in order to provide a secure living but the defendant insisted on denying the title of the plaintiff." Read in this context, I cannot think that they lend themselves to the interpretation that the plaintiff had admitted-to have made a gift of these properties to the defendant 35. Learned counsel then referred to the documents Exhs. D4, D9, D10, D17 and D18 in order to show that if, in the circumstances of the case, the burden of proof shifted on to the defendant, that stood sufficiently discharged. Exh. D4 is a letter, dated 19th June, 1971; this letter was written by the plaintiff to Nawa2 Kasuri. In it he complained about the conduct of the defendant's mother namely how she behaved to him when he was living in her house in Blackwood in England. One of the statement of facts in this letter is about the air ticket which has obvious reference to the air ticket of the defendant's mother for her journey to Pakistan. The sentence upon which the defendant's counsel relied was "I feel happier about Jane that she was able to not recover something from the old B to what she was entitled to when her father died." Her father died somewhere in the year 1956 and I can see nothing in this sentence in any way helpful to the defendant. Exh. D9 was a letter dated 3rd October, 1971 from the plaintiff to Nawaz Kasuri. In it, there is a reference to the selling of shops and in that context occurs the sentence: "In fact she owns them". This sentence too, by itself, did not account to an admission that the shops were intended to be the defendant's properties. The letter shows that the plaintiff was, for reasons which had probably something to do with the defendant's conduct, in a very bad state of mind. He said that in his present "helpless state", he was "unable to take any decision. As a matter of fact, I am lost". It is obvious that when a man writes such a thing in that frame of mind, he is not to be taken literally. In Exh. D10 also, the sentence caught at by the appellant's counsel was: "I built the bungalow in her name. Quite a bit of that money was mine and my parents. Half of the shops were built in her name. Most of that money was mine. The stock in her name was my earnings." This letter was dated 25th of October, 1971, and was again from the plaintiff to Nawaz Kasuri. These words rather go to show that the properties were the properties of the plaintiff. There was no mention of the defendant's money or her mother's money having gone into these buildings. Exh. D17 and D18 were powers of attorneys in the name of the defendant. Exh. D17 was dated 19-6-1970 and was executed in England and Exh. D18 was dated 3-5-1971 and was executed in Pakistan. They related to the shops and by them, the plaintiff authorized the defendant to deal with them on his behalf. They too are not evidence of the defendant being the real owner of the properties.

36. 1 can deal with the remaining three factors briefly. As regards the custody of the title deeds, etc. and the possession of the suit property, it was common ground between the parties that they were living together in the house in suit as husband and wife, when the plaintiff left for England on 28-11-1968. The plaintiff had been living in the house in suit and must also have been in possession of the deeds of title. In the circumstances of the case, therefore, nothing turns upon these two factors. 37. The expression "motive" has two distinct but related meanings. Both are used but it is important to realize that these are not the same. In one sense, motive means an emotion prompting an act. In this sense, motive is entirely different from the other sense, namely, intention of purpose. (Lord Hailsham L.C. in Reg. v. Hyam (1975), AC 55, 73). 38. I agree with the learned counsel for the plaintiff that in considering motive, it is important to bear in mind what he described as the "primary facts". They are that the plaintiff is a Muslim; he is a citizen of, and has his roots in, Pakistan. The defendant was an educated lady. She came from England, where they have the system of social security and one is generally not worried about his future. Not unnaturally the instinct to save money and to build property is not as strong in England or in other Western countries as it is in Pakistan where one must need save money for the future. The defendant had come to Pakistan with the plaintiff with a view to settling here but it is a well-known fact of life that these ladies rarely fit in our society, and more often than not they go back to their own countries. It is in evidence that while in Pakistan when she was earning as a school teacher, she had been 'maintaining her on independent account and the circumstances of the case suggest, and suggest strongly, that she had not invested a penny in the properties in question. Viewed in this context the plaintiff could not have intended to pay or provide the consideration for the benefit of the defendant. In other words, his motive and intention could not be that she should be the real owner. 39. For these reasons, I would affirm the finding of fact that the defendant was a mere Benamidar and that the real and true owner of the properties in question was the plaintiff. 40. There remains the question whether the plaintiff is also entitled to the relief of possession. As has been noticed above, the defendant left this country in April or May, 1972 and since then, she has not returned. The contention was that to deny the relief of possession to the plaintiff would amount to allowing Mr. Nawaz Kasuri, a complete stranger, to remain in possession and to enjoy the properties without any right. Learned counsel for the plaintiff thought that the defendant or Mr. Nawaz Kasuri had taken possession of the properties, when there was a restraint order in operation. That restraint order was said to have been maintained in another suit. It is not necessary to go into the question whether the defendant had entered into possession despite such a restrain order. The fact of the matter is that the plaintiff has not been in possession of he properties. There is no question that in view of the declaration of title, to which he has been found to be entitled, he is also entitled to get the possession of the properties. To do complete justice and to save the parties of further litigation, there is power in the Courts to allow the amendment of the plaint at any stage of the suit, (See Mst.. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 Supreme Court 345). To quote what I regard as the classic statement of the law on the subject "the idea must always be a system that gives to every person what is

his". (Kaikaus J. In Imtiaz Ahmad v. Ahmad Ali PLD 1963 SC 382). In case, the relief of possession flows from the main relief of declaration of title and the case squarely falls under section 42 of the Specific Relief Act and section 7, clause rv), (c) of the Court Fees Act. I would,. therefore, allow the plaintiff to amend his plaint, so as to ask for the relief of possession as a consequential relief. 41. Consequently, the appeal is dismissed with costs throughout and the plaintiff is allowed a decree for a declaration that he is the owner of the properties in question; he is also as consequential relief granted a decree for the possession of the properties against the defendant. As the defendant has already left Pakistan, the parties are -left to bear their own costs throughout. AA./J-74/L Appeal dismissed.