Sunble Zareen Rashid (Plaintiff) VS Muhammad Hanif Khan and Qamarun Nisa Begum (Defendant)

ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Date of hearing 0 8. 1 2. 2 0 0 6 .

Date of Judgment 1 2. 2 0 0 6 .

Plaintiff: Sunble Zareen Rashid through Mr. Mohammad Ashraf Kazi, Advocate.

Defendants: Muhammad Hanif Khan and Qamarun Nisa Begum through Mr. Mehmood Habibullah, Advocate.

J U D G M E N T

MUNIB AHMED KHAN,

J.- The plaintiff has filed this Suit, against her father and mother, stating therein that father, Defendant No.1, was / is a poor man with no proper source of earning and was an unskilled Electrician, earning Rs. 300/400 per month at the relevant time and was living in a Jhuggi in Lines Area. He has ten children in total but all, except one are living with the plaintiff or have been married and due to paucity of funds, children could not get education while the plaintiff got her education till matriculation from Jacoblines Government School, with the help of Scholarship. She also started giving tuition to the children. She got her Intermediate completed from PECHS Girls College and Graduation in 1991. With her efforts she got a Job in PIA as Airhostess on 04.11.1986, where she remained till 1989 and got a job in Saudi Airlines. During PIA working she was getting Rs.15,000/- per month and she shifted entire family of the Defendants from Jhuggi to a House No. 58-A, Block VIII, Karachi Administrative Housing Society, which was acquired as rented house, in the name of Defendant. Although, she had paid the amount but she showed her humbleness and sincerity to her parents and always strived for up lifting standard of the family. In Saudi Airlines, she started getting tax-free salary of S.R. 10,000/- per month, where she worked till 1991. From her saving, she purchased real estate in the name of Defendants and NDFC bearer certificates and prize bonds in her name. She purchased three plots in her name in the year 1991 bearing plots Nos. R-138, R-140, and R141, Sector 8-A, KDA Scheme No.35, for a total consideration of Rs.2,70,000/-. In addition, she also purchased two plots in 1993 bearing Plot No.E-19, in the name of Defendant No.2 and another plot bearing No. E-18 in her name in Pakistan Railways Housing Society, Karachi, for a sum of Rs.2,75,000/-. It has been submitted that Defendants sold out Plot No. E-19, in the year 2002 in Rs.25,00,000/- and misappropriate the said sum, which fact came to her knowledge recently. She has further stated that since 1987 till February 2001, she was paying the house rent, utility bills and education expenses of her brothers and sisters. Since house No.58-A, whereby plaintiff’s family was residing went into Tenancy Litigation, therefore, she contested the said litigation till Hon’ble Supreme Court and at last, the case was decided in her favour, thereafter, the landlord of the house sold out the said house to the plaintiff in Rs.9,00,000/-, which was purchased in the name of Defendant No.2, due to love and affection. While Defendant No.2 executed a registered Irrevocable General Power of Attorney in favour of the plaintiff but all the floors of said house were sold out by Defendant No.2 to different persons. The plaintiff was married on 01.01.1992 to a Officer of District Management Group and she has two children. She is also running a business in the name of “Women Fashion”. The Defendants and their other children, after selling the house No. 58-A, divided, and four younger brothers and sisters preferred to live with the plaintiff. There occurred some differences between the plaintiff and Defendants on the marriage proposal of her younger sister, therefore, two younger sisters living with the Defendants came to the plaintiff and since then the plaintiff is bearing all the expenses, including education expenses, of all the brothers and sisters. Youngest brother Danyal Khan is about 12 years of age and all sisters and brothers are studying in Schools and Colleges. The plaintiff sold out her properties, purchased earlier, as she had to return loans of relations and friends. Since the Defendants, after selling house No. 58-A was living here and there, therefore, the plaintiff gave a sum of Rs.4,00,000/- to her deceased brother Naeem Khan, who purchased house No. L-2814/2, Metrovil-III, Scheme No.33, Gulshan-e-Iqbal, Karachi. The said house also carried HBFC Loan and all original documents were handed over to the plaintiff. She submits that from the above facts, it is apparent that she was the actual owner of all the properties purchased by her including Plot No. E-19, Pakistan Railways Housing Society as well as House No. L-2814/2, Metrovil-III, Scheme No.33, Gulshan-e-Iqbal, Karachi, and that House No. E-19 was sold out by the Defendants illegally, as they were benami holder, therefore, she claims Rs.25,00,000/- as well as for declaration that House No. L-2184/2, is owned by her and not by the Defendant No.1 who is benamidar, therefore, possession of the said house may be granted to the plaintiff and Defendants be directed to mutate the said house in her name and in their failure, the Nazir of this court may be directed to do the needful. She has also prayed for Restraining Orders against the Defendants, during the pendency of the suit, not to aleinate or sell out the said house.

The Defendants in their written Statement have taken the legal points and have challenged the suit on the ground that the plaintiff has no cause of action and that the suit is not maintainable in law. It has further been submitted that even the suit is barred under the injunctions of Islam, as the daughter cannot recover alleged expenditure, incurred by her on her parents. That the suit is barred under the provisions of Specific Relief Act and is also out of jurisdiction of this court, on the issue of pecuniary jurisdiction. On merits, it has been submitted that Defendants have brought up the plaintiff and in that way have spent a huge amount of Rs.1,00,00,000/- and have also provided education. They have further submitted that it is not material, whether the father of the plaintiff was skilled or unskilled electrician but the main thing which is to be seen is that the plaintiff was provided proper education to adjust herself in the Society and all other parental obligations were also discharged by the Defendants and now whatever the status being enjoyed by the plaintiff, is because of upbringing by the Defendants and had the Defendants not allowed the plaintiff to get education then she would not have been in a position to join PIA. They have further submitted that the plaintiff has not done extra ordinary things and since she was cared by the Defendants in her childhood, therefore, after becoming self sufficient, it was plaintiff’s duty to return and provide necessity of life to the Defendants. It has also been contended that the Defendants themselves have changed their life standard and that the plot bearing Nos. E-19 and E-18 in Railway Housing Society were purchased by the deceased son of Defendants. Plot No.E-19 was purchased in the name of Defendant No.2, the mother of the plaintiff, and E-18 was purchased in the name of plaintiff due to love and affection. The said deceased son obtained huge loan and since at the time of his death, loan was outstanding, therefore, Plot No.E-19 was sold out for Rs.15,00,000/-. They have further submitted that marriage of the plaintiff with Mohammad Rashid was solemnized with their consent and all marriage expenses were borne by the Defendant and his deceased son, amounting to Rs.10,00,000/- and that there was no dispute in respect to marriage of other brothers or sisters, as has been alleged by the plaintiff and according to their own, they are residing with the plaintiff and sometimes with the Defendants. They have further submitted that Plot No.E-18, in the name of the plaintiff was purchased by the deceased son of Defendants, therefore, the sale consideration of Rs.16,75,000/-, as admitted by the plaintiff is to be divided according to share of the Defendants. The Defendants have further submitted that house No.L-2814/2, Metrovil-III, Gulshan-e-Iqbal, Karachi has been purchased by Defendant No.1 from his own money and the plaintiff has no right over it. From the above contentions, the court framed the following issues with the consent of the parties:-

Whether the suit as filed is not maintainable?

Whether the plaintiff has the means and financial resources of her own, to purchase the suit properties, in the name of her parents i.e. Defendants Nos. 1 and 2?

Whether the Defendants, hold the properties as ostensible owners and the real owner is the plaintiff?

Who has paid the consideration amount for the suit plots?

What should the decree be?

The evidence was recorded through commission, thereafter the case was fixed for arguments and the learned counsel for the parties have argued on some dates. My issue-wise findings are as follows:

ISSUE NO.1:

The onus to prove this issue lies upon the Defendants but they have failed to submit any law or to satisfy the Court, as to how the suit is not maintainable. Mr. Mehmood Habibullah learned counsel for the defendants has argued that the suit is against the Injunction of Holly Quran, as the plaintiff, being daughter and educated by her parents, the Defendants, has filed the suit against them. He has submitted that the children should not only obey and pay due respect to their parents but should bow-down to their command in all respects until it is contrary to Islamic Injunction. Anyhow, when his attention was invited, as to what will be the effect when due to strange relation, a daughter is claiming her property from her parents, which according to her, have allegedly been kept as Benami in their name then he could not prefer any law on the point nor could satisfy the court in this respect, hence, the issue is decided in negative, as any person, claiming right or title in respect to property, can file suit against the opponent. On the issue of cause of action Mr. Mohammad Ashraf Kazi, learned counsel for the plaintiff has relied on Ghulam Nabi v. Rahmatullah, 1990 S.C.M.R. 1630 AND 1677, Shah Begum v. Ashraf Ali Naz P.L.D. 1993 KAR 151, Abdul Mubin v. M/s Sultan Brothers, 1988 M.L.D 59 – 1207.

ISSUE NOS. 2 TO 4:

Since these issues are related, hence are taken together. The plaintiff through her evidence as well as of her two witnesses, being her sister and brother has tried to establish that at the relevant time, she has finances to purchase some properties. The assertion of the plaintiff to the extent that she has means to purchase some properties is substantiated from the fact that she joined PIA as Airhostess in 1986 and after remaining with it for about three years, she got employment with Saudi Airlines in 1989. According to plaintiff, she was getting SR. 10,000/- in Saudi Airlines while Rs. 15,000/- from PIA. However, the certificate, which has been brought in evidence as Ex. P-1/3 shows that she was getting monthly salary of SR. 3,092/- and SR. 620/- as allowances from Saudi Airlines, while no other allowances have come on record. The plaintiff has filed documents in respect to different properties showing thereby that she purchased certain properties and some times sold them out and she also purchased property in the name of Defendants as Benami. She narrated a long story from 1990 till 2001 during which she purchased and sold various properties and in that way, property bearing No. 58-A, Block VIII, Karachi Administrative Co-operative Housing Society, Karachi was purchased in the name of Defendant No.2, Plot No. E-19 in Railway Society was purchased in the name of Defendant No.2 and House No. L -2814/2, Metrovil-III, Scheme No. 33, Gulshan-e-Iqbal, Karachi in the name of Defendant No.1. According to her, Plot No. A-58, was sold by the Defendants without any intimation or permission, while E-19 was sold out for Rs.25,00,000/- by the Defendants and House No. L-2814/2 is in possession and use of the Defendants.

The cause in the suit has been confined to the relief in respect to Plot No. E-19 and House No. L-2814/2 as she has prayed for grant of Rs.25,00,000/- towards sale proceed of E-19, while declaration in respect of House No. L-2814/2. Although the plaintiff has established to some extent that she could purchase some immovable property, as she did, but there is no documentary proof to establish that plots Nos. E-19 or L-2814/2 were purchased by her. The case of the plaintiff is based on the principle of Benami transaction, as both the above properties for which prayer has been confined in the suit, were purchased in the name of Defendants Nos. 1 and 2. The Defendants, on the other hand, have totally refused to acknowledge the claim of the plaintiff and have submitted that Defendant No.1 was working and earning through out his life and has pulled the cart of eleven children and got them, as well as plaintiff, educated and besides that, their deceased son Naeem Mian, who was out of country for some time purchased property bearing plot No. E-19 for them, while E-18 was purchased by him for the plaintiff, while House No. L-2814/2 was purchased by the Defendant No.1 from his own. The basic issue coming out of the contention of the parties is in respect to Benami transaction and for that very purpose, the court has to consider three basic ingredients, firstly, who had paid the amount, secondly, from whose possession the title documents are coming and lastly who is in possession of the property. In the instant case, although the plaintiff has shown that she had capacity to purchase and has also exhibited some documents in respect to other properties to show the sale and purchase but there is no document produced by the plaintiff to establish that she purchased property No.E-19 or L-2814/2. There is no proof of payment from the plaintiff to the previous owner nor any transaction through bank or intermediary has been shown, hence simple oral evidence cannot be given much weight when the original documents remained with the defendants without any resistance or objection from the plaintiff. The plaintiff herself has admitted that documents of these two properties were remained with the Defendants although she has paid some HBFC installments in respect to L-2814/2 but original documents of the said property were obtained by the defendants from HBFC after paying balance outstanding loans. It has also come on record that both the above properties, physically and constructively, remained in possession of the Defendants with original documents in their hands while plaintiff has failed to discharge the burden in respect to payment for those properties. The witnesses, which the plaintiff has examined, are her brother and sister who are living with her, have not added anything new to the evidence but they have supported the version of the plaintiff, while they have not shown their knowledge in respect to the actual payment nor have denied possession of the Defendants in respect to the above properties. Although no prayer in respect to house No. A-58 KACHS has been made but from the documents, i.e. Sale Agreement and Receipts etc, it is evident that Defendant No.2 has sold out all the portions of the said house to different persons through different Agreement but no instant action was taken, specially, in the circumstances, when the photocopies of these Agreements, starting from March 2002 to October 2002 are coming from the possession of the plaintiff. The plaintiff in the suit, has also tried to establish that her parents had no means to purchase any property and they were very poor and even all their children, except one, are residing with the plaintiff. This aspect cannot strengthen the case of the plaintiff, as burden does not lie upon the Defendants to establish their case and plaintiff cannot take the benefit on the weakness of their defence but has to establish her case on her own footings, in which she has failed, as no original documents of the subject properties have been produced nor possession of the properties remained with her nor any proof of payment has come on record from the side of the plaintiff.

In the circumstances, it is held that it cannot be said that the properties in question were purchased in the name of Defendants Nos. 1 and 2 by the plaintiff through her finance, therefore, the Defendants cannot be considered as ostensible owner.

ISSUE NO.5:

In the light of the above reasoning the suit is dismissed with no order as to costs.

J

U D G E

Samie