ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Suit No.41 of 2019
Date: Order with Signature of Judge
1. For hearing of CMA No. 9729 of 2021.
2. For hearing of CMA No. 250 of 2019.
3. For hearing of CMA No.13058 of 2022.
4. For examination of parties / settlement of issues
28.02.2023
Zahid Hussain, Advocate for Plaintiffs. M/s. Javed Ahmed Qazi and Sadaf Gul, Advocates for Defendants No.1, 3 and 4. Mr. Fawad Saeed, Advocate for Defendant No.6. Defendant No.2- Irfan Ahmed present in person.
The dispute is about the sole Suit Property-Plot No.95/II, Commercial Avenue, Phase-IV, D.H.A., Karachi, in the name of Defendant No.1 (Mst. Zainab) and Mst. Khadija Bai, both shown to be the co-owners in the Official Record of DHA [Defence Housing Authority]. The present dispute is amongst the Family Members of Mst. Zainab widow of Abdul Karim, who is Defendant No.1 and is Mother of Plaintiffs No.1, 2 and Defendant Nos.2, 3, 4 and 5, whereas, Defendant No.6 is the son of Mst. Khadija Bai, whose 50% [fifty percent] ownership share is undisputed.
Arguments heard on Application-CMA No.9729 of 2021 [under Order VII Rule 11 of CPC].
Mr. Javed Ahmed Qazi, Advocate, along with Ms. Sadaf Gul, Advocate, representing the Defendants No.1, 3 and 4, states that the present Suit is barred by law, that is, Article 120 of the Limitation Act, 1908, so also Order VI Rule 4 of CPC, as no particulars have been submitted along with the plaint with regard to the claim. He states that admittedly the Suit Property was purchased on 16.11.1992 in the name of Defendant No.1 and Mst. Khadija Bai, whereas, husband of Defendant No.1, Abdul Karim, passed away on 04.09.2003, but, the Suit is filed on 22.12.2018, that is, after twenty seven years from the date of purchase and is hopelessly time-barred, as Article 120 (ibid) prescribes six (06) years’ time for seeking a declaration. He states that the Defendant No.1 along with the two daughters, Defendants No.4 and 5, are in possession of the Suit Property, as is evident from the earlier Private Complaint No.516 of 2018, filed by Plaintiff No.2 (at page-55). He has cited the Judgment reported in PLD 2010 Supreme Court 569 [Ghulam Murtaza vs. Mst. Asia Bibi and others] – Ghulam Murtaza Case, that for determining the fact about the Benami transaction, a motive is also an important ingredient.
The above line of arguments is seriously opposed by Mr. Zahid Hussain, Advocate, appearing for Plaintiffs, who states that the stance of Defendant No.1 is contradictory, as in her Written Statement, she herself has admitted that she has no source of income and is looked after by Defendant No.3 (Saleem), who is employed in Saudi Arabia and finances the Defendant No.1-Mst. Zainab. It is stated that the Suit Property actually is Benami in the name of Mother/Defendant No.1, admittedly purchased by the late Father from his own funds and after the latter’s demise, it is to be distributed as an inheritance of the Father (Abdul Karim), amongst the Plaintiffs and Defendants No. 1 to 5. To support his contention, he has cited the Case Law reported in 1993 CLC 605 [Miss. Qamar Ali vs. Syed Nadir Ali and others] and 1993 MLD 2539 [Ghulam Muhammad through Legal Heirs vs. Mst. Saban and 3 others].
Mr. Irfan Ahmed, Defendant No.2, who is an Advocate himself, appears in person, while supporting the arguments of Plaintiffs, has relied upon the Case Law reported in 1991 SCMR 703 [Muhammad Sajjad Hussain vs. Muhammad Anwar Hussain].
Plaintiffs and Defendant No.2, for the sake of reference, be referred to as the “Objectors”.
The gist of the Case Law cited by Plaintiffs is that the Suit Property is purchased in the name of wife, then after the death of her husband, it is to be distributed as an inheritance; cause of action will accrue when the title of Plaintiffs is challenged and not before that. This Judgment is cited to augment the arguments that when the Defendant No.1 attempted to dispossess the Plaintiff No.2 from the Suit Property on 26.04.2018, the cause of action accrued and the present Lis is within the prescribed time of Article 120 (ibid), whereas the Case Law, viz. 1991 SCMR 703 [Muhammad Sajjad Hussain vs. Muhammad Anwar Hussain], relied upon by Defendant No.2 (Mr. Irfan Ahmed) is that the Benami transaction has the following ingredients:
(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 suit property; and
(iv) motive for the Benami transaction;
and to prove the above, a full-dress trial is required; thus the Application under consideration is misconceived, which and should be dismissed.
The Case Law cited on behalf of Defendant No.1 and Defendants No.3, 4 and 5 is also considered, in which motive has been explained vis-à-vis Benami transaction. The Hon’ble Supreme Court has made the following observation:
“7. At this juncture, we may clarify that the motive part in the benami transactions is the most important one. A transaction cannot be dubbed as benami simply because one person happened to make payment for or on behalf of the other…”
Defendant No.6, who is son of Mst. Khadija Bai (co-owner of the Suit Property), has filed his Written Statement and reiterated that the Suit Property was purchased by his Father Adam and (late) Abdul Karim from the funds of a Joint Family Business and construction is also done at the Suit Property. Further stated, that the original documents of the Suit Property has been handed over by him to Defendant No.1 in the first week of January, 2018.
The undisputed facts are that the Suit Property was purchased in the name of Defendant No.1 by her husband-Abdul Karim and Mst. Khadija Bai by her husband Adam [as per Paragraph-2 of the Plaint] on 16.11.1992, as both these Gentlemen were Partners in a Business. The Father [Abdul Karim] passed away on 04.09.2003 and the Suit was filed on 22.12.2018.
Consequently, the Suit is barred by Law of Limitation.
Plaint is rejected.
Application is allowed.
All pending Applications are disposed of.
Office to draw up a Decree.
J U D G E