6/20/23, 3:20 PM 2005 S C M R 577

2005 S C M R 577
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Rana
Bhagwandas and Muhammad Nawaz Abbasi, JJ
ABDUL MAJEED and others---Appellants
versus
AMIR MUHAMMAD and others ---Respondents
Civil Appeal No.191 of 1999, decided on 16th
September, 2004.
(On appeal from the judgment/order, dated 31-12-
1998 passed by High Court of Balochistan, Quetta in
R.F.A. No.35 of 1998).

(a) Benami transaction---

----Determination of question as to whether transaction
was Benami or not---Factors to be taken into
consideration---Burden of proof---Principles.
For determining the question, whether a transaction is
a Benami transaction or not, inter alia the following
factors are to be taken into consideration:-
(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.
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, 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.
The question whether a transaction is Benami in
character or not has to be decided keeping in view a
number of factors/considerations. The source of
purchase money is not conclusive in favour of the
Benami character of a transaction though it is an
important criterion and that where there are other
circumstances showing that the purchaser intended the
property to belong to the person in whose favour the
conveyance was made, the essence of Benami being
the intention of the purchaser, the Court must give
effect to such an intention. In a Benami transaction the

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actual possession of the property or receipt of rents of

the property is most important.
The question whether a particular sale is Benami or
not, is largely one of fact, and for determining this
question, no absolute formula or acid test uniformally
applicable in all situations, can be laid down.
Following are considerations for deciding the question
of Benami character of a transaction.
(i) It is the duty of the party who raises such plea to
prove such plea by adducing cogent, legal, relevant
and unimpeachable evidence of definitiveness. The
Court is not required to decide this plea on the basis of
suspicions, however, strong they may be.
(ii) That Court is to examine as to who has supplied
the funds for the purchase of property in dispute. If it
is proved that purchase money from some person other
than the person in whose favour the sale is made, that
circumstance, prima facie, would be strong evidence
of the Benami nature of the transaction.
(iii) The character of a transaction is to be
ascertained by determining the intentions of the parties
at the relevant time which are to be gathered from all
the surrounding circumstances i.e. the relationship of
parties, the motives underlying the transactions and
any other subsequent conduct.
(iv) The possession of the property and custody of
title deed.
Muhammad Sajjad Hussain v. Muhammad Anwar
Hussain 1991 SCMR 703; Muhammad Zaman v.
Sheikh Abdul Hamid 2002 CLC 1209 and Din
Muhammad Vagan v. Mst. Rashida Khatoon 2002 CLC
1573 ref.

(b) Benami transaction---

----Burden of proof---If plaintiffs were shown to be
owners of the property on account of Benami
transaction, defendant had to show the source of
payment of amount---Defendant, who was in
Government service had failed to disclose his
income/savings to substantiate that the sale
consideration of the disputed plot was paid by him
exclusively---No material was available on the record
to ascertain as to whether the construction of the house
on the plot was raised by the defendant or jointly by
all the brothers (plaintiffs) after purchase of land---
Held, defendant having failed to discharge the burden
regarding the payment of the consideration of the plot
of land as well as cost, which was incurred on
construction of the house by him, no other conclusion
could be drawn except that it was a joint property, its
consideration was paid by their father and he
purchased it through his elder son (defendant) that was 2/10
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why he did not demand his share from the father and
later on, on his death, other brothers demanded
partition of the land, as such he, dishonestly, raised the
plea of Benami transaction---Defendant, in
circumstances, had failed to establish that the plaintiffs
were not recorded as owners in the mutation entry.

(c) Benami transaction---

----Contention was that defendant had got sanctioned
electricity connection etc, which would have been
disallowed by the concerned Authorities, if he was not
exclusive owner of the property---Held, merely for
such reason, inference could not be drawn in respect of
proprietary/ownership rights of a person over the
property under any principle of law.
Tariq Mehmood, Advocate Supreme Court, S.M.
Wahab, Advocate Supreme Court and M.A. Zaidi,
Advocate-on-Record for Appellants.
Muhammad Munir Piracha, Advocate Supreme
Court and S.A.M. Quadri, Advocate-on-Record
(absent) for Respondent No.1.
Respondent No.2: Ex parte.
Date of hearing: 16th September, 2004.

JUDGMENT
IFTIKHAR MUHAMMAD CHAUDHRY, J.---
Appellants have instituted instant appeal under Article
185(2)(e) of the Constitution of Islamic Republic of
Pakistan against the judgment dated 31st December,
1998 passed by learned Division Bench of the High
Court of Balochistan, Quetta in R.F.A. No.35 of 1998,
whereby the judgment of the Civil Judge 1st Class,
Quetta dated 14th January, 1998, decreeing their suit
has been set aside, as a result whereof suit filed by
them on 5th October, 1995 for partition of the property
in question has been dismissed.
2. Precisely stating the facts necessary for disposal
of instant appeal are that vide Mutation No.259,
attested on 2nd June, 1971, a plot of land measuring 2
rods and 1 pole, situated in Mahal Chashma Habib,
Mouza Habib, Tappa Saddar Kansi, Tehsil and District
Quetta was mutated in favour of appellants (1 and 2)
and the predecessor-in-interest of appellants (3-10) as
well as respondent No.1, as owners which they had
jointly purchased with possession from its previous
owner against sale consideration of Rs.3,796. On 5th
October, 1995, appellants (1 and 2) and predecessor-
in-interest of appellants (3-10) instituted a suit against
respondent No.1 for declaration, possession, partition
and injunction, on the averments that they had jointly
purchased the disputed piece of land and thereafter
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raised construction of 9 Kacha dwelling rooms and a
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Kitchen. The construction was improved in 1993/94,

three 7 type rooms were also constructed by
respondent No.1. they called upon respondent No.1,
who is their real brother, for partitioning of the
property, division of which was possible without
making any structural change but he avoided to accede
to their request, as such they instituted a suit. In the
written statement respondent No.1 resisted the suit,
inter alia, contending that neither the
appellants/plaintiffs nor one of their brothers namely
Pir Muhammad, who had died issueless, are/were the
true and lawful owners of the property as it was only a
Benami transaction and he out of his own resources,
exclusively, purchased the plot in question in the year,
1971 and got it entered in the name of his brothers in
equal shares by way of Benami transaction. He further
explained that at that time he was in Government
service and to please his parents, he got entered the
plot, purchased by him, in the names of his remaining
brothers. In addition to it, they were minors at the
relevant time except Pir Muhammad predecessor-in-
interest of the appellants (3-10) who was also jobless
and had no source of income, whatsoever, etc.
3. Learned trial Court after framing issues, recorded
evidence produced by both the sides, in support of
their respective pleas and ultimately vide judgment
dated 14th January, 1998 decreed the suit. Respondent
No.1 feeling aggrieved from the order/decree of the
trial Court, preferred appeal before the High Court of
Balochistan, Quetta, which has been accepted by
means of impugned judgment, as such instant appeal
has been filed.
4. Learned counsel stated that appellants were
recorded owners of the land in dispute since 2nd June,
1971 vide Mutation (Exh.P.1), which was attested in
presence of respondent No.1 being one of the
purchasers and in the said document appellants (1 and
2) and predecessor-in-interest of appellants (3-10) as
well as late Pir Muhammad one of their brothers, were
not shown as minors, therefore, unless respondent
No.1 had proved his ownership, presumption of being
owner of the disputed property will rest in favour of
appellants. Besides it, oral evidence has also been
produced to substantiate their plea and respondent
No.1 has failed to establish his case, inasmuch as one
of his own witness i.e. Muhammad Ghous (D.W.1) had
admitted certain facts, on the basis of which safe
conclusion can be drawn that it was a joint property.
According to learned counsel no sooner, respondent
No1. raised the plea of Benami transaction, burden has
shifted upon him to prove that he was the sole owner
of the property but he has failed to discharge the
burden, therefore, in view of the law laid down in the
case of Muhammad Sajjad Hussain v. Muhammad

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Anwar Hussain 1991 SCMR 703, the impugned

judgment calls for interference by this Court.
5. On the other hand, learned counsel appearing for
respondent No.1 contended that at the time of purchase
of land in dispute, i.e. 2nd June, 1971,
appellants/plaintiffs as well as late Pir Muhammad
were minors, whereas Wazir Muhammad predecessor-
in-interest of appellants (3-10) was jobless, therefore,
sale consideration was paid by respondent No.1 as he
was in the Government service at that time. According
to him learned High Court after having appreciated the
evidence available on record has rightly concluded that
he is owner of the land in dispute and as far as the
appellants/plaintiffs and late Pir Muhammad are
concerned, they were not owners and on account of
Benami transaction their names were entered in the
Revenue Record. According to him as the learned High
Court, on correct appreciation of evidence, has
accepted his claim, therefore, no interference is called
for.
6. We have heard learned counsel for the parties and
have also gone through the impugned judgment as well
as available record carefully. It is an admitted fact that
as per mutation entries (Exh.P.1) dated 2nd June, 1971,
appellants (1 and 2) and predecessor-in-interest of
appellants (3-10) as well as one of their brothers i.e.
Pir Muhammad (deceased) have been recorded owner
of the open plot of land measuring 2 rods and one
pole. According to him presence of purchaser at the
time of attestation of the mutation is not mandatory in
view of the provision of section 42 of the Land
Revenue Act, which emphasizes upon attendance of
the seller of the property to ensure that he is not be
deprived of his proprietary rights. Moreover, it has
been noted that as per the report of Revenue Officer,
available on Mutation Entry (Exh.P.1), that the
appellants (1 and 2) and predecessor-in-interest of
appellants (3-10) namely Nazir Muhammad and their
late brother Pir Muhammad have not been shown as
minors.
7. The respondent No.1, being a Revenue Officer,
as per his own admission that at the time of purchase
of land, he was Naib Tehsildar in Chamman, could
have got recorded that the plaintiffs and their other
deceased brother were minors at the time of attestation
of mutation entries and in absence thereof,
presumption would be that respondent No.1
consciously got their names incorporated in the
mutation entry as joint owners, having equal share in
the plot of land in dispute, possession of which was
also delivered to all of them through the respondent.
Interestingly, as per available record, father of the
parties namely Agha Muhammad was alive on 2nd
June, 1971 when the mutation (Exh.P.1) was recorded.
If respondent No.1 wanted to please his parents, he
should have purchased the land in dispute in his father 5/10
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s name. Thus, irresistible conclusion would be that as

the appellants/plaintiffs and their two other brothers
had started earning their livelihood, they had jointly
purchased the property in dispute out of their
respective resources.
8. Learned counsel for respondent No.1 persuaded
us to believe that at the time of purchase of plot of
land in dispute, appellants/ plaintiffs were minors as
one of them was of 13 years old, therefore, how was it
possible that they would contribute their shares to
purchase the plot in dispute.
9. On having gone through the evidence of both the
sides, we are not inclined to subscribe to his argument
which is contrary to record. Here the question is not as
to how the appellants/plaintiffs had contributed their
shares because they have successfully established
through evidence that property was purchased by all of
them jointly. But conversely, respondent No.1 took the
plea that it was a Benami transaction, therefore, he
ought to have proved its essential ingredients, which
have been highlighted from time to time in the
precedent law, including the one i.e. judgment in the
case of Muhammad Sajjad Hussain (ibid). Relevant
paras. therefrom for convenience are reproduced
hereinbelow:--
This leads us to the above first submission made by
Mr. Akhtar Mahmud, namely, that since the
respondent had failed to establish sufficient
financial resources as to make payment of
about Rs.42,000 towards the purchase of the
first and second houses the two Courts below
were not justified in decreeing the suit
particularly in view of the statement of P.W.1
Mst. Hanifa Yazdani that the respondent had
told her that he was not in a position to pay
instalments for the two houses, it may be
observed that we have examined the above
contention with reference to the oral and
documentary evidence produced by the parties
in conjunction with the case-law cited by the
parties, namely, the case of Ismail Dada Adam
Soomar v. Shorat Banoo PLD 1960 Kar. 852,
the case of Mv. Md. Abdul Majid and others v.
Md. Jainul Abedin and others PLD 1970 Dacca
414, the case of Dost Muhammad and another
v. Mst. Satan and another PLD 1981 Kar. 339
and the case of Mst. Sardar Khatoon and others
v. Dost Muhammad and another 1988 SCMR
806 (the cases relied upon by Mr. Akhtar
Mahmud), and the case of Akram Moquim
Ansari (represented by heirs) and 3 others v.
Mst. Asghari Begum and another PLD 1971
Kar. 763 referred to by Mr. Muzaffar Ali Khan.
Some of the criteria for determining the
question, whether a transaction is a Benami
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transaction or not, inter alia the following

factors are to be taken into consideration:-
(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.
It is also well-settled law 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 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.
10. Above principles are being followed
consistently. Reference may be made in this behalf to
the cases of Muhammad Zaman v. Sheikh Abdul
Hamid 2002 CLC 1209, Din Muhammad Vagan v.
Mst. Rashida Khatoon 2002 CLC 1573. Relevant para.
from the case of Muhammad Zaman (ibid) is
reproduced hereinbelow, wherein after having referred
to the earlier judgments on the subject, certain facts/
considerations, being relevant for deciding the Benami
transaction were highlighted.
The question whether a transaction is Benami in
character or not has to be decided keeping in
view a number of factors/considerations which
have been re-established through a number of
judicial pronouncements. At first I would refer
to the judgments cited by the petitioner s
learned counsel. In the case of Mst. Muhammad
Bibi, it was laid down that the source of
purchase money is not conclusive in favour of
the Benami character of a transaction though it
is an important criterion and that where there
are other circumstances showing that the
purchaser intended the property to belong to the
person in whose favour the conveyance was
made, the essence of Benami being the
intention of the purchaser, the Court must give
effect to such an intention. It was further held
that in a Benami transaction the actual
possession of the property or receipt of rents of
the property is most important. A similar view
was expressed in the case of Sher Muhammad.
In this case the appellant claimed to have
purchased a house in the name of the
respondent as a Benamidar. He was in
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possession of the disputed property and
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produced the original title deed in the Court.

However, the trial Court and the First Appellate
Court non-suited him on the ground that he was
a tenant or a licensee under the ostensible
owner. The High Court took the view that the
subsequent conduct of the parties and the
evidence was sufficient to lead the Court to an
irresistible conclusion that the respondent was
merely a Benamidar and the appellant was the
real purchaser of the house. In this view of the
matter, the judgments and decrees of the Courts
below were set aside. In the case of Mst. Zohra
Begum it was held that the question whether a
particular sale is Benami or not, is largely one
of fact, and for determining this question, no
absolute formula or acid test uniformally
applicable in all situations can be laid down.
However, in the light of the rules laid down in
the cases of Muhammad Sajjad Hussain v.
Muhammad Anwar Hussain 1991 SCMR 703
and Jane Margrete William v. Abdul Hamid
Mian 1994 CLC 1437, the Court highlighted
four considerations for deciding the question of
Benami character of a transaction. These
considerations are as follows:--
(i) It is the duty of the party who raises such plea to
prove such plea by adducing cogent, legal,
relevant and unimpeachable evidence of
definitiveness. The Court is not required to
decide this plea on the basis of suspicions,
however, strong they may be.
(ii) That Court is to examine as to who has supplied
the funds for the purchase of property in
dispute, it is proved that purchase money from
some person other than the person in whose
favour the sale is made, that circumstance,
prima facie, would be strong evidence of the
Benami nature of the transaction.
(iii) The character of a transaction is to be
ascertained by determining the intentions of the
parties at the relevant time which are to be
gathered from all the surrounding
circumstances i.e. the relationship of parties,
the motives underlying the transactions and any
other subsequent conduct.
(iv) The possession of the property and custody of
title deed.
Testing the case in hand, at the touchstone of the above
factors, we feel no esitation in holding that if
appellants/plaintiffs were shown to be owners on
account of Benami transaction, then the respondent/
defendant has to show the source of payment of
amount, whereas, nothing has come on record to
highlight this aspect of the case because on the one
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hand the respondent claims that he had paid the sale
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consideration in 1971 to the tune of Rs.3,796 at the

time of attestation of mutation entry and
simultaneously his stand is that he had responsibility
to support his parents as well as his brothers, whereas
in 1971, he was in the Government service and he
failed to disclose his income/savings to substantiate
that the sale consideration of the disputed plot was
paid by him exclusively.
11. It is important to note that if it is assumed for
sake of arguments that he had paid the price of land
then obviously there is no material on record to
ascertain as to whether the construction of 9 Kacha
rooms of the house was raised by him or jointly by all
the brothers, after purchase of the land. Contrary to it,
appellants/plaintiffs have not shown themselves to be
owners of the whole of the superstructure, as in the
plaint it is stated that subsequently three 7 type rooms
were constructed by respondent No.1. Therefore,
examining the case from this angle, it can safely be
held that the respondent has failed to discharge the
burden regarding the payment of the consideration of
the plot of land as well as cost, which was incurred on
construction of house by him. Although in the written
statement, mutation of Benami transaction has been
disclosed by the respondent but in the cross-
examination he deposed that his father during his life
time neither demanded his share in the land in dispute
nor in his life time any suit was filed, inasmuch as he
was not aware that Intiqal of the property had been
attested in his name or not. Thus, in view of these
circumstances, no other conclusion can be drawn
except that it was a joint property, probably its
consideration was paid by their father and he
purchased it through his elder son, that is why he did
not demand his share from the respondent and later on,
on his death, other brothers demanded partition of the
land, as such he, dishonestly, raised the plea of Benami
transaction. Thus, it is held that the respondent has
failed to establish that the appellants/plaintiffs were
not recorded as owners in the mutation entry in the
year 1971.
12. It is an admitted fact that mutation entry
(Exh.P.1) has come from the possession of the
appellants/plaintiffs because their names were entered
therein as the owners and the respondent never
objected to the same as evident from the available
record. In this behalf reference may be made to the
statement of Wali Jan (D.W.2) who instead of
advancing the case of respondent made certain
important admissions which can be noticed on having
gone through the same and on the basis whereof it can
be safely held that the plot in dispute and the
construction raised thereon except three 7 type rooms,
are jointly owned by appellants/plaintiffs and
respondent defendant. As far as three 7 type rooms are
concerned, appellants/plaintiffs themselves have 9/10
admitted that he has constructed the same
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subsequently whereas they were living in the Kacha

rooms, construction of which was raised in 1972, after
purchasing the plot. It is uncontroverted fact that till
1985, all the brothers were in joint possession of the
property and perhaps, thereafter, appellants/plaintiffs
wanted to have it partitioned. Subsequently, after the
death of their father, they filed a suit for partition,
therefore, their possession from 1972, when the
construction was raised till 1985, goes to prove that
they were in possession of land as well as Kacha
rooms constructed thereon and throughout this period
they had been enjoying the status of owners of the
property.
13. Learned counsel then contended that the
respondent/defendant got sanctioned electricity
connection etc. which would have been disallowed by
the concerned authorities, if he was not exclusive
owner of the property.
Suffice it to observe that merely for such reason,
inference cannot be drawn in respect of
proprietary/ownership rights of a person over the
property under any principle of law.
Thus, for the foregoing reasons, appeal is allowed,
as a result whereof impugned judgment, dated 31st
December, 1998 is set aside and the judgment/decree
of the trial Court dated 14th January, 1998 is restored.
Parties are left to bear their own costs.
M.B.A./A-122/S Appeal allowed.

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