Benami transaction | Maxim: Secundum allegata et probata

2020 C L C 1251 [Islamabad]

(a) Benami transaction—
—-Motive—Scope—Motive on part of person who claims to have advanced sale
consideration plays an important role in determining nature of transaction—Principles for determination as to whether transaction was benami, stated.Ghulam Murtaza v. Mst. Asia Bibi PLD 2010 SC 569; Muhammad Zaman v. Sheikh Abdul Hamid 2002 CLC 1209; Abdul Majeed v. Abdul Rasheed PLD 2016 Lah. 383; Ansar Hussain v. Muhammad Karim 2006 CLC 732; Muhammad Riaz Mirza v. Muhammad Yousaf Mirza 2005 YLR 2213 and Muhammad Rafique v. Khalida Shehzadi 2003 CLC 559 rel.
(b) Benami transaction—
—-Title documents—Scope—While seeking declaration that transaction for purchase of property is benami in nature, it is important for plaintiff not just to plead that he in possession of title documents but also to produce same in his evidence. Muhammad Nawaz v. Shahida Perveen PLD 2017 Isl. 375; S.Iqbal Ahmad v. Jawaid Iqbal 2011 CLC 29 and Abdus Samad Khan v. Abdullah 1989 CLC 1563 ref.
(c) Pleadings—
—-Fact not pleaded—Maxim: Secundum allegata et probata—Applicability— Pleadings are treated as foundations of a case specially in civil matters— Fact having not been pleaded cannot be allowed to be taken or agitated at a subsequent stage—Maxim: Secundum allegata et probata (according to what is alleged and proved) can be pressed into service.
(d) Qanun-e-Shahadat (10 of 1984)—
—-Arts.117 & 120—Suit for declaration and injunction—Benami transaction— Proof—Onus to prove—Plaintiffs claimed to be actual owners of house in question as same was purchased by their predecessor-in-interest and asserted that defendant was just a benami owner on their behalf—Trial Court dismissed suit of plaintiffs while defendant sought recovery of possession through an independent suit which was decreed—Validity—Defendant admitted that between year 1989 and 1996, house in question was used to be given on rent by plaintiffs and/or their sons with consent of defendant— Defendant also asserted that after he returned from abroad rent was paid to him, however, he took position that in year 1996 house in question was given on rent without his consent and it was not until 1998 that he filed suit for possession— Defendant contradicted himself by deposing that he along with his family lived in house in question until 1995 whereafter he went abroad and his family moved with plaintiffs—Too many contradictions existed between pleadings and evidence of defendant but weaknesses in his case did not have consequence of decreeing suit of plaintiffs for declaration to the effect that they were beneficial owners of suit property— Initial burden of proof was on party who alleged that an ostensible owner was a benamidar for him— Weaknesses in defense evidence could not relieve plaintiff from discharging burden of proof on him— Plaintiffs were unable to establish that they were in possession of house in question as well as title ocuments— Plaintiffs were unable to prove that their predecessor-in-interest provided funds for purchase of house in question and motive to enter into benami transaction— High Court declined to interfere in quantum of compensation held by Trial Court to be payable to defendant between 1998 until he got possession of house in question as defendant failed to prove that such compensation was in any manner inadequate— Appeal was dismissed in circumstances.

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