Benami transactions: SC not required to decide pleas on basis of mere suspicion: Justice Mazhar

ISLAMABAD: The Supreme Court ruled that in the cases of Benami transactions, the burden of proving whether a particular person is a ‘Benamidar’ is upon the person alleging the same by adducing unimpeachable evidence.

The judgment, authored by Justice Muhammad Ali Mazhar, said the Court is not required to decide such pleas based on mere suspicion. Moreover, the mode and manner of transaction is to be established by corroborating the intentions of the parties at the relevant time which could be congregated from the surrounding circumstances such as the relationship/association of parties, the motive or aspiration implicit in the transactions including the subsequent comportment and the factum of possession of the property and custody of title documents.

According to the facts of the case, the appellants – daughters of late Nasiruddin Ansari, who died in January, 1985, filed a Civil Suit No.739/1993 for declaration of Benami properties and claimed their share of inheritance in the estate of their deceased father.

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The appellants in their Suit entreated declaration that property No. C/35, Block-9, situated at Works Cooperative Housing Society, Gulshan-e-Iqbal, Karachi and House No. A-153, Block-L, North Nazimabad, Karachi, both were owned by their father.

However, their mother Mst. Tahira Begum (respondent No.1) was ostensible owner and she had no title or authority but she sold the Property No. C/35, Block-9, Works Cooperative Housing Society, in November 1992. Whereas the same plea was taken against the Property No. A-153, Block-L, North Nazimabad, Karachi, with the further assertion that their mother had unlawfully gifted the property to her son (Late Rashid Bin Nasir respondent No. 2).

The appellants contended that they were entitled to their share in all the estate of their deceased father but the respondent No. 1 deprived them of their share in the said properties.

The single judge of the Sindh High Court (SHC) decreed the suit after considering all relevant facts and the evidence adduced by the parties in favour of the appellants, but the Divisional Bench of the SHC in appeal upset the findings without any lawful justification. Thus, appeal before the apex court. The main issue before a three-judge bench, headed by Justice Muhammad Ali Mazhar, which heard the case, was whether the mother of the appellants was the ostensible owner and whether the appellants can claim their share on account of inheritance in such properties.

The Court noted that the probe whether the acquisition in the name of the wife by a husband is benami for his own benefit or not, this entirely depends on the intention of the parties at the epoch of buying. The acid test for resolving the character of transactions is obviously the source of funds but it is not always conclusive.

The judgment said even if the properties were purchased through the funds or resources of the deceased husband, then both husband and wife were privy to such arrangements/transactions in their own marital relationship and after passing of several years, the children could not question or challenge the title or ownership of properties in the name of their mother without any cogent proof or trustworthy evidence that she was actually an ostensible owner.

Copyright Business Recorder, 2025