ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Suit No.902 of 2016

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DATE                  ORDER WITH SIGNATURES OF JUDGE(S)

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1. For hearing of CMA 12446/17

2. For hearing of CMA 6132/17

3. For examination of parties/settlement of issues.

Dated: 03.09.2018

Mr. Raja Basantani for plaintiff.

Mr. Shahid Iqbal for defendants No.1 to 6.

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1)         Rejection of plaint is contemplated by this Order VII rule 11 CPC application on the ground that the plaintiff has no cause of action thus the suit is barred under section 42 of Specific Relief Act, 1877.

By way of background the Court has been informed that the property bearing No.65, Gulshan-e-Iqbal, Karachi, was admittedly purchased in the name of defendant No.1 in the year 1996, however through the funds of plaintiff’s father (husband of defendant No.1) and father of defendants No.2 to 6. Since the death of Malik Khan Bahadur on 21.11.2012, the plaintiff along with defendants has been living in the suit property, which is still the case, however the defendant No.1 by declaration of oral gift transferred the said property in the name of her daughter defendant No.4 Rana Janjua, which transfer stands recorded in the record of defendant No.7 Society also.

Plaintiff is aggrieved of this act of the defendant No.1 and submits that the property in question was a benami property held by the mother and she was not the exclusive undisputed owner, therefore, had no right to gift the same in the name of one of the legal heirs. Learned counsel for the plaintiff agitated the above point and submited that the case requires evidence as to whether defendant No.1 was not a benami owner of the property and the plaint cannot be rejected under order VII rule 11 CPC without appreciating the evidence to be adduced by the parties.

            Heard the counsel and reviewed the material.

            Since a claim of benami ownership of the property has been made by the plaintiff which creates shadow of doubt as to the exclusive ownership of the property in the name of defendant No.1 and questions her competency to gift the said property to defendant No.4. Of other concern is if the case of benami is maintained, right of all legal heirs are also prejudiced by this gift transaction.

In the circumstances at hand, I am inclined to have parties bring  forward their respective evidence so that the Court could be led to just conclusion after framing of issues and recording of evidence rather than rejecting the plaint at this stage, which would be against the interest of justice. (Re: 2016 SCMR 192; 2008 SCMR 1037; 2008 SCMR 913; 2006 SCMR 489). The application is accordingly dismissed.

2/3)     Parties are directed to file their proposed issued on the next date.

                                                                                    J U D G E