SHC orders transfer of 50-year-old Benami plot to heirs of dead plaintiff

The Sindh High Court has directed Defence Officers Housing Authority (DOHS) officers to transfer an over-50-year-old Benami property to the legal heirs of its actual owner.

The order came recently on a lawsuit of the late Habiba Mehmood and her legal heirs who had approached the court to transfer a 2,000-square-yard plot in DHA in her name. In the official documents, the plot was registered in the name of the late Wing Commander (retd) Syed Mehmood as a Benami property.

A counsel for the late Habiba and her family submitted that she was a private person who was interested in purchasing the plot in early 70s but owing to then policy of the DHA of not transferring and mutating plots to private individuals, she provided funds to Mehmood to purchase the plot for her that came up for sale from the original allottee.

The lawyer submitted that the plaintiff had paid full sale consideration to the attorney of the original allottee of the said plot who, thereafter, filed an affidavit on November 1, 1971 to transfer the said plot in the name of Wing Commander Syed Mehmood who, subsequently addressed a letter on November 3, 1971 to the DOHS setting forth therein that the plaintiff was his successor in respect of the said plot.

The counsel submitted that Mehmood executed a general power of attorney in favour of the plaintiff that was duly registered. The SHC was informed that Mehmood died in 1980s and the DOHS communicated to the plaintiff that the general power of attorney executed in her favour was no more in field on account of the death of its executant, Mehmood.

The lawyer submitted that later, the sons and daughters of Mehmood executed a general power of attorney in favour of their mother Khursheed Mehmood (wife of the late Wing Commander) who through an undertaking and an affidavit requested the DOHS to transfer the said plot in the name of the plaintiff, but that request was also denied and later on Khursheed also died.

After that, the plaintiff tried to contact the defendants, the children of the late wing commander, but they did not respond. The counsel submitted that the plaintiff approached many times the DOHS requesting the transfer of the said plot in her name and wrote various letters in this regard but her efforts did not bear any fruit, but in July 1992, the plaintiff was informed that the transfer/mutation of the plot would only be possible after adjudication of the issue by a competent court of law, after which she filed the suit.

A single bench of the high court headed by Justice Zulfiqar Ahmed Khan observed after perusal of the record of the case that during pendency of the case, the original plaintiff Habiba had died and now one of her legal heirs was contesting the case since 2017.

The high court observed that after perusal of evidence, it had become obvious that the transfer of the said plot in the name of Wing Commander Syed Mehmood was a Benami transaction whilst Habiba remained the actual and ostensible owner of the said plot and owing to the demise of the plaintiff, her legal heirs were the residual owners of the said plot by way of the law of inheritance.

The bench observed that the defendants through their attorney had relinquished their rights in favour of the plaintiff as well as affirmed and declared in the said affidavit that they had no right, title or interest in the said plot and the plaintiff was the lawful owner of the said plot.

The high court observed that the refusal of the DOHS to transfer the said plot in the name of the plaintiff in her life time was unlawful particularly when the defendants through their attorney (mother) had already conveyed through an affidavit their no objection to the transfer of the said plot in the name of the plaintiff or any other person nominated by her. The SHC directed the DOHS to transfer/mutate the said plot in the names of the legal heirs of plaintiff forthwith.