ISLAMABAD: Pakistan Muslim League-Nawaz leader Hanif Abbasi filed in the Supreme Court on Tuesday his submission explaining the term “beneficial interest” in a trust relationship, which had been extensively used during the proceedings of a disqualification case against the Pakistan Tehreek-i-Insaf top leadership.

On Nov 14, a three-judge SC bench headed by Chief Justice Mian Saqib Nisar had reserved its judgement on Mr Abbasi’s petition seeking disqualification of PTI chairman Imran Khan and secretary general Jahangir Tareen over non-disclosure of assets and existence of their offshore companies, as well as running a foreign-aided party.

While closing the proceedings, the court had, however, allowed the petitioner as well as the respondents to submit their arguments in black and white if they wanted to file any.

The three-page submission furnished by senior counsel Mohamamd Akram Sheikh on behalf of the petitioner explained that the beneficial interest under a trust was an interest which could be disposed of by the beneficiary and anything that could be disposed of for value was by definition an asset. Therefore, it said, in the cases of Mr Khan and Mr Tareen, their interest in the trust properties were in the nature of the propriety interest that could be disposed of and constituted as an asset.

Mr Tareen’s counsel Sikander Bashir Mohmand had claimed that his client was not the beneficial owner rather had beneficial interest in offshore company Shiny View Limited and a 12-acre property the trust company owned.

In response, Akram Sheikh referred to the Black’s Law Dictionary and said it explained the beneficial interest as a right or expectancy in a trust or an estate.

“Thus a trust, in terms of law, is always a relationship relating to some property where the legal title is vested in the trustee for the benefit of one or more beneficiaries,” the submission stated, adding that in the English law there was a concept of duality of ownership or “double dominion” and a distinction must be drawn between the legal ownership and the equitable ownership.

This capacity for dual ownership, at law and in equity, is a distinctive feature of English Property Law (Pearce). Therefore, a trust can be a “bare trust” where a trustee holds the property in trust for a single beneficiary. The trustee, in fact, acts under the instructions of the beneficiary.

“Unlike a bare trust which has a single beneficiary, there can also be a “fixed trust” for more than one beneficiary. In both these kinds of trusts, the beneficiary has a definite identifiable, equitable interest in some property,” the petitioner argued.

Explaining further, he said the case of Imran Khan involved a bare trust. On the other hand, he added, there was also a concept of discretionary trust where the beneficiary had an interest in the trust, but there was no commitment on part of the trustee to confer on him the benefit of any defined property.

“It is within the discretion of the trustee as to who, one or more, of the beneficiaries shall have the benefit of the trust property. The distribution of the trust property is at the discretion of the trustee,” the submission said.

Likewise, it added, the case of Jahangir Tareen involved a discretionary trust. “Nevertheless, a beneficiary under a discretionary trust has an “interest” to be considered as a potential recipient of benefit under the trust and a right to have his interest protected by a court of equity. The whole class of beneficial beneficiaries, under a discretionary trust, can call upon the trustee to surrender the property according to the instructions of the beneficiaries,” it said.

Published in Dawn, November 22nd, 2017