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Petitioner: MRS. AIYASHA KORESHI AND Another VS Respondent: HISHMATULLAH, KORESHI AND JUDGMENT
Court Name: Sindh High Court Judge(s): Imdad Ali H. Agha Title:MRS. AIYASHA KORESHI AND Another vs HISHMATULLAH, KORESHI AND
JUDGMENT
Reported As: PLD 1972 Karachi 653 Result: Suit decreed Judgment JUDGMENT This is an administration suit under Order XX, rule 13 of the Code of Civil Procedure brought by widow Aiysha Koreshi and her minor son, aged 9 years, namely Ikramullah Koreshi against the father and mother of the late husband Shafqatullah Koreshi of the plaintiff Aiysha Koreshi who are named Hashma--tullah Koreshi and Mrs. Iqbal Begum Koreshi. 2. The relevant facts are these. Shafqatullah Koreshi who was a Sunni Muslim, died on 22nd February 1970. His death certificate is filed with the plaint and marked as Annexure A-1. He left behind as his heirs his wife Aiysha Koreshi and minor son Ikramullah, plaintiffs Nos. 1 and 2 respectively, as well as his father and mother, Hashmatullah Koreshi and Mrs. 1qba1 Begum Koreshi, the defendants Nos. 1 and 2 respectively. The deceased Shafaqatullah Koreshi left behind considerable properties consisting of Insurance, Provident Fund, Gratuity, part of his salary, N. I. T. Units, Income-tax Bonds, Bank Balance, a house in Defence Housing Society and structure of house No. 535, Garden East, Karachi and some agricultural land which properties, have been detailed in the pleadings of the parties and which shall be referred to in detail at the relevant place later on. There is dispute between the parties as to quite many of them as each party is claiming, according to him or her, his or her own share. There is one more feature in the case as regards the division of the assets between the parties after paying off the liabilities of the deceased propositor and it is that the plaintiffs claim in their plaint that defendant No. 1 Hashmatullah Koreshi, father of the deceased Shafqatullah is a Bahai by religion and Bahai religion is not a Muslim religion, therefore, he is not entitled to any share out of the inheritance of the property of his deceased son. This allegation has been repudiated by Hashmatullah defendant No. 1 and he claims that he is not a
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Bahai but was a Sunni Muslim at the time the inheritance opened as such he cannot be deprived of his share of property left by his deceased son. 3. It is admitted by the counsel for the parties that if all the above heirs were to receive, their shares from the properties of the deceased their shares will be as follows: 4. There is also another feature in the case which needs mention. What is that defendant No. 2, Mrs. Iqbal Begum Koreshi, in her written statement has said that from her share out of Rs. 1,21,750.09 which she is entitled to according to her, as part of her inheritance from her son she gifts 13/24th part of it out of love and affection to her grandson, plaintiff No. 2, Ikramullah Koreshi. So that in distribution of assets this point is to be kept in view. 5. On the pleading of the parties the Court has settled the following issues :- (1) What are the assets of the deceased ? (2) In what manner the assets are to be distributed amongst the legal representatives of the deceased ? (3) Whether the defendant (No. 1) is a Bahai by religion, if so, what is its effect ? (4) Relief ? 6. The plaintiffs have led evidence only of one witness Assandas and no more. On the other side defendant No. 1 Hashmatullah Koreshi has examined himself only and then both the defendants have closed their side. On the joint request by all counsel for the parties, I have examined Official Assignee of this Court Mr. Zahoor Ahmed as a Court witness because he was appointed as Receiver of the properties of the deceased by the Court on 25-9-1970 at a very early stage of the suit even before the framing of issues and he was directed to administer the properties of the deceased and manage these i.e. Both the assets and liabilities of his. He has, accordingly, administered the estate of deceased by now and I will refer to his evidence at relevant place. 7. For convenient sake I will now take up issue No. 1 first which relates to the question whether defendant No. 1 Hashmatullah Koreshi is a Bahai by religion and if so what is its effect ? 8. The defendant No. 1 in his evidence has stated that from 1909 to 1966 he was a member of Bahai community but he disassociated himself from the said community in the year 1966 i.e. Long before the death of his deceased son Shafqatullah who died in 1970 which is the admitted position on all hands. The claim of the defendant No.1 is that Bahai community is not a faith or separate and distinct religion from Islam but it is a sect of Islam. According to him the teachings of holy book of Bahais and those of Quran are not diametrically opposite. However, this may be, the solitary witness of the plaintiffs, namely, Assanand has stated that he was also a Bahai like defendant No. 1, Hashmatullah, but further adds that Hash--matullah was excommunicated from Bahai religion, as he calls it, and, therefore, he has ceased to be a Bahai. He produced the photostat copy of the excommunication declaration of the defendant No. 1 as Exh 6/2 which is clearly to that effect. This document is dated 25th March 1967. Hashmatullah defendant No. 1 also says in his evidence that he did not challenge this document of excommunication at all and has always remained a Muslim. Hashmatullah also recited the Kalma in Court while giving evidence in Court during the proceedings of this suit. Thus, his stand is that he has never ceased to be a Muslim although he was a member of Bahai community for many years' membership of which community he renounced in the year 1966. 9. The learned counsel for the plaintiffs Mr. S. Nasiruddin has stoutly contended that the defendant No.1 Hashmatullah never became a Muslim after being a Bahai which religion is different from Islam and is not a sect of it and if it all he became a Muslim, he embraced Islam only in Court during the proceedings of this suit when he recited the Kalma which is the only prerequisite for a person to become a Muslim as all authorities are agreed on this point. Mr. Nasiruddin referred me to various authoritative books on the question that Bahaism was a separate and distinct religion from Islam and it was not a sect of it. But I feel it is unnecessary to go into this question of fine
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distinction as the only witness of the plaintiffs themselves says that Hashmatullah was excom-- municated from Bahai religion and he ceased to be a Bahai in 1967, according to excommunication document Exh. 6/2 which he has produced himself. If this be so, obviously, then even if it be assumed for argument sake that Bahaism is a separate and distinct religion from Islam then thereafter when the defendant No. 1 was excommunicated from it what religion did be belong to? He was a Muslim before becoming Bahai and after ceasing to be Bahai he would obviously revert to Islam even if Bahaism was a different religion from Islam for argument sake, without of course deciding the question. For becoming a Muslim all authoritative books of Islam are agreed that if a person believes in the unity of God (Allah) and Muhammad (May peace be upon him) to be his prophet and also says that he is a Muslim then he becomes a Muslim and no other formalities or rituals are to be gone through by him. Under the circumstances, therefore, it stands to reason to believe that defendant No.1 Hashmatullah in any event became a Muslim again after being excommunicated from Bahai community or religion. I, therefore, find that defendant No. 1 was a Musalman at the time the inheritance of his deceased son opened and is still a Muslim. Accordingly, I find this issue in the negative. 10. I will now take up the Issue No. 1 regarding as to what are the assets left by the deceased 7 11. The pleadings of the parties, the pious wish of the deceased Shafaqatullah which he has left in writing and is Exh. 10 as well as the evidence of defendant No. 1 Hashmatullah show that the deceased has left the following properties. Insurances and moneys :- (1) Widow-Aiyasha Koreshi 1/6 (2) Son-Ikramullah 13/24 (3) Father-Hishmatullah Koreshi 1/6 (4) Mother---Mrs, Iqbal Begum Koreshi1/6 Total 1 The above list is the list of known assets left by the deceased Shafaqatullah but as the pleadings show there are some more unknown assets also which have been left by the deceased. 12. The exact position of assets and liabilities of the deceased Shafqatullah Koreshi in this case is however, made sufficiently clear in the evidence of the Official Assignee of this Court who was appointed as Receiver by the Court by its order dated 25th September 1970, appearing in the order sheet which is as under : Mr. Syed Nasiruddin, Advocate for the plaintiff. Defendant No. 1 is absent and is out of Pakistan according to the bailiff's report. Mr. Akhtar Mahmood, Advocate for defendant No. 2, this defendant being the wife of defendant No. 1. Mr. Akhtar Mahmood agrees that the Official Assignee may be appointed as Receiver. Therefore, by consent' of Mr. Syed Nasiruddin and Mr. Akhtar Mahmood the Official Assignee is appointed Receiver with the following powers and directions (1) The official Assignee will collect all the amounts including amounts due on the Insurance Policies, due to the estate of the deceased. (ii) The Official Assignee, out of the amounts so collected, shall pay off the loan of the Habib Bank Ltd. If any. (iii) The Official Assignee shall enter into negotiations with the P. I. A. For giving to this Corporation the house is the Defence Housing Society on rent, it being stated before me at the Bar that the P. I. A. Is prepared to take this incomplete house and complete it at its own costs. (iv) Mr. Akhtar Mahmood agrees and undertakes to hand over all the particulars and details of the assets of the deceased which are in possession of defendant No. 2 to the Official Assignee so that the Official Assignee may, with the assistance of these details, recover those assets.th th th th
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2. The above directions shall also apply to the Insurance Policies which had been taken out for the benefit of the minor plaintiff No. 2. All the amounts realized by the Official Assignee shall be kept in a separate account in Habib Bank Ltd. Court Branch. 3. Notice of the application and the suit may be sent again to defendant No. 1 after 30th September 1970, when he is likely to return to Pakistan, according to Mr. Akhtar Mahmood's statement. The above orders has the consent of parties before me. (Sd.) Noorul Arfin, Judge. 13. The second order in respect of the Receiver of this case is also relevant which has been passed with the consent of the parties on 22-2-1971 and it appears in the order-sheet as follows :- "For hearing of 1. Misc. No. 74/71. 2. Misc. 75/71 (Notice waived). 3. Misc. No. 76/71. Mr. S. Nasiruddin, Advocate. Mr. G. M. Qureshl, Advocate. Mr. Akhtar Mahmood, Advocate. Official Assignee in person. The following order is passed with the consent of the parties : (i) Without prejudice to the contentions of each and every party in these proceedings, the Octal Assignee shall have the two houses valued with the assistance of a qualified engineer or architect, namely, house B-7-B, Extension 7th, 11th South Street, Defence Housing Society and house No. 353, Garden East, Pires Street, Karachi. (ii) The Misc. Application No. 75 of 1971, is by consent granted and the Official Assignee is directed to have the house No. 7-B, 11th St. Defence Cooperative Housing Society Ltd. Completed with the moneys in the Court or with him, but he will call for quotations and consult the Advocates of the parties with regard to these quotations. This direction however, is, without prejudice to claims and rights of the parties to these moneys or any, part thereof. (iii) The parties agree that this being an administration suit, its hearing should be expedited. By consent, the case is fixed in Court on 1st March 1971, for framing of issues, filing of documents and admission and denial of documents. On that date, a further date will be given for final hearing. (iv) Mr. Akhtar Mahmood has filed an application on behalf of Dr. Samiullah M: Qureshi requesting that he should be made a party in this case. This will be considered on the final date of hearing. Copies of this application may be supplied to other parties: Adjourned to 1st March 1971. (Sd.) Noorul Arfin. Judge: 14. The Receiver consequent upon the two orders of the Court mentioned above has already entered upon the manage--ment of the estate of the deceased since 6th October 1,70, as he says in his evidence, and has been managing the same since then. He states in his evidence before the Court that he was appointed with a direction to realize the assets of the deceased Shafaqatullah concerned in the suit and administer the same. Accordingly, he realized cash amounting to Rs.' 2,56,264.29. He has prepared such statement of recovery of the assets which he produced and has been marked as' Exh. 11/1. He also said that this amount of cash covers the realization in payment of the two insurance, policies left by the deceased aforesaid with the Eastern Federal Union Insurance Co. Ltd. He further says that he also realized (1) gratuity of the deceased from P. I. A. Amounting to Rs. 22.166.62; (2) Provident Fund in which the nominee was Begum Hasmatullah Koreshi, the mother of the deceased in this suit and the amount was Rs. 81,750.00. He also recovered the arrears of salary and Bonus of the deceased and his leave salary as well all amounting to Rs. 19,753.49. He
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then added that he had also realized group insurance of the deceased from P. I. A., the nominee in which is Ikramullah Koreshi, the minor son of the deceased, and the amount realized is Rs. 60,000.00 The first insurance policy with the Eastern Federal Union Insurance Co. Ltd. Is numbered as 75806, in which the nominee is the mother of the deceased, namely, Mrs. Iqbal Begum Koreshi, defendant No. 2, and the amount realized on it is Ks. 38,894.00 and the second policy is numbered as 314019 of the same company in which the nominee is Ikramullah Koreshi, the minor son of the deceased. And the amount realized thereon is Rs. 25,954.80. The Receiver further said that the deceased bad also left an incomplete bungalow in Defence Housing Society, Karachi which he had taken over for completing its construction as directed by this Court and in this connection he bad submitted a Reference to this Court dated 15-11-1971 but it has not yet come up for hearing. This reference I might state has not been put up along with the case papers by the office and no notice is issued on it as such I am unable to consider it and dispose it of and will do so subsequently. The Receiver then said that he had also made payments of the debits of the deceased which he has mentioned in his statement of account that he produced as Exh. 11/1 and these payments totally amount to Rs. 1,00,816.24. The balance, therefore, available with him now was Rs. 1,55,448.05. He added that he had also in his statement of account given the summary of cash available at the bottom left hand corner of it. Out of this balance with him he had invested rupees one lac in fixed deposit receipt in Habib Bank Ltd., Court Road Branch, Karachi and has kept with himself Rs. 2,583.76 shown as cash in his own hand in Exh. 11/1 for daily administration of the assets of the deceased and also kept with himself in current account of the aforesaid bank Rs. 52,864.27 for completing the construction of the bungalow left by the deceased in the Defence Housing Society as already mentioned by him. Receiver was cross-examined by Mr. S. Nasiruddin, Advocate for the plaintiffs and he has said in his cross-examination that one of the directions by the order of the Court dated 22-2-1971 to the Receiver was to have the two houses of the deceased valued with the assistance of a qualified engineer or architect, namely, the houses are two, one is in Defence Housing Society and the other is in the Garden East under dispute. He then stated that he will file his estimate of valuation within a week after he had given evidence before the Court. By now he has made a Reference on this point to the Court dated 19-2-1972 regarding the evaluation of the said two houses to which I would refer and decide In my findings on issue No. 2, which will be the next issue taken up for decision. Then receiver in his cross-examination by Mr. Munawar Abbas, Advocate, for defendant No. 2, has said that he has paid Rs. 30,000 as dower under the Court's order to plaintiff No. 1 i.e. The widow of the deceased in the suit. He also said that he had paid Rs. 50,000 00 to Habib Bank Ltd. Airport Branch. Karachi which was taken as a loan by the deceased 4n the suit and both these amounts he has mentioned In his statement that he has produced. According to him the loan with, the Habib Bank Ltd. Airport Branch, Karachi, was on the security of the two life insurance policies of the deceased with Eastern Federal Union Insurance Co. Ltd. He also added that an amount of Rs. 6,000 i9 still payable as the balance of the loan left by the deceased which he will pay In due course to the Habib Bank Ltd. Just mentioned as the cash balance of the loan. He then said that he had received a demand notice from the Income-tax Authorities for the payment of the dues which is below Rs. 300 and he could not give the exact figure as he had not brought the demand notice with him when he was giving evidence. The Receiver went on to say in his cross-examination again at the suggestion of Mr. Nasiruddin, Advocate that he (Receiver) was directed by the Court to realize from the Revenue Authorities allotment order of 24 acres of agricultural land in village Shorki, taluka and District Thatta and allotment of 24 acres of agricultural land to the minor son of the deceased, namely, Ikramullah in village Shorki, taluka and District Thatta. He tried his best to receive the above allotment orders of the agricultural land but he received a reply from the concerned authority which he produced as Exh. 11/2 and it says in short that Munshi Mir Khan Jokhio. Tapedar of Mehar of this taluka had reported that the entries
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with regards to the allotment of agricultural land in the name of deceased Captain Koreshi and his minor son 1kramullah do not appear fn the Register of Record of Rights of Deh Shorki. However, perusal of village Form VII of Deh Shorki, shows that 2000 acres of land have been entered in the name of Cooperative Farming Society, Shorki, and the name and the areas held by the respective members of the Society are not entered in the record as such the information sought for cannot possibly be given. According to the Receiver, there was no trace of this Cooperative Farming Society. Shorki, to spite of his best efforts to locate the same. He re4uested that the parties may assist him In this matter, if they so desired. It might be mentioned here that the Receiver had received all the documents of the deceased leis In the possession of his father defendant No. 1 from the latter and according to these papers the Receiver stated that the deceased in the Suit was allotted a plot bearing No. 10 for residential purposes in Darus Salam Cooperative Housing Society, Karachi, for which the deceased had deposited Rs. 2,000 towards the first instalment with the Society. The other demands of the Society in this respect have not been since paid by the deceased and, therefore, the papers showed that the allotment is liable to cancellation. The land, according to the Receiver, was actually the property of the Society and the member is allotted the lease on the completion of structure and on fully having paid the' demand of the Society. He then suggested that it was for the parties in this suit to retain the plot and make deficit payment if they so desire or to have the deposit refunded. The Receiver then added that he had received from the father of the deceased in the suit i.e. Defendant No. 1, a trunk load of documents concerning the assets and liabilities of his deceased son. He also said that on his enquiry about any land left by the deceased with Mahalkari Kohistan, he has received a reply that Deb Kohistan is situated in Thatta District. The deceased Shafqatullah Koreshi does not hold, it shows, any agricultural land in this jurisdiction, it is, therefore, requested that the Deputy Commis--sioner. Dadu may be moved in this connection. The Receiver had then written to the Mahalkari Tando Bola Khan in District Dadu about any land left by the deceased and on his enquiries it has been revealed that there is no land in the name of the deceased and he should contact the Deputy Commissioner. Dadu. On his enquiries from Mahalkari Kohistan, by letter he informed the Receiver that Deb Kohistan is actually situated in District Thatta. Accordingly, the Receiver contacted the, Mahalkari Kohistan and he replied by letter to the Receiver saying that Deb Kohistan as situated in District Thatta. It also states that the deceased in the suit did not hold any land within his jurisdiction in Deh Kohistan. The Receiver lastly said that in the documents that he had received pertaining to the estate of the deceased he did not find any document relating to any land having been left by the deceased in Deh Kohistan. He ended by saying that there was no other document regarding the deceased having left any land anywhere else among the documents that he had been given as mentioned already. 15. This evidence of the Receiver clearly shows that by now he has almost completed the administration and management of the estate of the deceased Shafaqatullah Koreshi and very little remains to be done on his part. The Receiver has also fully accounted for the assets and liabilities of the deceased and I find, therefore, that the deceased Shafqatullah Koreshi has left the assets as described by the Receiver, subject to the fact that the parties in the suit may now further on their own make efforts to find out agricultural land alleged to have been left by the deceased as stated by the Receiver which the later was not able to trace out in spite of best efforts. The Receiver has also stated that for the group insurance policy of the deceased with the P. I. A. The nominee for it was his minor son, Ikramullah, plaintiff No. 2 and the same minor was also a nominee in the Life Policy of Eastern Federal Union Insurance Co. Ltd. No. 314019 on which the Receiver had realised Rs. 25,954.80 already. Regarding the other life policy of the same company No. 75806, he stated the nominee for it was the mother of the deceased i.e. The defendant No. 2 in the case, and on this policy he had realised, as already stated, Rs. 38,894.00 and not Rs. 40,000 as has been claimed by the parties in their pleadings. About the Provident Fund left by the deceased which amounted to Rs.
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81,750.00 the Receiver stated that the nominee for this Provident Fund was the mother of the deceased I e. The defendant No. 2 in the suit. He also stated that he had received the amount covered by the gratuity of the deceased from the P. I. A., his employers. During the course of the arguments Mr. Akhtar Mahmood, Advocate for defendant No. 2 has stated that the deceased has left a pistol .025 bore with 37 bullets which is deposited with Dossel & Co. Arms Dealers, Karazhi and the licence is with his clientess defendant No 2. This pistol and the licence will also, therefore, be taken over by the Receiver for the purpose of administration of the estate of the deceased. 16. This brings me to issue No. 2 which is as to in what manner the assets are to be distributed among the legal representatives of the deceased? Obviously, as already held by me while deciding issue No. 3 I have come to the conclusion that the father of the deceased defendant No. 1 would also be a legal heir to the estate of the deceased and the shares of all parties to the suit have been given by me which is in accordance with the Mohammadan Law in the second paragraph of this judgment above. 17. Regarding this issue the dispute between the parties is about the group insurance policy of Rs. 50,000, two policies of Eastern Federal Union Life Insurance Co. Ltd. Nos. 314019 and 75806, also regarding the Provident Fund left by the deceased as well as lastly on the agricultural land which is said to have been purchased by the deceased in the name of his minor son Ikramullah plaintiff No. 2. The question, there--fore, is whether these assets of the deceased would form part of his estate for the purpose of distribution to the parties in this suit who are the legal heirs of the deceased or not ? 18. I will first take up the question of Provident Fund left by the deceased in his department where he was serving and the case of the parties in their pleadings admittedly is that the mother of the deceased I e. Defendant No. 2 in…
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