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Petitioner: Mst. NASIRA ANSARI and 2 others VS Respondent: Mst. TAHIRA BEGUM and 6 others
Court Name: Sindh High Court Judge(s): Nadeem Azhar Siddiqui Title: Mst. NASIRA ANSARI and 2 others vs Mst. TAHIRA BEGUM and 6 others Case No.: Suit No,739 of 1993 Date of Judgment:2006-08-05 Reported As: 2007 CLC 92 Result: Suit decreed
JUDGMENT
JUDGMENT ' NADEEM AZHAR SIDDIQI, J.--- The plaintiffs have filed this suit for declaration and claim of share of inheritance in the properties left behind by the deceased father. The facts as pleaded in the plaint are that the plaintiffs are daughters of late Nasiruddin Ansari, who did in January, 1985 leaving behind the plaintiffs and the defendants No .1, 2, 3, 3-a and 3-b as his surviving legal heirs. At the time of his death late Nasiruddin Ansari (hereinafter referred to as the deceased) had left following properties:-- (1) House No,3D-28/51, Nazimabad, Karachi measuring 133 square yards. (2) House No,A-153, Block-L, North Nazimabad, Karachi measuring 256 square yards. (3) Plot No,C-35, Block-9, Works Cooperative Housing Society, Gulshan-e-Iqbal, Karachi measuring 600 square yards. (4) Bank balance in two different bank accounts. (5) Jewellary, furniture, household goods and a car in the name of his son Rashid Bin Nasir. (6) Government fund about Rs,40,000. ' It was pleaded in the plaint that after the death of late Nasiruddin Ansari the legal heirs arrived at amicable settlement to the effect that moveable and immovable properties, which stood in the name of late Nasiruddin Ansari, be distributed amongst the legal heirs according to the share of inheritance and the movable and immovable properties purchased by late Nasiruddin Ansari in the name of her wife (defendant No,1) i,e, properties as mentioned above at Serial Nos.2 and 3, household articles, jewellary and a car to be kept intact in the name of the defendant No,1 in order to provide her moral and financial support. It was stated in the plaint that the properties mentioned at Serial Nos.2 and 3 were purchased/financed by the deceased in the name of his wife (defendant
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No,1) as Benami properties out of his own income and that the defendant No,1 had no income of her own to finance and purchase the properties mentioned above at Serial Nos.2 and 3. The plaintiffs further pleaded that very recently due to some differences between the defendants it came to the knowledge of the plaintiffs that the defendant No,1 has disposed of plot mentioned at Serial No,3 above and has handed over the entire sale proceed to his son and has also transferred the property mentioned at Serial No,2 in favour of the defendant No,2, and that the defendants Nos.1 to 3 deprived the plaintiffs from their legal rights in both the properties. The plaintiffs have served a legal notice dated 17-7-1993 asking the defendants to pay their respective shares in the properties mentioned hereinabove. The defendants Nos.1 to 3 replied the said notice and denied the claim of the plaintiffs. After serving of notice some negotiations were held between the plaintiffs and the defendants Nos.1 to 3 through mediation of cousin of the deceased late Nasiruddin Ansari. It was stated in the plaint that during negotiation the defendant No,1 confirmed in presence of witnesses that the properties mentioned at Serial Nos.2 and 3 belong to the deceased and in compliance and paying respect to the oral Will she transferred the house mentioned at Serial No,2 in the name of elder son (defendant No,2) and since she needed money to clear the loan of Finance Corporation in respect of property mentioned above at Serial No,2 and for addition/construction on the first floor of the said house and for other personal need sold out the property mentioned at Serial No,3. The defendant No,1 has also offered Rs,25,000 and two gold bangles to settle the matter. The offer of the defendant No,1 being unjust, the plaintiffs refused and decided to approach the Court. The plaintiffs claim their respective shares in the properties left behind by the deceased. ' After service of notice the defendants Nos.1 and 3 have filed their joint written statement. In their written statement the surviving legal heirs of the deceased have not been disputed. It is stated that the property mentioned at Serial No,1 belonged to the deceased and the properties mentioned at Serial Nos.2 and 3 were the exclusive properties of the defendant No,1 and not of the deceased. The jewellary and other furniture etc. Mentioned above did not belong to the deceased and the same were purchased out of fund of the defendants Nos.2 and 3, who are well-placed in life. It was stated in the written statement that no settlement or compromise was arrived amongst the legal heirs and after the death of deceased succession petition being S.M.A. No,104 of 1985 was filed in the Court for grant of letter of administration in respect of house mentioned above at Serial No,1, which was granted by consent and the value of said house was assessed at Rs,3,00,000 and all the plaintiffs agreed to accept Rs,30,046 as their respective shares in the said house and their shares were paid and they also executed a deed of relinquishment in respect of the said house in favour of the defendant No,3. Succession petition being S.M.A. No,105 of 1998 was also filed and the amount left behind by the deceased in his bank account and his provident fund were distributed amongst the legal heirs as a consequence of which each of the plaintiffs received Rs,33,237.54 from the Nazir of the Court. It was further stated that property mentioned above at Serial No,3 was.Purchased by the defendant No,1 from her own resources and also out of income of the defendants Nos.2 and 3 and the property was sold in order to enable the defendant No,1 to perform Hajj and also to marry her daughter, namely, Mst. Farah Anwar. It was further pleaded that property mentioned above at Serial No,2 belongs to the defendant No,1, which was allotted to her on 21-1- 1960 and the cost of this property was paid by the defendant No,1 out of her own resources, which included her dower money. The property was leased out in favour of defendant No,1 by Karachi Development Authority (K.D.A.) in 1966 and construction was raised after securing loan from House Building Finance Corporation (H.B.F.C.). The entire loan of H.B.F.C. Amounting to Rs,1,08,319 was repaid on 1-2-1987. Service of notice and its reply was not denied, however, negotiation between the parties was denied. ' The defendant No,2 has filed his written statement, wherein he has submitted that property mentioned above at Serial No,1 was in the name of deceased and the petition for obtaining
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succession certificate and letter of administration was filed in respect of shares of plaintiffs in the movable and immovable properties and their shares in the properties were paid to them. Regarding properties mentioned at Serial Nos.2 and 3, defendant No,2 has stated that the property mentioned at Serial No,2 was allotted in favour of defendant No,1 and the cost of this property was paid by the defendant No,1 out of her own saving and prompt dower which she received from her deceased husband as Rs,30,000 in lieu of Rs,11,000 in the year 1960, but construction of this property was raised after mortgaging the plot and securing loan from H.B.F.C. And the house was released and the property was redeemed after full balance payment of Rs,1,08,319 on 1-2-1987. Regarding property mentioned above at Serial No,3, it was stated that the same was allotted to the defendant No,1 in 1970 through her own sources, which she ultimately sold in 1986 for performing Hajj and invested Rs,4,00,000 on the marriage of the plaintiff No,5. Regarding movable properties mentioned above, it was stated that the defendant No,2 is a Graduate Engineer and working in Pakistan Steel Mills since 1975 and much before the death of deceased he was drawing more than double the payment of deceased and the younger brother i,e, defendant No,3 is also in service in Pakistan Steel Mills and all household articles were purchased by the defendant No,1 from the income of defendants Nos.2 and 3. Regarding car, it is stated that same was owned by the defendant No,2, which he later sold. Regarding Government fund, it was stated that the same was covered in succession matter and due shares have also been paid to the plaintiffs. The defendant No,2 further submitted that plot of Works Cooperative Housing Society was purchased by the defendant No,1 from her own savings and residue amount of dower and the income of defendants Nos.2 and 3 and the same was sold. It was further stated that after the grant of succession certificate and letter of administration the plaintiffs received cheques of their shares and executed relinquishment deed in favour of the defendant No,3 and on the same day the defendant No,1 executed gift deed in favour of defendant No,2. It was further stated that the defendant No,2 paid instalment to House Building Finance Corporation in respect of property mentioned above at Serial No,1 and also paid Rs,59,545 as balance dues at the time of redemption in 1986 and the defendant No,1 out of love and affection gifted the said property in favour of defendant No,2. It was also stated that out of the sale proceed of the property mentioned above at Serial No,3, defendant No,1 performed Hajj and invested her Rs,4,00,000 for the marriage of plaintiff No,5 (now plaintiff No,3) and had paid cash amount to the plaintiffs. ' The defendant No,4 has also filed its written statement and has taken plea with regard to the maintainability of the suit. It was stated that the property mentioned above at Serial No,1 was leased out in the name of deceased and subsequently, mutated in the name of defendant No,3 and the property mentioned above at Serial No,2 was allotted in the name of defendant No,1 on 29- 5-1956 and the property mentioned above at Serial No,3 was also allotted in the name of defendant No,1 on 11-2-1970 and lease was executed in her favour on 17-12-1980. It was further stated in the written statement that there is nothing on .Record of the defendant No,4 that the property mentioned above at Serial No,3 was purchased in the name of defendant No,1 as Benami property and that this is a private dispute between the plaintiffs and the defendants Nos.1 to 3. It was further stated that the property mentioned above at Serial No,3 was sold out to one Masoom Khan through a registered sale-deed on 24-6-1989 and plot was accordingly, mutated in the name of purchaser on 29-10-1992, which was subsequently, transferred in the name of Muhammad Abdul Haq and Muhammad Moosa on 29-12-1992. The property mentioned above at Serial No,2 was a leased plot and was transferred in the name of defendant No,2 on 6-11-1988 by way of registered gift. ' From the pleadings of the parties following issues were framed by this Court on 17-9-1995:- (1) Whether the defendant No,1, namely, Mst. Tahira Begum is the lawful owner of the House bearing No,A-153, Block-L, North Nazimabad, Karachi. If not, what is its effect?
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(2) Whether the gift of House bearing No,A-1/5, Block-L, North Nazimabad, Karachi by the defendant No,1 to the defendant No,2 is illegal, unauthorized and of no legal consequences? (3) Whether the defendant No,1 is the lawful and bona fide owner of the property bearing No,C-35, Block-9, Works Cooperative Housing Society, Karachi. If not, what is its effect? (4) Whether the sale of the property bearing No,C/35, Block-9, Works Cooperative Housing Society, Gulshan-e-Iqbal, Karachi by defendant No,1 is illegal, unauthorized and, of no legal effect? (5) What properties, if any, deceased Nasiruddin Ansari had left behind him? (6) Whether all the legal heirs of late Nasiruddin were paid their respective shares out of the estates, properties and assets of deceased Nasiruddin Ansari? (7) Whether the plaintiffs are entitled for any relief, if so, upto what extent? (8) What should the decree be? ' After framing of the issues by order, dated 30-4-1997 Issues Nos.2 and 4 were amended. Thereafter, vide order, dated 31-1-2003 following additional issues were framed:-- (1) Whether the deceased Nasiruddin Ansari was actual, legal and lawful owner of the properties viz. House No,A-153, Block-L, North Nazimabad, Karachi, Plot No,C/35, Block-9, Works Cooperative Housing Society, Gulshan-e-Iqbal, Karachi and other movable and the defendant No,1 was holding the same as Benami till his death? If so, what is its effect? (2) Whether plaintiffs and defendants Nos.1 to 3, after the death of deceased Nasiruddin Ansari, arrived at an oral agreement whereby defendant No,1 was permitted/allotted to be in possession and enjoyment of the above mentioned properties? If so, what is its effect? (3) Whether the suit is barred by law? ' During pendency of suit the defendant No,2 filed C.M.A. No,1593 of 2000 under Order VII, rule 11, C.P.C. Which is still pending. After filing of this application issues with regard to maintainability of suit were framed and I will deal the pleas raised in the said application while dealing Issue No,3 above. ' The plaintiff has examined herself and has produced documents from Exhs.P.1/1 to 1/7 respectively. On the other hand, defendant No,1 has examined herself and has produced documents from Exhs.2/1 to 2/2 respectively. The defendant No,2 has examined himself and has produced documents from Exhs.3/1 to 3/18 respectively. ' My findings on the above issues are as under:-- Issue No,3 from additional issues ' I first deal Issue No,3 from the additional issues framed on 31-1-2003 as the maintainability of suit is dependent upon the findings of this issue. Mr. Shahenshah Hussain, learned counsel for the defendants Nos.1 and 3 has submitted that the suit filed by the plaintiffs is barred by limitation. He submits that the gift in respect of House No,A-153, Block-L, North Nazimabad, Karachi was executed by the defendant No,1 on 25-5-1987 and the plot of Works Cooperative Society was sold in 1986 and the suit is barred by Article 120 of the Schedule-I of the Limitation Act. He has submitted that the limitation was started from the day when the letter of administration was filed in respect of the properties of deceased and the properties subject-matter of this suit were omitted. Mr. Faiq Hussain supported the arguments of Mr. Shahenshah Hussain and had submitted that the limitation starts running the moment late Nasiruddin Ansari expired and the properties left by him was devolved into the legal heirs. ' On the other hand, Mr. Aminuddin Ansari, learned counsel for the plaintiffs submits that the limitation starts from the moment plaintiffs came to know about the fraudulent transfer of the two properties. He further submits that since the plaintiffs are claiming right of inheritance, which is a continuous right the suit is not barred by limitation. ' I have considered the submissions of the learned counsel for the plaintiffs. ' Article 120 of the Limitation Act, reads as under:-- {{TABLE}}
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Description of suit Period of Time from which limitation period begins to run 120 Suit for which no Six years When the right to period of limitation sue accrues. Is provided elsewhere in this schedule {{TABLE}} ' The above article provides that the time begin to run from the day when the right to sue accrues. Since the plaintiffs claim that the properties belong to the deceased and till such time this was not disputed by the defendants Nos.1 to 3, the time was not begun to run. In the instant case, the time for filing the suit starts on the day when the right in respect of which the declaration is sought is denied or challenged by the defendants Nos.1 to 3. It has come on record that when both properties were disposed of the plaintiffs were not aware. In the plaint it was specifically pleaded that cause of action was arisen in July, 1993 when the sale of. Plot Na.C-35, Block-9, Works Cooperative Society and transfer of House No,A-135, Block-L, North Nazimabad, Karachi were known to the plaintiffs. There is no specific denial or proof submitted by the defendants Nos.1 to 3 that the plaintiffs were aware about the transfer of above properties. In her cross-examination, defendant No,1 admits that she did not disclose the sale of plot of Works Cooperative Housing Society and the gift of North Nazimabad's house to any daughters. ' Furthermore, the plaintiffs have filed the suit for their shares in the properties left by their deceased father and had pleaded that there was a settlement between the legal heirs that the properties in the name of deceased be distributed and the properties in the name of defendant No,1 be kept intact in the name of defendant No, 1. The settlement is proved from the contents of cross-examination of the plaintiff conducted by Mr. Faiq Hussain, learned counsel for the defendant No,2. The relevant portion of cross-examination is reproduced below:-- "The settlement in respect of other properties was arrived at before filing of S.M.A. I do not know whether the settlement in respect of other properties was brought to the knowledge of two Advocates, who were appearing in the S.M.As." "It is correct that the suit was filed as there was violation of the settlement by the defendant No,1 as she sold the plot of Works Cooperative Housing Society and gifted House No,A-153, Block-L, North Nazimabad, Karachi." ' From the above cross-examination, it is established that there was some settlement between the parties regarding the properties in dispute. If no settlement was in existence there was no occasion to put such question to the plaintiff No,1. By putting such question the learned counsel admitted that there was some settlement between the parties. ' Article 120 of the Limitation Act provides that the time will begin to run when the right to sue accrues. The words "right to sue" have been considered in various judgments and it was held that the same depend upon the circumstances of the particular case and that it means right to seek relief, that is, a right to prosecute by law, and to obtain relief by means of legal proceedings. In this case, right to sue accrues on the day when the plaintiffs came to know about the transfer of the properties in July, 1993 and the suit has been filed within the period allowed by law. ' The other aspect of the case is that it was claimed that theb defendant No,1 was not the owner of the property and was only al Benamidar and was not authorized to transfer the properties and the right to sue accrues only when the transfer of the properties by the defendant No,1 came to the knowledge of the plaintiffs, I, therefore, hold that the suit is not barred by Limitation Act. ' The other point argued by Mr. Shahenshah Hussain is that the case is hit by principle of res judicata and by estoppel. Mr. Faiq Hussain has adopted the submissions of Mr. Shahenshah Hussain and submits that once the plaintiffs failed to file objection in the earlier petition they are estopped from claiming the properties as the properties of deceased. ' Mr. Aminuddin Ansari submits that there was no adjudication with respect to disputed properties and the plaintiffs never accepted the defendant No,1 as true owner and principle of estoppel is not
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applicable. ' Mr. Shahenshah Hussain submits that when the petition for obtaining letter of administration and succession certificate were filed the properties in the name of defendant No,1 was excluded and the plaintiffs have accepted the exclusive right of the defendant No, 1. Mr. Aminuddin Ansari submits that the properties were in the name of defendant No,1 and cannot be included in the petition for letter of administration filed in respect of the property, which was in the name of deceased. ' I have considered the submissions of the learned counsel. The principle of res judicata is only applicable when the matter in controversy has been adjudicated and finally decided between the parties. Admittedly, the two properties were not subject-matter of earlier S.M.As. And there was no adjudication. Therefore, the suit is not hit by the principle of res judicata. ' The other point is estoppel. From the evidence it is clear that the defendants failed to prove that the plaintiffs have accepted the title of the defendant No,1 on the disputed properties. The plaintiffs pleaded a settlement, which find support from the questions asked by Mr. Faiq Hussain, learned counsel for the plaintiff No,1 during her cross-examination. ' Article 114 of Qanun-e-Shahadat Order, 1984 provides that when one person has by its declaration, act, or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative are allowed in any suit or proceedings between the parties to deny the truth of that thing. This is not the case of defendants Nos.1 to 3 that the properties are Benami in the name of defendant No,1 and the plaintiffs have accepted the defendant No,1 as the exclusive owner of two disputed properties, unless the defendants pleaded and proved such facts they cannot seek protection under Article 114 of Qanun-e-Shahadat Order, 1984. The suit is not hit by Estoppel. ' Regarding the contention of Mr. Shahenshah Hussain that the suit is barred by section 70 of Cooperative Societies Act, 1925 and Article 131 of President Order, 1957, the plaintiffs in para.15 have nleaded that notice was served upon defendant No,4 (K.D.A.). In its written statement the defendant No,4 denied service of notice. The plaintiffs filed photocopy of notice sent to K.D.A., but failed to prove that notice was served upon K.D.A. The defendant No,4 K.D.A. Also denied receipt of such notice. Similar is the position of service of notice upon defendant No,5. In the plaint the plaintiffs have not pleaded that notice was served upon the defendant No,5. The effect is that the suit is not maintainable against the defendants Nos.4 and 5 for want of notice. G However, the suit is maintainable against other defendants. The plaintiffs have also not claimed any relief from the defendants Nos.4 and 5 and they appear to be pro forma defendants. I hold that the suit is not maintainable for want of notice against the defendants Nos.4 and 5. Issue No,1 from additional issues and Issues Nos.1 and 3 from issues ' Since all these issues are interconnected, therefore, I will deal the same together. It is an admitted position that the properties were purchased in the name of defendant No,1, who is the recorded owner of the properties and it is the plaintiffs, who are pleading that the properties were purchased in the name of defendant No,1 by the deceased Nasiruddin Ansari, as such, the burden is upon the plaintiffs to prove these issues. The plaintiffs in the plaint as well as in the affidavit-inevidence has pleaded that the above mentioned properties were purchased by the deceased as Benami in the name of defendant No,1, who has no independent source of income to finance and purchase of the above properties. The claim of the defendant No,1 is that she has purchased these properties from her own resources, which included her dower money. The defendant No,2 in his written statement has pleaded that the properties were purchased by the defendant No,1 from her own resources including dower amount, which was paid by the deceased to the defendant No, 1. The defendant No,2 further pleaded that instead of dower amount of Rs,11,000 the deceased had paid Rs,30,000 to the defendant No, 1. The defendant No,1 in her cross-examination has admitted that the ground
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floor of the house was constructed exclusively by the deceased and Rs,35,000 was spent on construction and that she received the house of North Nazimabad in place of her Mehar. The defendant No,1 also states in her cross-examination that it was the desire and Will of her husband to gift house of North Nazimabad to elder son (defendant No,2) and house of Nazimabad to younger son (defendant No,3). The above evidence of defendant No,1 with regard to desire and Will of deceased was confirmed by defendant No,2 in his cross-examination. ' From above these admissions by the defendants in their respective written statements and evidence it is established that a considerable amount was provided by the deceased to the defendant No,1 for purchase of the above two properties. By these admissions the burden of plaintiffs is discharged to the extent that the properties were purchased by the defendant No,1 from the funds provided by the deceased. Now it has to be seen whether the defendants have proved that the deceased has given the amount of dower to the defendant No,1 and in lieu of her dower of Rs,11,000 the deceased has paid an amount of Rs,30,000. The plaintiff No,1 was subjected to very lengthy cross-examination, but her contention that above two properties were purchased from the finance of the deceased has not been rebutted and the same is remained…
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