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Petitioner: ZAHIDA KHANUM and another VS Respondent: RIFATULLAH KHAN and another
Court Name: Sindh High Court Judge(s): k.A Ghani Title: ZAHIDA KHANUM and another vs RIFATULLAH KHAN and another Case No.: Suit No, 634 of 1977 Date of Judgment:1955-01-09 Reported As: 1986 MLD 1462 Result: Order accordingly
JUDGMENT
JUDGMENT ' The plaintiffs have brought the above suit for declaration, partition and rendition of accounts praying therein for judgment and decree against the defendant No,1 as follows:- "(a) It be kindly declared that the plaintiffs are the co-onwers alongwith the defendants in the property namely Lodhi Mansion situated at A.M. 27/1, Artillery Maidan No,1, Karachi and also in the running business concern under the name and style of 'NEAR EAST WATCH COMPANY' with its business address at Mandviwala Building, 124/9, M.A. Jinnah Road, near Denso Hall, Karachi. (b) The abovementioned property and business and their accretions may kindly be partitioned among the plaintiffs and the defendants according to their respective shares. (c) The defendant No,1 be kindly directed to render a true and faithful account in respect of incomes, profits and accretions of the above-mentioned property and business, wherever applied and in whatever form, and the amounts coming to the shares of the plaintiffs may kindly be paid to them. (d) Full cost of the proceedings may kindly be granted to the plaintiffs." ' It may be mentioned here that the plaintiffs and the defendant No,2 are the daughters and the defendant No,l is the son of Haji Fiqhatullah Khan Lodhi and his wife Mst. Tayyaba Khanum, both of whom have expired. Mst. Tayyaba Khanum died on 16-10-1969 and Haji Fiqhatullah Khan Lodhi died thereafter on 16-12-1974. 2. According to the plaintiffs Mst. Tayyaba Khanum was the owner of the following properties: (i) The building 'popularly known as 'Lodhi Mansion' situated on Plot No, A.M. 27/1, Artillery Maidan No,1, Karachi. (ii) The running business concern known as "Near East Watch Company" with its business premises at.Mandviwala Building 124/9, M.A. Jinnah Road, Karachi. ' After the death of Mst. Tayyaba Khanum her abovementioned properties devolved upon her heirs, namely, her husband (now deceased Haji Fiqhatullah Khan Lodhi) and her children, who are the parties to the suit.
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According to the plaintiff Haji Fiqhatullah Khan Lodhi during his lifetime transferred the shares inherited by him on the death of his wife Mst. Tyyaba Khanum in the assets to Mst. Salika Khanum, the defendant No,2 by oral gift according to Muslim law and her name was also mutated in the Records of Rights and as such the parties to the suit are the co-owners of the said assets and properties in the following proportions: - (i) Plaintiff No,1, Zahida Khanum - 15$6 (ii) Plaintiff No,2, Tasneem Khanum - 15% (iii) Defendant No,1, Rifatullah Khan - 30% (iv) Defendant No,2, Salika Khanum - 40% ' It is further pleaded that after the death of Mst. Tayyaba Khanum and Haji Fiqhatullah Khan Lodhi, the defendant No,1 took the management of the properties mentioned above on his own behalf as well as on behalf of the plaintiffs and the defendant No,2, the co-owners and that having noted instances of gross misconduct on the part of the defendant No,1 and apprehending that he has committed misappropriation of the income from the immovable property as well as of the assets of the business and further finding that the defendant No,1 through earlier was representing that in the abovementioned business concern he was a legal heir of the owner, namely, late Mst. Tayyaba Khanum is now setting up a false title declaring herself as its sole proprietor served notice, dated 11-11-1976 on him calling upon him inter alia to stop managing affairs of the properties and business and also to render true account in respect of the same to the plaintiffs. Public notices were also issued by the plantiffs in the newspapers warning the members of general public against dealing with the joint property without the express consent of the plaintiffs. The plaintiffs, however, on the plea that the defendant No,1 was fraudulently claiming himself to be the proprietor of the said business concern and the sole owner/landlord of the immovable property filed the present suit in which the reliefs reproduced above have been claimed. 3. The defendant No,1 filed the written statement in which the relationship of the parties was not denied. It was, however, denied that late Mst. Tayyaba Khanum was the owner of running business known as "Near East Watch Company". It was also asserted that the rent receipts in respect of the shop premises were issued in the name of Shoukat All (consanguine brother of the parties) by the landlords, Mandviwalla Estate Ltd., According to the defendant No,1 rent was paid for the period in the name of Shoukat Ali from 1950 to July, 1976 and, thereafter the defendant No,1 has been depositing the rent in Court since August, 1976. ' It was further pleaded that the abovementioned business concern was by oral gift transferred by his parents (Haji Fiqhatullah Khan Lodhi and Mst. Tayyaba Khanum) to the defendant No,1 in 1956 and that he has been paying the income-tax in respect of the said business in his capacity as the sole proprietor of the said business since 1970-71. ' As regards the immovable property, Lodhi Mansion, it was pleaded by the defendant No,1 in his written statement that the said building originally belonged to Mst. Tayyaba Khanum and after her death the defendant No,1 has already paid the respective shares to the plaintiffs and defendant No,2. It was further pleaded that out of about 12 flats, Flat No,3 of the said building is in the possession of plaintiff No,1 and the Flat No,12 is in occupation of the plaintiff No,2 and that they are neither paying any rent nor the electricity charges in respect of the said two flats and that the value and goodwill of the said two flats is more than the value and/or the price of the said Lodhi Mansion as well as the alleged respective shares of the plaintiffs in the said building, that the defendant No,1 has been paying the taxes to the Government and K.M.C. And that some amount has been spent on maintenance of the said building and thus he has made no substantial benefit from the said rental income from the said building. It is also pleaded that the suit has been false mala fidely though the plaintiffs know very well that they have no legal right, claim or interest in the disputed immovable property or in the- disputed business and that no such claim was made during the life of their deceased father Haji Fiqhatullah Khan Lodhi. ' In the written statement plea was also taken that no gift was made by Haji Fiqhatullah Khan Lodhi of the shaes inherited by him in the building to the defendant No,2 as was alleged by the plaintiffs in the plaint. 4. The defendant No,2 though served did not file any written statement and is absent and chose to remain absent. The case against her has proceeded ex parte.s
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5. On the pleadings of the parties the following issues were framed:- "(1) Whether the plaintiffs are the co-owners of the properties including the running business in suit alongwith the defendants. If so, what is the extent of their respective entitlements? ' Whether the defendant No,1 is liable to render account to the other parties? ' Whether the defendant Nb. 1 has misappropriated the corpus and income of the suit properties? ' Whether the suit business and properties are liable to be partitioned, and if so, in what manner? ' Whether the suit is under valued? ' Whether the plaint does not disclose any cause of action against the defendant No,1? ' What should the order be? ' On behalf of the plaintiffs was examined Mst. Tasneem Khanum, the plaintiff No,2 as P.W.1 (Exfi. 5). The defendant No,1 examined himself as D.W.1 (Exh. 6) and also produced two witnesses, namely, Saghir Ali, D.W.2 (Exh. 7) and Sabz All Khan, D.W. 3 (Exh. 8). 6. My findings on issues reproduced above with reasons are as follows: - Findings issue -No. I.The parties to the suit are co-owner in Lodhi mansion as well as Near East Watch Co. withshares as given hereinafter. Issue No.2 Issue No. 3In the affirmative and directions for rendition of accounts have been given. Issue No. 4Findings anddirections given as follows: Issue No. 5Not pressed. Issue No.6In theaffirmative Issue No.7As per findings given hereinafter. 7. The learned Advocates appearing for the parties agree that the only properties which are subject-matter of the suit are:- ' The building popularly known as Lodhi Mansion situated on Plot No, AM-27/J, Artillery Maidan No, 1, Karachi. ' The running business concern under the name and style of "Near East Watch Company" with its business premises at ' Mandviwalla Building, 124/9, M.A. Jinnah Road, near Denso Hall, Karachi. 8. I would first take up the dispute as to the ownership/shares of the parties in the property described at item No, (i) above. This property hereinafter would be referred as Lodhi Mansion. (i) The aforementioned immovable property (Lodhi Mansion) belonged to Mst. Tayyaba Khanum who expired on 16-10-1969 leaving behind the following heirs who invited shares in it as mentioned below according to the Sunni Muslim Law by which they are governed:- "(1)Haji Fiqhatullah Khan Lodhi(Husband) 25% (2) Zahida Khanum (Daughter) 15% (3) Tasneem Khanum (Daughter) 15% (4) Rifatullah Khan (son) 30% (5) Salika Khanum (Daughter) 15% Total: 100%" ' Haji Fighatullah Khan Lodhi transferred the share inherited by him in the aforementioned Lodhi Mansion to his daughter Mst. Salika Khanum (defendant) No,2 by oral gift on 18th May, 1973. ' On an application subsequently made by Haji Fiqhatullah Khan Lodhi for mutation of-the name of the defendant No,2 as the transferee of his share in Lodhi Mansion, by gift completed by acceptance and delivery of
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possession, the concerned revenue authority ordered mutation of the name of the donee (the defendant No,2) in place of the name of the abovenamed donor. The gift thus made was not disputed by any of the parties in suit or their Advocates who appeared before me. Indeed the defendant in his cross-examination admitted the gift made by Haji Fiqhatullah Khan Lodhi in favour of the defendant No,2. He, however, stated that the gift could not have been made as it was in excess of 1/3rd of the share owned by Haji Fiqhatullah Khan, which plea on the face of it is misconceived as there is no restriction in law on the powers of a person to transfer his property in any manner he likes by gift during his lifetime to any person. ' It may also be mentioned here that at the time of the arguments the learned counsel for the defendant No,1 did not dispute the validity of the gift made by Haji Fiqhatullah Khan Lodhi .In favour of the defendant No,2 of his share, inherited by him on the death of his wife Mst. Tayyaba Khanum as aforementioned. ' Before concluding as to who are owners of the property known as Lodhi Mansion and their respective shares therein, I would like to deal with the plea taken in written statement in para. 18 by the defendant No,1 claiming himself to be the sole owner of Lodhi Mansion. ' It was pleaded by him:- "...That the said building originally belonged to the deceased mother Mst. Tayyaba Khanum and after her death, the defendant No,1 has already paid the respective shares of the plaintiffs and the defendant No,2." ' He further stated that he has been collecting the rent from the said building since very long and that the defendant No,2 who is living in the rented premises with the defendant No,1 is being maintained by him from his own income. ' It was also stated in the said para. That the plaintiff No,1 got the property No, G-4 of Plot No, 46 WO-C-1, Karachi (reference apparently was to the gift of the shop (property No, G-4) made by Haji Fiqhatullah Khan Lodhi in favour of the plaintiff No,1 on 18th May, 1973 consequent to which the application was made on 20th June, 1973 (Exh. 6/113) for mutation her name as the donee in the Record-of- Rights. ' I have considered the above plea and am of the view that this claim of the defendant No,1 is false and cannot be accepted for the reasons discussed below: (i) It is admitted by the defendant No,1 that the building, Lodhi Mansion, belonged to Mst. Tayyaba Khanum (mother of the parties) who at the time of her death on 16-10-1969 left behind her the parties to the suit besides her husband Haji Fiqhatullah Khan Lodhi. (ii) Haji Fiqhatullah Khan Lodhi subsequently transferred the share inherited by him as discussed above to the defendant No,2 Salika Khanum on 18th May, 1973 by oral gift according to Muslim Law. The transfer of 1/4th share thus ,made by gift in favour of the defendant No,2 was admitted at the time of argument by Mr. Khuda Bux Omrani, the learned counsel for the defendant No,l. The defendant No,1 himself in his evidence gave up his claim of ownership, when in evidence during his cross-examination, he stated:- "It is correct that my father had transferred his share which he had inherited during his lifetime to the defendant No,2 by gift." (iv) The defendant No,1 in his evidence also admitted that Mst. Tayyaba Khanum was the owner of the property (Lodhi Mansion), by purchase. In his deposition in Court he stated: "The building (Lodhi Mansion) in dispute, situated in Artillery Maidan Area, was owned by Mst. Tayyaba Khanum, who was the mother of the parties to the suit. Our mother Mst. Tayyaba Khanum died on 16th October, 1969. At that time our father was alive. Our mother was survived by the parties to the suit and our father, as the only heirs under the Muslim Sunni law by which we are governed." ' He also stated: - "Since the purchase of the building by my mother I used to collect rent but the same was always handed over to my father during his lifetime." ' And also deposed:- "During lifetime of mother, since she was the owner, rent was collected in her name" ' And then stated:-
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' after the death of our mother the rent receipts used to be issued in the name of her heirs namely Fiqhatullah Khan Lodhi and other landlord." ' The statement made in evidence completely demolishes the plea taken in the written statement by the defendant No,1 that he became owner of Lodhi Mansion after the deaths of his parents Tayyaba Khanum (mother) and Haji Fiqhatullah Khaq Lodhi (father). ' I may also observe here ttial merely because at a subsequent stage in 1974 due to disputes between the parties to the suit, the defendant No,1 started issuing rent receipts by putting his "seal as owner" on them could not have the effect of divesting the sisters of their rights and shares which they inherited on the death of the mother or of the share transferred by gift by the father to the defendant No,2. The defendant No,1 has failed to produce any evidence whereby he could claim to have acquired the ownership of the property known as Lodhi Mansion. No evidence has been produced to show that the sisters have been paid off for or transferred, their shares. ' On the evidence on record and for reasons discussed above I hold that the property in suit known as Lodhi Mansion bearing No, AM-27/1, Artillery Maidan No,1, Karachi is jointly owned by the parties to the suit with undivided shares as mentioned below:- I further declare thatthe Company/local authority resident and Ordinarily resident the firm was resident but not Ordinarily resident the association not resident the family 9. The other property which is the subject-matter of the disputes between the parties is the running business concern known' as "Near East Watch Company" situated in the shop in Mandviwalla Building, 124/9, M.A. Jinnah Road, Karachi, which the plaintiffs claim was owned by Mst. Tayyaba Khanum (mother) on whose death according to their case, devolved upto the parties to the suits, besides Haji Fighatullah Khan Lodhi (her husband). The latter subsequently died and it is now stated by the plaintiffs, that the parties to the suit are its joint owners on the basis of and in accordance with the Sunni Muslim Law of inheritance. ' The defendant No,1 in his written statement An para. 2 denied that Mst. Tayyaba Khanum (the mother) was the owner of said business concern. According to the defendant No,1 the shop premises is owned by Mandviwalla Estate Limited, they issued rent receipts in respect of the said premises in the name of Shoukat Ali son of Fiqhatullah Khan Lodhi from 1950 to July, 1976 though rent was paid by him and for the period, thereafter, he has beer depositing rent in the C.- 'rt. In the additional pleas in paras. 14 to is, the case pleaded by the defendant No,1 briefly stated is that the abovementioned business concern was gifted to him orally by the parents of the defendant No, 1, i.e. By Mst. Tayyaba Khanum (the mother) and Haji Fiqhatullah Khan Lodhi, (the father) in the year 1956 and that since then he has been its owner without any interruption or disturbance. It was also pleaded that Mst. Tayyaba Khanum (the mother), during her lifetime never did any business at the said shop and that she was strictly a Pardahnashin lady. In para. 17 it is also stated that the defendant No,1- has been paying income-tax in respect to the said business in his capacity as the sole proprietor of the said business since 1970-71. A reference was also made by the defendant No,1 in his written statement to an alleged gift orally made in favour of his consanguine brother Shoukat Ali, of another business concern known as Lodhi Watch Company at the same time in 1956 when the gift of the business concern (Near East Watch Company) was made in favour of defendant No,l. (It may be mentioned that the other business concern (Lodhi Watch Company) is not the subject-matter of the suit). ' In his own evidence the defendant No,1 stated that in 1956 the gift as pleaded in the written statement of the Near East Watch Company was made in his favour and simultaneously Lodhi Watch Company was given by gift to Shoukat All and that the donees were put in possession and control of the respective concerns thus gifted, and that since then each of the donees is doing his own business separately. It was further stated that the fact that the gifts were so made was confirmed by Haji Fiqhatullah Khan Lodhi (the donor) "in presence of Saghir All
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and Sabz Ali" and that Mst. Tayyaba Khanum, the mother, also confirmed the making of these gifts in the presence of Saghir Ali. ' The defendant No,1 produced documentary evidence as well as examined two witnesses (i) Saghir All D.W.2 (Exh. 7) and (ii) Sabz All D.W.3 (Exh. 8) in support of the story of gift of the business concern made in his favour. ' The documentary evidence produced by the defendant No,1 consists of (i) two challans of payments of professional tax. These challans are marked Exh. 6/93 and Exh. 6/94 and relate to the years 1974-75 and 1977- 78 and (ii) receipt Exh. 6/95, dated 19-1-1974 showing payment of Board Tax. These challans and the receipts, however, do not help the defendant No,1 in proof of the alleged gift of the business concern alleged to have been made in 1956. In the challan Exh. 6/93 the date of payment is shown as 20th March, 1975 i.e. Almost after 19 years of the alleged gift made in 1956, whereas, the challan Exh. 6/94 shows that the payment was made on 27-12-1977 which is a date much after the filing of the suit. The other document (Exh. 6/95) which is a receipt for payment of Board Tax is also for a period of over 19 years of the making of the alleged gift and in it the name of Rifatullah Khan Lodhi (the defendant No,1) shown as the proprietor of Near East Watch Company appears to be in different ink and indifferent hand. ' No other document in support of the alleged oral gift of the business concern was produced by the defendant No,l. He did not even produce his account books in support of his plea of acquiring ownership in 1956. ' As against the above documentary evidence I may first refer here to the Income-tax Return for the year 1970- 71 (ending 31st March, 1970) Exh. 5/13, filed with Income-tax Department by the defendant No,1, and it shows that it was signed by the defendant No,1 as a legal heir of Mst. Tayyaba Khanum who was expressly described as the proprietorof Near East Watch Company. ' In the aforementioned return for the year 1970-71 (ending 31st March, 1970) (Exh. 5/13) the. Defendant No,1 expressly admitted that the said concern in the said year was owned by individual (Mst. Tayyaba Khanum), the relevant declaration made by the defendant No,1 is reproIuced below:- I further declare thatthe Company/local authority resident and Ordinarily resident the firm was resident but not Ordinarily resident the association not resident the family in Pakistan during the previous year for which the return is made for late Mst. Tayyaba. ' (Seal of) Signature for Near East Watch Co. Status Sd/- signed legal Heir Individual Proprietor. ' Dated 14-9-1970" ' The portion which has been circled in red was marked Exh. 5/13-A after the defendant No,1 was confronted with it during his cross-examination. It may be recalled here that Mst. Tayyaba Khanum had died on 16th October, 1969 and therefore. For the assessment year 1970-71 (ending 31st March, 1970) the assessment return was signed for late Mst. Tayyaba Khanum by one of her legal heirs i.e. The defendant No,1 on her behalf. It would also be relevant here to refer to the statement made by the defendant No,1 when confronted with his above declaration admitting Mst. Tayyaba Khanum as the proprietor of Near East Watch Company in his cross- examination. The statement of the defendant No,1 was:- "The document Exh. 5/13 is the return for the year ending 31-3-1970 (assessment year 1970-71). It is correct as suggested that the income of the property and the business. Both are shown in this return which was filed by me. It is also correct that at page 7 of this return details of the income of the property are given. This return was filed under my signature. The business referred in the document Exh. 5/13 pertains to Near East Watch Company of which I was the proprietor. The property referred in this document is Lodhi Mansion. At page 9 of Exh. 5/13 it is shown that this return was made for late Mst. Tayyaba Khanum and that it was signed as legal heir but I state that these words were not written by me in the original 'Returns' (of which Exh. 5/13 is certified copy). The handwritten words at page 9 encirled in 'red' were not written in the original return when it was filed. (The witness voluntarily states that he had not written the words 'for late Tayyaba Khanum' and the words 'legal
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heir'. However, the words 'individual proprietor' were written by him and that the seal (rubber stamp) 'For Near East Watch Company Proprietor' was put by him on the original return). I have got photo copy of this return and I produce page 9 of the same which" is marked Exh. 6/129. ' Question: Please see Exh. 6/129 and I put it to you that this contains the same words as Exh. 5/13? Ans:- This is some "{{URDU TEXT}} " of the plaintiffs." ' A reading of the statement of the defendant No,1 in his evidence reproduced above, clearly establishes that according to the defendant No,1 himself till her death on 16-10-1969 (during the assessment year 1970-71 ending 31st March, 1970) Mst. Tayyaba Khanum was the proprietor of the concern Near East Watch Company. The defendant No,1 attempted to explain that handwritten words in the Income-tax Return for the year 1970-71 at page 9 encircled in "red" in Exh. 5/13 were not written in the original return filed by him and in proof of his story he produced his own photostat copy at page 9 of the original return filed by him. A perusal of this photo copy (Exh. 6/129) a document produced by the defendant No,1 himself, would show that it contains exactly the same words as in Exh. 6/13 and which have been encircled in red and marked Exh. 6/13-A. When confronted with this situation that the defendant No,1 himself had filed the return showing late Mst. Tayyaba Khanum as the proprietor of Near East Watch Company and that the said return Exh. 6/13 had been signed by him on behalf of the sole proprietor, late Mst. Tayyaba Khanum, describing himself as legal heir of the said lady and even the photo copy (Exh. 6/129) produced by him also confirms this, the defendant No,1 could not,give any reply except making a vague statement. "This is some " {{URDU TEXT}}' " of the plaintiffs". ' It would also be relevant here to mention that even for the period prior to the year 1970-71 Mst. Tayyaba Khanum was assessed to income-tax as the proprietor of Near East Watch Company. This fact was admitted by the defendant No,1 in his evidence when he stated, "The assessment used to be made in the name of my mother namely Mst. Tayyaba Khanum as the proprietor of the said business". ' The defendant No,1 when further confronted with Income-Tax Return…
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