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Petitioner: Mrs. NASREEN YOUSUF VS Respondent: AIJAZ SAFDAR KIYANI and 2 others
Court Name: Sindh High Court Judge(s): Nadeem Akhtar Title: Mrs. NASREEN YOUSUF vs AIJAZ SAFDAR KIYANI and 2 others Case No.: Suit No.560 of 2000 Date of Judgment:2013-12-24 Reported As: 2014 YLR 1201 Result: Suit dismissed
JUDGMENT
JUDGMENT ' NADEEM AKHTAR, J.---This Suit has been filed by the plaintiff against the defendants for declaration, injunction and cancellation of documents. 2. The relevant facts of the case, as averred in the plaint, are that defendant No.1 is the real brother of the plaintiff, and defendant No.2 is the wife of one Jamil Akhtar Kiyani, who is the real maternal uncle of the plaintiff. The plaintiff, who is a British citizen, was settled in London and used to visit Pakistan frequently and would stay with her uncle Jamil Akhtar Kiyani. In the year 1989, the plaintiff purchased from defendant No.2 House No.11/2, Khayabane-Shamsheer, Phase-V, Defence Housing Authority, Karachi, as she wanted to shift to Karachi with her family. In the year 1990, when the plaintiff came to Karachi, she stayed in the house of defendant No.2, where defendant No.1 was also staying. The plaintiff's real brother/defendant No.1 and her real uncle Jamil Akhtar Kiyani, persuaded her to invest in real estate in Karachi, and showed her several properties, including Property No.6-C, Sunset Boulevard, Phase-II, Defence Housing Authority, Karachi ('the Suit property'). After some negotiations, the owner of the Suit property Mst. Kaneez Ayesha agreed to sell the Suit property to the plaintiff in consideration of Rs.1,000,000.00. It was agreed that Mst. Kaneez Ayesha will execute a registered irrevocable power of attorney in respect of the Suit property in favour of defendant No.1/the plaintiff's nominee, to enable defendant No.1 to look after the Suit property, carry out repairs, to induct tenants, and to collect rents. The agreed sale consideration was paid by the plaintiff to Mst. Kaneez Ayesha, and the sale was completed by her by executing an irrevocable power of attorney in favour of defendant No.1, which was duly registered. After taking over possession of the Suit property, the plaintiff got the same vacated from tenants by paying compensation to them, and also carried out repairs in respect thereof by
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incurring expenses of Rs.350,000.00. Thereafter, defendant No. 1/the plaintiff's attorney took over the management of the Suit property, inducted new tenants, and started collecting rent. Defendant No.1 managed the Suit property for about a year, and then handed over the management to the plaintiff's real uncle Jamil Akhtar Kiyani, who started looking after both the properties of the plaintiff, that is, the Suit property and 11/2, Khayaban-e-Shamsheer, Phase-V, Defence Housing Authority, Karachi. The plaintiff trusted and accepted the accounts furnished by Jamil Akhtar Kiyani in respect of both the properties, and this arrangement continued till June, 1999: 3. The plaintiff has further averred that when she visited Pakistan in June, 1999, 'serious differences developed between her and Jamil Akhtar Kiyani. As the relations between them became strained, she decided to take over the management of the Suit property and to collect the rent in respect thereof. At this juncture, the plaintiff was shocked to find out that the Suit property was owned by defendant No.2. Upon enquiry, it transpired that the Suit property had been transferred in favour of defendant No.2 by defendant No.1 in collusion with Jamil Akhtar Kiyani through a declaration of oral gift dated 10-2-1992, which was registered with the Sub-Registrar concerned/respondent No.3 on the same day. The plaintiff tried to contact defendant but he was not traceable. However, she succeeded in locating him on 18-8-1999, when he informed her that he did not gift the Suit property in favour of defendant but was coerced by defendant No.2 and her husband to execute the said gift. In the above ackground, this Suit was filed by the plaintiff praying for declarations that the gift of the Suit property in favour of defendant No.2, having been obtained through fraud, coercion and misrepresentation, is illegal; and, the said gift did not confer any right or title in respect of the Suit property in favour of defendant No.2; for cancellation of the said gift; for permanent injunction restraining the defendants from acting upon the said gift; and in the alternative, for a decree against defendant No.2 in the sum of Rs.10.000 million towards damages. 4. Defendant No.1 neither contested the Suit, nor did he file his written statement. Defendant No.2 filed her written statement, wherein all the averments, allegations and claims made by the plaintiff, were specifically and vehemently denied. The fact that House No.11/2, Khayaban-e-Shamsheer, Phase-V, Defence Housing Authority, Karachi, was purchased by the plaintiff from defendant No.2 in the year 1989, was admitted by defendant No.2. It was averred by defendant No.2 that after selling her aforementioned house to the plaintiff, ,she invested the sale proceeds by purchasing the Suit property from the previous owner Mst. Kaneez Ayesha in consideration of Rs.1,000,000,00. It was further averred by defendant No.2 that as she was not in Karachi, she requested defendant No.1/her husband's nephew to ask Mst. Kaneez Ayesha to execute an irrevocable general power of attorney, in favour of defendant No.1 so that he could transfer the Suit property in her favour at her convenience. According to defendant No.2, the Suit property was transferred in her name on 10-2- 1992 by defendant No.1 in the above circumstances. It was specifically stated by defendant No.2 that she, being the bona fide purchaser for valuable consideration, is the real owner of the Suit property, and as such the plaintiff has no locus standi to file this Suit. 5. On the basis of the pleadings of the parties, six issues were settled by the Court on 18-4-2001, which are reproduced and discussed in subsequent paragraphs. 6. The plaintiff examined her husband/attorney Mr. Muhammad Yousuf Busal, who produced copy of the general power of attorney executed by the plaintiff in his favour (Exh.2); his affidavit- inevidence (Exh.3); certified copy of declaration and confirmation of oral gift in respect of the Suit property in favour, of defendant No.2 (Exh.4); copies of statement of one Aurangzeb son of Muhammad Akbar (Exh.5) and his CNIC (Exh.6); certified copy of sale agreement dated 30-3-1991 between Mst. Kaneez Ayesha and defendant No.2 (Exh.7); certified copy of general power of attorney executed by Mst. Kaneez Ayesha in favour of defendant No.1 (Exh.8); certified copy of pay order favouring Mrs. Kaneez Ayesha (Exh.9); copy of the objections filed by the defendant No.2's counsel before the Income Tax Authorities to the complaint and proceedings under section 61
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(Exh.10); and, legal notice dated 7-2-2004 (Exh.11). The plaintiff also examined Sardar Muhammad Zulfiqar Khan, who produced his affidavit-in-evidence (Exh.12); and, a copy of the sale agreement between Mst. Kaneez Ayesha and defendant No.2 (Exh.13). The plaintiff's witnesses were cross- examined at length by the learned counsel for defendant No.2. 7. Defendant No.2 examined herself, and produced the original general power of attorney executed by Mst. Kaneez Ayesha in favour of defendant No.1 (Exh.D/3); original registered declaration and confirmation of oral gift dated 10-2-1992 in her favour in respect of the suit property (Exh. D/4); original transfer letter dated 30-4-1992 (Exh. D/5) issued by M.E.O. Transferring the suit property in her name; original notice dated 2-12-1993 (Exh. D/6) issued by Clifton Cantonment Board to one of the original owners/sub-lessees; original loan affidavit dated 9-12-1991 executed by Mst. Kaneez Ayesha (Exh.D/7); original registered declaration and confirmation of oral gift dated 31-3-1988 (Exh.D/8) executed by the original owners/lessees in favour of Mst. Kaneez Ayesha in respect of the suit property; original receipts and bills dated 28-9-1990 (Exh. D/9), 22-9-1990 (Exh.D/10), 18-9-1990 (Exh. D/11), and 28-9-1990 (Exh. D/12), issued by Clifton Cantonment Board; original tax challans dated 14-9-1989 (Exh. D/13) and 20-8-1989 (Exh. D/14), issued by Clifton Cantonment Board; original approved plans of the suit property (Exh. D/15 and D/16); certificate dated 10-11-1982 issued by Clifton Cantonment Board (Exh. D/17); original general power of attorney dated 4-9-1986 (Exh. D/18) in respect of the suit property, executed in favour of one of the original owners/sub-lessees Mr. A.R. Khan by his children/co-owners; original general power of attorney dated 12-9-1986 (Exh. D/19) executed in favour of Mr. A.R. Khan by her daughter/co-owner; original 'C' lease dated 9-9-1978 with site plan (Exh. D/20) in respect of the suit property in the names of the original owners/sub- lessees; original lease/tenancy agreements dated 15-9-1994 (Exh.D/21), 15-10-1994 (Exh. D/23), 9- 10-1994 (Exh. D/24), 7-10-1994 (Exh. D/25), and 1-11-1994 (Exh. D/26), between defendant No.2 and her tenants; original rent receipt dated October, 1994 (Exh. D/22); attested copy of application dated 20-6-1996 addressed to the Income Tax Authorities (Exh. D/27); original quotation dated 23- 1-1994 with payment (Exh.D/28); five original challans and receipts issued by Clifton Cantonment Board (Exh. D/29); original application dated 6-12-1993 (Exh. D/30) for repair and white wash; certified copy of judgment dated 4-12-2002 in Special Case No.88/2000 (Exh. D/31); three original application forms dated 25-4-1994 for sui gas connections (Exh. D/32); and, certified copy of declaration of gift dated 10-4-1995 (Exh. D/33) by defendant No.2 in favour of Sardar Muhammad Zulfior in respect of two rooms and open space on the top floor of the suit property. Defendant No.2 also examined one Muhammad Arif Malik as her witness, who produced his affidavit-inevidence (Exh.D). Defendant No.2 and her witness were cross-examined at length by the learned counsel for the plaintiff. 8. At the time of final arguments, this Suit was heard on several dates. On the first date of hearing, Mr. Shakeel Ahmed, Advocate made submissions on behalf of the plaintiff, and on all subsequent dates, the remaining submissions on behalf of the plaintiff were made by Mr. Abdul Wahab Baloch Advocate. Learned counsel Mr. Shakeel Ahmed submitted that the suit property was purchased by the plaintiff for valuable consideration from Mst. Kaneez Ayesha, through a registered general power of attorney executed by her in favour of the plaintiff's brother/defendant No.1; the entire agreed sale consideration was paid by the plaintiff; after purchasing the suit property, the plaintiff got the same vacated from tenants by paying substantial amounts to them as compensation; the plaintiff neither had any intention to sell the suit property, nor had she authorized defendant No.1 to gift the same in favour of defendant No.2; defendant No.1 was forced by defendant No.2 and her husband Jameel Akhtar Kayani to execute the declaration of oral gift in favour of defendant No.2; and, in his counter-affidavit to the plaintiff's application for appointment of Receiver, defendant No. 1 had admitted that the said gift was made by him under coercion and threats of defendant No.2 and her husband.
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9. Mr. Abdul Wahab. Baloch, learned counsel for the plaintiff, submitted that as the gift was made under coercion and undue influence and was not voluntary, the same was illegal and void. In support of his submissions regarding the illegality and invalidity of the gift of the suit property in favour of defendant No.2, the learned counsel relied upon the cases of (1) Fazal Muhammad v. Nabi Bakhsh, 1969 SCMR 531, (2) Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others, 1994 SCMR 818, (3) Nasrullah Khan v. Rasool Bibi, 2001 SCMR 1156, and (4) Mst. Bandi v. Province of Punjab and others, 2005 SCMR 1368. The learned counsel contended that, in his cross-examination, the plaintiff's witness Sardar Muhammad Zulfiqar Khan had denied his signature on the sale agreement (Exh.7) in respect of the suit property purportedly executed by Mst. Kaneez Ayesha in favour of defendant No.2. It was submitted by him that Exhibit-10 was sufficient to belie the claim of defendant No.2, as in the said Exhibit addressed to the Income Tax Authorities, it was stated by the defendant No.2's counsel that the sale agreement of the suit property was a forged document, and the pay order mentioned therein was not issued by the defendant No.2's bank. He contended that the lease agreements and rent receipts produced by defendant No.2, were fabricated by her only in order to show her ownership and possession. The learned counsel argued that the plaintiff came to know for the first time on 18-8-1999 from defendant No.1 about the impugned gift in favour of defendant No.2. It was contended that the plaintiff was not aware about the impugned gift prior to 18-8-1999, as defendant No.1 had gone underground due to fear, and defendant No.2 and her husband kept the 'plaintiff in dark. It was urged by him that the Suit is within time, as it was filed on 20-4-2009 within three years from the date when the plaintiff acquired knowledge of the impugned gift. In the end, it was strongly urged that the plaintiff, being the lawful owner of the suit property, is entitled to a decree as prayed for in this Suit. 10. On the other hand, Mr. Jamshed Malik, learned counsel for defendant No.2, vehemently opposed the submissions made by the learned counsel for the plaintiff, as well as all the averments, allegations and the claim made by the plaintiff. At the very outset, he submitted that the Suit is miserably barred by limitation and is liable to be dismissed on this ground alone, as the gift in favour of defendant No.2 was admittediy registered on. 10-2-1992, but this Suit was filed on 20-4- 2000 after a period of more than eight (08) years. The learned counsel submitted that without prejudice to his above preliminary objection, it was an admitted position that defendant No.2 sold her House No.11/2, Khayaban-eShamsheer, Phase-V, Defence Housing Authority, Karachi, to the plaintiff, which shows that defendant No.2 had sufficient funds to purchase the suit property. He further submitted that the suit property was purchased by defendant No.2 for valuable consideration which was paid by her out of the funds received by her by selling her above property; because of the admitted relationship between the parties, defendant No.2 had full trust and confidence in defendant No.1, who is admittedly the real nephew of the defendant No.2's husband; the suit property was purchased by her from Mst. Kaneez Ayesha with clear understanding that a power of attorney would be given by Mst. Kaneez Ayesha in favour of defendant No.1, who will then transfer the suit property in favour of defendant No.2 or her nominee at her convenience; the plaintiff was fully aware of such arrangement as admittedly she used to stay at the house of defendant No.2 whenever she used to visit Karachi, and also as defendant No.1 is her real brother; the plaintiff was never in picture nor did she ever purchased the suit property; in , pursuance of the above arrangement, full agreed sale consideration was paid by defendant No.2 through a pay order to Mst. Kaneez Ayesha, and in consideration thereof, she executed a registered power of attorney in favour of defendant No.1; defendant No.1, having full authority, executed the declaration of gift in favour of defendant No.2 voluntarily, without any pressure, threat, coercion or undue influence, which was duly registered in his presence with the Sub-Registrar concerned; and, the plaintiff was all along aware about the purchase of the suit property in the above manner by, defendant No.2. The learned counsel argued that, by claiming that she is the real owner of the suit
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property and only the defendant No.2's name appears as the owner thereof, the plaintiff has set up a case of Benami transaction. 11. The learned counsel for defendant No.2 further submitted that the plaintiff herself ought to have come into the witness box to prove the facts relating to her personal knowledge with regard to the alleged purchase of the suit property by her, and also that she came to know about the gift actually on 18-8-1999. It was urged that, since the plaintiff herself did not come into the witness box, the entire evidence given by her witnesses about the facts relating to her personal knowledge, was hearsay, is of no value, and is liable to be discarded. It was contended that it was admitted in his cross-examination by the plaintiff's husband/witness that no evidence was produced on behalf of the plaintiff to prove that she visited Karachi/Pakistan in the year 1990. It was further contended that, in order to prove that the suit property was purchased by her, the plaintiff ought to have produced evidence showing payment of sale consideration to the previous owner Mst. Kaneez Ayesha, and the source of such payment. It was urged that the plaintiff miserably failed in producing any such evidences in the absence whereof her version cannot be believed; whereas, defendant No.2 had produced a copy of the pay order showing payment of the sale consideration to Mst. Kaneez Ayesha. It was also contended that all the documents produced and relied upon by the plaintiff's witness, were actually filed in this Suit by defendant No.2, and after obtaining certified copies thereof, the said witness produced the same in support of the plaintiff's evidence. It was urged that no material document or evidence whatsoever was produced on behalf of the plaintiff in support of her claim, and the documents produced by her witnesses do not in any manner prove her alleged claim, as the plaintiff admittedly was/is not in possession of any title or other document in relation to the suit property. The learned counsel for defendant No.2 argued that this Suit is mala fide, and is based on false and concocted facts. He contended that the allegations that defendant No.1 was coerced and was given serious threats by defendant No.2 and her husband, and due to this reason, defendant No.1 went underground and his whereabouts were not known to the plaintiff till 18-8-1999, are false and absurd, and the same have been concocted only in order bring this Suit within the prescribed period of limitation. He further contended "that, being the real sister of defendant No.1, the plaintiff must have been aware of his whereabouts and address. The learned counsel also contended that reliance by the plaintiff on the defendant No.l's affidavit, was meaningless as the said affidavit was never exhibited in evidence; and, even otherwise the said affidavit was inadmissible as it did not bear the date of swearing. 12. The learned counsel for defendant No.2 argued that the actual and real donor of the gift of the suit property in favour of defendant No.2, was Mst. Kaneez Ayesha, as defendant No.1 had executed the gift on behalf of and as the lawful attorney of Mst. Kaneez Ayesha. He further argued that the power of attorney executed by Mst. Kaneez Ayesha in favour of defendant No.1 was not disputed by the plaintiff, and the execution of the gift by defendant No.1 on the basis of the said power of attorney, was admitted by the plaintiff. It was urged that since the previous owner/donor has admittedly not challenged the gift in favour of dekndant No.2, the plaintiff has no locus standi to challenge the same. The learned counsel also argued that if the prayer made by the plaintiff for cancellation of the gift in favour of defendant No.2 is allowed, the suit property will revert back to the donor/previous owner Mst. Kaneez Ayesha, who has neither challenged the gift nor has she been joined in this Suit as a party. It was further argued that the husband of defendant No.2, against whom serious allegations of fraud, coercion and undue influence have been made in relation to the impugned gift, has also not been impleaded in this Suit. The last submission of the learned counsel was that the presumption regarding a registered document, which in this case is the registered declaration of oral gift of the Suit property in favour of defendant No.2, cannot be discarded except for convincing evidence. In the end, the learned counsel prayed that, since the Suit is not maintainable in view of his above submissions, and also as the plaintiff has failed in
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producing any evidence in support of her alleged claim, the Suit is liable to be dismissed with heavy costs. 13. In support of his above submissions, learned counsel for defendant No.2 cited and relied upon the cases of (1) Sardara through legal heirs v. Muhammad through legal heirs, 1994 SCMR 2299, (2) Khalid Mehmood v. Abida Peerveen, 2003 SCMR 18, (3) Ch. Ghulam Rasool v. Mrs. Nusrat Rasool and 4 others PLD 2008 Supreme Court 146, (4) Mir Ajam Khan v. Mst. Quresha Sultana, (5) Nazim Ali v. Rashid Qamar and 2 others, 2006 CLC 289, (6) Nooruddin and 11 others v. Abdul Waheed PLD 1997 Karachi 6, (7) Muhammad Siddiqi through attorney v. M/S T. J-. Ibrahim and Company and others 2001 SCMR 1443, (8) Al-Haaj Muhammad Rafique v. Mst. Khalida Shehzadi 2003 CLC 559 and (9) Abdul Majeed and others v. Amir Muhammad and others 2005 SCMR 577. 14. After perusing the pleadings of the parties, carefully examining the evidence on record with the assistance of the learned counsel and the law cited by them at the bar, and hearing the learned counsel at length, my findings on the Issues involved in this Suit are as under: 15. ISSUE No.1 : " L Whether the Suit is barred by limitation? " ' It is claimed by the plaintiff in her plaint, and by her husband/witness in his evidence, that the plaintiff came to Karachi in the year 1990, when she was shown several properties, and finally she purchased the suit property in the manner narrated in the plaint; the suit property was being looked after and managed by defendant No. 1/the plaintiff's real brother and then by her maternal uncle/the defendant No.2's husband, till June, 1999; on her visits to Pakistan, her uncle/the defendant No.2's husband took her to the suit property on several occasions for inspection; the plaintiff came to know about the gift of the suit property in favour of defendant No.2 when she wanted to take over the management of the suit property after serious differences arose between her and the defendant No.2's husband; the plaintiff tried to contact defendant No.1, but he was not traceable; and, she finally located defendant No.1 on 18-8-1999, when she came to know about the circumstances in which the gift was made in favour of defendant No.2. On the basis of the above averments, the plaintiff has claimed that cause of action for filing this Suit accrued to her for the first time on 18-8-1999. 16. Though the gift in favour of defendant No.2 has been challenged in this Suit by the plaintiff, but the execution and registration of the said gift in favour of defendant No.2 has not been denied by her. The impugned declaration of oral gift was admittedly executed and registered in favour of defendant No.2 on 10-2-1992. This Suit for cancellation of the said gift, declaration, permanent injunction and damages was filed on 20-4-2000, that is, after more than eight (08) years and two (02) months from the date of execution and registration of the impugned gift. The Suit is clearly barred by time. However, the long delay of more than five (05) years in filing the Suit could be condoned only if the plaintiff succeeds in proving that the actual date of her knowledge about the impugned gift was 18-8-1999, as claimed by her. Since the Suit has been filed admittedly beyond the prescribed period of limitation, the burden to prove that the impugned gift came to her knowledge for the first time on 18-8-1999, was squarely on the plaintiff. It is not the case of the plaintiff that she came to Karachi/Pakistan in the year 19,99. Along with her husband, or that the impugned gift came to her knowledge through her husband. Therefore, all the facts pleaded and asserted by the plaintiff in relation to the date of her knowledge, pertained to her personal knowledge, and she was duty-bound to prove this crucial and material fact by coming into the witness box personally. Admittedly, the plaintiff did not appear personally to give evidence in support of her claim, and instead she produced her husband as her witness. In the case of Mir Ajam Khan (supra) relied upon by the learned counsel for defendant No.2, the Hon'ble Supreme Court was pleased to hold that if there are certain facts and circumstances especially in the knowledge of the party, an adverse inference could be drawn from its non-appearance. In the cited authority, the Hon'ble Supreme Court was pleased to approve the findings of the learned
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