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Petitioner: SHAMSUDDIN HUSSAIN AJAMI VS Respondent: KAIKHUSRO MERWAN MONDI
Court Name: Sindh High Court Judge(s): Saeeduzzaman Siddiqui, Naimuddin Ahmed Title: SHAMSUDDIN HUSSAIN AJAMI vs KAIKHUSRO MERWAN MONDI Case No.: Miscellaneous Application No, 91 of 1980 Suit No, 629 of 1983 Date of Judgment:1986-09-04 Reported As: PLD 1987 Karachi 23 Result: Suit dismissed
JUDGMENT
JUDGMENT ' NAIMUDDIN, C. J.-The relevant facts giving rise to this suit briefly stated are as follows :- 2. Shamsuddin Husain Ajami (hereinafter called the plaintiff) on 22-6-1980, filed a petition under section 222 of the Succession Act read with rule 376 of the Sind Chief Court Rules (Original Side) (hereinafter called 'the Rules') for grant of probate of the Will of Kaikhusro Merwan Mondi (hereinafter called 'the deceased') who died in Karachi on 31-7-1979 appointing by the will the plaintiff as one of the two executors, the other being Mr. Iqbal Kazi Advocate, who has declined to act as such. 3. According to the averments made in the petition the decease died possessed of or entitled to at the time of his death the following properties and credits which are mentioned in Annexure "A" to the petition and which were likely to come to his hands : (a) Business of Cafe Victoria and General Merchants carried on at Shops Nos. 1 and 2 on the ground {{DATA MISS ARANGE}} floor of Lotia Building, Abdullah Haroon Road along- Rs, with tenancy rights. 6,00,000.00 (h) Business of Palace Cinema Stall in the Palace Cinema Building, Karachi. (c) Flat No, 2, Suleman Centre on the 4th Floor on Plots 34 and 35, S. B. 3, Saddar, Karachi. 1,21,000.00 (d) Shop No, 50 on the ground floor of Suleman Centre on Plots 34 and 35, S. B. 3, Karachi. 1,50,000.00 (e) Four Bedrooms Flat under construction by Ahmed Construction Company near Cantonment and Rs, 59,000 in balance. 1,31,000.00
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(f) Fresh Wine Retail Shop and the share in Partnership or Shaheen Variety Stores and tenancy rights in the shop in Fahmeed Chamber on plot No 286/288, Central Commercial Area, P. E. C. H. S., Karachi. 4,00,000.00 Valuation of Movable Property : Two annas in a rupee share now closed business of: (i) Asiatic Wine Merchants (Store) (ii) Paris Refreshment Room. (iii) Associated Wine Merchants. 2,00,000.00 According to the plaintiff, the following expenses are to be deducted from the assets : (a) Funeral Expenses and expenses of ceremonies relating thereto. 10,000 00 (b) Court Fees. 15,000.00 {{DATA MISS ARANGE}} 4. According to the further averments made in the petition the deceased left surviving him the following next-of-kins according to the Parsi Law of Intestate Succession. (a) Kaikhusro Merwan Mondi, (b) Ardeshir Merwant Mondi, (c) Mahrockh Rustom Chemi, (d) Parichalar A. Khairabadi, (e) Dolly Rustom Hormezdi. 5. The notice of the petition was duly published in the Daily DAWN, dated 19-8-1980, besides being served on the next-of-kins. Thereafter, on 18-9-1980, one of the next-of-kins namely, Kaikhusro Merwan Mondi, (hereinafter called the defendant) who is son of the deceased, filed a Caveat under section 284 of the Succession Act read' with rule 408 of the Rules. In the affidavit filed in support of the Caveat the stand taken by defendant is that the plaintiff has only mentioned the properties bequeathed by the deceased through the Will. But as a matter of fact the deceased has left several other properties including cash, Share Certificates, National Investment Trust Units, Defence Saving Certificates, Khas Deposit Certificates, Jewellery, Furniture etc. 6. The other objections taken are as follows :- (b) Business of Cafe Victoria and General Merchants (which is Item No, (a) of the Annexure "A" of the petition) has been grossly undervalued. (c)No valuation of Item No, (b) i. e. Palace Cinema Stall has been shown in the Valuation List. (d) There is no reference of Partnership Business of Shaheen Variety Store or of the tenancy rights in Shop (No, 6) in Fareed Chambers on Plot No, 286/288, Central Commercial Area, P. E. C. H. S., Karachi. It has been wrongly and mala fidely included in Item No, (f) of Annexure "A" of the petition. (e)1/8th (i,e, two annas in a rupee) share in siatic Wine Merchants Store, Paris Refereshment Room and Associated Wine Merchants has been overvalued as the Licences of these shops have been cancelled and the business has been totally suspended. (f) In Annexure "B" the Funeral Expenses of the deceased have been wrongfully claimed and deducted out of the value of assets by the petitioner as they were met by the youngest daughter of the deceased namely Mrs. Maharukh Rustom Cherry out of the cash left by the deceased (my father) at his residence 4-A, Island Apartments Chaudhry Rehmat Ali Road, Bath Island, Karachi." 7. In view of the affidavit filed in support of the caveat against the grant of probate, the proceedings were numbered and registered as a suit describing the petitioner as plaintiff and caveator as defendant in accordance with rule 413 of the Rules and treating the affidavit filed by the caveator defendant as his written statement. 8. Since according to the Rules, the procedure in such suits has to be followed as nearly as possible according to the provisions of the Code of Civil Procedure, the following consent, issues were framed.
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(1) Whether the will dated 20th May, 1979 is a valid will ? (2) Whether the will does not mention all the properties left by the deceased, if so, what is the effect ? (3) Whether the Item No, Annexure "A" was not the property of the deceased ? (4) Relief ? ' However, on 20-5-1984. Issue No, 3 was reframed as follows on an application made on behalf of the defendant's Advocate. "Whether the share in partnership of Shaheen Variety Stores and tenancy rights in the shop in Fareed Chamber on Plot No, 286/288 Central Commercial Area, P. E. C. H. S., Karachi, have been wrongly and mala fide included in Item No, "F" of Annexure "A" to the petition ?" 9. On behalf of the tilaintiff Jamsheed Barucha (Exh. 4), Musaddaq Hussain (Exh. 5), were examined. On behalf of the defendant, besides him (Exh. 6), Minoo N. Bamjee (Exh. 7',4and Abdul Rauf Qureshi (Exh. 8) were examined. 10. Jamsheed Barucha (Exh. 4) produced the will (Exh. 4/1) executed by the deceased and he proved his signature thereon as a witness. In cross-examination, he has stated that the deceased at the time of execution of the will was lying in bed due to illness but he could not state the nature of the illness. The will was executed in the presence of the Sub-Registrar in the room where the deceased was living. He admitted that Chemy, the son-in-law of the deceased and his wife Mahrukh who is daughter of the deceased were living in the same flat wherein the deceased was living. He stated that the will was executed at about 5 o'clock on 21-7-1979. 11. Musaddaq Hussain (Exh. 5) stated that he knew the deceased and the will bears his signature. He, in cross-examination, stated that the deceased was ailing at the time of execution of the will at 4-30 p. m. To 5-00 p. m. On 21-7-1979, and at that time his son-in-law Chemy and his wife Mahrukh and a maid-servant were present. He further stated that the property bearing No, 42-S. B. 4, Saddar, belonged to the deceased and was purchased by his father (witness's father) in the name of RIAZ FATIMA. He produced the certified copy of the conveyance deed of the property (Exh. 5/2). He further stated that the sale-deed was also executed at the same time when the will was executed and that his father had paid the sale consideration of Rs, 1,35,000 in cash in his presence and in the presence of the Sub-Registrar,. The deceased had kept the money with him. 12. K. M. Mondy, the defendant (Exh. 6) in his disposition inter alia, stated that his father remained sick for about 5 or 6 years and died of liver cancer. He lived in the house of his daughter MAHRUKH till he died. Before that he was living in a rented flat opposite Empress Market, Saddar, Karachi. The flat was completely furnished. He took all the furniture from the flat wherein he was living to the house of his daughter. According to the witness, there were two expensive carpets, 2 or 5 wardrobe, refrigerator dining table, chairs sideboards, show cupboards and jewellery consisting of gold buttons, gold studs, gold rings, gold pocket watch with gold chain and a gold dollar attached to it valuing in all Rs, 1,50,000. He also had a car when he went to live in the house of his daughter. The car was with his sister and was being used by CHEMY, her husband. He further stated that he filed the caveat because his father had left besides the above properties mentioned other properties which are not mentioned in his will and one of such properties was immovable property bearing No, S. B. 4/42, Frere Street, Karachi which was sold by his father just before he died for a consideration of Rs, 1,35,000 which was received by his father in the house of his daughter. The sale of the property has been exhibited marked as Exh. 5/2. According to the witness, his father had also Defence Saving Certificates, Khas Deposit Certificates, Postal Certificates, N. I. T. Units. He produced one Dividend Warrant received at his address in the name of Mrs. M. M. Mondi, her mother together with its memoranthan and another memorandum in the name of his father marked as Exh. 6/1 to 6/3. The witness further deposed that N. I. T. Units belonged to his mother which were given to, his father through the will of which probate was issued. He produced the certified copies of the will and
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probate marked as Exh. 6/4 and 6/5. The deceased, the witness went on to depose had two accounts, one current account in the name of Mondi Refreshment Room and Bar and the other saving account in his own name which was later on joined by his (witness's) brother Aredsher. The witness claimed that the money in the saving account belonged to his father though the account was in the joint name and that his brother Aredsher had no financial interest in it because he was already settled in Canada for the last about 12 or 14 years and he had become a Canadian national and had no commercial interest in Pakistan. According to the witness efforts were made to settle the dispute as to the properties left by the deceased amicably through Minoo N. Bamjee, an Income-tax Practitioner whose evidence was also recorded in this case. He has also produced as handwriting of Minoo N. Bamjee. ' In the cross-examination to Mr. G. H. Abbasi, he admitted that he was objecting to the validity of the will only because there were other properties outside the will otherwise there was no objection to the will. He, however, admitted that he had no cash memos or title deeds or purchase vouchers of any of the properties which he claims, have been left by his lather. 13. Minoo N. Bamjee, Chartered Accountant and Income-tax practitioner (Exh. D-7) who was examined on behalf of the defendant deposed that he used to represent the deceased and Aredsheer Mondi before the Income-tax authorities but not the wife of the deceased. After the death of M. K. Mondee, the defendant saw him on several occasions with regard to the assets left by the deceased. Chemy also saw him for the same purpose on several occasions. He produced a sheet (Exh. X-6) and confirmed that it was prepared by him after discussion between him, the defendant and Chemy the son-in-law of the deceased marked as Exh. 7/1. He explained that in this exhibit the abbreviation K. M. Stands for the defendant, Behli stands for Behli Irani, A. P. I. Stands for brother of the defendant and the word Amanat was given to him by the defendant. He could not say whether the amount of rupees two Jars shown against Behli was the amount of money lying in the hands of Behli belonging to the deceased as claimed by the defendant. He further deposed that according to the version of the defendant a sum of Rs, 3,50,000 was lying with Aredsheer as `Amanat' of the deceased but according to the version of Chemy the only amount in which the defendant could have a share was Rs, 2,50,000 as noted by him in Exh. 7/1. He further explained that the word Hotchpotch mentioned in this document refers to the balance amount shown in the statement of Wealth of the deceased which amount was not bequeathed to any individual. He further stated that according to the defendant the inheritable and divisible assets were Rs, 3,82,865 but according to the Chemy they were of Rs, 2,97,153. The witness further deposed that he called both of them separately and taking the average of two figures as noted therein he divided it by 2 to find a figure of Rs, 3,40,009 and he tried to settle the dispute between the two accordingly. He further deposed that the defendant went on changing the figure for the purpose of settlement. He started from Rs,, 2,00,000 And went up to Rs, 5,00,000. ' He admitted in the cross-examination to Mr. G. H. Abbasi, Advocate for the plaintiff that the defendant had first supplied him the figure of Rs, 2,50,000 which was later on changed to Rs, 3,50,000. In reply to a question by Mr. Abbasi, he stated that he had no contact with Aredsheer Mondi, except that at the request of his brother, he sent a cable to him to settle the matter. 14. Abdul Raoof Qureshi, Second Officer of the Habib Bank Limited, Frere Street Branch, Saddar, Karachi (Exh. 8) was also examined on behalf of the defendant and he produced the Account Opening Form of the deceased of the account with his Branch. According to the witness this account was first in the name of the deceased and Mah Khurshed Mondee but was subsequently, changed in the joint names of the deceased and his son Aredsheer Mondee on a letter written by the deceased. He produced the letter (Exh. 8/2). He further stated that Aredsheer used to operate this account after the change of the name but he was not sure of this because he was not the accountant. He further deposed that Aredsheer transferred a sum of Rs, 4,00,000 from this account
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to another Profit and .Loss account in his own name on 7-3-1982. He further stated that on 7-3-1982, there was a balance of Rs, 35,885.20 in this account and after the death of M. K. Mondee, it was not operated. He also stated that during the lifetime of the deceased he used to operate the account. He produced the statement of account from 14-6-1979 to 6-12-1979 (Exh. 8/4). He also produced a photostat copy of the statement of account from 19-12-1981 to 7-3-1982 marked as Exh. 8/5. ' In cross-examination to Mr. G. H. Abbasi, he admitted that Saving Bank Account No, 5877 was a joint account and could be operated by either or the survivor. The witness claimed that after the death of either, the account belong to the survivor and it becomes his sole account. The witness explained that he had not produced the statement from 7-12-1979 to 18-12-1981 because the account was not operated during this period. 15. Having given the resume of the evidence led by the parties in this case I now, proceed to consider the issues framed by consent in this case. ' The first issue is whether the will dated 20-5-1979, is a valid will. The will has been proved by the marginal witnesses namely, Jamshed Barucha (Exh. 4) and Mushtaq Hussain (Exh. 5). The first named witness has stated that the will (Exh. 4/1) was executed by the deceased in his presence and he proved his signature on the will. The second named witness also proved his signature on the will and also the thumb impression of the deceased on the will and stated that it was put on the will in his presence and execution was recorded by the Sub-Registrar in his presence. I need not discuss the evidence in this regard in greater detail as the defendant in his deposition has not questioned the execution of the will by the deceased. He has however, questioned the validity of the will because the deceased has left other properties in respect of which the will makes no provision. In other words, the objection in reality is that the probate of the will which does not contain residuary clause in respect of the properties of the deceased which have not been bequeathed could not be granted. I may here quote the evidence of the defendant in this regard. He deposed that "I am objecting to the validity of the will because there are many other properties outside the will. It is correct that there is no other objection to the will except that it does not relate to all the properties. However, I would deal with this objection while considering the fourth issue, that is the issue of relief. I therefore, answer the first issue in the affirmative. 16. Issue No, 2. This leads me to the consideration of the second issue whether the will does not mention all the properties left by the deceased, if so, what is the effect. It is therefore, necessary to consider the question whether the deceased has left any properties which are not mentioned in the will. ' The burden of this issue was on the defendant. The defendant in support of the claim that the deceased had left other properties which are not mentioned in the will has relied on the evidence of Mushtaq Hussain (Exh. 5) who in his deposition, while being cross examined by Mr. Hamza I. Ali Advocate for the defendant, admitted that the property bearing No, 42. SB-4, Saddar, Karachi was sold by the deceased and was purchased by his father in the name of his mother Razia Fatima. He produced a certified copy of the sale-deed (Exh. 512). According to the witness the property was sold by the deceased for a consideration of Rs, 1,50,000 out of a sum of which Rs, 1,35,000 was paid in cash to the deceased on 21-7-1979, which was kept by him on his bed. He further stated that the sale-deed was executed at the same time when the will was executed. The defendant also relied on the evidence of two other witnesses besides his own. He deposed that the deceased had a bank account at the time of his demise which was a joint account in his own name and in the name of his brother Aredsheer but according to him the money lying therein exclusively belonged to the father. ' It is proved by the' evidence of Abdul Raoof Qureshi, an Accountant of the Habib Bank Ltd. Frere Street Branch, Saddar, Karachi (Exh. 8) that there was a credit balance of Rs, 4,05,885.20 in the joint account bearing No, 5877-9 as on 6-12-1979. According to the evidence of the accountant a sum of
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Rs, 4,00,000 was transferred on the request of Aredsheer M. Mondi on 7-3-1982, from the joint account to his Profit & Loss Account No, 139-6 leaving the balance of Rs, 35,885.20 on that date in the account. The defendant has further stated that the deceased left Defence Saving Certificates, Khas Deposit Certificates, Postal Certificates N. I. T. Units and the jewellery as detailed hereinbefore. In support he produced a dividend warrant of N. I. T. Unit (Exh. 6/1) in the name of his mother who willed her properties including the N.I.T. Units to the deceased as evidence by the will and the probate marked as Exh. 6/4 and 6/5. According to the defendant, these Units on the demise of his mother became the property of the deceased and in support of which he relied on the memorandum (Exh. 3) which is in the name of the deceased for the same number of Units. According to the defendant the value of the jewellery left by the deceased was Rs, 1,50,000. He also claimed that the deceased had two expensive carpets and other furniture and a car when he went to live in the house of his daughter and the car was still with her and was being used by her husband Chemy. ' In support of the claim that the deceased left some cash, he also relied on the evidence of Minoo N. Bamjee, a Chartered Accountant (Exh. D-7) who tried to bring about a settlement between the brother and the sister whose evidence 'proved that the deceased had left some money which was divisible between the brother and the sister. According to him he divided it by two to find a figure of Rs, 3,40,009. There was not much cross-examination of this witness. However, it was brought out in the cross-examination of this witness that the defendant had changed the figure of Rs, 2,50,000 to Rs, 3,50,000 and that he had sent a cable to Aredsheer to settle the matter but the settlement could not be reached as the defendant went on varying the figure for the purpose of settlement. He started with Rs, 2,00,000 and went upto Rs, 5,00,000. ' From the evidence produced, it is proved beyond doubt that the deceased left many other properties. It is in evidence that the deceased had sold the property bearing No, 42. SB-4, Saddar, Karachi. For Rs, 1,50,000 by the registered sale-deed executed on 21-7-1979, and out of it, he had received a sum of Rs, 1,35,000 in cash on that date hardly ten days before he died. This money had not been accounted for. There is a joint Saving Bank account of the deceased with his other son Aredsheer in which a sum of Rs, 4,05,885.20 was lying in credit as on 6-12-1979. 17. It was argued by Mr. G. Raymond, learned counsel for the defendant that the money in the joint account belonged to the deceased] and that Aredsheer had no interest and the principle of advancement which applies to such cases in England does not apply to the Sub-continental He further argued that on the demise of the deceased there was a resulting trust in his favour in the absence of the proof of a contrary intention, there being in Pakistan no presumption of an intended advancement in favour of the son. He relied on F. J. R. Kerwick v. K. M. Kerwick (1), Shambhu Nath Shivpuri v. Pushkar Nath and others (2), Ismail Dada Adam Soma). v. Shorat Banoo (3), Abdul Latif Khan son of Abdul Wadud Khan and another v. Muhammad Akbar Khan and others (4). ' In the first named case, it was held by the Privy Council as follows : "The general rule and principle of the Indian law as to resulting trusts differs but little, if at all, from the general rule of English law upon the same subject, but in their Lordships' view it has been established by the decisions in the case of Gopeekrist Gosain v. Gungapersaud Gosain (1854) 6 M 1 A 53, and Moulvie Sayyud Ushur Ali v. Mst. Bebee Ultaf Fatima (1869) 13 M 1 A 232, that owing to the widespread and persistent practice which prevails amongst the natives of India, whether Mahomedan or Hindu, for owners of property to make grants and transfers of it benami for no obvious reason or apparent purpose, without the slightest intention of vesting in the donee any beneficial interest in the property granted or transferred, as well as the usages which these natives have adopted and which have been protested by statute, no exception has ever been engrafted on the general law of India negativing the presumption of the resulting trust in Favour of the person providing the purchase money, Such as has, by the Courts of Chancery in the exercise of their
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equitable jurisdiction, been engrafted on the corresponding law in England in those cases where a husband or father pays the money and the purchase is taken in the name of a wife or child. In such a case there is, under the general law in India, no presumption of an intended advancement as there is in England." ' In the second named case of the Privy .Council the facts were that a Hindu deposited his money in Bank in the joint names of himself and his wife and on terms that it was payable to either as survivor. It was held that there was no resulting trust in his favour in the absence of proof of a contrary intention, there being in India no presumption of an intended advancement in favour of a wife. Reliance was placed on an earlier decision of the Judicial Committee of the Privy Council in Guran Ditta and another v. T. Ram Ditta (5). ' In the case of Ismail Dada Adam Soomar v. Shorat Banoo (supra) it was held by Faruqui, J. That the principle of advancement which applies to such cases in England does not apply to the Sub- continent. Reliance was placed on Sura Lakhmiah Chesty and others v. Kothanaarama Pillai (6) wherein it was observed by their Lordships as follows : "A purchase in India by a native of India of property in India in the name of his wife unexplained by other proved or admitted facts is to be regarded as a benami transaction by which the beneficial interest in the property is in the husband although the ostensible {{FOOT NOTE}} (1) AIR 1921 P C 56 (2) AIR 1945 P C 10 (3) PLD 1960 (W P) Kar. 852 (4) AIR 1947 Pesh. 1 (5) AIR 1928 P C 172 (6) AIR 1925 P C 181 {{FOOT NOTE}} title is in the wife. The rule of the law of England that such a purchase by a husband in England is to be assumed to be purchased for the advancement of the wife does not apply to India:" ' It was further observed by Faruqui, J., in the aforesaid case that the English principle of advancement does not apply to India (also Pakistan) has never been doubted. And no distinction has been made between the cases of Hindus and Muslims on this question. Reliance was placed on Mst. Bilas Kunwar v.…
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