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Petitioner: Asghar Ali, since deceased through legal heirs. and others VS Respondent: Mst. Batul Bai, JUDGMENT
Court Name: Sindh High Court Judge(s): Salahuddin Panhwar Title:Asghar Ali, since deceased through legal heirs. and others vs Mst. Batul Bai,
JUDGMENT
Reported As: 2020 SHC 1160 Result: Appeal dismissed Judgment JUDGMENT SALAHUDDIN PANHW AR, J. By the dint of this common judgment I intend to dispose of captioned revision application and second appeal. 2. Applicant in R.A. being aggrieved with judgment dated 2nd No.2421/1996 (Old No.36/1973) filed for declaration, partition, accounts and injunction, as well as consolidated judgment dated 9th November , 2016 passed by learned District Judge Karachi South in Civil Appeals No.247, 248 and 251 of 2013 whereby appeal was dismissed, preferred captioned Revision Application . Likewise, appellant in Second Appeal, being partly aggrieved with judgment and decree dated 09.11.2016 and 16.11.2016 respectively , in Civil Appeal No.248/2013 dismissing his appeal, as well being aggrieved with judgment and preliminary decree dated 02.10.2013 and 03.10.2013 respectively in Suit No.2421/1996, filed captioned Second Appeal for modification of order . 3. Reference to the parties and brief facts of the case are being made according to the revision application having been filed earlier in time than the secon d appeal; these facts are that plaintif f Mst. Batul Bai (respondent No.1 herein) filed Civil Suit No.36/1973 (New No.242l/1996) against defendants Mst. Kulsum Bai, Rubab Bai, Asma Bai, Shafia Bai and Asghar Ali (whose legal heirs filed R.A.) for declaration, mandatory injunction, accounts and partition contending that Ghulam Hussain s/o Essajee, father of plaintif f and defendants died on or about 31.5.1935 in the earthquake of Quetta leaving behind surviving heirs and number of properties in Sindh and Quetta together with running business, bank accounts, jewelry , cash, shares, agricultural lands etc. Initially family was looked after by relatives and finally on account of assets and flourishing business they were able to maintain themselves; that as the only male member of the family defendant No.5/applicant No.1 looked over the entire ancestral properties referred above and continued to run the business of the firm M/s. Essajee and Sons which were founded by grandfather flourished at a very large scale during the life time of grandfather himself and as such properties were
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acquired from the income of this business and added to the ancestral property of the family; at the time of earthquake one of the brothers of the parties had also died, defendant No.5 Asghar Ali (since deceased through legal heirs in R.A.) was a student aged about 18 years and except for the mother and the elder sister , plaintif f/respondent No.1 as well as defendants were all minors, as such she did not have full particulars of the properties and assets; that defendant No.4 Mst. Safia Bai/respondent No.5 (since deceased through legal heirs) had married and settled in Jamnagar India since 1942 where she has her own independent business and assets, she still resides in India and in such circumstances is an alien; that mother of the parties also had her personal properties wherein once again the parties have inherited their shares; that after a great deal of efforts, plaintif f/respondent No.1 had been able to obtain information in respect of following properties being part of the assets left by the deceased father of the parties; defendant No.5 Asghar Ali had the complete information and control of the entire assets also the ancestral business and though called upon to disclosed the same but with malafidely and dishonestly refused to give such details, however , following assets become known to the plaintif f/respondent.No.1:- A. Agricultural lands, at Deh Tayab and W azirabad Sukkur . B. Plots in Dawoodi Bohra Housing Society , Karachi. C. Of fice of M/s. Essajee and Sons, Marriot Road, Karachi. Plot of land with structures bearing Khasra Nos.1557, 4865, 1612, D. 1383, 1384, 1375, 1387, 1586, 1692 at Quetta and Agricultural lands near Ibrahim Zia Karaj Quetta. Running business under the name and style of M/s Essajee and E. Sons having office at Marriot Road, Karachi, show rooms and offices on M.A. Jinnah Road, Quetta, with Branches in other places. Insurance Money received by the defendant No.5 and the mother F. of the parties as life insurance of the father and brother who died in the Earthquake and also for the loss of goods and business assets. G. Compensation paid by the then Government of India for the danger , losses and loss of lives in the earthquake of 1935/36. H. Joint business and its assets at Sukkur , under the name and style of A. Ghulam Hussain and Co., together with land and goodwill. I. Additional compensation and financial assistance paid by the then Government of India, for the purpose of Rehabilitation, reconstruction etc. J. Cash in hand, shares, gold bullion, ornaments, jewellery and precious stones including diamonds, which were stored in the especially-constructed underground vault and the strong room cons tructed underground and which remained undamaged. K. Accounts in the various banks in the personal name and also in the name of the firm. 4. It was further pleaded that defendant No.5/applicant being the only surviving male member of the family conducted the family business and looked after the movable and immovable prope rties of the family for himself as well as on behalf of the other heirs and the mother of the parties who died on or about 16.12.1960 leaving behind her own personal properties and assets of father of the parties and the plaintif f/respondent No.1 and rest of the parties, entitled to inheritance according to Muslim Law applicable to Dawoodi Bohras, to which the parties belong; that defendants (applicant No.1 and defendants No.2 to 5) in collusion with each other and in order to deprive the plaintif f/respondent No.1 of her share appear to have arrived at some understanding amongst themselves, especially between defendant No.2/respondent No.3 and defendant No.5/applicant No.1 on account of marriage of daughter of defendant No.5 with son of defendant No.2 and on occasions, defendant No.5/applicant No.1 who is in charge of the business, has obtained signatures of plaintif f/respondent No.1 on blank papers with the plea that the same were required for the various departments and in the transaction of the busin ess of the family and during the lifetime of the mother , they always assured of an amicable settlement and also of the payment of due share of plaintif f/ respondent No.1 but after death of the mother , they kept her on empty promises; that on numerous occasions plaintif f/ respondent No.1 called upon all the defendants to disclose the assets and particulars of the
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properties of the family but they avoided to do so. resultantly , plaintif f/respondent No.1 was constrained to serve defendant No.5/applicant No.1 with legal notice dated 09.11.1971 and in response thereof a meeting was arranged at the house of Tayab Ali which was attended among others by Abdul Hadi, Tayab Ali meeji Harianawala, Saleh Bhoy the husband of plaintif f, and defendant No.5 wherein defendant No.5/applicant No.1 had agreed to sell the entire assets including agricultural lands and running business of the family together with all subsequently acquired properties and business at an agreed price but inspite of subsequent legal notice dated 03.5.1972 on behalf of Saleh Bhoy and legal notice dated 02.6.1972, he did not honor the commitment; that in his reply dated 18.5.1972 defendant No.5/applicant No.1 claimed an alleged agreement dated 12.10.1961 under which it is asserted that plaintif f and defendants No.1 to 4 all had agreed to forego the accounts, partition and share in the family properties in consideration of being satisfied with a property of Rs.25,000/- from the list alleged to have been furnished, whereas plaintif f/respondent No.1 has no knowledge of such an agreement if any which is collusive, forged and fraudulent, and is not binding on her; that as per Muslim Law, she is entitled to 1/7 share in the family assets, business, accretions, additions, profits thereof and to the family jewels, savings, cash accounts, bank account, gold bullion, in the form of guineas, insurance life policy , fire and earthquake policies for movable and immovable properties, bank account, compensation received from the then government of India etc., which have and continue to constitute the present assets, according to her a sizeable amount has been fraudulently transferred by defendant No.5/ applicant No.1 in name of his childr en, wife and other relatives, money has been deposited in various banks within and outside the country and the valuables like jewellery diamonds, precious stones and gold bullion/guineas are in the different vaults; that all the legal heirs (defendants/applicant No.1 and respondents No.2 to 5) are in collusion and in one case fraudulently defendant No.5/applicant No.1 appears to have made settlement wherein face value is dif ferent from the actual amount involved hence plaintif f/respondent No.1 prayed :- I. That the defendants specially defendant No.5 (applicant No.1 herein) be directed to render full and true accounts of all income and profits, advantages and benefits derived and received from the movable and immovable properties left behind by the parents of the parties; II. Judgment and Decree of the amount found due to the plaintif f as 1/7 share on rendition of accounts, be passed against the defendants, recoverable from defendant No.5, in favour of the plaintif f (respondent No.1 herein); III. Defendant No.5 be required to disclose true and full details of the properties, movable and immovable, including life insurance, claims, against the insurance company , duly satisfied, compens ation for losses, received from insurance Co. and Government agencies, cash balances, bank accounts, shares, jewellery , gold bullion, precious stones, including diamonds etc, received by defendant No.5 since the Earthquake in Quetta of 1935/36 with details of bank accounts and safe deposit lockers maintained in his name or the name or names of his family members; IV. Partition of the 1/7 share of the plaintif f in all the properties; V. Costs of the suit and such expenses as may be required in the implementation of the necessary requirements arising during the course of proceedings; VI. Any other further relief/relieves, which this court may deem fit and proper under the circumstances of the case. 5. Defendants had filed their separate written statements in the civil suit. Defendant No.1 Kulsum bai (respondent No.2 through legal heirs herein) stated that mother of the parties namely Fatima Bai had also survived the earthquake and Asghar Ali defendant No.5 being the only male member of the family under the guidance and control of their mother took charge of the whole estate of deceased Ghulam Hussa in, including cash, gold, jewelry and running business of Essajee & Sons together with all its assets, good will and outstanding, bank accounts and bank accounts of deceased for and on behalf of all legal heirs and conducted business, looked after and managed all properties, received insurance claims in respect of Ghulam Hussain and in respect of wife of Fida Hussain who had also died in earthquake and defendant No.5 also received compensation paid by government; he was incharge of all the aforesaid movable and immovable properties for and behalf of all parties and managed the same under direction of their mother for their benefit; that defendant No.5 had no property of his own and no money of his own at the time of earthquake and all the money that he has held since then was belonging to the estate and earned from its income, investment business etc and all properties that defendant No.5 has since purchased in is name actually are the properties of all the partie s; that all the parties have their respectiv e shares therein and during the
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life of the mother it was always considered that all the properties inherited and acquired after the demise of Ghulam Hussain were joint properties and on the death of the mother in the year 1960 her share in all the aforesaid properties was also inherited by the parties but remained in charge of defendant No.5 who was taking advantage of the fact that defendant No.1 was a pardanasheen lady knowing nothing of the worldly affairs and whose husband was completely under his influence, got Sale Deed executed by defendant No.5 on 30.05.1962 in respect of all her share in the estate of late Ghulam Hussain Essajee and Fatima Bai and all the income derived therefrom for a partly sum of rupees 25,000/- without disclosing the true extent of the whole property , their market value, the income derived therefrom, which he has avoided to reveal and she being an ignorant lady was unable to comprehend the true nature of the transaction which was never explained to her; that from the instant lis she for the first time learnt that how her own brother had deceived her and made to execute a document for a price which is totally unconscionable hence claims that the same may be cancelled and she may be awarded her share in the aforesaid estates together with account of the income thereof relating to her share and decree for the partition, possession of her separate share and the amount found due; that defendant No.5/applicant falsely alleged that agricultural lands in Deh Tayab and Wazirabad, Sukkur and Brewery Road, Quetta and plot of land with structure bearing Khasra No.1692 Quetta and plot in Dawoodabad Housing Society Karachi were his personal property and as such did not form part of the estate of deceased parents; that agricultural lands in Deh Tavab, Wazirabad and Balali Road Quetta arc ancestral properties and could not by any stretch of imagination become his personal properties, even all the other aforesaid properties were acquired by him out of the income of the aforesaid estates and belonged to all parties in their respective shares. Lastly , she claimed a decree against defendant No.5/applicant in the same terms as prayed by the plaintif f/ respondent No.1. 6. Defendant No.2 Rubab Bai (respondent No.3 herein through legal heirs) in her written statement had stated that the mother of the parties namely Fatima Bai had also survived the earthquake and defendant No.5/applicant being the only male member of the family under the guidance and control of their mother took charge of the whole estate of deceased Ghulam Hussain including cash, gold, jewelry and running business of Essajee & Sons together will all its assets, goodwill and outstanding, bank accounts and bank accounts of the deceased for and on behalf of all the legal heirs and defendant No.5/applicant had conducted the business, looked after and managed all the properties urban, rural and agricultural, received insurance claim in respect of the life of Ghulam Hussain, the father of the parties and in respect of the life of Fida Ali the brothers of parties who had also died in the earthquake and defendant No.5/applicant had also received the compensation paid by the Government for issues resulting from earthquake and the defendant No.5/applicant was in charge of all the aforesaid movable and immovable property for and on behalf of all the parties hereto and managed the same under the direction of their mother for their benefits; that defendant No.5 had no property of his own and no means of his own at the time of the earthquake and all the assets that he has held since then all the properties belonging to the estate and earned from its income, investment, business and sale of shops and all the properties that defendant No.5 has purchased in his name actually are the properties of all the parties hereto and all the parties have their respective share therein the answering defendant/respondent No.3 was also a minor and unaware of the family properties and still is unaware about most of them. It is stated that the mother of the parties managed the joint properties of the family through defendant No.5 and after her death in 1960, who managed all the joint family properties independently as he was the only male family member and after the death of the mother in 1960 her properties and her share in the joint family properties, devolved on the parties in the suit; that she is a pardanashin lady and defendant No.5 who was the sole administrator of properties and business, several times during these days got her signatures and other sisters and the he is as yet unaware of the imports and contents of the said documents and any document got executed by defendant No.5 from her in respect of the ancestral properties by fraud may be treated as null and void and not binding upon her and her share in the aforesaid properties together with an account of the income relating to her share and a decree for partition, possession of her separate share and the amount found due and that she is unaware of any collusion betw een other defendants; that if defendant No.5 had obtained her signatures on any document which goes against the interest of the parties including her then it is done by fraud and without understanding and such document is null and void and not binding: that only defendant No.5 who knew about the
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assets and particulars of the properties in which all the legal heirs would have a share and she was quite ignorant of the same; that if her signatures are found on any of the document as alleged by plaintif f then they must have been obtained without disclosing the contents and effects of the said document; she denied that she has ever been a party in any collusive act as alleged in plaint, she prayed for passing a decree in her favour regarding her share in the properties; she pleaded that she is ready and willing to pay any court fee if required under the law and further prayed for cancelation of any document produced by defendant No.5 during the proceedings of the suit. 7. Defendant No.3 Asma Bai/respondent No.4 was debarred from filing written statement in the suit. Defendant No.4 Shafia Bai (respondent No.5 through legal heirs herein) denied that deceased left behind any running business or any properties in Sindh or any shares, bank account, jewelry or cash; she denied that they were looked after by their relatives; she stated that they were initially looked after by their mother and thereafter by defendant No.5/applicant being the only male heir; she denied that deceased Ghulam Hussain had left any asset and flourishing business out of which they were maintained; she stated that owing to the severity of the earthquake entire business premises of the firm of Essajee and Sons was destroyed and nothi ng was left except the bar earth; there was no bank account or any contin ued business of that firm; that after the earthquake Quetta was almost destroyed; at that time her mother , a sister and defendant NO.5 were adult, rest were minors; that plaintif f and defendant Nos.1 to 3 (respondents No.2 to 4) did not have information about what was left after the death of their father . 8. Defendant No.5 Asghar Ali (applicant through legal heirs in R.A.) denied that their father left behind any property in Sindh, any running business, bank account, jewelry or cash etc, as alleged; he only left behind some landed property; it is denied that they were looked after by the relatives; in fact they all were looked after by their mother for some time and then by defendant No.5; suggestion that they were able to maintain themselves on account of the assets and flourishing business of the deceased is entirely incorrect; he denied that he carried on the business of the firm; it was stated that the business of defendant No.5 was his own and had no connection with his father's business which had absolutely no trace left after the earthquake and defendant No.5 started new business with entirely his own resources although the name of the firm was same; it was stated that although some landed properties were acquired by his father , he heavily indebted to various people so far as his business was concerned and the mother of the parties looked after the entire family except answering defendant in the initial stages with the insurance claim that she received on the death of the deceased, during this period, defendant No.5 was able to establish his business to some extent and the family came back to Quetta and lived with him, thereafter he looked after all the family members and also arranged for their marriage; he denied that he was called upon to disclose the assets of the deceased; plaintif f as well as other defendants had full knowledge of all the assets left by the deceased, plaintif f did not have to make great deal of efforts to find out particulars of the properties given by her in the plaint and the particulars are obviously based on the particulars as given in the agreement between the parties dated 12.10.1961, of which plaintif f is pretends to be completely unaware, so much so that in her pleadings plaintif f has mentioned the properties with same serial number as mentioned in the agreement, The replies to the individual items is that:- i. Agricultural lands at Deh Tayab and Wazirabad and the plots in Dawoodi Bohra Housing Society , Karachi, are the self acquired property of the Defendant No.5. ii. There is no office of Essajee & Sons at Marriot Road, Karachi or other place as mentioned. Beside of Messrs Essajee & Sons mentioned at serial E has no connection with the family business of the deceased. Except for the land at Quetta over which the shop building was constructed by Defendant No.5 after the earthquake the entire business, though carried on by answering defendant under the same name is his own separate and self-acquired business started with his own funds and efforts. Plaintif f has no conceivable share in it. There was total destruction of the shop in the fire after the earthquake and there was nothing left except the land. iii. With respect of the various plots of lands mentioned at serial D, except for the plot of land bearing Khasra No.1692 and agricultural lands near Ibrahim Zia Karaj, Quetta, rest of the plots are admitted to be ancestral properties;
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iv. As regards the insurance money it is denied that answering defendant received any insurance money . It is absurd to suggest that this Defendant who was himself a minor at the time would be given the insurance money particularly when the mother and the eldest sister , defendant No.1 were alive. In fact, the entire insurance money was received by the mother who obtained Succession Certificate while she was in Jamnagar alongwith Defendant's sisters after earthquake. v. No compensation as alleged was at all paid. What the then Government did was to allot a plot of land admeasuring 50 feet by 25 feet over which the Defendant constructed a tin shade and stated business. vi. There was no so-called additional compensation as alleged. vii. The various items mentioned at serial J are entirely imaginary and without any basis. Deceased did not leave behind any cash in hand, shares, gold bullion, ornaments, jewelry , precious stones as alleged. viii. It is also denied that the deceased left any money in the accounts in any bank either in his personal name or in the name of the firm. All the papers of the deceased were destroyed and answering defendant is totally unaware of any such account. If any such funds were left or traceable the plaintif f's mother and elder sister would certainly have realized the same by virtue of the Succession Certificate obtained by them. 9. It was contended that plaintif f had colluded with defendant No.1 in her attempt to deprive defendant No.5 of his lawfully acquired property and these allegations have been made. with ulterior object of getting out of the commitments voluntarily made by plaintif f; that by agreement dated 12.10.1961 entered into between answering defendant and plaintif f and other defendants, amicable partition was affected between the parties but plaintif f later on went back on her commitment: that the matters could not be amicably settled because of the unreasonable attitude of plaintif f; that plaintif f was in full possession of all particulars of ancestral property but ad already agreed to accept the amicable partition as per the said agreement, although a meeting was held as alleged in paragraph No.18 of plaintif f but it is denied that answering defendant agreed to the terms as stated therein. It was stated that the suit has been grossly undervalued and proper court fee has not been paid and plaintif f has failed to give proper valuation of her claimed share of the immovable property . Likewise legal heirs of defendant No.5/applicants No.1 (a) to 1(g), 2 to 5 adopted the contents of written statement filed by defendant No.5. 10. Out of the pleadings of…
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