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Official Citation: 2019 SHC 78
Court / Jurisdiction: Sindh High Court
Year of Decision: 2019
Decision Date: 2019-03-14
Parties: Muhammad Hussain Qureshi vs Mrs. Mumtaz Muzakkir and others
This judicial decision was delivered by the Sindh High Court on 2019-03-14. The matter involves proceedings between Muhammad Hussain Qureshi and Mrs. Mumtaz Muzakkir and others, officially reported as 2019 SHC 78. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as 2019SHC78
Court Name: Sindh High Court Judge(s): Zulfiqar Ahmad Khan, Syed Hassan Azhar Rizvi Title: Muhammad Hussain Qureshi vs Mrs. Mumtaz Muzakkir and others Case No.: (1) HCA No.67 of 2007 (2) HCA No.73 of 2007 Date of Judgment:2019-03-14 Reported As: 2019 SHC 78 Result: application dismissed
Judgment Zulfiqar Ahmad Khan, J:- This order will dispose of CMA No. 219 of 2017 moved under Section 12(2) C.P.C. read with Order XXXIX Rule 1 & 2, read with sections 94 and 151 C.P.C. ("CMA 219") where a prayer is made to set aside orders dated 21.12.2016 and 28.12.2016 passed in the High Court Appeal No.67 of 2017 ("HCA 67"), as well as, a prayer is made that sale of the plot of land bearing No. 84, N-I Lines, admeasuring 0.91 acres (approximately 4400 Sq.yds) Aziz Bhatti Shaheed Road, Saddar , Karachi ("the said property"); and CMA No.731 of 2017 moved by Deputy Attorney General on behalf of MEO where prayer is made to set aside or recall the order dated 28.12.2016. 2. Through HCA 67 appellant Muhammad Hussain Qureshi son of late A. M. Qureshi impugned judgment dated 12.3.2007 and decree dated 20.3.2007 passed by the learned Single Judge of this Court in terms of which Civil Suit No.756 of 1998 (Mst. Afroz Shah and others vs. Tariq Qureshi and others) pertaining to declaration, cancellation, partition and administration of estate left by A.M. Qureshi who died on 22.06.1989 as Sunni Muslim. Late A.M.Qureshi had two wives namely Mst. Kulsoom Bibi and Mst. Hafeezun-Nisa. The said suit was moved by the children of A.M.Qureshi from Mst. Kulsoom Bibi, where their step brother and sisters (from Mst. Hafeezun- Nisa) were arrayed as defendants and the dispute related to the said property on which originally a school was running under the name of Mari Calaco School, which was nationalized controlled and managed by Secretary, Education Department, Government of Sindh, consequent thereupon A.M.Qureshi filed Rent Case No.14 of 1978, where ejectment was allowed against Government of Sindh, which order was assailed in Appeal No. 8 of 1983. Upon the said appeal having been dismissed, Government of Sindh preferred Constitutional Petition No.S- 23 of 1985, which was allowed vide order dated 09.09.1985. The said order was assailed before the Hon'ble Supreme Court of Pakistan, which remanded the case, whereupon a fresh ejectment order was passed, on which Government of Sindh preferred a further appeal, which was dismissed, whereupon Constitution Petition No. 192-K of 1997 was moved, which was also dismissed by the Apex Court vide order dated 09.02.1998.
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Controversy between the rival parties started when the plaintiffs obtained a certified copy of the order passed by the Hon'ble Supreme Court of Pakistan on 09.02.1998 showing late A.M. Qureshi being represented through his legal heirs comprising the defendant children from Mst. Hafeezun Nisa, while the plaintiffs' side of the family was not pleaded as Mr. Qureshi's legal heirs. 3. On 25.05.1998 a news item was published in the Daily Jang reporting demolishing of Mari Calco School (quite a prestigious school of its time), which shocked the plaintif fs as they were also claiming to be legal heirs of deceased Qureshi having interest in the said property . Plaintif fs claimed that the defendants presented a forged declaration and confirmation of oral gift dated 20.05.1975 which enabled the defendants to have their names mutated in the record of MEO (Karachi) in respect of the said property . They alleged that the said declaration and conformation of oral gift had forged signature of late A.M. Qureshi. It was contended that late Mr. Qureshi died in June 1989 whilst the mutation was (fraudulently) effected in the year 1991 on the basis of an unregistered document. It was specifically pleaded that late A.M. Qureshi till his death remained owner of the said property and he contested all matters up to the Apex Court, and he never gifted the said property to the defendants in exclusion of the plaintif fs who being legal heirs and co-owners were entitled to appropriate share in the said property in accordance with Muhammadan law. The said suit was defended by the rival family members, who in their written statement admitted that late A.M. Qureshi expired on 26.6.1989, as well as, that plaintif fs No.1, 2 and 3 were his legal heirs, however , disputed parentage of the Plaintif f No.4 (the appellant in HCA 67). It was denied that the subject property was part of estate of the deceased, rather it was pleaded that on 22.05.1973 Mr. Qureshi had gifted the said property to the defendants and inter alia wrote a letter to Deputy Collectorate (East) Division informing the latter about the said gift and called upon the said officer to delete his name from the record and mutate the property in the name of the donees (defendants). Defendants No.1 to 6 however stated that since the original gift deed was misplaced therefore another gift deed was executed on 01.5.1975 in favour of the donees. The Defendant also relied upon a wide range the communication between defendants No.1 to 6 and Government of Sindh, Education Department pertaining to the said School suggesting that plaintif fs had full knowledge of the gift deed and have mischievously asserted their claim as to the co-ownership of the property . It was admitted that possession of the said property as an outcome of the ejectment proceedings was only delivered on 23.05.1998, whereupon old structure was bulldozed. Defendants No. 7 and 8 adopted the arguments of the other defendants and maintained that the property was gifted by their father A.M. Qureshi to defendants No.1 to 6 in pursuance of the gift deed dated 26.5.1973, and supported the contention of the other set of defendants that the original gift deed was misplaced. 4. Upon pleadings of the parties, the trial court framed the following issues: 1) Whether the suit is time barred? 2) Whether the plaintiffs have no cause of action for this suit? 3) Whether the property in dispute was gifted to defendant No.1 to 6 by their father? 4) Whether the plaintif fs are entitled to their shares in the suit property by inheritance? 5) Whether the document of declaration of gift in favour of defendants is a forged document and hence liable to cancellation? 6) Whether the property can be partitioned by meets and bounds? 7) Reliefs? 5. Through detailed judgment dated 12.03.2007 spreading over 25 pages, the learned Single Judge reached to the following conclusion:- "Upshot of the above discussion is that disputed property has devolved upon all the legal heirs of A.M. Qureshi excluding Plaintiff No. 4, they being co-sharer are entitled to have their share in accordance of Muhammad Law, consequently document purported to be declaration and confirmation of oral gift being forged is nullity in law, consequently same is hereby cancelled, entries in the record of Military Estate Circle Cantonment Karachi in the name of defendant No.1 to 6 stands cancelled with no order as to cost." 6. Being aggrieved by the said outcome, Plaintif f No.4 Muhammad Hussain Qureshi ("MHQ") whose claim was squarely denied by the learned Single Judge impugned the said outcome in HCA 67. It is also pertinent to distinguish that defendants No.1 to 6 namely Tariq Qureshi, Akbar Qureshi, Iqbal Qureshi, Nasir Qureshi, Altaf
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Qureshi and Seema Qureshi also challenged the said outcome by filing HCA No. 73 of 2007 ("HCA 73") against all (four) children of Late A.M. Qureshi through his wife Mst. Kulsoom Bibi (i.e. the Plaintif fs in Suit No. 756/1998) including MHQ whereas HCA 67 only challenged the judgment and decree to the extent that share denied to Plaintif f No.4 (MHQ) be admitted and judgment and decree be set aside to that extent; whereas, in HCA No. 73 children of Late Qureshi from Mst. Hafeezun-Nisa prayed that the decree and judgment to be set aside in toto i.e. the claim of three (remaining) children of late A.M. Qureshi through his wife Kulsoo m Bibi be dismissed (keeping in mind that Court had already dismissed the claim of the fourth child MHQ). Both the appeals were connected on 23.05.2007 and interim orders to the extent that no third party interests to be created in the subject property were passed. Both the appeals continued pending for the longish period. 7. As the matter lingered on for a considerable length of time, all the relevant parties (with the exception of MHQ) through CMA No. 1278/15 in HCA 73 moved a compromise application under Order XXIII Rule 3 read with Section 151 of CPC stating that the parties (of the application) had amicably settled their disputes outside the Court and have agreed to compromise the litigation subject to the terms and conditions laid down therein. Since MHQ did not sign the said compromise application, outcome of the said compromise was to remain subject to the final decision of HCA 67 moved by MHQ. Pertinent terms and conditions of the said compromise application are reproduced hereunder:- "v. That Muhammad Hussain Qureshi preferred HCA No. 67 of 2007 before the Hon'ble High Court of Sindh at Karachi against Judgment dated 12.03.2007 and Decree dated 20.03.2007 passed in civil Suit No. 756/1998 2007 before the Hon'ble High Court of Sindh at Karachi, which is still pending adjudication and a stay order is operative in respect of property bearing Plot No. 84 N.I. Lines, Saddar Karachi. The parties to this compromise application agree that they shall use all efforts to dispute the claim of Muhammad Hussain Qureshi in HCA 67 of 2007 before the Hon'ble High Court of Sindh at Karachi and this compromise shall be subject to final decision of HCA No. 67 of 2007 and/or any legal impediment created by any proceedings launched by Muhammad Hussain Qureshi. vi. That since the litigation has consumed almost two decades as such the Respondents No.1, 2 & 3 by way of settlement accept the gift in favour of the Appellants and Respondent No.5 to 8 thereby the gift to the extent of property bearing Plot No.84, N.I. Lines, Saddar , Karachi, may be declared as valid thereby Judgment and Decree impugned through the captioned Appeal may be set aside to that extent only . vii. That the Appellants No.1 & 2 and Respondents No.5 to 8 from the net sale proceeds after deduction of tax and other government charges, if any, of property bearing Plot No.84, N.I. Lines, Saddar , Karachi shall pay 20% to Respondents No.1 & 2 in the manner that (a) Appellants No.1 & 2 and Respondents No.5 to 8 from their share shall pay equally 16.40% to Respondents No.1 & 2 and (b) the remaining 3.6% shall be paid by the Appellants No.1 & 2 and Respondents No.5, 6 & 8 respectively, within Twelve Months from the date of the final decision in HCA No.67 of 2007 or any appeal thereafter. The approximate prevailing market value of the said plot shall be determined by 3 evaluators each, to be appointed in a manner that one is appointed by the Nazir of this Hon'ble Court and one each by the Respondent No.1 & 2 (as one component) and Appellants and Respondents No.5 to 8, (as the other component). Provided that in the event of difference in evaluation, the average of all three evaluations shall be taken as the approximate prevailing market value of the property, whereas, presuming the value of the property is Rupees One Thousand Million, and basing the distribution on the presumed value, the Respondent No.3 shall be paid a sum of Rs.2,00,00,000/- (Two Crore) in the following manner: a) Respondents No.1 & 2 from their share shall pay a sum of Rs.1,40,00,000/- (Fourteen Million) to Respondent No.3. b) Respondent No.6 from his share shall pay a sum of Rs.20,00,000/- (T wo Million) to Respondent No.3. c) Respondent No.8 from his share shall pay a sum of Rs.40,00,000/- (Four Million) to Respondent No.3. viii. Time shall be essence of the contract as per clause vii above and the property bearing Plot No.84, N.I. Lines, Saddar, Karachi will be sold in the open market and either party shall be at liberty to purchase the property himself or to bring forth a buyer willing to purchase the same at the approximate prevailing market value determined as per clause vii above.
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ix. That if the Appellants and Respondent No.5 to 8 fail to pay the amount as mentioned above in para (vii) to Respondents No.1 & 2 within Twelve Months, subject to clause viii above, then property bearing Plot No.84, N.I. Lines, Saddar, Karachi shall be attached by the Nazir of this Court and thereafter, Nazir shall sell said plot and shall pay 20% of the netsale consideration (as in clause vii) of said plot to Respondents No.1 & 2, without any notice or execution process and shall pay remaining 80% equally amongst Appellants and Respondents No. 5 to 8. x. That the Appellants and Respondents No.1, 2, 3 & 5 to 8 and each one of them shall cooperate in disputing the claim of Mr. Muhammad Hussain Qureshi being the subject matter of HCA No.67 of 2007 before this Court. xi. That the Respondents No.9 & 10 have already admitted in their Written Statement before the Trial Court regarding the execution of declaration of oral gift dated 20.05.1975, however , Respondent No.10 is the witness of the said gift. xii. That the Appellants and Respondents No.5 to 8 hereby agree and confirm that upon passing of the relevant Orders in the titled appeal/ compromise application by this Hon'ble Court the Appellants and Respondents No.5 to 8 shall handover original documents of property bearing Plot No.84, N.I. Lines, Saddar, Karachi as surety (currently in custody of Appellants and Respondents No.5 to 8) to the Nazir of this Hon'ble Court within seven days, who shall keep the same in safe custody. In the event the property is sold by private agreement, the documents shall be handed over to the purchaser on the joint request of the parties hereto. In the event the property is sold by the Nazir, the document shall be delivered to the purchaser directly to the purchaser on the confirmation of sale by the Court. In case Appellants and Respondents No.5 to 8 fail to provide aforesaid documents to Nazir, the Nazir will be entitled to collect/get aforesaid documents from the concerned department/ authority etc. without any notice or execution process. xiii. That it is declared and clarified that the Appellants and Respondents No.5 to 8 shall pay 20% of the netsale consideration of property bearing Plot No.84, N.I Lines, Saddar, Karachi as per clause vii above, to Respondents No.1 & 2 and the Respondents No.1 to 3 shall not claim any other payment form the Appellants & Respondents No.5 to 8. xiv. That it is hereby jointly and severally declared, clarified and understood by the Appellants and Respondents No.1, 2, 3 & 5 to 8 that any breach or violation of any clauses of this agreement, mentioned hereinabove by any one of them, inclusive of their respective legal heirs, successors in interests etc. shall be taken to be unauthorized, illegal, void and nullity , having no legal significance. xv. That the terms and conditions of this application, as agreed upon between the Appellants and Respondents No.1, 2, 3 & 5 to 8 shall be binding upon them and shall also be enforceable through the Court of Law of competent jurisdiction. 8. Counsel for Respondent No.4 MHQ was present on 06.05.2015 when the said compromise application was taken up by the Court and he objected to the instant move of selling the said property through the intended compromise. On 02.07.2015 in the presence of counsel for Respondent No. 4 (MHQ), Mr. Zahid Marghoob, Advocate, the following order was passed: "1. Granted. 2. Mr. Mureed Ali Shah, advocate for respondents, except Respondent No.4, submits that all the parties, except respondent No.4, are agreeable to dispos al of this High Court Appeal in terms of the compromise application. He submits that so far dispute regarding share of respondent No.4 is concerned, his share may be directed to be kept with the Nazir of this Court till decision of HCA No. 67 of 2007, and remaining amount may be distributed amongst the legal heirs of late A.M. Qureshi as per the compromise application. Copy of the listed application has been handed over to Counsel for respondent No.4 in Court today who requests for time to seek instructions. However , he submits that his application regarding DNA test of the parties may be decided first. 3. Notice to other side for a date soon after Summer V acation." 9. On 12.8.2015 in the presence of counsel for Respondent No.4 (MHQ), following order was passed: "These are two connected High Court Appeals. At the present time we are concerned only with CMA No.1278/2015 filed in HCA No.73/2007 whereby a compromise is sought to be recorded between the parties in this litigation except one party , who is the respondent No.4 in HCA No.73/2007, and is the appellant in connected HCA No. 67/2007. With reference to aforementioned CMA an order was made on 02.07.2015. Today before us learned
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counsel for the respondent No.4 has raised his objections to the recording of a compromise as per the CMA, and has also urged for an order on an application pending in his HCA No.67/2007. We have been briefly assisted by the learned counsel in attendance today on the CMA. Entirely without prejudice to the case of the respective parties, both in terms of the two appeals on the merits and also with reference to CMA No.1278/2015, we are of the view that no prejudice shall be caused to any of the parties (including in particular to respondent No.4) if a preliminary exercise, along the lines as contemplated by the compromise application, is allowed to be carried out. Therefore, we direct with reference to para (vii) of the compromise application that let the three evaluators as therein referred to be appointed in respect of the subject property , in terms as therein contemplated, and let those evaluators make their evaluations and place the same before the Nazir . For this limited purpose only, let the parties, either themselves or through counsel, appear before the Nazir on 22.08.2015 at 11.00 a.m. The Nazir may make such orders and give such directions as are necessary or expedient to give effect to the order being made today so that the exercise hereby directed is completed within four weeks from the date on which the parties are to appear before the Nazir. The Nazir is directed that the absence of any of the parties shall not hold up the exercise. We again emphasize that this is a procedural exercise only and is entirely without prejudice to the case of respective parties as noted above. For the time being let the expenses in respect of this exercise be shared equally between the two "components" as are referred to para (vii) of the aforementioned compromise application but final decision as regards the expenses shall be as directed by the Court. Should one or the other of the "components" fail or delay depositing the due share of the expenses, such share may be paid by the other "components", subject to subsequent adjustment. Once the exercise has been carried out let the Nazir prepare a reference for consideration by the Court, and let these High Court Appeals be listed thereafter , for a consideration of the reference, as also CMA No.1278/2015 and also the objections that are being taken to this CMA by the respondent No.4." 10. In compliance of the said order of 12.08.2015, Nazir submitted his report dated 27.10.2015 dilating outcome of the valuation exercise conducted in respect of the subject property . Matter was again taken up on 02.12.2015 in the presence of counsel for Respondent No.4 in HCA No. 73 of 2007 and Appellant in HCA No. 67 of 2007 (MHQ). The said counsel on that date sought time to go through the Nazir report, also relevant to observe is that Court offered last opportunity to the said counsel to seek instructions from his client (MHQ) with regard to the Nazir report, making it clear that the matter will be proceeded on the basis of record as available and with the assistance of the learned counsel in attendance on the next date of hearing. 11. Order passed on 25.08.2016 is also of relevance, which is reproduced as under:- "Let this matter come up on 06.09.2016. We have had the assistance of learned counsel for some of the parties, who are before us in this and connected appeal and we are confident that as submitted by learned counsel before the Court, a statement for consideration of the Court will be drawn up, which will cover all of points, which were made before us and adequately preserve and protect the interest of respective parties, especially the Appellant in High Court Appeal No.67 of 2007 insofar as the merits of this Appeal are concerned." 12. Thereafter the matter came up on 06.09.2016, when the following order was passed:- "With reference to order of previous date learned Counsel for Respondents No.1 and 2 has prepared a statement. Let learned Counsel supply copy of this statement to learned Counsel for Appellant who was also before us on the previous date. Today other learned Couns el have also joined the proceedings, on behalf of various other parties in this and/or connected HCA No.73/2007. Copy of this statement may also be supplied to other learned Counsel. We are informed that in HCA No.73/2007 learned counsel for Respondent No.3 has filed some CMA. Also in HCA No.73/2007 learned Counsel for Respondent No.9 seeks to file counter affidavit. However , since these parties have not put in appearance before the Court for the last several dates, as of today we will first take up the matter that was under consideration by the Court on the previous date and in terms of which statement, as mentioned above, has today been filed. It is only thereafter that notice will be, if the Court so deems appropriate, directed to be issued on freshly filed CMA and/or permission granted to Respondent No.9 to file counter af fidavit Today learned Counsel who have now joined the proceedings on behalf of their respective parties have been brought up to speed with regard to what had happened on the previous date and the context in which the statement
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has been filed. All the learned Counsel will be heard in full with regard thereto and matter to come up accordingly . To come up on 27.9.2016. Learned Counsel for Mr. Muhammad Hussain , Appellant in HCA No.67/2007 [MHQJ, also files a statement duly signed by learned Counsel as also by the Appellant who is today present in Court with reference to order of previous date. Copy may be supplied to all the learned Counsel who are present today . This statement also to be taken up in terms as noted above on the next date." 13. Order dated 08.12.2016 is also of relevance, which is reproduced as under:- "With reference to order of previous date, certain objections have been taken by some of the parties, which are taken on record. Copies supplied to the other parties, who may go through the same. To come-up on 21.12.2016 at 11.00 a.m., on which date (although it is only a tentative observation) if no cogent, valid or substantial objection which satisfies the Court both in terms of the letter of the law and in equity that the proposed sale/transaction should not go through, then the Court may pass such order , which it deems appropriate. Learned counsel appearing for the Appellant No.1 in HCA No.73/2007 states, on instruction, that the consent of this Appellant to the proposed sale/transaction may be recorded since learned counsel states that he would be on general adjournment from 17.12.2016 onwards. So noted and recorded." 14. The instant Section 12(2) CPC application numbered as CMA 219 of 2017 was moved on 16.01.2017, which was taken up for orders on the same date, where by way of interim orders Nazir was directed to not to finalize the transfer of property in favour of the bidder . On 19.01.2017, Mr.Ahmed Pirzada, Advocate appeared on behalf of auction purchaser , who claimed copy of the instant application. On 28.02.2017, Mr. Mushtaq Memon, Advocate showed appearance on behalf of the Respondent Nos.5, 6 and 7 and some other respondents in HCA No. 73 of 2007, where Mr. Anas Makdhoom, Advocate wanted to file Vakalatnama for auction purchaser in both the appeals. He was directed to file the same in the of fice and the matter was adjourned to 22.02.2017. 15. CMA 219 as stated earlier has been moved by two individuals (so far alien to the instant controversy) being Muhammad Faisal son of Muhammad Bashir and Shoukat Ali son of Muhammad Siddique. Mr. Mohamed Vowda, learned counsel of these Applicant stated that through the comprise application made in HCA No. 73 of 2007 being CMA No.1278 of 2015 in April 2015, it was agreed by the Respondent Nos.1 to 3 that the oral gift in favour of Respondent Nos. 5 to 8 was to be taken as valid, and the subject property was agreed to be sold by the Respondent No.5 to 8 to a potential buyer . Per counsel, it was agreed that these Respondent would pay certain agreed amounts from…
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