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Petitioner: BASHIR AHMED and 3 others VS Respondent: MUHAMMAD ASLAM and 6 others
Court Name: Supreme Court of Pakistan Judge(s): Sajjad Ali Shah, Naimuddin Title: BASHIR AHMED and 3 others vs MUHAMMAD ASLAM and 6 others Case No.: Civil Appeal No,22-K of 1982 Date of Judgment:1991-08-05 Reported As: 2003 SCMR 1864 Result: Order accordingly
JUDGMENT
JUDGMENT SAJJAD ALI SHAH, J. [Majority Judgment].---This appeal with leave is directed against the judgment dated 4-6-1981 of High Court of Sindh, whereby appeal is dismissed, maintaining judgment dated 28-10-1966 of learned Ist Additional District Judge, Hyderabad, decreeing the suit for declaration, partition and accounts as prayed with costs. Briefly stated the relevant facts giving rise to this appeal are as under:-- Illahi Bakhsh Chaudhry died in 1942 leaving behind agricultural lands in Taluka Matli, District Badin, now District Hyderabad, and four sons and one daughter namely, Bashir Ahmed, Muhammad Akram, Muhammad Aslam, Muhammad Iqbal and Mst. Mukhtiar Bibi. On 3-7-1963 Muhammad Aslam filed First Class Suit No,79 of 1963, which was re-numbered as 17 of 1964, in the Court of Senior Civil Judge, Hyderabad, for declaration and partition against two brothers and one sister namely. Bashir Ahmed as defendant No,1, Muhammad Akram as defendant No,2 and Mst. Mukhtiar Bibi as defendant No,3 and two others namely, Naseer Ahmad son of defendant No,1 Bashir Ahmed and Tariq Mehmood son of defendant No,2 Muhammad Akram. In the plaint, four Schedules are mentioned as "a", "b", "C" and "D". In Schedule "A" is shown joint undivided property consisting of agricultural land inherited from their late father by plaintiff Muhammad Aslam and defendant No,1 Bashir Ahmed, defendant No,2 Muhammad Akram and defendant No, 3 Mst. Mukhtiar Bibi, in shares of As. 0-3-7 for each male member and As. 0-1-9 for female as stated above. Remaining share of As. 0-3-7 was inherited by fourth brother Muhammad from whom the same was purchased by defendants Nos.1 and 2 from joint assets of plaintiff and defendants Nos.1 and 2 increasing the shares of plaintiff and defendants Nos.1 and 2 to As. 0-4-9 each leaving share of sister at As. 0-1-9. Property shown in Schedule "A" is as under:--
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Schedule A Deh Chan Sonrani Taluka Matli (1) S.Nos. 3/3 12 46 47 131 1-3-4 3 3-4 1 134 148 18 114 1-2-3-4 1 2 2A-34 64 acres (2) S.Nos. 42 43 61 63 1,4,4A 3,4,4A 1,2A 1 95 96 2,2A,4 3,4,4A 128 129 130 149 2-3 3-41 3 1-2 62 = 80 Acres." 1-2-2A In Schedule "B" property shown is undivided joint agricultural land purchased by plaintiff and defendants Nos.1 and 2 from their joint income in their own names or in the names of defendant No,4 Naseer Ahmed son of Bashir Ahmed and defendant No,5 Tariq Mehmood son of Muhammad Akram, who are Benami Khatadars having no share in the said property. It is claimed by the plaintiff that defendants Nos.1 and 2 Bashir Ahmed and Muhammad Akram have no separate source of income except the joint property and likewise their sons defendant No,4 Naseer Ahmed and defendant No,5 Tariq Mehmood have no source of income. Property in Schedule "B" is as under:-- Schedule "B" Deh Chan Sonrani, Taluka Matli S.Nos.3/3 48 49 25 24 1,2,3,4 2 1,2,3,4 1,2,3,4. 114 115 15 29 1,2,4A 1,2,4 3 1,4,4A 27 26 27 26 1,2,3,4 1,2,3,4 1,2,3,4 1,2,3,4 95 96 95 96 3 3 1,2,2A 3 1,2,2A 1,2 58 2 59 60 109 2,3 1 to 4 1,2 1 1,3,4 110 115 45 2,3,4 2 1,2,3,4 46 60 78 4 2,2A 2,2A 3,4,4A 1,2,3,4 129 129 130 1A-B 2 4A-D 57 58 58 128 2,3A to D L A to D 4A to D 1,4 130 130 61 77 L A to D 2A to D 3 1,2 78 97 100 47 46 1,2,2A 1 to 4 1 to 4 1,2 1,4 360 acres."
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Property in Schedule "C" is Pacca built Otak in village Kot Abdullah in Survey No,96/1, Deh Chan Sonrani, Taluka Matli, which is claimed by the plaintiff to be joint property. Property shown in Schedule "D" is 2 mares and 1 horse, 14 oxen, 20 buffaloes, 150 goats, 2 sugarcane crushers, 1 sugar machine, 1 diesel engine, ploughs and other agricultural implements, which are claimed by the plaintiff to be actually shared by him and defendants Nos.1 and 2. It is claimed in the plaint that plaintiff and defendants Nos.1 and 2 carried on in joint and equal partnership their all agricultural enterprises and after the death of their father made further purchases jointly and gave share to their sister regularly. Plaintiff claimed as 0-4-9 share in property of Schedule "A" and as 0-5-4 share in all other properties. It is further stated that on 25-11-1958, plaintiff executed a sale-deed in respect of his as 0-3-7 share in the lands. Of Schedule "A" and his share in the joint land purchased in his name included in Schedule "B" in favour of defendants Nos.1 and 2 but it was mutually agreed upon and understood by the parties that the above sale-deed would be only a security for a promised loan of Rs,20,000 to be advanced to the plaintiff in near future and would create or extinguish no right in the property. On 6-4-1960, defendants Nos. 1 and 2 without notice to the plaintiff got entries made in their favour in the record-of-rights in respect of property mentioned in the said deed. It was alleged that defendants Nos.1 and 2 without consent of the plaintiff demolished joint Otak and reconstructed it. Plaintiff made several demands orally and also served on defendantsnotice dated 17-11-1962 for partition of the properties and accounts but to no avail, hence he filed the suit praying that sale-deed dated 25-1-1958 be declared as null and void and that plaintiff is entitled to as 0-4- 9 share in the property in Schedule "A" and as 0-5-4 share in other properties in Schedules "B", "C" and -D". He has prayed for partition of the properties in Schedules -A" and -B" by metes and bounds with separate possession and distribution of property in Schedule "D". He has prayed that defendants Nos. 1 and 2 be called upon to render accounts of the land in suit for the last 3 years till the decision of the suit. With the exception of lady, all other defendants filed a joint written statement disputing the claims of the plaintiff. Apart from legal objections which were raised, claim was denied that property in question was joint and undivided. It was averred that plaintiff by registered sale-deed dated 25-11- 1958 sold his As 0-3-7 share in ancestral land and As. 0-16-0 share in his self-acquired land to defendants Nos. 1 and 2. Survey No,129/1, in Schedule "A" was property of Muhammad Iqbal who sold it to defendants Nos.1 and 2. Survey No,61/1 was purchased by defendants Nos. 1 and 2. Claim was made that share of Muhammad Iqbal was purchased by defendants Nos. 1 and 2 from their own sources and it was emphatically denied that property was owned jointly by plaintiff and defendants Nos.1 and 2. About Otak it was stated that it was property of defendant No,l. All other allegations in the plaint including sale-deed being without consideration to show Benami transaction were denied. Keeping in view pleadings of the parties as many as 15 issues were framed. Plaintiff examined his brother Muhammad Iqbal and himself. Defendants examined Muhammad Akram. Documents were produced by both sides. After assessment of evidence, trial Court decreed the suit as stated above. Defendants in the suit, being aggrieved, filed First Appeal No,62 of 1976, in the High Court of Sindh at Karachi, which was heard and dismissed by learned Single Judge, vide his judgment dated 4-6- 1981. Hereafter, parties will be referred as plaintiff and defendants in the suit. Defendants in the suit filed petition for leave to appeal which was allowed vide order dated 30-1-1982, granting leave and relevant portion of that order is reproduced as under:-- "There are certain features of this case, which make it necessary that the entire evidence be re- examined and findings on questions of law retested. Firstly, the conclusions with regard to the jointness of the family property, the implied trust, and the benefit to all co-shares in individual purchases by co-shares had not been consistently extended to the purchases made by Iqbal. How
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a distinction was drawn is not clear. Secondly, on what grounds the benefit of any such conclusion could be extended to a property purchased individually by Aslam and then resold to the petitioners. Thirdly, it appears that the alleged reply (Exh.77) to the notice, and the contents thereof have played a decisive role in determining the controverted questions of fact. The question is whether the material on record was sufficient to hold that it was a genuine document and capable of binding the petitioners . " Now I proceed with re-examination of evidence in the light of points mentioned in the leave granting order. First point mentioned therein would cover Issues Nos.6, 7 and 12. Issue No,6 is whether lands shown in Schedules "A" and "B" are joint and undivided properties of the parties" Issue No,7 is whether share of Muhammad Iqbal was purchased from joint assets of the parties? Issue No,12 is whethtr plaintiff and defendants have carried on jointly since 1943 and all the purchases of land made by them thereafter are joint and in equal shares? Trial Court has dealt with these issues mentioned above together alongwith Issues Nos. 8 and 9 collectively. Issue No,8 is whether plaintiff has any share in the suit property? If so, to what extent? Issue No,9 is whether defendants 4 and 5 are Benami Khatedars? In the trial Court burden of proof of issues mentioned in the paragraph above was placed on the plaintiff. In order to discharge this burden, plaintiff examined himself and his eldest brother Muhammad Iqbal. Muhammad Iqbal was examined before plaintiff as witness No,1 for the plaintiff. Muhammad Iqbal testified before the trial Court and stated that he is brother of plaintiff and defendants Nos.1, 2 and 3. Defendants Nos. 4 and 5 are sons of his brothers Bashir Ahmed and Muhammad Akram respectively. His father Illahi Bakhsh died leaving behind 80 acres of agricultural land and 64 acres of restricted tenure land in Taluka Matli. About one year before death, his father gave this witness his share of the land separately. His brothers consented to the proposition that he would retain his share of land separately and would have no interest in the ancestral property, which remained joint for other brothers and sister. Muhammad Aslam was doing the work of selling cotton pods for the family members while defendants Bashir Ahmed and Muhammad Akram looked after the agricultural land. Muhammad Iqbal further deposed that after the death of his father he purchased about 70 acres of land. He sold 96 acres of his land to the plaintiff and defendant and 16 acres to his uncle. He had purchased 36 acres in his own name during the lifetime of his father in Deh Chan Sonrani. After the death of his father, he retained 16 acres of that land for himself and gave rest of it to other co-sharers excluding his sister. From 1947 up to the date when evidence of this witness was being recorded on 1942-1964, Muhammad Aslam got his maintenance from ancestral land. Muhammad Aslam started his practice as Advocate in 1955-56. Their father left some cattle and residential house at Matli. On the lands there was Otak also. In the year 1958, Muhammad Aslam, needed Rs,30,000 to start his practice. On being approached for help this witness advised Muhammad Aslam to get me money from Ms brothers who were joint with him in the property. His brothers told him that they would advance him the money, if he sold his share of property which could be re-purchased by him on return of money. Sale-deed was executed between them. Aslam later informed this witness that money was not advanced. Land purchased by his brothers after the death of his father was from income of joint property. 96 acres were sold by him to his brothers jointly. He took permission from the Collector before the sale. In cross-examination Muhammad Iqbal stated that after selling his ancestral lands, he purchased other lands in Taluka Hyderabad and shifted to Hyderabad for the education of his children.. His sister was married at the time of death of their father. She had relinquished her share in favour of her brothers. Joint property is about 300 acres. Muhammad Aslam had taken some land from Barrage Department in his own name on instalment basis. This witness further stated that he was appointed Receiver of disputed property and produced affidavit in rejoinder Exh.54 filed by him on
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7-8-1963 in the suit proceedings supporting stand of the plaintiff. He admitted that in sale-deeds Exhs.51, 52 and 53 executed by him, name of Muhammad Aslam is not shown as purchaser alongwith other brothers. Plaintiff Muhammad Aslam examined himself as witness No,2. He has reiterated the case as indicated in the plaint which need not be repeated here. According to him after the death of his father and separation of Muhammad Iqbal, remaining brothers and sister had joint property. From the joint income more lands were purchased from Barrage Department in the year 1943-44. Instalments were paid from the joint family income. In 1950 lands were purchased from local Zamindars Pir Ali Ghulam Shah and Saleem Shah. In 1957 lands were purchased from Muhammad Iqbal. Purchases were made in the names of defendants Nos.1 and 2 who used to reside in Taluka Matli while plaintiff was residing at Hyderabad doing business of sale of Phuttis for the family. He used to be called to Matli at times for consultation. Brothers in joint business used to send for money from him and some times he used to send money from them. Account was maintained by defendants Nos.1 and 2 and cash used to remain partly with him and partly with them. Defendants Nos.4 and 5 are nephews and have no separate source of income and are not entitled to any share in the joint property. Both were students when the suit was field. Defendants Nos. 1 and 2 purchased property in the names of defendants Nos.4 and 5 without knowledge and consent of plaintiff in order to deceive hini. Plaintiff produced letters exchanged with his brothers Exh.73/1 to Exh.73/23. These letters were written by defendants Nos.1 and 2 to him and are signed by them. In 1958 plaintiff wanted to start his office as a pleader at Hyderabad. His brothers declined to give him money from the joint pool and at their behest he executed sale-deed in their favour selling land standing in his name. His brothers (defendants Nos.1 and 2) promised to return deed to him after he repaid the loan. It was intended to be mortgage though it was ostensibly a sale. Subsequently they did not make payment and also did not return the document but continued to pay his share of income from the land. Plaintiff stated that the land which was subject-matter of mortgage was Bandeshi land and as such could not be transferred without the permission from the Deputy Commissioner as provided under Rural Credit Land Transfer Act, 1947. He then served defendants with notice dated 17-11-1962 Exh.75. He produced Registration Receipt Exh.76. Defendants sent a reply dated 12-12-1962 Exh.7`, . Attempt was made by Muhammad Iqbal to settle the dispute. Defendants Nos.1 and 2 refused to render accounts. Plaintiff produced letters Exhs.80/1 to 11 written by defendants Nos.1 and 2 to him. He produced receipts of instalments Exh.82/1-7 showing that instalments were paid by him un behalf of defendant No,1 before sale-deed Exh.81 was executed. He produced notice from Bashir Ahmed Exh.83, Rubkari Exh.84 and letter of defendant addressed to him Exh.85. In cross-examination plaintiff stated that he used to go to Tando Allahyar, Digri and Matli for sale of cotton pods and he used to keep sale proceeds for himself. He used to pay instalments of lands in the names of defendants Nos.1 and 2. He stated that even after filing of suit his brothers are making payments to him from the land. Defendants Nos.1 and 2 were doing actual management of the land. The leases taken by his brothers were joint. He had purchased 100 acres or more in his name from Barrage. As it was joint land so he got some of it transferred in the name of his brothers. The rest of the land was sold according to the document executed in 1958 and defendants Nos.1 and 2 purchased lands after he made over his grant to them. He admitted that sale-deed Exh.81 was executed by him and bears his signature. He denied having received consideration money shown in the sale-deed. Defendants purchased some land from Barrage Department as joint property. Plaintiff claimed that Schedule "D" is correct and he was joint with his brothers in leases only as there was no other business. Otak on the land had not fallen down but his brothers had demolished it and reconstructed it with the same material. They had spent about Rs,25,000 over demolition and reconstruction.
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In the trial Court on behalf of the defendants was examined Muhammad Akram, defendant No,2. He deposed that suit-land measured in all 500 acres and they (defendants) paid about Rs,8,000 yearly as land revenue. Defendants also took leases of other lands as well. Plaintiff had no concern with lands taken by them on lease for which they had been paying land revenue. He produced sale-deeds Exhs.94/1 to 3 and also sale-deeds Exhs. 95/1 to 6. His brother Muhammad Iqbal sold his share of land from the ancestral property and other land purchased by him to the defendants. Plaintiff sold his share from ancestral property and other land purchased by him from Barrage Department to defendants by a registered sale-deed Exh.81 for consideration of Rs,25,000. Plaintiff never lived with defendants jointly but lived since 1947 in Hyderabad. This witness denied having signed Exh.77 which is letter dated 12-12-1962 written by him to plaintiff Muhammad Aslam in which claims made by plaintiff are admitted with regard to jointness of the property and the fact that sale-deed executed by Muhammad Aslam in favour of defendants Nos. 1 and 2 was intended to be mortgage and that document was to be returned to him. This witness proclaimed that he was illiterate and had studied up to one standard of English and did not sign in English. He gave three specimen signatures Exh.99 as desired by the Court but while doing so he used capital letters and not small letters. In cross-examination, defendant Muhammad Aslam admitted that in Exh.80/10 "Kot Abdullah" was in his handwriting in which small letters were also used., He denied suggestion in the cross-examination that deliberately he did not use small letters in his specimen signatures as he did not want his signature in Exh.77 to be identified. He further stated that after the death of his father he and other brothers got married and started living separately. Ancestral property was partitioned privately and there was nothing put in black and white on the paper and he was unable to say as to which survey numbers were allotted to whom separately. After death of his father he purchased land from Barrage. He was confronted with letters written by him and was cross- examined at great length. Mr. A.A. Fazeel, counsel for appellants Nos.1 and 3/defendants Nos.1 and 4 (namely Bashir Ahmed and his son Naseer Ahmed) submitted that evidence produced by plaintiff in the suit is neither \sufficient nor of quality to warrant a finding that plaintiff has discharged his burden successfully in support of his claims. He stoutly criticized evidence of Muhammad Iqbal examined by the plaintiff on the ground that he was not an independent witness as held by the trial Court and the High Court. According to the learned counsel, Muhammad Iqbal made a wrong statement in the trial Court during his deposition that he sold away 96 acres of his land to the plaintiff and the defendants, when in the cross-examination, while referring to sale-deeds Exhs.51, 52 and 53 executed by him, he admitted that those were in the names of defendants Bashir and Akram and name of Muhammad Aslam was not shown as purchaser alongwith his brothers. To this reply from the other side was that Muhammad Iqbal did not make a wrong statement but on the contrary explained the facts as they were and deposed that property left by his father, apart from his share, remained joint for the remaining heirs. Plaintiff Aslam resided at Hyderabad since 1947-1948 and had been doing the work of selling cotton pods for the family members, while defendants Nos. 1 and 2 Bashir Ahmed and Muhammad Akram looked after the land. In cross-examination while referring to sale-deeds he did admit very frankly that in them name of Muhammad Aslam was not shown as purchaser alongwith his brothers. Even Muhammad Aslam, plaintiff also testified that after the death of his father and separation of Muhammad Iqbal from them, property remained joint and more lands were purchased from the joint income including the land from his brother Muhammad Iqbal. Plaintiff has further stated in very clear words that lands of Pir Ali Ghulam Shah, Saleem Shah and Muhammad Iqbal were purchased in the names of defendants Nos. 1 and 2 as they used to reside in Taluka Matli while plaintiff was at Hyderabad dealing with family business of sale of Phuttis. It shows that family members who were co-sharers in the joint property had trust in
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each other and for the sake of convenience did not mind if property was purchased in the names of the persons who dealt with agricultural lands and were available at the site. Mr. Fazeel pointed out that in the notice dated 17-11-1962, Exh.75, sent by Muhammad Aslam to his brothers Bashir Ahmed and Muhammad Akram (page 39, Part II of paper book), no mention was made that Muhammad Iqbal had sold land to plaintiff and defendants Nos.1 and 2 jointly. This is so and perusal of relevant documents in this context shows that Muhammad Iqbal sold land to his brothers vide Exh.51, dated 5-7-1956. Exh.52 dated 22-2-1958 and Exh.53 dated 21-9-1956, when letter in question Exh.75 was sent by Muhammad Aslam to his brothers on 17-11-1962 and in it the main grievance of Muhammad Asalm was that he had heard that his brothers were attempting to have mutations in the record-of-rights in consequence of sale-deed Exh.81 executed by Muhammad Aslam which was intended to be a mortgage and not sale and that document was to be returned and not used as sale-deed. In this letter Exh.75 claims are made by the plaintiff that property was joint and defendants Nos. 1 and 2 were avoiding to give accounts, hence request was made for partition of the property and rendition of accounts. Independent status of Muhammad Iqbal was questioned on the ground that he was partisan and in favour of plaintiff as he had stated in paragraphs Nos. 4 and 5 of affidavit in rejoinder Exh.54 (page 3, Part II of paper book) which he filed in the trial Court, stating that sale-deed dated 25-11- 1958 executed by plaintiff was intended by the parties to be only a security for repayment of the loan which was to be advanced by defendants Nos. 1 and 2 to the plaintiff and such admissions were made before him by defendants Nos.1 and 2 and further the said loan was never advanced to the plaintiff and real dispute between the parties was that of accounts. It also appears from paragraph 7 of that affidavit that Muhammad Iqbal was appointed as Manager of the disputed property by the Official Receiver appointed by the Court and at the time of taking over the management, he found affairs of the land in complete disorder and chaos and there was damage to the property. Mr. Fazeel, therefore, questioned the impartiality of Muhammad Iqbal by stating that he was deeply involved in the disputes between the parties and was all out on the side of plaintiff. In support of contention, learned counsel referred to copy of complaint under section 406, P.P.C. In Case No,258 of 1968 in the Court of Additional District Magistrate, Hyderabad filed by Muhammad Iqbal against Muhammad Akram and Tariq Mehmood (page 96, Part I of paper book). Likewise he has referred to other cases as well, copies of which are on the record and included in the paper book to show that Muhammad Iqbal was prejudiced against defendants and had openly sided with plaintiff. In this context it appears that the surprising aspect of the matter is that when Muhammad Iqbal appeared in the box for recording his evidence in this case on 9-12-1964 not a single question was put to him in the cross-examination even by way of suggestion that he was partisan and took side of the plaintiff and was prejudiced against the defendants. It, therefore, clearly appears that when Muhammad Iqbal gave evidence in the trial Court, at that time he was independent and was not involved in the controversy or disputes between the brothers in connection with property as he had already acquired his share separately, which he had sold away. He was also respected by other brothers as he was eldest brother in the family. In affidavit of rejoinder of Muhammad Iqbal Exh.54 (page 3 of paper book-II) averments were made that parties…
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