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Petitioner: SHAUKAT ZAIB and 8 others VS Respondent: KHURAM ZAIB and 3 others
Court Name: Sindh High Court Judge(s): Khadim Hussain Tunio Title: SHAUKAT ZAIB and 8 others vs KHURAM ZAIB and 3 others Case No.: Defendants Suit No.536 of 2004 Date of Judgment:2017-03-16 Reported As: 2018 CLC 970 Result: Order Accordingly
JUDGMENT
JUDGMENT KHADIM HUSSAIN TUNIO, J.---This suit for Administration, Account, Partition and Permanent Injunction has been filed by the plaintiffs above named against the defendants. 2. Briefly facts of the present suit, as disclosed in the plaint, are that the plaintiffs are real sons and daughters of deceased Yousuf Ali Khan and Shahida Begum, who both expired on 17.05.1997 and 21.03.2004 respectively. At the time of death they left behind the following moveable and immoveable properties. Moveable and immoveable properties which belonged to deceased Yousuf Ali Khan are as under:- A. Mukkaram Market constructed on Plot R-50, Sector 5-C/4, Karachi, consisting of house and seven shops valued atRs. 35,00000/-
A. Bank account with Allied Bank Limited, Gulshan-e- Iqbal Karachi valuedRs. 9,00000/-
I. Locker No. 97/145, in Allied Bank Ltd. Rashid Minhas Road, Gulshan- e-Iqbal Karachi - Gold valued atRs. 9,00000/-
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Cash Rs. 1,00000/-. 3. It is the case of the plaintiffs that the defendant No.4 on 27.03.2004 filed an application before Manager Allied Bank Limited Gulshan-e-Iqbal Karachi regarding locker No. 97/145. The Plaintiffs also moved an application on 12.04.2004 before sub-Registrar T Division XIV, Karachi regarding transfer of property. The defendants are the, real brothers and sisters of the plaintiffs and plaintiffs and defendants are real sons and daughters and legal heirs of the deceased. After, death of the deceased father and mother the defendants and plaintiffs are enjoying possessory rights over the above mentioned moveable and immoveable properties. The shops situated at Mukkuram Market are rented out to different tenants and the defendant No.1 is receiving the rent i.e Rs.10,000/- of all the shops from the tenants. and all the relevant documents of the property are in illegal possession of defendant No.1. Plaintiffs and defendants along with other legal heirs used to reside at the abovementioned property very smoothly and peacefully, t2ut after death of their deceased, father and mother, some dispute has arisen between them. The defendants became dishonest and with mala fide intention and ulterior motive want to usurp the share of the plaintiffs and other legal heirs of deceased. The deceased father was having reputation in the field of journalism and at the time of his death he was operating a bank account and cash amounting to Rs. More than 9,00,000/- and also had a locker in which cash amount and gold ornaments are still kept in the said locker. Furniture and other household articles are also in illegal custody of defendants and defendant No.2 is controlling and dealing with the shop and bank account unauthorisedly. The defendants Nos. 1 and 2 became so cruel that after the death of deceased father and mother, the defendants are exclusively enjoying the property left behind by the deceased mother and father without the consent of the plaintiff's and without paying them their due share, which is worst act of the defendants Nos. 1 and 2 and they are not entitled to get the profits without the distribution amongst all the legal heirs. The plaintiffs deceased father and mother were also absolute rightful owners of the moveable and immoveable properties; instead of satisfying all the heirs, the defendants are residing in the abovementioned property along with their family members whereas, the plaintiffs are deprived of their legitimate rights to use the property as per law of inheritance. The defendants Nos. 1 and 2 did not allow the plaintiffs to enter in the said property. The plaintiffs are entitled for the partition and separate possession in accordance with law. The plaintiffs made several requests for partition of the property to the defendants who promised that a meeting should be called of the legal heirs immediately but they never honoured their promises made on several occasion on one or the other pretext and refused to partition the property which is an illegal act of the defendants. The defendants are in unlawful use of moveable and immoveable properties which are not capable of division, therefore, the defendants be ordered for rendition of account and deposit before the court, the amount which the plaintiffs claim as their share. Therefore plaintiffs filed this suit and prayed for judgment and decree as under: i)To declare that the plaintiffs are legal heirs of the deceased Yousuf Ali Khan son of Abdul Rahim Khan and Shahida Begum wife of Yousuf Ali Khan of the immovable and moveable properties mentioned in the para No.3 of the said suit, and the defendants have no right to usurp the share of the plaintiffs. ii)Decree of the partition of the suit property herein by ordering sale thereof and distributing the sale proceed amongst the legal heirs of the deceased Yousuf Ali Khan son of Abdul Rahim Khan and Shahida Begum wife of Yousuf Ali Khan, in accordance with law. iii)A preliminary decree may be passed for administration for the property in question of the deceased specifying the respective shares of the legal heirs of the deceased i.e. plaintiffs and defendants. A fit and proper person may be appointed as the Administrator with the direction to collect the property in question and effect partition of the property and if horizontally and vertically it is not possible, to sale the property and distribute the share amongst the legal heirs.
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iv) To grant permanent injunction in favour of the plaintiffs over suit properties duly mention in Para 3 of the plaint and thereby restrained the defendants from interfering distributing, selling, gifting creating third party claim, operating the bank account, collecting the rent, opening the locker themselves or through their servants, subordinates, employee, agents or representative or anybody else who what so ever without due course of law. v) To grant the cost of suit upon the defendants. 4. The defendants Nos.1, 2 and 3 filed their written statement separately and denied the case of the plaintiffs in toto. They have submitted that the properties mentioned in the said Paras are imaginary and unascertainable and never owned and possessed and remained in the names of parents of the parties as such no question of administration of the same arises at all. They have also submitted that without any valid proof of the parties to the alleged properties, no decree of the partition, accounts and profits could be passed as per law as such the suit filed by the plaintiffs is bound to be dismissed being devoid of merits. They have also submitted that late father of parties never left any of the alleged properties as mentioned in Para No. (III a), (b), (c) and (d) of plaint at the time of his death. They have further submitted that the car mentioned in Para 3 of the plaint was purchased/owned and registered by defendant No.3 in his own name as such late father of the parties has no concern with it. They have also submitted that the property mentioned as Mukkarm market in the plaint was never owned by late mother of the parties at the time of her death but it was gifted by way of "HIBA" by deceased mother of the parties during her life time in favour of defendant No.2 in presence of witnesses by handing over physical possession and original documents of the same to the defendant No.2 as it was named as Mukkaram Market after the said gift the defendant No.2 used to collect the rent and deal with the other matters of the said property as exclusive owner during life time of deceased mother of the parties which is within the knowledge of the all the parties, hence there is no question of administration of the said property. They have further submitted that regarding locker No. 97 at Allied Bank Limited Rashid Minhas Road, Karachi the same was never opened, operated and owned by the deceased mother of the parties, but it was opened operated and used by defendant No.2 exclusively as such no question arises of its administration. The defendants have raised legal pleas that the suit as framed .s not maintainable and liable to be dismissed being filed without cause of action. That the suit is barred by time hence requires dismissal: That the suit is not suit for administration as such same may be dealt at regular suit. That the defendant No.2, taken care, treatment and service of parents specially the mother was done by defendant No.2 and he has exclusively expand amount of Rs.800,000/- on the treatment of his mother out of his own pocket, as such defendant No.2 claims this amount being a debt over properties of deceased mother and in case nothing the left out of her legacy, the same amount may be recovered from all sons and daughters of their mother as per their respective shares. 5.Apart from these, defendants have raised preliminary legal objections regarding limitation and maintainability of the suit. 6.Thereafter on 16.05.2005 this court passed order, which is reproduced as under for ready reference. "This suit appears to be suit for administration, account, partition and permanent injunction of the estate and property and left by deceased Yousuf Ali Khan. It is stated by, the learned counsel that various properties are let out and some of the defendants are using the rental income to the exclusion of the other legal heir. This being suit for administration, let preliminary decree drawn Nazir is appointed as Receiver/ Commissioner to hold enquiry and record evidence. Since this suit, for administration of estate of the deceased, Nazir is appointed Receiver/Commission in respect of estate and property of the deceased. Parties are directed to file their respective claim entitlement before the Nazir and lead evidence in support of their claim.
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Nazir to hold enquiry in respect of the assets left behind by the deceased, ascertain, legal heirs and their respective shares in the estate and property. Nazir to inquire any amount that is either due or payable and receivable by and on behalf of the deceased. Nazir is to submit report to enable the court to pass final judgment and decree. Nazir's fee in the sum of Rs.10,000/- to be paid by the parties in accordance with respective shares. Any party intends to lead evidence to pay further a sum of Rs.2,000/- per witness. Pre-decree be drawn as per Order XX, Rule 13, C.P.C." 7.Thereafter, Commissioner submitted his report on 28.01.2008 and stated therein that: "1. The Honourable Court vide order dated 16.5.2005 has been pleased to appoint the undersigned as a Receiver/Commissioner in respect of the estate and property of the deceased. Parties were directed to file their respective claim entitlement before the Nazir and lead evidence in support of their claim. It was also directed to the Nazir to hold inquiry in respect of the assets left behind by the deceased, ascertain legal heirs and their respective shares in the estate and property and to inquire if any amount that is either due or payable and receivable by and on behalf of the deceased. The parties were allowed to file affidavit in evidence of the witnesses' along with the documents. 2.Accordingly notices were issued to the learned counsel for the parties and fixed the above matter from time to time for filing affidavit-in-evidence of their witnesses. However, the plaintiff No.1 Mr. Shaukat Alam has filed affidavit-in evidence on his behalf and on behalf of other plaintiff as attorney on 7-6-2005 as Ex.P.W. 1. The learned counsel for the defendant cross-examined him and thereafter the plaintiff has closed his side and the matter was fixed for filing affidavit-in- evidence of witnesses. The defendants Nos.2 and 3 have filed their affidavit-in-evidence as Ex.DW- 2 and DW-3. They also filed affidavit in evidence of one witness namely Mirza Masood Baig and they were cross-examined by the learned counsel for the plaintiffs and they closed their side of evidence. 3.According to the parties the deceased parents left behind following legal heirs and their respective shares in the estate and property as under:- S.No.Names of legal heirsRelationship with deceasedShares Shoukat Zaib Son 2/22 Hamid Ali Khan Son 2/22 Liaquat Ali Khan Son 2/22 Aurangzeb Khan Son 2/22 Khurram Zaib Son 2/22 Mukarram Zaib Son 2/22 Alam Zaib Son 2/22 Farooq Ali Khan Son 2/22 Mrs. Razia SultanaDaughter, 1/22 Mrs. Safia BegumDaughter 1/22 Miss Zakia Begum Daughter 1/22 Miss Ghousia BegumDaughter 1/22 Miss Talat FarzanaDaughter 1/22 Miss Zeba TabassumDaughter 1/22 4. The plaintiff has mentioned in his affidavit-in-evidence that the deceased parents of the plaintiffs and defendants left the following properties. MOVEABLE AND IMMOVEABLE PROPERTIES BELONGING TO DECEASED YOUSUF ALI KHAN AS SHOWN IN THE PLAINT.
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A.Flat No. C-1, 1st Floor, Sunny Arcade Block 7, Gulshan-e-Iqbal Karachi BFlat No.D-4, Noman Plaza, Block II, Gulshan-e-Iqbal, Karachi. C.Plot bearing No. C-35, Block 40/B, Scheme No.36, Gulistan-e-Jauhar Karachi. D.Vehicle FX Suzuki, Bearing Registration No. G-1818 MOVEABLE AND IMMOVEABLE PROPERTIES BELONGING TO DECEASED SHAHIDA BEGUM A)Mukkaram Market, Constructed on Plot R-50, Sector 5-C/4, Karachi, consisting of a house and 7 shops. B)Bank account No. lying with Gulshan-e-Iqbal Branch, Karachi. C)Locker No. 97/145, Lying with Allied Bank Limited, Rashid Minhas Road Branch Gulshan-e-Iqbal Branch, Karachi. 5. In the cross-examination, the learned counsel for the defendants put question to the plaintiff that Flat No. C-1, did not belong to the deceased father of the plaintiff's but they failed to produce any documentary evidence in this regard. The property bearing Flat No.D-4 is purchased by the defendant No.3 from Mst. Naghma through his attorney, Mst. Shahida Begum and he filed copy of the Sale Deed. The Mukaram Market is in the name of deceased Mst. Shahida Begum but the defendant stated that the said property i.e. Mukaram Market has been gifted to him by his mother but he failed to produce any. Gift Deed or title documents in respect of said property. According to the plaintiffs the defendant No.1 has illegally and unlawfully received the rent from the tenants of Mukaram Market without giving any shares to the other legal heirs and the defendant No.) has also admitted in his cross-examination that he had received rent from the tenants of Mukaram Market after the death of Mst. Shahida Begum. He had received monthly rent from the tenants of Mukarum Market. 6.The defendant No.1 has also admitted that he had sold out the said vehicle bearing No. G-1818 to other persons but he has stated that the said vehicle did not belong to deceased parents. The plaintiff has also mentioned in his affidavit-in-evidence that Plot No. C-35, situated in Block-14-B, Scheme 46, Gulistan-eJauhar, Karachi belongs to deceased father but the defendant has stated that the said plot was cancelled by the concerned authority. The plaintiff in his plaint as well as in his affidavit in evidence has mentioned that all the original papers of all properties and vehicle are in possession of defendant No.1 but the defendant No.1 has not produced any documents. The defendant has stated in his statement that his mother had not maintained any bank account during her life time but the defendant No.3 has stated that he had paid the sale consideration amount of the said flat to her mother, attorney of Mst. Naghma through cheque with the name of Mst. Shahida Begum. 7.Whereas according to the statement of the parties it is clear that Mst. Shahida Begum has account in the Bank but the defendant failed to disclose correct account number and details of account in his case before this Honourable Court. Mukaram Market is still in the name of deceased Mst. Shahida Begum but the defendant No.1 has also not produced any title documents. The Flat No. C-1, situated in Sunny Arcade, Block 7, Gulshan-e-Iqbal, Karachi, is still in possession of three sisters but the defendant has also not produced any title documents of the said flat, as per contention of the plaintiff that deceased father has purchased said flat on power of attorney. The defendant has admitted that Plot No. C-35 belonged to deceased father but their contention is that the concerned authority canceled the said plot but they failed to produce any documentary evidence in this respect. The vehicle Suzuki G-1818 is sold out by the defendant No.1 but as per the contention of the defendant the said vehicle is also not belonged to the deceased father but the defendant failed to produce any documentary evidence in. this regard. It has come on record that Flat No. C-1 situated in Sunny Arcade is with the possession of three sisters and the said flat is the property of deceased father and the Mukaram Market is also property of the deceased mother Mst, Shahida Begum and Flat No.D-4 was purchased by
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the defendant No.3 from Mst. Naghma through attorney Mst. Shahida Begum during her left time and other details of the bank account and golden ornaments were not provided by the parties. Report is submitted for kind perusal of this Honourable Court with the request that the fee deposited by the parties may kindly be sanctioned subject to the administrative approval of the Honourable Chief Justice." 8.Thereafter, vide order dated 13.08.2007, this Court has ordered that the Nazir Report will be considered at the time of final arguments. On 31.08.2007, Defendants Nos. 1 to 3 filed objections to the Commissioner Report. 9.I have heard the learned counsel for the Plaintiffs and Defendants Nos,1 to 3. 10.Learned counsel for the plaintiffs has submitted that the property bearing Flat No. D-4, Noman Plaza was purchased by the Defendant No.3 in his favour from Mst. Naghma Parveen through his mother deceased Mst. Shahida Begum being his Attorney. He also submitted that vehicle No. G- 1818 has been sold out by Defendant No. 2 which was in his name as per registration book, produced copy of the same along with objection filed to the Nazir's Report. He has further submitted that the Mukaram Market was not gifted by deceased Mst. Shahida Begum to the Defendant No.3 during her lifetime. He further submits that the Mukaram Market is still in the name of deceased Mst. Shahida Begum. The Defendant No.3 has taken plea with mala fide intention to usurp the property and deprive the other legal heirs from their due shares. He has lastly submitted that he prays the suit may kindly be decreed to the extent of property left by Mst. Shahida Begum i.e. Mukaram Market being inherited property of the plaintiffs and defendants. 11.Conversely, learned counsel for the Defendant No.3 has contended that the Mukaram market was gifted by Mst. Shahida Begum to him. He has also contended that all the ingredients of the valid gift had been completed. He further submitted that possession of the Mukaram Market was delivered to him by Mst. Shahida Begum. He also submitted that he is enjoying Mukaram market being his exclusive property and maintaining the same since the date of gift. He also submitted that the mother of the parties, was got treated by him at private Hospital and incurred huge amount on her treatment and nothing was paid by the plaintiffs or other legal heirs. He has also submitted that the suit of the plaintiffs is not maintainable and barred by law. He has further submitted that the plaintiffs have to file regular suit before the proper forum. He has prayed that the suit may be dismissed. He has placed his reliance on provisions of Order XX, Rule 13, C.P.C., Moulvi Abdullah and others v. Abdul Aziz and others (1987 SCMR 1403), Muhammad Amin v. Mohammad Yasin and another through legal heirs (PLD 2001 Lahore 242), Aril Zaman v. Pir Dost Ali Shah through legal heirs and others (2005 MLD 98), Sher Mohammad and 7 others v. Mst. Sughran Bibi through Representatives and another (PLD 2005 Lahore 286), Syed Mohsin Raza Bukhari and 4 others v. Syed Azra Zenab Bukhari (1993 CLC 31), Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi and others (PLD 1962 SC 291), Mohammad Younis Qureshi and 5 others v. Mrs. Feroz Qureshi and 2 others (1982 CLC 976), Mohammad Sarwar and 2 others v. Abdul Lateef and another (PLD 1978 Lahore 391). 12.At the very outset, it is relevant to mention here that the scope of the 'Administrative suit' stood defined by honourable apex courts as:- "to determine what estate the deceased left at the time of his death; administration thereof; paym ent of debts and liability and partition of rest of estate between the heirs" 13.Thus, the first object of the administrative suit is to 'determine what estate the deceased left' which, I can safely add cannot be achieved without an inquiry therefore, a plea of mere denial that a specific property was not owned by deceased alone shall never be sufficient to hold such a suit not-maintainable nor it legally can prevent the Court from an inquiry in that regard. Further, I can safely add here that a plea by one, out of legal heirs, to the effect that one of properties was gifted to him by deceased, would also be of no help for bringing the suit out of the scope of
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'administrative suit'; even a plea of benami title shall be of no help to restrain application of Order XX, R.13 of the Code, if resorted by one of legal heirs. Reference may be made to the case of Asghar Ali v. Mrs. Zohrabi and another (2000 MLD 122), relied by counsel for the defendants, wherein it is held as: "At the time of death of said deceased admittedly above two properties stood in the name of deceased parents of the parties though the appellant/defendant claimed that the latter property was purchased by him in the name of his deceased mother, therefore, the respondents/plaintiffs being the legal Heirs of the said deceased would be entitled to get their shares at least from the admitted property left by deceased at the time of their death according to Muslim Law, by filing the administration suit in respect of the estate of the deceased as the said remedy is permissible under the law and in case of choite between a partition suit and, administration suit, the latter is to be preferred. Reference may be made to the case Mahboob Alam v. Razia Be um and others (PLD 1949 Lahore 263, D.B.). Accordingly, administration suit in absence of prayer of partition in the main suit is competent and maintainable as both the parties to the suit are the legal heirs of deceased to inherit the properties left at the time of their death. Reference may also be made to the case Mehdi Hussain Shah v. Mst. Shade Bibi and others (PLD 1962 SC 291). The preliminary decree for administration of assets of deceased cannot be withheld only on the assertion that one of the said properties was purchased by the appellant in the name of his deceased mother from his own funds, when the said property even stood in the name of his brother at the time of her death. In view of the above circumstances, there is no merit in the contention of the learned counsel for the appellant. 14. Further, reference can also be safely made to the case of Muhammad Zahid (PLD 2011 Karachi 83) wherein a touch-stone to examine maintainability of 'administrative suit' is set as: 13. We would therefore (subject to the test formulated in para.11 above) sum up the foregoing analysis in the form of the following propositions: a.when the question is whether a property forms part of the estate of a deceased, and a determination of this question involves a person who is a stranger to the estate, then question should be determined by means of separate proceedings; b.proposition (a) is subject to the qualification that if the question is also whether the stranger is a sharer in the estate, then the matter comes within the scope of administration suit; c.when a determination of the aforesaid question involves a person who is a sharer in the estate then the question comes within the scope of the administration suit, and this is so regardless of whether the sharer claims through or under the deceased (e.g. by way of a gift or sale from the latter) or in his own right: d.it is immaterial whether or not the property in question stood in the name of the deceased at the time of his death, and it is likewise immaterial whether any alienation was by way of a registered instrument or otherwise. (Emphases supplied) Since, in the instant matter, the plea of gift was/is raised by one of the legal heirs (defendants) hence such plea even shall not disturb the competence of the suit within meaning of Order XX, rule 13 of the Code. Therefore, such plea raised by defendants would not prejudice the said order under which inquiry has been conducted nor consequences thereof i.e. 'inquiry'. 15.From the perusal of record, it transpires that the Defendant No.3 Alam Zaib…
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