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Petitioner: HAMID HUSSAIN PALIWALLA VS Respondent: FIRASAT HUSSAIN PALIWALLA and others
Court Name: Sindh High Court Judge(s): Zafar Ahmed Rajput Title: HAMID HUSSAIN PALIWALLA vs FIRASAT HUSSAIN PALIWALLA and others Case No.: Suit No,519 of 2005 Date of Judgment:2014-09-24 Reported As: PLD 2015 Sindh 304 Result: N/A
JUDGMENT
JUDGMENT ' ZAFAR AHMED RAJPUT, J.---This is a suit for administration, appointment of receiver, sale of assets, distribution of sale proceeds, rendition of accounts and permanent injunction in respect of the estate of one Imdad Hussain S/o. Abdul Hussain. The plaintiff has prayed for the following reliefs: (i) For administration of immovable property bearing Bungalow No, C-106, Saifee Co-operative Housing Society, measuring 600 Square Yards, situated at Block- C, North Nazimabad, Karachi and approximately value of the said property is Rs,1,00,00,000/- (ii) Shop premises with a room over it, 100 Square Feet, situated at. Gopal Street, Bohrapir, Ranchore Lines, Karachi. (iii) The tenancy rights of Godown at Hajyani Karima Bai Manzil, Dharmsy Street, Ranchore Line, Karachi. (2) For appointment of Official Assignee, Karachi as commissioner/ receiver with power to take over the aforesaid immovable properties and distribute the sale proceeds amongst the Legal. Heirs according to their Islamic Shares as per the Shia Islamic Law. (3) Direct the defendant No,1 to render the complete record, accounts and the details of the business being occupied by him in an illegal manner in the name and style of Imdad Hussain Abdul Hussain and Sons. (4) Direct the Official Assignee to immediately take over the bank account of the aforesaid business and its accounts etc. To dispose of the same and distribute the share as per Shia Islamic Law. (5) For permanent injunction against defendants Nos.1, 2 and 3 restraining them from selling / alienating /mortgaging and / or in any way encumbering the said property, assets, business, its
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accounts etc. (6) Costs of the Suit. (7) Any other/further/additional relief which this Hon'able Court may deem fit and proper under the circumstances of the case. 2. Briefly stated facts of the case, as narrated in the memo of plaint, are that the deceased Imdad Hussain died on 15-9-1986 at Karachi, leaving behind him the following legal heirs:{{TABLE}} (i) Hamid Hussain Paliwalla (Son) (ii) Firasat Hussain Paliwalla (Son) (iii) Tausif Hussain Paliwalla (Son) (iv) Jawaid Hussain Paliwalla (Son) (v) Late Mst. Bilqis Bai (daughter) 3. The deceased left behind following immovable/moveable properties in his absolute and exclusive ownership at the time of his death: Immovable properties: ' Bungalow No, C-106, Saifee Co-operative Housing Society, measuring 600 Square Yards, situated at Block-C, North Naziabad, Karachi and approximately value of the said property is Rs, 1, 00, 00, 000/-. (ii) Shop premises with a room over it, Approx. 100 Square Feet, situated at Gopal Street, Bohrapir, Ranchore Lines, Karachi, under the name of Imdad Hussain Abdul Hussain & sons. (iii) The tenancy rights of Godown at Hajyani Karima Bai Manzil Dharmsy Street, Ranchore Line, Karachi. Movable property: ' The running business in partnership with defendant No,1 in the name and style of Imdad Hussain Abdul Hussain & Sons, having its place of business at Bohrapir, Gopal Street, Ranchore Lines Karachi. 4. Besides the above facts, the plaintiff has stated that the defendant No,1 in life time of the deceased jointly with him and after his death is in absolute and exclusive occupation, running and managing the aforesaid immovable and movable properties of the deceased Imdad Hussain Paliwalla and never called the legal heirs of the deceased, presented accounts to legal heirs, distributed the income/profit amongst the legal heirs in terms of the provisions of inheritance. It is case of the plaintiff that and even despite requests and demands at number of times, the defendant No,1 neglected, failed, avoided and finally refused to do so on certain false, flimsy and frivolous grounds. It is also case of the plaintiff that despite repeated demands and requests, the defendant No,1 has refused to sell the properties in order to distribute the sale proceeds amongst all the legal heirs in terms of the law of inheritance. It is also case of the plaintiff that all the legal heirs of deceased Imdad Hussain Paliwalla, who have been deprived of their rightful shares in the aforesaid immovable properties and movable assets, are entitled to the distribution of the same in accordance with the Shia Law of inheritance. 5. The written statement was filed by the defendant No,1 for self and as attorney of the defendants Nos. 2 and 3, wherein the preliminary legal objections with regard to the maintainability, limitation, principle of estopple, non-joining of the legal heirs of late Mst. Bilqis Bai, etc. Were taken. In their parawise reply, the defendants have submitted that the second wife of the deceased Imdad Hussain, namely, Sughra Bai, the mother of defendants, was alive who later on died in the year 1997, thus, she had also inherited the share out of the properties of the deceased. It has also been averred that the plaintiff after completing his education joined a Bank and then he demanded from his father to give him his due share in the properties held in his name to separate him. It has further been averred that the property referred at No,I was acquired after plaintiff's having received his share. The construction of the said property was raised in the year 1962 and the defendants
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Nos.2 and 3 remitted funds from abroad, which were utilized for repayment of House Loan, improvement in construction of the house and for investment in the business. The defendants have maintained in their written statement that on 30th June 1985 the said partnership Firm was dissolved and the deceased was paid off the amount of his share in the firm. They have also maintained that the property referred at No, II was acquired on 9th January, 1979 through the funds arranged by the defendants but registered on the name of their deceased father. They have further maintained that since the properties were acquired and the business was established by the defendants and the plaintiff has already received his due share from the estate of deceased, the deceased Imdad Hussain during his life time had executed a will excluding the plaintiff from any inheritance. The defendants, refuting the claim of the plaintiff, have asserted in their written statement that the defendants possess the properties in their own respective rights and the plaintiff has no right in the said properties. 6. Following consent issues were adopted by this Court vide Order dated 6-2-2006. ' Whether the suit is barred by law? (2) Whether Mst. Sughra Bai, the mother of the defendants, also inherited properties of deceased Imdad Husain? (3) Whether the plaintiff got his share of inheritance during life time of deceased Imdad Hussain? (4) Whether the property bearing No, C-106, Saifee Co-operative Housing Society was acquired after the plaintiff's having received his share from the estate of Imdad Hussain? (5) Whether the deceased has excluded the plaintiff of the inheritance through a will? (6) Whether the deceased had executed the will as alleged? If so to what effect? (7) Whether the Firm "Imdad Hussain Abdul Hussain & Sons" was dissolved on 30th June I985? (8) What should the decree be? 7. In order to substantiate his claim, the plaintiff has himself examined. He has produced his Affidavit-in-Evidence as Exh.P/A, photocopy of his NIC as Exh.P/1/B, photocopy of NIC of late Imdad Hussain as Exh.P/1, photocopy of Registration of Partnership Deed as Exh.P/2, photocopy of Rent Receipt as Exh.P/3, photocopy of Acceptance of Resignation as Exh.P/4, photocopy of Service Certificate as Exh.P15, photocopy of Order from Lloyds Bank Limited as Exh.P/6, photocopy of Order dated I6-4-I959 with regard to payment of service dues as Exh.P/7, photocopy of Appointment Letter by National Commercial Bank as Exh.P/8, photocopy of Letter Acceptance of Resignation from National Commercial Bank as Exh.P/9, photocopy of Statement of Assets and Liabilities as Exh.P/I0, photocopy of Provident Fund Statement as Exh.P/I1, photocopy of Appointment Order of Bank of Bahawalpur as Exh.P/12, photocopy of Deed of Dissolution of Partnership dated 30-6-I965 as Exh.P/13, photocopy of Conveyance Deed dated 9-1-I979 as Exh.P/14, photocopy of Will dated 2- 8-I983 as Exh.P/I5, photocopy of Affidavit dated 2I-4-2000 as Exh.P/I6 and photocopy of Reply dated 13-I2-2004 to the Legal Notice as Exh.P/17. ' The plaintiff has also examined two witnesses, namely, Hatim Qayum s/o. Qayum Ali and Muhammad Ali s/o. Tasaddaq Hussain, who have produced their Affidavits-in Evidence as Exh.P/19 and as Exh.P/21, respectively. 8. On behalf of the defendants, the defendant No,1 has himself examined. He has produced Power of Attorney of defendant Tauseef Hussain as Exh:D/1, Power of Attorney of defendant Jawaid Hussain as Exh.D/2,Affidavit-in-Evidence as Exh.D/3, attested copy of Deed of Dissolution as Exh.D/4, Notice of Demand in respect of Assessment Order, 1985-86 as Exh.D/5, Assessment Order for the year 1985-86 as Exh.D/6, 1-T Form 30-A for the year 1985-86 as Exh.D/7, Tax Payment Receipt for the year 1985-86 as Exh.D/8, Demand Notice for the year 1986-87 as Exh.D/92 I-T Form 30-A for the period of 1986-87 as Exh.D/10, Receipt of paid challan for the year 1986-87 as Exh.D/11, Acknowledgement Receipt for the year 1986-87 as Exh.D/12, Tax Payment Receipt for the year 1993- 94 as Exh.D/13, Computerized I-T Form 30-A for the year 1995-96 as Exh.D/14, Statement of Final
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Taxation Assessm ent Order for the year 2004 as Exh.D/15, photocopy of Trade Enrolment Certificate for the period 1997-98 as Exh.D/16, WILL of Imdad Hussain Paliwalla as Exh.D/17, Affidavit of Qasim Ali Lakhani as Exh.D/18, Religious "FATAWA" as Exh.D/19 and Receipt of courier service as Exh.D/20. ' Defendants have also examined two witnesses, namely, Abid s/o. Haji Anwar Ahmed and Zulfiquar Ali s/o. Jiwan Ali, who have produced their Affidavits-in Evidence as Exh.D/23 and Exh.D/25, respectively. 9. I have heard at length the arguments of learned counsel for the parties and perused the material available on record. My findings on the above Issues are as under: 10. ISSUE NO. 1 is whether the suit is barred by law. Learned counsel for the defendants, referring Article 120 of the Limitation Act, 1908 and the Rule 347 of the Sindh Civil Court Rules, has contended that the deceased Imdad Hussain Paliwalla died on 15-9-1986 and the plaintiff has maintained this suit for administration in respect of the estate of said deceased on 12-4-2005; therefore, the suit for administration after 19 years is barred under limitation. The other contention of the learned counsel for the defendants has been that Mst. Bilqis was also daughter of deceased Jmdad Hussain, she, died on 11-11-2002, leaving behind her his daughter Mst. Tabassum as her only surviving legal heir; as such, she being a necessary party ought to have been joined the suit as defendant but she has not been made party by the plaintiff; therefore, the suit is not maintainable for want of necessary party. In support of his contention, the learned counsel has relied upon the case of (i) Haji Gulshan v. Abdul Qayoom and 4 others (PLD 1991 Peshawar 85), wherein a civil revision under Section 115 C.P.C, preferred against the judgments and decree of lower Courts below, passed in a civil suit for declaration and correction of mutation entry after 18 years, was dismissed by the Single Judge of Peshawar High Court, holding the same barred by Article 120 of the Limitation Act, 1908 on the ground that plaintiff was claiming Sharai share of his wife after her death. Plaintiff's wife being satisfied with the share of inheritance did not raise objection thereto. (ii). Munawar Sultana through L. Rs, v. Siddique, and others 1983 CLC 2791, wherein it has been held in a suit for declaration that non-joinder of a necessary party to the suit is fatal to suit whatever may be reasons for not arraying a necessary party. (iii). Mst. Salma Abbasi and another v. Ahmed Suleman and 2 others (1981 CLC 462), wherein it has been held that all co-sharers are necessary parties and in their absence, no effective decree can be passed. 11. Per contra, the learned counsel for the plaintiff has contended that it is a suit for administration of estate of a deceased and no limitation runs in the suit for administration. He has further contended that even if deceased Mst. Bilqis is considered as necessary party in the suit, the suit for administration is maintainable in law and does not fail merely for non-joining of any legal heir. The learned counsel has placed his reliance upon the case of (i) Muhammad lqbal and 5 others v. Allah Bachaya and 18 others (2005 SCMR 1447). It has been held by the honourable apex Court that bar of limitation is not applicable to right of inheritance which does not extinguish right by afflux of time. (ii) Mst. Khursheed Bibi and others v. Ramzan and others (2006 CLC 1023). It has been held that when parties are co-heirs, then limitation would not run against co-heir 12. As regard to the first contention of learned counsel for the defendants, I am of the view that neither the Succession Act, 1925 nor the Limitation Act, 1908 prescribes any period of limitation for filing a suit for administration. Such a period, if it can be descried as a period of limitation at all, is laid down in the Rule 347 of the Sindh Civil Court Rules itself, which reads:-- "347. In any case where probate or administration or succession certificate is for the first time applied for after the lapse of three years from the death of the deceased, the reason for the delay shall be explained in the petition, should the explanation be unsatisfactory, the Court may require such proof of the alleged cause of delay as it may deem fit. 13. It is obvious that even upon the terms of the rule it is not possible for the Court to dismiss the suit for administration or application for succession if filed after lapse of three years, but the Court
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could only ask for further proof of the alleged cause of delay, if the explanation is found unsatisfactory. Even the language of the rule is not so explicit which can lead to conclude that it does prescribe any limitation. This view can be examined from another angle that when no limitation is prescribed by any statute, how a rule can prescribe any limitation. Even otherwise it is well settled principle that a rule ought to be construed if possible in such a manner as to make it intra vires rather than ultra vires. 14. It may further be noted that the property of a deceased person devolves upon his heirs upon the moment of his death and letter of administration and succession certificate are granted for the purpose of facilitating the persons entitled to obtain the property. They do not by themselves confer title and it would be unfortunate indeed if a procedural rule that does not prescribe explicitly a period of limitation, were to be interpreted so as to defeat a title already vested. I, therefore, hold that Rule 347 ibid prescribes no period of limitation and that there is no limitation in the suit for administration and application for succession. In this regard, I am fortified by the case of Abdul Rauf Ghaziani v. Zaibunnissa and others PLD 1975 Kar. 76. 15. As regard to the second contention of learned counsel for the defendants that the suit is not maintainable due to non-joinder of the deceased Mst. Bilqis, through her legal heir, namely Mst. Tabassum, who was/ is necessary party being one of the legal heir of deceased Imdad Hussain, I am of the view that since it is a suit for administration, wherein if a decree is passed, all the legal heirs of the deceased are benefited, they all are held entitled to receive their due share in the properties left behind by the deceased in accordance with Sharia, therefore, in such cases an effective decree can be passed in favour of all the legal heirs. In the case of Gul Muhammad and another v. Mir Zaman and another (PLD 1954 Lahore 406), wherein it has been held that Order 1, Rule 9, C.P.C. Provides that no suit shall fail for non-joinder of parties. No doubt that rule cannot be invoked in a case where the proper constitution of the suit requires a person to be impleaded and without his presence relief cannot be granted in the suit. Suit for partition and for accounts of partnership are example of such cases. But it shall be understood that dismissal of a suit for non- joinder is to be based solely on the inability of the Court to grant relief but whenever the Court can help the plaintiff it shall not dismiss the suit for non-joinder. In the case of Mst. Jannat Bibi v. Paras Khan (2011 SCMR 1400) it has been held that it is the duty of the Court to do justice and not to knock out parties on technical grounds. ' The case-law cited by the learned counsel for the defendants are distinguishable so far the facts of this case are concerned. This issue is, therefore, answered in "Negative". 16. ISSUE NO. 2 is whether Mst. Sughra Bai, the mother of the defendants, also inherited properties of deceased Imdad Hussain, The defendants in para No,1 of their written statement have alleged that at the time of death of late Imdad Hussain, his second wife, namely, Mst. Sughra Bai, the mother of defendants, was alive and she died in the year, 1997. This issue has, therefore, been framed on the pleading of the defendants. The plaintiff in his cross-examination (Exh."P") has admitted the fact that Mst. Sughra was alive when deceased Imdad Hussain, her husband, died and that she also had share in the properties left behind by her said husband. This issue is, therefore, answered in "affirmative". 17. ISSUE NO. 3 is whether the plaintiff got his share of inheritance during life time of deceased Imdad Hussain. The defendants in para No,2 of their written statement have alleged that the plaintiff had already received his due share from the property, of the deceased Imdad Hussain. They have also stated in para No,3 f their written statement that the said deceased during his life time had executed a "Will" whereby he excluded the plaintiff from any inheritance. Plaintiff has denied the said claim of the defendants in para Nos.12 and 15 of his Affidavit-in-Evidence. In his cross-examination also the plaintiff has denied the said assertion and replied as under:
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"It is incorrect to suggest that I had taken my, due share of inheritance from my father during his life time when I started living in separate house It is incorrect to suggest that I have filed the present suit in the year 2005 allegedly for the reasons that I had already taken the share from inheritance on death of my father." ' Since, the said issue has been framed on the pleadings of the defendants and the plaintiff has denied the said claim of the defendants, the onus of proof lies upon the defendants. Defendant No,1, in para No,8 of his Affidavit-in Evidence (Exh:"D/3") has reasserted the same. He has produced the said "Will" as "Exh:D/17'. 18. Learned counsel for the defendants, who has, given emphasis to a great extent on the clause 8 of the Will, has argued that the deceased had himself excluded the plaintiff from his inheritance. The contents of clause 8 of the said "Will" are reproduced as under: "That my son Hamid Hussain has been married since long and is living separately from me since the last more than about 28 years with his wife, and children and is earning an independent livelihood and at the time of separation he had declared that he will not claim share of any kind in my properties and assets." ' Without discussing the evidentiary value of the said Will, 'which I would discuss while giving my findings on issue No,6, I have found the alleged claim/assertion of the defendants in contradiction to the above mentioned contents of clause 8 of the Will. As per the said contents, the plaintiff has relinquished his right of inheritance. I am afraid; this is not the case of the defendants. The case of the defendants is that the plaintiff has already taken his share in inheritance during life time of his deceased father. It establishes that the said stance of the defendants does not hold any valid ground. Even, for the sake of arguments; if it is considered that in his life time the deceased father of the plaintiff had given anything to him that would be considered as a "gift" from a father to his son but under no circumstances it could be taken as "share in inheritance of his father". The defendants have failed to prove the issue under discussion by any rational, convincing and cogent evidence. This issue is; therefore, answered in "negative". 19. ISSUES NOS. 4 and 5 are whether the property bearing No,C-106, Saifee Co-operative Housing Society was acquired after the plaintiff's having received his share from the estate of Imdad Hussain and whether the deceased has excluded the plaintiff of the inheritance through a will. These both issues are covered by my findings on issue No,3 and accordingly I answer these issues in "negative". 20. ISSUE NO. 6 is whether the deceased had executed the Will as alleged, if so to what effect. This is the core issue arisen out from the pleadings of the defendants. In para No,3 of their written statement, the defendants have alleged that the deceased Imdad Hussain during his life time had executed a "Will". Plaintiff has denied the said claim of the defendants in para No, 14 of his Affidavit- in-Evidence. He has maintained that it has never come to his knowledge if any such document has ever been executed by the deceased as he was constantly in touch with him till his death, hence, the alleged Will is a fake and unenforceable document and he believes that the same has never been executed by his deceased father. The plaintiff has also repudiated the said claim of the defendants in his cross-examination by replying the question of learned counsel for the defendants in negation that his father had executed any "Will" on 2-8-1983. 2,1. Since, the issue under discussion has been framed on the pleadings of the defendants and the plaintiff has denied their said claim, the onus of proof lies upon the defendants to prove that the deceased Imdad Hussain has executed any "Will". In order to discharge his burden, the defendant No,1, in para No, 8 of his Affidavit-in Evidence (Exh:"D/3") has stated that the deceased Imdad Hussain during his life time has executed the "Will" (Exh:D/17), which was witnessed by the two shop keepers of the nearby shops, namely, Kassam Ali and Anwar Ahmed of "Zenith Lights" and "Sindh Paint Store" respectively. He has further stated that Kassam Ali has shifted to America with his
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entire family while Anwar Ahmed has died. Kassam Ali had executed an affidavit dated 21-4-2000. (Exh:D/18). He has also stated that the parties are governed by Shia Muslim (Fiqah Jafery) Law and the parties are bound under their personal law to the "Will" subject to its proof. 22. I have heard the learned counsel for the parties at length on this Issue. Learned counsel for the plaintiff has contended that the plaintiff has denied the execution of any Will by his deceased father in his life time; therefore, burden lies upon the defendants, who are beneficiary of the said Will to prove its execution by cogent evidence. He has also contended that the alleged Will is a false and fabricated document and even otherwise a Muslim cannot by a Will dispose of more than 1/3rd of his estate. And a Will by a person in favour of his presumptive heir(s), is invalid unless all the other heirs consent to the same. Since the entire estate has been disposed of in the instant case in favour of the defendants and without the consent of other legal heir i,e, plaintiff, the alleged Will is invalid. In support of his contentions, the learned counsel for the plaintiff has relied upon the case of (i) Fazal Muhammad v. Mst. Chohara and others 1992 SCMR 2182, (ii) Muhammad Tufail v. Atta Shabir and 5 others PLD 1977 SC 220 and (ii) Zardad v. Ali Akbar and others 1989 CLC 2028. 23. On the other hand, the learned counsel for the defendants has contended that one of the attesting witnesses of the alleged Will, namely, Kassam Ali has shifted to America while the other, namely, Anwar Ahmed has expired, therefore, attesting witnesses of the Will could not be produced for evidence. He has further contended that the defendant No,1 has produced in his evidence an affidavit sworn by said Kassam Ali on 21-4-2000 (Exh: D/18) wherein he has affirmed the execution of the said Will by deceased Imdad Hussain on 2-8-1983, Lastly, he has contended that the deceased had executed the said Will with the knowledge and consent of the plaintiff, which can be inferred from the conduct of…
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