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Official Citation: 2024 YLR 537
Court / Jurisdiction: Sindh High Court
Year of Decision: 2022
Decision Date: 2022-06-04
Parties: Kaniz Fatima and others vs Syed Qaseemul Hassan and others
Ruling Summary: This decision was rendered by the Sindh High Court on 2022-06-04, officially reported as 2024 YLR 537. In this matter between Kaniz Fatima and others and Syed Qaseemul Hassan and others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 YLR 537
Court Name: Sindh High Court Judge(s): Mahmood A. Khan Title: Kaniz Fatima and others vs Syed Qaseemul Hassan and others Case No.: Suits Nos. 943 of 1997, 174, 175 of 1999 and 825 of 2002 Date of Judgment:2022-06-04 Reported As: 2024 YLR 537 Result: Order accordingly
JUDGMENT
JUDGMENT MAHMOOD A. KHAN, J. By this single judgment. all foregiven cases are taken up for disposal wherein the dispute is between the nine legal heirs of one late Syed Naseeb-ul-Hassan having expired in 1985 on one side and one of his son late Syed Qaseem-ul-Hassan on the other side. After filing of the suit the mother late Kaniz Fatima (one of the plaintiffs who came up for evidence also) the widow of deceased Syed Naseeb-ul-Hassan has also expired along with the said son late Syed Qaseem-ul-Hassan the opposing party in the matter and son having expired before the mother. The first proceeding is Suit No. 943/1997 wherein the plaintiffs are all the legal heirs except late Syed Naseeb-ul-Hassan, titled for declaration, permanent injunction, accounts, partition and damages. It is claimed therein that late Syed Naseeb-ul-Hassan initially conducting a sole proprietorship business which was later converted to partnership with his son Syed Qaseem-ul-Hassan in the year 1977 and after his death two of the legal heirs i.e. Syed Qamarul Hassan and Sultan Jahan were taken in as partner in the percentage of 30% each whereas the said late Syed Qaseem-til- Hassan was having 40%. That the late Syed Naseeb-ul-Hassan is also having two sons namely Syed Raqeem-ul-Hassan and Syed Iqbal Hassan of un-sound mind/mentally retarded being un- able to understand and respond properly. That the subject property being a double story bungalow on Plot No. C-28, Block-6, Gulshan-e-Iqbal, Karachi measuring 600 sq.yds, land of which was acquired in the year 1976 and in the year 1978 was got constructed by late Syed Naseeb-ul- Hassan, however, the said property was kept in the name of the defendant son as benamidar. It is also claimed that the said defendant was also in occupation of the shop as Managing Partner and goodwill proceed thereof were misappropriated without giving accounts to the plaintiffs in the
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matter. The original title documents of the subject property are with the Plaintiff No.1 i.e. the mother and the parties are enjoying the possession. The plaintiffs made following prayer; a) Declaring that the suit property namely bungalow No. C-28, Block-VI, Gulshan-e-Iqbal, Karachi, is a benami property which has been purchased/constructed by and with the funds of late Syed Naseebul Hassan; Declaring that the defendant No.1 has disposed of Shop No.7, Taj Mansion, SB-6/57, Raja Ghazanfer Ali Khan Road, Karachi, illegally and unauthorisedly and all the plaintiffs and defendant No.1 are entitled to the sale proceeds according to their respective shares; c) Declaring that the plaintiffs and defendant No.1 are entitled to have their respective shares in the aforesaid bungalow No.C-23 according to Muslim Law. d) Grant permanent injunction restraining the defendants, their servants, agents, representatives, attorneys and persons acting on their behalf from dispossessing/evicting the plaintiffs in any manner and from interfering in any manner the plaintiffs' right of enjoying the possession of suit property namely bungalow No. C-28, Block-VI, Gulshan-e-Iqbal, Karachi and from selling, transferring or disposing of the said property in any manner. e) Pass preliminary decree ordering the defendants to render accounts and for enquiries to be taken and made in respect of partnership business namely Mohsin and Company of suit property namely Shop No.7, Taj Mansion, Raja Ghazanfar Ali Khan Road, Saddar, Karachi, left by late Syed Nasibul Hassan; f) Pass a decree for sum of Rs.20,00,000/- as damages/compensation in favour of plaintiffs; g) Pass decree for partition of the suit property mentioned in paragraph 7 of the plaint; h) Cost of the suit; i) Any other relief(s) which this Hon'ble Court may deem fit and proper in the circumstances of the case may be granted to the plaintiffs. 2. The defendant in the matter has however claimed that the subject property was acquired by him through his own funds as he was working with his late father 3/4 years prior to the partnership and that construction was also made by him. The subsequent partnership of the plaintiffs is not denied, however, it is claimed that the said partnership was got dissolved between its partners in the year 1989 whereafter although name of Mohsin and Co. is used the same is a sole proprietorship concern of the said defendant. It is also claimed that the said defendant acquired the subject plot against the total sale consideration of Rs.83,000/- wherein at the time of the sale agreement in the year 1974 a sum of Rs. 20,000/-was paid whereas at the time of execution of sale deed the sum of Rs. 63,000/- by the said defendant was paid in 1978. It is claimed that the said defendant was handsomely paid by late father for his services and apart from the same a sum of Rs. 150,000/- as friendly loan was provided by one Syed Ghazanfar Ali to him who later became father in law in the year 1979. In this regard, a sum of Rs.50,000/- was also acquired from Syed Zaheer Hassan his first cousin in the year 1977. As such he was having 50% partnership with his father. It was also claimed by the defendant that other properties of the deceased were present standing in the, name of the plaintiffs which were benami and that the Plaintiff No.8 had surrendered the shop and that the accounts of the partnership were open and available. As such neither the partial possession nor the status of the family members was denied. The defendant as such accepted working as Messrs Mohsin and Co. claiming the same as sole proprietor. 3. From the pleadings of the parties, following issues were framed by this Court on 15.02.1999; 1. Whether the suit property bearing No.C-28, Block VI, Gulshan-e-Iqbal, Karachi, was purchased by late Syed Nasibul Hassan during his life time or by defendant No.1 from his own funds? 2. Whether the Shop No.7, Taj Mansion, on Plot Survey No.SB-6/57, Summerset Street, Saddar, Karachi, was disposed of by Defendant No.1 or by Plaintiff No.8? 3. Whether the partnership firm Mohsin and Company with partners Defendant No.1,
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Plaintiffs No.4 and and continued to exist even after November 1985 or 30-6-1989, if no, when the same was dissolved? 4. Whether the Defendant No.1 has furnished accounts of the said partnership firm to the Plaintiffs Nos.4 and 8 till filing of suit? 5. Whether the Defendant No.1 has acted as managing partner of aforesaid partnership firm, if yes, whether he has consented the other partners in business transaction of the said firm till filing of the suit? 6. Whether the suit is time barred? 7. Whether the undertaking Annexure 'F' to the written-statement is a forged and fabricated document allegedly executed by Plaintiff No.8? 8. Whether the plaintiffs are entitled to any damages/compensation from the defendants? 9. What should the decree be? 4. Plaintiff No.1 Mst. Kaniz Fatima examined herself and filed her affidavit-in-evidence as Exh-5. Plaintiff No.2 Syed Shamimul Hassan also examined himself and produced his affidavit-in- evidence as Exh-7. He further produced original general power of attorneys dated 28.02.2005 and 18.10.1997 as Exhs. 8 and 9, original receipt dated 28.03.1976 issued by Gulshan-e-Iqbal Estate Corporation as Exh-10, agreement of sell dated 29.03.1976 as Exh-11, original transfer letter of KDA as Exh-12 and original lease deed as Exh-13. One Syed Ali Haider son of Syed Zamin Ali also examined himself as witness of the plaintiff as PW-3. One Noman Ali son of Ismail Jee also examined himself as witness at Exh-14. He produced letters dated 19.08.1987, 22.01.1987 and copy of affidavit executed by Syed Qaseem-ul-Hassan as Exhs-14/1 to 14/3. They all were cross-examined by learned counsel for the defendants. 5. Defendant No.1(a) Nadira Iffat Rizvi examined herself and produced her affidavit-in-evidence as Exh-D-1, general power of attorney as Exh-D-1/1 and certificate of dissolution of partnership of firm namely Mohsin and Company as Exh-D-1/2. She was duly cross-examined by learned counsel for the plaintiffs. Suit No. 174 of 1999 6. Suit No. 174 of 1999 has been filed by Syed Qaseem-ul-Hassan before his death making all the other legal heirs of late Syed Naseebul Hassan as defendants in respect of property bearing No. 79 measuring 280 Sq.yds situated in Block-3, C.P Berar Cooperative Housing Society, Karachi said to have been acquired in the year 1969 in the name of defendant No.1 Mst. Binte Fatima the plaintiff's real sister who was unmarried at that time valued at Rs. 80,00,000/-which was said to be rented out by the defendant against rent of Rs. 25,000/- per month. It is further claimed that the said owner is a household lady and had no source of income and the same was acquired from the funds of late Syed Naseeb-ul-Hassan including the construction raised thereon. It is further claimed that the said property being benami the said owner had failed to furnish the accounts thereof in respect of which notices have been issued to the said defendant. The plaintiffs filed the suit with the following prayer; a) Declaring that the suit property i.e. property bearing No. 79 measuring 280 Sq. yards situated in Block No. 39 C.F. and Berar Cooperative Housing Society is "BENAMI' property which has been purchased/constructed by and with the funds of Late Syed Nasib-ul-Hasan. b) declaring that the plaintiff and defendants are legal heir of late Syed Nasib-ul-Hasan and are entitled to have their respective shares in the above said 'BENAMI" property including rent according to Muslim Laws; c) grant permanent injunction restraining the defendant No.1, her servants, agents, representatives, attorneys and persons acting on her behalf from selling, transferring and/or disposing the above said "BENAMI" property as mentioned in the plaint in any manner whatsoever.
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d) pass preliminary decree ordering the defendant No. 1 to render complete rent accounts of the above said 'BENAMI' property left by late Syed Nasib-ul-Hasan and the defendant No. 1 may be directed to deposit the arrears of rent and also current rent in this Hon'ble Court till disposal of the cases. e) pass a decree for partition of the 'BENAMI' suit property i.e. property bearing No. 79 measuring 280 sq. yards situated in Block-3, C.P. and Berar Co-operative Housing Society. f) Cost of the suit. g) Any other relief/relieves which this, Honourable Court may think deem fit and proper in the circumstances of the case may be granted to the Plaintiff. 7. The defendants in the matter have opposed the claim of the plaintiff claiming that the said property was purchased by the father with intent to give the same as Jehez to the said defendant No.1 and it was accordingly done at the time of marriage in the year 1973 during lifetime of the deceased father and lease deed of the subject property was acquired in the year 1976. It is further claimed that after the death of the father in the year 1985, plaintiff started receiving rent of the subject property without any authority till 1989 and in this regard also executed agreement of tenancy however failed to pay the same to the owner i.e. defendant No.1 whereafter the plaintiff was restraint from dealing with the tenants. 8. On 21.05.2001 learned counsel for the plaintiff filed following proposed issues in Suit No. 174/1999 which were adopted by this Court vide order dated 22.04.2002; 1. Whether late Syed Naseeb-ul-Hassan during his life time had purchased and constructed from his own funds the suit property in the name of defendant No.1 as Benamidar? 2. Whether late Syed Naseeb-ul-Hassan had managed the suit property himself for the period from 1969 to march 198_ and was receiving the rent of the suit property? 3. Whether the suit property was purchased in the name of defendant No.1 with intent to givP.ter as Janaiz and at the time of marriage the said property was formally given to defendant No.1 as her Jahaiz? 4. Whether defendant No.1 has been realizing rent from the tenants of the suit property since May 1985? 5. Whether defendant No.1 is liable to furnish accounts for the rent received by her since 1985 upto date and all the legal heirs including the Plaintiff are entitled to receive their respective shares out of the rent so received by defendant No.1 according to Muslim law? 6. Whether the Plaintiff and the defendants are entitle to have their respective shares in the suit property according to Muslim Shia law of inheritance? The original plaintiff having expired PW-1 Nadira Iffat was examined. Suit No. 175 of 1999 9. Suit No. 175 of 1999 has also been filed by Syed Qaseem-ul-Hassan during his lifetime which was titled for partition, declaration, permanent injunction, accounts, cancellation of forged documents and damages wherein it is claimed that the late Syed Naseeb-ul-Hassan during his lifetime had purchased and raised construction from his own funds and resources on property bearing No. 39/3, measuring 283 Sq.yds situated in Block-3, C.P Berar Cooperative Housing Society, Karachi in the name of his wife Mst. Kaniz Fatima in the year 1969. That the said late Syed Naseeb-ul-Hassan during his lifetime rented out the subject property till his death against rent of Rs. 25,000/- per month. It is claimed that the said property was owned by the late father and was unauthorizedly transferred by way of gift deed and relinquishment deed before the society in the name of defendant No.1 wherein the relinquishment deed by forged signatures of the plaintiff wherein the same was objected to by the plaintiff before the concerned society and that the subject property was acquiring monthly rent of Rs. 25,000/- and plaintiff and other legal heirs have been deprived of their share. The plaintiffs have made the following prayers;
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a) declaring that the suit property i.e. property bearing No. 39/3 measuring 283 sq. yards situated in Block-3, C.P. and Berer Cooperative Housing Society, Karachi left by the Syed Nasib-ul-Hasan which has been purchased/constructed by and with the funds of Late Syed Nasib-ul-Hasan; b) declaring that the plaintiff and others legal heirs (other defendants) of Tate Syed Nasib-ul- Hasan are entitled to have their respective shares in the above said property including rent according to Muslim Shia Law. c) declaring that the defendant No.1 illegally receiving the rent of the above said property without the consent/authority of plaintiff and other defendants since Dec. 1985 onwards. c-a) Pass Preliminary decree ordering defendant No.1 to render true and complete accounts of the rent received by him in respect of Benami Suit Property left by the late Syed Naseeb-ul-Hasan and final decree may also be passed for payment of rent failing. to the share of each of the defendants and the Plaintiff. d) declaring that the gift deed dated 18.10.85 and relinquishment deed dated May, 1992 which was submitted by the defendant No.1 before the office of the society are forged documents and nullity in the eyes of law. d-a) Pass a decree preliminary as well as final for partition of the suit property bearing No.39/3 measuring 283 sq.yards Block No.3 C.P. and Berar Cooperative Housing Society Karachi by meets and bounds according to Muslim law of inheritance. e) grant permanent injunction restraining the defendant No.1 his servants, agents, representatives, attorneys and persons acting on his behalf from selling, transferring and/or disposing the above said property as mentioned in the plaint in any manner whatsoever. f) pass a decree for a sum of Rs.2,500,0004 as damages/compensation in favour of plaintiff. g) Cost of the suit. h) Any other relief(s) which this Hon'ble Court may think deem fit and proper in the circumstances of the case may be granted to the plaintiff. 10. To the said plaint joint written statement was filed by the defendants i.e. all legal heirs denying the allegations made and contending that the subject property was purchased in the year 1953 and construction thereof started in the year 1954 which was single story and subsequently further construction was made up till 1978. That in the said property the parties were residing till 1978 wherein they shifted to the subject property of Suit No. 825/2002 and that in the year 1981 the said father gifted the subject property to defendant No.1 accompanied by the plaintiff also. That Work Division, Govt. of Pakistan vide letter dated 06.01.1981 acknowledged the said gift. It is also claimed that the subject property was purchased in the name of wife. 11. On 21.05.2001 learned counsel for the plaintiff filed following proposed issues in Suit No. 174/1999 which were adopted by this Court vide order dated 22.04.2002 in this matter also; 1. Whether late Syed Naseeb-ul-Hassan during his life time had purchased and constructed from his own funds the suit property in the name of defendant No.1 as Benamidar? 2. Whether late Syed Naseeb-ul-Hassan had managed the suit property himself for the period from 1969 to march 198 and was receiving the rent of the suit property? 3. Whether the suit property was purchased in the name of defendant No..1 with intent to give her as Janaiz and at the time of marriage the said property was formally given to defendant No.1 as her Jahaiz? 4. Whether defendant No.1 has been realizing rent from the tenants of the suit property since May 1985? 5. Whether defendant No.1 is liable to furnish accounts for the rent received by her since 1985 upto date and all the legal heirs including the Plaintiff are entitled to receive their respective shares out of the rent so received by defendant No.1 according to Muslim law?
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6. Whether the Plaintiff and the defendants are entitle to have their respective shares in the suit property according to Muslim Shia law of inheritance? 12. Plaintiff Nadira Iffat examined herself at Exh-P and filed her affidavit-in-evidence as Exh-P-5. She further produced rent agreement dated 18.04.1979 as Exh-P-5/1, agreement dated 09.04.1979 as Exh-P-5/2 and letter dated 14.03.1998 as Exh-P-5/3. She was duly cross-examined by learned counsel for the defendants. Suit No. 825 of 2002 13. Suit No. 825 of 2002 has been filed by widow and sons of late Syed Qaseem-ul-Hassan against all other legal heirs titled for declaration, possession, mesne profits, permanent injunction and partition wherein property bearing Plot No. C-28, Block-6, Gulshan-e-Iqbal, Karachi measuring 600 Sq.yds being in the name of deceased Syed Qaseem-ul-Hassan is the subject property (which is otherwise subject matter of Suit No. 943/ 1997) is required to be partitioned between the said plaintiffs and mother of deceased Mst. Kaniz Fatima the defendant No.1 by meets and bounds and possession from the other defendants. The version of the plaintiff/s already coming up in the discussion of Suit No. 943/1997 being a repetition is avoided. The plaintiffs filed the suit with the following prayers; a) Judgment and decree declaring that the late Qaseem-ul-Hassan son of Naseeb-ul-Hassan was the owner of the Bungalow No. C-28 Block - VI, Gulshan-e-lqbal, Karachi and after his death the plaintiffs and defendant No.1 have become the owners of the said bungalow being legal heirs of late Qaseem-ul-Hassan in accordance with the Muslim law of inheritance of Shia Sect. b) Judgment and decree for possession as against defendants No.2 to No.8 with direction to them to vacate the ground floor and one room on the First floor of the aforesaid Bungalow and to handover its possession to the Plaintiffs. c) Judgment and decree for mesne profits as against defendants No.2 to No.8 at the rate of Rs.1000/ per day since the month of August 1999 up till the date the defendants vacate and deliver the possession of the ground floor and one room on the First Floor of the Bungalow to the Plaintiffs. d) Judgment and decree for partition of the Bungalow No. C-28 Block-VI, Gulshan-e-Iqbal Karachi amongst the Plaintiffs and Defendant No.1 by meets and bounds according to the ratio of 1/8th to Defendant No.1 and the rest of the shares to the Plaintiffs according to Muslim Law of inheritance by passing preliminary decree and thereafter final decree of partition of the bungalow may kindly be passed according to law. e) Judgment and decree for permanent injunction restraining each of the defendants from disturbing or interfering with the possession of the portions of the bungalow in possession of the plaintiffs and also from interfering and disturbing the amenities such as electricity, gas and with the entrance of main gate of the bungalow. They may further be restrained from interfering with the possession of the roof of the bungalow where the maid servant of the plaintiff is residing with her husband and children. f) Cost of the suit. g) Any other relief(s) which this Hon'ble Court may think deem fit and proper in the circumstances of the case may be granted to the plaintiffs. 14. To the said suit defendants have filed joint written statement objecting to the same claiming that the subject property stands benami in the name of late Syed Qaseem-ul-Hassan referring to Suit No. 943/1997 and denied the claim. The details already coming up in discussion of the said suit are avoided being a repetition. 15. With the consent of learned counsel for the parties, issues framed in Suit No. 943/1997 were ordered to be treated as issues in this suit along with following additional issue; "Whether defendants Nos. 2 to 8 are occupying the suit property illegally and thus liable to pay mesne profits at the rate of Rs.1000/- per month from July 1999 till delivery of possession of ground
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floor and one room on the first floor"? 16. Plaintiff Nadira Hassan examined herself and produced sale agreement dated 29.03.1976 as Exh-P/8, reply of Syed Shamimul Hassan dated 28.07.1997 as Exh-P/9, Form PT-1 as Exh-P/10, four receipts of payment of water and conservancy charges as Exhs-P/11 to P/14, receipt of payment of property tax as Exh-P/15, receipt of payment of water and conservancy charges along with two unpaid challan as Exhs-P/16 to P/18. She was duly cross-examined by learned counsel for the defendants. 17. Defendant No.2 Syed Shamimul Hassan examined himself and produced his affidavit-in- evidence as Exh-D-1. He further produced two general power of attorneys dated 28.02.2005 and 18.10.1997 as Exhs-D/2 and D/3, receipt No. 119 dated 28.03.1976 as Exh-D/14, agreement to sell dated 29.03.1976 as Exh-D/5, transfer letter of KDA dated 13.04.1976 as Exh-D/6, indenture of lease dated 01.01.1978 as Exh-D/7, letters of Mr. Nauman Ali Advocate dated 22.01.1987, 02.02.1987, 18.08.1987, 15.09.1987 as Exhs-D/8 to D/11, certificate of partnership dated 06.11.1985 as Exh-D/12 and partnership deed dated 01.07.1985 as Exh-D/13. Defendant No.1 Kaniz Fatima also examined herself who produced her affidavit-in-evidence as Exh-D/14. They were duly cross-examined by learned counsel for the plaintiff. 18. Learned counsel for the plaintiff contends that late Syed Naseebul Hassan in 1976 has purchased a plot No.C-28, Block VI, Gulshan-e-lqbal, Karachi measuring 600 sq, yards from the duly constituted attorney of Lt. Col. Raja Zahoor Akhtar son of Late Raja Hasan Akhtar against a valuable consideration and also raised construction on the suit property which was completed in 1978 from his own funds and the plaintiffs and defendants are residing in the said bungalow since 1978. That the said suit property was purchased by late Syed Naseeb-ul-Hassan himself with his own funds but in the name of defendant Syed Qaseemul Hassan as Benamidar. That the original title documents of the suit property bearing No. C-28, Block VI, Gulshan-e-lqbal are lying with the plaintiff No.1 and plaintiffs are also in joint possession of the suit property since the beginning. The title documents of the suit property was handed over to the plaintiff No.1 by late Syed Naseebul Hassan in his lifetime. That late Syed Naseebul Hassan was running his business as a sole proprietorship in Shop No.7, Taj Mansion on plot Survey No.SB-6/57, Sommerest Street (Raja Ghazanfar Ali Khan Road), Saddar, Karachi, thereafter he had formed a partnership duly registered w.e.f. 1 July 1977 and defendant was partner. That after the death of Syed Naseebul Hassan, another partnership deed was executed and registered wherein the Plaintiff Nos.4 and 8 were joined as partners and defendant No.1 was the managing partner w.e.f. 01 July 1985. The name of the partnership company being "Mohsin and Company" remained the same despite the demise of Syed Naseebul Hassan. The plaintiffs have very recently came to know that the defendant No.1 has disposed of the said shop illegally without consent or permission of any…
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