Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: WAQAR AHMED SIDDIQUI and 3 others VS Respondent: Mst. SHEHNAZ PARVEEN
Court Name: Sindh High Court Judge(s): Aqeel Ahmed Abbasi, Aziz-ur-Rehman Title: WAQAR AHMED SIDDIQUI and 3 others vs Mst. SHEHNAZ PARVEEN Case No.: H.C.A. No, 331 of 2017 Date of Judgment:2018-02-06 Reported As: 2019 CLC 369 Result: Order accordingly
JUDGMENT
JUDGMENT AZIZ-UR-REHMAN, J.----By means of this High Court Appeal filed by the appellants on 18.08.2017, under section 3 of the Law Reforms Ordinance, 1972, read with Section 15 of Ordinance X of 1980 [Waqar Ahmed Siddiqui and others v. Mst. Shehnaz Parveen], have challenged the impugned order dated 24.07.2017, passed by the learned Single Judge of this Court in Suit No,1502/2015 [Waqar Ahmed Siddiqui and 3 others v. Shehnaz Parveen], whereby, the learned Single Judge while, allowing the application under section 152, C.P.C. bearing C.M.A. No,9428 of 2017. filed by the respondent herein, modified the judgment and decree dated 18.05.2017 and 24.05.2017, respectively. 2. Being relevant, the prayers sought by Respondent viz. Mrs. Shehnaz Parveen [stepsister of the appellants], in the Application under section 152, C.P.C. [C.M.A. No,9428/2017] read as follows: - 1. "It is prayed on behalf of the defendant above-named that this Hon'ble court may be pleased to pass order for making amendment in the Judgment and Decree assed by this Hon'ble Court on 6-5-2017 and announced on 18-5-2017 as under in the interest of justice and law: Last page of judgment and Decree left by deceased Mst. Nafeesa Siddiqui the expenses will be met from the assets left by deceased Mst. Nafeesa Siddiqui. That in place of Nafeesa Siddiqui, name of Deceased Muhammad Ahmed Siddiqui shall be amended as who was father of plaintiffs and defendant and property in question is still in his name. 2. Distribute the sale price amongst all the plaintiffs. That it would be distribute the sale price amongst all the plaintiffs and Defendants according to Muhammadan Law of inheritance.
---
## Page 2
[Underlining is ours] It is in the interest of law and justice." 3. The relevant facts of the case out of which this High Court Appeal has arisen arc that the Appellant No,1, filed a Petition under Section 278 of Succession Act, XXXIV of 1925 [SMA No,59 of 2005], for grant of a Letter of Administration in respect of properties and assets belonging to late Mst. Nafeesa Siddiqui wife of Late Muhammad Ahmed Siddiqui, who passed away at Karachi, on 04.07.1999. 4. Per averments made in SMA No,59 of 2005, Muhammad Ahmed Siddiqui from second marriage with Nafeesa Siddiqui has two [2] sons and two [2] daughters, namely, [i]. Waqar Ahmed Siddiqi, [ii]. Mst. Shaista Ahmed [iii]. Mst. Nadra Ahmed and [iv]. Riaz Ahmed Siddiqui and only one daughter viz. Mst. Shehnaz Parveen [Respondent herein], from his ex-wife. Mst. Shahnaz Parveen admittedly is a step-sister of the appellants. Perhaps, on account of some dispute arose between the father of the appellants and mother of Mst. Shehnaz Parveen, the mother of Respondent herein, was divorced and, thereafter, Muhammad Ahmed Siddiqui, contracted a second marriage with Mst. Nafeesa Siddiqui, from whom wedlock, the four [04] appellants herein were born. 5. Muhammad Ahmed Siddiqui, as averred, during his lifetime. on15.6.1970, verbally gifted out the immovable property bearing No,11-N, Block No,2, PECHS, Karachi, [hereinafter referred to as 'subject property], which property, as claimed by the sons and daughters is/was owned by Late Muhammad Ahmed Siddiqui, [who as stated was a Superintendent in Naval Headquarters, Karachi], to appellants' mother namely Mst. Nafeesa Siddiqui., It is worth to note that the name of Mst. Nafeesa Siddiqui as donee in the DECLARATION OF GIFT, made in 'confirmation' of verbal gift and reduced into writing on 15.11.1973, has been mentioned as Nafeesa Fatima daughter of [Late] Mr. Hashmat Ali. Being relevant, for ready reference, Declaration of Gift dated 15.11.1973, is reproduced herein-below:- Exh. '5/2' DECLARATION OF GIFT In confirmation of my verbal declaration of fifteenth day of June 1970, I Mr. Mohd. Ahnzad Siddiqui son of Late Mr. Asghar Ali Supdt. Naval. Headquarters, Karachi adult, Muslim, do hereby affirm and state as follows ):- That on the fifteenth day of June, Nineteen Hundred and Seventy the said Mr. Muhammad Ahmad Siddiqui of my own free will and without any undue pressure, made by word of mouth a Gift of my House No,11-N Block No,2 P.E.C.H. Society, Karachi, to my wife, Mst. Nafis Fatima daughter of Late Mr. Hashmat Ali, and divested myself completely of all ownership and dominion over the subject of the gift. That I handed over full and exclusive possession of the said property to the said Mst. Nafis Fatima, That I surrendered all interests and rights in the said property in favour of said Mst. Nafis Fatima without any condition or consideration and simultaneously she became responsible for all dues and Taxes in respect of the said property. That the said Mst. Nafis Fatima accepted the gift of the said property and assumed full physical possession thereof on the same date simultaneously. ,-,-,-,-,-,-,-,-,-,-,-,-, I Mst. Nafis Fatifna daughter of late Mr. Hushmat Ali resident of House No,4/6, Nazimabad Karachi hereby declare that my husband the said Mr. Mohd. Ahmad Siddiqui doner, Gifted away the said property in the presence of witnesses in my favour on 15th June, Nineteen hundred and seventy, and I accepted the gift and that he put me in possession of the said property on the said date, this 15th day of November, Nineteen hundred and seventy three. [Underlining is ours] Sd/- DONOR: (Mohd. Ahmad Siddiqui )
---
## Page 3
Sd/- DONEE:(MST. NAFIS FATIMA ) Witness No,1 Sd/- Witness No,2 Sd/- 6. This is no body's case that MST. NAFEESA FATIMA in whose favour the gift was made, is either not the 2nd wife of Late Muhammad Ahmed Siddiqui or otherwise, her father viz. Mr. Hashmat Ali, was/is not a father-in-law of Late Muhammad Ahmed Siddiqui, who admittedly is the father of the four [4] appellants and Respondent herein, viz. Shahnaz Parveen, [step-sister of the appellants]. The father of the appellants and Respondent undisputedly, died in Karachi, on 04.06.1977, but neither the appellants nor the respondent herein till date, filed any Petition for obtaining a Succession Certificate/Letter of Administration or otherwise, filed any suit for Administration of properties/assets, if any, left behind by Late Muhammad Ahmed Siddiqui. Besides, during the lifetime of late Muhammad Ahmed Siddiqui and late Mst. Nafeesa Fatima Siddiqui, no one has challenged the Gift in favour of Appellants' mother. Not only this, till date, Respondent herein,' has not challenged the said Gift by way of filing any suit for cancellation and/or declaration of the said document as bogus and/or otherwise, without any legal effect. The father of the Appellants and Respondent herein, admittedly, has died on 04.06.1977. 7. The 'subject property' it is significant to note, was not mutated in the name of Mst. Nafeesa Fatima in the record of P.E.C.H. Society, during the lifetime of Late Muhammad Ahmed Siddiqui though in this respect, an application, later on was filed on 11.07.1984, with Honorary Secretary P.E.C.H.S, Karachi. The application of Mst. Nafeesa Fatima dated 11.7.1984, being relevant is reproduced herein-below: Exh. '5/3' To, The Honorary Secretary P.E. C.H. Society Karachi No,29 Sir, Most Respectfully, I beg to say that the house No, 11-N Block No, 2 P.E. C.H.S. is named of my husband named Mohd. Ahmad Siddiqi who has died in 1977 and he has given me a gift of his house in your life and I requested you under notice of your Society of 6, May 1984 published in Akhbar-e Jang. So please transfer my name Nails Fatima instead of my husband name Late Mohd Ahmad Siddiqi I shall be very thankful to you. (Underlining is ours) Sd/- 11/7/84 Name :- Nafis Fatima Fathers name:-Hashmat Ali House No :- 11-N Block No,2 P.E.C.H.S. Karachi No.29 8. The SMA No,59/2005, filed by Appellant No,1 viz. Waqar Siddiqui under section 278 of the Succession Act, XXXIV of 1925, upon the death of Mst. Nafeesa Siddiqui on 04.07.1999 for grant of Letter of Administration in respect of properties and assets belonging to Late MST. NAFEESA SIDDIQUI wife of late Muhammad Ahmed Siddiqui, when came-up before the Court on 17.5.2005, of course, after fulfilling all the requisite formalities including publication in 'Daily Jang' dated 25.4.2005, then the following order was passed: - Dated: 17.5.2005 Mr. Shah Nawaz for the petitioners.
---
## Page 4
By this petition the petitioner seeks Letter of Administration with regard to the-estate of the deceased Nafeesa Siddiqui who died at Karachi on 4.7.1999. The petitioner claims that the house situated on Plot No, 11-N, Block-2, PECHS, Karachi, comprises of the estate of the deceased that was gifted to her by his late father Muhammad Ahmad Siddiqui. Admittedly the said property is still in the name of late Muhammad Ahmed Siddiqui. On query it has also been disclosed by the petitioner, who is also present in Court, that the name of his sister and daughter of late Muhammad Ahmed Siddiqui from his first wife is Shehnaz Parveen. Said Shahida Parveen is required to be joined in the present proceedings as the property is still in the name of the deceased father of the petitioner. The Petitioner undertakes to supply complete address and particulars of said Shehnaz Parveen in the office within one week. Notice be issued to Mst. Shehnaz Parveen after obtaining such particulars. [Underlining is ours] Adjourned. Sd/- Judge 9. On service of notice issued to Mst. Shehnaz Parveen daughter of [Late] Muhammad Ahmed Siddiqui [Respondent herein], as per the aforesaid Order Mst. Shahnaz Perveen appeared before the Court on 23.11.2005 along with her counsel when, in her presence, the following order was passed: - 23.11.2005 Mr. Tariq Qureshi, Advocate for the Petitioner Mr. Zahid Qureshi, Advocate and the Objector Shahnaz Perveen, present in Court. Objector Shahnaz Perveen has filed objections. She has challenged the gift deed dated 15.6.05, alleged to have been executed by Mohammad Ahmed Siddiqui, in favour of his then wife, Mst. Nafees Fatima. The matter is to be decided on the basis of evidence to be recorded after providing an opportunity to the parties. Accordingly this petition is ordered to be converted into a suit for administration and numbered accordingly. [Underlining is ours] Mr. Zahid Siddiqui, Advocate undertakes to file w.s. within four weeks. Sd/- Judge 10. On conversion of SMA No,59/2005 into a 'SUIT FOR ADMINISTRATION' the same was re-numbered as Suit No,1502/2005 [Waqar Ahmed Siddiqui and 3 others v. Shehnaz Perveen daughter of Late Muhammad Ahmed Siddiqui] and later on, as appears, plaintiffs were permitted to file 'fresh plaint' as per order dated 20.11.2006. For convenience purposes Order dated 20.11.2006, is reproduced herein below:- 20. 11 . 2006 Mr. Muhammad Habib Jalib, Advocate. Mr. Zahid Ali Siddiqui, Advocate. The CMA No,2667/06 has been filed under section 151, C.P.C. by the defendant for inclusion of plot bearing No, B-11, KDA Scheme 33, Super High Way Karachi, measuring 400 square yards in estate of deceased on the ground that the deceased Muhammad Ahmed Siddiqui got that plot booked in 1976 and paid Rs,4000/- in two instalments. On the other hand Mr. Habib Jalib learned counsel for the plaintiff submits that although an amount of Rs, 4000/- was paid only but later on Rs,79,400/- were paid by the plaintiff in 1980 and onward therefore that plot cannot be considered as the property of the deceased. To controvert the payment situation, Mr. Zahid Ali Siddiqui has submitted that entire amount has been paid from the funds of the deceased which were left by him. After hearing and going through the material on record, it is being established that the plot in question was booked by deceased Muhammad Ahmed Siddiqui and atleast admittedly an
---
## Page 5
amount of Rs,4000/- was paid by the deceased therefore, this plot may be considered in the estate of deceased but subject to the payment made by the parties keeping in view the relevant time and the value of the money at that time and further subject to the evidence which may come on record. In the circumstances this CMA I allowed to that extent. 2- Deferred. 3- This CMA No,8400/05 under section 6 Rule 17, C.P.C. is dismissed with the consent of learned counsel of the defendant that the plaintiff may file a plaint as after conversion of the SMA into Suit fresh pleadings were necessary and secondly on the ground that the CMA No,2667/06 has been allowed today, therefore, one more property is to be included in this dispute. Order accordingly. The plaint may be filed within a period of 15 days with its advance copy to other side counsel. [Underlining is ours] SD/- JUDGE 11. Pursuant to order dated 20.11.2006, the plaintiffs [appellants herein] filed their Amended PLAINT on 04.12.2006. On the record of suit for 'ADMINISTRATION' bearing Suit No,1502/2005 [Waqar Ahmed and 3 others v. Mst. Shehnaz Parveen], not only the defendant's [Respondent herein] written- statement originally filed on 21.02.2005, is available but also the Amended written-statement, filed on 26.01.2017, wherein, besides, the stand taken by the four [4] plaintiffs [Appellants herein], the adverse assertions made therein, have also been specifically denied/controverted. The prayers sought in the Amended Plaint filed on 04.12.2006, read as follows:- (i) To grant Letters of Administration in favour of the plaintiffs in respect of the property specified at Sr No,1 in the schedule of property in question of Mst. Nafessa Siddiqi in accordance with their respective shares under the Islamic Law and direct the concerned secretary of the P.E.C.H.S., Karachi to transfer and mutate the suit property No,11-N, Block 2, P.E.C.H.S, Karachi in the names of plaintiffs being legal heirs of Mst. Nafeesa Siddiqi and make entry in this regard in the record of rights. [Underlining is ours] (ii) To grant Letters of Administration in favour of the plaintiffs in respect of the property specified at Sr No,2 in the schedule of property in question of Mst. Nafessa Siddiqi in accordance with their respective shares under the Islamic law direct the concerned secretary of Ashraf Ali Memorial Cooperative Housing Society to transfer and mutate the said plot in the names of plaintiffs being legal heirs of Mst. Nafeesa Siddiqi. (iii)To direct the defendant to deposit the cash of Rs,13,12500/= as the difference of the present market value of the flat bearing No,35, RC, 6/7 Mohan Lal Bhagwandas Building, Patel Road, Karachi as present market value of said flat is Rs,15,00,000/- (Fifteen lacs)- approximately and also deposit cash Rs,3,50,000/= as rent of 27 years of the said flat as well as the further amount expensed on the defendant's marriage to Nazir which will be kept by Nazir in his safe custody and amount should be distributed between the plaintiffs. (iv)To direct the defendant to receive her 1/8 share out of Rs,4000/= which was deposited by the deceased father Muhammad Ahmed Siddiqi in 1975 and 1976 to Ashraf Ali Memorial Society as per Muhammadan Law which may be converted at present rate. (v)Cost of the suit. (vi)To grant any other relief or relieves which this Hon'ble Court deems fit and proper under the circumstances." 12. In the schedule of properties filed along with the Amended. Plaint filed on 04.12.2006, the details of three [3] immovable properties have been given as follows: [1] House on Plot No,11-N , measuring 200 sq. yds. In Block-2, situated at P.E.C.H., Society, Shahrah- e-Quaideen, Karachi. [2] Plot No,B-11, KDA Scheme 33, Ashraf Ali Memorial Society, Karachi.
---
## Page 6
[3] Flat No,35, RC, 6/7 Mohan Lal Bhagwandas Building, Patel Road, Karachi. 13. On 02.04.2007, the Court out of the pleadings framed the following seven [7] issues: - 1. Whether deceased Muhammad Ahmed Siddiqui on the date of his death was the owner of the immovable properties i,e, House No,11- N, Block-2, PECHS, Karachi, Plot No,11-B, Ashraf Ali Memorial Housing Society, KDA Scheme 33, Karachi and Flat No,22, R-C, 6/7, Mohanlal Bhagwandas Building, Patel Road, Karachi? [Underlining is ours] 2. Whether at the time of death the deceased has any movable property? 3. Whether the installments of the plot bearing No,11-B, Ashraf All Memorial Housing Society, KDA Scheme No,33, Karachi, which was booked by the deceased with the payment of Rs,4000/- (Rupees four thousand only) were paid by the plaintiff to the tune of Rs,79,400/- (Rupees seventy nine thousand four hundred only)? 4. Whether the flat was sold by the plaintiffs and the consideration received by them was spent on the marriage of the defendant? 5. Whether the house located in PECHS was gifted by the deceased to his wife Mst. Nafeesa Siddiqui during his lifetime? [Underlining is ours] 6. Whether the defendant is entitled to her share in the properties left by the deceased? 7. What should the decree be? 14. Further, vide Order dated 02.04.2007, not only parties were directed to submit their list of witnesses and documents within one month w,e,f, 02.04.2007, but also then, a Commissioner was appointed for recording evidence of the parties at the cost of plaintiffs within four [4] months w,e,f, 07.03.2007. For one reason or the other however, evidence of parties could not be completely recorded by the Commissioner, appointed for the purpose of evidence of parties from time to time. Ultimately, Nazir of this Court, was appointed as Commissioner to record the remaining evidence. Finally, in terms of order dated 24.12.2013, the matter was ordered to be posted for arguments only. 15. Lastly, on 09.02.2017 when, the above suit for administration filed by the Appellant herein came- up before the Court, then arguments were heard and thereafter, on 18.05.2017, the Court while, answering Issues No,1 to 5 jointly, the plaintiff's suit was partly decreed to the extent of House No,11- N, Block-2, PECH Society, Karachi, and observation made in respect of another property i,e, Plot No,B- 1 , KDA Scheme No,33, Ashraf Ali Memorial Society, Karachi and final decree was also ordered to be prepared accordingly. Operative part of un-amended judgment i,e, Para 40 reads as follows: - "40. Keeping in view the above position, discussion and case law cited above, the suit of the plaintiffs is decreed to the extent of House No,11-N, Block No,2 PECHS Karachi and observation made in respect of property i,e, plot No,B-11 and direct the final decree be prepared accordingly. Nazir of this Court who has already been appointed as Commissioner is to act as an Administrator of House No,11-N, Block No,2, PECHS Karachi, S.M.A. bearing No,59 of 2005 left by deceased Mst. Nafeesa Siddiqui. The expenses will be met from the assets left by deceased Mst. Nafeesa Siddiqui. The property is not partition-able horizontally or vertically to sell the same and distribute the shares amongst the legal heirs of deceased Mst. Nafeesa. 1 therefore, pass decree as provided under Order 20 Rule 13 CPC read with Form-18 of Appendix-D to Schedule-1 of the Code of Civil Procedure and appoint Nazir of this Court as Receiver with all powers to auction the said property. The plaintiffs and defendant are allowed to participate in the same proceedings, distribute the sale price amongst all the plaintiffs according to Mohammadan Law of Inheritance. The Nazir is allowed to withdraw Rs,25,000/- as fees out of the sale price. The Objections filed by the defendant to Nazir's Report are disposed of accordingly. [Underlining is ours] SD/06.05.2017 JUDGE
---
## Page 7
Announced by me Sd/- 18/05/2017 (JUSTICE ZAFAR AHMED RAJPUT) 16.Accordingly, decree was prepared in terms of the operative part of the Judgment dated 24.05.2017. For ready reference the executable / operative part of decree dated 24.05.2017, originally passed in Suit No,1502 of 2005 [Waqar Ahmed Siddiqui and 3 others v. Shehnaz Perveen] is reproduced herein below: - "It is hereby ordered that the suit of the plaintiff be and is hereby decreed to the extent of House No, 11-N, Block No,2, PECHS, Karachi and observation made in respect of property Le. plot No,B-11 and direct the final decree be prepared accordingly. Nazir of this Court who has already been appointed as Commissioner is to act as an Administrator of House No,11-N, Block No,2, PECHS, Karachi, SMA bearing No,59 of 2005 left by deceased Mst. Nafeesa Ahmed Siddiqui. The expenses will be met from the assets left by deceased Mst. Nafeesa Siddiqui. The property is not partition- able horizontally or vertically to sell the same and distribute the shares amongst the legal heirs of deceased Mst. Nafeesa. It is hereby further ordered that the suit of plaintiff is also decreed as provided under Order XX Rule 13, C.P.C. read with Form 18. of Appendix-D to Schedule-I of the Code of Civil Procedure and appoint Nazir of this Court as Receiver with all powers to auction the said property. The plaintiffs and defendant are allowed to participate in the same proceedings, distribute the sale price amongst all the plaintiffs according to Mohammadan Law of Inheritance. The Nazir is allowed to withdraw Rs,25,000/- as fees out of the sale price." [Underlining is ours] 17.The judgment and decree as seen were passed on 24.05.2017, but no one opted to come forward or otherwise, seemed aggrieved and dis-satisfied with the said judgment and decree passed by a Single Judge of this Court to file any appeal. The defendant [Respondent herein], however, chosen to file an Application under section 152 C.P.C. for AMENDMENT OF JUDGMENT AND DECREE bearing CMA No,9428 of 2017. On 09.06.2017 when, CMA No,9428/2017 being an APPLICATION under section 152, C.P.C., filed by the Respondent herein [Defendant in Suit No,1502/2005] came-up before the Court then while, granting urgent application, NOTICE on C.M.A. No,9428/2017, was issued to the plaintiffs as well as their counsel for 20.07.2017. On 20.07.2017 while, adjourning the matter for 24.07.2017, it was clarified to the plaintiff that no any further time, shall be granted / available to the plaintiffs for filing objections if any. 18. The plaintiff No,1 [Appellant No,1 herein], who is also special attorney of other plaintiffs [Appellants Nos, 2, 3 and 4], filed a STATEMENT on 21.7.2017, whereby, an adjournment was sought, on account of sickness and engaging a new counsel. The statement so filed on 21.07.2017 for ready reference is reproduced herein below: - In the High Court of Sindh at Karachi Suit for Administration 1502/2005 Waqar Siddigi.........Plaintiff No,1 and Attorney of other three STATEMENT I Wagar Siddigi son of Muhammad Ahmad Siddigi, a Canadian Citizen, do hereby state on oath as under that, I am fully conversant to the matter. I live in Canada and I arrived Pakistan for the case on 11th July, 2017. I have been acing health problems since then. Today I visited hospital to see the doctor and he advised me three days bed rest and he recommended several tests. I have been advised to take medicines and report to the doctor. I therefore am not able to file objections on the application C.M.A. 9428/2017 dated 2/6/2017. The
---
## Page 8
notice of the said application was delivered by the bailiff of the Court on the evening of July 17, 2017. Due to sickness I am also not able to engage new counsel. I need time. Therefore, I seek adjournment till the summer vacation and after recovery the objections will be filed. [Underlining is ours] I am attaching a medical note/prescription of the doctor Regards, Karachi Dated 21/07/2017 SD/- Waqar Siddiqi Plaintiff (In Person) 19. On 24.07.2017, the request for adjournment on the basis of pleas/request made in the aforesaid statement filed on 21.07.2017, by the plaintiff No,1 [Appellant No,1 herein], was declined and the Court then proceeded with application under section 152, C.P.C. [C.M.A. No,9428/2017], filed by Defendant [Respondent herein], for Amendment of judgment and decree, dated 18.05.2017 and 24.05.2017 respectively passed in Suit No,1502/2005 [Waqar Ahmed. Siddiqui and 3 others v. Shehnaz Parveen] and consequently the same was allowed through the 'impugned order' dated 24.07.2017. Para 4 of the impugned order dated 24.7.2017, being relevant is reproduced herein below:- 4. This application stands allowed. Consequently let the required correction be made in red ink in the relevant portion to the text of Paragraph No,40 (the concluding paragraph) of the Judgment as well as the corresponding paragraph(s) of the decree only, by crossing out and insertion (s) as follows and to be read accordingly. (To remove any possible ambiguity only the existing text and the required are given below) At Present: Left by deceased Mst. Nafeesa Siddiqui. The expenses will be met from the assets left by deceased Mst. Nafeesa Siddiqui. The property is not partition-able horizontally or vertically to sell the…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.