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Petitioner: MUHAMMAD YOUSIF through L.Rs. VS Respondent: MUHAMMAD USMAN
Court Name: Sindh High Court Judge(s): Aziz-ur-Rehman Title: MUHAMMAD YOUSIF through L.Rs. vs MUHAMMAD USMAN Case No.: Revision Application No.158 and M.A. No.543 of 2010 Date of Judgment:2013-10-23 Reported As: 2014 YLR 403 Result: Revision, allowed.
Judgment ORDER ' AZIZ-UR-REHMAN, J.---Through this Revision Application under section 115 C. P. C. , the applicants [L.Rs of deceased defendant Muhammad Yousif] have impugned the Judgment and Decree dated 15-4-2010 and 21-4-2010 [Annexures 'A' & 'W to R.A.] passed by learned IInd Additional District Judge Shaheed Benazirabad in Civil Appeal No.23 of 2006 [Muhammad Usman v. Muhammad Yousif, through his L.Rs.], whereby the judgment dated 24-1-2006 and Decree dated 1-2-2006 [Annexures 'C' & 'D' to R.A.] passed by the learned Ist Senior Civil Judge Nawabshah in F.C. Suit No.32 of 2000 [Muhammad Usman v. Muhammad Yousif] was set-aside and respondent's [plaintiff] suit was decreed as prayed. 2. In the present Revision Application [in short R.A.] the prayer sought is to the effect that Judgment and Decree passed in Civil Appeal No.23 of 2006 tAnnexures 'A' & 'B' to R.A.] be 'set aside' and the Judgment and Decree dated 24-1-2006 and 1-2-2006 respectively [Annexures 'C' & 'D' to R.A.], passed by learned 1st Senior Civil Judge, Nawabshah, in F.C. Suit No.32 of 2000 [Muhammad Usman v. Muhammad, Yousif], whereby the suit filed by the respondent [plaintiff] was partly decreed and partly dismissed, be maintained. 3. Succinctly the relevant facts are that: 4. Respondent [plaintiff] allegedly purchased house bearing Custodian No.II/B/906/H area 2241 Sq. Ft. Situated in Mohalla Issarpura, Nawabshah [Hereinafter referred to as 'subject house'] from one Ghulam Samad son of Abdul Rehman Shaikh in the year, 1966, through a registered sale deed No. 1687 dated 15-2-1966. Per assertions of the respondent [plaintiff] since, the predecessor of the applicants viz Muhammad Yousuf was his real brother and was in a dire need of a house. Half portion of the 'subject house' was, therefore, given to him, however, only for residential purpose.
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5. In June 1999. Due to enlargement of respondents' family, Muhammad Yousif/ defendant [predecessor of the applicants] was requested for vacating the half portion of the 'subject house' under his lawful occupation at that particular point of time. The predecessor of applicants [Muhammad Yousif upon such request had promised to deliver the 'vacant peaceful possession' of half portion of the 'subject house' within a few days to the respondent. 6. In August 1999. Nevertheless the respondent [plaintiff] received ,notice from the Court of 1st Senior Civil Judge, Nawabshah. About filing of a suit. Per claim of Muhammad Yousif [predecessor of the Applicants], half portion of the 'subject house' in fact was gifted to him by way of 'IQRARNAMA' ['GIFT DEED'] dated 5-5-1987. The alleged 'IQRARNAMA' ['Gift Deed' ], per assertions, was subsequently also rectified by another 'IQRARNAMA' of 25-5-1999. 7. The case of the respondent [plaintiff] is that both the IQRARNAMAS of 5-5-1987 and 25-5-1999 are forged and fabricated documents. Further the 'subject house' was never purchased by BABOO DIN [Father of Muhammad Yousif and Muhammad Usman]. The claim of the predecessor of the Applicants [Muhammad Yousif] over and regarding the 'subject house' per assertions, is totally false, baseless and without any foundation. 8. According to the respondent [plaintiff], Muhammad Yousif [since died] was in illegal possession of the 'subject house' much less from June, 1999. Muhammad Yousif son of BABOO DIN [predecessor of the applicants], of course, had filed suit for half portion of the 'subject house' in the court of Ist Senior Civil Judge, Nawabshah, but the same was dismissed in limine without allotting any number thereto. After such dismissal of the. Suit, Muhammad Yousif became more antagonized. Thereafter, per averments, forcibly and illegally occupied even the remaining half portion of the 'subject house', which initially was in a lawful occupation of the. Respondent [plaintiff]. The respondent, for seeking assistance and redressal of his grievance, had also approached the concerned Police Station but police avoided to record/lodge the F.I.R. Of the respondent [plaintiff], perhaps due to fear and/or very high influence of the predecessor of the applicants [Muhammad Yousif]. Thus F.C. Suit No.32 of 2000 was filed [Muhammad Usman v. Muhammad Yousif]. The prayers sought in the suit run as under:-- (a) It be declared that the alleged gift deed and 'Iqrarnama' dated 5-5-1987 and 25-5-1999 is illegal, fraudulent, without any lawful authority, forged and fabricated one, and the same does not bear the signature of plaintiff at all; (b) Possession of the suit house No.1113/906/R area 2241 Sq. Ft situated in Mohalla Isserpura Nawabshah be delivered to the plaintiff by directing the defendant, boundaries are given in para No.4 of plaint; (c) Permanent injunction be issued against the defendant, restraining him not to handover the possession of the suit house to any other person, except the plaintiff. (d) Costs. (e) Any other relief; 9. Upon service, the predecessor of applicants [defendant], filed his written statement. In the written statement, it was specifically denied that the 'subject house' was either purchased by the respondent [plaintiff] or otherwise, it was purchased with the funds of respondents [plaintiff]. Rather, it was averred, that the 'subject house' purchased in the name of respondent [plaintiff] is a benami transaction. It was emphatically denied by Muhammad Yousif [the predecessor of the applicants] that the respondent [plaintiff] is exclusive owner of the 'subject house'. Per averments, respondent is a 'benamidar' of the 'subject house'. Per respondent/defendant' assertions the 'subject house' was actually purchased by the father of the parties [BABOO DIN] from his own funds. But on account of 'good faith' and 'confidence', the 'subject house' was purchased in the name of respondent [plaintiff] as a benami transaction.
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10. Per assertions of Muhammad Yousif [Predecessor of the applicants], the 'subject house' was actually purchased by BABOO DIN [Father of the parties to the suit] and the entire 'sale consideration', therefor, was also paid from the funds of BABOO DIN in the year, 1966. For this Obvious reason, 'IQRARNAMAS' [whereby half portion of the 'subject house' admeasuring 1120 1/2 Sq.Fts equal to 83 x 13 1/2 towards' southern side was given to the defendant] were voluntarily signed and executed by the respondent [plaintiff]. From the time of execution of 'Iqrarnama' dated 5-5-1987 predecessor of the applicants as owner remained in peaceful and lawful occupation of the half portion of the 'subject house'. 11. Besides, Muhammad Yousif [predecessor of the applicants] on the aforesaid half portion of the 'subject house' has also raised construction by spending huge amounts. Per stand taken in written statement both 'IQRARNAMAS' of 25-5-1999 and 5-5-1987 [Exh.47 and Exh.48] are genuine, lawful and binding documents. In the written statement, it was further asserted that possession of the predecessor of the applicants [defendant] is/was legal and lawful. Per averments, Muhammad Yousif [Predecessor of the applicants] is lawful and absolute owner of the half portion of the 'subject house'. His ownership, per assertions, cannot be denied by the respondent [plaintiff], at this belated stage. 12. In view of 'pro' and 'contra' averments, parties went on trial. Out of the pleadings, the following issues were settled on 30-5-2002 vide Exh.23:-- (1) Whether the plaintiff is owner of the house bearing Custodian No.II-B/906/H . Area 2241 Sq. Ft. Situated in Mohalla Isserpura, Nawabshah since December, 15, 1966?. (2) Whether defendant is -real brother of the plaintiff and the said half portion of the house was given by . The plaintiff to the said defendant for the residential purpose on the basis of licence, if yes, what is its effect? (3) Whether the defendant is a real owner and the plaintiff is a simply benamidar, if yes, what is its effect? (4). Whether the defendant had taken inconsisting plea in his written statement, if yes, what is its effect? (5) Whether the plaintiff is entitled for possession of suit house? (6) What should the decree be? 13. In support of the issues, both parties led their evidence. Muhammad Usrnan [plaintiff] examined himself at 'Exh.28'. After his 'cross-examination' plaintiff/respondents' side was closed vide 'Exh.29'. From the Applicants/defendants' side, in rebuttal, Muhammad Yousif [Predecessor of the applicants] 'examined' himself at 'Exh.46'. During his 'deposition', he produced 'IQRARNAMA' dated 5- 5-1987 at 'Exh.47'. Another 'IQRARNAMA' dated .25-5-1999 at 'Exh.48'. Other documents were also produced and exhibited at 'Exh.49' to 'Exh.57'. The predecessor of the applicants [defendant] in support of his claim also examined other witnesses named below:-- (a) Parties father viz. Vide Exh.49. BABOO DIN (b) Muhammad vide Exh. 52 Yameen (c) Muhammad vide Exh.54. Ibrahim (d) .Abdul Ghaffar vide Exh.55. (e) Syed Ishtaique vide Exh.56 Ahmed Bukhari 14. Thereafter, on conclusion of 'examination-in-chief and 'cross-examination' of witnesses 'defendants' side of evidence was closed vide Exh.57. 15. Upon hearing of arguments advanced by the learned counsel for .The parties, the learned Ist Senior Civil Judge, Nawabshah, thereafter partly decreed the S.C. Suit No.32 of 2000 filed by Muhammad Usman [plaintiff] against Muhammad Yousif [defendant]. The operative part of the Judgment dated 24-12006 [Annexure c' to R.A.] reads as follows:--
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"Consequently it is held that gift deed/lqrarnama' dated 5-5-1987 and 25-5-1999, are not illegal, fraudulent, forged and fabricated and similarly plaintiff is entitled for possession of half portion of house which deceased defendant and after his death his L. Rs are in occupation of the house in question i.e. IIB/906/H area 2241 Sq. Ft. Situated in Mohalla Issarpura Nawabshah, consequently suit of the plaintiff partly decreed in the above manner". 16. Respondent [plaintiff] being aggrieved by the Judgment and Decree[Annexures 'C' & 'D' to R.A.] passed by learned 1st Senior Civil Judge, Nawabshah, preferred Civil Appeal No.23 of 2006 [Muhammad Usman v. Muhammad Yousif [through L.Rs.] before the Court of District Judge, Nawabshah, however, the same was subsequently transferred to the Court of Ilnd Additional District Judge, Shaheed Benazirabad. 17. Upon hearing of arguments by the learned find Additional District Judge, Shaheed Benazirabad, the aforesaid appeal was allowed and consequently by setting aside the Judgment and decree passed by Ist Senior Civil Judge, Nawabshah, respondents' [plaintiffs] suit was decreed as prayed. The legal heirs of deceased Defendant [Muhammad Yousif] nevertheless, were declared as entitled for getting compensation from the respondent [plaintiff] for raising of Pacca construction' by their predecessors on the, 'subject house'. The operative part of the Judgment [Annexure 'A' to R.A.] passed by the learned 'Ind Additional District Judge, Shaheed Benazirabad/appellate Court reads as follows:- "In the light of above circumstances, I am not agree with the findings of learned trial, Court that the defendants/respondents are entitled for possession of half portion of house. Therefore, the impugned judgment and decree is hereby set-aside and the suit of plaintiff/applicant is decreed as prayed. However, the defendant/ respondent will be entitled to get compensation from plaintiff/ appellant as it was admitted in evidence by the appellant that the defendant has raised pacca construction of suit house after demolishing katcha construction. The appeal is allowed and parties are left to bear their own costs". 18. Being aggrieved by the judgment and decree [Annexures 'A' and 'B' to R.A.] passed by learned find Additional District Ridge, Shaheed Benazirabad, the instant Revision Application bearing No.158 of 2010 has been filed by L.Rs. Of deceased defendant viz. Muhammad Yousif with a prayer for setting aside the impugned judgment and decree (Annexures 'A & 'B' to the instant R.A.]. 19. Heard Mr. Abdul Aziz Shaikh learned counsel for the applicants [L.Rs. Of Muhammad Yousif [defendant] and Mr. Rana Muhammad Siddique Khan learned counsel for respondent [plaintiff] and perused the available record with the valuable assistance of learned counsel for the parties. 20. Mr. Abdul Aziz Shaikh, learned counsel for the applicants vehemently argued that the Judgment and decree [Annexures 'A' &'B' to R.A.] passed by the learned Hnd Additional District Judge, Shaheed Benazirabad, beside opposed to law and equity, suffer from material irregularities and illegalities having been committed by the appellate court inter alia, not properly appreciating the evidence in its true perspective produced by Muhammad Yousif [predecessor of the applicants] in support of his claim. Per learned counsel, the impugned Judgment and Decree of the Appellate court are also in violation of mandatory provisions of Order XLI, Rule 31. C.P.C. [Act V of 1908]. 21. Learned counsel for the applicants [L.Rs of Muhammad Yousuf defendant] further contended that admittedly the predecessor of the applicants was in possession of the 'subject house' since the month of June, 1999. Besides, had also raised pacca construction over the half portion of the 'subject house', of course, out of his own earned money. Raising of Pacca construction by Muhammad Yousif [Predecessor of the Applicants] is a prima facie proof of his ownership. Per learned counsel such Pacca construction could not have been raised without permission of the respondent [plaintiff]. 22. Per Mr. Abdul Aziz Shaikh, the appellate Court by ignoring 'IQRARNAMAS' [in the nature of Gift Deeds], no doubt, has committed material illegalities and/or irregularities while, passing the
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impugned judgment and decree of 15-4-2010 and 21-4-2010 [Annexures 'A' & 'B' to R.A.]. The Judgment and decree so passed, beside erroneous, illegal also suffer from misreading and non- reading of evidence available on record. Per learned counsel, the Appellate Court omitted to give findings on the important and necessary issues. Not only this, the Appellate Court in a calculated manner has over looked the evidence available on record. 23. The judgment and decree [Annexures 'A' & 'B' to R.A.] passed by the Appellate Court are fanciful, and result of misreading of material evidence. Per learned counsel, the Appellate Court has failed and/or avoided to give any reasons for setting aside the well reasoned judgment and decree [Atmexures 'C' & 'D' to R.A.1 passed by the trial Court. The judgment and decree passed by the Appellate Court without considering the evidence and materials available on record are thus liable to be set aside. 24. In support of his contention Mr. Abdul Aziz Sheikh, learned counsel for the applicants, placed reliance on the following case laws (a) Mst. Umer Bibi and 3 others v. Bashir Ahmed and 3 others (1977 SCM R 154). (b) Maulvi Abdullah and others v. Abdul Aziz and others (1987 SCM R 1403). (c) Mst. Jan Rana v. Commissioner of Income Tax, Peshawar (2006 PTD 529). (d) Juma Khan v. Mst. Shamim and 3 others (1992 CLC 1022). (e) Manzoor-ul-Haq and 3 others v. Mst. Kaneez Begum (1993 CLC 109). (t) Reham Hussain v. Abdul Rahim and 2 others (2007 M LD 1110) (g) Muhammad Ibrahim v. Mst. Mehmooda (1991 CLC 1795) (h) Raja Humayun Sarfraz Khan and others v. Noor Muhammad (2007 SCM R 307), (i) Abdul Razzak v. Sabar Khan (2004 CLC 950). (i) Syed Farzand Raza Rizvi v. Syed Zaheer Mustafa (1988 M LD 463). 25. Conversely, Mr. Rana Muhammad Siddique Khan, learned counsel for the respondent [plaintiff] strenuously argued that Judgment and decree [Annexures 'A' & 'B' to R.A.] passed by learned IInd Additional District Judge, Shaheed Benazirabad, beside legal and lawful having been passed after due exercise of judicial mind, indeed, after properly considering all aspects of the case. As such the impugned Judgment and decree do not call for any interference whatsoever much-less under the exercise of Revisional Jurisdiction of ,this court. Per learned counsel, the jurisdiction vested in the appellate court below has properly been exercised. There is no excess of jurisdiction and/or otherwise, the appellate court has committed any illegalities and/or material irregularities while, passing the impugned judgment and decree. The impugned judgment and decree [Annexures 'A' & 'B' to RA.] thus do not suffer from any infirmity, jurisdictional. Error and/or any other defect whatsoever. No interference as wished by the applicants, is warranted under law. Per learned counsel though Exh.18 is in the nature of gift deed but the same being not a registered document as required under section 123 of the Transfer of Property Act, 1882 [IV of 1882] besides not a binding document is void ab initio and of no legal effect. 26. Mr. Rana Muhammad Siddique Khan learned counsel for the respondent [plaintiff], next urged that the judgment and decree passed by the appellate court are neither improper or otherwise, having been passed in violation of mandatory provisions of Order XLI Rule 31 C.P.C. [Act V of 1908]. The Appellate Court nevertheless has discussed the crucial points/issues. As such, the judgment and decree passed do not call for any interference of this court on any ground whatsoever. Per learned counsel, in fact, the impugned judgment-and decree beside comprehensive/well reasoned, have been passed competently. Learned appellate court, indeed, has applied its judicial mind while, setting aside the judgment and decree [Annexures 'C' & 'D' to .R.A.] passed by the trial Court. 27. The Second Class suit [in short S.C. Suit] No. Nil of 1999 [Muhammad Yousif v. Muhammad Usman], filed by Muhammad Yousif [Predecessor of Applicants] for declaration and permanent
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injunction regarding 'subject house', per learned counsel was also based on 'IQRARNAMAS' of 26-5- 1999 and 5-5-1987 [Exh.47 and Exh.48] but nonetheless, the same was dismissed for NON- PROSECUTION. Such Order, per Mr. Rana Muhammad Siddique Khan, has already attained the finality. Neither the Appellate Court has committed any illegality nor otherwise any question of ignoring the 'IQRARNAMAS' [Exh. 47 and Exh.48] and/or any part of evidence led from the applicants' side [i.e. Exh.18, Exh.52, Exh.54, Exh.55 and Exh.56] arises. Learned counsel, lastly urged, that the instant Civil Revision Application. Bearing No.158 of 2010 filed by the L.Rs. Of ' the defendant [Muhammad Yousif] merits no consideration and is liable to be dismissed with costs. 28. In support of his contention, Mr. Rana Muhammad Siddique Khan, learned counsel for the respondent has placed reliance on the case of Ghulam Samdani v. Faqeer Khan PLD 2007 Pesh. 11. 29. At this juncture and before proceeding further, I would like to reproduce herein, the 'IQRARNAMA' [Exh.48] duly signed and executed by respondent. The 'English translation' of ' IQRARNAMA' [Exh.48] placed on record reads as follows:-- "786 ' IQRARNAMA' ' I, Muhammad Usman son. Of Babooudin, Qureshi, Mulsim, adult, r/o near Primary School Haji Naseeruddin Mohalla Aseer Poora Katchi Abadi Nawabshah, under sense, affirm that from my house No.C.H.II. B. 906, measuring 83 x 27/83x27=2241 Sq. Ft situated near Haji Naseeruddin Primary School Aseer Poora Nawabshah, half area 83 x 13 1/2 =1120 1/2 Sq. Ft on southern side given to my real brother Muhammad Yousif son of Baboouddin Qureshi, Mulsim, adult, r/o Nawabshah given to him for ever. From today my or my legal heir have no any kind of right on the said half portion of house. Possession has been handed over to Muhammad Yousif. Muhammad Yousif has right to raise construction on half portion. Whenever Brother Muhammad Yousif shows his intention for registration the same will be done. Before this on 30-1-1987 writings was made previously which will be also remain intact. I have written this new stamp as on half portion there was right of my brother Muhammad Yousif I along with my all legal heirs accepted this writing. If I expired then this writing will be binding upon my legal heirs. Therefore, today i.e. 26-5-1999 at Nawabshah this indenture is being made with my signature for proof. [Underlining is mine]. Sd/ Muhammad. Party of the First Usma n part. Sd/ Muhammad Party of the second Yousif part. Witnesses (1) . Sd/ Abdul Ghaffar son of. Abdul Hakeem Qureshi Hyderabad, presently at Nawabshah. (2) Sd/ Zahoor Ahmed son of Safdar Mohalla Gharibabad Nawabshah. (3) Sd/ Muhammad Ibrahim son of Muhammad Siddik Qureshi Hyderabad. (4) Sd/ Shamim Ahmed Qureshi son of Illahi Bux Qureshi Gharibabad, Nawabshah." 30. The above 'IQRARNAMA' of 26-5-1999 was duly produced and exhibited. The IQRARNAMA [Exh.48] also bears the signatures of Muhammad Yousif [defendant] and Muhammad Usman [plaintiff]. Besides, another IQRARNAMA of early date i.e. 5-5-1987 [Exh.47] has also been produced in evidence. The 'IQARARNAMA' [Exh.47] has also been duly signed and executed by the parties and witnessed by witnesses. The contents if both the Exh.47 and 48 beside self-explanatory speak for themselves. The 'IQRARNAMA' of 26-5-1999 [Exh.18] lefts no doubt viz-a-viz ownership of the applicants' predecessor viz Muhammad Yousif [defendant]. 31. As far as, registration of 'IQRARNAMA'/GIFT DEED [Exh.48] is concerned, section 129 of the Transfer of Property Act, 1882 [IV of 1882] excludes the applicability of section 123 of the Transfer of Property Act, 1882 [IV of 1882] to gifts made under Muslim Law. Regarding this aspect of the matter, learned counsel for the applicants has placed reliance on the case of Umer Bibi and 3 others v. Bashir Ahmed and ,3 others [1977 SCM R 154] wherein while, dilating upon the requirement of Registration of Gifts made under Muslim Law, it was observed as follows:-
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"The objection founded on section 123 of the Transfer of Property Act is also misconceived. Vide section 129 ibid the provisions of the Transfer of Property Act, gifts made under Muslim Law, are expressly excluded from the operation of the Act. It is firmly established proposition that under Muslim Law a valid gift could be effected orally if the formalities prescribed by the Muslim Law are complied with even if the instrument of gift is not registered. See Muslim Law by Soksena, 3rd. Edn.; pp. 368-369 and the precedent cases noticed at the foot of these pages. Among these formalities are, the passing of the possession from the donor and the acceptance of the same by the donee. These are amply satisfied in the instant case.", [Underlining is mine]. 32. Likewise, in the case of Moulvi Abdullah and others v. Abdul Aziz and ,ethers (1987 SCM R 1403) the apex Court at page 1406 observed as follows:-- "The objection founded on section 123 of the Transfer of Property Act is also misconceived. Vide section 129 ibid the provisions of the Transfer of Property Act, gifts made under Muslim Law, are expressly excluded from the operation of the Act. It is firmly established proposition that under Muslim Law a valid gift could be effected orally if the formalities prescribed by the Muslim Law are complied with even if the instrument of gift is not registered. See Muslim Law by Soksena, 3rd Edn. Pp. 368-369 and the precedent cases noticed at the foot of these pages. Among these formalities are, the passing of the possession from the donor and the acceptance of the same by the donee. These are amply satisfied in the instant case." [Underlining is mine]. ' Same is the position in the present case. All the conditions of a Muslim gift of immovable property are satisfied in this case. Therefore, the rule is fully attracted here." 33. Moreover, the important evidence [Exh.49] adduced is by BABOO DIN [who is father of Muhammad Usman and Muhammad Yousif] is very very important and cannot be ignored. The said witness was also 'cross-examined' by the learned counsel for the respondent [plaintiff]. His 'examination-in-chief and 'cross examination' being more relevant and important are reproduced herein as follows:-- ' A. EVIDENCE OF BABOO DIN EXH.49 "Plaintiff and defendant are both my sons. I had purchased disputed house from Ghulam Samad for a sum of Rs.5000. Ghulam Samad delivered physical possession to me. And I, myself paid sale consideration amounting to Rs.5000. About 50 years back this transaction took place. 1 had made family settlement that a half portion is to be given to plaintiff and defendant equally. Plaintiff also executed such 'Iqrarnama' in favour of defendant. I have inducted the defendant in the house in question. The property was transferred in a family settlement in the name of plaintiff as a banami transaction. Subsequently plaintiff , became dishonest and refuse to transfer half…
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