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Petitioner: MUHAMMAD ALI RAZI KHAN VS Respondent: MUHAMMAD ALI ZAKI KHAN and others
Court Name: Sindh High Court Judge(s): Faisal Arab Title: MUHAMMAD ALI RAZI KHAN vs MUHAMMAD ALI ZAKI KHAN and others Case No.: Suit No, 554 of 1987 Date of Judgment:2006-05-29 Reported As: 2007 MLD 54 Result: Suit decreed
JUDGMENT
JUDGMENT ' FAISAL ARAB, J.---Suit No,554 of 1987 was filed by M.A. Razi Khan claiming to be one of the four co- owners of the suit property and seeking its partition. Suit No,696 of 1987 was filed by Mrs. Kishwar Iqbal claiming that she purchased the suit property from one of the co-owners M.A. Zaki Khan under sale agreement, dated 20-9-1982 on the basis of power of attorney executed by the rest of the three co-owners in favor of M.A Zaki Khan. ' Vide order, dated 24-11-1998 both the suits were consolidated and it was ordered that common evidence be led in both the suits and Suit No,696 of 1987 filed by Mrs. Kishwar Iqbal be treated as the leading suit. ' The facts of the case are that in 1967 residential Property No, 33-B, Block 6, P.E.C.H. Society, off Shahrahe Faisal, Karachi measuring 2000 square yards was gifted by its owner late M.A. Naqi Khan to his four sons i,e, M.A. Zaki Khan, M.A. Razi Khan, M.A. Rafi Khan and M.A. Ansari Khan in equal shares. M.A. Naqi Khan died in 1976. In 1977 the four brothers executed two separate General Power of Attorney instruments on the same day. One was executed in favor of M.A. Zaki Khan, the eldest of them all, and the other was executed in favor of the M.A. Razi Khan. On the strength of the power of attorney in his favor M.A. Razi Khan rented out the house to Interhom in 1977 and had been distributing its rents amongst his brother according to their shares. ' Sometime in 1982, Interhom Limited, the tenant of the house left and handed over its vacant possession back to the brothers. The brothers then decided to sell the house and distribute its sale proceeds among themselves. In this regard offers were invited through estate brokers and property was advertised for sale in the newspapers. In the same year i,e, 1982 M.A. Zaki Khan, the eldest of all, went to live in the house along with his family. Later M.A. Ansari Khan also started living
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in the house, who lived there until his death on 28-10-1984 and after his death his widow Nusrat lived in the house until she remarried in 1985. The third brother M.A. Rafi Khan though was living abroad, he too whenever came to Karachi used to live in the house. Only M.A. RaziKhan continued to live in his own separate house in which he was living at the time when the house was vacated by its tenant Interhom Limited in early, 1982. ' It is an admitted position that relations between the two attorneys i,e, M.A. Zaki Khan and M.A. Razi Khan had never been cordial. Each has shown mistrust against the other and has blamed the other for fraud and deceit. ' In 1987 controversy between the parties surfaced when according to M.A. Razi Khan, M.A. Zaki Khan attempted to fraudulently sell the house. This led to filing of Suit No,544 of 1987 for partition in this Court by M.A. Razi Khan in September, 1987. On the other hand in November, 1987 Mrs. Kishwar Iqbal, who also happen to be sister-in-law of M.A. Zaki Khan filed Suit No,696 of 1987 i,e, two months after filing of the partition Suit No,544 of 1987. In her suit she claimed that she purchased the house from his brother-in-law i,e, M.A. Zaki Khan way back on 20-9-1982 for a total sale consideration of Rs,1,275,000 and in this regard she claimed that his brother-in-law executed sale agreement in her favor on the strength of the General Power of Attorney given to him in 1977 by his three brothers. Thus basing her claim on the sale agreement, dated 20-9-1982 Mrs. Kishwar in her Suit No,696 of 1987 Iqbal sought decree for specific performance of the contract. ' M.A. Razi Khan and M.A. Rafi Khan in their written statements filed in Suit No,696 of 1987 have totally denied that any sale transaction has taken place on 20-9-1982 and termed Mrs. Kishwar Iqbal's claim to be a produce of fraud and deceit between her and M.A. Zaki Khan. It is an admitted position that Mrs. Kishawar Iqbal, apart from being sister-in-law of M.A. Zaki Khan, is also mother- in-law of Zaki Khan's son. By the time of filing of the two suits M.A. Ansari Khan, the fourth brother was already dead as he died in 1984 and therefore, his version could not come on record. However his widow Nusrat has supported the claim of M.A. Zaki Khan. ' Both M.A. Razi Khan and M.A. Rafi Khan in their pleadings have claimed that on 4-8-1982 they along with their brother late M.A. Ansari Khan had cancelled the power of attorney given to M.A. Zaki Khan and therefore, M.A. Zaki Khan was not even competent to enter into any sale transaction. M.A. Razi Khan and M.A. Rafi Khan have further pleaded that in 1982 when it was decided by all brothers to sell the house and an offer of Rs,3,200,000 was received from a prospective buyer. M.A. Zaki Khan went to live in the house in order to prolong his occupation on the ground that the house would fateh Rs,40,00,000. ' The case of M.A. Zaki Khan on the other h and was that all fourbrothers in 1982 decided to sell the house but the offer which was received from a prospective buyer was only Rs,12,00,000 and that his sister-in-law, Mrs. Kishwar Iqbal showed her interest to buy the house for Rs,12,75,000, and therefore it was sold to her with the consent of all his three brothers. ' The above discussed conflicting claims are to be resolved in the present two suits. ' On 19-3-1989 this Court framed issues in Suit No,696 of 1987 and on 16-4-1989 issues were framed in the connected Suit No, 554 of 1987. On 24-11-1998 both the suits were consolidated and it was ordered that common evidence is to be led in both the suits with suits No,696 of 1987 to be treated as the leading suit. On 27-9-2000 another order was passed in Suit No,696 of 2000 whereby all issues previously settled were curtailed down to three issues by this Court which were reframed as follows:-- (1) Whether the property was sold and if so whether the defendant No,1 has authority to do so? (2) Whether the defendant No,1 had a valid and subsisting power to sell the property? (3) Whether the Power of Attorney was cancelled after the sale or prior to the sale? Issue No,1:
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' The main controversy which needs to be decided first is whether any sale transaction has taken place on 20-8-1982 between Mrs. Kishwar Iqbal and his brother-in-law Zaki Khan or that the alleged sale transaction was a fraudulent attempt on the part of Zaki Khan in collusion with his sister-in-law Mrs. Kishwar Iqbal with the sole intent to deprive the other brothers of their legitimate share in the house. The second question which needs to be decided is whether Zaki Khan lawfully and validly exercised power under the General Power of Attorney given to him by the rest of his three brothers. The determination of the remaining issues would depend upon determination of these questions first which are of vital importance for resolution of the controversy. ' Mr. Saeeduddin Nasir, learned counsel for Mrs. Kishwar Iqbal has argued that sale agreement, dated 20-9-1982 was executed by Zaki Khan at a time when he continued to act as attorney of all the remaining three brothers on the basis of Power of Attorney executed in his favor on 26-5-1977. He further argued that the claim of Razi Khan that power of attorney was cancelled vide letter, dated 4-8-1982 produced as Exhibit X-9 is not true. In support of this plea Mr. Saeeduddin Nasir argued that all correspondence between Zaki Khan and Razi Khan has taken place through registered letters whereas letter of cancellation of power, dated 4-8-1982 is said to have been dispatched under Postal Certificate. He maintained that dispatch of letter of cancellation; dated 4- 8-1982 as well its receipt and acknowledgment are managed and fabricated documents. ' Mr. Saeeduddin Nasir further argued that a power of Attorney cannot be revoked through a letter but it has to be revoked through a deed of cancellation written on stamp paper. He then argued that in any case power of attorney through letter was cancelled on 20-10-1982 by which time a binding contract had already come into existence. ' Law does not require cancellation of Power of Attorney through a formal legal documents such as deed of cancellation on stamp paper. The power stands revoked the moment it is communicated to the attorney through any mode. ' Mr. Saeeduddin Nasir also argued that suit filed in 1987 for seeking specific performance in contract executed in 1982 cannot be declared as time-barred when Mrs. Kishwar Iqbal was handed over the possession of the house and section 53-A of the Transfer of Property Act preserves and protects the right of a purchaser who is given possession of the property as well. ' This argument needs to be examined only if the answer to the first part of issue No,1 is in the affirmative. ' Mr. Saeeduddin Nasir Next argued that Zaki Khan, Nusrat, who is widow of Anseri Khan and Umer Khan, the son of Answeri Khan have all filed common written statement supporting the case of Mrs. Kishwar Iqbal. ' I have seen the written statement. It is signed by Zaki Khan as attorney of Nusrat and Umer Khan but as Umer Khan was minor at the time of filing of the suit, being born on 10-8-1983 and that no power of attorney could be executed by him and therefore the power of attorney, dated 8-6-1984 executed only by Nusrat, Zaki Khan had no legal authority to plead the case on behalf of Umer Khan. Even the suit property has not been mentioned in the Power of Attorney, dated 8-6-1984. Therefore no adverse orders can be passed with regard to Umer Khan's share in the estate of M.A. Ansari Khan. ' Mr. Saeeduddin Nasir next argued that Razi Khan and Rafi Khan ought to have filed suit for cancellation of sale agreement which has admittedly not been done. This argument is misconceived. It is only when a document has been admittedly executed and for certain legitimate reasons a party which is going to be effected by its existence seeks its cancellation that it is required to file suit for cancellation of document. However, when a document is claimed to be a product of fraud or B forgery then mere declaration that it is product of such fraud or forgery is sufficient to nullify the legal effect of such document and there is no need to seek its cancellation. In any case, what should not be lost sight of its that form of legal proceedings cannot take
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precedence over legitimate considerations of substance of a case. When the parties are aware of the controversy involved in as case and have been given opportunity to lead evidence on their respective stands then it matters not whether specific relief was sought in the plaint or not or whether specific plea was raised in the proceedings. If a relief or a plea is covered by necessary implication then omission to expressly take such plea or seek such relief would not dis-entitle a party to seek the requisite relief provided he satisfactorily establishes his case is evidence. Where a matter is even obscurely touched in the issues involved and evidence has been led on it then any objection to it would only be technical and has to be rejected. All that a Court is required to examine is whether the parties were aware of the questions involved in a controversy and have they lead evidence and on examining so it can either grant or reject the requisite relief depending upon the merits of the case. ' Mr. Saeeduddin Nasir lastly argued in the alternative that this Court can pass decree to the extent of the shares held in the suit property by Zaki Khan and Nusrat as both of them have not contested Mrs. Kishwar lqbal's claim. Mr. Saeeduddin is absolutely right. When a party fails in establishing its claim but if one of the opposing parties has admitted such claim then the party admitting the claim has to honour its admission to the extent of his share in the property. In the present case as both Zaki Khan and Nusrat have not contested the claim of Mrs. Kishwar Iqbal, therefore, Mrs. Kishwar Iqbal would become entitle to claim their shares in the house on the basis of their admission only to the extent of the shares which Zaki Khan and Nusrat held in the house. Zaki Khan held 25% share in the house and Nusrat inherited 1/8th share in the 25% share owned by late Ansari Khan. Therefore Mrs. Kishwar Iqbal is to get the entire 25% share of Zaki Khan along with 1/8th share of Nusrat in the 25% share owned by late Ansari Khan in the house irrespective of the fact whether she succeeds in establishing her claim raised in Suit No, 696 of 1987. ' Mr. Haleem Siddiqui more or less argued on the same lines as was argued by Mr. Saeeduddin Nasir. In addition to the arguments of Mr. Saeeduddin Nasir, he maintained that though Razi Khan claimed that power of attorney was cancelled vide letter, dated 4-8-1982 but his letter was not filed with his written statement. This argument would becomerelevant only if the findings on the first part of issue No .1 is in the affirmative. ' Mr. Haleem Siddiqui while referring to the cross-examination of Mrs. Kishwar Iqbal held on 28-10- 1999 then argued that in fact as offer of only Rs,4,20,000 was received and Mrs. Kishwar Iqbal purchased the house for 12,75,000 and therefore the house was sold for three times more than what was offered. ' The offers for the house were received by the brothers and not by Mrs. Kishwar Iqbal and none of the brothers have maintained that in 1982 an offer of only 4,20,000 for a house on 2000 square yards off Shahrea Faisal was received. Therefore, the argument of Mr. Haleem Siddiqui that offer of Rs,4,20,000 was received is misconceived. ' Mr. Haleem Siddiqui next contended that Razi Khan in paragraph 42 of his Affidavit in Evidence has stated that Zaki Khan has forcibly took over possession of the house in mid 1982 hence on such pleadings suit filed after five years is barred by time. ' Mr. Haleem Siddiqui has not referred to any Article of Limitation Act to support his argument that suit filed for partition was time-barred. As the house in question is joint family property Article 127 of the Limitation Act is attracted to the case in hand. In the case reported in 1981 CLC 503 this Court held as follows:-- "Even if I presumed that the two mines were joint family property and that the deceased plaintiff was entitled to a share in it as an heir, even then the period of limitation will be 12 years under Articles 127 of the Limitation Act from the date when the E exclusion became known to the plaintiff. The plaintiff has not been able to show that the deceased plaintiff became aware of her exclusion from the joint property only within 12 years of the filing of her suit."
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' In the present case admittedly exclusion took place in 1982 and the present suit was filed in 1987, therefore it is well within the 12 years period provided in Article 127 of the Limitation Act. ' Mr. Haleem Siddiqui next argued that all documents except letter, dated 4-8-1982 purported to be cancellation of power attorney were sent by registered A.D. Which proves that it was fabrication. He maintained that Power of Attorney was actually cancelled on 20-10-1982 as according to Razi Khan's own pleadings in paragraph 11 of his memo of Appeal to the Supreme Court the date of cancellation of Power of Attorney is shown as 20-10-1982. ' Even if it is assumed that Power of Attorney was cancelled on 20-10-1982 this Court has to first examine the genuineness of the transaction which Zaki Khan claimed to have taken place with Mrs. Kishwar Iqbal. In case this Court comes to the conclusion that the sale transaction, dated 20-9- 1982 itself is not genuine then the question whether the power of attorney was cancelled before or after the alleged sale transaction would be of no legal consequence. ' In order to examine the genuineness of the transaction it is necessary to examine the documents produced in evidence by Mrs. Kishwar Iqbal. The first of such documents is Exhibit 5/4 claiming to be the agreement to sell, dated 20-9-1982. It is witnessed by one Mr. Fazal Rabi and Mr. Hashmat Ali Habib. Documents which are said to be receipts of payment were produced as Exhibit 5/6 and 5/9 and the alleged acknowledgment of possession were produced as Exhibit 5/7, 5/10 and 5/11. Exhibit 5/6 to 5/11 are witnessed by Sheikh Muhammad Suleman and Fazal Rabi. It has come in Mrs. Kishwar Iqbal's cross-examination that witness Sheikh Muhammad Suleman was her maternal uncle having permanent residence in Lahore and witness Fazal Rabi was friend of Sheikh Muhammad Sulaman having permanent residence in Gujrat. From Exhibits 5/17 to 5/20 it has come on record that the third witness Mr. Hashmat Ali Habib was counsel of Mrs. Kishwar Iqbal. Thus none of these documents have been witnessed either by any of the other co-owners or by their friend or relation or by a person who was from their neighbourhood or locality. Furthermore, none of the three marginal witnesses to the documents Exhibits 5/4 to 5/11 were examined as witnesses in support of Mrs. Kishwar Iqbal's case. ' According to Mrs. Kishwar's own statement in her cross-examination both Sheikh Muhammad Suleman and Fazal Rabi died in 1982. In spite of this statement surprisingly the title of Suit No,544 of 1987 shows that Sheikh Muhammad Suleman had filed this suit in his capacity as attorney of Mrs. Kishwar Iqbal. If Sheikh Muhammad Suleman was dead in 1982 then it means that plaint in suit No,696 of 1987 was signed by some other person posing himself to be Sheikh Muhammad Suleman and therefore Suit No,696 of 1987 itself was filed by an incompetent person. Mrs, Kishwar Iqbal in her cross-examination has stated that Sheikh Muhammad Suleman's place of residence was Lahore whereas the title of the plaint in Suit No,696 of 1987 shows that the place of residence of Sheikh Muhammad Suleman is Gujrat. All this shows that very presence of Sheikh Muhammad Suleman at the time of execution of documents of sale or filing of the suit is shrouded in mystery. ' It is also noticeable that of the three persons who appeared as witnesses in support of the plea that sale transaction of the disputed house has taken place in 1982, two of them were the party to the transaction itself i,e, Mrs. Kishwar Iqbal and Zaki Khan and were obviously interested to prove their own case. The third witness was Mrs. Nusrat who was widow of late Ansari Khan. Now Mrs. Nusrat who remarried in 1985 and left the house inherited only 12.5% share in the estate of deceased Ansari Khan. Therefore, the share of Nusrat in the house comes to about only 3.12% No independent person from the neighbourhood or friend or relation of Khan's family appeared as witness in support of the plea that the sale transaction has taken place. Therefore, the statement of Mrs. Nusrat, would at best amounts to relinquishment of her own share which she inherited from Answa ri Khan but it would certainly not prejudice the claim of the rest of the co-owners of the house.
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' There is another aspect of the alleged sale transaction. In pursuance of the alleged sale transaction, dated 20-9-1982, Zaki Khan did not physically handed over the vacant possession of the entire house to Mrs. Kishwar Iqbal but claimed that barring one room the entire house was rented out by her to him on 13-11-1982 at a monthly rent of Rs,1,000. Such a claim is also not believable as admittedly when the house was rented out to Interhom Limited way back on 15-6- 1977 it fetched monthly rent at the rate of Rs,4,000 as is evident from Exh.P1/2, and therefore to rent out the same house after five years for just one forth of the rent which the property fetched five years ago creates serious doubts about the entire transaction. Not only this, after the alleged agreement to sell, dated 20-9-1982, open spaces of the house have been rented out to tenants exclusively by Zaki Khan himself who has also been dealings with them exclusively. It has also come in evidence that Mrs. Kishwar Iqbal who claims to have purchased the house, continued to live in London where she was permanently settled since, 1972. ' It is also to be examined whether sale consideration as claimed has actually changed hands. Mrs. Kishwar Iqbal who is permanent resident of England has stated that in 1982 when she came to Pakistan she brought only Pound Sterling 7,000, which amount at the exchange rate prevalent at that time was equivalent to Rs,1,50,000 only. No documentary evidence was produced to show that Rs, 11,75,000 which she claims to have paid to Zaki Khan in 1982 were withdrawn by her from any bank considering that such amount was quite hefty at that time and normally people do not keep such big amount at a place where they do not live permanently. Similarly, Zaki Khan has also not produced any document to show that he after receiving Rs,11,75,000 kept this amount or any part thereof in any bank. With regard to distribution of shares also Zaki Khan in his cross-examination has admitted that he does not possess any proof of payment when he states "I have no written proof for payment of the share to plaintiff in Suit No.544/87.". ' There is also contradiction even as to the manner in which Zaki Khan claimed to have made payment of Rs,2,50,000 to Razi Khan. Exhibit 10/1 described as "Office Order" and said to have been issued on 20-11-1982 from the office of Zaki Khan forewarns the staff of Zaki Khan not to allow entry of Razi Khan in the office as Razi Khan has taken away from the -office the receipt of Rs,2,50,000 which Razi Khan executed upon receipt of his share. The purpose of producing "Office Order", dated 20-11-1982 thus was to demonstrate that Razi Khan has himself acknowledged receipt of the amount of Rs,2,50,000. However, this plea of executing receipt is belied by Zaki Khan's himself when he claims that Razi Khan's share was paid to Ansari Khan and not to him directly. If Razi Khan's share was paid to Ansari, Khan then where is the question of Razi Khan executing receipt as has been claimed on the basis of "Office Order", dated 20-11-1982. It is also to be noted that had the contents of "Office Order", dated 20-11-1982 been true then what is narrated in it ought to have been addressed to Razi Khan directly and not just to Zaki Khan's own office staff. The version of executing receipt as contained in "Office Order" is clearly belied by another statement of Zaki Khan when he is paragraph 3 of his written statement filed in Suit No.544 of 1987 states that he did not take any receipt for Rs,2,50,000. From Razi Khan. Thus none of the pleas with regard to payment of Rs,2,50,000 to Razi Khan has been established through cogent evidence. When a person takes a false plea then there is every possibility that at different stages of pleadings he makes contradictory statements of a particular situation. This is exactly what has happened to Zaki Khan's plea of distribution of the alleged sale consideration. In fact it establishes the fact that there was no sale consideration available for distribution in first place as the sale transaction itself did not exist. ' Though late Anseri Khan's version has not come on record as he died in 1984 and suits were filed in 1987, however reading Exhs. X/21 and X/22 which are letters, dated 9-4-1983 and 3-4-1983 sent by Razi Khan to Anseri Khan and Exhibit P-1/41 and P-1/45 which are Anseri Khan's replies, dated 25-4- 1983 and 18-5-1983 to Razi Khan, it appears that in response to Razi Khan's claim to the house, late Anseri Khan has not responded by asserting that Razi Khan had no right to claim any share in the
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house as it was sold with his consent in 1982 and he had taken his share through him. This further shows that even late Anseri Khan never maintained in his lifetime that sale transaction with regard to the house has taken place in 1982 between Mrs. Kishwar Iqbal and Zaki Khan. ' In paragraph 6 of the Affidavit-in-Evidence filed by Zaki Khan, he has narrated the bitter relation between him and Razi Khan. When the relationship between Zaki Khan and Razi Khan were never cordial, then why Zaki Khan did not even care to get the agreement of sale signed by Razi Khan. He did not even obtain receipt from him to establish that he paid Razi Khan's share to him. In paragraph 5(7) of the written statement filed in Suit No. 5.44 of 1987 Zaki Khan that said that all brothers agreed to sell the house to Mrs. Kishwar Iqbal and therefore, sale agreement was executed on 20-9-1982. If that was so and all brothers were available, then why their signatures were not obtained on the sale agreement or any other document evincing the alleged sale transaction and why such was completed on the basis of Power of Attorney when admittedly attorney was exercising power in favour of a person who was his close relation. It is also surprising that when…
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