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Petitioner: Amir Ali VS Respondent: Gul Shaker & Ors.
Court Name: Sindh High Court Judge(s): Zulfiqar Ahmad Khan Title: Amir Ali vs Gul Shaker & Ors. Case No.: Suit No. 240 of 1971 Date of Judgment:2021-10-13 Reported As: 2021 SHC 702 Result: N/A
Judgment ORDER Zulfiqar Ahmad Khan, J:- This suit was filed in the year 1971 as suit for administration to administer the estate left by predecessors of the plaintiffs being Quaid-e-Azam Mohammad Ali Jinnah, Mohtarma Fatima Jinnah as well as Mohtarma Shireen Jinnah. Schedule of properties to be administered was attached as annexure "A" available at page 79 to 81. Those properties included: DEBTS: (1) The outstanding balance of the credit of current account No. 2355 of the deceased with Foreign Exchange Branch of Habib Bank Limited Karachi. Rs. 5,61,760.80/- (2) The outstanding balance to the credit of current account of the deceased with National & Grindlays Bank Limited, Mcleoad Road, Karachi. Rs. 4,952.17 Total Rs. 5,66,712/- SECURITIES: (3) 3000 shares of the face value of Rs. 5.00 each of Habib Bank Limited valued at the market rate of Rs.17.25 per share Rs.51,750.00. Unpaid dividend warrant No. 25C/5683. Rs. 550.00 (4) 4500 shares of Karnaphuli Paper Mills Limited of the face values of Rs.10.00 each valued at the market rate of Rs.13.25 per share. Rs. 59,625.00 (5) 3511 shares of Rs. 10.00 each of Pakistan International Airlines Corporation Limited valued at the market rate of Rs. 13.00 per share. Rs.45,643.00 (6) 250 Preference shares of Rs. 100.00 each of; And 2500 Ordinary shares of Rs. 10.00 eacho f Hyderabad Tanning & Shoe Manufacturing Co. Limited in liquidation-Market value. Nil. (7) 300 Ordinary shares of Rs. 10.00 each of Rawalpindi Electric Power Co. Limited valued at the market rate of Rs.13.20 per share. Rs. 3,960.00 Grand total Rs.7,28,240,97.
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(8) 3050 shares of Sui Gas Transmission company of the face value of Rs. 100.00 Rs. 143.00 each, Rs. 4,36,150.00 (9) 31680 shares of Adamjee Industries Limited of the market value of Rs.15.80 each. Rs. 4,77,735.00 (10) Jewelry, Furniture, Fixtures, Fittings, Cutlery, Crockery, Silver ware, books, carpets etc all lying at "Qasr-e- Fatima". (Mohata Palace) Clifton, Karachi, estimated value Rs. 4,00,000.00/- (11) Four cars, namely Cadillac, Mercedes, Chrysler and Packard, in the possession respondent No.5 estimated value Rs.1,00,000 (12) Land admeasuring approximately 8000 sq. yds. with building standing thereon, known as "Qasr-e-Fatima" (Mohatta Palace) situate at Clifton, Karachi, in the possession of respondent No.5 estimated value. Rs. 7,00,000.00. Total Rs.28,42,125.97 On the pleadings of the parties, this court framed the following issues:- 1. Whether the late Mohtarma Fatima Jinnah practiced Sunni/Hanafi faith during her life time and remained a Sunni until the time of her death as claimed by the plaintiff in para 8 of the plaint? 2. Whether the plaintiff and defendants 1(a) to 1(c) and 2 to 5 have any interest or share in the properties left by the deceased, if so, to what extent and in what proportions? 3. Whether the suit as framed is misconceived and merits dismissal? 4. What should the decree be? This is one of the leading case of nation's history in which M/s. Liaquat Merchant, Aziz A. Munshi, Ibadat Yar Khan and Fakhruddin G. Ebrahim, Advocates were engaged in which orders have been passed by various hon'ble Judges of this court. The suit was finally decided by a lengthy and elaborative judgment authored by my lord Mr. Justice Zafar Hussain Mirza (as he then was) on 23.12.1976 with the following conclusive paragraphs:- "71. The cumulative effect of ail these circumstances is that the preponderance of evidence adduced at the trial leans in favour of the conclusion that the deceased chose to be governed by the Shia Law and not by the Sunni Law. The first issue is therefore, answered in the negative. 72. Mr. Saeed uz Zaman learned counsel appearing for defendants 3 and 4 supported the case of the plaintiff. He further submitted that in case the Court comes to the conclusion that the deceased did adhere to the doctrines of any sect of Islam then the case has to be decided by the application of the principles of justice, equity and good conscience. He supported his submission with some decisions. But in view of my finding on issue No. 1, it is not necessary to consider this argument. 73. As a result of the finding on issue No. 1, I hold that the plaintiff has no right to the inheritance of the deceased as according to the Shia Law 'the entire estate left by the deceased will devolve upon her sister defendant No. 5. Similarly defendants Nos. 1 to 4 have no right to share the inheritance. Issue No. 2 is also, therefore, answered in the negative. 74. The only remaining issue relates to maintainability of the suit. Mr. Ibadat Yar Khan contended that the present suit is not competent inas much as the right claimed by the plaintiff was denied to his knowledge before the filing of the suit and therefore, no suit for administration was maintainable at the instance of the plaintiff until by a separate suit he established his right and status as lawful heir of the deceased. Alternatively counsel contended that the suit as framed is not one for administration in so far as the main relief sought is for partition of the properties. The relief sought ire the plaint are for (1) administration of the estate of the deceased under the order of the Court; (2) rendition of accounts by defendant No. 5 of the estate which has come to her hands (3) payment of debts and y liabilities ; and (4) for partition of the estate between the heirs. This is clearly therefore. a suit for administration of the property of the deceased. Order XX, rule 13 of the Code of Civil Procedure alongwith the relevant forms in the Schedule appended thereto clearly show Oat a next of kin can maintain a suit for administration of the property of a deceased person. I therefore, find no legal flaw as to the form or maintainability of this suit. This issue is accordingly answered in the negative."
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As seen from the above, the said suit was dismissed with cost against which an appeal was preferred by the plaintiffs which was decided and is reported in PLD 1985 Karachi 365 (Amir Ali v. Gul Shaker Ft others) where my lord Chief Justice Abdul Hayee Kureshi (as he then was) authored the judgment displacing the findings of the learned Single Judge on the issue No.1 and setting aside the judgment and decree of this court and remanded the matter to the Original Side of this court as per following directions: "For the above reasons, we are of the view that the finding of the learned Single Judge on the first issue is not correct. We are of the view that Mohtarma Fatima Jinnah was neither a Sunni nor a Shia, but she was a Muslim in accordance with the Qurani concepts. She was free from sectarian classification, and therefore her property has to be distributed in accordance with the pure Islamic Law, as is contained in Sura Nisa. Since we have displaced the finding of the learned Single Judge on issue No.1, the remaining issues will need to be determined. The judgment and decree passed by the learned Single Judge is set aside, and the case is now remanded to the Original Side of this Court for being placed before the learned Judge, hearing such cases, for determination on the remaining issues in this case. Looking to the nature of contest in this case, we shall leave the parties to bear their own costs." It is pertinent to note that the learned Division Bench of this court reached to the conclusion that Mohtarma Fatima Jinnah was neither a Sunni nor a Shia, but she was a Muslim in accordance with the Quranic concepts and as such she was free from any sectarial compartmentalization, and therefore her property be distributed in accordance with the pure Islamic Law, as is contained in Sura Nisa. It appears that immediately after the pronouncement of the said Judgment, CMA No. 06 of 1983 was moved before this Court containing the following prayers:- "(1) That the matter relating to faith of Quaid-e-Azam be de-linked so that the faith of Mohtarma Fatima Jinnah may be dealt with separately. (2) The question of faith of Quaid-e-Azam may be decided, (3) That in relation, to the faith of Mohtarma Fatima Jinnah, the case be remanded to the learned Single Judge so that further submissions and further evidence may be lead. The case was remanded to the learned Single Judge so that further evidence could be led, however, the said CMA No.06 of 1983 was decided with the following order:- "As far as the first prayer, in relation to de-linking the question of faith of Quaid-e-Azam, the judgment is specific, and distinct findings have been recorded on the evidence on record that Quaid-e-Azam was neither a Shia nor a Sunni but a simple Mussalman. To that extent the observations and findings in the judgment are severable and therefore no order is necessary. In regard to the second prayer the question about the faith of Quaid-eAzam has been decided in this appeal, and therefore no orders are necessary. All counsel have made this joint application and they seek a consent order to the effect that the case may be remanded to the learned Single Judge, with the direction that if any party wants to lead any evidence or make further submissions in relations to the faith of Mohtarma Fatima Jinnah, he shall be allowed such an opportunity and the question of faith of Mohtarma Fatima Jinnah may be decided independently of the faith of Quaid-e-Azam himself. Since all counsel are seeking a consent order, and they want to lead further evidence we request the learned Single Judge to record evidence and hear the parties if they so wish. Even by the final order passed on 23-12-1984 this case was remanded for recording findings on other issues. In these circumstances, the learned Single Judge, who will be seized of the case, shall allow further evidence to be produced and hear the submissions in relation to faith of Mohtarma Fatima Jinnah also. He shall not be persuaded by what has been states 3y us in our order dated 23-12-1984 in so far as it relates to faith of Quaid-e- Azam. We may explain that question of faith of Mohtarma Fatima Jinnah shall be determined without reference to the findings in relation to the faith of Quaid-e-Azam. This application stands disposed of. While the matter was remanded to the learned Single Judge of this court to record further evidence of the parties, perusal of the file reflects that no further evidence was adduced in this case and eventually matter
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came up for final arguments on the basis of the evidence already recorded and till date the matter is being heard for final arguments, however, a number of miscellaneous applications were also disposed of during this period. Most alarming aspect of this case which pertains to the assets left by Mohtarma Fatima Jinnah as she had drawn those from Quaid-e-Azam Mohammad Ali Jinnah and as per the list attached as annexure "A" for which this suit for administration was filed is that these assets could not be accounted for despite having numerous Inventory Reports ordered to be produced, none of which is available on file except the one discussed in the later part of this order. With regard to the assets available in Mohatta Palace, written statement of defendant No.5 i.e. Mohtarma Shireen Jinnah is relevant where while answering para-5 she has stated that "it was Commissioner of Karachi who, under orders of the Central Government broke the seals of Qasr-e-Fatima which was lying vacant and sealed soon after the death of Mohtarma Fatima Jinnah after preparing the full and complete inventory of all furniture, fixture and household that were spared after the loot". In para-6 the said defendant has admitted that "full and comprehensive inventory was prepared by Inventory Committee which, however, did not include the jewellery, pearl necklace and other precious stones and valuable articles which at the time of death of Mohtarma Fatima Jinnah were allegedly removed by other relations from the safe in Qasr-e-Fatima which have not been accounted for". The said defendant complained to the Commissioner about this pilferage and misappropriation and admitted that some of the articles were recovered from the possession of the relations. In this regard one could also look CMA No. 9615/2010 in terms of which a request was made that locker No. 0642 belonging to Quaid-e-Azam Muhammad Ali Jinnah be broke open in the presence of Sharif Ahmed, registered High Court Clerk of M/s. Liaquat Merchant , Mr. Ahmed Khan, Manager Habib Bank and inventory be prepared in the presence of Official Assignee. Incidentally the said locker was broken in the presence of the above named individuals by the Official Assignee and after making the inventory attached with the said application, he placed the items found therein back in the locker as the Official Assignee did not have any other suitable arrangement for keeping the valuable and personal belongings of Quaid-e-Azam Mohammad Ali Jinnah. Official Assignee in compliance of the order dated 18.12.1996 made an inventory which is reproduced as under:- Box No.1 contains:- 1. Pocket watch without chain (cooke & Kelaly) contain 1. 2. Pocket watch without chain (Masoks & Co Ltd) 1. 3. Ladies wrist watch with belt No.619017 1. 4. Pocket watch with cover 1 5. Pocket knife folding small 1 6. Two chains for pocket watches 7. One Medal with Qalma in Gold colour. 8. One Rupee Coin 1901 9. One Small Magnifying Glass with cover. 10. Small Dori in chffnetsyes & colours. Box No.2 contains:- 11. Box containing 7 button with six hooks (Black colour) Butter Paper 3 contains:- 12. One cigarette case in Golden & Silver case in Butter paper. 13. One Sword cover appearing to be of Gold small in duster No.4. Box No.5 contains:- 14. Four batten with black stone 15. 10 pair of Cufflinks in different colour. 16. 3 pieces of Cufflinks with black stone. 17. Two buttons with white stone. 18. Four small broken pieces of cufflinks etc. 19. Fifteen buttons of different in Golden Colours.
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20. Chain with two small both brokeries Golden Colour 21. One tie pair in Golden Colour 22. One safety pin 23. Twelve button of different sizes & colours. After preparing the inventory of locker No. 0462 & again locked the locker in presence of abovementioned para. New lock fixed in locker No. 0462 & key No. 413 passed by me. All inventories item again kept in locker No. 0462 & key No.413 again locked. To refresh the said list, a request was made in the year 2016 that the Official Assignee to check the locker again to find out that whether the inventory found after break opening of the locker in the year 1996 was still present in the locker or not as at that time locker's key was handed out to the Official Assignee. Mr. Zafar Ahmed Khan Sherwani was appointed as Commissioner to ascertain the existence of various items who submitted his report dated 02.02.2016 and issued the following certificate:- "Certificate The locker No. 0462 were broke open today i.e. 2.2.2016 at 3.30 P.M in presence of Mr. Wajid court clerk of Kh. Shamsul Islam, Adv, Mr. Nazish s/o Amir Ali (plaintiff) Mr. Nadeem Ahmed Khan Manager Habib Safe Deposit Vault (Pvt) Ltd & Abideen Hussain s/o Ashiq Ali Hussain & the contents thereof were verified physically is per this Inventory dt. 18.12.1996 prepared by Mr. Abdullah Mohsin Baloch Assistant Official Assignee?s office. These contents were in accordance with the Inventory reproduced in the same condition & than handed over Mr. Mohammad Umar Qureshi Assistant Director Quaid-e-Aam House Museum (Old Flat Staff House) The contents have been received by Mr. Mohammad Umar Qureshi after verifying physically" Per learned counsel, Qasr-e-Fatima is the property where Mohtarma Fatima Jinnah took her last breath, however, as seen from the above Report of Mr. Sherwani no valuable assets were recovered to the extent that in this case of properties of father and mother of the nation, only Qasr-e-Fatima surfaced. Properties as detailed in the schedule (Item- 10) worth more than half of the value of this property (Qasr-e-Fatima) were never discovered, where did other properties disappear including cars, shares, jewellery, Bank balances, no one knows, per learned counsel. It is interesting that while this matter was coming up for hearing, a proposal came to this court through CMA No. 2030/1991 on 14.01.1992 from Government of Sindh seeking that the said property be given to the latter at price determined by the Court as it was Provincial Government's wish to maintain the said property as a "monument of national importance". However, in response, an application was moved through CMA No.562/1991 praying that Qaid-e-Azam Mohammad Ali Jinnah has dealt the issue of the fate of Qasr-e-Fatima through his WILL and the Court to decide the same in the light thereof. In the meanwhile, an application bearing CMA No.1906/1990 was moved through which appointment of Nazir was sought to take over the control of the property and to take stock of all movables to be found therein as it turned out that Deputy Commissioner Karachi South had removed the guards placed there on his own motion. This application was decided by order dated 25.11.1992 directing the Deputy Commissioner to place guards again as well as giving directions to the Official Assignee to oversee the Deputy Commissioner with the objective of preserving and protecting Qasr-e-Fatima and the assets therein. Through the same order, application CMA No.562/1991 was dismissed giving reasons that Qasr- e-Fatima had become a private property of Mohtarma Fatima Jinnah who herself never pursued the matter of Qaid-e- Azam Mohammad Ali Jinnah's WILL. Assets left by Mohtarma Fatima Jinnah were transmitted to Mohtarma Shireen Jinnah, who in her last days was represented by Shireen Jinnah Charitable Trust, that came into being upon the Trust Deed having been signed by Mohtarma Shireen Jinnah as produced before this court through Statement filed by the counsel representing the Trust on 20.04.2018. The Deed is dated 21.03.1979. A perusal of the Deed reflects that the Trust was created for "receiving all cash, jewelry, furniture, shares, assets and other properties movable and immovable including Qasr-e-Fatima built on Plot No. 7, 7A, 8, 8A, street No. C-F.1/5, Clifton, Karachi (formerly known as Mohatta Palace)". The Deed very specifically mentions that it was the wish and will of the Donor (as well as Mohtarma Fatima Jinnah) that the said property be used for establishing "a most modern medical college exclusively for girl with an attached hospital for free treatment of poor persons in sickness and distress" and the Management Committee was mandated to achieve this objective. As mentioned earlier, Government of Sindh wanted to purchase the said property for which valuation was sought, perusal of the order dated 17.03.1993 shows that while tentatively the property housing the
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most enviable palace in the city of Karachi spread over thousands of yards was quoted to worth only Rs. 6,11,88,000/-, the parties logically did not concede to such a price and through said order a board of experts consisting of M/s. Naqvi Ft Siddiqui, Architect, M/s. Engineering Consultants and Mrs. Yasmin Lari was constituted to find true value of the said property. Seemingly this order never saw the light of day. The background of the sale of Qasr-e-Fatima could be traced out from an application made under Section 151 CPC being CMA No. 2030/1991 moved by K.M. Nadeem, Assistant Advocate General on 05.11.1991. The relevant paragraphs No. 8, 9 and 10 of the said application are reproduced hereunder:- "8. That while the legal proceedings and disputes between the parties have remained pending in this Hon'ble Court, the prestigious `Mohatta Palace' which is both highly valuable and of architectural importance has been steadily deteriorating from 1967 when Mohtarma Fatima Jinnah passed away. Mohatta Palace has since then neither been repaired nor properly maintained. In fact, according to recent press reports and some applications filed in this Hon'ble Court, certain persons are alleged to have trespassed on the property and the Commissioner of Karachi/Deputy Commissioner of Karachi (South) have posted police guards to protect the property from encroachers and trespassers. 9. That with a view to preserving this prestigious property (i.e.) `Mohatta Palace' for reasons of its high value, architectural importance and in view of the sanctity attached to the property which belonged to Mohtarma Fatima Jinnah `Madar-e-Millat', who lived and died in Mohatta Palace, the Government of Sindh is desirous of taking immediate suitable steps to repair, preserve and maintain Mohatta Palace by restoring it back to its original condition. For such purpose the Government of Sindh has keenly decided to purchase the aforementioned property at a suitable, reasonable price to be fixed by this Hon'ble Court with the concurrence of litigating parties, so that the property in question may be retained and maintained as a National Monument. 10. That the price so fixed by this Hon'ble Court, shall be paid/deposited by the Government of Sindh with the Nazir of this Hon'ble Court to be invested in profitable Government securities like Defence Savings Certificates, etc. till such time the litigation in respect thereof between contesting parties, is finally decided whereafter the said amount be paid to the successful party by this Hon'ble Court according to law. In the circumstances it is submitted and prayed: That this Hon'ble Court be pleased to order for sale to the Government of Sindh all that property known as Mohatta Palace, situated at Clifton, Karachi alongwith all contents and appurtenants, furniture, fixture, relics, etc. to be retained and maintained as a National Monument at a reasonable price to be fixed by this Hon'ble Court with concurrence of the litigating parties, in the larger interest of justice and be further pleased to direct the Nazir of this Hon'ble Court to keep the aforesaid sale consideration deposited by the Government of Sindh with him, duly invested in profitable Government Securities like Defence Saving Certificates, etc. to be paid ultimately to the party found entitled at the time of and by virtue of final decision of this Hon'ble Court in pending litigation/ litigations." This court through its order dated 25.11.1992 mandated Official Assignee Mr. Bashir A. Memon in consultation with parties and competent valuators to obtain market price of the property on which official Assignee through his reference dated 31.01.1993 made the following submissions:- "3. In respect of direction No.(ii), it is submitted that the Court file, shows the area of the Mohatta Palace to be 8000 sq. yards. It was found necessary to obtain correct information from the Assistant Commissioner South Karachi, about the total area of the plot comprising Mohatta Palace. The Assistant Commissioner South intimated that the Mohatta Palace is situated on four plots with following area:- Plot No. Area (i). CF-1-5/7. 2172 S. Yards. (ii). CF-1-5/7a. 1295 (iii). CF-1-5/8. 3308 (iv). CF-1-5/8a. 3629/4 Total 10404/41 1
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In view of the aforesaid discrepancy in the area of Mohatta Palace M/s Bilgrami and Farooque Architects were specially requested to make physical verification of the area under Mohatta Palace. According to them the area is 10850 Sq. Yards. 4. In order to arrive at correct assessment of market value of Mohatta Palace, I have two aspects in my mind, one being about the Building and second about the plot. (i). Building :- As for building is concerned, I had no biographical sketch of it. The Palace not only in the field of architecture has sufficient heritage, besides, over and above we have strong sentiments for Madar-e-Millat Mohtarma Fatima Jinnah in the background. It is pity that the building is in ruinous condition. So far market value of the building is concerned it will have poor response in the open market. Public will not be excited on account of prestigious structure or heritage or sentiments of Madar-e-Millat in the background. The public will be only interest in the plot of Mohatta Palace. This is the right attitude which has to be accepted, and is based on the public trend. (ii). Plot :- Coming to the value of the plot, Official Assignee has made through inquiry from various property dealers of Clifton and Defence sides, to find out the market value of the plot. Keeping all the conditions of the plot in view, the total value of the plot will be about Rs. Six Crores. 5. In this regard Official Assignee had sent letter to Messrs Nasim Farooqui and Liaqut Merchant advocates and to convey valuation of Mohatta Palace. Despite number of reminders no reply has been received from both advocates. M/s. Bilgrami and Faruque Architects have been consulted.…
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