1. GULZAR AHMED, J.--- The suit is for partition of property comprising of Plot No,145-K, Hali Road, P.E.C.H.S., Karachi admeasuring 1000 sq. yds. (the said property).
2. The brief facts of the matter as alleged in the plaint are that the defendant No,2 namely P.E.C.H.S. has executed a 99 years lease in Form-8 on 2-9-1959 duly registered in respect of the said plot of land in favour of Munzir Ahmad who on 1-4-1960 made a gift of the plot together with construction thereon in equal shares to his two sons i,e, Manzur Ahmad and Masrur Ahmad. Masrur Ahmed made a gift of his 50% share of the said property to his wife Mst. Zahra Masrur on 4-12-1972. At the same time late Manzur Ahmad also gifted his share of the said property to his wife Mst. Khadija Manzur the defendant No, 1 . Mst. Zahra Masrur then gifted her 50% share in the said property to her daughter the plaintiff on 13-6-1978. It is alleged that both the plaintiff and the defendant No,1 equally own 50% share each in the said property. The son of the defendant No,1 Dr. Mansur Ahmad has set up a Dental Clinic in the front portion of the said property since April, 1986. To realize her half share of the said property the plaintiff has approached the defendant No,1 on several occasions for the partition and/or the sale of the said property but without success. She also addressed the legal notice dated 21-8-1995 to the defendant No,1 in response to which a letter, dated 20-9-1995 was received wherein the defendant No,1 acknowledged the co-ownership of the said property but asked for deferring the matter as her son, Dr. Mansur Ahmad was seriously ill. Plaintiff counsel wrote another letter dated 2-10-1995 requesting for a positive response from defendant No, 1 . The plaintiff waited for return of Dr. Mansur Ahmad who though returned in November, 1995, but no response was received from the defendant No,
1. The suit herein was filed on 27-6-1996 with the following prayer:-- It is, therefore, prayed that:--
(1) The property be sold through public auction or through private treaty and out of the proceeds thereof plaintiff's half share be given to her, OR in the alternative the property be partitioned in such a manner that the value of each share is the same and both the plaintiff and the defendant No,1 have equal access to Hali Road and the records of the defendant No,2 be mutated accordingly.
(2) Mesne profits of the plaintiff's share of the property in possession of defendant No,1 be awarded to the plaintiff.
(3) Grant a permanent injunction restraining the defendant No,1 or anyone acting for or on her behalf, from creating any third party rights or liabilities in respect of the said property.
(4) Any other relief this Honourable Court deems fit may also be granted.
(5) Costs.
3. The defendant No,1 has filed written statement in which she has taken stand that the late Munzir Ahmad before gifting the property to his two sons on 1-4-1960 had constructed two almost identical in area separately identifiable and devisable units on the said plot both having excess to main Hali Road. The 1st unit facing Hali Road while the other unit only having excess to Hali Road.
4. The unit facing Hali Road was gifted to Manzur Ahmad whereas the other unit was gifted to Masrur Ahmad and that each of them got the title and possession of separate identifiable tenements. The allegation that the property was owned in the ratio of 50% each by the two brothers Manzur Ahmad and Masrur Ahmad was denied. The defendant No,1 has prayed for the dismissal of the suit with costs. The defendant No,2 P.E.C.H.S. was declared ex parte vide order, dated 15-12-1996. On the pleadings of the parties following issues were framed by the Court:-
(1) Whether the property in suit was given by late Munzir. Ahmad to his sons namely Manzur Ahmad and Masrur Ahmad by way of gift in equal shares?
(2) Whether defendant No,1 is entitled to occupy the front portion of the property in suit exclusively while relegating the plaintiff to rear portion thereof which may be of lesser value as compared to the front portion?
(3) Whether the property is capable of being divided into two portions of equal value? If no. what is the legal effect?
(4) Whether the plaintiff is entitled to mesne profits from defendant No,1? If so, at what rate and from which date?
(5) Whether the plaintiff had rented out the property in suit without sharing its proceeds with defendant No,1?
(6) What should the decree be?
5. The parties have led evidence. On behalf of the plaintiff Masrur Ahmad the father and attorney of the plaintiff filed his affidavit in evidence. He was cross-examined by the counsel for the defendant No,
1. The plaintiff then closed her side. From the side of the defendant No,1 affidavit in evidence of Mansur Ahmed the son and attorney of the defendant No,1 was filed. He was cross-examined by the counsel for the plaintiff. The defendant No,1 then closed her side.
6. Mr. Qazi Faiz Isa, learned counsel for the plaintiff has contended that evidence on record shows that deceased Munzir Ahmad has made gift of the said property to his two sons namely Manzur Ahmad and Masrur Ahmad in equal proportion and that the said property was not partitioned.
7. Referring to section 2 of the Partition Act, 1893, he has submitted that the suit be decreed as prayed. In support he has relied upon the case of Muhammad Zubair v. Syed Zakir Hussain Shah 1996 CLC 275; Ali Gohar Khan v. Sher Ayaz, 1989 SCM R 130; Baqat Khan v. Mst. Dil Jan 2000 M LD 1165; Ghulam Hussain v. Mst. Hur PLD 1959 (W.P.) Kar. 408; Abdul Ghaffar v. Bashir Ahmed 2003 YLR 362; Noor Rehman v. Muhammad Yousuf 2000 CLC 1138; Muhammad Aziz v. Muhammad Arif 2001 M LD 597; Mardan Shah v. Shah Nazar Khan PLD 1970 SC 245; Malik Muhammad Abdullah v. Malik Manzoor Elahi 1993 M LD 2569; Israr Muhammad Khan v. Senior Civil Judge, Lahore 1990 SCM R 693; Muhammad Ibrahim v. Muhammad Sharif 1980 CLC 296; Maqsood Begum v. Mukhtar Ali 1999 CLC 598 and Rasab Khan v. Abdul Ghani PLD 1985 SC (AJ&K) 69.
8. On the other hand Mr. Danish Shah, learned counsel for the defendant No,1 has contended that there is an unrebutable evidence on the record showing that the deceased Munzir Ahmad has gifted the said property to his two sons not in equal proportion but by delivering two separately identifiable portions to each of the son and that such aspect of the matter is also admitted by the mother of the plaintiff in her letter, dated 5-11-1985 to the Wealth Tax Authorities Exh.D.W.1/5. He has further contended that the fact that the son of the defendant No,1 is in occupation of the front portion of the said property for the last 10 years without any challenge from plaintiff establishes the fact that the front portion of the said property was gifted by the deceased Munzir Ahmad to his son Manzur Ahmad and the defendant No,1 has acquired ownership of the said portion by way of gift from Manzur Ahmad. He has further contended that the said property was privately partitioned and the documents showing transfer and mutation of the 50% of the said property in favour of the plaintiff or her predecessor-in-interest are fraudulent based no forged documents. He has further contended that plaintiff is not entitled to any mesne profit and that the property cannot be divided in equal shares from the front. In the alternative, he has submitted that under the concept of welly the respective portions of the said property be valued and payment for adjustment of difference in value be made. In support of his submission he has relied upon the case of Abdur Rehman v. Sheer Wadood 2001 CLC 1922; Muhammad Din v. Liaqat Ali 1991 M LD 1070; Sh. Gulzar Muhammad v. Mst.
9. Munawar Begum 1989 ALD 323(1); Jayalakshmidevamma v. Javardhan Reddy AIR 1959 Andhra Pradesh 272; Karvidan Sarda v. Sailaja Kanta Mitra AIR 1940 Patna 683; Babulall Choukhani v. Caltex (India) Ltd. AIR 1967 Cal. 205; Badr Zaman v. Sultan 1996 CLC 202; Musheer Ahmed Pesh Imam v. Dr. Razia Omer 1991 CLC 678; unreported judgment of this Court, dated 24-4-2003 in Humera Rehman v. Ghazala Rehman Suit No,1057 of 1999; Kalusingh v. Gulabchand AIR 1957 Nagpur 12; Khyam Films v. Bank of Bahawalpur 1982 CLC 1275; T.S. Swaminath, Odayar v. Official Receiver of West Tanjore AIR 1957 SC 577; Parvati Amma v. Makki Amma AIR 1962 Kerala 85; Shahebzada Mahomed Kazir Shah v.
10. R.S. Hills (1907) 35 Cal. 388; Noor Rehman v. Muhammad Yousuf 2000 CLC 1138; Muhammad Zubair v. Syed Zakir Hussain Shah 1996 CLC 275 and Dr. Miss Gulshan Naheed v. The N.-W.F.P. 1989 CLC 1301.
11. I have considered the arguments of the learned counsel and have gone through the record.
12. Issue No,
1. In the plaint it is alleged that late Munzir Ahmad has gifted the said property on 1-4-1960 to his two sons namely Manzur Ahmad and Masrur Ahmad in equal share. The defendant No,1 in her written statement has taken the stand that the said property comprised of two units of almost identical area which were separately identifiable and devisable and the unit facing the Hali Road was gifted to Manzur Ahmad while the other unit was gifted to Masrur Ahmad. Plaintiff witness in his evidence has reiterated the fact of gift of the said property being made by Munzir Ahmad and the request for partitioning of the said property in equal share was not acceded by the defendant No, 1.
13. The plaintiff witness has produced a photocopy of declaration of gift made by late Munzir Ahmad as Exh.P.W.1/2. A photocopy of Wasiat Nama of Munzir Ahmad dated 23-3-1979 as Exh.P.W.1/3 and a photocopy of letter dated 11-7-1960 of the Ministry of Works as Exh.P.W.1/4. These documents are not disputed by the defendant No,1 In Exh.P.W.1/2 late Munzir Ahmad has simply orally gifted the property described in the schedule to his said two sons and stated that he has delivered possession of the subject of the gift and the donees are now in possession in their own right. Both the donees have accepted the gift and acknowledged possession of the subject of gift. The gift is signed by late Munzir Ahmad so also by donees Manzur Ahmad and Masrur Ahmad. In the schedule the property is described as plot of land bearing No,145-K, Block-2, measuring 1000 sq. yds. situated in the area of Pakistan Employees Cooperative Housing Society Ltd, Karachi together with the house built thereon in Survey Sheet No,35-PI in the lay-out plan of the society and delineation. In Exh.P.W.1/4 the Ministry of Works has acknowledged the declaration of gift in which Plot No,145-K, Block 2 and house built thereon has been transferred to Manzur Ahmad and Masrur Ahmad the resident of the said house and stated that the chance has been noted in the record of the Ministry and the Society is being informed of this position. In Exh.P.W.1/3 which is a Wasiat Nama, late Munzir Ahmad has stated that Bungalow No,145-K, on Hali Road .E.C.H.S. Society Karachi were gifted by him on 1-4-1960 to his two sons Manzur Ahmad and Masrur Ahmad and that entry in this respect has been made in the record of the Society, Government and in the Income Tax Department and at the time when gift was made the Bungalow comprised of only one floor. The Wasiat Nama further says that in 1964 in the back portion of this Bungalow and on the Motor Garages, another floor has been built in the name of his wife and that the tax of this additional floor is being paid in her name and whatever income that will be made from this floor will belong to his wife.
14. The perusal of these documents clearly shows that the late Munzir Ahmad has gifted the whole of the said property to his two sons namely Manzur Ahmad and Masrur Ahmad and has given possession of it to them who have also accepted the gift and taken possession of the subject of gift which is described in the schedule as one whole property.
15. There is no mention in the gift that the gifted property is in r7,fon nor the schedule, describes the gifted property in portions. There is yet no mention in the gift that the donees have accepted the gift or taken possession of portions of the gifted property. It may be noted that in the Wasiat Nama the late Munzir Ahmad has specifically referred to the construction on the back portion but while making narration regarding the gift to his two sons of the said property, he does not identify the gifted property by means of portions that is front or back. He has further stated in his Wasiat Nama that entries of the gift have been made in the record of the Society, Government and Income Tax Department. The only undisputed document in respect of the entries is Exh.P.W.1/4 which is a letter of Ministry of Works acknowledging the receipt of declaration of gift of the plot and the house built thereon in favour of Manzur Ahmad and Masrur Ahmad. In this letter also there is no mention that gift of the said property is made in portions to the two donees. The apparent meaning of these documents, on their careful consideration, makes it clear, that the late Munzir Ahmad has gifted to his two sons Manzur Ahmad and Masrur Ahmad the whole of the said property bearing No,145-K, Block-2, measuring 1000 sq. yds. in P.E.C.H.S., Karachi together with a house built thereon. There is nothing to show from these documents, that late Munzir Ahmad has gifted the property by specific units or has delivered possession of respective units to his said two sons separately. In the declaration of gift which is signed by both Manzur Ahmad and Masrur Ahmad, they have acknowledged delivery of possession of the subject of gift which is mentioned in the schedule as described above. To the extent where the original gift is considered and read along with Wasiat Nama, nowhere does it show that the deceased Munzir Ahmad has gifted the said property in portions or has intended to do so as is claimed by the defendant No,
1. Oral evidence is not of much help to the parties which is any case cannot displace admitted documentary evidence. In any case the plaintiff witness has denied the suggestion put to him in his cross-examination that the front portion was intended to go to his elder brother while rear portion was to go to him. The defendant witness in cross-examination has stated that he does not know that his grandfather has executed any document that the front portion of the said property was gifted to his father Manzur Ahmad. As the gift was made to the two sons, and both having acquired co-ownership, obvious result of it is that the deceased Munzir Ahmad has gifted the said property to his two sons in equal share.
16. Issue No,2. It has come in evidence that in 1980 deceased Munzir Ahmad has allowed the defendant No,1 to occupy the front portion of the said property where she lived up to 1985 and thereafter the son of the defendant No,1 namely Dr. Mansur Ahmad opened his clinic and is the same up till now whereas the back portion of the house appears to nature been rented out. It may be noted that merely allowing of occupation by deceased munzir Ahmad of the front portion of the said house to the defendant No,1 and thereafter by her son will not negate or go contrary to the actual gift that was made on 1-4-1960 by which the whole of the ground floor of the said property was gifted by the said late Munzir Ahmad to his two sons namely Manzur Ahmad and Masrur Ahmad who also took possession of the said property as a whole one unit. The occupation of a certain portion of the said property is merely a matter of incident or convenience which has nothing to do with the actual gift. In the case of Ghulam Hussain (supra) a learned Judge of this Court has observed that "the gifts by the two ladies, one in favour of the appellant and the other in favour of Haji Muhammad Bux were of half share in the property in dispute. The recitals in these documents do not show anything further then this that the parties for convenience sake were in possession of separate portion of the property. According to well-established principle of law this cannot be taken to be a partition by metes and bounds. In fact the record of right shows that till the suit was filed the property in dispute was treated as joint property." In the case of Noor Rehman (supra) a learned Judge of the Peshawar High Court has observed that "where no regular partition has taken place between the contesting parties, co-sharer has a right in each and every Khasra number of the suit-land irrespective of the quantity and quality and the co-sharer who is in exclusive possession of a specific portion of joint property cannot alienate transfer or change the property unless the regular partition takes place between them. In the case of Mardan Shah (supra), the apex Court has observed that "Now a co-sharer is not statutorily defined, but its legal concept is quite well-settled, namely, that a co-sharer whatever the extent of his right in the joint property, is a co-owner in every inch of that property to the extent of his share until partition takes place which he can claim as a matter of right". This being the state of law, it is difficult to hold that the portion of the property which has been occupied by the plaintiff or defendant No,1 for the sake of convenience or as a matter of incident will amount to a regular partitioning of the property by them. There is no evidence on the record to show that any regular partition of the property was at any time effected between the plaintiff and defendant No,1 or their predecessor-in-interest.
17. Consequently, the only conclusion that could be drawn from this state of record is that as the predecessor-in-interest of the plaintiff and defendant No,1, the plaintiff and defendant No,1 are co- owners and co- F sharer in the said property and each of them has full interest in each and every part of the said property. The legal position thus stated makes both plaintiff and defendant No,1 joint owner of the said property having equal interest in each and every portion of it and that the occupancy of any of the portions either by the plaintiff or by the defendant No,1 is merely a matter of mere convenience and incident which in itself will not create any right of ownership of either the plaintiff or the defendant No,1 to the portion respectively occupied by them. The property will remain in the joint property in which both plaintiff and defendant No,1 will have IF equal share.
18. Issue No,3. As regard issue No,3, the parties agree on the fact that the property is incapable of being divided into two equal portions from its frontage. Obviously as discussed above both parties have equal right of ownership in the said property that also includes its frontage. The defendant No,1 witness has produced Nazir report dated 6-11-1998 as Exh.D.W.1/1 which is based upon the opinion of the Architect who has also inspected the house along with the Nazir and given his report dated 5-5-1998 which is produced as D.W.1/2. The Nazir in his report has stated thus:-- "The opinion of the Architect is that due to the constraints of the layout plan the existing house and dimensions as well as the shape of the plot, it is physically not possible to divide the said property into two equal portions from its frontage."
19. The Architect in Exh.D.W.1/2 has expressed his opinion thus:-- "It is my firm opinion, given without prejudice, that due to constraints of the layout of the exiting house and the dimensions and shape of the plot, it is physically not possible to divide the said property into two portions of equal value."
20. In the face of the above undisputed evidence on the record, the only conclusion that can safely be drawn is that the property is not capable of division into two portions of equal value.
21. Issues Nos,4 and 5. Both these issues relate to the question of drawing income from the said property and plaintiff asking for grant of mesne profit. The evidence that has come on the record does not show the full sequence of the rent income derived from the said property. It however, shows that the rent was being received by the predecessor of the plaintiff. Whether the receipt of such rent was shared by him with the defendant No,1 is not established on the record. Further it is also not clear as to how much rent was received by the predecessor of the plaintiff. At the same time it has also come in evidence that one Mrs. Razia Muzaffar is a tenant of rear portion of the said property who is a distant relative of the defendant No,1 and it has been suggested that she has not paid rent for over 5 years. The defendant witness has however, stated that all rent money from rare portion of the said property is paid directly by all the tenants to the predecessor of the plaintiff and his family. The fact of the plaintiff predecessor or the plaintiff enjoying the rent of the rear portion of the property is not much in dispute whereas there is no clear evidence on the record to show that the front portion of the said property was rented out at any time. Whatever may be the situation. In the face of the fact that the plaintiff enjoying rent of the rear portion of the said property and the defendant No,1 initially herself occupying the front portion and since 1985 being in occupation of her son Dr. Mansur Ahmad who is running his clinic will not give any cause for claiming of mesne profit in the property by the plaintiff. As stated above, that until a regular partition is made, each of the co-owner will continue to have the right of ownership in each and every part of the said property. Consequently the defendant No,1 who has inducted her son to occupy front portion of the said property to be used by him for his clinic will not provide ground for claiming mesne profits, as the defendant No,1 in her right of a co-owner was equally entitled to the benefit of its use also. I am, therefore, of the firm view that the plaintiff is not entitled to any mesne profits from the defendant No,1 while there is no conclusive evidence on the record as to what rent income was generated from the said property and whether it was shared by the predecessor of the plaintiff or by the plaintiff with the defendant No,
1. There is only word against word in this regard.
22. Issue No,6. In the above discussion on Issues Nos,1 and 2, it has been found that both plaintiff and defendant No,1 have equal share in the said property. While dealing with Issue No,3, it has been found that the said property is not capable of being equally divided between the parties and in Issues Nos,4 and 5 it has been found that plaintiff is not entitled to mesne profits. The learned counsel for the defendant No,1 has pressed the concept of owelty and has cited some law on it. The concept of owelty of partition as defined in Blacks Law Dictionary Revised Fourth Edition at page 1258 is a sum of money paid by one or two co-parceners or co-tenants to the other when partition has been effected between them, but the land not being susceptible of division into exactly equal share, such payment is required to make the portions respectively assigned to them of equal value. In pressing this concept of owelty, what the defendant No,1 is asserting is that she has right over more valuable portion of the said property and she be compensated for sharing of her portion of property by the plaintiff to make up, the value of her portion. This concept of owelty, in my respectfully view, will not apply in the present case. As stated above, it is established law in Pakistan that the co-owners have equal right in every part of the property until, a regular partition is effected. No partition has been effected of the said property and, therefore, both plaintiff and defendant No,1 enjoy equal right in the said property and merely because defendant No,1 is in occupation of the front portion of the said property purporting to be of higher value will not give the defendant No,1 right to more benefit then what is possessed by the plaintiff. Consequently the concept of owelty in the present case will not be applicable.
23. Consequently, as the said property is found to be incapable of being equally partitioned between plaintiff and defendant No,1, the only manner in which the interest of both the parties can well be secured is by way of putting up the said property to sale and its sale proceeds shared equally. The Official Assignee is, therefore, appointed as Commissioner to sell the said property and on receipt of the consideration amount to equally divide the same between the plaintiff and defendant No, 1.
24. This exercise will be completed by the Official Assignee in accordance with the rules within four months from this date. It may be noted that in undertaking the sale of the said property both plaintiff and defendant No,1 will be free to give their offer to purchase the said property. The fee of the Official Assignee is fixed at Rs,20,000 which will be paid by the plaintiff within one week of this date. A further sum of Rs,30,000 be also deposited by the plaintiff in the same time towards costs of sale. Both Official Assignee fee and costs of sale to be apportioned between the parties in distribution of sale proceeds.
25. The suit in the above terms stand decreed.