1. ARSHAD NOOR KHAN, J.--- The present suit for issuance of Letter of Administration has been filed by the plaintiff under Section 278 of Succession Act, 1925 in respect of the properties left by the deceased Abdur Rahim Siddiqui son of late Moulvi Muhammad Ayub.
2. The plaintiff initially filed succession misc. Application which was registered as SMA No. 10 1999 stating therein that the deceased Abdur Rahim son of late Moulvi Muhammad Ayub was his real brother, who died on 18.9.1994. At the time of the death of deceased, he was residing in House No. IB-60, Block - J. North Nazimabad, Karachi. The deceased died issueless and at the lime of his death, he left the following legal heirs:---
(1) Mrs. Yasmin Zaidi widow 61 years
(2) Abdur Rahman died on 27.1.1996 leaving behind the following legal heirs: (2A) Mrs. Mujeebunnisawidow 59 years (2B) Fahim Anjum son 33 years (2C)Mrs. Fahmida Riffatdaughter 32 years (2D) Dr. Shafiqur Rahmanson 25 years
(3) Fazlur Rahman Warisbrother 65 years
(4) Mrs. Salma Begum sister 63 years
(5) Aziz Bin Ayub brother 60 years
(6) Khalil Rahman Ayubbrother 57 years It is further stated in the suit that the deceased was employed as Senior Preventive Officer in Sea Customs, Government of Pakistan and at the time of his death he left his service dues including provident fund. It is further stated in the suit that all the three accounts mentioned in the schedule, were Joint that at the time of death he was owner of Plot No. B-60, Block J, North Nazimabad, Karachi, admeasuring 495 sq. Yards and ground floor of it was in use and occupation of Mrs. Salma Begum, the sister and one of the legal heir of the deceased, and the first floor and roof was occupied by the widow of the deceased. It is further stated in the suit that the deceased was operating Foreign Currency Account bearing No. 30286-0 in Habib Bank Ltd., SITE branch. Karachi in US$ and a balance of USS 8,540.00 were lying in his account on 30.6.1996. The deceased was also operating PLS Account No. 6057-1 at Habib Bank Limited. Khadija Market Branch, North Nazimabad, and an amount of Rs. 55,622.50 were lying in his account on 20.5.1998 and another PLS Account No. 1/17234-1, Habib Bank Limited Barkat-e-Hyderi Branch, North Nazimabad was also operating wherein an amount of Rs. 108.076/- were lying. It is further stated in the suit that the deceased had nominated the petitioner and his another brother Aziz Bin jub to have 50% share each, from his service benefits. It is further stated in the suit that the deceased also left will dated 26.10.1993 thereby the petitioner and his brother Aziz Bin Ayub were declared entitled to 50% each of his service benefits and that both will also have same share in the immovable properties left by the deceased besides other terms stated in the will dated 26.10.1993.
3. The petitioner, therefore, prayed for issuance of Letter of Administration in respect of House No. B- 60, Block J, North Nazimabad, Karachi admeasuring 495 sq. Yds. In his favour.
4. Notice of the said succession misc. Application was also published in daily Jasarat dated 21.1.1999.
5. In response to the notice published in daily newspaper, the defendant Mrs. Syeda Yasmin Zaidi appeared and filed her objections to the petition filed by the plaintiff, inter alia, stating therein that she had constructed part of the ground floor of the house left by the deceased as well as first floor, out of her own income as she was posted as Principal, Government College for Women, Nazimabad, Karachi and that the deceased also orally gifted the said house to her during his life time. She has also withdrawn all the service benefits as well as the amounts lying in the bank accounts of the deceased and that she was also receiving the pension from the department where the deceased was lastly employed. So many pleas have also been raised by her in her objections.
6. Since the S.M.A. Was contested as such the same was converted into a suit being contentious suit in view of Section 295 of the Succession Act, 1925, vide order of this court dated 24.1.2000 which is usefully quoted hereinbelow, for the sake of convenience:--- "On 18.3.1999, Mst. Syeda Yasmin Zaidi had filed objections, wherein she claimed to be the sole owner of the immovable property i.e. House No. B-60, Block 'J' North Nazimabad, Karachi, on the ground that deceased Abdur Rahim Siddiqui during his life time, had gifted the said property to her.
7. With regard to the money lying in different branches of M/s. Habib Bank Limited, it has been submitted that all the three accounts mentioned in the schedule, were Joint Accounts and the money therein was deposited by objector from her own sources and the same -was not contributed by deceased Abdur Rahim Siddiqui.
8. Notice of this application is waived by Mr. Hafiz Abdul Baqi, advocate. Adjourned to a date in office."
(2) Whether legal heirs of deceased brother Abdur Rahman are entitled to share in the properties and assets of the deceased Abdur Rahim Siddiqui?
9. If so, to what shares are they entitled under Sunni Muslim Law?
(3) Whether deceased was not exclusive owner of double storied house No. B-60, (495 sq. Yards), Block-J, North Nazimabad, Karachi; first and second floors whereof are occupied by defendant? If so, whether the remaining legal heirs are not entitled to their share in rental value of the said portion and of ground floor?
(4) Whether the defendant has received amount of gratuity , provident fund, group insurance and other service benefits, e.g. Salary, leave pay etc., from employer of the deceased i.e., Sea Customs, Government of Pakistan, if so, what shares are payable to other legal heirs by the defendant out of above receipts?
(5) 'Whether the deceased Abdur Rahim Siddiqui was maintaining three accounts and left behind
(1) a sum of US$ 8,540.00 in Foreign Currency Account No. 30268-0 (page No. 1: OP code 11) Habib Bank Limited SITE Branch, Karachi;
(2) a sum of Rs. 55,622.50 PLS Account No. 6057-1, Habib Bank Limited, (3) a sum of Rs. 1,08,076.00 in PLS Account No. 1/17234-1, Habib Bank Limited, Barkat-e-Haidery Branch, North Nazimabad, Karachi? If so, to what shares are legal heirs entitled in the said sum of money?
(6) Whether the deceased Abdur Rahim Siddiqui left behind Will dated 20.10.1993? If so, whether upto I/3rd of deceased's property shall be disposed of in accordance with the said Will and legal heirs shall be bound to comply with the wishes of the deceased shown in the Will?
(7) Whether the defendant has sold Toyota Corolla car of deceased Abdur Rahim Siddiqui for Rs.
10. 55,000/- and appropriated the whole amount herself? If so, whether this amount would be adjusted against her share in the assets of the deceased?
(8) Whether the defendant being working woman employed as Principal of Government Girls College, Nazimabad (non-retired) in the process of the construction of the first floor and expenses of the household affairs spent more than 50% share in the sum of Rs. 12,00,000/= from her own assets just two years before the death of her husband and is entitled to the said amount from the assets left by the deceased?
(9) Whether the deceased gifted the property bearing House No. B-60, Block-J, North Nazimabad, Karachi, during his life time for the reasons that her investment in the house was more than 50% share and which was in the knowledge of the plaintiff?
(10) Whether Mst. Salma Begum is liable to pay rent at the rate of Rs. 7,000/= per month from July, 1994?
(11) Whether the defendant is liable to pay rent of the premises which is in her occupation? If yes, since when and at what rate?
(12) What should the decree be? "
11. After framing the issues, the plaintiff Khalil Rahman Ayub examined Arsalan Khalil Ayub being his attorney as his witness , who produced special power of attorney executed by the plaintiff in his favour vide Ex. 3; death certificate of deceased Abdur Rahim Siddiqui, vide Ex. 4; burial certificate of the deceased, vide Ex. 5; photocopy of Will dated 26.10.1993, vide Ex. 6; letters addressed to the Collector of Customs, (Preventive) dated 19.9.1995 and 11.4.1997 respectively, vide Exs. 7 and 8; letter sent by Customs House, Karachi dated 16.4.1997, vide Ex. 9; letter addressed by the plaintiff to Accounts Officer, Customs House, Karachi dated 25.4.1997, vide Ex. 10; similar letter dated 23.8.1997, vide Ex. 11; publication of notice in daily Jasarat dated 07.12.1997, vide Ex. 12; statements of accounts of HBL, vide Exs. 13 and 14; legal notices served on Account Officer, Customs House, Karachi vide Ex.
12. 15 to Ex. 20; photocopies of certificate issued by the Manager, HBL SITE Branch, Karachi dated 27.5.1998 and 02.6.1998, vide Ex. 21 and Ex. 22.
13. Thereafter learned counsel for the plaintiff closed his side, vide statement dated 17.1.2004.
14. The defendant Mrs. Syeda Yasmin Zaidi examined herself by filing her affidavit-in-evidence vide Ex.
24. Who also produced various documents and .Statements, counter foil of cheque books etc. From Ex. D/1 to Ex. D/70. She was also examined at great length by the learned counsel for the plaintiff.
15. She also examined Mst. Mumtaz Begum wife of late Mohammad Mohsin and Mohammad Shahid Mohsin son of late Mohammad Mohsin in her defence, who both were also cross-examined by the learned counsel for the plaintiff.
16. I have heard Mr. Amir Aziz Khan, advocate for the plaintiff and Hafiz Abdul Baqi, Advocate for the defendant Mrs. Syeda Yasmin Zaidi.
17. The learned counsel for the plaintiff vehemently contended that the deceased executed Will dated 26th October, 1993 whereby the plaintiff and his brother Aziz Bin Ayub were declared being 50% each share in the immovable property left by the deceased as well as in the service benefits and dues lying in the office of the deceased at the time of his death, vide Will Ex.
6. He further contended that the house in question was not gifted to the defendant by the deceased and since the deceased died issueless as such immovable property left by him devolves in favour of all the legal heirs of the deceased who died issueless. He further contended that he will not press execution of the will but he will press for distribution of shares m the immovable property to all the legal heirs according to Mohammadan Law. He frankly conceded that all the service benefits and the accounts operated by the deceased, have been withdrawn by the defendant and she is also receiving the pension of the deceased being his widow and has not made any claim or objection on withdrawal of these monitory benefits. He heavily controverted the assertion of the defendant that she incurred more than Rs. 12,00,000/- in completion of construction of first floor as well as part of the ground floor, as according to him no evidence has been brought by her to prove that she had raised construction out of her own funds, as alleged, as such the said defence has not been substantiated by her. According to him, the properties left by the deceased devolve in favour of all the legal heirs, names of whom have been mentioned in the memo. Of suit, as such suit to that extent may be decreed.
18. Mr. Hafiz Abdul Baqi, Advocate for the defendant while refuting the contention advanced by the learned counsel for the plaintiff has contended that defendant was posted as Principal, Government College for Women, Nazimabad and was earning much more than the income of the deceased and she spent more than Rs. 12,00,000/- in getting completion of ground floor and first floor of the house, therefore, the said amount is also liable to be deducted from the cost of the house. He further contended that the witnesses have also been examined by the defendant in support of her contention that she had constructed part of the ground floor and whole of the first floor, which evidence has not been disproved in cross-examination by the plaintiff.
19. He further contended that the suit property has been gifted orally by the deceased in her favour, as such the plaintiff and other legal heirs are not entitled for any share in the said house, left by the deceased. He, however, admitted that defendant has withdrawn all the amounts lying in the bank as well as the service benefits from Customs Department and is also getting pension being widow of the deceased without any objection from any quarter. He further contended that the plaintiff has not stepped in the witness box to substantiate his claim and the evidence of his attorney is of no avail to him as the attorney had not signed, verified and presented the plaint. According to him the suit is liable to be dismissed with costs.
20. I have considered the arguments advanced on behalf of the parties and have gone through the entire evidence available on record.
21. At the very outset, it is observed that both the learned counsel for the parties have candidly admitted that all the amounts lying in the accounts of deceased as well as service benefits have been withdrawn by the defendant and she is also getting pension being widow of the deceased as such most of the issues have become redundant and have focused their arguments on following points:-
(1) Whether the deceased left Will dated 26th October, 1993 at the time of his death, vide Ex. 6?
(2) Whether the defendant constructed the part of the ground floor and first floor of the house in dispute, from her own funds?
(3) Whether the property has been orally gifted by the deceased in favour of the defendant?
(4) Whether all the legal heirs of the deceased, who died issueless are entitled to the share, in the house in dispute, left by the deceased as per Mohammadan Law?
22. I would like to dilate upon the aforesaid points, on the basis of evidence available on record as well as in the light of submissions advanced by the learned counsel for the parties POINT NO. 1: The plaintiff has alleged that the deceased executed a will much prior to his death and by virtue of the said will the deceased the plaintiff and his brother Aziz Bin Ayub being 50% share- holder amongst the immovable property left by the deceased as well as from the service benefits of the deceased. The son of the plaintiff namely: Arsalan Khalil Ayub, in his affidavit-in-evidence has stated about the will, left by the deceased, which he produced, vide Ex.
6. It is pertinent to note that original will has not been produced by the plaintiff and photocopy of the will has been produced. The defendant has denied the execution of will allegedly left by the deceased. The plaintiff has not led any independent evidence to show that the deceased had left a will, at the time of his death. A perusal of the photocopy of the will Ex. 6, shows that it was attested by Mr. Muhammad A.I Shaikh, Notary Public on 26.10.1993 and bears the signature of deceased Abdur Rahim Siddiqui. The defendant has disputed the existence of will, left by the deceased and was cross-examined by the learned counsel for the plaintiff on this aspect of the matter and she in her cross-examination denied the signatures of her deceased husband on the photocopy of will, Ex. 6.
23. Since she is the widow of the deceased as such presumption is that that she is well-acquainted and familiar with the signature of her deceased husband and her denial of the signature of the deceased on the will, Ex. 6, is of much significance. No suggestion in cross-examination has been given to her that actually will bears the signature of the deceased and she is telling lie. The plaintiff has also not brought any other document on record to show the admitted signature of deceased so as to compare the signature of deceased on alleged will Ex. 6, with the admitted signature of the deceased. In such state of affairs , the denial of the defendant in her cross-examination about signatures of her husband on Will Ex. 6 carries much weight and I do not find any justification to repel her assertion about the signature of her husband. In such state of affairs, it has not been established that the deceased had left the will. The original will has also not been produced in court and no evidence has been led by the plaintiff about destruction of the original will as such the secondary evidence could not be considered unless the destruction of the primary evidence is established by the plaintiff by producing plausible and convincing evidence, and I find that no evidence is available on record to show that original will was not traceable. The point is, therefore, answered in negative.
24. POINT NO. 2: The defendant in her objections has raised the plea that she was employed in teaching department at the time of her marriage and finally she was retired on 01.7.1997 as Principal, Government College for Women, Nazimabad Karachi in BPS-20. She, in her affidavit-in- evidence, has stated that the entire first floor and ground floor was completed from her own funds and investments as her earning capacity was four times more than the earning capacity of her husband, as at the time of death of her husband, his salary was Rs. 4,390/= whereas she was getting more than Rs. 18,000/= per month as salary. She further stated in her evidence that she incurred an amount of Rs. 12,03,633/= in completion of the construction work. The said assertion which she made in her affidavit-in-evidence has not been seriously controverted by the learned counsel for the plaintiff. It is settled principle of law that, in case, if the assertion made by the witness in his examination-in-chief, has not been controverted or disputed in cross-examination, will deem to have been accepted by the opposite party. In case any authority is needed, reference may be had to the case of Muhammad Akhtar v. Manna and others reported in 2001 SCM R 1700, wherein it has been observed by the learned . Apex Court that the fact asserted by one party remains unchallenged, the same amounts to admission on the part of the other party. Since the specific assertion of defendant, in her affidavit-in-evidence, that she constructed part of the ground floor as well as first floor of the house left by the deceased, from her own funds, has not been refuted by the plaintiff. Her claim has also been substantiated by her witnesses namely: Mst.
25. Mumtaz Begum and Muhammad Shahid Mohsin, who both in their respective affidavits have supported the version of the defendant about construction of the property and their evidence also remained unrebutted or undisputed in their cross-examination. There is, therefore, sufficient evidence available on record to show that earning of deceased was much less than the earning of the defendant, who retired as Principal, Government College for Women, Nazimabad, Karachi. The bare denial of the witness of the plaintiff that defendant did not incur the amount on construction of the house in question, has therefore, no substance. The point No. 2 is therefore, answered in affirmative.
26. POINT NO. 3: The defendant has alleged that the deceased gifted the property in her favour during the course of his life time. She has asserted the said fact in her affidavit-in-evidence. Her witness namely: Mumtaz Begum has also deposed that the deceased in her presence and in presence of her son and defendant had gifted his house to his wife. The other witness of the defendant namely: Muhammad Shahid Mohsin, who is also the son of DW Mumtaz Begum has deposed that in his presence, the deceased gifted the property in question, in favour of the defendant. DW Muhammad Shahid Mohsin has shown his age as 39 years on 06.1.2005, when he was cross-examined before the Commissioner as such at the time of declaration of gift in favour defendant, he was 15-16 years of age and it could not be expected that such an important declaration may be made by a person in presence of a grown up youth. Even otherwise, in case, if the deceased had gifted the said property in favour of the defendant, it was incumbent upon her to get it mutated in the record of rights during the life time of the deceased and mere her assertion that she did not get the property mutated in her name, because she was Government employee, is of no significance. There is, therefore, no sufficient evidence available on record to establish that the deceased had gifted the suit property in favour of the defendant. The point is, therefore, answered in negative.
27. POINT NO. 4: Admittedly the deceased died issueless, leaving the defendant as his widow, as such according to Mohammadan Law the parents of the deceased and next kin are entitled to inherit the share in the property left by him. The point is, therefore, answered in affirmative.
28. After appraisal of whole evidence available on record, I am of the opinion that the plaintiff has failed to establish that the deceased left any Will in his favour. The gift of the property as alleged by the defendant, has also not been established. In view of the aforesaid discussion, however, the investment on construction of the part of the ground floor and the first floor of the house in question, has been substantiated by the defendant, as such, she is also entitled to recover the same from the property left by the deceased.
29. Given under my hand and seal of this Court. . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.