' MUHARREM G. BALOCH, J.--- Plaintiff has filed this suit for declaration, permanent, injunction, administration, partition, cancellation of documents and possession with the following prayers:---
(a) To declare that the plaintiffs are entitled to their respective legal shares according to Muslim law in the property Survey No,72/73, Soldier Bazaar No,1, Karachi, and Survey No,383, Plot No,115, Deh Dukh, Malir, measuring 680 sq. Yds, debts and securities of deceased Mst. Nazra J3egum held by the defendants Nos.1 and 2 as ostensible owner Benamidar are not entitled to take the benefits of deceased's immovable and movable properties.
(b) To cancel the documents if any registered or un-registered relating to the sale, transfer, mortgage of the property No,72/73, Soldier Bazar No,1, measuring 400 sq. Yards and Survey No,383, Plot No,115, Deh. Dukh, Malir, measuring 680 sq. Yards for the debts and securities of deceased Mst.
Nazra Begum, all such transaction and transfer of accounts held by the defendants Nos.1 and 2 with the defendants Nos.3 to 5 are liable to be cancelled and without any legal consequences and the defendants Nos.1 and 2 are liable to account for the same.
(c) To appoint the receiver for realizing the rents of building No,72/73, Soldier Bazar No,1, Karachi, and Survey No,383, Plot No,115, Deh Dukh, Malir, measuring 680 sq. Yards for the distribution of the property amongst the legal heirs and for its partition in accordance to the Mohammadan Law.
(d) To restrain the defendants Nos.1 and 2 from further alienating, conveying, renting out, transferring, mortgaging or disposing of and or handing over the possession or part of it and the debts and securities and letting out any flat of the above property and/or collecting rents and profits thereof left behind by late Mst. Nazra Begum in any manner.
(e) To direct the defendants Nos.1 and 2 to provide the accounts from March, 1977, the date of death of deceased father and after the death of deceased mother, i,e, 19-5-2002, and up to date.
' To direct the defendants Nos.3 to 5 to submit the statement/details of account, debts and securities left behind by the deceased Mst. Nazra Begum and/or any transaction and transfer of account details made during and after the life time of the above deceased in this Honourable Court.
(f) Cost of the suit.
(g) Any other relief or reliefs may deem fit and proper under the circumstances of the case.
2. Brief facts of the plaintiffs' case are that the plaintiff is son of late Hassan Khan, who died at Karachi on 18-10-1977 leaving behind the plaintiff and the defendants Nos.1 and 2 and another daughter Mst. Hajra who has since expired in the year, 1982 as his sole and surviving legal heirs. The plaintiff further pleaded that their mother namely Mst. Nazra Begum had also died in Karachi on 19- 5-2002 at the age of 95 years. According to the plaintiff the deceased mother of the plaintiff and defendants Nos. 1 and 2 left behind the following next of kin:--- S.No, Name of Legal heir Relationship with deceased
1. Amjad Khan Yousuf Zai Son
2. Mst. Rashida Shahida Daughter
3. Arshad Khan Son
4. Arshad Khan Son
5. Late Heir deceased daughter Mst. Hajra BegumGrand son
(i) Shaikh Waseem Grand son
(ii) Shameen Grand son
(iii) Tahir Grand son
(iv) Nasir Grand son
(v) Tani Grand son
(vi) Anis Grand son
(vii) Nafees Grand son
(viii) Naseem Grand son
(ix) Shahid Grand son
3. The plaintiff has pleaded that since the above are the only legal heirs of Mst. Nazra Begum and since Mst. Hajra Begum, daughter of Mst. Nazra Begum, had expired and as such the share of the deceased mother has devolved upon the legal heirs of deceased Mst. Hajra Begum. According to the plaintiff the deceased mother in her life time was holding Property bearing Survey No,72/73, Old Survey No,H-6/256 and H-6/139, Soldier Bazaar No,1, Karachi, and was operating a Bank account in the National Bank of Pakistan, Garden Branch, and Habib Bank Limited, Soldier Bazaar, and was having T.D.R. In her favour with the defendants Nos.3 to 5, who have been impleaded as they maintained the accounts of the deceased Nazra Begum.
4. According to the plaintiff, the defendant's with mala fide intention and ulterior motives during the lifetime of deceased mother Mst. Nazra Begum had opened a joint account fraudulently and transferred the T.D.R. From Habib Bank Limited Soldier Bazaar' Branch to National Saving Centre, Soldier Bazaar Branch. Above act of the defendants was based on fraud and mala fide to deprive the plaintiff and other legal heirs in collusion with defendants Nos.3 to 5. The plaintiff further pleaded that he made all his best efforts to obtain the details of account from the Habib Bank Limited and saving certificates which were purchased in the name of deceased mother from National Saving Centre, Soldier Bazaar Branch, Karachi, said to have an account in Habib Bank Limited, Soldier Bazaar Branch, Karachi, the account number was not known to the plaintiff and as such the plaintiff sent a legal notice to the Manager, Habib Bank, defendant No,3, with request to provide particulars of the account maintained in the name of Mst. Nazra Begum and the transactions made in that regard from inception of the account opening but the above said defendant refused to furnish details and transaction of the account of the deceased, therefore, the plaintiff could not ascertain the amount lying in the deceased's account and or transferred to any other branch by the defendant in collusion with the Bank and deprived the plaintiff for obtaining the account and as such the balance amount and that of T.D.Rs, are not known to the plaintiff. The plaintiff further pleaded that the defendant fraudulently and malafidely has occupied the constructive possession of Plot No,72/73. Soldier Bazaar No,1, Karachi, with construction standing thereon and are in possession of the same illegally. According to him the said property is admeasuring 400 sq. Yards consists of ground plus five floors having 13 flats on rent and a big workshop on the ground floor. The record of the above property reveals that the mutation in the record of rights of city of Karachi was made in the name of Mst. Nazra Begum, the deceased mother of the plaintiff and others, therefore, the plaintiff is entitled to the respective legal share according to law of their deceased mother of the immovable properties Nos.72/73, Soldier Bazaar No,1, and Survey No,383, Plot No,115, Deh. Digh Malir, measuring 680 sq. Yards and debts and assets left behind. The plaintiff further pleaded that forged documents prepared by the defendant No,2 in respect of immovable properties, mentioned above, and manipulation in the Bank accounts, withdrawal of amounts and subsequently transferring to the personal accounts of defendants Nos.1 and 2, all such transactions are illegal and plaintiff and other legal heirs are entitled to their respective shares from the above mentioned properties. He further pleaded that the rents of Property No,72/73, Soldier Bazaar No,1 have been recovered by defendants Nos.1 and 2 from the above mentioned 13 flats which are occupied by the tenants and one workshop at the ground floor which, is strictly occupied by defendants Nos.1 and 2. The plaintiff and other legal heirs are also entitled for rents of the said building according to their respective shares. It is further pleaded by the plaintiff that the deceased mother Mst. Nazra Begum was operating account in National Bank of Pakistan, Garden Branch, of which details are not available to the plaintiff and unless the accounts are made available, the plaintiff is unable to mention details of account left by the deceased mother. The plaintiff further pleaded that the defendants by playing fraud and manipulation forged the declaration of confirmation of oral gift dated 18-2-1989 made by deceased Mst. Nazra Begum widow of Hassan Khan in favour of Ahsan Khan son of late Hassan Khan for property bearing No,72-73, Sheet No,SOL-B/1, Soldier Bazaar Quarters, measuring 162 sq.
Yards, and declaration of confirmation of oral gift dated 2-3-1989 by deceased mother Mst. Nazra Begum in favour of Ahsan Khan son of Late Hassan Khan for Property bearing No,1/5 Survey No,383, measuring 680 sq. Yards situated in Deh Digh, Tapo Malir, Karachi East. The above acts of the defendants gave cause to the plaintiff to file the present suit.
5. The defendants Nos.1 and 2 filed their respective written statements raising the preliminary objections and so also refuted the allegations levelled in the plaint and prayed for dismissal of the suit with cost under section 35-A, C.P.C. Defendants Nos.3 and 4 i,e, Manager Habib Bank Limited, soldier Bazaar Branch, Karachi, and Manager/Office Incharge, National Saving Centre, Soldier Bazaar Branch, have also filed their respective written statements.
6. Out of the pleadings of the parties, the Court settled the following issues:---
(1) Whether the suit is maintainable in law?
(2) Whether deceased Mst. Nazra Begum has left the suit properties or has gifted the suit properties to defendant No,2 during her life time?
(3) Whether plaintiff No,1 is entitled for his respective share in respect of suit Property Survey No,72/73, Soldier Bazaar No,1, Karachi, and Survey No,383, Plot No,115, Deh Dig, Malir, measuring 680 sq. Yards and for the debts and securities left behind deceased Mst. Nazra Begum?
(4) Whether defendants Nos.1 and 2 are ostensible owners/ Benamidars, are not entitled for the entire properties left behind Mst. Nazra Begum?
(5) Whether the oral gift dated 18-2-1989, executed by deceased Mst. Nazra Begum, in respect of Survey No,72/73, Sheet No,SOL-B/1. Soldier Bazaar Quarter, measuring 162 sq. Yards in favour of defendant No,2, is liable to be cancelled?
(6) Whether the declaration of confirmation of Oral Gift dated 2-3-1989 by deceased Mst. Nazra Begum in favour of defendant No,2 for suit premises 1/5, Survey No,383, measuring 680 sq. Yards, situated in Deh. Dig, Tapo Malir, Karachi, is liable to be cancelled?
(7) What should the decree be?
7. In support of his claim the plaintiff has filed affidavit-in- evidence of Raheel Amjad Khan son of Amjad Khan Yousuf Zai, being his son and attorney who during his examination-in-chief has produced power of attorney as Exh.P/2, death certificate of Hassan Khan as Exh.P/3, attested copy of application for purchase of defence saving certificates/special saving certificates as Exhs.P/4 to P/9 respectively, legal notice dated 1-6-2002 addressed to the defendants Nos.3 to 5 as Exh.P/10, extract from the property register in the name of deceased Nazra Begum as Exh.P/11 and P/12, copy of declaration of confirmation of oral gift dated 2-3-1989 in respect of Plot No,1/5 Survey No,383 measuring 680 sq. Yards situated in Deh. Digh Karachi and declaration of gift dated 18-2-1989 pertaining to property bearing No,73, Sheet No,SOL-B/1, Soldier Bazaar Quarters, Karachi, executed by deceased Nazra Begum in favour of defendants Nos.1 and 2 as Exhs.P/13 and P/14. The attorney of the plaintiff has also filed original counter foil of challan as Exh.P/15, triplicate copy of challan as Exh.P/16 and receipts Exhs.P/17 and P/18. He has also produced additional copies of the Bank accounts and statements against which objections were raised, therefore, the same were kept on record as X/1 to X/10. Learned counsel for the plaintiff thereafter closed the plaintiff's side of evidence.
9. The defendant No,1 filed his affidavit-in-evidence as Exh.D/1 and defendant No,2 as Exh.D/3.
Defendant No,2 produced original declaration of confirmation of oral gift dated 18-2-1989 as Exh.P/4, letter dated 4-2-2002 issued by Assistant Director District Officer Revenue Land, City District Government Karachi, in .Respect of mutation of House/Plot Nos.72 and 73, situated at SOL-B-1, soldier Bazaar, Karachi as Exh.D/5 and D/6, original declaration of confirmation of oral gift, dated 2- 3-1989 pertaining to Plot No,1/5, Survey No,383, measuring 680 sq. Yards situated in Deh. Digh, Karachi, as Exh.D/7. Thereafter the defendants Nos.1 and 2 closed their side. Defendants Nos.3 to 5, however, did not lead any evidence.
10. The entire controversy revolves around declaration of oral gift made by deceased Nazra Begum in respect of Property No,72-73, Sheet No,SOL-B/1, soldier Bazaar Quarters, measuring 162 sq. Yards in favour of defendant No,2 and oral gift dated 2-3-1989 for property being premises No,1/5 Survey No,383, measuring 680sq. Yards situated in Deh. Digh, Tapo Malir, Karachi, in favour of defendant No,2. Besides, the plaintiff has also claimed that the accounts were maintained/operated by the defendant along with deceased mother fraudulently. Therefore, my findings on the above issues shall be as under. However, I propose to discuss Issues Nos.5 and 6 first since both the issues arising out of the legal plea interlink each other that whether deceased Mst. Nazra Begum could execute any oral gift in favour of defendant No,2 in respect of the above properties. My findings on the above issues with reasons are as under:--- Issues Nos.5 and 6 ' These issues have been framed from the pleadings of the plaintiff, therefore, burden lies upon him to prove the same. The plaintiff has pleaded and deposed that the parties are Ahmedi Religion therefore provisions of Mohammedan Law are not applicable to the facts of the present case and thus the oral gift which could be made under the Mohammedan Law shall not be applicable to the Ahmedi Religion. The above fact that parties including deceased Nazra Begum are Ahmedi has not been denied by the defendants Nos.1 and 2.
' In such circumstances, the members of Qadiani faith who have been declared to be non-Muslims could not be governed by the Muslim Personal Law as per Article 260(3) of the Constitution of Islamic Republic of Pakistan, 1973. The plaintiff has relied upon the case-law reported in 1998 SCM R 816 (Mst. Farida Malik v. Dr. Khalida Malik) wherein it has been held by their lordships of the Supreme Court in paragraph 13 of the judgment which is reproduced as under:--- "Having given serious consideration to the respective submissions, we find that the assumption of Raja M. Afsar learned counsel for the appellants in Civil Appeal .No,59-Q of 1994 that parties agreed that disposition of properties is to be governed by the rules of Muslim Personal Law, is incorrect as the same is contrary to record. Even the finding recorded in the impugned judgment on this question by learned Judges of the High Court is that "Muslim Law had no application at the time when the agreement to refer the matter to Arbitration was executed". The position that the members of the Qadianis faith having- been declared to be non-Muslims by the Constitution under Article 260, the plea that they are governed by the Personal Law of the Muslims cannot be accepted."
'Relying the above case-law and the legal position that the parties professed and belong to Qadiani faith, the Muslim Personal Law cannot be accepted while considering the above mentioned oral gift executed by deceased Nazra Begum in favour of defendant No,2. It is the settled principle of law that the Muslims can gift the property under the Muslim Personal Law. Since the declaration of oral gifts made by Mst. Nazra Begum who is admittedly belong to Qadiani faith in favour of defendant No,2 who is also from the same faith, therefore, the very documents executed by Mst. Nazra Begum in favour of defendant No,2 are void and illegal, therefore, the execution of the above said documents are hereby declared being illegal. Since I have held that above documents have illegally been executed under, Muslim Personal Law, therefore, the same are liable to be cancelled. As such, the issues Nos.5 and 6 are answered in affirmative.
Issue No,1 ' This Issue has been framed from the pleadings of the defendant and according to him the suit is not maintainable on the ground that the plaintiff has not validly executed Power of Attorney in favour of Raheel Amjad Khan, therefore, the suit filed by him is hit by -Order VI, C.P.C. Which provision speaks about the proper verification of plaint. The defendants have also taken the plea that the suit is not maintainable as there is no mention in the body of the plaint that for what property the power is given to the attorney. Besides the defendants have attacked the maintainability of the suit on the point of limitation. It is pleaded by the defendants that the suit is barred by limitation.
' I have gone through the contents of power of attorney which specifically speak that the power of attorney is given by the plaintiff to his son Raheel Amjad Khan for filing the suit though it is not mentioned that for what property but presumption is that the same is given for the properties for which this suit has been filed. However, the same is minor omission that can be overlooked.
' As regards the point of limitation when the very document, which is apparently void or illegally executed then no limitation runs for filing of the suit seeking declaration/cancellation of such document. I have already held that the oral gifts executed by Mst. Nazra Begum were F void and illegal, therefore, I am of the considered view that in such case the limitation shall not be applicable to the documents, which are void and the instant suit is not hit by the law of Limitation. Hence the issue is answered in affirmative.
' Accordingly, I am of the considered view that the suit is very much maintainable in law and within the ambit of section 42 of the Specific Relief Act.
Issue No,2 ' From both the sides it is admitted that deceased Nazra Begum had left the suit properties and that she gifted the same to the defendant No,2 during her life time. As held by me that the gifts were made illegally and are void in the eyes of law, therefore, this issue is answered that the deceased Mst. Nazra Begum left suit property and the gifts made by her in favour of defendant No,2 was illegal and void.
Issue No,3 ' In view of my findings on Issues Nos.1, 2, 5, 6, the plaintiff and all other legal heirs of deceased Mst.
Nazra Begum are entitled to their respective shares in the property bearing Survey No,72/73, Soldier Bazaar No,1, Karachi, and Survey No,383, Plot No,115, Deh. Digh, Malir, measuring 680 sq. Yards and so also for the debts and securities left by the deceased Mst. Nazra Begum. The above contention finds support from the fact that the defendants in cross-examination have admitted that their mother Mst. Nazra Begum was a household lady and had no source of income, therefore, the immovable properties purchased in her name in the life time of her husband presumed to have been purchased by her late husband in her name and were Benami transactions. The same is the case in respect of debts and securities. Consequently the issue is answered in affirmative.
Issue No,4 ' In view of my finding on Issues Nos.1, 2, 3, 5 and 6 the defendants Nos.1 and 2 are not entitled for the entire property left behind by deceased Mst. Nazra Begum, they are entitled to their respective shares according to their faith. Thus the issue is answered in affirmative. Issue No,7 ' In view of my findings on issues Nos.1, 2, 3 4, 5 and 6, the suit is hereby decreed as prayed.