1. ' SALMAN TALIBUDDIN, J.---1. Learned counsel for the plaintiff has not been able to satisfy me as to the relationship if any of the person named in F.I.R. No,203/06 dated 19-9-2006 to the plaintiff or how the investigation that was being conducted by the police pursuant to such F.I.R. Had caused any prejudice to the plaintiff. Learned counsel for the defendant submits that since the date of the order dated 17-10-2006 all investigation pursuant to F.I.R. Dated 19-9-2006 has stopped and further that this suit is entirely misconceived because the name of the plaintiff does not appear in the F.I.R.
2. Which only names one Sajjid. In view of the foregoing this application is entirely misconceived. The order dated 17-10-2006 is recalled and CMA No,7801 of 2006 is dismissed.
2. This is defendant's application dated 10-2-2007 under Order VII, Rule 11, C.P.C. Seeking rejection of the plaint on the ground that the suit is hit by section 56(e) of the Specific Relief Act 1877. In support of this application learned counsel has submitted that the F.I.R. Registered by the defendant was against one Sajjid and not against the plaintiff and further that the said Sajjid has no relationship at all with the plaintiff nor is the plaintiff named in the F.I.R. Learned counsel submits that even otherwise no cause of action has been disclosed in the plaint against the defendant. Learned counsel for the plaintiff submits that the plaintiff has not filed a counter affidavit to this application in view of the fact that a copy of this application or even the written statement has not been provided to him by the learned counsel for the defendant. In this regard the learned counsel for the plaintiff has drawn my attention to the order dated 11-2-2008 and 7-4-2008 and states that despite these orders, the learned counsel for the defendant has not provided him a copy of this application and written statement. I am afraid that this submission of the learned counsel is wholly without merit and cannot be taken into consideration for the failure to file the counter affidavit to this application which has been pending since 10-2-2007 nothing in the orders passed in the suit prevented the learned counsel for the plaintiff from obtaining a copy of this application and of the written statement from the Court's file and it is wholly unreasonable to appear today and submit that he is unable to argue this application on the ground that he has not been provided with a copy of the relevant pleadings.
3. ' In view of the foregoing and the fact that the criminal proceedings are against one Sajjid who has no relationship with the plaintiff, this application is allowed and the plaint is rejected under Order VII, rule 11, C.P.C. As no cause of action has been disclosed against the defendant.
4. ' In so far as the investigation pursuant to the F.I.R. Referred to above are concerned, it is pointed out that the order dated 17-10-2006 did not, and indeed could not have had the effect of staying any investigation. Notwithstanding, that order is no more in operation and there is no reason why the investigation should not resume and be concluded in accordance law.
5. 2010 CLC 1287 [Karachi] Ms. Rukhsana Ahmed, J Mst. HUSSAN BANO through Legal Representative and others---Appellants versus Kazi MUHAMMAD USMAN and others-Respondents IInd Appeal No, 8 of 2006, decided on 3rd May, 2010.
6. Islamic Law--- ----Inheritance---Widow---Share of---Entitlement---Plaintiff filed suit for declaration on the ground that her husband was owner of the disputed plot and construction over the said plot was jointly made by them and she had spent about Rs,200,000 over the construction---Plaintiff further contended that in the year 1985, her husband gave 50% share in the disputed property which was accepted by her and after death of her husband she was in possession of entire property and claimed a share of 62-1/2% in the property--During pendency of suit the plaintiff died and she was represented by her legal heirs---Trial Court returned the plaint and required plaintiff to pay court- fee--- Plaintiff withdrew from the prayer of injunction and filed amended plaint---Defendants contested suit on the ground that the plaintiff was divorced by her husband during his life time and possession was forcibly taken by plaintiff---Trial Court decreed the suit of the plaintiff to the extent of share of 12% while dismissed rest of the claim and directed to pay ad valorem court-fee over the value of the suit within thirty days---Appellate Court, on appeal, upheld the judgment of the Trial Court---Validity---Both courts below had erred in deciding the share of plaintiff as widow---Share of widow was 1/4 when there was no child or child of a son and there was evidence on record that applicant was issueless---Plaintiff's legal heirs were entitled for share of 1/4th in the disputed property---High Court allowed the contention about non-payment of court-fee and denied rest of pleas raised by plaintiff with direction to Trial Court to make modification in the judgment and decree with respect to 1/4 share of legal heirs in the disputed property.
7. [pp. 1288, 1289, 1290, 1292, 1293] A, B, C, D, E & F Jhamat Jethanand for Appellants. Aijaz Ali Hakro for Respondents.
8. Dates of hearing : 22nd March and 12th April, 2010.
9. ' MS. RUKHSANA AHMED, J.---Through the present IInd Appeal the appellants have challenged the judgment and decree dated 24-5-2006 and 25-5-2006, passed by learned IIIrd Additional District Judge, Hyderabad, whereby learned Appellate Judge has maintained h part of Judgment and decree dated 7-12-2001, passed by learned IIIrd Senior Civil Judge, Hyderabad in F.C. Suit No,316 of 1988.
10. ' Briefly the facts of the suit filed by the appellant/plaintiff Mst. Hussan Bano was for declaration on 8-8-1988, before the IIIrd Senior Civil Judge, Hyderabad are that an immovable property being plot bearing City Survey No,F/1378 admeasuring 118-5 sq. Yards, Kazi Abdul Qayoom Road, Hyderabad consisting on four rooms and amenities on ground floor and three rooms and amenities on first floor was owned and possessed by Late Hafizullah son of Kazi Muhammad Sadik the appellant plaintiff's husband and that the construction of house over the said plot was made front the joint income of appellant/plaintiff and Kazi Hafizullah and the plaintiff spent about Rs,200,000 (Rupees two lacs only) over the construction; that on 1-2-1985 said Kazi Hafizullah gave 0-50 paisa share in the suit property in gift with possession to the appellant/plaintiff, which was accepted by her; that Kazi Hafizullah expired on 22-3-1987 leaving behind his legal representatives the appellant/plaintiff Mst. Husan Bano, Kazi Muhammad Usman and Mst. Asmat the Respondents Nos.1 and 2/Defendants Nos.1 and 2 that after death of said Kazi Hafizullah the appellant plaintiff was in possession the entire suit house and on 1-7-1987 defendants threatened her to eject from suit property forcibly, therefore, the appellant/plaintiff filed a suit No,90/87 in the Court of IV Extra Joint Civil Judge, Hyderabad, but the plaint of the same was returned to her, which was presented before the Court of IIIrd Senior Civil Judge, Hyderabad wherein the appellant/plaintiff was required to pay the court fees, therefore, the appellant/plaintiff withdrew from the prayer of injunction in the said case; that the trial Court held the plaint under valued and returned the same, then appellant/plaintiff revalued the suit and filed the suit with following prayers:--
(a) Declaration that plaintiff has 62-1/2 paisas share in the suit property and the defendants have no authority to interfere with the possession and the share of the plaintiff in the suit property.
(b) Costs of the suit be borne by the defendant.
(c) Any other relief this Honorable Court deems fit.
11. ' The defendant No,1 respondent No,1 filed his written statement, while the defendant No,2/respondent No,2 had adopted the same written statement. In the written statement the defendants/respondents had denied the claim of appellant/plaintiff with further assertion that she was divorced by Hafizullah during his life time; that the suit was barred and declaration deed was fraudulently obtained and the possession of the suit house in which the articles were lying was forcibly taken by the appellant/plaintiff, therefore, they had prayed for dismissal of the suit.
12. ' From the pleadings of the parties following issues were settled by the trial Court:--
(1) Whether the suit is not maintainable?
(2) Whether the suit is under valued'?
(3) Whether the suit is bad for non-joinder of necessary parties?
(4) Whether the plaintiff has no cause of action?
(5) Whether this Court has no jurisdiction to entertain and adjudicate upon the matter in the present circumstances?
(6) Whether plaintiff was divorced by late Qazi Hafizullah?
(7) Whether the building on the plot was constructed from the joint income of plaintiff and Late Qazi Hafizullah?
(8) Whether Late Qazi Hafizullah gave to the plaintiff 0-50 paisas share in the suit property by way of legal and lawful gift?
(9) Whether gift by late Qazi Hafizullah is fraudulent, forged obtained under coercion undue influence?
(10) Whether gift was made during sickness and whether at the time of gift late Qazi Hafizullah was not in his senses?
(11) Whether the plaintiff after death of the late Qazi Hafizullah forcibly took away and misappropriates all the belonging left by late Qazi Hafizullah including T.V., Refrigerator, furniture, other modern machinery equipments, crockery, paintings, Almirahs, bonds etc?
(12) What should be the decree?
13. ' After settlement of issues on 4-8-1994, the appellant/plaintiff Mst. Hussan Bano examined herself at Ex: 59 and she produced declaration deed and other documents.
14. ' It is pertinent to mention here that during pendency of suit in the trial Court the appellant/plaintiff Mst. Hussan Bano was died, therefore her legal representatives the appellants No,(i)(ii)(iii)/plaintiffs No,(i)(ii)(iii) were joined as plaintiffs in the suit. After the death of Mst. Hussan Bano the plaintiffs failed to adduce the evidence, therefore, the side of plaintiff was closed by order dated 2-10-1997.
15. ' The respondent/defendant Muhammad Usman Qazi examined himself, D.Ws. Saifuddin Qazi and Haji Khan.
16. ' There after the learned trial Court decreed the suit of the plaintiffs to the extent of 0-12 paisa share in the suit property, while rest plea of the share of 50 paisa was dismissed, with further order that the plaintiff is liable to pay ad valorem Court Fee Stamp over the value of Rs,11,25,000 within thirty days and in failure of which suit shall stand dismissed with no order as to costs.
17. ' The appellants/plaintiffs had assailed the judgment and decree passed by trial Court in Civil Appeal No,320 of 2002. But the learned appellate Court had maintained the judgment of trial Court vide Judgment dated 24-05-2006: hence the present IInd Appeal.
18. ' Heard the learned counsel for the appellants as well as respondent and perused the evidence lead by the parties and the material available on record.
19. ' It is the contention of the appellant that learned Appellate Court has miserably failed to frame points for determination and has exercised jurisdiction not vested in it, while deciding the appeal without taking into consideration the evidence on record as such the decision is against the provisions of Order XLI, rule 11,.C.P.C. And is liable to be set aside.
20. ' The very execution of declaration of gift (Ex.60) was admitted and proved by the appellant but the Appellate Court committed illegality in framing point No,1 and applying the provisions as held 129 and 79 of Qanun-e-Shahadat Order while deciding this point in its erroneous interpretation which arises from misreading and non-reading of the pleadings and evidence on record and is liable to be reversed.
21. ' He has further contended that learned trial Court committed illegality while deciding issue No,2 "whether the suit is under valued" on the basis of valuation given by the appellant in the earlier suit which was filed for declaration and injunction but of which the plaint was returned. It is contended that the present suit was only declared at value of Rs, 3,00,000 and the decision of the trial Court of fixation of value is without any evidence on record and is liable to be set aside. He further contended that the Appellate Court had the jurisdiction to reverse the decision of the trial Court but failed to exercise the same and when the Appellate Court ordered for payment of court fees the same was paid by the appellant as the appellant had withdrawn from the prayer of injunction and the suit was only for declaration and the trial Court had illegally held that injunction had also ueen prayed for in the said prayer during demonstration of Skillmanship and the Court had committed illegality in requiring the appellant to pay the court-fee.
22. ' Mst. Mariyam was one of the L.Rs, of the deceased as late Hafizullah's sister died at the time of institution of the suit and nowhere it was claimed that she had left behind any legal representatives. The trial Court had unnecessarily framed issue No,3 "whether the suit is bad for nonjoinder of necessary party?" on the basis of frivolous pleas raised by the respondent/defendant and it had decided the same without any material on record. Even this issue should have been reversed by the Appellate Court which it did not adverting to the same point.
23. ' Mst. Asmat sister of deceased Qazi Hafizultah had neither filed the written statement nor she appeared in the witness box and while Qazi Muhammad Usman the brother of the deceased had filed a false and frivolous written statement. As per decision of the trial Court the evidence of the respondents was not trustworthy and did not inspire confidence as such the trial Court ought to have rejected the entire defence evidence and the issues and decreed the suit.
24. ' That the evidence of the appellant was deemed consistent trustworthy and inspired confidence not being shattered in any manner further it had been proved that the appellant had spent from her own amount resources on of Rs, 2,00,000 over the construction of the immovable properties house in dispute. The decision on issue No,7 as framed by the trial Court "whether the building on the plot was constructed from the joint income of the plaintiff and late Qazi Hafizullah?" is against evidence on record and is liable to be reversed. While discussing issue No:9 "whether gift by late Qazi Hafizullah is fraudulent forged obtained under coercion undue influence?" the trial Court went on to decide issues Nos. 8 and 10 against the appellant which were "whether the deceased gave to the plaintiff 0.50 paisa share in the suit property by way of legal and lawful gift" and issue No,10 was "whether gift was made during sickness and whether at that time of gift late Hafizullah not in his senses?"
25. ' It is the contention of the learned counsel that learned trial Court had committed grave illegality in not adverting to the said point without applicatir , of its judicious mind. In the present case as per law of Muslim Gift all the three ingredients viz. Offer, acceptance and delivery of possession were proved. The execution of the gift was admitted. The decision of the trial Court on issue No,8 and of the learned Appellate Court on point No,1 "whether Qazi Hafizullah executed gift in presence of witnesses in favour of Mst. Hussan Bano and same is valid gift" are against the oral and documentary evidence placed on record and the advocate has prayed that the same is liable to be set aside. It is admitted fact that the respondents were not sharers and late Qazi Hafizullah was the husband of the appellant. The decision of both the parties on the said property in their respective portions did not in any manner affect the validity of the gift of 0.50 paisa share in the suit property as such the decision of the trial Court on point of validity of gift is again the result of misreading and non-reading of the pleadings. The gift was executed on 1-2-1985 and the donor Qazi Hafizullah died after 2 years one month and 21 days after the execution of the said gift. The deceased was a practicing advocate and was practicing till his demise. The burden was on the respondents to prove the issue No,10 which they failed to discharge. There was no evidence on record to show the deceased to be sick and not in senses on the particular date i,e, 1-2-1985 as such the trial Court had no basis or evidence to have held that the gift was made during sickness or without senses by the deceased and the appellate court maintained this decision of the trial Court without discussing or looking into the pleadings and evidence led on the said issue.
26. ' In view of the impugned order on issues Nos.1, 4, 5, 6, 9 and 11 which were maintained by the learned appellate court in favour of the appellant in of earnestly the trial Court should have decreed the suit in favour of the appellant. The next illegality which was committed by the trial Court by passing the judgment was in granting the decree upto 0.12 paisa share instead of 0.25 widow share of the widow of late Qazi Hafizullah the appellant had not left behind any child as such this decision should have been modified by the trial Court which it pathetically failed and further the trial Court relied upon certain ruling while passing the judgment which were not applicable to the present case and it ignored the decisions which were provided by the appellant counsel which were applicable to the facts of the case, as such learned counsel has prayed that the judgments and decree passed by learned Lower Courts being passed on conjectures, surmises and misreading and non-reading of the pleadings and evidence on record and liable to be reversed.
27. ' On the other hand, Mr. Aijaz Ali Hakro, learned counsel for the respondents has argued that there are concurrent findings of the two courts below and the same cannot be called in question through a present appeal unless it is shown that the two courts below either had no jurisdiction or failed to exercise the jurisdiction vested to them or committed some illegality and material irregularity resulting in gross injustice while deciding the suit and the appeal, therefore, he has supported the impugned judgments.
28. ' After hearing the counsel for the parties and perusal of the material available on record, it appears that the courts below have erred in deciding the important point in respect of share of the applicant plaintiff in the suit property as a widow in accordance with principles of Muhammadan Law, while on other points/pleas the learned counsel for the parties have not been able to point out any illegality, irregularity committed by the courts below, therefore, in my humble view that the courts below have rightly decided the rest pleas/points raised before them, hence this Court can not interfere with the concurrent findings of Courts below.
29. ' As far as the share of widow is concerned, it may be observed that according to principles of Muhammadan Law as well as Islamic Law of Inheritance, the share of widow is 1/4 when there is no child or child of a son and there is evidence come on record that the applicant was issueless, therefore, in my considered view the applicant's L.Rs, are entitled for share of 1/4 in the disputed property. Consequently, the IInd appeal is allowed with modification to the extent that the legal heires of late Mst. Hussan Bano are entitled to inherit 1/4 share in the suit property of the late Hafizullah in accordance with law and the trial Court is directed to make the modification in the judgment and decree in accordance with this judgment. So far the court-fee is concerned, as the appellant had reiterated from pressing the injunction application as such this contention that court fee was not liable to be enforced holds grounds and is disposed of accordingly.