1. NADEEM AZHAR SIDDIQI, J. --- The plaintiff has filed this suit for partition and distribution of assets of late Mst. Tazeen Yazdan who died intestate on 16.8.2003 leaving behind the parties to the suit as her surviving legal heirs and the following properties:- Properties of DeceasedStatus Approx. V alue of Partition
(a) Plot No. 121-C, Block 2, P.E.C.H.S., Karachi, measuring 300 Sq. Yds. With G + building thereon.Joint Property , but after the death of Late Syed Shahamat Ali, Late Tazeen Yazdan inherited the remaining 50% share and become 100% owner .Rs. 50 Lacs
(b) Plot No. R-316, Block-14, Scheme No. 16, F .B. Area, Karachi, measuring 120 Sq. Yds. With single storeySole owner Late Mst. Tazeen Yazdan.Rs. 10 Lacs thereon.
(c) Plot No. A-193, in Gulshan-e- Ghazian, Ex- Serivcemen Cooperative Society Scheme- 33, measuring 240 Sq.
2. Yds. Open.Sole .Owner Late Mst. Tazeen Yazdan.Rs.90,000.00
(d) Special Saving Certificate 19-11-2001 -Rs 100,000/- Faisal & Tazeen = Joint Rs.50,000.00 19-11-2001 -Rs 100,000/- Faisal & Tazeen =Joint Rs.50.000.00 20-05-2002 -Rs 50,000/- Tazeen & Faisal = Joint Rs.25,000.00 20-05-2002 -Rs 50,000/- Tazeen & Faisal = Joint Rs.25,000.00 19-05-2003 -Rs 1,00,000/- Tazeen & Faisal = Joint Rs.50,000.00 19-05-2003 -Rs 50,000/- Tanzeen Sole --Rs.50,000.00 19-05-2003 -Rs 1,00,000/- Tanzeen Sole -- Rs.1,00,000/- Total: 5,50,000/-
(e) Golden Ginee Late Tazeen - Sole Rs. 90,000/- It was pleaded that the plaintiff and defendants are the surviving legal heirs of the deceased and are entitled to their respective shares in the above properties in accordance with Muhammadan Law. The plaintiff is entitled to 1/2 share and the defendants are entitled to 1/4 share each. The plaintiff claims that after the death of deceased he is collecting the rent from the tenants as follows:- Tenant Monthly rent Security Deposits
(a) Mr. Dewan-Solamdar Rs. 6,600/- Rs.10,000/-
(b) Mr. Muhammad Tahir BariRs. 8,453/- Rs. 5,000/-
(c) Mr. Muhammad Saleem ShahzadRs.10,000/- Rs.50,000/-
(d) Mr. Shahzad Samad Rs. 3,700/- Rs.25,000/- Note - Mrs. Huma collected rent of Rs. 6,600/- for the month of December, 2003 from Diwan Skiandar Tenant only.
3. The plaintiff claims that he spent about Rs. 3,43,898/-towards the hospital charges of the deceased. The plaintiff further claims that on 20.12.2003 the defendant No. 2 forcibly entered his house and taken away the following articles and papers:-
(a) Charade Car Reg. No. M-3409 with its Registration book of plaintiff.
(h) Ownership documents pertaining to the plots of Gulshan-e-Ghazian.
(c) Passport of plaintiff, his were and late mother.
(d) Plaintiffs Cheque Book. ,,e) Arms Licence.
(f) Death Certficate of plaintiff's mother.
(g) Bunch of Keys.
(h) Telephone Diary. And bills of telephone, electricity etc.
(i) Car's Registration papers.
(j) And many other important documents.
4. The plaintiff prayed that properties mentioned at Sr. Nos. (a) to. (c) of para 7 of the plaint be sold and sale proceeds may be distributed amongst the parties to the suit. He further prayed that properties mentioned at Sr. Nos. (d). And (e) may be distributed amongst the parties to the suit.
5. The defendants filed their joint written statement The death of deceased, relationship between the parties and the properties left by the deceased was not disputed. The defendants stated that the plaintiff has occupied the first floor of House No. 121-C, Block 2, PECHS, Karachi and the monthly rent of the said premises is. 15,000/- per month which he has no paid to other legal heirs. The defendants alleged that the saving certificates amounting to Rs. 6,00.000/- belonging to the deceased was encashed by the plaintiff. The defendants further alleged that saving certificates amounting to Rs. 12,00,000/- were transferred and encashed by the plaintiff. The defendants claim that all the medical bills were paid by the defendants and possessed the original medical bills. The defendants further claim that Charade Car No. M-3409 was purchased by defendant No. 2 from her on income. The defendants prayed that Nazir may be directed to take over all the properties and distribute same amongst the legal heirs according to their shares.
6. The preliminary decree was passed on 12.4.2004 and the Nazir was directed to take accounts, prepare inventory of the estate and property of the deceased.
7. The parties filed their respective affidavits-in-evidence before the Nazir, were cross-examined and Nazir has submitted his report dated 22.11.2004 and 14.3.2005.
8. The properties left by the deceased which are admitted, are as under:- Properties of deceasedStatus Approx. V alue of Partition
(a) Plot No. 121-C, Block 2, P .E C H S Karachi.
9. Measuring 300 Sq, Yds with G+2 Buildding thereonJoint Property ,but after the death of Late SyedShanamat Ail,Late Tazeen Yazdan inherited the remaining 50% share and become 100% owner . Rs. 50 Lacs
(b) Plot No. R-316, Sole owner Block-14, Scheme No. 16, F.B. Area, Karachi, measuring 120 Sq. Yds. With single storey thereon Sole owner Late Mst. Tazeen Yazdan.Rs. 10 Lacs
(c) Plot No. A-193, in Gulshan-e- Ghazian, Ex- Service men Cooperative Society Scheme- 33, measuring 240 Sq. Yds.
10. Open. Sole owner Late Mst. Tazeen Yazdan Rs.90,000.00
(d) Special Saving Certificate 19-11-2001 - Rs.1,00,000/- Faisal & Tazeen = Joint Rs.50,000.00 19-11-2001 - Rs.1,00,000/- Faisal & Tazeen = Joint Rs.50,000.00 20-05-2002 - Rs.50,000/- Tanzee &Faisal = Joint Rs.25,000.00 20-05-2002 - Rs.50,000/- Tanzee &Faisal = Joint Rs.25,000.00 19-05-2003 - Rs.1,00,000/- Tanzee &Faisal = Joint Rs.50,000.00 19-05-2003 - Rs.50,000/- Tazeen Sole --50,000.00 19-05-2003 - Rs.1,00,000/- Tazeen Sole -- Rs.1,00,000/-
(e) Golden Ginee Ginee Late Tazeen-SoleRs 90,000 The disputes are with regard to following properties:--
(1) Transfer and encashment of saving certificates amounting to Rs. 1,50,000/- by the plaintif f.
(2) Transfer and encashment of saving certificates amounting to Rs. 12,00,000/- by the plaintif f.
(3) Charade Car No. M-3409.
(4) Rent of first floor in occupation of the plaintif f.
11. The dispute between the parties are also with regard to the payment of medical bills of the deceased.
(1) That the disputed saving certificates of Rs. 1,00,000/- and Rs. 50,000/- transferred by the plaintiff in his name is included in the properties left by the deceased and there is no dispute in this regard and the same is part of the properties of the deceased and will be distributed amongst the parties to the suit.
(2) The defendants alleged that the plaintiff has encashed the saving certificates of Rs. 12,00,000/- belonging to the deceased. No convincing evidence has been produced by the defendants to show transfer and encashment of saving certificates except one photocopy of the application made to the National Saving Centre. No witness was called from the National Saving Centre to produce the documents to show the transfer and encashment of the saving certificates. The defendants have failed to prove that the plaintiff got the saving certificates transferred in his name and encashed the same.
(3) From the cross-examination of Mst. Huma Waseem, it appears that the car was also purchased from the funds of the deceased. Otherwise the car was purchased on open letter and there is no documentary proof of purchase of car. This car is also part of the properties of the deceased. The parties have not led any evidence with regard to value of car. The receipt Ex.W shows the value of car was Rs. 1,25,000/- which was taken as the value of car and will be distributed amongst the parties to the suit.
(4) Regarding fixation of rent of the premises in occupation of the plaintiff. I have perused the evidence. No convincing evidence is available on record except the details of rent paying by the tenants of ground floor and second floor. The rent of the ground floor is Rs. 15,150/- and the rent of the second floor is Rs. 10,000/-. Keeping in view the rentals the fair rent of first floor will be Rs.
12. 12,000/- per month payable by the plaintiff to the defendants from September, 2003 till he vacates the premises in his occupation after deducting his share. The defendants are entitled to share the rent which will be deposited by the plaintiff
(5) I have also gone through the evidence of the parties with regard to the medical bilis of the deceased. The production of the photocopies of the medical bills and its duplicates are not sufficient to prove the payment. The evidence of plaintiff and defendant No. 2 do not inspire confidence. It appears that both of them deposed falsely in lust of more money. Basically it is the duty of the plaintiff to take care of his mother and incur necessary expenses. From the evidence, it appears that the income of the plaintiff is Rs. 8,000/-to Rs. 13,000/- and a person of such meager income cannot incur the huge medical expenses of Rs. 3,71,000/- as claimed by the plaintiff. The defendant No. 2 has not produced any document to show her financial status. In view of this, the only evidence which inspire me is the evidence of defendant No. 1. The deceased was a woman of means and her monthly income was more than Rs. 29,000/- and since the deceased was not maintaining any bank account the amount was lying at home and the bills were paid from that amount which belongs to the deceased and the claim of the plaintiff and defendant No. 2 in this regard is rejected.
13. The suit is decreed as prayed in the following terms:--
(a) The Nazir shall take over physical possession of the following properties (subject to rights of tenants) and the same be sold by open public auction and sale proceeds be distributed amongst the parties to the suit in accordance with their shares:--
(i) Plot No. 121-C, Block 2, PECHS, Karachi, measuring 300 Sq. Yds. With G + 2 building thereon.
(ii) Plot No. R-316, Block-14, Scheme No. 16, F.B. Area, Karachi, measuring 120 Sq. Yds. With single storey thereon.
14. (i.e) Plot No. A-193,' in Gulshan-e-Ghazian, Ex- Servicemen Cooperative Society, Scheme-33, measuring 240 Sq. Yds. Open.
15. The plaintiff shall deliver the vacant possession. Of the portion of House No. 121 to the Nazir alongwith the title documents of all the properties mentioned above, (b) The plaintiff is directed to surrender the items mentioned at Serial No. (d) and (e) of para 7 of the plaint with the Nazir who will encashed the same and will distribute the amount amongst the parties to the suit (c). The plaintiff after adjustment of his share shall deposit the rentals which he had received from the tenants i.e.f. September, 2003. Till the taking over the properties by the Nazir. In case the plaintiff fails to deposit the amount with the Nazir the same may be adjusted from his share and be paid to the defendants.
(d) The plaintiff shall deposit the rent of the premises in his occupation @ Rs. 12,000/- per month from September, 2003 till he remains in possession after adjusting his share in the rent. In case the plaintiff fails to deposit the amount the same may be adjusted from his share and be paid to the defendants.
(e) The defendant No. .2 after adjusting her share will deposit the sale proceeds of Charade Car with the Nazir of this Court. On her failure, the Nazir will adjust the same from her share and be paid to the other legal heirs in accordance with their shares. The value of car was determined as Rs.
16. 1,25,000/-.
17. Office is directed to prepare the decree in the above terms .