ZAFAR AHMED RAJPUT, J.---Through this common judgment,. I intend to dispose of both the above numbered suits for declaration, cancellation, permanent injunction, partition, administration rendition of accounts, recovery and mesne profit, filed by the legal heirs of deceased Z.A. Khan.
2. Briefly stated, the facts of the case narrated in both the memos. Of plaints are almost similar.
Deceased Z.A. Khan had married two times. Mst. Mirzago Begum, who has been arrayed as defendant No,1 in both the suits, was the first wife of deceased and Mst. Shamshad Begum, who is the plaintiff No,3 in Suit No,1445/2008 and defendant No,2 in Suit No,92/2010, was the second wife of the deceased.
3. From his first wife (Mst. Mirzago Begum), the deceased had four children, namely, (i) Taj Nabi (son), (ii) Saifullah (son), (iii) Mst. Zeba Yasmeen (daughter) and (iv) Mst. Fatima (daughter). They are the defendants Nos. 2 to 5 in suit No, 1445/2008 and defendants Nos. 3 to 6 in the connected Suit No, 92 of 2010.
From his second wife (Mst. Shamshad Begum) the deceased had three children, namely, (i)
Faizullah Khan (son), (ii) Mst. Yasmeen Khan (daughter) and (iii) Mst. Afshan. Out of them, first two are the plaintiffs Nos. 1 and 2 in Suit No, 1445/ 2008 and defendants Nos. 7 and 8 in the connected Suit No, 92 / 2010 and the third one is the defendant No, 6 in the Suit No, 1445/2008 and the plaintiff in Suit No, 92/2010.
4. Defendant No,10 in Suit No,1445/2008, namely, Tauseef Ahmed Siddiqui had allegedly purchased one of the properties left behind by the said deceased viz. House bearing No,B-83, situated in Block-11, Federal "B" Area, Karachi, collusively from defendants Nos. 1 to 5 in Suit No, 1445/2008.
Remaining defendants in both the suits are the official defendants.
5. Deceased Z. A. Khan died in September, 1974 at Karachi leaving behind him the above mentioned two wives, three sons and four daughters as his only surviving legal heirs. He also left behind him following immoveable properties within the knowledge of the plaintiff in Suit No, 92 of 2010:--
(a) Double Storey House No,B-83, Block-11, Federal "B" Area, Karachi, admeasuring about 400 square yards.
(b) Plot No,390, Sher Shah Kabari Market, Trans Lyari Quarters, Karachi, admeasuring about 5000 square yards.
(c) A house at Tehsil Topi, Post Office Kab Ghani, District Swabi, N.W.F.P.
(d) House No,B-82, Block-11, Federal "B" Area, Karachi.
(e) Shop No,617-A, Gali No,1, Shershah Kabari Market, Karachi.
6. Besides the above facts, the plaintiffs in Suit No,1445/2008 have stated in their plaint that at the time of death of deceased Z. A. Khan, the plaintiff No,3 was residing along with her daughters, having three and one year of age, at the first floor of the house bearing No,B-83, Block-11, F.B. Area, Karachi where the plaintiff No,1 was also born after about three months of the death of Z.A. Khan on 20-12-1974. While, the defendant No,1, who is the first wife/widow of the deceased, was residing at ground floor of the same house along with defendants Nos.2 to 5. The plaintiff No,3, the second wife/widow, belonged to Lahore and at the time of death of the deceased, she was having no relative at Karachi. On the contrary, a number of relatives of the first wife/widow were residing in the surroundings and she (defendant No,1) was having complete control over the income and properties left behind by deceased Z. A. Khan. As such, the defendant No,4 compelled her to leave the house by creating miserable circumstances to achieve her ulterior motives, hence, she went back to Lahore in the year 1976 along with her minor children i,e, plaintiffs Nos.1 and 2 and defendant No,6. It is further averred in the memo of plaint that defendants Nos.1 to 5 have deprived the plaintiffs from their rights to enjoy the possession, income and share in the properties left by the deceased and they spent their whole lives in a rented premises in hand to mount condition and they met their expenses through stitching the cloths. Quite the opposite, the defendants Nos.1 to 5 enjoyed throughout lavish lives by utilizing rental income, which they used to receive from tenants of the property, situated in Sher Shah. Besides, they enjoyed possession of the entire property of F.B.
Area. It is further averred in the memo of plaint that whenever the plaintiffs demanded their share in rental income from the defendants Nos.1 to 5, they always kept them on false hopes on one or the other pretext, therefore, the plaintiffs made an enquiry and thereby discovered that the defendants Nos.1 to 5 have transferred the property of Sher Shah in their own names by concealing the names and relationship of the plaintiffs with the deceased and the defendant No,6 joined her hands with the defendants Nos.1 to 5 and now they are making efforts to sell out other properties.
Therefore, the plaintiffs claim their share in the immovable properties and in the income generated from the properties left by the deceased. Hence, the plaintiffs of Suit No, 1445/2008 have filed the said suit with the following prayers:--
(a) To declare that the plaintiffs are entitled for their proportionate shares in all the properties and income in the properties left by the deceased particularly in bearing Nos:-
(i) Double Storeyed House No,B-83, Block-11, F.B. Area, Karachi, measuring 400 square yards,
(ii) Plot No,390, Sher Shah Kabari Market, Trans Lyari Quarters, Karachi, measuring 5000 square yards.
(iii) House at Tehsil Topi, Post Office Kab Ghani, District Swabi, NWFP, measuring 1000 square yards.
(b) To declared that the 'Plot No, 390, Sher Shah Kabari Market, Trans Lyari Quarters, Karachi, measuring 500 square yards, has been unlawfully transferred by the defendants Nos.] to 5 in their names vide lease deed dated 2-12-1998, issued by the defendant No,9 by depriving off the rights of plaintiffs by concealing their names and relationship with the deceased Z. A. Khan and the defendants Nos.1 to 5 be directed to produce before the Court and pass an order for cancellation of the same and direct the defendants to enter the names of all the legal heirs as co-owners in their record and in the title documents.
(c) To direct the defendants Nos. 1 to 5 to pay/distribute the share of the properties and income in all the properties left by the deceased Z. A. Khan in the alternative the Nazir of this Court or administrator may be please be appointed directing to, ascertain the properties left by the deceased Z. A. Khan and to auction the properties and to distribute the legal shares and share in the income among the parties in accordance with law of land and law of Sharia.
(d) Restrain the defendants, their men, servants, agents, subordinates and any other person or persons on their behalf from selling, alienating in any manner or creating third party interest directly or indirectly and from taking any adverse action against the plaintiffs that may be prejudicial to the right of the plaintiffs in respect of properties left by the deceased Z. A. Khan bearing Nos. Double Storeyed House No,B-83, Block-11, F.B. Area, Karachi, measuring 400 square yards, Plot No,390, Sher Shah Kabari Market, Trans Lyari Quarters, Karachi, measuring 5000 square yards. House at Tehsil Topi, Post Office ?Cab Ghani, Distrift Swabi, NWFP, measuring 1000 square yards and any other property left by the deceased Z. A. Khan.
(e) Costs of the Sidi.
(f) Any other relief(s) that may be conducive to meet the ends of justice which this Honorable Court may deem fit and proper in the circumstances of the case.
7. Suit No,92 of 2010 has been filed by the plaintiff, namely, Mst. Afshan, who is daughter of deceased Z.A. Khan from his second wife. She has stated that all the documents pertaining to the aforesaid and other properties of the deceased are lying with the defendants Nos.1 to 8 as they were, and are looking after the same. It is also stated that the plaintiff got married in the year 1984 and shifted to Lahore permanently and now she has been living there with her husband and children. Since her maturity, She time and again asked the defendants Nos.1 to 8 to give her legal share from the estate of her late father but they are reluctant to do so. It is further stated that the plaintiff put her grievance before "Anjuman Welfare Kabariyan Sher Shah" against the defendants Nos.1 to 8 whereupon the said Anjuman also obtained a "FATWA" to the effect that she has every right to receive her share from the rent being collected from the shops built on the property of her late father. It is also mentioned in the plaint that in the year 1990 on some pressure from the said Anjuman and the tenants, the defendant No,3 who is having hold over the properties, paid the share of the plaintiff from the income generated from rent for few months and then he stopped.
But on consistent efforts of the plaintiff, the defendant No,3 again paid her an amount of Rs,3,70,000, as an accumulated share in the rent income of 5 years and in this regard an instrument dated 17-6-1997 was executed. It is further case of the plaintiff that in the year 2008 defendants Nos.2, 7 and 8 filed a civil Suit bearing No,1445/2008 before this Court, wherein other defendants also filed their written statement. It was a matter of utter surprise to the plaintiff that the written statement of defendants Nos.1 and 3 to 6 revealed that the defendant No,3 had fraudulently obtained the plaintiff's thumb impression on an alleged Relinquishment Deed dated 20-6-1997. Such an act was done by taking advantage of the plaintiff being an illiterate lady as at the time of signing said instrument; the plaintiff was conjured into signing and impressing her thumb impression upon a Relinquishment Deed by telling her that the same is a receipt. The said relinquishment deed is an unregistered document hence is of no effect. It is further stated that the defendants have sold the House bearing No,B-82, situated in Block-11, Federal "B" Area, Karachi about 15 years ago without any intimation to the plaintiff which was utter violation of law and natural justice as the plaintiff is a co-sharer in the said property. The plaintiff has, therefore, prayed as under:-
(i) To declare that the plaintiff is entitled to her share in the properties left behind by her deceased father Z. A. Khan (late) in accordance with the Islamic Law.
(ii) To declare any unlawful actions taken by the defendants with regard the properties left behind by the plaintiffs deceased father Z. A. Khan (late) to be of no effect. Iii) To declare that the Relinquishment Deed dated 20th June 1997 is void and of no legal effect and further more to cancel the same.
(iv) To cancel all the transactions if any done by the defendants with the properties left behind by the plaintiffs deceased father Z. A. Khan (late).
(v) To declare that the plaintiff is entitled to receive her share from all the incomes from the properties left behind by her deceased father Z. A. Khan (late).
(vi) To recover the plaintiffs share from all the incomes from the properties left behind by her deceased father Z. A. Khan (late) from the defendants Nos.1 to 8.
(vii) To direct the defendants to furnish all accounts of the properties of the plaintiffs deceased father Z. A. Khan (late).
(viii) To declare the sale of property No,B-83, Block 11, Federal B Area, Karachi, Sindh, Pakistan, admeasuring about 400 square yards, a double storey construction to be void and of no legal effect and cancel the same.
(ix) To direct the defendants to pay to the plaintiff her due share from all the incomes from the properties inclusive of mark-up at bank rate.
(x) To permanently restrain the defendants their men, attorneys, agents, heirs, representatives etc. Any and every person work through or under them on their behalf or in their name from creating any third party interest, or encumbering in any manner whatsoever in and on the suit properties which are already mentioned hereinabove in the memo of plaint.
(xi) To appoint a receiver for taking accounts of all the properties of the deceased father Z. A. Khan (late), and thereafter divide the properties amongst all the legal heirs of the said deceased.
(xii) To grant any other relief that this honourable Court may deem fit and proper in the circumstances of the case.
(xiii) To grant costs of the suit."
8. In pursuance of the summons issued by this Court, the defendants Nos.1 to 5 in Suit No,1445/2008 and defendants Nos.1 and 3 to 6 in Suit No,92/2010 have filed their written-statement wherein they have not disputed the relationship with the plaintiffs. However, they have denied that the deceased at the time of his death left behind him the number of moveable and immoveable properties as alleged by the plaintiffs. They have admitted that the properties mentioned in para No,9 (a), (b) and (c) of the plaint in Suit No, 92/2010 have been left by the deceased, but disputing the property mentioned in para No, 9(d), they have stated that the said house was purchased by the defendant No,1 with the financial support of her brother Muhammad Rauf in 1969, therefore, the said property is not part of the properties left by the deceased. With regard to the property mentioned at para No,9(c), they have stated that it was in the name of defendant No,3 who has already sold out the same fifty years back. They have also denied that the defendants have deprived the plaintiffs from their legal rights to enjoy the possession, income and share in the properties left by the deceased.
They have further submitted that the legal heirs of the deceased have patched up their dispute by way of settlement and the plaintiffs Nos.1 and 2 (in Suit No, 1445/2008 and defendants Nos.7 and 8 in the connected Suit No, 92/2010) have settled their shares in the immovable properties left by the deceased worth Rs,16,00,000 under a Relinquishment Deed and out of the said amount, the plaintiffs Nos.1 and 2 have already received Rs,10,00,000 and the balance amount of Rs,6,00,000 is to be paid and it is settled between the parties that till the date of payment, the defendant No,3 would pay Rs,5,000 per month regularly, which he paid every month even more than Rs,5,000 to the plaintiffs Nos. 1 and 2 such notice was also published in two daily newspapers 'Inqalab' and 'Naon Sajj'. It is also submitted that answering defendant No,2 also paid a sum of Rs,4,00,000 to the defendant No,6 (plaintiff in the connected Suit No, 92/ 2010) Rs,3,70,000 through a pay-order and Rs,30,000 in cash. They have also stated that plaintiffs Nos.1 and 2 (in Suit No, 1445/2008) and plaintiff (in Suit No, 92/2010) have already received their shares from the properties left behind by the deceased. The answering defendants have prayed in their written statement for dismissal with costs.
9. This Court vide Order dated 7-3-2012 consolidated both the Suits i,e, Suit No,1445/2008 and Suit No, 92/2010 and framed the following consolidated Issues.
(1) Whether deceased has left behind legal heirs as mentioned in the plaint?
(2) Whether deceased left behind five immovable properties mentioned in paragraph No,9 of the plaint?
(3) Whether plaintiffs and defendants are entitled to have their shares in accordance with Sharia?
(4) Whether defendant No, 1 holds the property bearing No,B-82, Block-11, Federal B. Area, Karachi in her own rights?
(5) Whether defendant No,3 holds and possesses Shop No,617-A, Gali No,1, Shershah, Kabari Market, Karachi in his own right?
(6) Whether plaintiffs are entitled to have their shares in the House No,B-83, Block-11, F.B. Area, Karachi?
(7) Whether the defendants have made any payment to the plaintiffs towards settlement of their claims in respect of the suit properties left behind by the deceased father?
(8) What should the decree be?"
10. The plaintiffs in Suit No, 1445/ 2008 have not led any evidence to substantiate their claim, However, plaintiff in Suit No,92 of 2010, namely; Mst. Afshan has examined herself. She has produced her Affidavit-in-Evidence as Exh. P/1.
11. On behalf of the defendants two witnesses have given evidence. DW-1 Taj Nabi (Exh. D), who has produced his Affidavit-in Evidence as Exh. D/1; the Deed of Release/Relinquishment as Exh. D-2 and photocopy of permission to mortgage, marked as "X".
' DW-2 (wrongly marked as DW-3) Saifullah Khan has produced his Affidavitin-Evidence as Exh. D/4 and power of attorney of defendants Nos. 1, 2, 4 and 5 as Exh. D-5.
12. I have heatd at length the arguments of learned counsel for the parties and have perused the material on record. My findings on the above Issues are as under:-
13. ISSUE NO. 1 is whether deceased has left behind legal heirs as mentioned in the plaint.
Admittedly deceased Z.A. Khan has died leaving behind him following two wives/widows and seven children: i. Mst. Mirzago Begum(1st wife)widow ii. Taj Nabi Son iii.Saifullah Son iv. Mst. Zeba Yasmeen daughter v. Mst. Fatima daughter vi.Mst. Shamshad Begum(2nd wife)widow vii.Faizullah Khan Son viii.Mst. Yasmeen Khan daughter ix.Mst. Afshan daughter There is no dispute between the parties over this issue; therefore, this issue is answered in "affirmative".
14. ISSUE No, 2 is whether deceased left behind five immovable properties mentioned in paragraph No,9 of the plaint. The plaintiff has given particulars of five properties in para No, 9 of her plaint (Suit No,92/2010) alleging that the said properties were left behind by her deceased father Z.A. Khan.
Against the pleading of the plaintiff, the defendants Nos. 1, 3 to 6 have admitted in para No,9 of their written statement, that the properties mentioned in para No, 9(a), (b) and (c) of the plaint were left behind by the deceased. They have only disputed the area of property as shown in para No, 9(b) as 4900 Sq. Yds. And not as 5000 Sq. Yds. However, they have denied the properties shown in para No, 9(d) and (e). They have claimed that property shown in para No, 9 (d) viz. House No,B-82, Block-11, Federal "B" Area, Karachi, is owned by defendant No,1, which she purchased with the financial support of her brother Muhammad Rauf. As regard to the property shown in para No, 9 (e) viz. Shop No,617-A, Gali No,1, Shershah Kabari Market, Karachi, they have claimed that the said property was in the name of defendant No,3 and that has already been sold out 50 years back.
In evidence, the plaintiff has, in para No, 10 of her affidavit-in-evidence, reasserted her claim with regard to the said properties. In cross-examination she has denied the house bearing No,B-82 is in the name of defendant No, 1 since 1969 as her property. So far as the Shop No 617-A is concerned; the counsel for the defendants did not cross-examine the plaintiff and he failed to put any suggestion contrary to the claim of the plaintiff and as per defense of the defendants. Therefore, burden lies upon said defendants to prove that the properties shown in para No,9 (d) and (e) of the plaint were not the part of the properties left behind by the deceased and the same were/are owned by the defendants Nos.1 and 3.
In para Nos. 6 iv and v of their Affidavits-in-Evidence, (Exh. D/1 and Exh. D/4. Respectively), defendants Taj Nabi (DW-1) and Saifullah Khan DW-2 (wrongly marked as DW-3) have reiterated their claim with regard to the properties shown in para No, 9 (d) that the property viz. House bearing No, B-82 has no concern with deceased and it is owned by defendant No,1 (Mst. Mirzago) since 1969 and the same has been sold out for making payment to plaintiffs' share amount in 1997.
With regard to the property shown in para No,9-(e) viz. Shop No, 617-A, they have stated that the same has also no concerned with deceased as the title of ownership of the said shop was on the name of defendants Nos. 2 and 3 since their childhood.
It appears that both, the plaintiff and the defendants, have only given oral evidence to substantiate their claim and have not produced in their evidence any documentary evidence/title documents of aforesaid two properties. The defendant No,1 alone and defendants Nos. 2 and 3 are jointly claimants of the said two properties. Therefore, it requires an inquiry on the point whether deceased Z. A. Khan was seized of or entitled to these two properties at the time of his death.
Hence, my answer to this issue is "accordingly".
15. ISSUE NO. 3 is whether plaintiffs and defendants are entitled to have their shares in accordance with Sharia. The plaintiffs and the private defendants are admittedly legal heirs of deceased Z.A.
Khan, therefore, they are entitled to have their shares in accordance with Sharia. This issue is, therefore, answered in "affirmative".
16. ISSUE NO. 4 is whether defendant No,1 holds the property bearing No,B-82, Block-11, Federal B.
Area, Karachi in her own rights. This issue is covered by my findings on issue No,2 and accordingly I answer this issue in "negative".
17. ISSUE NO. 5 is whether defendant No,3 holds and possesses Shop No,617-A, Gali No,1, Shershah, Kabari Market, Karachi in his own right. This issue is also covered by my findings on issue No,2 and accordingly I answer this issue in "negative".
18. ISSUE NO. 6 is whether plaintiffs are entitled to have their shares in the House No,B-83, Block-11, F.B. Area, Karachi. This is an admitted position that the said house is one of the properties left behind by deceased Z.A. Khan and the plaintiffs are legal heirs of the said deceased; therefore, the plaintiffs are entitled to have their shares in the said house in accordance with Sharia. I, therefore, answer this issue in "affirmative".
19. ISSUE NO. 7 is whether the defendants have made any payment to the plaintiffs towards settlement of their claims in respect of the suit properties left behind by the deceased father. This is the core issue arisen out from the pleadings of the private defendants.
In Suit No, 1445/2008, the defendants Nos. 1 to 5, denying the claim of the plaintiffs Nos. 1 and 2, have stated in para No,6 of their written statement that the plaintiff Nos. 1 and 2 have settled their shares in respect of the properties left by late Z. A. Khan worth Rs, 16,00,000 under a Deed of Release/Relinquishment and out of the said amount, the plaintiffs Nos.1 and 2 received Rs, 5,00,000 and subsequently received another amount of Rs, 5,00,000 by way of a cheque and the balance amount of Rs,6,00,000 is to be paid and it is settled between the parties that till the date of payment defendant No,3 will pay Rs,5,000 per month regularly and said defendant No,2 paid every month more than Rs,5,000 to the plaintiffs and sometimes Rs, 8,000 and sometimes Rs, 12,000 and a notice was also published in two daily newspapers 'Inqalab' and 'Naon Sajj'.
After framing of the Issues, the plaintiffs of Suit No, 1445/2008 failed to appear and lead evidence.
Therefore, it leads to inference that the plaintiffs of Suit No,, 1445/2008 had in fact no evidence in rebuttal.
But the case of Mst. Afshan, the plaintiff of Suit No, 92/2010 appears to be on different footings. Mst.
Afshan, who was defendant No, 6 in Suit No, 1445/ 2008, has filed her separate Suit bearing No, 92/2010. The defendants Nos. 1 to 5 of Suit No, 1445/2008 are the defendants Nos. 1, 3 to 6 in Suit No, 9212010. They have filed their written statement and denying the claim of Mst. Afshan they have stated in para No, 6 that she along with other legal heirs has already taken her shares from the property left by the deceased. In para No, 12 of their written statement, they have further stated that defendant No,3 had paid a sum of Rs,4,00,000 to plaintiff through a pay order amounting to Rs,3,70,000 and Rs,.3,00,000 in cash.
Plaintiff Mst. Afshan has reaffirmed her claim in her Affidavit-in-evidence. In para 13 of her Affidavit- in-evidence, the plaintiff has deposed that since her maturity, she has time and again, asked the defendants Nos. 1 to 8 to give her share, which she is entitled to receive from the estate of her late father, but her such requests were not given any weight. In para No, 14, she has further deposed that the defendants Nos. 1 to. 8 were so reluctant to give her share that they even denied giving her share in rent income being received from the properties of her late father. In para No, 15, she has also deposed that in the year 1990, after some pressure from the Anjuman and the tenants the defendant No,3, who is having hold over the properties started paying her share from the income generated from the rent. In para 16, she has further deposed that the defendant No,3 paid her an amount of Rs, 3,70,000 on 17-6-1997 which was her accumulated share in the rent income of 5 years. With regard to execution of Relinquishment Deed, she has deposed in para No, 18, as under:- - "18. That I say that in the year of 2008, the defendants Nos. 2, 7, 8 filed a Civil Suit bearing No, 1445/ 2008, before this Hon. High Court, the other defendants also filed their Written Statement and it was a matter of utter shock and my surprise, that the Written Statement of defendants Nos. 1, 3, 4, 5, and 6 revealed that the defendant No,3 has fraudulently obtained my thumb impression on an alleged "RELINQU ISHMENT DEED dated 20th June 1997. I say that such an act was done by taking advantage that I am an illiterate person and a simple lady, so the instrument dated 17-6-1997 was handed over to me, I was conjured signing and impressing my thumb impression upon a RELINQUISHMENT DEED, telling me that the same is the receipt for the instrument I have just received."
In her cross-examination, the plaintiff has reiterated and deposed that:- "I do not know English....I have been paid Rs, 3,70,000.00 towards rent for the plot No, 390 in Sher Shah, Karachi. It is incorrect that I was paid Rs, 4,00,000 as my inheritance share in all properties. I see annexures D/7 and 8 of the written statement; these are simple photocopies and bear my RTI and signature and the LTI and signatures of myself and my husband, but not as receipt for the share of inheritance but for the rent received it is incorrect that my signatures on the above simple copies of annexures are real and put after understanding the contents thereof."
DW-I Taj Nabi, who has produced his Affidavit-in-Evidence and Relinquishment Deed as Exh. D/1 and D/2, respectively, has deposed in cross-examination that:-- "We had paid the share of Mst. Afshan in 1997. The plaintiff Mst. Afshan was entitled to share, the value of which was paid to her, and it is stated in the written statement that she was paid Rs,4,00,000.... It was paid in presence of witness Wahab and her husband D/2 is not registered I have passed B.A, I cannot translate Exh. D/2."
DW-2 Saifullah, who has produced his Affidavit-in-Evidence as Exh. D/4, has deposed in cross- examination that:-- "Relinquishment Deed was got prepared by Taj Nabi at Karachi, and it was typed. All the signatories of said deed were present when they signed it and it was not registered... I am BSc. I cannot translate the said deed.
After scanning the evidence of the parties on the issue in hand, it appears that the defendants have failed to prove that they have already paid the share of Mst. Afshan, the plaintiff, from the properties left behind by her deceased father in accordance with Sharia. Plaintiff Mst. Afshan, who is an illiterate lady, has denied the execution of any Relinquishment Deed, She has deposed that the amount of Rs,3,70,000.00 was paid towards her share in rent of the Plot No,390, situated in Sher Shah, Karachi. The alleged Relinquishment Deed is an un-registered document and in the English language and no where it is mentioned on it that the same was read over explained to plaintiff in Urdu language, before getting her signature or thumb impression thereon. Therefore, no credibility can be attached with the said document. Even during cross-examination, no suggestion was put to plaintiff that she made her signature/thumb impression with her conscious knowledge on the Relinquishment Deed knowingly that she was receiving her share from the properties left behind by her deceased father.
My finding on this Issue is that the plaintiffs of Suit No, 1445/2008 have been paid their share in the properties left by their deceased father/husband Z.A. Khan and they have relinquished their rights therein but plaintiff of Suit No, 92/2010, Mst. Afshan has not been paid her share in the properties left by her deceased father and she has not relinquished her share. Plaintiff Mst. Afshan is therefore, entitled to a preliminary decree for administration of the properties left by deceased Z.A. Khan.
20. ISSUE NO. 8 is what should the decree be. In view of my findings on issues Nos. 1, 2, 3, 4, 5,6 and 7, I dismiss the suit bearing No, 1445/2008 and pass a preliminary decree for administration of the estate of the deceased Z. A. Khan and appoint the Official Assignee of this Court as Administrator/Receiver.
Property No,1 Double Storey House No,B-83, Block-11, Federal "B" Area, Karachi, admeasuring about 400 square yards has already been sold out by the defendants Nos. 1, 3 to 6 in the sum of Rs,1,15,00,000, plaintiff Mst. Afshan will be entitled to receive her share as per Sharia and when Property No,2 is sold, it will carry charge of the plaintiff to the extent of her share, as per Order of this Court dated 7-10-2011.
Property No,2 Plot No,390, Sher Shah Kabari Market, Trans Lyari Quarters, Karachi, admeasuring about 5000 square yards, is under tenancy, the Administrator will determine the rental income of the said property and the plaintiff Mst. Afshan will be entitled to receive her share as per Sharia.
Property No,3 As regard the ancestral property/house situated at Tehsil Topi, Post Office Kab Ghani, District Swabi, KPK, at the first instance, the Administrator will get the record of rights mutated in favour of plaintiff to the extent of her share and then proceed further.
Property No,4 House No,B-82, Block-11, Federal "B" Area, Karachi. The Administrator will ascertain its ownership as on September 1974, if it is found on the name of Mst. Mirzago Begum, the defendant No,1, the said property will stand discharged and in case it is found on the name of deceased Z.A.
Khan, as the property left by him, the Administrator will ascertain its market value at the time, it was sold out by the defendant No,1 and Mst. Afshan will be entitled to have her share as per Sharia and when Property No,2 is sold, it will carry charge of the plaintiff to the extent of her share.
Property No,5 Shop No, 617-A , Gali No,1, Shershah Kabari Market, Karachi. The Administrator will ascertain its ownership as on September 1974, if it is found on the name of defendants Nos.3 and 4 the said property will stand discharged and in case it is found on the name of deceased Z.A. Khan, as the property left by him, the Administrator will ascertain its market value at the time, it was sold out by the defendants Nos.3 and 4 and Mst. Afshan will be entitled to have her share as per Sharia and when Property No,2 is sold, it will carry charge of the plaintiff to the extent of her share.
Out of the rent already recovered and/or may be recovered the Receiver may initially adjust an amount of Rs, 50,000 towards his fee.