1. ' SYED SAEEDUDDIN NASIR, J.---This is suit for declaration, cancellation and permanent injunction, with the following prayers:--
(i) To declare that the plaintiff is lawful and exclusive owner of the suit property viz Ground+Two Storey constructed House No. SNP-46, measuring 400 Sq. Yards situated in Al-Riaz Cooperative Housing Society Ltd., Shaheed-e-Millat Road, Block 7 and 8, Bahadurabad, Karachi by way of dower.
(ii) To declare that the Gift Deed bearing Registered No. 2096, dated 7-7-1999, Sub-Registrar T- Division, XI, Karachi and M.F. Roll No. 2657, Photo-Registrar, Karachi dated 28-8-1999, executed by the deceased husband of the plaintiff in favour of his daughter Miss. Nadia Choudhry on the basis of fake special power of attorney is bogus and liable to be cancelled and having no legal effect in the eye of law and further declare all that the conditions of the gift deed have not been fulfilled, hence the same is not effective as forged, bogus null and void, ab initio and no legal effect.
(iii) To cancel the said Gift Deed bearing Registered No. 2096, dated 7-7-1999, Sub-Registrar T-Div.
2. XI, Karachi and M.F. Roll No. 2657, Photo-Registrar, Karachi dated 28-8-1999, having no legal effect and on the basis of fake special power of attorney.
(iv) To restrain the defendant, her attorney severally and jointly her men, agents, servants or, any, person or persons on her behalf to use or claim to be the owner of the property in question viz, Ground + Two Storey constructed House No. SNP-46, measuring 400 Sq. Yards, situated in Al-Riaz Co-operative Housing Society Ltd., Shaheed-e-Millat Road, Block 7 and 8, Bahadurabad, Karachi as not to make any transaction in respect of the suit property with anybody such as any further deed or documents.
(v) To appoint/direct the Nazir of this Hon'ble Court, to execute the necessary transfer documents, deeds in respect of the suit property in record of the Society in favour of the plaintiff.
(vi) To award the cost of the suit.
(vii) To grant any other relief or reliefs which this Hon'ble Court may deem fit and proper and expedient to the plaintiff in the present circumstances of the case and in the interest of justice.
3. ' The brief facts of the case as narrated in the plaint are as under:-- ' On 10-5-2010, the plaintiff was married with Abdul Shakoor in lieu of dower (1) Three (3) Tolla Gold and constructed Ground + Three Storey house bearing No. SNP-46, measuring 400 Sq. Yds. Situated in Al-Riaz Co-operative Housing Society, Block 7 and 8, Shaheed-e-Millat Road, Karachi, which is mentioned in the Column No. 13 of the Nikahnama. As such one Tolla Gold was paid by the said Abdul Shakoor to the plaintiff and it was mutually agreed that remaining gold 2 Tolla will be paid within 4 months after the marriage. Ths plaintiff started living with her said husband at his house, after the marriage.
4. ' Plaintiff's husband was owner of constructed Ground + Three Storey house bearing No. SNP-46, measuring 400 Sq. Yds. Situated in Al-Riaz Co-operative Housing Society, Block 7 and 8, Shaheed- e-Millat Road, Karachi, by virtue of Allotment Certificate and subsequently lease was executed by the Society in favour of Shakoor (late) the husband of the plaintiff on 29-4-1975, vide Registered No. 2299, at page Nos. 6 to 7, Volume 517 of Book Addl., Sub-Registrar T. Division-I, Karachi.
5. ' The husband of the plaintiff executed Gift Deed on 7-7-1999 in respect of the said property in favour of his daughter namely Nadia Choudhary, vide Registered No. 2096, Sub-Registrar T, Division, XI, Karachi and M.F. Roll No. 2657, dated 28-8-1999, through her special Attorney. The said daughter of the husband of the plaintiff was from his first wife and was residing in America in connection with her studies and it was alleged in the plaint that the power of attorney was also executed with her fake signature in favour of one Muhammad Younus Baloch son of Pir Muhammad Baloch for the purpose of putting signature for and on behalf of Nadia Choudhry on the said gift deed.
6. ' It is further stated in the plaint that at the time of Nikah ceremony the husband of the plaintiff had also sworn an Affidavit, in which he stated that at the time of execution of gift deed his daughter was abroad in connection with her studies and the special power was executed with her fake signature for signing for acceptance of gift deed on her behalf and the physical possession was also not delivered to her. The said daughter of the plaintiff contracted marriage abroad with a non-Muslim. The mother of Nadia Choudhry namely Sozan Merri also got Khulla from Court from the husband of the plaintiff.
7. ' It is further stated in the plaint that on 19-2-2011, the husband of the plaintiff expired in the said house and that the plaintiff was residing with him at that time. Before the death he gave all original documents to the plaintiff including the original gift deed in custody of the plaintiff, and the deceased husband of the plaintiff did not want to give anything-to his daughter, because she contracted marriage with a non-Muslim, against his desire. Since the marriage, the plaintiff was residing in the subject house and still the said house is in her possession. Later on the plaintiff came to know that the said daughter of her deceased husband came to Pakistan two months ago and executed power to a man to sell out the said house, therefore the plaintiff has serious apprehension that the said house shall be sold out by daughter of her husband, while the said house was given to her by husband as dower.
8. ' According to the plaintiff the cause of action accrued to the plaintiff firstly when she got married with deceased Abdul Shakoor and the subject house was given to her as dower and thereafter when her husband expired and lastly when she came to know that the daughter of her deceased husband came in Pakistan and is trying to sell out the said house and wants to dispossess the plaintiff.
9. ' The plaintiff has filed affidavit-in-Ex parte proof wherein the plaintiff has stated almost the same facts as in the memo of plaint. The plaintiff has filed Exhibits (1) Nikahnama as Exh. A, (2) Photocopy of gift deed as Exh. C, (3) Photocopy of Affidavit as Ex. D and lastly, (4) Death certificate of the deceased husband as Exh. E.
10. ' No written statement was filed by the defendant who was served through publication in Daily "Express" dated 14-2-2012 and "NEWS" dated 15-12-2012.
11. ' I have heard learned counsel for the plaintiff at length who has not been able to satisfy the court as to how the cause of action accrued to the plaintiff for filing the present suit after the death of her husband, when the husband of the plaintiff died without taking any concrete steps to get the Gift Deed dated 7-7-1999 revoked. Secondly, how could the deceased husband of the plaintiff could have given the suit property to the plaintiff as dower or in lieu of dower on 16-5-2010,' when he had already conveyed the suit property by way of a Declaration and confirmation of gift deed in respect of the same in favour of his daughter which is duly registered with the Sub-Registrar concerned on 7-7-1999. Mere swearing of an affidavit or endorsement on the Nikahnama does not vitiate the Registered Gift Deed. The plaintiff's husband divested himself of the proprietary right in the suit property the moment he pronounced declaration of gift in respect thereof in favour of his daughter, the defendant herein.
12. Therefore, I am of the considered view that neither the husband of the plaintiff was the owner of the suit property on 16-5-2010 nor competent to make any pronOuncement in respect of the same. The plaintiff has no legal character to maintain the present suit inasmuch as no cause of action ever accrued to the plaintiff for filing the same. The suit is barred by sections, 42, 54 and 56 of the Specific Relief Act, 1877.
13. In view of the above, the suit is dismissed with no order as to cost, however, the plaintiff is directed to deposit all the original title documents in respect of the suit property bearing No. SNP-46, measuring 400 Sq. Yds. Situated in Al-Riaz Co-operative Housing Society, Block 7 and 8. Shaheed- e-Millat Road, Karachi, with the Nazir of this Court for.Safe custody for the defendant. The Nazir shall return the documents only to the defendant as and when the defendant makes an application to the Court for the return of the same, and when the same is granted, after due identification and verification.
14. ' Above are the reasons for my short order that was pronounced in open Court on 5-12-2014.