' This is an administration suit filed in respect of the estate of deceased Dr. Inayat Ali Shah, who was murdered on 7th March, 1979 on the Highway near Lagos (Nigeria) while in the employment of the Government of Niger. Deceased, who was a Sunni Hanafi, died issueless and left three brothers.
Plaintiff, defendants Nos. 2 and 3 and a widow, (defendant No, 1) as his only heirs, each being entitled to 1/4th share in the estate of the deceased. Defendant No, 4 (one Muhammad Habibullah Siddiqui) has also been joined as a party, as he is alleged to be in possession of a plot at Karachi belonging to the deceased.
2. C. M.A. 5655/80, is an application under Order XXXVIII, rule 5 read with section 151, C. P. C. Filed on behalf of the plaintiff praying for attachment before judgment of a sum of Rs, 63,350 lying deposited in her name with the Nazir of this Court in (succession) Miscellaneous Application No, 61/1979. Defendants Nos. 2 and 3 have supported the plaintiff. The case of the plaintiff and his brothers (defendants Nos. 2 and 3) is that the defendant No, 1 (the widow) has grabbed more money and assets than what comes to her share according to Sunni Hanafi law of inheritance. The affidavit in support of C. M. A. 5655/80, does not give much details, but reliance was also placed on other affidavits including the counter-affidavit dated 6th December, 1981 of defendant No, 3.
Annexure 'G' to the said counter-affidavit gives details of the properties allegedly grabbed by the widow and their total comes to Rs, 6,09,594. Annexure 'G' gives the following figures :- Rs, Rs.
(i)Death gratuity2,15,594 (ii)Deposit in Bank of North Minna30,000 (iii)Air-conditioned Toyota car1,50,000 (iv)Cash at deceased's house80,000 (v)Jewellery60,000 (vi)Household effects74,900 Total6,09,594 ' According to the widow, the Toyota car 1976 model, was sold in Niger for Rs, 34,000 (equivalent to a Nira 200) by her after the death of her husband. Then as regards death gratuity, it is her case that this was payable to the dependants of her husband and not to his heirs, and she being the only dependant, she was entitled to this amount. Her stand in this regard finds prima facie support from letter dated 10th July, 1980 of the Federal Ministry of Foreign Affairs, Islamabad (Annexure 'C' to counter-affidavit dated 6th December, 1981) and letter dated 6th May, 1980 of Ministry of Finance, Treasury Division, Niger State (Annexure 'E' to the said counter-affidavit of defendant No 3). The difference in the value of the car as given by the plaintiff and as given by defendant No, 1 comes to Rs, 1,16,000 and this figure plus Rs, 2,15,594 paid to defendant No, 1as death gratuity totals to Rs, 3,31,594. If this amount is deducted from the total of Rs, 6,09,594 mentioned in Annexure 'G' to the counter-affidavit dated 6th December, 1981 of the defendant No, 3, the balance comes to Rs, 2,76,000. Even according to the plaintiff and defendants Nos. 2 and 3, the widow, as per these calculations, has not received more than Rs, 3,00,000 out of the estate of the deceased.
3. Now I propose to consider what is roughly the extent of the estate left by the deceased as disclosed by documents on record. A sum of about Rs, 4,50,000 was withdrawn by defendant No, 3 from the London Bank account of the deceased. This is an admitted position. Out of this amount, defendant No, 3 has given 1/4th share each to the plaintiff and defendant No, 2, but not to the widow. A sum of Rs, 3,73,411 is lying with Federal Ministry of Foreign Affairs received from Government of Niger. Then succession certificate was granted t defendant No, 3 (in M. A. 61/1979), for collecting Rs, 2,53.389.39 I respect of moneys lying in the bank accounts of the deceased in Pakistan and his Khas Deposit and National Deposit Certificates. The amounts were withdrawn by defendant No, 3 on the strength of the Succession Certificate granted to him out of which he retained his 1/4th share and paid 1/4th share each to his two brothers, the plaintiff and defendant No, 2 but did not pay the 1/4th share to the widow. Pursuant t order dated 15th November, 1980, of the learned Chief Justice passed or an application moved by the widow in S. M. A. 61/1979, defendant No, 3 deposited Rs, 63,350 (the share of defendant No, 1) with the Nazi of this Court. It is in relation to this amount of Rs, 63,350 that C. M. A. 5655/80, has been filed by the plaintiff. There is also an immovable property left by the deceased in Karachi. It is a 1,000 square yard plot in Phase IV of Defence Society with some construction thereon. Learned counsel for the defendant No, I stated that the estimated value of this property is Rs, 15,00,000 whereas Mr. A. Sattar Memon, learned counsel for defendant No, 3 estimated the value at Rs, 10,00,000. That aforesaid figures may be summarized hereinbelow. {{TABLE}} Rs.
(i) Figure in para. 2 of this order (approximate)3,00,000
(ii) Amount withdrawn by defendant No. 3 from London Bank.4'50---000
(iii) Amount lying with Ministry of Foreign Affairs3,73,411
(iv) Amount covered by Succession Certificate (M. A. 61/79).2,53,389
(v) House in Defence Society (Approximate) 10,00,000 Total23,76,800 {{TABLE}} ' One-fourth of this amount comes to Rs, 5,64,200. Then there are agricultural lands in Sukkur. There might be other properties. Valu of the house in Defence Society may be more.
4. The plaintiff and defendants Nos. 2 and 3 have received their shares from the amount recovered by the defendant No, 3 under the Succession Certificate granted in M. A. 61/79. The amount of Rs, 63,350 deposited by defendant No, 3 with the Nazir of this Court pursuant to order dated 15th November, 1980 is the 1/4th share of the defendant No,
1. Prima facie, I am of the view that if she receives or withdraws this amount, she will not be getting more' than her I/4th share in the estate of the deceased.
5. No case has been made out by the plaintiff for attachment before I judgment. C. M. A. 5655/80, is accordingly dismissed and orders of I ad interim attachment are hereby vacated.
' Learned counsel for the plaintiff now files an application under Order XLI, rule 5 read with section 151, C. P. C. For stay of the operation of this order for 10 days. The application is not supported by an affidavit. Even otherwise, I am not inclined to stay the operation of this order. Application of the plaintiff in this behalf is rejected.
6. C. M. A. 1662/81, under Order VI, rule 17 read with section 151, C. P. C. Is granted subject to all legal exceptions. Amended plaint to be filed within 10 days.
' This case be fixed for issues on 2nd May, 1982 on which date the question of passing a preliminary decree in this administration suit will also be considered. The parties, except defendant No, 4, will also be present in person or through their attorney on 2nd May, 1972.