' The facts of the case briefly stated are that one Muhammad Saeed died at Karachi on 18th November, 1968 and left behind him surviving the following persons as his heirs and next of kin according to Muslim Sunni Law by which the deceased was governed.
(a) Mrs. Akhtarunissa Begum widow of the deceased, Muslim, aged about 44 years, presently residing in 1989 Sawday Road, opposite Mission Hospital, Mysore, South India (entitled to 1/8th share of the estate).
(b) Nadimuzzaffar son of the deceased, petitioner herein, Muslim, aged about 20 years, presently residing in 1984 Sawday Road, Opposite Mission Hospital, Mysore, South India (entitled to 7/20th share of the estate).
(c) Mst. Fasiha Rehana daughter of the deceased, Muslim, aged about 28 years, presently residing in 1989, Sawday road, opposite Mission Hospital, Mysore, South India (entitled to 7/40th share of the estate).
(d) Mst. Fauzia Rehana daughter of the deceased, Muslim aged about 25 years, presently residing in 1989, Sawday Road opposite Mission Hospital, Mysore, South India (entitled to 7/40th share of the estate).
2. The plaintiff one of the sons of the deceased Muhammad Saeed claiming to be entitled to 7/20th paisa in the estate left by the deceased applied for grant of Letters of Administration by filing a petition under section 278 of the Succession Act. According to the petitioner/plaintiff the deceased left behind movable and immovable . Properties which comprised of (1) Rs, 400 lying in the National Bank of Pakistan, Liaquatabad Branch, Karachi, (2) Household goods etc. Valued at Rs, 200, (3) Plot of land/quarter bearing No, 737/1, Federal '13' Area, Sharifabad and (4) shares in the various companies. Details of these properties have been given in Annexure "A" to the plaint.
3. On 6th April, 1973, Mst. Salima Begum, widow of S. A. Rehman filed caveat alongwith affidavit in support of the sale wherein the Caveator inter alia deposed that (her brother) Muhammad Saeed who originally resided in Mysore, South India, opted for Pakistan and came down to Dacca and thereafter to Karachi and that in the year 1951 he became post-master, Sibbi, Quetta Division.
Muhammad Saeed retired from the service in May, 1959, and came to Karachi alongwith the Deponent (Mst. Salima Begum) who used to look after him. She further deposed that in Karachi the said Muhammad Saeed got the quarter mentioned above allotted from the K. D. A, wherein he started living alongwith the Caveator until his death on 18th November, 1968.
' She further deposed in her affidavit as follows :- "That in application of the services rendered by the Deponent to the deceased right from 1951 till November, 1968, the deceased made oral gift of the quarter as well as of the shares of various companies belonging to him in favour of the deponent in the presence of Mr. M. K. A. Rehman and the husband of the deponent saying that since his children and wife had deserted him and since the deponent had rendered services to him by looking after and taking care of him, the deponent shall be the owner of the properties movable and immovable consisting of the aforesaid quarter as well as share of various companies. The deponent accepted the said gift but after the death of the deceased she tried to communicate with the family members of the deceased and in that attempt succeeded to contact the petitioner as well as his mother through mutual friends."
' She further deposed : "The deponent offered to hand over the shares to the members of the deceased family in spite of the gift mentioned above and invited them to take appropriate action in the matter but the petitioner as well as the mother of the petitioner wanted even to grab the quarter in which the opponent is residing at present."
' She also pleaded that the petitioner/plaintiff and the other heirs (widow and other children of the deceased) continued to ramain in India even after the arrival of Muhammad Saeed in Pakistan and that they still continue to the Iddian Nationals.
4. The said Mst. Salima Begum, the Caveator, opposed the petition for grant of Letters of Administration filed by Nadeemuzzafar, one of the heirs of Muhammad Saeed, and pleaded that she is the owner of the property and the shares mentioned in the Schedule to the petition by virtue of the oral gift made in her favour.
5. Upon the filing of the caveat and the affidavit in support of the same, the petition for grant of Letters of Administration has been registered as a suit. The petitioner is described as the plaintiff and the Caveator is treated as the defendant. The affidavit filed by the Caveator has been treated as a written statement in the suit in accordance with rule 413 of the Sind Chief Courts Rules (O. S).
6. The following issues by the consent of the parties have been framed :-
(1) whether the suit is not maintainable ?
(2) whether the deceased had gifted his plot of land with quarter thereon bearing No, 737/1 Federal 'B' Area, Karachi, and also shares in various companies to Mst. Salima Begum ?
7. The case was thereafter fixed for hearing on various dates and on 13th February, 1976 the parties with the consent of Mr. Nooruddin Advocate for the Caveator made statement that the parties did not press issue No,
1. Accordingly, the learned Court by order passed on the same day proceeded to record evidence on Issue No, 2 Mst. Salma Begum, the Caveator, examined herself. Her deposition has been marked as Exh.
5. She also produced Mr. M. K. Abdur Rehman (Exh. 20) and her husband S. A. Rehman (Exh. 21). On behalf of the other defendants was examined Mst. Akhtarun Nissa Begum, widow of late Muhammad Saeed (Exh. 24). The plaintiff examinee Deen Muhammad Qasim (Exh. 25).
8. I have considered the evidence and the material produced on record and my findings on various issues raised are as follows :'
' Issue No, 1.-This issue was dropped on 13th February, 1976, and therefor is disposed of against the defendant No, 1 (the Caveator).
' Issue No, 2.-The defendant/Caveator has failed to prove that Muhammad Saeed (deceased) made gift of the property in question or the shares in various companies, to her (Mst. Salima Begum).
' Issue No, 3.-The Plaintiff/Petitioner is entitled to the decree as prayed.
9. My reasons for coming to the conclusions as above are as follows.
' Issue No, 2. (1).-I would first take up the Issue No, 2 which in fact is the decisive issue involved in the case. The three categories of properties which are subject-matter of dispute between the parties, are (t) the residential quarter No, 737 (1) Sharifabad, Federal B Area, Karachi, measuring 120 sq. Yds.
(2) shares in the Companies shown in Annexure "A" to the plaint and (3) cash Rs, 400 in National Bank of Pakistan, Liaquatabad Branch, Karachi, and household goods etc. ' The quarter referred above was allotted to Muhammad Saeed by the K. D. A. On 7th July, 1960 vide Exh. 5/1 who made payment of Rs, 4,875 towards its price to the Karachi Development Authority vide receipt, dated 24th July, 1960 (Exh. 5/2). Receipt Exh. 5/3 dated 16th July, 1960 has been produced which shows that 25% value of the said quarter was allowed to be deposited with reference to application filed by Muhammad Saeed for the purchase of the said quarter. At the bottom of the said receipt there is endorsement acknowledging the receipt of Rs, 1625 by Habib Bank Limited. This amount is shown to have been credited to the account of K. D. A. With reference to the application No, 1349 filed by Muhammad Saeed (deceased).
' The ownership of Muhammad Saeed over the said quarter and payment of price for purchase allotment of the said quarter by him, thus stand proved.
(ii) As regards the ownership of the various shares shown in Annexure "A", there is no controversy between the parties that the same were purchased by and belonged to Muhammad Saeed (deceased).
(iii) In the circumstances stated above the ownership of Muhammad Saeed over the quarter and the shares in question, having been established and otherwise not disputed, unless it is shown that any valid gift was made by Muhammad Saeed during his lifetime in favour of the Caveator (Mst.
Salima Begum) the conclusion would be that the same devolved upon his heirs in accordance with the Sunni Law of inheritance by which he was governed at the time of his death.
(iv) We have, therefore, to consider the case of the Caveator (Mst. Salima Begum), who in her affidavit filed in support of the caveat entered by her, pleaded that in appreciation of services rendered by her the deceased Muhammad Saeed in June, 1967 made an oral gift of the said quarter as well as of the shares belonging to him in her favour in the presence of Mr. M. K. A.
Rehman and Mr. S. A. Rehman (husband of the Caveator). It may be mentioned that Muhammad Saeed died on 18th November, 1968.
' After hearing the arguments of the learned counsel for the parties in order to resolve the dispute I would now refer to some relevant facts which emerged out of the arguments with reference to , the evidence on record. At the very outset it may be mentioned that the Caveator has not produced any document executed by Muhammad Saeed (deceased) in support of her application that any gift was made by him in her favour. We, therefore, are left with oral and circumstantial evidence to find out if any such gift was made in her favour so as to defeat the right of the plaintiff and other heirs of the deceased Muhammad Saeed to inherit the properties according to Muslim Law.
(v) Reference may first be made to documents Exh. 5/5 which is the notice, dated 18th June, 1969 sent by the counsel for the plaintiff and other heirs of the deceased Muhammad Saeed addressed to Mst. Salima Begum (the Caveator) and her husband S. A. Rehman. In the said notice the plaintiff and other heirs claimed that the said deceased left both movable and immovable properties comprising of shares in various companies and the Quarter No, 737/1, Federal '13' Area, Karachi.
They further alleged that taking advantage of their absence, the above, named two persons (addressee) had unlawfully taken possession of the scripts (shares) dividend warrants, other belonging and documents of title of the said quarter left by the deceased. It was further stated in the said notice that both these persons have no right, title or interest in the estate left by the said deceased and called upon them to hand over the aforesaid properties and also hand over possession of the said shares, dividends warrants and vacant and peaceful possession of the quarter to them. They were warned that in case the demands made were not complied, with legal proceedings civil as well as criminal would be instituted.
' Reply to the aforementioned notice was sent by the Caveator and her husband through their Advocate on 26th June, 1969 which has been produced as Exh. 5/6, wherein after raising certain pleas which are not relevant for the purposes of this case, it was stated "That my clients are in lawful possession of the house and entitled to all the assets of the deceased including the shares. My clients are not accountable to your clients."
' It is significant to note that in the same reply the Advocate for the Caveator further stated and warned the plaintiffs and other heirs of the deceased as follows :- "That your client must be aware that their interest, right, and title, if any, in the property or chooses of action are "enemy property" within the provisions of the Defence of Pakistan Ordinance and Rules.
' My clients are further checking up and verifying that two of the members of your clients' family are in service of a vital department of Bharat."
' Significant facts also to note is that in the aforementioned reply sent through her Advocate the Caveator did not claim that the said quarter and or shares were transferred in her by gift made by Muhammad Saeed. Another thing to note is that in the said reply the Caveator in fact impliedly (rather expressly) admitted that the plaintiff and other heirs of deceased have right title and inter se in the property and movable but the same have become enemy property under Defence of Pakistan Rules, and that the Caveator and her husband were making inquiries that two of the heirs are in service of Government of India. This was nothing but a threat extended to the heirs to make them to desist from claiming the properties.
(vi) Mst. Salima who claimed to be the Donee of the above-mentioned properties was confronted with the reply notice, dated 26th June, 1969 (Exh. 5/6) sent by her through her Advocate and in reply she admitted in cross-examination.
"There is no mention of gift in the reply Exh. 5/6 but reply was to claim made on behalf of the plaintiffs."
' She was further confronted with her affidavit (Exh. 4) filed in support of the caveat and she admitted in her cross-examination that : "The date of gift is not mentioned in Exh. 4."
' Another relevant document to which reference may be made here is the letter Exh. 5/7 written on 4th January. 1969 by S. A. Rehman (the husband of the Caveator Mst. Salima Begum). This letter which is in Urdu (translation of which has supplied by Mr. Inayatullah Advocate). This is the first document on record which came into existence soon after the death of Muhammad Saeed (which took place on 18th November, 1968). It would be relevant to reproduce the contents thereof as the said letter has been admitted by Mst. Salima Begum having been written by her husband :- "Respected Bhabi Saheba, Assalam-o-Alaikum, ' We are doing well here and expect the same from all of your over there. I had sent a letter to you in which I had written in detail. I waited for reply uptil now and as I did not receive reply I am once again writing letter to you. You prepare as early as possible Power of Attorney in my name from your side and send it urgently. Here, all works of Bhai Saheb have come to a stop. Bhai Saheb had taken from company loan of Rs, 2,000 and he was repaying the loan at Rs, (sic) per month. This has stopped after his death. Whatever money received by Bhai Saheb, was invested in shares. Loan was taken for funeral expenses. Rs, 270 is to be paid in respect of the same. My leave which was for two months, is expiring. Therefore, reply immediately upon receipt of this letter and let me know whatsoever are your intentions and I will act accordingly or you may have faith in me and leave the rest to me and need not worry about any thing I will look after every thing. It is not proper to write to you letters again and again. You yourself can understand as circumstances are not so good. In the light of 23rd November, 1968 a telegram from Mysore on behalf of Fawad was received at the address of the Post Master here and was received by me at the house. In this Fawad has written that his father has died on 18th November, 1968 and that house may be sealed. 1 felt sorry. I never expected this from you. I do not know whether Fawad himself has given the telegram on behalf of Fawad. Whatever it may be, you may inquire and let me know. By doing this there is likelihood of loss and on both sides and it will also torment Bhai Saheb's soul. We should always act according to wishes of Bhai Saheb. Because the deceased was a noble and loving man and behaved well with every one and helped every one. I used to regard him as my real brother. He was really more than a real brother. May God give him place in heaven.
' There is a person here by name Mohomed Kassim who calls himself a Banker and plays fraud. He wanted to exploit Bhai Saheb for his own ends but Bhai Saheb was clever and was not misleaded.
Now I tell you not to be misled by him. You should have implicit faith in us. After you come here and see for yourself than you will know, I will do according to what you say. Rest is O.K.
Yours faithfully (Sd.)
Syed Abdul Rehman."
(Underlines* are made by me).
' Perusal of the above letter dated 4th January, 1969 (Exh. 5/7), would show that there is no mention of any gift either of the Quarter in question or of the shares allegedly made by Muhammad Saeed to Mst. Salima Begum as has been subsequently claimed for the first time in the affidavit filed in this case in support of the caveat.
' There is another letter dated 6th January, 1969 (Exh. 5/8) which has been produced in cross- examination of Mst. Salima Begum, which she admitted to have been written by her son Farhad who according to her knew about the gift. This letter has been written by Farhad (son of Defendant No, 1 Mst. Salima Begum) to Mst. Fasiha daughter of the deceased, Defendant No, 2 (d), Relevant portion (English translation) reads as follows :- "On 11th December, 1968 I had written a letter by Air Mail. Hope you have received it. Your happy new year card was received. You have not replied to my previous letter. You please write to mother to send us a letter of authority from her as many works of 'Mamu' have come to stand still. Mamu Sahib had taken loan from her company and his funeral expenses are also to be paid. I, therefore, once again write this to you. You may have full confidence that nothing belonging to Mamu Sahib will be changed. You try to come as possible. I hope you will get this work done as early as possible as delay will cause detriment loss."
' From the perusal of the above, I find that no mention has been made about the alleged gift, in this letter as well. On the contrary [Here italics] ' the heirs of the deceased are being assured that the deceased had died intestate and that nothing belonging to him would be changed.
' Mst. Akhtarunissa the widow, then came to Karachi and visited the defendant No, 1 (Mst. Salima Begun)). She made demand for delivery of possession of the Quarter in dispute and the other assets and belongings of the deceased to her. She was given the shares of the company which stood in the name of the deceased Muhammad Saeed. This apparently annoyed the family of defendant No, 1 as appears from the letter written in June, 1979 (Exh. 5/9) by Farhad to Mst. Fasiha.
Defendant No, 2 (d), wherein after narrating the incident about the visit of Mst. Akhtarunissa and delivery of shares to her, he further wrote that her mother had stated on her visit that she had not yet initiated any action because of Martial Law and that they would go away and return after Martial Law. In the said letter he also wrote :- "We told her that we had paid Mamu Sahib Rs, 6000 being money of the house and he had said that in 1970 he will transfer the house in the name of my mother as he had just taken loan from I. C.
P. Company.
(Underlines are made by me).
(Sd.)
K. A. Ghani. J."
' This letter which is admitted by Defendant No, 1 to have been written by her son, also falsifies the story of alleged gift of the house or share or by the deceased allegedly made in June, 1967 (during his lifetime) in favour of defendant No,
1. On the contrary, it was claimed that Mst. Salima had contributed Rs, 6000 in purchase of the house in question and that Muhammad Saeed during his life time had promised that he would transfer the said house in the name of defendant No, 1 in 1970.
' The case that gift was made in June, 1967 is, therefore, obviously a false story set up for the first time after the filing of the petition for grant of Letters of Administration.
(vii) The learned counsel for the plaintiff also made reference to the letter, dated 12th December, 1968 (Exh. 6). Mr. S.A. Rehman, the husband of the Caveator, on 12th December, 1969 in this letter wrote to Messrs Batala Engineering company Limited as follows :- "This is to inform you that my brother Mr. Mohomed Said son of Abdul Rahim residing at 737/1, Federal '13' Area, Karachi, expired on 18th November, 1968 and as such I am making arrangement to obtain power of attorney from the Court to operate his shares. I, therefore, request you not to deal with any other person without informing me.
(Underlines are by me)
(Sd.)
K. A. Ghani. Judge.
[Here in italics] ' It is significant to note that in this letter also the husband of defendant No, 1 did not claim that any alleged gift of the shares was made by the deceased Muhammad Saeed in favour of Defendant No, 1, Mst. Salima Begum. When confronted with the above-mentioned letter S. A. Rehman admitted that it was correct that he had made no mention of the gift in that letter (Exh. 6). The only explanation he could advance for such a material omission was that the object of the said letter was to inform the company so that nobody else should deal with the shares. The explanation is not only obviously false but an attempt to justify a material omission in respect of alleged gift which was never made. There is considerable force in the argument advanced on behalf of the plaintiff that had there been any gift from Muhammad Saeed in favour of Mst. Salima in June, 1967 as claimed in the affidavit filed in opposition to the grant of Letters of Administration, the defendant No, 1 and ber husband would have certainly asked the company for the transfer of shares in their favour as the Donee and would not have written that arrangement was being made to obtain power of attorney from the Court to operate the shares of the deceased in the said company. The plea of obtaining power of attorney to deal with the shares obviously negatives the story of alleged gift of the shares.
(viii) I would now like to refer to certain other circumstances which have relevancy in resolving the controversy of the gift alleged to have been made by Muhammad Saeed in favour of defendant No, 1 Mst. Salima Begum.
At the very out set it may be mentioned that no documentary evidence whatsoever has been produced in support of the plea of the gift alleged to have been made in June, 1967.
The allotment of the quarter in question was admittedly made in favour of Muhammad Saeed (deceased) on 7th July, 1960 (Exh. 5/1). The alleged gift is stated to have been made by deceased in favour of Mst. Salima Begum in June, 1967. However, from the date of the alleged gift till the filing of the affidavit in support of the caveat by defendant No, 1 on 14th April, 1973 in this case, no claim of alleged gift was ever made by defendant No,
1. In the said affidavit in para. 9 it was for the first time claimed that during the period between May, 1967 and November, 1968 the deceased purchased shares of various companies with the aid and assistance of the deponent (Mst. Salima Begum).
She then in para. 10 has stated that in appreciation of the services rendered by her to the deceased right from 1951 till November, 1968, the deceased made an oral gift of the Quarter as well as the shares "to her and her husband". The motive for making the alleged gift was stated to be that Muhammad Saeed (deceased) made the said gift saying that since his wife and children deserted him and since defendant No, 1 had rendered services for him by looking after him she shall be the owner of the properties movable and immovable. In the affidavit she claimed to have accepted the said gift. It is also stated in the affidavit that she offered to hand over the shares to the members of the family of the deceased in spite of the gift, but according to her the petitioner and his mother wanted to have the quarter in which the respondent (Mst. Salima Begum) has been residing.
' However, in her evidence in support of the gift she put up a totally different story and stated that in June, 1967, her brother (Muhammad Saeed) gifted the house and the shares to her and also delivered the possession of the documents of title as well as the share certificates. This was done in the presence of M. K. Rehman and her husband. She claimed that she accepted the gift and that her brother was pleased with her on account of services rendered by her and that this was the reason for the gift made in her favour in spite of having wife and children.
' It will be seen that in the affidavit she had stated that the shares were purchased between the period of May, 1967 and November, 1968 and that in appreciation of her services rendered to him right from 1951 till November, 1968, deceased Muhammad Saeed had made an oral gift of the quarter as well as of the shares of the various companies in her favour.
' The defendant No, 1 in her statement in the affidavit endeavoured to show that the gift was made somewhere in May, June, 1967 for the services rendered during the period right from 1951 till November, 1968 whereas in her deposition, as noted above, she claims that the gift was made in May, 1967. The case, thus, set up in the affidavit filed in support of caveat has been given up and a new case was attempted to be set up in the evidence. One fails to understand how a gift could have been made in June, 1967, for services rendered 'till November, 1968'.
'Moreover, the statement of defendant No, 1 to the effect that the alleged gift was made in the presence of her husband (S. A. Rehman) and one Mr. S. K. Rehman is contradicted by her own husband (S. A. Rehman Exh. 21), who in his deposition during cross-examination stated, "at the time of gift myself, my wife and my son Farhad and deceased Muhammad Saeed were there and nobody else was there". Evidence of defendant No, 1 about the alleged gift and the presence of witnesses thus cannot be relied upon.
It would be recalled, Muhammad Saeed to whom the quarter was allotted, died on 18th November, 1968 and that the alleged gift is shown to have been made in June, 1967. However, between June, 1967 till the death of Muhammad Saeed on 18th November, 1968 we find that neither any attempt was made to get the ownership of the quarter changed in favour of Mst. Salima Begum in the records of K.D. A, which would have been the normal and natural consequence if the gift in fact had been made. Nor there is the slightest possible evidence to show that Mst. Salima Begum after she became alleged owner ever made in her own name payment of taxes or water charges or any other dues in respect of the said quarter, between June, 1967 to November, 1968. The alleged possession F of the title deeds of the said quarter or the share scripts by the defendant No, 1 would be of no consequence as Muhammad Saeed and Mst. Salima Begum were residing in the same quarter and particularly also in view of her own statement that her brother "used to keep all the documents with her throughout".
(ix) Thus, the plea raised by the Caveator that Md. Saeed during his life time made gift of the quarter in dispute in her favour, is false and has to be rejected.
(x) As regards the gift of the shares of the various companies and other assets, reasons given as above also apply to the alleged gift made in respect of these shares as well. Neither attempt was made after the alleged gift, stated to have been made in June, 1967 to get the said shares transferred in favour of the alleged donee nor the transfer deeds in respect of the said shares were signed and delivered by Muhammad Saeed. Moreover, there is not an iota of evidence to show that between June, 1967 till the death of Muhammad Saeed on 18th November, 1968 for any of the shares, the alleged Donee ever received dividend or she was allowed to appropriate the dividends by Muhammad Saeed during his lifetime.
' It is also admitted by defendant No, 1 that she had offered to hand over the shares to the members of the family of the deceased in spite of the gift but the heirs refused to give up the claim in respect of the quarter in dispute.
(xi) On behalf of the plaintiff was examined Mst. Akhtarunissa, the widow of the deceased, who in her evidence gave the story as to migration of her husband and her continuing to remain with her children in India. She is an educated lady. She did her M. Sc., M. Ed. And has diploma in teaching.
She stated that after the death of her husband for a month the defendant No, 1 did not inform her about his death and that she came to know about it through a family friend. According to her, before his death she had visited Karachi in May, 1968 and subsequently after her return to India, her husband died on 18th November, 1968. She admitted to have received some share certificates from defendant No, 1 and further stated that the documents relating to the quarter were also asked for but the defendant No, 1 replied that they were not available with her. She in her cross-examination denied the suggestion made that "her husband had gifted the properties to Mst. Salima Begum the defendant No, 1 as he did not like her (i,e, the widow).
' On behalf of the heirs, one Deen Muhammad Qasim was also examined who deposed that Muhammad Saeed was his neighbour and he lived in front of his house from 1958 to 1962 and thereafter the said witness shifted to North Nazimabad. This witness deposed that till they were neighbours, he used to visit Muhammad Saeed almost every day and that also after shifting to North Nazimabad they continue to see each other at least twice a week, and that Muhammad Saeed during his lifetime never informed him about any alleged gift in favour of the defendant No,
1. This witness further deposed that a few days before his death, Muhammad Saeed became sick and that he was shifted by him to hospital where he (Muhammad Saeed) remained for 8 days, during which period he remained unconscious. This witness further stated that he had taken the corpse (of Muhammad Saeed) to his house and arranged for his funeral. In his cross-examination, the witness stated that in the year 1967 Muhammad Saeed had not informed him that he had gifted the quarter to Mst. Salima Begum.
' In the light of the evidence on record, the reasons for not believing the story of the alleged gift by Muhammad Saeed to Mst. Salima Begum may be summarised as follows : In the first place it would be seen that the alleged gift is stated to have been made as per case set up in the affidavit filed in support of the Caveat in appreciation of services rendered by the defendant No, 1 to Muhammad G Saeed (the deceased) from 1951 to November, 1968. This case was given up in the evidence wherein the date of the gift was mentioned as June, 1967.
' The gift was alleged to have been made in the presence of M. K. Rehman and S.A. Rehman.
However, S.A. Rehman (the husband of the Caveator) expressly stated that at the time of the gift he, his wife (the Caveator), his son Farhad and Muhammad Saeed were there "and nobody else was there". The presence of M. K. Rehman was thus expressly excluded. Farhad, (the son of the Caveator), who it is claimed was present at the time of the gift, a material witness, was not examined. The documentary evidence which has been referred to above negatives the story of alleged gift.
(xii) Even after the alleged gift no steps were taken during the lifetime of Muhammad Saeed for the transfer of the quarter or the shares from the name of the deceased Muhammad Saeed to the name of the alleged Donee the Caveator.
' For all the above reasons I am satisfied that the defendant No, 1 has miserably failed to prove that any alleged gift was made in her favour by Muhammad Saeed either in respect of the quarter or the shares of the various companies.
' The Issue No, 2 is accordingly answered in negative.
10. Before concluding I may mention here that the learned counsel for the Caveator during the course of the arguments on 7th March, 1983 moved an application (C.M.A. No, 912/1983) for framing of additional issues as to raise the question that the heirs of Muhammad Saeed are residents of India, an enemy territory, and that they cannot bring a suit in Pakistan.
' I am afraid this application is nothing but an attempt to prolong the proceedings and to continue to grab the property left by Muhammad Saeed. This application was obviously moved after the defendant No,
1. Caveator realized that she has miserably failed to prove the story of alleged gift.
This application cannot be entertained for the reason that on 13th February, 1976 the Advocate had dropped Issue No, 1 (which covered these proposed issues) and thereafter the parties went to trial and concluded their evidence. There are instances where the custodian of Enemy Property informed the Courts that the properties of Indian Muslims according to Government policy are not to be treated as enemy properties.
' By allowing defendant No, 1 to raise these new issues, the entire case would be re-opened raising new disputed questions of fact. This obviously cannot be permitted,
11. Issue No, 3 : ' For the reasons discussed above, the prayer made (suit) is allowed. The decree shall be drawn as provided the Sind Chief Court Rules (O.S.)
' The defendant No, 1 shall also bear the costs of the in the petition in rule 413 of suit.