' This is an administration suit in respect of the estate of one Haji Ilam Din who died intestate in Kenya. Originally the plaintiffs were Nasiruddin and Mukhtar Begum, but later on defendant Iqbal Begum made an application (C.M.A. 2094/82) to the Court that she may be transposed as a Plaintiff. This application was granted by order, dated 2-6-1983 and defendant Iqbal Begum became plaintiff No,3. Similar application were made by another defendant Mst. Shamim Akhtar (C.M.A. Nos. 4889/84, and 5397/84) and by order, dated 14-1-1985, the request of Mst. Shamim Akhtar was allowed and she became plaintiff No, 4
2. Deceased Haji Ilam Din had died on 18-9-1972. He had married four times. His first wife died without any issue. Second wife Aysha Begum died during the lifetime of Haji Ilam Din. From Aysha Begum, Haji Ilam Din had the following children:-
(1) Mat. Zainab, Defendant No.4
(2) Mst. Iqbal Begum Plaintiff No.3
(3) Mst. Mukhtar BegumPlaintiff No. 2.
(4) Najmuddin Defendant No. 1
(5) Nasiruddin. Plaintiff No. 1.
Mst. Zohra, the third wife of Haji Ilam Din, also died in his life time. Out of this wedlock the following children were born:-
(6) Mst. Shamim AkhtarPlaintiff No. 4.
(7) Waliuddin Defendant No. 2
(8) Zahiruddin Defendant No.3.
(9) Mumtaz Karim Defendant No.5.
(10) Mst. Nasim AkhtarDefendant No.6.
(11) Mst. Asmat BegumDefendant No.7.
' There was also another wife (fourth) but she was divorced by Haji Ilam Din and there was no issue from her.
' It is an admitted position that in Pakistan Hail Ilam Din left behind two properties, one in Lahore and other in Karachi, and these were: -
(a) Khawaja Manzil on Plot No,21-A, Alamgir Road, Bahadurabad, Karachi. This plot is 325 sq. Yards in area and in the building constructed on this plot, there are shops on the ground floor and residential flats on upper storeys;
(b) Khawaja Manzil on Plot No,15, Haque Street, Urdu Bazar, Lahore.
4. Parties to this administration suit are the 11 children of Haji Ilam Din--four sons and seven daughters and their share in the estate, according to Muslim Law of inheritance, comes to 2/15 for each son and 1/15 for each daughter.
5. After the death of Haji Ilam Din, a petition for grant of letters of Administration was filed in this Court by defendant No,1 Najmuddin under section 278 of the Succession Act in respect of the immovable properties left by late Haji Ilam Din and this was numbered as Miscellaneous Application No, 10/74. This petition was granted on 25-5-1974, and Letters of Administration were issued to Najmuddin, defendant No,l. It may be observed here that in pars 4 of his memo of petition for grant of Letters of Administration, defendant No,1 had stated that his father Haji Ilam Din died intestate and that due and diligent search had been made for his will but none had been found.
' All the other children of Haji Ilam Din had filed their affidavits recording their no objection to the grant of Letters of Administration to Najmuddin. As observed earlier this petition was allowed and Letters of Administration was granted to defendant No,1 Najmuddin by order, dated 26-5-1975 passed in Miscellaneous Application No,10/74.
6.. In the present administration suit, it is alleged that defendant No,1 had been collecting rent of the aforesaid two properties since 18-9-1972, the date of the death of Haji IIam Din, and that defendant No,12 had disposed of illegally the property at Lahore on 28-4-1976 without the permission of the Court. According to the plaintiffs, defendant No,1, as administrator, had failed to render accounts of the properties and as such Nazir of this Court was appointed as Receiver of the Karachi property by order, dated 20-10-1979 passed in Miscellaneous Application No,10/74. The plaintiffs have claimed that they are entitled to their respective shares under the Muslim Law of inheritance in the properties left by their father Haji Ilam Din and they have also claimed their share in the rent of the properties.
' In the written statement on behalf of the defendant it was admitted that the Lahore property had been sold on 29-4-1976 for Rs,40,000. It was averred that the action of disposing of the Lahore property was bona fide and in the interest of all the heirs of the deceased. It is further mentioned in the written statement that proper accounts have been rendered by defendant No,1 in respect of the rent received from the Karachi property. It was further averred that the plaintiffs had been paid their share in the two properties left by Hap Ilam Din and that nothing was due to the plaintiffs and that defendants had surrendered their share in the rent of the properties in favour of defendants Nos.2 and 3, Waliuddin and Zahiruddin. The written statement was filed on 6-5-1982 by one Ashiq Hussain Hashmi as the attorney of the defendants.
' The following issues, suggested by the learned counsel for the plaintiffs, were adopted on 17-4- 1983:- ' Whether preliminary decree be passed to administer Karachi property in Court ?
' Whether defendant No 1 is liable to submit accounts of both the properties situated in Lahore and Karachi from the date of death of 'Haji Ilam Din, that is, from 18-9-1972 onwards?
' Whether defendant No,1 is liable to deposit sale proceeds of Lahore property of Rs, 40,000 in Court?
' Whether plaintiffs Nos. 1 and 2 are entitled to recover their respective shares both in rent and estate from the two properties situated in Lahore and Karachi from the date of the death of their father ?
' What should the final decree be ?
' It may be observed here that in view of the transposition of original two defendants, namely Mst.
Iqbal Begum and Mst. Shamim Akhtar as plaintiffs, in issue No .4, instead of plaintiffs Nos.1 and 2, plaintiffs Nos.1, 2, 3 and 4 is to be read.
7. On behalf of the plaintiffs, two witnesses gave evidence, namely, P.W.1 Shamsuddin (Exh. 5) and P.W.2 Mst. Mukhtar Begum (Exh.6) and their side was closed on 10-9-1984. On behalf of the defendants only defendant No,1 Najmuddin appeared in the witness box as Exh.7. After his evidence, learned counsel for the defendants closed the side of the defendants on 8-10-1984.
' P.W.1 Shamsuddin (Exh.5) is a tenant of the Karachi property, carrying on business of a hotel on the ground floor of Khawaja Manzil, Alamgir Road, Bahadurabad, Karachi. He stated in his evidence that even after the death of the owner Haji Ilam Din, Ashiq Hussain Hashmi, attorney of the owner, contained to collect the rent from the tenants. Apparently the purpose of the plaintiffs in producing this witness was to show that rent was being collected on behalf of the defendants by attorney Ashiq Hussain Hashmi and that the plaintiffs had not received share of the rent which was being collected by the attorney Ashiq Hussain Hashmi. While the examination-in-chief of P.W.1 Shamsuddin was going on, Mr. S. Nasiruddin, learned counsel for the defendants, made the following statement, which was brought on record.
"At this stage, Mr. S. Nasiruddin, learned counsel for the defendants states that Ashiq Hussain, at present attorney of all the defendants, has collected the rent of all the tenements of Khawaja Manzil with effect from 18-9-1972, when Haji Ilam Din died, till the Receiver was appointed by this Court in the present suit."
' The main witness on behalf of the plaintiffs was plaintiff No,2 Mst. Mukhtar Begum (Exh.6). In her evidence, she has given the details about marriages contracted by Haji Ham Din and the children born to him. She then stated that after the death of their father, all the legal heirs of Haji Ilam Din had given Mukhtarnama to defendant No,1 Najmuddin. According to her, Najmuddin had asked for authority from all the legal heirs so that he could collect rent and manage the properties of Haji Ilam Din. She stated that pursuant to this authority, defendant No,1 Najmuddin obtained Letters of - Administration in Miscellaneous Application No,10/74, but, according to her, Najmuddin illegally and without authority and without permission from this Court, sold the Urdu Bazar property in Lahore and that she came to know after a long time that the property had been sold. She further stated that she had asked about the Lahore property and defendant No,1 told her that he had sold the property for Rs,40,000. In the assessment of Mst. Mukhtar Begum, Urdu Bazar, Lahore property was worth about Rs,2,50,000. She produced copies of various orders -passed in Miscellaneous Application No,10/74 and stated that order passed for deposit of Rs,40,000 and for submission of accounts of rent collected by defendant No,1 was not complied with by defendant No,
1. She has further stated that none of the plaintiffs have received any share in the estate of Haji Ilam Din or any income from the estate except that an amount of Rs,9,000 had been received by Mst. Mukhtar Begum from the Nazir as Receiver on account of rent. She wanted that she should get her share in the estate of Haji Ilam Din and also her share in the income from the properties. In her cross- examination, she admitted that plaintiff No,3 Mst. Iqbal Begum has given in writing that she had received her share and that she has no claim against defendants, but she added that signatures of Iqbal Begum had been taken by defendant No,1 but her share has not been given. She also admitted that plaintiff No,1 Nasiruddin had also given in writing that he had received his share but in fact he had not received his share as he was in hospital as a patient of paralysis. She stated that Mst.Mukhtar Begum stated in evidence that she was not present when plaintiff No,1 Nasiruddin and plaintiff No,3 Mst. Iqbal Begum had given their consent in writing and that at that time Mst. Iqbal Begum was in Nairobi and Nasiruddin was in U.K, whereas she was residing in Karachi. She also accepted that all the defendants have received their share and if they have not received their share they must have come to some settlement.
' As observed earlier, the case of the defendants has been that all the plaintiffs have been paid their share in the estate left by Haji Ilam Din. Documents have been produced by defendant No,1 in his evidence to show that except for plaintiff Mukhtar Begum, all the other parties to the present suit have given in writing that they have received their share in the estate of the deceased. Mukhtar Begum has not given anything in writing that she had received her share. The case of the defendants was put to Mukhtar Begum in the following question, which was asked in her cross- examination:- "Question:- Is it correct that Najmuddin had paid an amount of Rs,30,385.05 by cheque ?"
' The following answer was given by Mst. Mukhtar Begum to this question:- "In August, 1972 when my father was alive he had sent a cheque of 28,000 shillings from Nairobi to me. I had received the same as financial assistance on account of the engagement ceremony of my daughter. I had signed the cheque and then sent it back to my father who then transferred the money to London. Ater our father's death Najmuddin sent this money directly from London by cheque, which was deposited in my account, Sind Islamia Branch, Karachi. In this connection there is an order of the Hon'ble Chief Justice in Miscellaneous Application No, 10/1974.
8. As already observed, on behalf of the defendants only defendant No,1 Najmuddin appeared as a witness (Exh.7). In his evidence, Najmuddin stated that Haji Dam Din had made a Will in 1964 in which he disowned plaintiffs No,2 and 3. Copy of such Will has not been produced. No reliance can be placed on this statement of defendant No,1 in his evidence. In his memo of petition for grant of Letters of Administration, defendant No,1 had stated in very clear terms that Haji Ilam Din had not left any Will and he died intestate and that all the parties to the present suit were legal heirs of Haji Ilam Din..
' Defendant No, 1 admitted that aforesaid two immovable properties had been left by Haji Ilam Din.
He then stated that, after the death of Haji Ilam Din, all the legal heirs decided by mutual consent that immovable properties of Haji Ilam Din in Pakistan will be taken over by 4 sons and the daughters will be paid their share by 4 sons. He then stated that he has given shares to those of his sisters, who were out of Pakistan by making payment to them there and he gave share to Mst.
Mukhtar Begum in Karachi. He deposed as follows:- " I may clarify that apart from the two immovable properties left by my father in Pakistan, he had also left 100,000 Kenyan shillings in Barclay Bank, Nairobi, Kenya. Immediately after the death of our father, as per the arrangement between all the legal heirs, we made an estimate of the value of the two Pakistan properties and this came to Rs,3,28,580, and to this, amount of 1,00,000 Kenyan shillings, which was at per to Pakistan rupee at that time, was added and the total came to Rs,4,28,508. According to Sharia, we made 15 shares and I distributed the shares to the sisters according to their shares under the Muslim Law of inheritance. The shares of the daughters (sisters) were given to them by me prior to obtaining letters of administration. After I had obtained letters of administration from the High Court at Karachi I sold the Lahore property through registered sale-deed for a sum of Rs,40,000 on 28-4-1976. I had been told by Mr. Shah Yacoob, Advocate, that under the letters of administration I could sell the properties. The Karachi property has not been sold. The Karachi property still stands in the name of our deceased father, Haji Ilam Din in the relevant records. During his lifetime, my father had appointed one Ashiq Hussain Hashmi as attorney to collect the rent of the Karachi property. After his death, Ashiq Hussain Hashmi continued to collect the rent and I also gave him a power-of-attorney to collect the rent after letters of administration had been granted to him. Till the time receiver was appointed in respect of the Karachi property by this Court, I had been collecting rent of the Karachi property through Ashiq Hussain Hashmi. I have submitted the account of the rents collected by me in respect of the Karachi property to the Nazir of this Court from the date the letters of administration were granted to me till such time the receiver was appointed by this Court."
' As regards the payment of Mst. Mukhtar Begum, Najmuddin stated as follows in his evidence:- "I do not remember now how much money I had given to Mst. Mukhtar Begum after the death of our father. I also do not remember the exact date when I had made payment to Mst. Mukhtar Begum. However, I again state that I had made the payment to Mst. Mukhtar Begum. The payment that I had made to Mst. Mukhtar Begum was from my own fund. I had paid this money to Mst.
Mukhtar Begum through bank."
' As regards the question of rent from Lahore property, he stated that his father's cousin Ghulam Nabi was residing in Lahore property and he was collecting ell the rent of the two shops and he never paid any amount of rent to defendant No,
1. He further stated that he surrendered his share in the Karachi property in favour of his brothers Waliuddin and Zahiruddin and that plaintiff No,1 Nasiruddin also surrendered his share in favour of Waliuddin and Zahiruddin. He stated that the sons who surrendered their share in favour of Waliuddin and Zahiruddin received Rs,90,000 each from Waliuddin and Zahiruddin. He also stated that he had received Rs,90,000 on 12-9-1977 whereas the final payment to Nasiruddin had been made on 21-7-1978.
' He further deposed that share of Mst. Mukhtar Begum in the two properties left by Haji Ham Din together with 1,00,000 shillings came to Rs,28,672 which he paid to Mst. Mukhtar Begum. In answer to the question whether he had any document in his possession to confirm that Rs,28,572 was paid by defendant No,1 to Mst. Mukhtar Begum, he answered.
"The transaction had been effected through Habib Bank Limited, Wood St.Branch, Karachi. This is a very old matter and I do not have any document with me in this connection."
' He also stated that it was correct that at present he had no share in Karachi property and the Karachi property belonged to Waliuddin and Zahiruddin. He also admitted that his fare for coming to Karachi and back to U.S. Has been paid by Waliuddin.
9. I have heard at length the arguments of Shah Yakoob, learned counsel for the plaintiffs, and Mr. Syed Nasiruddin, who appeared for all the defendants.
10. ISSUE NO.1 is whether preliminary decree be passed to administer the Karachi property. The case of the defendant has been that the shares of the plaintiffs have been paid and as none of the defendants wants any relief, no case has been made out for passing of a preliminary decree.
According to the defendants, the plaintiffs have already received payment in respect of their claims in the estate of Haji Ilam Din and apart from Mst. Mukhtar Begum, there is acknowledgement in writing on behalf of all the plaintiffs about satisfaction of their claims in the estate of the deceased.
' I will first take up the case of plaintiffs Nos.1, 3 and 4. In the evidence of defendant No, 1 Najmuddin, declarations on behalf of plaintiffs Nos.1, 3 and 4 have been produced and also powers of attorney given by these plaintiffs. According to these documents, plaintiffs Noi.1,3 and 4 have already received their shares in the Karachi property. Then there is the evidence of defendant No,1 also to the effect that they have been paid their shares in the properties left by deceased Haji Ilam Din. On behalf of the plaintiffs, only plaintiff No,2 appeared in the witness box and subjected herself to cross-examine. No other plaintiff came in the witness box. In her cross-examination, plaintiff No,2 Mukhtar Begum has admitted that plaintiff No,3 Iqbal Begum has given in writing that she had received her share and she has no claim against the plaintiff No,l. She added that the signatures of Iqbal had been obtained by defendant No,1 but her share had not been given. A similar statement was made with regard of plaintiff No,1 Nasiruddin. Then no suggestion was put to defendant No,1, when he was in the witness box that any of the declarations or powers-of-attorney were obtained under duress or by fraud or that plaintiffs Nos. 1, 3 and 4 have not been paid their shares in the Karachi property or that plaintiffs No,1, 3 and 4 have not relinquished their shares therein. In these circumstances, my finding is that, in so far as plaintiffs Nos.1, 3 and 4 are concerned, the defence of the defendants that these plaintiffs have been paid their shares in the Karachi property and that they have relinquished their rights therein, has been proved, and these three plaintiffs, namely palintiffs Nos. 1, 3 and 4, are not entitled to any relief in respect of the Karachi property.
' As regards plaintiff No,2 Mukhtar Begum, it is an admitted position that there is no writing from her to the effect that she had received her share in the estate of Haji Ilam Din or that she had relinquished her share. In her evidence, she has stated that, except for Rs,9,000, which she had received from the Court on account of her share in the rent of the Karachi property, she has not received any share in the estate of Haji Ilam Din or in the income from the properties. The case of defendants is that value of the two Pakistani properties came to Rs,3,28,580 and to this an amount of 1,00,000 Kenyan shilling was added and the total came to Rs,4,28,508, and according to Sharia, 15 shares were made and defendant No,1 distributed the shares to the sisters according to their share under the Muslim Law of inheritance. It is, therefore, stated in the evidence of defendant No,1 that according to this calculation the share of plaintiff No,2 Mukhtar Begum came to Rs,28,572, which he paid to Mukhtar Begum.
' The share of plaintiff No,2 Mukhtar Begum does not come to Rs,28,572 if figure of Rs,4,28,508, given by defendant No,1 as the total value of the estate of Haji Ilam Din, is divided by 15. Then in Miscellaneous No,10/74, the case of defendant No,1 was that Rs,30,400.05 was remitted by defendant No,1 to plaintiff No,2, Mukhtar Begum. The figures differ. If there was a settlement with plaintiff Mukhtar Begum, a definite amount must have been paid to her. There would be no scope for uncertainty in this regard.
' Defendant No, 1 was also asked in the cross-examination whether he had any document in his possession to confirm that Rs,28,572 had been paid by him to Mst. Mukhtar Begum and his reply was that he did not have any document in his possession as the transaction was an old matter. He had stated that the transaction had been effected through Habib Bank Ltd. Wood St.Branch, Karachi. No effort was made to call any employee of Habib Bank Ltd, Wood St. Br., Karachi to prove that any amount had been paid by defendant No,1 to plaintiff No,2 Mukhtar Begum after the death of Haji Ilam Din.
' Reference may also be made here to an order, dated 18-10-1980 passed in Miscellaneous Application No,10/74 (Petition for Letters of Administration). In that petition for grant of Letters of Administration, an application had been made by Mukhtar Begum that she should be paid some amount as nothing had been received by her from the estate of Haji Ilam Din. At that stage, on behalf of defendant No,1 a plea was taken that a sum of Rs,30,400/65 (and not Rs,28,572 which is his case in this suit) had been paid to plaintiff No,2 Mukhtar Begum as her total share in the estate of the deceased. In an affidavit filed by Mst. Mukhtar Begum in Miscellaneous Application No, 10/74 it was stated that a sum of Rs, 30,385 had been given to Mst. Mukhtar Begum during the lifetime of her father and that this had nothing to do with the distribution of the estate of Haji Ilam Din after his death. Relevant part of the order, dated 18-10-1980 in Miscellaneous Application No, 10/74 reads as follows:- "No receipt issued by Mst. Mukhtar Begum has been produced before me but Mr. M. Shakir Naqshbandi (who was appearing for the defendant No,1 in Miscellaneous Application No,10/74) has shown me a certificate of Habib Bank Ltd, Foreign Exchange Branch, Karachi, dated 13-2-1973 stating that a sum of L 1,143 equivalent to Rs,30,400.05 was remitted by one Ramzan in favour of Najmuddin Khawaja. This document is hardly of any use in the present dispute, as the amount was remitted during the lifetime of the deceased, and that too not in favour of Mat. Mukhtar Begum."
' In Miscellaneous Application No,10/74, therefore, the case of the defendant No,1 was that a sum of Rs,30,400.05 had been paid and some certificate was shown to the Court at that time. No certificate has, however, been produced in the present case by defendant No,1 in his evidence. As neither any certificate from Habib Bank Ltd. Has been produced nor any witness from Habib Bank Ltd. Was called, the inference, in the circumstances, is that in case such certificate had been produced or witness had come for evidence, such certificate and evidence would not have supported the case of the defendants. The bare and oral statement that the share of plaintiff No,2 Mukhtar Begum had been paid, which has been denied by plaintiff No, 2, has not proved that plaintiff No,2 has been paid her share in the estate of Haji Ilam Din.
' Mr. S. Nasiruddin, learned counsel for the defendants relied upon the following answer given by the plaintiff No,2 Mukhtar Begum to the question that defendant No,1 had paid her an amount of Rs,30,385.05 by cheque.
" In August, 1972 when my father was alive he had sent a cheque of 28,000 shillings from Nairobi to me. I had received the sum as financial assistance on the occasion of engagement ceremony of my daughter. I had signed the cheque and then sent it back to my father who then transferred the money to London. After our father's death, Najmuddin sent this money directly from London by cheque which was deposited in my account in Sind Islamia Branch, Karachi."
' According to Mr. S. Nasiruddin, learned counsel for the defendants, this answer of plaintiff No,2 Mukhtar Begum read with the oral testimony of defendant No,1, establishing that plaintiff No,2 Mukhtar Begum has been paid her share in the estate of the deceased. I am not impressed by this statement by the learned counsel for the defendants. Plaintiff No,2 has all along remained in Karachi. If payment had been made to her as a part of any settlement after the death of Haji Ilam Din, a receipt or document in writing would have been obtained from her or she would have given some declaration or other statement in writing. This has not been done, which indicates that no payment had been made to her on account of her share in the estate of the deceased. As regards the payment of Rs,30,385.05, the answer of plaintiff No,2, which, has been reproduced hereinabove, gives a satisfactory reply. In anycase the burden was on defendants to establish prove that plain& D No,2 had been paid her share and she had relinquished her right interest in the properties left by Haji IIam Din and this burden has not been discharged.
' My finding is that plaintiffs Nos.1, 3 and 4 have been paid their share in the Karachi property left by the deceased and they have relinquished their rights therein but plaintiff No,2 has not been paid her share in the properties left by Haji Ilam Din and she has not relinquished her share. Plaintiff No,2 is, therefore, entitled to a preliminary decree for administration of the Karachi property left by late Hail Ilam Din. It may be observed here that Exh.7/1 is the power-of-attorney given by plaintiff Shamim Akhtar and three of the defendants to Ashiq Hussain Hashmi, and Exh.7/2, 7/8 and 7/9 are declarations of plaintiffs Shamim Akhtar, Iqbal Begum and Nasiruddin in respect of the Karachi property. There is no declaration or writing of any of the four plaintiffs in respect of the Lahore property.
11. Issue No,2 is about the liability to submit accounts of the properties situated in Lahore and Karachi from 18-9-1972, the date of the death of Haji Ilam Din. From 18-9-1972, till Receiver appointed by this Court in Misc. Application No,10/74 took over charge of the Karachi property the defendants are liable to render accounts of rents of Karachi property to plaintiff Mukhtar Begum. As regards the Lahore property from 18-9-1972 till the date when defendant No,2 sold the Lahore property, i.e. 29-4-1976, defendant No,1 is liable to render the accounts of rent to all the four plaintiffs. All the four plaintiffs have share in the rents of the Lahore property according to the Muslim Law of inheritance as it has not been proved that any of the plaintiffs had received their share in the Lahore property or had relinquished their rights therein. Issue No,2 is decided accordingly.
12. Issue No,3 is whether defendant No,1 is liable to deposit sale proceeds of Lahore property of Rs,40,000. Lahore property had been sold unauthorisedly by defendant No,1. No permission had been taken by defendant No,1 from the Court in Miscellaneous Application NO.10/7 or in any other proceedings for the sale of the Lahore property. It I apparent that the Lahore property was sold to deprive the other legal heirs who had not received their share in the properties. The sale was also not bona fide. As the property had been sold by a register. Deed, I do not consider it proper to cancel the sale as it would crest complications for the third parties but to find out whether the Lahore property had been sold at the market price it is considered proper that the Receiver, who is being appointed under this judgment, is also directed to find out the market value of the Lahore property on 29-4-197 when defendant No,1 illegally sold the said property. In the amount so ascertained, the share of the plaintiffs will be 2/15 for plaintiff Nasiruddin and 1/15 for each of the other three plaintiffs. Issue No, is decided accordingly.
' It may be observed that all the four plaintiffs had shares in the Lahore property according to the Muslim Law of inheritance. Documentary evidence adduced by the defendants has only established that after the death of Haji Ilam Din, plaintiffs Nos.1, 3 and 4 had received their share in respect of the Karachi property. In respect of the Lahore property, there is no documentary evidence that the plaintiffs had surrendered their rights therein after the death of Haji Ilam Din. Oral evidence in this regard is the bold statement of defendant No, 1, which has been denied by plaintiff Mukhtar Begum in her evidence. The burden to establish that the plaintiffs had been paid their share in the Lahore property was on the defendants, which burden has not bee discharged by the oral testimony of defendant No,1. Plaintiff, therefore, should get their shares, in the Lahore property on the basis of it market value as on 29-4-1976.
Issue No,4 is covered by issues Nos.1, 2 and 3 and accordingly stands decided by my findings on issues Nos.1, 2 and 3.
14. In view of my findings on issues Nos.1, 2, 3 and 4, I pass a preliminary decree for administration of the estate of deceased Hail Ilam Din left in Pakistan and appoint Mr. A.A.Dareshani, an Advocate of this Court, as the Receiver. It is hereby declared that the estate of the deceased in Pakistan comprised the Karachi property, namely, Khawaja Manzir on Plot No,21-A, Alamgir, Road, Bahadurabad, Karachi, and the Lahore property, namely Khawaja Manzil on Plot No,15, Haque Street, Urdu Bazar, Lahore. The Receiver will take over the charge of the Karachi property from the Nazir of this Court. The share of plaintif No, 2 in the Karachi property is 1/15. Plaintiffs Nos.1, 3 and 4 have no share in the Karachi property. The remaining 14/15 share in the Karachi property will belong to defendant No,2 Waliuddin and defendant No,3 Zahiruddin subject to payment/adjustment of the amounts which will become payable to the plaintiffs under this judgment on account of their shares in the income of the Karachi property and/or Lahore property and in the amount determined as the market value of the Lahore property as on 29-4-1976.
' As regards the Lahore property, the Receiver will ascertain its market value as on 29-4-1976 and the shares of the plaintiffs in the said amount will be as follows:- {{TABLE}}
(1) Plaintiff No,1 Nasiruddin 2/15
(2) Plaintiff No,2 Mukhtar Begum 1/15
(3) Plaintiff No,3 Iqbal Begum 1/15
(4) Plaintiff No,4 Shamim Akhtar 1/15 {{TABLE}} ' The Receiver will also determine the income of the properties as follows:-
(i) From 18-9-1972 till Nazir as receiver appointed in Miscellaneous Application 10/74 took charge of the Karachi property, the defendants will render accounts of the income of the Karachi property.
(ii) From the date Nazir took charge till the Receiver appointed by this judgment takes over charge of the Karachi property, the Receiver will take accounts from the Nazir in respect of the Karachi property. Subject to adjustment of any amount paid to plaintiff No, 2 from the rent of the Karachi property and other expenses incurred and taxes paid, the share of plaintiff No,2 Mukhtar Begum in the, income from Karachi property will be 1/15 and the balance 14/15 share will belong to defendant No,2 Waliuddin and defendant No,3 Zaheeruddin subject to payment/adjustment of the amounts which become payable to the plaintiffs under this judgment on account of the income of the Lahore property and in the amount determined as the market value of the Lahore property as on 29-4-1976.
(iii) Income of the Lahore property from 18-9-1972 to 29-4-1976 will be determined by the Receiver in which the share of the plaintiffs will be as follows: - {{TABLE}}
(a) Plaintiff No,1 Nasiruddin - 2/15
(b) Plaintiff No, 2 Mukhtar Begum 1/15
(c) Plaintiff No,3 Iqbal Begum 1/15
(d) Plaintiff No,4 Shamim Akhtar 1/15 {{TABLE}} ' Out of the rent already recovered and/or that may be recovered, the Receiver may initially adjust an amount of Rs,5.000 towards his, fee.
' The question of costs will be determined at the time of the passing of the final decree.
Preliminary .