1. ' The plaintiffs have brought the above suit for declaration, partition and rendition of accounts praying therein for judgment and decree against the defendant No,1 as follows:- "(a) It be kindly declared that the plaintiffs are the co-onwers alongwith the defendants in the property namely Lodhi Mansion situated at A.M. 27/1, Artillery Maidan No,1, Karachi and also in the running business concern under the name and style of 'NEAR EAST WATCH COMPANY' with its business address at Mandviwala Building, 124/9, M.A. Jinnah Road, near Denso Hall, Karachi.
(b) The abovementioned property and business and their accretions may kindly be partitioned among the plaintiffs and the defendants according to their respective shares.
(c) The defendant No,1 be kindly directed to render a true and faithful account in respect of incomes, profits and accretions of the above-mentioned property and business, wherever applied and in whatever form, and the amounts coming to the shares of the plaintiffs may kindly be paid to them.
(d) Full cost of the proceedings may kindly be granted to the plaintiffs."
2. ' It may be mentioned here that the plaintiffs and the defendant No,2 are the daughters and the defendant No,l is the son of Haji Fiqhatullah Khan Lodhi and his wife Mst. Tayyaba Khanum, both of whom have expired. Mst.
3. Tayyaba Khanum died on 16-10-1969 and Haji Fiqhatullah Khan Lodhi died thereafter on 16-12-1974.
2. According to the plaintiffs Mst. Tayyaba Khanum was the owner of the following properties:
(i) The building 'popularly known as 'Lodhi Mansion' situated on Plot No, A.M. 27/1, Artillery Maidan No,1, Karachi.
(ii) The running business concern known as "Near East Watch Company" with its business premises at.Mandviwala Building 124/9, M.A. Jinnah Road, Karachi.
4. ' After the death of Mst. Tayyaba Khanum her abovementioned properties devolved upon her heirs, namely, her husband (now deceased Haji Fiqhatullah Khan Lodhi) and her children, who are the parties to the suit.
5. According to the plaintiff Haji Fiqhatullah Khan Lodhi during his lifetime transferred the shares inherited by him on the death of his wife Mst. Tyyaba Khanum in the assets to Mst. Salika Khanum, the defendant No,2 by oral gift according to Muslim law and her name was also mutated in the Records of Rights and as such the parties to the suit are the co-owners of the said assets and properties in the following proportions: -
(i) Plaintiff No,1, Zahida Khanum - 15$6
(ii) Plaintiff No,2, Tasneem Khanum - 15%
(iii) Defendant No,1, Rifatullah Khan - 30%
(iv) Defendant No,2, Salika Khanum - 40% ' It is further pleaded that after the death of Mst. Tayyaba Khanum and Haji Fiqhatullah Khan Lodhi, the defendant No,1 took the management of the properties mentioned above on his own behalf as well as on behalf of the plaintiffs and the defendant No,2, the co-owners and that having noted instances of gross misconduct on the part of the defendant No,1 and apprehending that he has committed misappropriation of the income from the immovable property as well as of the assets of the business and further finding that the defendant No,1 through earlier was representing that in the abovementioned business concern he was a legal heir of the owner, namely, late Mst. Tayyaba Khanum is now setting up a false title declaring herself as its sole proprietor served notice, dated 11-11-1976 on him calling upon him inter alia to stop managing affairs of the properties and business and also to render true account in respect of the same to the plaintiffs. Public notices were also issued by the plantiffs in the newspapers warning the members of general public against dealing with the joint property without the express consent of the plaintiffs. The plaintiffs, however, on the plea that the defendant No,1 was fraudulently claiming himself to be the proprietor of the said business concern and the sole owner/landlord of the immovable property filed the present suit in which the reliefs reproduced above have been claimed.
3. The defendant No,1 filed the written statement in which the relationship of the parties was not denied. It was, however, denied that late Mst. Tayyaba Khanum was the owner of running business known as "Near East Watch Company". It was also asserted that the rent receipts in respect of the shop premises were issued in the name of Shoukat All (consanguine brother of the parties) by the landlords, Mandviwalla Estate Ltd., According to the defendant No,1 rent was paid for the period in the name of Shoukat Ali from 1950 to July, 1976 and, thereafter the defendant No,1 has been depositing the rent in Court since August, 1976.
6. ' It was further pleaded that the abovementioned business concern was by oral gift transferred by his parents (Haji Fiqhatullah Khan Lodhi and Mst. Tayyaba Khanum) to the defendant No,1 in 1956 and that he has been paying the income-tax in respect of the said business in his capacity as the sole proprietor of the said business since 1970-71.
7. ' As regards the immovable property, Lodhi Mansion, it was pleaded by the defendant No,1 in his written statement that the said building originally belonged to Mst. Tayyaba Khanum and after her death the defendant No,1 has already paid the respective shares to the plaintiffs and defendant No,2. It was further pleaded that out of about 12 flats, Flat No,3 of the said building is in the possession of plaintiff No,1 and the Flat No,12 is in occupation of the plaintiff No,2 and that they are neither paying any rent nor the electricity charges in respect of the said two flats and that the value and goodwill of the said two flats is more than the value and/or the price of the said Lodhi Mansion as well as the alleged respective shares of the plaintiffs in the said building, that the defendant No,1 has been paying the taxes to the Government and K.M.C. And that some amount has been spent on maintenance of the said building and thus he has made no substantial benefit from the said rental income from the said building. It is also pleaded that the suit has been false mala fidely though the plaintiffs know very well that they have no legal right, claim or interest in the disputed immovable property or in the- disputed business and that no such claim was made during the life of their deceased father Haji Fiqhatullah Khan Lodhi.
8. ' In the written statement plea was also taken that no gift was made by Haji Fiqhatullah Khan Lodhi of the shaes inherited by him in the building to the defendant No,2 as was alleged by the plaintiffs in the plaint.
4. The defendant No,2 though served did not file any written statement and is absent and chose to remain absent. The case against her has proceeded ex parte.s
5. On the pleadings of the parties the following issues were framed:- "(1) Whether the plaintiffs are the co-owners of the properties including the running business in suit alongwith the defendants. If so, what is the extent of their respective entitlements?
9. ' Whether the defendant No,1 is liable to render account to the other parties?
10. ' Whether the defendant Nb. 1 has misappropriated the corpus and income of the suit properties?
11. ' Whether the suit business and properties are liable to be partitioned, and if so, in what manner?
12. ' Whether the suit is under valued?
13. ' Whether the plaint does not disclose any cause of action against the defendant No,1?
14. ' What should the order be?
15. ' On behalf of the plaintiffs was examined Mst. Tasneem Khanum, the plaintiff No,2 as P.W.1 (Exfi. 5). The defendant No,1 examined himself as D.W.1 (Exh. 6) and also produced two witnesses, namely, Saghir Ali, D.W.2 (Exh. 7) and Sabz All Khan, D.W. 3 (Exh. 8).
6. My findings on issues reproduced above with reasons are as follows: - Findings issue -No. I.The parties to the suit are co-owner in Lodhi mansion as well as Near East Watch Co. withshares as given hereinafter.
16. Issue No.2 Issue No. 3In the affirmative and directions for rendition of accounts have been given.
17. Issue No. 4Findings anddirections given as follows: Issue No. 5Not pressed.
18. Issue No.6In theaffirmative Issue No.7As per findings given hereinafter.
7. The learned Advocates appearing for the parties agree that the only properties which are subject-matter of the suit are:- ' The building popularly known as Lodhi Mansion situated on Plot No, AM-27/J, Artillery Maidan No, 1, Karachi.
19. ' The running business concern under the name and style of "Near East Watch Company" with its business premises at ' Mandviwalla Building, 124/9, M.A. Jinnah Road, near Denso Hall, Karachi.
8. I would first take up the dispute as to the ownership/shares of the parties in the property described at item No,
(i) above. This property hereinafter would be referred as Lodhi Mansion.
(i) The aforementioned immovable property (Lodhi Mansion) belonged to Mst. Tayyaba Khanum who expired on 16-10-1969 leaving behind the following heirs who invited shares in it as mentioned below according to the Sunni Muslim Law by which they are governed:- "(1)Haji Fiqhatullah Khan Lodhi(Husband) 25%
(2) Zahida Khanum (Daughter) 15%
(3) Tasneem Khanum (Daughter) 15%
(4) Rifatullah Khan (son) 30%
(5) Salika Khanum (Daughter) 15% Total: 100%"
20. ' Haji Fighatullah Khan Lodhi transferred the share inherited by him in the aforementioned Lodhi Mansion to his daughter Mst. Salika Khanum (defendant) No,2 by oral gift on 18th May, 1973.
21. ' On an application subsequently made by Haji Fiqhatullah Khan Lodhi for mutation of-the name of the defendant No,2 as the transferee of his share in Lodhi Mansion, by gift completed by acceptance and delivery of possession, the concerned revenue authority ordered mutation of the name of the donee (the defendant No,2) in place of the name of the abovenamed donor. The gift thus made was not disputed by any of the parties in suit or their Advocates who appeared before me. Indeed the defendant in his cross-examination admitted the gift made by Haji Fiqhatullah Khan Lodhi in favour of the defendant No,2. He, however, stated that the gift could not have been made as it was in excess of 1/3rd of the share owned by Haji Fiqhatullah Khan, which plea on the face of it is misconceived as there is no restriction in law on the powers of a person to transfer his property in any manner he likes by gift during his lifetime to any person.
22. ' It may also be mentioned here that at the time of the arguments the learned counsel for the defendant No,1 did not dispute the validity of the gift made by Haji Fiqhatullah Khan Lodhi .In favour of the defendant No,2 of his share, inherited by him on the death of his wife Mst. Tayyaba Khanum as aforementioned.
23. ' Before concluding as to who are owners of the property known as Lodhi Mansion and their respective shares therein, I would like to deal with the plea taken in written statement in para. 18 by the defendant No,1 claiming himself to be the sole owner of Lodhi Mansion.
24. ' It was pleaded by him:- "...That the said building originally belonged to the deceased mother Mst. Tayyaba Khanum and after her death, the defendant No,1 has already paid the respective shares of the plaintiffs and the defendant No,2."
25. ' He further stated that he has been collecting the rent from the said building since very long and that the defendant No,2 who is living in the rented premises with the defendant No,1 is being maintained by him from his own income.
26. ' It was also stated in the said para. That the plaintiff No,1 got the property No, G-4 of Plot No, 46 WO-C-1, Karachi (reference apparently was to the gift of the shop (property No, G-4) made by Haji Fiqhatullah Khan Lodhi in favour of the plaintiff No,1 on 18th May, 1973 consequent to which the application was made on 20th June, 1973 (Exh. 6/113) for mutation her name as the donee in the Record-of- Rights.
27. ' I have considered the above plea and am of the view that this claim of the defendant No,1 is false and cannot be accepted for the reasons discussed below:
(i) It is admitted by the defendant No,1 that the building, Lodhi Mansion, belonged to Mst. Tayyaba Khanum (mother of the parties) who at the time of her death on 16-10-1969 left behind her the parties to the suit besides her husband Haji Fiqhatullah Khan Lodhi.
(ii) Haji Fiqhatullah Khan Lodhi subsequently transferred the share inherited by him as discussed above to the defendant No,2 Salika Khanum on 18th May, 1973 by oral gift according to Muslim Law. The transfer of 1/4th share thus ,made by gift in favour of the defendant No,2 was admitted at the time of argument by Mr. Khuda Bux Omrani, the learned counsel for the defendant No,l. The defendant No,1 himself in his evidence gave up his claim of ownership, when in evidence during his cross-examination, he stated:- "It is correct that my father had transferred his share which he had inherited during his lifetime to the defendant No,2 by gift."
(iv) The defendant No,1 in his evidence also admitted that Mst. Tayyaba Khanum was the owner of the property (Lodhi Mansion), by purchase. In his deposition in Court he stated: "The building (Lodhi Mansion) in dispute, situated in Artillery Maidan Area, was owned by Mst. Tayyaba Khanum, who was the mother of the parties to the suit. Our mother Mst. Tayyaba Khanum died on 16th October, 1969. At that time our father was alive. Our mother was survived by the parties to the suit and our father, as the only heirs under the Muslim Sunni law by which we are governed."
28. ' He also stated: - "Since the purchase of the building by my mother I used to collect rent but the same was always handed over to my father during his lifetime."
29. ' And also deposed:- "During lifetime of mother, since she was the owner, rent was collected in her name"
30. ' And then stated:- ' after the death of our mother the rent receipts used to be issued in the name of her heirs namely Fiqhatullah Khan Lodhi and other landlord."
31. ' The statement made in evidence completely demolishes the plea taken in the written statement by the defendant No,1 that he became owner of Lodhi Mansion after the deaths of his parents Tayyaba Khanum (mother) and Haji Fiqhatullah Khaq Lodhi (father).
32. ' I may also observe here ttial merely because at a subsequent stage in 1974 due to disputes between the parties to the suit, the defendant No,1 started issuing rent receipts by putting his "seal as owner" on them could not have the effect of divesting the sisters of their rights and shares which they inherited on the death of the mother or of the share transferred by gift by the father to the defendant No,2. The defendant No,1 has failed to produce any evidence whereby he could claim to have acquired the ownership of the property known as Lodhi Mansion. No evidence has been produced to show that the sisters have been paid off for or transferred, their shares.
33. ' On the evidence on record and for reasons discussed above I hold that the property in suit known as Lodhi Mansion bearing No, AM-27/1, Artillery Maidan No,1, Karachi is jointly owned by the parties to the suit with undivided shares as mentioned below:- I further declare thatthe Company/local authority resident and Ordinarily resident the firm was resident but not Ordinarily resident the association not resident the family
9. The other property which is the subject-matter of the disputes between the parties is the running business concern known' as "Near East Watch Company" situated in the shop in Mandviwalla Building, 124/9, M.A.
34. Jinnah Road, Karachi, which the plaintiffs claim was owned by Mst. Tayyaba Khanum (mother) on whose death according to their case, devolved upto the parties to the suits, besides Haji Fighatullah Khan Lodhi (her husband). The latter subsequently died and it is now stated by the plaintiffs, that the parties to the suit are its joint owners on the basis of and in accordance with the Sunni Muslim Law of inheritance.
35. ' The defendant No,1 in his written statement An para. 2 denied that Mst. Tayyaba Khanum (the mother) was the owner of said business concern. According to the defendant No,1 the shop premises is owned by Mandviwalla Estate Limited, they issued rent receipts in respect of the said premises in the name of Shoukat Ali son of Fiqhatullah Khan Lodhi from 1950 to July, 1976 though rent was paid by him and for the period, thereafter, he has beer depositing rent in the C.- 'rt. In the additional pleas in paras. 14 to is, the case pleaded by the defendant No,1 briefly stated is that the abovementioned business concern was gifted to him orally by the parents of the defendant No, 1, i.e. By Mst. Tayyaba Khanum (the mother) and Haji Fiqhatullah Khan Lodhi, (the father) in the year 1956 and that since then he has been its owner without any interruption or disturbance. It was also pleaded that Mst. Tayyaba Khanum (the mother), during her lifetime never did any business at the said shop and that she was strictly a Pardahnashin lady. In para. 17 it is also stated that the defendant No,1- has been paying income-tax in respect to the said business in his capacity as the sole proprietor of the said business since 1970-71. A reference was also made by the defendant No,1 in his written statement to an alleged gift orally made in favour of his consanguine brother Shoukat Ali, of another business concern known as Lodhi Watch Company at the same time in 1956 when the gift of the business concern (Near East Watch Company) was made in favour of defendant No,l. (It may be mentioned that the other business concern (Lodhi Watch Company) is not the subject-matter of the suit).
36. ' In his own evidence the defendant No,1 stated that in 1956 the gift as pleaded in the written statement of the Near East Watch Company was made in his favour and simultaneously Lodhi Watch Company was given by gift to Shoukat All and that the donees were put in possession and control of the respective concerns thus gifted, and that since then each of the donees is doing his own business separately. It was further stated that the fact that the gifts were so made was confirmed by Haji Fiqhatullah Khan Lodhi (the donor) "in presence of Saghir All and Sabz Ali" and that Mst. Tayyaba Khanum, the mother, also confirmed the making of these gifts in the presence of Saghir Ali.
37. ' The defendant No,1 produced documentary evidence as well as examined two witnesses (i) Saghir All D.W.2 (Exh. 7) and (ii) Sabz All D.W.3 (Exh. 8) in support of the story of gift of the business concern made in his favour.
38. ' The documentary evidence produced by the defendant No,1 consists of (i) two challans of payments of professional tax. These challans are marked Exh. 6/93 and Exh. 6/94 and relate to the years 1974-75 and 1977- 78 and (ii) receipt Exh. 6/95, dated 19-1-1974 showing payment of Board Tax. These challans and the receipts, however, do not help the defendant No,1 in proof of the alleged gift of the business concern alleged to have been made in 1956. In the challan Exh. 6/93 the date of payment is shown as 20th March, 1975 i.e. Almost after 19 years of the alleged gift made in 1956, whereas, the challan Exh. 6/94 shows that the payment was made on 27-12-1977 which is a date much after the filing of the suit. The other document (Exh. 6/95) which is a receipt for payment of Board Tax is also for a period of over 19 years of the making of the alleged gift and in it the name of Rifatullah Khan Lodhi (the defendant No,1) shown as the proprietor of Near East Watch Company appears to be in different ink and indifferent hand.
39. ' No other document in support of the alleged oral gift of the business concern was produced by the defendant No,l. He did not even produce his account books in support of his plea of acquiring ownership in 1956.
40. ' As against the above documentary evidence I may first refer here to the Income-tax Return for the year 1970- 71 (ending 31st March, 1970) Exh. 5/13, filed with Income-tax Department by the defendant No,1, and it shows that it was signed by the defendant No,1 as a legal heir of Mst. Tayyaba Khanum who was expressly described as the proprietorof Near East Watch Company.
41. ' In the aforementioned return for the year 1970-71 (ending 31st March, 1970) (Exh. 5/13) the. Defendant No,1 expressly admitted that the said concern in the said year was owned by individual (Mst. Tayyaba Khanum), the relevant declaration made by the defendant No,1 is reproIuced below:- I further declare thatthe Company/local authority resident and Ordinarily resident the firm was resident but not Ordinarily resident the association not resident the family in Pakistan during the previous year for which the return is made for late Mst. Tayyaba.
42. ' (Seal of) Signature for Near East Watch Co. Status Sd/- signed legal Heir Individual Proprietor.
43. ' Dated 14-9-1970"
44. ' The portion which has been circled in red was marked Exh. 5/13-A after the defendant No,1 was confronted with it during his cross-examination. It may be recalled here that Mst. Tayyaba Khanum had died on 16th October, 1969 and therefore. For the assessment year 1970-71 (ending 31st March, 1970) the assessment return was signed for late Mst. Tayyaba Khanum by one of her legal heirs i.e. The defendant No,1 on her behalf.
45. It would also be relevant here to refer to the statement made by the defendant No,1 when confronted with his above declaration admitting Mst. Tayyaba Khanum as the proprietor of Near East Watch Company in his cross- examination. The statement of the defendant No,1 was:- "The document Exh. 5/13 is the return for the year ending 31-3-1970 (assessment year 1970-71). It is correct as suggested that the income of the property and the business. Both are shown in this return which was filed by me. It is also correct that at page 7 of this return details of the income of the property are given. This return was filed under my signature. The business referred in the document Exh. 5/13 pertains to Near East Watch Company of which I was the proprietor. The property referred in this document is Lodhi Mansion. At page 9 of Exh. 5/13 it is shown that this return was made for late Mst. Tayyaba Khanum and that it was signed as legal heir but I state that these words were not written by me in the original 'Returns' (of which Exh. 5/13 is certified copy). The handwritten words at page 9 encirled in 'red' were not written in the original return when it was filed.
46. (The witness voluntarily states that he had not written the words 'for late Tayyaba Khanum' and the words 'legal heir'. However, the words 'individual proprietor' were written by him and that the seal (rubber stamp) 'For Near East Watch Company Proprietor' was put by him on the original return). I have got photo copy of this return and I produce page 9 of the same which" is marked Exh. 6/129.
47. ' Question: Please see Exh. 6/129 and I put it to you that this contains the same words as Exh. 5/13?
48. Ans:- This is some "{{URDU TEXT}} " of the plaintiffs."
49. ' A reading of the statement of the defendant No,1 in his evidence reproduced above, clearly establishes that according to the defendant No,1 himself till her death on 16-10-1969 (during the assessment year 1970-71 ending 31st March, 1970) Mst. Tayyaba Khanum was the proprietor of the concern Near East Watch Company.
50. The defendant No,1 attempted to explain that handwritten words in the Income-tax Return for the year 1970-71 at page 9 encircled in "red" in Exh. 5/13 were not written in the original return filed by him and in proof of his story he produced his own photostat copy at page 9 of the original return filed by him. A perusal of this photo copy (Exh. 6/129) a document produced by the defendant No,1 himself, would show that it contains exactly the same words as in Exh. 6/13 and which have been encircled in red and marked Exh. 6/13-A. When confronted with this situation that the defendant No,1 himself had filed the return showing late Mst. Tayyaba Khanum as the proprietor of Near East Watch Company and that the said return Exh. 6/13 had been signed by him on behalf of the sole proprietor, late Mst. Tayyaba Khanum, describing himself as legal heir of the said lady and even the photo copy (Exh. 6/129) produced by him also confirms this, the defendant No,1 could not,give any reply except making a vague statement. "This is some " {{URDU TEXT}}' " of the plaintiffs".
51. ' It would also be relevant here to mention that even for the period prior to the year 1970-71 Mst. Tayyaba Khanum was assessed to income-tax as the proprietor of Near East Watch Company. This fact was admitted by the defendant No,1 in his evidence when he stated, "The assessment used to be made in the name of my mother namely Mst. Tayyaba Khanum as the proprietor of the said business".
52. ' The defendant No,1 when further confronted with Income-Tax Return and balance-sheet Exh. 5/17 stated:- "I am shown Exh. 5/17, which is income-tax assessment order for the assessment year 1969-70, ending on 31- 3-1969. This refers to the period when my mother was the proprietor of the said business."
53. ' The above admission of the defendant No,1 also conclusively proves that Mst. Tayyaba Khanum alone was the owner of the said business concern "Near East Watch Company" till her death on 16th October, 1969. The defendant No,1 tried to state that in the assessment year 1977 he was proprietor of the said business, on the face of it is a false statement and belied by documentary evidence with which he was confronted in cross- examination.
54. ' The defendant No,1 was also confronted with the documents Exh. 5/18 which he tried not to accept on the plea that it was a photo copy, whereas this document is the certified copy of the balance-sheet if Near East Watch Company for the accounting year ending 31-3-1969. The defendant No,1 when confronted with its contents admitted it to be the balance-sheet for the assessment year 1970-71 when the said business concern was owned by Mst. Tayyaba Khanum. In this balance sheet capital amount of' Mst. Tayyaba Khanum is shown as Rs, 89,830.43 out of which Rs, 2,175.50 drawn are deducted and thus the balance towards her credit as capital amount is shown as Rs,87,654.93. Out of this amount net loss of Rs, 3,419.62 was deducted for the said year, reducing the capital account of Mst. Tayyaba Khanum to Rs, 84,235.31 as on 31st March, 1969.
55. ' It is also significant to note that in the abovementioned balance-sheet Rifatullah Khan is shown on the credit side for Rs, 400 and with this entry when the defendant No,1 was confronted he unsuccessfully tried to explain that the said person was an employee and that his name was also Rifatullah Khan. The defendant No,1 however failed to produce any evidence whatsoever to substantiate this statement of his. Neither any salary register nor any other evidence of any kind whatsoever was produced by him to show that in the said concern at any time there was any employee of the same name (i.e. Rifatullah Khan) as that of the defendant No,1. It is obvious that this entry relates to the defendant No,1 whose status was no more than of an employee in it and that in any case he was not the proprietor of the said business concern.
56. ' It is also interesting to note here the following replies of the defendant No,1 given in his cross-examination to the questions put to him by the Advocate for the plaintiffs.
57. "Q. I put it to you that Rs, 84,235.31 capital amount shown in Exh. 5/18 was that of your mother?
58. Ans: I do not remember. In 1969 my mother was the proprietor of the business namely Near East Watch Company."
59. ' The defendant No,1 was then confronted with documents Exh. 5/15 (the balance-sheet ending on 31st March, 1970) the question, put and the answer given being relevant are reproduced below:- "Q. I put it to you that the above entry of Rs, 55,213.75 was in fact the capital amount of your mother which was brought forward in this year from the previous year 1969-70?
60. Ans: It is correct."
61. ' In my opinion the admission made as above by the defendant No,1 in his cross-examination conclusively establishes that till her .Death on 16-10-1969 Mst. Tayyaba Khanum was the proprietor of Near East Watch Company and the story set up by the defendant No,1 that in 1956 the parents had transferred to him by gift the abovementioned concern Messrs Eastern Watch Company is totally false.
10. It would be appropriate to refer to the evidence of the two witnesses Saghir Ali D.W.2 (Exh. 7) and Sabz All D.W.3 (Exh. 8) produced by the defendant No,1 who had stated that in their presence Haji Fiqhatullah Khan (father) had confirmed the fact of making of the gift of the said business concern in his favour.
62. ' Saghir Ali D.W.2 (Exh. 7) though supported the statement of the defendant No,1 during his examination-in- chief but in his cross-examination he admitted ,that he was not present when the alleged gift was made. His statement that Haji Fiqhatullah Khan Lodhi, had informed him subsequent to the making of the "gift, that he and his wife had transferred the two business concerns, Near East WatcheCompany to the defendant No,1 and Lodhi Watch Company to Shoukat Ali, is inadmissible being hearsay evidence. Even otherwise this statement o the witness cannot be believed in the presence of documentary evident discussed above and the admissions of the defendant No,1 himself in cross-examination that till 1969 Mst. Tayyaba Khanum was the owner of the said business concern. It would be recalled here that Mst. Tayyaba Khanum had died on 16th October, 1969. This witness (Saghir -Ali) obviously, is an obliging witness. He had voluntarily come to the Court to give evidence in favour of the defendant No,1.
63. ' The other witness Sabz Ali D.W.3 (Exh. 8) in his examinationin-chief deviated from the story given by the defendant No,1 and that by Saghir Ali (Exh. 7). The witness, Sabz All Khan, in his statement in examination-in-- chief deposed that Haji Fiqhatullah Khan told him that both the shops "he had given in gift one shop namely Lodhi Watch Company to Shoukat All and other namely Eastern Watch Company to the defendant No,1 by gift".
64. It would be recalled that defendant No,1 had stated in his evidence that the gift was made in his favour by his parents namely Mst. Tayyaba Khanum and Haji Fiqhatullah Khan Lodhi. A similar story was narrated by Saghir Ali D.W. 2 (Exh. 7) but this witness, Sabz Ali Khan has gone a step forward in supporting the defendant No,1 by stating that Haji Fiqhatullah Khan told him that he had given in gift business concern in question to the defendant No,1. I need not make any comment in respect of Lodhi Watch Company which is not a subject- matter of this suit and also for the reason that Shoukat Ali or his heirs are not present before me. This witness Sabz Ali Khan admitted that the alleged gifts were not made in his presence. The statement of this witness can very well be described as hearsay evidence and even otherwise unreliable.
12. For reasons discussed above I hold that the business concern known as East Watch Company was owned by Mst. TayyabaKhanum on whose death on 16th October, 1969 it devolved upon the parties in suit besides Haji Fiqhatullah Khan who died on 16-12-1974. Thus, tile ownership of this business concern since after 16-12-1974, vests in the parties with undivided shares as mentioned below. On 16-10- 1969 when Tayyaba Khanum diedOn 16-12-1974 on the death of Haji Fiqhatullah Khan "Plaintiff No. 1, Zahida Khanum (Daughter)15% 20% Plaintiff No.2, Tasneem Khanum (Daughter)15% 20% Defendant No. 1, Rifatullah Khan (Son)30% 40% Defendant No.2, Salika Khanum (Daughter)15% 20% Haji Fiqhatullah Khan (Husband)25%Died on 16-10-1974. His share devolved upon the abovenamed persons (son & daughters).
65. Regardind Issues Nos. 2 and 3: {{TABLE}}
13. These issues can be taken up together as on them the learned Adcovate advanced common arguments.
66. ' The properties which are subject-matter of the suit as noted above are (1) Lodhi Mansion and (ii) the business concern known as the Near East Watch Company.
67. ' The property known as Lodhi Mansion, it is admitted, consists of 12 flats out of which Flat No,3 is in possession of Plaintiff No,1 with whom is also residing the defendant No,2. The plaintiff No,1 is also in possession of one store room on the ground floor. The Flat No,12 is in occupation of the plaintiff No,2. The remaining ten flats are in possession of various tenants from whom the defendant No,1 is recovering rent.
68. ' The defendant No,1 in his evidence deposed that during the lifetime of Mst. Tayyaba Khanum he used to collect rent from the tenants and the amount collect was always handed over by him to the father and this practice continued even after the death of Mst. Tayyaba Khanum (the mother). He further stated that after the death of the father, he continued to collect rent in the same manner but as in spite of requests made, his sisters refused to settle the question of shares in the property, therefore, he started to put his own seal as owner on the rent receipts issued by him to the tenants. As the father, Haji Fiqpatullah Khan Lodhi, to whom rent collected during his lifetime used to be handed over by the defendant No,1, died on 16-12-1974 it can be safely inferred that only thereafter the defendant No,1 started appropriating rent received by him. He, therefore, in the light of the findings reached by me as above that the parties to the suit are joint owners with undivided shares specified earlier, the defendant No,1 is liable to render account of the rent received by him since after the death of Haji Fiqhatullah Khan Lodhi (the father). Mr. Muhammad Zak' Ahmed, the learned counsel for the plaintiffs conceded during his argument that the defendant No,1 shall be liable to render account for the rent received by him after 16th December, 1974 when the father of the parties died. This would be so also in my opinion as the statement of the defendant No,1 to the effect that during the lifetime of Haj' Fiqhatullah Khan Lodhi, the rent collected used to be handed over to him by the defendant No,1 with the consent of the sisters who used to live and ate with him (the father). In the plaint also the plaintiff' case is that only after the death of the father, the defendant No, started appropriating the income.
69. I, therefore, hold that the defendant No,1 is liable to render account in respect of the amount collected by him from the tenants since after 16th December, 1974 when Haji Fiqhatulah Khap Lodhi, expired.
70. ' I may here also observe that the Commissioner who would be entrusted with the job for taking accounts would take into consideration amount equivalent to rates of rent which the plaintiffs and the defendant No,2 would have been liable to pay for the flats and store room in Lodhi Mansion but are not paying for being co-owners whereas the defendant No,1 though a co-owner is residing in rented premises.
13. As regards the accounts in respect of the business concern known as the Near East Watch Company the learned counsel for the plaintiff stated that they would be satisfied if the defendant No,1 was directed to render account of the income from the said business concern from the 16th December, 1974 when the father died. This statement of the learned counsel for the plaintiffs is reasonable in view of the averment in the plaint itself that after the death of Mst. Tayyaba Khanum and Haji Fiqhatullah Khan Lodhi, the defendant No,1 took the management of the properties on his own behalf as well as on behalf of the plaintiffs and the defendant No,2.
71. 'I accordingly hold that in respect of the abovementioned business concern the defendant No,1 shall render account to the plaintiffs. And the defendant No,2 from 16th December, 1974 which was the date on which Haji Fiqhatullah Khan Lodhi died.
72. ' Regarding issue No,4: ' Since the parties to the suit are not agreeable as to the manner in which the immovable property in suit namely Lodhi. Mansion and the business concern known as Near East Watch Company could be partitioned, this matter would be referred to the Commissioner effecting partition and would be decided by the Court after the report is received.
73. Regarding issue No,5: ' This issue was not pressed by the learned Advocate for defendant No,1 at the time of the arguments.
74. Regarding Issue No,6: The learned counsel for the defendant No,1 was unable to show anything as to how the plaint did not disclose any cause of action against his client. On the facts pleaded in the plaint and on the evidence on record, having come to the conclusion that the immovable property known as Lodhi Mansion and the business concern (Near East Watch Company) were originally owned by Mr. Tayyaba Khanum (the mother) and the same devolved upon her heirs and that now the parties to the suit are joint owners as mentioned above with undivided shares I hold that the suit is maintainable under the law. The issue, I accordingly answered.
75. Regarding Issue No, 7: The suit is decreed for partition and accounts of the two properties which are its subject-matter. A preliminary decree shall be drawn incorporating the following directions:-
(i) The undivided shares of the parties in, the immovable propert known as Lodhi Mansion, bearing Survey No, AM-27/1, Artiller Maidan, Karachi are declared as follows:- Plaintif No,1, Zahida Khanum 15$ Plaintiff No 2-, Tasneem Khanum 15$1; Defendant No,1 Rifatullah Khan 30$ Defendant No,2, Salika Khanum 40$
(ii) The defendant No,1 shall render account in respect of the ' immovable property known as Lodhi Mansion and the business concern known as Near East Watch Company, for the period from 16th December, 1974 till the Commissioner submits his report.
76. ' For partition of aforementioned immovable property and also the business concern known as Near East Watch Company according to their respective shares.
77. ' In the abovementioned business concern (known as Near East Watch Company) the undivided shares of the parties are declared to be:- On 16-10-1968 when Tayyaba Khanum diedOn 16-12-1974 on the death of Haji Fiqhatullah Khan "Plaintiff No. 1, Zahida Khanum (Daughter)
78. Plaintiff No.2, Tasneem Khanum (Daughter)
79. Defendant No. 1; Rifatullah Khan (Son)
80. Haji Fiqhatullah Khan (Husband)Died on 16-10-1974, when his shares devolved uponthe abovenamedpersons (sonand daughters). ' when his share devolved upon the above named person (Son and daughters).
81. ' The Commissioner shall submit his report' as to the state o account, showing amount due and payable to the respective parties an also as to partition of the properties (Immovable property and business concern) after making such enquiry as he may find necessary, according to the shares of the parties declared as above. The Commissioner ma in his report, submit if any of the properties (immovable property and/or the business concern) is/are incapable of partition, in Court for further orders and proceedings.
(iii) While taking account, the Commissioner shall also take into consideration the amount payable/adjustable equivalent to rent of similar flats/premises as occupied by the plaintiffs an defendant No,2 in Lodhi Mansion.
(iv) The Commissioner shall also make inquiry as to the expense incurred on maintenance of the building and those incurred I running the business and shall also take into account such amount including taxes as have been paid by the defendant No,1 toward the carrying on of the said business in normal course.
(v) The Commissioner shall collect rent in respect of the immovable property known as Lodhi Mansion. The business of Near East Watch Company shall be allowed to be carried on by the defendant No,1 under the control and supervision of the Commissioner for interim period till the submission of the report by the Commissioner but subject to such directions which the Court may give from time to time.
82. ' The defendant No,1 shall be liable to be removed from carrying on the business if the circumstances are brought to the notice of the Court which may justify that he is not a fit person to run the busines or otherwise has rendered himself liable to he removed.
(vi) The plaintiffs and the defendant No,2 till the partition take place, subject to such directions as the Court may give, are restrained from parting with the possession of the flats/premise in their possession and occupation in the property known as Lodhi Mansion without the permission of the Court. The defendant ' No,1 is also restrained from in any manner encumbering the business concern and/or parting with possession of the shop premises or assets till further orders. The defendant No,1 shall submit monthly accounts to the Commissioner till further orders.
83. ' The official Assignee is appointed as the Commissioner to carry out the directions as above. He shall submit his report within four months of the receipt of the notice by him from the Court or within such period as the Court may from time to time fix.