1. ' This suit has been filed by Nasreen Firdous, the plaintiff, for declaration that the property, namely, Flat No,14, Al-Ahmed Mansion, S.B. 42, situated in Block 13-B, Gulshan-e-Iqbal, K.D.A. Scheme No,14, Karachi, is her property and for injunction to restrain the defendants Nos.1 to 5 from claiming any right and title in the said property and from interfering with the right of the plaintiff to hold, possess and utilize it. The basis of her claim, as stated in the plaint is "that the plaintiff has been the second wife of Dr. Nafeesuddin Siddiqui who was married on 5-9-1980 against a dower of Rs,30,000 and Flat No,14, S.B. 42, Block No,13-B, Al-Ahmed Mansion, Gulshan-e-Iqbal, Karachi" and that "Dr. Nafeesuddin Siddiqui in order to complete the factum of bestowing the aforesaid flat, in favour of the plaintiff has executed a deed of declaration of gift dated 6-9-1980 in favour of the plaintiff in which he has acknowledged it has gifted the said flat with delivery of possession to the plaintiff and acceptance of gift by her" (vide para 2). It is further alleged that the defendants Nos.1 to 5 are trying to take possession of the flat in question.
2. ' The plaintiff further alleged (in para 3 of the plaint) that out of wedlock between her and Dr. Nafeesuddin Siddiqui (the deceased) two children were born; and this allegation has been expressly admitted by the defendants in their written statement.
3. ' The defence set up by the defendants Nos.1 to 5 is contained in para 2 of their written statement, which, in relevant parts, is as follows:-- "That with regard to the contents of para No,2 of the plaint, it is submitted that the same are incorrect as the copy of the Nikahnama produced alongwith the plaint is forged in nature as the same has been prepared after the death of Dr. Nafeesuddin Siddiqui as he never resided in F.I.T.T.C.
4. Colony, Kotri, as mentioned in the Nikahnama and the alleged Nikahnama was registered with the Union Council No,34, Ward 26 in spite of the fact that neither Dr. Nafeesuddin Siddiqui nor the plaintiff were residing in the jurisdiction of the said Union Council at the time of Nikah it is incorrect to say that the said flat was given to plaintiff in consideration of Nikah/Mehar but the same had been incorporated in the Nikahnama after the death of Dr. Nafeesuddin Siddiqui. The alleged Deed of Declaration is also forged as the same is neither attested nor registered as required under the law. In fact possession of the said flat was never received by Dr. Nafeesuddin Siddiqui hence it is incorrect to suggest that Dr. Nafeesuddin Siddiqui delivered the possession of the said flat to the plaintiff and she accepted the same."
5. ' In view of the admission by the defendants that two children were born to the plaintiff out of her wedlock with the deceased, their plea in para 2 of the written statement must be read to mean that they do not challenge the fact of marriage between the plaintiff and the deceased but only question the authenticity of the Nikahnama. This view is also supported by the fact that the defendants have admitted, vide para 6 of the written statement, that the plaintiff accompanied the deceased to Haj and that, in para 8 of the written statement, they have taken the stand that the plaintiff has no right to the flat in question other than her share according to Muslim Law of inheritance and that the defendants are also entitled to inherit the said flat and other assets left behind by the deceased.
6. ' The following issues were settled:- "(1) Whether the suit as framed is maintainable?
(2) Whether the defendants have proportional right of inheritance over the flat in question?
(3) Whether the plaintiff is entitled to the entire ownership or only to the extent of her share in the said property?
(4) Whether the documents filed with the plaint namely, Nikahnama and the alleged Deed of Gift are genuine? If so, what are the effect?"
7. ' Having heard the learned counsel for the parties and considered the evidence produced on their behalf, my findings on the issues are as follows:- Issue No,1.--The issue as framed appears to cast the burden of proof on the plaintiff but an issue regarding the maintainability of a suit can only arise A when the defendant alleges that it is not maintainable. There is no such allegation in the written statement. Therefore, this issue does not arise. In any event, Mr. Hasan Inamullah, the learned counsel for the defendants Nos.1 to 5, did not press this issue.
8. ' Issues Nos.2 and 3.-- 1 Issues Nos.2 and 3 relate to the alleged rights of the parties respectively in the flat in question and the answer to them depends on the finding on issue No,4. I, therefore, propose to deal with issues Nos.2, 3 and 4 together.
9. ' Issue No,4.--Issue No,4 evidently arises from the plea of the defendants Nos.1 to 5 that the Nikahnama and the declaration of gift are forged. It is, therefore, necessary to consider the evidence on the record to see if these documents have been shown to be forged.
10. ' As regards the Nikahnama, it is alleged to have been forged and prepared after the death of the deceased because (1) he never resided in F.I.T.T.C. Colony, Kotri, Hyderabad, which is the address given therein, (2) it was registered in Union Council No,34, Ward 26 although neither the deceased nor the plaintiff lived in that area. The plaintiff, in her affidavit in evidence, has stated that she was married to the deceased on 5-9-1980 and produced the Nikahnama as Exhibit 5/5. In cross- examination, she was apparently asked to explain why four different addresses of the deceased were given in the agreement (Ex.5/3), the power of attorney (Ex.5/4), the Nikahnama (Ex.5/5) and the declaration of gift (Ex.5/1) and her answer was that she did not know why it was so. Apart from that, a suggestion was made to her that the documents produced by her were forged, which was denied by her. There was no further cross-examination on the question of the Nikahnama. The plaintiff's witness Mohammad Younus deposed that he had signed the Nikahnama as a witness. In cross-examination he admitted that the Nikah was performed at Nazimabad but the Qazi came from elsewhere; and asserted that the Nikahnama was prepared and written in his presence. The remaining two witnesses for the plaintiff, Haroon Hamid and Mujeebur Rehman, testified that they had respectively acted as Vakil and witness at the Nikah and had signed the Nikahnama (Ex.5/5).
11. The witness Haroon Hamid was not cross-examined on the question of the Nikahnama while the witness Mujeebur Rahman was not cross-examined at all. The defendant No,1 in her affidavit-in- evidence, asserted that "contents of the Nikahnama show that fictitious address of the deceased had been incorporated in the memo. Of Nikahnama and there was nowhere indication that the deceased had divorced the defendant No,1 which itself shows that the entire documentation has been done after the death of the deceased; and further that "as would be evident from all the documents filed before this Hon'ble Court the address of the deceased has been shown as having been residing with the defendant No,1 till his death." In cross-examination, she admitted that the Nikahnama has been signed by the deceased. The defendants' witness, Salama Begum, stated in her affidavit-in-evidence that the deceased who was her son never informed her that he had contacted second marriage but, in view of the fact that the fact of the marriage between the plaintiff and the deceased has been admitted by the defendants, her evidence is of no consequence. As regards the address of the defendant, it is true that different addresses have been given in the four documents mentioned above but that fact is not enough to establish that the Nikahnama was forged. The assertion of the defendant that the documents produced in the case show that the deceased lived with her till his death is obviously not true as there are no such documents; and, in fact, the documents produced show different addresses of the deceased.
12. Moreover, the defendant No,1 having admitted that the Nikahnama has been signed by the deceased, it is absurd to suggest that it was prepared after his death. The only other ground on which the authenticity of the Nikahnama is questioned is that while the Nikah was performed at Nazimabad, the Qazi came from some other area. Mr. Hasan Inamullah, the learned counsel for the defendants Nos.1 to 5, was unable to show how that fact would render the Nikahnama a suspect document. Further, the testimony of two of the plaintiffs witnesses, as shown above, has not been controverted by cross-examination. I, therefore, hold that the Nikahnama is genuine.
13. ' As regards the declaration of gift, the photo copies thereof were admitted subject to objection on behalf of the defendants. The plaintiff, in her affidavit-in-evidence, stated that the original declaration had been misplaced after the institution of the suit and could not be found in spite of due search for it. In cross-examination, she stated that the copies produced by her were recovered by her from the papers left behind by the deceased, Mr. Hasan Inamullah contended that these two statements contradicted each other. The contention has no force. The explanation in the cross-examination relates to the production of two copies of the declaration and does not in any manner falsify the statement that, the original declaration had been misplaced after the institution of the suit. The plaintiff's statement that she made due search for the original has not been challenged in cross-examination. The photo copies (Exs.5/1 and 5/2) are, therefore, admissible in evidence.
14. ' The plaintiffs case is that by an agreement dated the 4th August, 1980 (Ex.5/3) the deceased agreed to marry her against dower of Rs,30,000 and the flat in question and that the Nikahnama reflected the agreement inasmuch as these conditions of marriage are mentioned therein; and further that the deceased executed the Declaration of Gift in consequence thereof.
15. ' The declaration of gift has been challenged on the ground that it is forged as it was neither registered nor attested as required by law; and, further, that the deceased having never received possession of the flat could not have delivered it to the plaintiff. It has admittedly not been registered; and Mr. Hasan Inamullah, the learned counsel for the defendants Nos.1 to 5, did not even attempt to argue that it was required to be registered. He also did not suggest during the arguments that it was required by any law to be attested. However, the contention on behalf of the defendants was that the declaration was of a suspicious nature because one copy (Ex.5/1) thereof was unattested while the other (Ex.5/2) bore attestation by Notary Public. The plaintiffs explanation is that she found both these copies among the papers left behind by the deceased. The attestation on the second copy (Ex.5/2) is itself a photo copy. It is, therefore, possible that either the original declaration was not attested and that the copy (Ex.5/2) is a copy of a copy which was attested or that the original declaration was attested after the first copy (Ex.5/1) was made. Be that as it may, the fact remains that the defendant No,1 has admitted that both the copies (Exs.5/1 and 5/2) bear the signature of the deceased. The plaintiffs explanation, referred to above, regarding the two copies is credible. I, therefore, find that the Declaration of Gift is genuine.
16. ' Certain other objections raised by the defendants may now be considered. It was pleaded by them that the entry relating to the flat in the Nikahnama was added after the death of the deceased. The agreement (Ex.5/3) has been proved by the plaintiff and has not been challenged by the defendants; in fact, the defendant Not has admitted that it has been signed by the deceased. The marriage between the deceased and the plaintiff was in pursuance of that agreement and the Nikahnama is genuine. Further, the plaintiff's witness, Mohammad Younus, has asserted during cross-examination that the Nikahnama was written and prepared in his presence.
17. The defendants' assertion that the entry relating to the flat was inserted in the Nikahnama after the death of the deceased is, therefore, obviously not true. Next, it is contended by the defendants that the deceased never received possession of the flat and, therefore, could not have delivered it to the plaintiff. Admittedly the deceased had purchased the flat and given it on lease to a tenant. He, therefore, had the possession of the flat. As for delivery of possession to the plaintiff, she, in para 5 of her affidavit-inevidence, stated that the declaration evidenced making of oral gift of the flat which was accepted by her and the possession of the flat was also handed over to her. Neither the allegation of oral gift to the plaintiff nor that of her receiving the possession was challenged during her cross-examination; and her witness, Haroon Hamid categorically stated in cross-examination that the plaintiff signed the acceptance on the 6th September, 1980, when the declaration was executed. Further, the defendants have admitted in their written statement that the defendant No,6 looked after the flat on behalf of the plaintiff. It is, therefore, clear that valid gift of the flat was made by the deceased to the plaintiff.
18. In view of the above findings, the answer to issue No,2 is in the negative and the answer to issue No,3 is that the plaintiff has exclusive right to the flat and that the defendants have no right, title or interest to or in it.
19. ' The plaintiff is, therefore, entitled to the declaration and injunction as prayed; and the suit is hereby decreed as prayed.