1. ' This suit has been filed by the plaintiff for Administration and Accounts under Order 20, Rule 13, C.P.C. The grounds urged by the plaintiff are that he is the sole surviving heir of deceased Sirajul Hassan son of Abdul Haque who had died intestate and issueless at Karachi during the night between 5th and 6th April 1976 at 1-10 a.m. The plaintiff claims to be the brother of the deceased. It is in the plaint that the, deceased was employed as Head Sergeant in the Security Department of Pakistan Tobacco Company Ltd. And was residing in a company quarter. The deceased is said to have left behind his household belongings, clothing, furniture, T.V. Set, Radiogramme, transister, cash-in-hand, relevant documents of titles of properties and ornaments etc. Along with 2 plots with constructed houses being Plot No,120 Hyderabad Colony and Plot No,91-A Gulshan-e-Iqbal, Scheme No,24, Karachi. It is alleged that the deceased was entitled to provident fund, group insurance and other benefits from his employers as well as the amounts kept by him in bank account with the Site Branch of Habib Bank Ltd. And Safe Deposit Vault Branch of the said bank wherein he is said to have a locker. The defendants Nos.4 to 7 are alleged to be relatives of pre- deceased wife of deceased Sirajul Hassan who are said to have attempted to remove all movables left by the deceased and are also occupying illegally house situate at Plot No,120 Hyderabad Colony. The defendant No,1 have filed their written statement in which they admitted that the deceased was in their employment and that the deceased was entitled to various benefits from the company. These benefits amounted to Rs,41,868.83. However, by subsequent report of Nazir it appears that the amount of compensation grant, group insurance, provident fund with interest and other outstanding amounts totalling to Rs,42,664.24 were deposited by the defendant No,1 with the Nazir of this Court under the orders of the Court. The defendant No,2 were none-suited by order passed on 27-5-1978. The defendant No,3 filed their written statement as according to them the account of deceased with their Safe Vault Deposit Branch had since been closed during the life- time of deceased while the amount of Rs,13,882.36 being the balance of deceased in the Site Branch of H.B.L. Was also deposited with the Court under the orders of the Court. The defendant No,4 did not file any written statement and the suit was ordered to proceed ex parte against him.
2. Defendants Nos.5 to 7 filed their joint written statement wherein it was claimed that the defendant No,5 was the sister of the predeceased wife of late Sirajul Hassan and that through a Will the deceased bequeathed to her the house situated at Plot No,120 Hyderabad Colony and further through the said Will he also directed that the house situate in Gulshan-e-Iqbal to be sold and the amount so realised to be distributed, amongst the brothers, sisters and mother of his predeceased wife and so also the amount to be received from the Pakistan Tobacco Co. These defendants also raised plea that the house at Gulshan-e-Iqbal stood in the name of Mst. Fazilatunnisa the predeceased wife of Sirajul Hassan. Therefore the same had to be devolved on the heirs of Mst.
3. Fazilatunnisa. Admittedly the parties are Sunni Muslim of Hanafi Fiqah. On these pleadings of the parties the following issues were framed:---
(1) Whether the suit as framed is maintainable?
(2) Whether the suit is bad for non-joinder and misjoinder of the parties, if so, its effect?
(3) Whether the suit has been undervalued and proper court-fee has not been paid thereon and as such the suit is liable to be rejected under Order 7, rule 11 C.P.C,?
(4) Whether the plaintiff is the only legal representative of the deceased Sirajul Hasan or the deceased had left surviving other brothers and sisters at the time of his death, if so, its effect on the suit?
(5) Whether the deceased Sirajul Hasan left any Will at the time of his death as reported by the Nazir while preparing the inventory of the articles and other goods and documents lying at the Factory residence of the deceased?
(6) Whether the plaintiff had good relations with the deceased Sirajul Hasan during his lifetime?
(7) Whether the deceased had notified the name of the defendant No,5 and her daughter as his nominees to the defendant No,1, according to the Rules of the Company in respect of (i) Provident Fund, (ii) Workers Participation Fund, and (iii) Group Insurance etc. If so, its effect on the suit?
(8) Whether the plaintiff wanted to remove the articles/goods of the deceased Sirajul Hasan after his death from his Factory residence, but the defendant No,1 did not allow him to remove the goods of the deceased?
(9) Whether the defendants Nos.5 and 6 trespassed in House No,120, Hyderabad Colony, Karachi after the death of Sirajul Hasan as alleged by the plaintiff or they were living in the said house prior to his death on his request?
(10) Whether the plaintiff had any interest or right to inherit the property bearing No,91-A, Block No,1, Gulshan-e-Iqbal, Karachi in view of para. 15 of the plaint?
(11) Whether the plaintiff is entitled for the relief claimed, if so, to what extent?
(12) Is the sum of Rs,15,000 due under a Policy of Group Insurance issued by the defendant No,2, if so, to whom is the money payable?
(13) Are the moneys due on provident fund of the deceased payable by the defendant No,1 or by the Trustees of the Provident Fund, if payable by the Trustees of the Provident Fund, what is the effect?
(14) What should the decree be?
4. ' The Nazir of this Court under the Court orders went to the residential quarter of the deceased, prepared the inventory of the articles lying in the said house and submitted his report containing inventory of various articles and papers including a Will date 13-3-1976 in Urdu. A further report was submitted by the Nazir on 24-5-1976 after breaking open the lock of steel almirah. The movable articles left by the deceased as per the inventory prepared by the Nazir were under the Court order sold and amount of Rs,8,400 was realised which was also deposited in the Court. The Nazir was also directed to take steps to recover the rent from the occupants of the two houses left by the deceased as stated above. Mr. Manzoor Hussain, Advocate was appointed as Receiver of the property involved in the suit by the Court order dated 29-4-1979 and after his death the Nazir of this Court was substituted as Receiever in his place by order passed on 6-12-1981.-The parties have led their evidence. The plaintiff examined himself, Mr. Azmatullah Baig from Hyderabad Cooperative Society Karachi, Mr. Imamuddin from K.DA., Muhammad Ayub from H.B.L. And Mr. Mustafa Ali Baig, the tenant in house in Gulshan-e-Iqbal. The defendant No,5 examined her sister Hussaini Begum, Mst. Salima, Secretary from PTC, Mr. Abdul Wahid Khan, personnel manager from PTC and finally the defendant No,5 herself. Other defendants did not lead any evidence. Before proceeding further it may be observed that the plaintiff in his evidence stated he is not claiming any relief from the defendants Nos.6 and 7. The suit is accordingly dismissed against the defendants Nos.6 and 7 with no order as to costs. Now I proceed to consider the evidence on record issuewise as under:-- ISSUES Nos.1 and 2: ' These issues are raised by the defendants. The main objection raised by the defendants' counsel is that all the necessary parties have not been joined in the suit and, therefore, the suit is not maintainable and is liable to be dismissed. Mr. Ghulam Muhammad Ibrahim, learned counsel for the plaintiff has opposed this submission of the Advocate for the defendants Nos.4 to 7. Before proceeding further it may be observed that in respect of an administration suit no specific provision with regard to procedure exists though the competence of such suit is recognized under Order XX, Rule 13 of C.P.C. In a suit for administration the relief to be granted is that the estate of deceased is to be administered under the decree of the Court which means the Court will assume the function of the administrator, which will realise the assets, discharge debts and legacies, will take the account of income of the property and will distribute the assets amongst those entitled to it. The object of an administration suit is the distribution of the assets between more than one person who would be entitled to such assets proportionate to their respective shares. Reliance may be placed on the case of Syed Mehdi Hussain Shah v. Mst. Shado Bibi (PLD 1962 SC 291). In the present case also the dispute is with regard to properties, assets and liabilities left behind by deceased Sirajul Hasan and the entitlement to the same by various persons claiming as his heirs or under a Will.
5. ' The other aspect of this issue is whether the present suit would be liable to be dismissed for non- joinder of the necessary parties. From the evidence of the parties it stood admitted that the deceased Sirajul Hasan had other brothers and sisters also but the evidence shows that only one brother namely Manazirul Hasan and sister Rabia Sultana (Sultana Khatoon) are alive and are living in India while the present plaintiff is the other brother living, in Pakistan. Except these persons there is nothing on record to suggest that the deceased had left any other heir alive. However, the question for consideration, therefore, would be whether the present suit would be maintainable.
6. The said brother and sister living in India are not party to the suit. It may be observed that the provisions of Order 1, Rule 9, C.P.C. Provide that no suit will be dismissed on account of misjoinder or non-joinder of the parties and Court may in the suit deal with the matter in controversy so far as with regard to the rights and interests of the parties actually before it. Reliance may be placed on the case of East and West Steamship Company v. Queen's Land Insurance Co. (PLD 1963 SC 663).
7. Also in case of Mst. Salma Abbasi and another v. Ahmad Suleman and 2 others (1981 CLC 462)
8. Ajmal Mian, J. (as his Lordship then was) had held that the provisions of Order 1, Rules 9 and 13, C.P.C. Can be pressed into service in cases where effective decree can be passed in absence of some parties. In case of Sher Muhammad v. Ghulam Rasool (PLD 1977 Quetta 86) it was held that a decree can be passed in favour of absenting parties declaring their entitlement with specific observation that they could recover their shares of property. In view of C the above discussed facts and law, I answer these issues against the defendants holding that the suit as framed is maintainable and is not liable to be dismissed for non-joinder and misjoinder of the parties.
9. ISSUE NO.3: The plaintiff has valued the suit for the purposes of court-fee and jurisdiction at Rs,1,22,000 and has paid court-fee stamp thereon. However, the plaintiff will be called upon to pay the deficit court-fee, if any, at the time of preparation of final decree.
10. ISSUE NO.4: ' The plaintiff in his evidence has stated that they were in all 5 sisters and 7 brothers. He has however, in cross-examination further submitted that only the deceased Sirajul Hasan, plaintiff himself and one brother migrated to Pakistan while the others remained in India. According to the plaintiff only one brother and sister namely Manazirul Hasan and Mst. Rabia Sultana are still alive and are living in India while the others have since expired. Although the plaintiff has not been able to give the date of the death of the other brothers and sisters but also there is no evidence from the defendants side, to prove, if any of them are still alive. Under these circumstances I would accept the statement of the plaintiff that his one brother and sister are still alive. The consequence of this fact is that the plaintiff is not the only heir of the deceased Sirajul Hasan but his other brother and sister as stated above are also the co-heirs. The effect, therefore, would be that the plaintiff would be entitled to share of 2/5 in the assets and property left by the deceased while the other brother and sister would also be entitled to their shares to the extent of 2/5 and 1/5 respectively.
11. ISSUE NO. 5: ' This is the most crucial issue in the suit. It is an admitted position that the defendant No,5 is the sister of predeceased wife of deceased Sirajul Hasan. The plaintiff in the plaint claims that name of the wife of the deceased was Ahmadi Begum whereas the case of the defendant No,5 is that in home she was called Ahmadi Begum but her name was Fazilatunnisa. The plaintiff in his cross- examination has stated that it may be that she might had changed her name afterwords being Fazilatunnisa. He has also expressed that he cannot say if she had changed her name as Fazilatunnisa. As against this the defendant No,5 and her sister Mst. Hussaini Begum have specifically stated that the name of the wife of deceased Sirajul Hasan was Fazilatunnisa who was their sister. Accordingly I have no hesitation in holding that the deceased wife of late Sirajul Hasan was known as Ahmadi Begum alias Fazilatunnisa. NOW the question for consideration under this issue is if any Will was left by the deceased. The record shows that the deceased died on night between 5th and 6th April 1976. The plaintiff had admitted that dead body was taken to the house situate at Plot No,120 Hyderabad Colony. The plaintiff has also claimed that on the next morning the defendants 4 to 7 attempted to enter in the residential quarter of the deceased at Pakistan Tobacco Co. But they were not allowed to do so. It has also come in evidence and as per the report of the Nazir that the said residential premises of the deceased were locked by the company and the defendants 4 to 7 were not Mowed' any access to these premises thereafter. It is also evident from the report of the Nazir who prepared the inventory that the Will which has been brought on record as Exh.1-B was recovered from the said quarter of the deceased where the Nazir had entered after opening the lock. The evidence shows that these premises were kept locked when the Nazir went there. The plaintiff has himself in his evidence admitted that this Will was recovered from the said quarter. Under these circumstances it certainly cannot be said that this Will was planted by the defendants. It is but natural that this Will would have been with the documents of the deceased which has been recovered therefrom and has thus come forth from the right source. Mr. Ghulam Muhammad Ibrahim has vehemently argued that the defendants have failed to prove this Will. He has submitted that this Will is dated 13-3-1976 which is only one day prior to the deceased falling ill. In the plaint it is contended by the plaintiff that on 14-3-1976 the deceased had felt pain in urinatery tract and therefore, he was removed to hospital but nowhere it has been brought on record that prior to 14-3-1976 the deceased had suffered from any ailment, and therefore it cannot be said that this Will was made during 'Marzul-Mour or that on 13-3-1976 the deceased was not in proper senses or was under any influence or coercion. The second aspect is that whether this Will bears the signatures of the deceased. The defendant has produced 3 documents on record as Exhs.1-C, 1-D and 6-A, Exhs.1-C and 1-D are the arbitration settlement made as far back as in the year 1954 which also bears the signatures of F the deceased in Urdu. The 3rd document. Exh. 6-A is a Nikahnama of Mst. Hussaini Bcgum dated 15-5-1950 which also bears signatures of the deceased in Urdu as a witness to the Nikahnama. The defendant's witness Hussaini Begum who is also sister- in-law of deceased has herself produced this Nikahnama and has stated that these signatures were put by the deceased in her presence. All these signatures on these documents do appear to be quite similar to the signature of the deceased on the Will. A plain look on the signatures would show that they are made by the same person. The plaintiff has of course denied these signatures to be those of his deceased brother although in his cross-examination when he has been shown the Will and the above 3 documents he has admitted that the signatures are quite similar. The plaintiff failed to bring on record any other admitted signature of the deceased to prove his contention that the signatures on this document of the Will are not those of his deceased brother although he had said in his evidence that he will search for the letters of his brother which were written to him and will produce the same in support of his contention but on the next dates of hearing he has stated that he did not bring these letters. This itself shows that there were some letters written by the deceased to the plaintiff but the plaintiff has deliberately avoided to produce the same. Under these circumstances obviously the inference would be that had those letters been produced they would have gone against the plaintiff. Article 129-G of Qanun-e-Shahadat provides for above inference which reads as under:-- "129. Court may, presume existence of facts. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
12. ' The Court may presume--
(g) that evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it."
13. ' Mr. Ghulam Muhammad Ibrahim, learned counsel for the plaintiff has placed reliance on the provisions of Articles 61, 78 and 84 of Qanun-e-Shahadat. Article 61 deals with opinion as to handwriting when relevant while Article 78 deals with proof of signature and handwriting and Article 84 deals with comparison of signature or writing or seal with other admitted or proved documents. As discussed above, in the present case the plaintiff having avoided to produce the letters of the deceased, the inference would go against him as provided under Article 129-G of the Qanun-e-Shahadat while the defendants have produced other signatures of the deceased in the form of Annexures 1-C, 1-D and 6-A winch fully tally with the signatures of the deceased on the Will The defendants' witness Hussaini Begum who is also sister-in-law of the deceased has categorically stated that the signatures were put on document Exh.6/A by the deceased in her presence. This evidence of Hussaini Begum could not be shattered in cross-examination nor any contrary evidence has been brought on record by the plaintiff. Learned counsel has placed reliance on the case of Sarala Bala Sikder v. Aghorananda Sikder (PLD 1966 Dacca 154). I am afraid that the principle laid down in this judgment of a Division Bench of the Dacca High Court rather goes against the plaintiff as in this case it was observed by their Lordships that a person in debilitated and feeble state of physique but otherwise capable of exercising sound judgment as to mode of disposal of his property is quite competent to execute valid Will and that directions contained in such Will therefore become the directions of the testator himself. Under these circumstances, I answer this issue in affirmative holding that the said Will was left by the deceased.
14. ISSUE NO. 6: ' This issue is redundant as the relations between the plaintiff and deceased Sirajul Hasan have nothing to do with the plaintiff's right of inheritance to which, being a brother he would be entitled to receive his share according to Islamic Law.
15. ISSUE NO. 7: ' On this point no evidence has come on record although two witnesses from Pakistan Tobacco Co.
16. Were examined. Abdul Wahid Khan, of the company has stated that it was in his knowledge that some lady was nominated as beneficiary by the deceased. However, it is immaterial as to who was the nominee of the deceased to receive the provident fund etc. From the company as it is an established law that nominee is only a trustee of such benefits which are to be distributed amongst the persons entitled to the same in accordance with the law. The issue is answered accordingly. The said benefits have since been deposited in Court by the company.
17. ISSUE NO. 8: ' This issue is redundant and is answered accordingly. The movable articles/goods of the deceased as recovered by the Nazir from his residence have since been sold for consideration of Rs, 8,400 and the amount deposited in Court.
18. ISSUE NO. 9: On this issue the evidence of Azmatullah Baig of Hyderabad Cooperative Housing Society is very relevant. This witness has stated that the plots situated in Hyderabad Colony are generally of 133 Sq. Yds. And that the deceased Sirajul Hasan had applied for only 112 Sq. Yds. He has further stated in his cross-examination "there were arbitration proceedings in respect of house No,120 on 14-11- 1954. The Arbitrators gave their decision showing that House No,120 from which two portions came into existence one was given to Siraiul Hasan and other one to Abdul Rahman. On the basis of this decision name of Jahandar Begum (mother of Abdul Rahman and defendant No,4) came on record." This witness was also shown the decision of the Arbitrator (Exhs.1-C and 1-D) and he has also affirmed that these two documents bear the signatures of the deceased Sirajul Hasan dated 14-11-1954 and 3-12-1954. According to this witness the name of Jahandar Begum was thus 'brought on record who had subsequently made gift of her portion to the present defendant No,4 and that the defendant No,4 was then made a member of the Society. According to this witness the PT-1 Form was issued for Plot No,120 and 120-A in the name of Sirajul Hasan and Jahandar Begum respectively. In view of the above discussion, it is observed that plot No,120 was the property of deceased Sirajul Hasan. The defendants claim to have been put in possession of the said house by the deceased himself and have not trespassed over the same. However, as I have already held the will to be valid, the defendant No,5 would be entitled to at least 1/3 share of the said house as per the Will being a non-heir and thus she cannot be said to be a trespasser. The issue is answered accordingly.
19. ISSUE NO.10: ' On this issue the plaintiffs case is that the said house situate in Gulshan-e-Iqbal belongs to the deceased who had acquired the same in the name of his wife Fazilatunnisa and thus it being Benami transaction Fazilatunnisa was only ostensible owner whereas deceased was real owner of the house. I have no hesitation in accepting contention of the learned counsel as it is an admitted fact that Fazilatunnisa was the wife and the defendants have not brought any evidence on record to prove that the said property was acquired by the said Fazilatunnisa from her own resources. The presumption in such case would be that the property had been bought by her husband. Reliance may be placed on the case of Khan Imtiaz Ahmad Khan v. The Islamic Republic of Pakistan (PLD 1988 Federal Shariat Court 28) and Ismail Dada Adam Soomar v. Shorat Bano (PLD 1960 Karachi 852). Under these circumstances, I would answer this issue in favour of the plaintiff to the effect that the plaintiff would be entitled 2/5 share of the remainder in the suit property after satisfying share of the defendants as per the Will of deceased.
20. ISSUES NOS.12 and 13: ' These issues require no adjudication as the benefit or provident, fund, group insurance etc. Have already been deposited by the defendant No,1 in Court.
21. ISSUES NOS.11 and 14: In view of the above discussion, it is held that the deceased had left the Will (Exh.1/E) while the plaintiff being brother of the deceased alongwith other brother and sister who lived in India, the parties will be entitled to their respective shares in the properties and assets left by the deceased.
22. The defendant No,5 is the sister of predeceased wife of late Sirajul Hasan and as such she is not K an heir under Muslim Law as admittedly the parties are Sunni Muslims and are governed by Hanafi Fiqah. The defendant No,5 under the Will would be entitled to 1/3 share only in the house situate on Plot No,120, Hyderabad Colony and the rent realised by Nazir. As regards the house No,91-A, Gulshan-e-Iqbal Scheme 24, the defendant No,5 alongwith her mother, brothers and sisters would be entitled to 1/3 shares of the amount which would be realised by sale of the said house and also the rent. The defendant No,5 will also be entitled to 1/3 share in the amount received from Pakistan Tobacco Co., the defendant No,1. The plaintiff would be entitled to 2/5 share of remaining 2/3rd with proportionate rent in the house situate on plot No,120 Hyderabad Colony, the amount realised from the sale of house 91-A, Gulshan-e-Iqbal, Scheme No,24 after deducting 1/3rd and proportionate rent and the benefits and amount received from Pakistan Tobacco Co. To the extent of 2/5 share from the remainder of these properties after satisfying the above share of defendant No,5 and her mother, brother and sister and deduction of an amount of Rs,10,000 which the deceased had directed to be paid to his brother Manazirul Hassan. The plaintiff will also be entitled to 2/5 share of the total amount received from Habib Bank Ltd. And also from the amount realised by sale of movable properties. I, therefore, decree the suit in the above terms and direct the preliminary decree be prepared accordingly. The Nazir of this Court who has already been appointed as Receiver is to act as an Administrator of the properties left by the deceased. The expenses will be met from the assets left by the deceased. There will be no order as to costs.