1. Haji Ahmad son of late Ismail died at Karachi on 28-9-1981, leaving behind the following legal heirs:--
(a) Mst. Aisha, widow (defendant No,1)
(b) 3 sons, Ismail and Hussain from his divorced wife Mst. Karima (plaintiffs Nos.1 and 2), and Abdul Karim from his first wife Mst. Aisha (defendant No,3).
(c) 3 daughters, Mst. Amina and Mst. Hawa from divorced wife (plaintiffs Nos.3 and 4) and Mst.
2. Khadija from Mst. Aisha (defendant No,2).
3. ' The deceased was a Cartage Contractor and General Order Supplier and according to the plaint was doing business with M/s. Lipton (Pakistan) Ltd., Gammon (Pakistan) Ltd. and M/s. Barger Paints Ltd. and used to maintain account with National & Grindlays Bank, Habib Bank Ltd. and United Bank Ltd.
4. According to the plaintiffs the deceased left behind, the following movable and immovable properties:. {{Table}}
(i) Truck bearing Registration No,809-958 valued at... Rs,175,000.00
(ii) Truck bearing Registration Rs,150,000.00 809-055 valued at...
(iii) Truck bearing Registration No,801-350 & No,809-095 both valued at... Rs,100,000.00
(iv) Truck bearing Registration No,809-054 valued at... Rs,50,000.00
(v) 3 plots bearing Nos.1471, 1472 and 1473 measuring 127, 101 and 132 sq. yds. respectively situated in Gali No,2, Madina Masjid, New Khadda (Haroonabad) Shah Waliullah Road, Karachi, valued...
5. Rs,10,00,000.00
(vi) Rented office with fixtures and furnitures, telephone and goodwill estimated at...
6. Rs,150,000.00
(vii) Money lying with the aforesaid banks... Rs,500.000.00 Total: Rs,21,75,000.00 {{Table}}
(viii) Golden ornaments, cash in hand and household goods wtnth over lacs of rupees.
7. ' It is stated that the deceased used to live with all his family members as joint family on account of which defendant No,2 being elder son of the deceased was incharge of all the documents and affairs relating to the above-mentioned properties/business and assets and also used to assist the deceased in the business.
8. ' After the death of Haji Ahmad, plaintiff No,1 requested defendant No,2 on 30-9-1982 to approach the Court of Law for succession certificate and letter of administration for the purposes of distribution of the shares amongst the respective heirs in the assets of the deceased. However, parties fell apart resulting in proceedings against them under section 107/117, Cr.P.C. Plaintiff No,1 addressed letters to the parties with whom the deceased had business dealings, but could not get any information. He then sent notices to defendants 2, 4 and 5 but they were returned unserved, however, notice dated 23-1-1983 was served on the defendants. In their replies, according to the plaintiffs they took false stand with regard to the assets of the deceased.
9. ' It is stated that defendant No,4 Ali Ahmed (since deceased) the brother of the deceased, transferred Truck No,809-954 and Plot No,1472 in his name and so also defendant No,1 Mst. Aisha got transferred Plot No,1471 in her name and two trucks bearing Registration No,518-958 and 909- 055 have been got illegally transferred by way of sale in favour of defendant No,6, Yaqoob, and Truck No,809-094 in favour of defendant No,7, Din Muhammad and Truck No,801-350 to defendant No,8. Maher Ali. All the aforesaid tansactions have been termed as illegal and fraudulent.
10. ' On the above facts the plaintiffs who are the sons and daughters of late Haji Ahmad from his divorced wife have brought this suit for declaration that the aforesaid transactions in respect of above-stated properties are illegal and defendants Nos.1 to 8 have illegally usurped, embezzled and misappropriated the said properties and that the proceeds of the aforesaid sales of three trucks and the plots of land have been distributed amongst defendants Nos.1 to 3 without consent of the plaintiffs and without paying their due shares. They have also prayed for partition and separate possession and for furnishing accounts and that all the properties be maintained under the decree of the Court. Lastly the plaintiffs have sought perpetual injunction restraining defendants 1 to 8 from making any further transaction.
11. ' Defendants 2, 4 and 5 filed their joint written statement and defendant No, 1 has filed separate written statement. The other defendants did not come forward to contest the suit.
12. ' The defendants in their written statements have not denied the relationship of the parties with the deceased. They stated that Mst. Mariam was divorced by Haji Ahmed as such, she has not succeeded to the estate of the deceased Haji Ahmad. It is further disclosed that the deceased used to do business in partnership with defendants 4 and 5 and one Muhammad Iqbal son of Ali Muhammad. In the aforesaid partnership firm two trucks belonging to late Haji Ahmad, two trucks of defendant No,4 Ali Ahmad and one truck belonging to defendant No,2 Abdul Karim used to be plyed. It is stated that the accounts in the National and Grindlays Bank were in the joint names of Haji Ahmad and defendant No,5. It is stated that the deceased owned only two trucks bearing Registration No,809-055 and 809-350. Trucks bearing registration Nos. 818-858 and 809-054 belonged to defendant No,4 and truck Nos.809-094 belonging to defendant No,4 Abdul Karim. It is further stated that the Registration Nos.809-958 and 801-350 are fictitious. With regard to immovable properties it is stated that Plots Nos.1471 and 1472 are respectively owned by defendant No,1 Aisha and defendant No,4 Ali Ahmad. Only Plot No,1473 was owned by deceased Haji Ahmad.
13. With regard to the office premises it is stated that the tenancy stands in the joint names of the deceased and defendant No,5 Munshi Noor Muhammad and so also the telephone. The value of the assets as disclosed in the plaint has been disputed as exaggerated and inflated. The defendants have denied that they have ever lived as a joint family with plaintiffs. It is alleged that the plaintiffs used to be constant source of great trouble, not only to late Haji Ahmad and the other family members in his lifetime, but they have continued to cause quarrels and discord among the family members for their selfish aims and greed. It is disclosed that defendant No,2 has been working abroad since 1966 and had nothing to do with the management of the property and business of the deceased who used to deal with the business himself. It is stated that the plaintiffs were allowed by defendant No,4 to live in his property stated above, as licensee and because of their unbecoming conduct the said defendant had filed the suit for possession and mesne profits against plaintiff No,1 which is pending.
14. ' It is disclosed that after the death of Haji Ahmad with a view to settle the dispute and to avoid the acute bitterness among the legal heirs of late Haji Ahmad, defendants Nos.2 and 4 agreed to place their aforesaid three trucks bearing Registration No,809-094, 818-858 and 809-054 in the pool of the properties of late Haji Ahmad, which consisted of Rs,50,243 recovered on account of outstanding bills and Rs,25,299 being accumulated profit, for distribution between the plaintiffs and defendants 1 to 4. The said properties were placed at the disposal of the Ameen for equal distribution among the plainiffs and defendants 1 to 4. According to the above settlement the trucks bearing Registration No,809-055, 809-350, 818-858 and 809-094 were sold to defendants 6 to 8 for Rs,175,000 and 5th truck bearing Registration No,809-054 which belonged to defendant No,4 was valued at Rs,20,000 and the amount was adjusted against the share of defendant No,4.
15. Thus Rs,195,000 being sale proceeds of the aforesaid 5 trucks plus the aforesaid two amounts, totaling Rs,274,542.34 were distributed in equal share of Rs,34,317.00 to each of the plaintiffs and defendants 1 to 4. Plaintiff No,1 received the share of all the plaintiffs on 9-5-1982. It is stated that the plaintiffs have set up false claim in respect of the assets of the deceased.
16. ' On 4-11-1984 the consent issues submitted by the parties were adopted, but on 31-1-1989, the issues were reframed as under:---
(1) Whether the Property No,1471, Gali No,2, New Khadda (Haroonabad), Layari Quarters, Karachi, does not belong to the defendant No,1, but it belonged to deceased Haji Ahmad?
(2) Whether the Property No,1472, Gali No,2, New Khadda, (Haroonabad), Lyari Quarters, Karachi, does not belong to defendant No,4 Ali Muhammad, but it belonged to deceased Haji Ahmad despite the decree passed in Suit No,4699 of 1982, decided by Senior Civil Judge XIII, Karachi?
(3) Whether the amount in the joint account of deceased Haji Ahmad and defendant No,5 Munshi Noor Muhammad, in the National and Grindlays Bank, I.I. Chundrigar Road Branch, Karachi, belonged exclusively to deceased Haji Ahmad?
(4) Whether Trucks No,818-858 and 809-054 blonged to defendant No,4, Ali Muhammad and Truck No,809-094 belonged to defendant No,2 Abdul Karim?
(5) Whether the tenancy of the prremises used as office, was in joint names of deceased Haji Ahmad and defendant No,5 Munshi Noor Muhammad, and not in exclusive name of the deceased?
(6) Whether the telephone in the premises used as office was in joint names of Haji Ahmad and defendant No,5 Noor Muhammad and not in exclusive name of the deceased?
(7) What amount was payable to deceased Haji Ahmad by M/s. Lipton (Pakistan) Ltd., M/s. Barger Paints Ltd. and by M/s. Gammon (Pak) Ltd. in respect of the works undertaken by the deceased for said firms?
(8) What amount is lying in accounts of the deceased with Habib Bank Ltd., Main Branch, Karachi, National and Grindlays Bank, I.I. Chundrigar Road Branch, Karachi and United Bank Ltd., Harris Road Branch, Karachi?
(9) Whether the defendants Nos.6 to 8 were sold four of the trucks exclusively owned by deceased Haji Ahmad and by whom?
(10) Whether the deceased left gold, jewellery, cash and other domestic articles? If so, with whom?
(11) What should the decree be?
17. ' Mr. A. Hameed Lakhani, Advocate for the plaintiffs examined plaintiff No,1 on behalf of the plaintiffs at Exh.6 who produced the death certificate of the deceased Haji Ahmad as Exh.6/1, undelivered postal covers whereby notices were sent to defendants 3, 4 and 5 as Exhs.6/2 to 4. Copy of the notices sent to the said defendants as Exh.6/5. This notice consists of three leaves. The second and third pages have been wrongly marked as Exhs.6/6 and 6/7. The reply of the said defendants as Exhs.6/8 to 10. Defendant No,3 produced bulk of documents as Exhs.7/1 to 39, which will be considered at proper place.
18. ISSUE NO.1: ' It may be stated at the very outset that plaintiff No,1 who was examined on behalf of the plaintiffs has given general and sweeping statement in respect of the assets of the deceased by saying that the deceased had left behind the properties which have been mentioned in paragraph 4 of the plaint. The defendants have produced lease deed pertaining to Plot No,1471 executed on 8-12-1980 in favour of Mst. Aisha Bai defendant No,1 as Exh.7/26. Exh.7/27 and Exh.7/28 are the letter of approval and approved plan respectively in respect of the said plot. The lease deed was executed in favour of Mst. Aisha during the lifetime of the deceased. There is no evidence that may reflect adversely on the documentary evidence produced by the defendants or to establish that the aforesaid plot was owned by the deceased. It is therefore held that the aforesaid plot is owned by defendant No,l. The issue is answered in negative.
19. ISSUE NO.2: ' The defendants have produced receipted challan regarding payment of KMC charges in respect of Plot No,1472 as Exh.7/22. This document is dated 14-9-1944. It is in the name of Ali Muhammad.
20. The (sic) lease executed by the K.M.C. in favour of All Muhammad son of Ismail in respect of Plot No,1472. This deed was executed on 20-9-1980. Exh.7/18 is a receipted challan of the lease amount and the other charges pertaining to period from 1974-75 to 1978-79 in respect of the aforesaid plot.
21. These charges also have been paid by Ali Muhammad. The record of Excise and Taxation Department also shows that the said plot is in the name of Ali Muhammad from the year 1968.
22. Exh.7/8 is the letter of approval of the building plan and Exh.7/9 is the approval building plan. They establish that the building plan was approved in the name of Ali Muhammad. The above documents clearly establish the ownership of Plot No,1472 in favour of Ali Muhammad. It has also come on record that plaintiff Ismail was inducted as licensee in the plot and subsequently Ali Muhammad filed suit against him for recovery of possession which was decreed in his favour. The judgment has been produced as Exh.7/11 and decree as Exh.7/12. The appeal was also dismissed as per Exhs.7/13 and7/14. Keeping the documents pertaining to the aforesaid litigation out of consideration, it has been established by other overwhelming documentary evidence discussed hereinabove that Plot No,1472 is owned by defendant No,4 Ali Muhammad. The Issue is therefore answered in negative.
23. ISSUE No,3: ' Plaintiff No,1 in his evidence deposed that the bank account used to be operated under the joint signatures of his father, Noor Ahmed and Ali Muhammad. Plaintiff No,1 in his evidence has not deposed that the bank account in National and Grindlays Bank belonged exclusively to deceased Haji Ahmad. The defendants have produced statement of the account maintained in the National and Grindlays Bank as Exh.7/6. The said statement shows that it is in the joint names of Haji Ahmad Ismail and Noor Ahmad. The above Issue is, therefore, answered in negative.
24. ISSUE NO.4: ' Plaintiff No,1 in his cross-examination admitted that Trucks Nos.818- 858 and 809-054 were registered in the name of Ali Muhammad. He alleged that the said trucks were registered in the name of Ali Muhammad after the death of his father. Defendants' witness Abdul Karim deposed that the deceased owned only two trucks bearing Registration Nos.809-055 and 809-350. He specifically" deposed that trucks Nos.818-358 and 809-054 belonged to defendant No,4 Ali Muhammad. The plaintiffs did not bring any evidence on record to show that the aforesaid two trucks were registered in the name of Ali Muhammad after the death of Haji Ahmad. Plaintiffs also admitted that truck bearing Registration No,809-094 was registered in the name of Abdul Karim during lifetime of his father. Defendant No,3 in his evidence stated that he was the owner of the said truck. The plaintiffs have not brought any evidence on record to create any doubt with regard to the ownership of the aforesaid 3 trucks belonging to defendant No,3 Abdul Karim and defendant No,4 Ali Muhammad. It is held that the deceased owned only two trucks. The Issue is, therefore, answered in affirmative.
25. ISSUE NO.5: ' The plaintiffs have not brought any evidence on record with regard to the tenancy rights in respect of the office premises. Defendant Abdul Karim stated in his evidence that Haji Ahmad and Noor Ahmad were the tenants in respect of the said office. This witness also produced 6 rent receipts Exh. 7/5 (1) to (6). The authenticity of the saki documents was not challenged in the cross- examination which clearly establish that tenancy of the office premises stands in the joint names of the deceased and defendant No,5. It may be clarified that the plaintiffs have wrongly described defendant No,5 as Munshi Noor Muhammad. Plaintiff No,1 in his evidence deposed that the name of defendant No,5 has been wrongly described by him and that correct name of defendant No,5 is Noor Ahmad. The Issue is, therefore, answered in affirmative.
26. ISSUE NO.6: ' Plaintiff No,1 in his cross-examination has stated that the telephone connection is not in the joint names of his father and Noor Ahmad. Defendant No,3 apart from giving evidence that this telephone stood in the joint names of the said two persons, produced telephone bills as Exh. 7/6(1) to (4) pertaining to the years 1972, 1979 and 1987. In view of the aforesaid documentary evidence there is no escape from the fact that the telephone stood in the joint names of the deceased and defendant No,5 and not in the exclusive name of the deceased. The issue is, therefore, answered in affirmative.
27. ISSUE NO.7: ' The parties have not brought any evidence on record to establish as to what amount was payable to the deceased by the aforesaid companies. By order dated 21-10-1984 Mr.Arif Hussain was appointed as Receiver in respect of the assets of the deceased. He has submitted his report on 11- 1-1988. He was informed by M/s. Berger Paints Limited, by their letter dated 3-12-1984 that a sum of Rs,21,107.25 was payable to the deceased after deduction of income-tax and the said amount was paid through two cheques dated 3-10-1981 and 20-10-1981. M/s Lipton (Pak) Ltd., by their letter dated 15-11-1984 informed the Receiver that no amount was payable to late Haji Ahmad. Similarly M/s. Gammon (Pak) Ltd. informed the Receiver by their letter dated 19-11-1984 that nothing was due to be paid to late Haji Ahmad. This was again confirmed by them by their letter dated 23-12-1984. It is, therefore, held that only sum of Rs,21,107.25 was payable by M/s. Berger Paints Ltd. to the deceased at the time of his death. It is not disclosed by either of the parties or by M/s. Berger Paints Ltd. as to whom the amount due was paid by them after the death of the deceased. The evidence is absolutely silent in this regard. It is not alleged by the defendants that the said amount was recovered by the plaintiffs or any of them. However, the defendants in their written statement have disclosed that a sum of Rs,50,240 was recovered on account of outstanding bills and Rs,29,299.34 as accumulated profits, without disclosing as to from what sources the aforesaid amount was received. It is, therefore, presumed that the aforesaid amount was paid to the defendants. It is accordingly held that a sum of Rs,50,243, was in all outstanding on account of the work undertaken by the deceased.
28. ISSUE NO.8: ' The plaintiffs have not brought any evidence on recored in respect of the accounts of the deceased in the banks. The defendants apart from production of Exh. 7/6 have also not brought any material on record. However, report submitted by the Receiver and documents annexed thereto disclose that a sum of Rs,11,323.79 are lying in the National and Grindlays Bank Ltd. in the joint account of Haji Ahmad Ismail and Noor Ahmed. M/s. United Bank Ltd. have confirmed that a sum of Rs,20,654.55 is lying to the credit balance in the current account of the deceased. M/s. Habib Bank Ltd. in their letter dated 14-11-1984 sought better particulars from the Receiver with regard to account number and address of Ismail son of Ahmad to enable them to furish to the Receiver the desired information but it appears that none of the parties cooperated with the Receiver to trace out the account of the deceased if any with the said bank. It is, therefore, held that a sum of Rs,11,323.79 is lying to the credit of joint account of the deceased and Noor Ahmad and that 50% of the said amount will go to the credit of deceased and 50% is payable to legal representatives of defendant No, 5 who died during pendency of the suit. It is further hold that a sum of Rs,20,654.55 is lying in United Bank Ltd., Harris Road Branch, Karachi, to the credit of the deceased.
29. ISSUE NO. 9: ' On this issue again the parties have not brought any evidence on record. However, evidence was ordered to be recorded by the Commissioner on application filed by Intervenor Ahmad Bux and help could be sought from the said evidence with regard to sale of the trucks. It has been already held that the deceased owned only two trucks bearing Registration Nos.809-055 and 809-350. The Commissioner examined Ahmad Bux son of Hussain Bux, defendant No, 6, Yaqoob, Anwar Ali and Muhammad Siddiq son of Umer, plaintiff No,1 Ismail and Haji Hussain. The above evidence discloses that Defendant Yaqoob had purchased two trucks bearing Registration Nos.809-055 and 818-858 for total consideration of Rs,160,000. Out of which former was resold by him to Ahmad Bux for Rs, 120,000 and the latter to Muhammad Siddiq Umer for Rs, 150,000. Defendant No,6 Yaqoob deposed that out of the sale consideration, as stated above, Rs,110,000 was paid by him to plaintiff No,1 Ismail. The latter has denied the receipt of the said amount and examined Haji Hussain to establish that entire sale consideration was received by defendant No,4 Ali Ahmed from defendant No, 6 Yaqoob. The said Haji Hussain deposed that Yaqoob and Ali Ahmed negotiated for sale of two trucks and the former agreed to purchase the same for Rs,160,000 but stated that he had no money with him at that time and that he would make payment on the next day. On the next day he noticed Yaqoob with a bag, out of which he took out money and paid to Ali Ahmad. He did not disclose the quantum of amount paid. According to him the bargain was struck at Rs,160,000.
30. Whereas the said Ismail stated that the trucks were sold for Rs,120,000. The evidence of the said plaintiff and his witness does not inspire my confidence.
31. ' Defendant No,6 Yaqoob deposed that plaintiff Ismail had come to him for sale of the two trucks and he had agreed to purchase the same. Thereafter Ismail and defendant No,4 All Amed came to him and settled the terms and conditions of the sale of the trucks. It is, however, established that trcuks bearing Registration No, 809-055 and 818-858 were sold by plaintiff No,1 Ismail and defendant No,4 Ali Ahmad to defendant No, 6 Yabooq for total consideration of Rs,160,000 out of which sum of Rs, 110,000 was received by plaintiff No, 1 Ismail. Out of the aforesaid two trucks first one belonged to the deceased and the other one to defendant No,4 Ali Muhammad. Ali Muhammad therefore appears to be associated with the said sale as he was owner of the other truck. It is therefore, held that the truck belonging to the deceased bearing Registration No,809-055 was sold by plaintiff No, 1 Ismail. There is no evidence with regard to sale of the other truck. The Issue is decided acco#dingly.
32. ISSUE 10: In this respect the plaintiffs' witness had made general statement and did not give any details of the assets of the deceased like gold, jewellery, cash and other domestic articles. The defendants in their evidence have denied that the deceased had left any such articles. It is, therefore, held that the deceased did not leave behind any of the itmes stated above.
33. ISSUE NO.11: ' Before taking up the above issue, the defence raised by the defendants with regard to mutual settlement between the parties may be considered. It is disclosed in the written statement that to avoid bitterness in the family, defendants 2 and 4 had agreed to place their three trucks in the pool of the estate of the deceased Haji Ahmad, i.e. Rs, 50,243.00 recovered on account of outsanding bills and Rs, 29,299.34, the accumulated profit thereon, under a mutual settlement arrived at between the parties, and defendants 1 to 4. Consequnetly trucks bearing registrtation Nos. 809- 055, 809-350, 818-858 and 809-094 were sold to defendants 6 and 8 for Rs, 175,000 and for truck No,809-054 belonging to defendant No, 4, the share payable by him was valued at Rs,20,000 the total amount thus worked out to be Rs, 274,542.34 was distributed amongst the heirs of the deceased. The burden to prove the above settlement was on the defendants. Plaintiff No, 1 has denied the existence of such settlement and so also alleged payment of the shares. The defendants have failed to establish that. such settlement was arrived at or the shares were distributed. The alleged private settlement is, therefore, to be kept out of consideration.
34. ' From the above evidence, it is established that the deceased has left behind , the following properties which have devolved on his legal representatives: ,(1) Plot No, 1473, Gali No, 2, New Khadda Haroonabad, Lyari Quarters, Karachi, with structure thereon;
(2) 50% share in the Office Premises and goods lying therein. The other half share will go to defendant No,5 Noor Ahmad.
(3) 50% share in the amount of Rs,11,323.79 lying in deposit with National and Grindlays Bank, in Current Account No, 1010197459001, 50% share is payable to defendant No,5 Noor Ahmad.
(4) Rs,20,654.55 lying in UBL, Harris Road Branch in Current Account No, 59.
(5) Rs,50,243.00 on account of outstanding Bills of the deceased, which includes the amount realised from M/s. Berger Paints Ltd.
(6) Rs,29,299.34, the accumulated profit earned on item. No,5.
(7) Two trucks bearing Registration Nos. 809-055 and 809-350. The Receiver had seized the truck bearing Registration. No, 809-055 from the possession of Ahmad Bux and subsequently the said truck was released to the said purchaser on his application under the order of this Court, on furnishing surety in sum of Rs,120,000. It is, however, now establised that the said truck was sold to defendant No,6 Yaqoob by plaintiff No,1 Ismail and on account of sale of two trucks, the other belonging to defendant No,4 the sum of Rs,110,000 was paid by the said Yaqoob to plaintiff No, 1 Ismail. Plaintiff No, 1 Ismail, therefore, has to account for the said amount.
35. ' Mr. K. B. Bhutto, learned counsel for defendants, in his statement submitted in Court on 7-5-1992 has conceded that defendants Nos. 4 and 5 have to account for the amount of Rs,50,243.00 realized on account of outstanding bills and estimated profit of Rs,29,299.00. The order is passed accordingly in respect of the said amount. The Receiver earlier appionted by this Court, shall take over, collect, realize and distribute the aforesaid estate of the deceased after disposal of Items Nos.
36. 1 and 2 above, subject to what is stated herein, amongst his legal representatives namely the plaintiffs and defendants Nos. 1, 2 and 3 in accordance with Shariat, after payment of the share of defendant No, 5 to his legal representatives, if any, found due and payable after adjusting the amounts mentioned at Items Nos. 5 and 6, which shall be treated as debit against the estate of the deceased Haji Ahmad.
37. ' The preliminary decree is accordingly granted in terms of prayer clauses (iv), (vi) and (vii) of the plaint, with no order as to cost.