1. ' This suit for administration has been filed by the present plaintiff against her brother the defendant with regard to the properties left by their deceased father.
2. ' Briefly the facts are that the father of the parties, deceased Mazhar Hussain, died at Karachi on 24-2-1984 leaving behind one widow, one son and one daughter to inherit him. The said widow also died on 8-7-1987 and her share also devolved on the son and the daughter who are the defendant and the plaintiff respectively in the present suit.
3. ' The plaintiff, thus, claims to be entitled to 1/3rd share under the Sunni (Hanafi) Muslim Law while the remaining 2/3rd share is to go to the defendant from all the properties and assets left by the deceased. Alongwith the plaint Schedule-A has been attached wherein the plaintiff has defined the properties of the deceased as under:--- "(1) IMMOVABLE PROPERTY: Triple-storeyed house on Plot No,100/3, Sharfabad, Karachi - 5, measuring 400 square yards valuation of which is about Rs,20,00,000.00
(2) MOVABLE PROPERTY: Household article, jewelleries, valuables electric appliances, pieces of furniture, Prize Bonds, Security Certificates, Bank Balances in his Bank Account in U.B.L.
4. Bahadurabad Branch, Karachi. Rs,10,00,000.00 Total: R s .30,00,000.00 ' The plaintiff further asserts that negotiations between the parties have failed, therefore, she served a legal notice on the present defendant which was replied by him wherein he denied that the deceased Mazhar Hussain left the said movable or immovable properties. It was also claimed in the notice that the plot in dispute was given over to the defendant by his deceased father and thereafter he raised a double storeyed house thereon. In these circumstances the plaintiff instituted the present suit for the administration of the estates properties left by the deceased Mazhar Hussain and giving plaintiff her 1/3rd share and also accounts thereof. The defendant filed his written statement contesting the suit. In the written statement he reiterated the pleas raised by him in the abovesaid reply notice and denied that the deceased had left any assets property to be inherited by his son and daughter. The defendant claimed to be in possession of the said plot having received the same from his deceased father by way of oral gift and that the construction thereon was raised by the defendant from his own funds. On the basis of above pleadings of the parties following issues were settled:--- "(1) Has the deceased Mazhar Hussain left the properties as shown in Schedule "A" of the plaint?
(2) Has the defendant been collecting incomes and usufructs of the properties left by the deceased Mazhar Hussain and is he liable to render accounts thereof?
(3) Is the plaintiff entitled to 1/3rd share in the properties of the deceased Mazhar Hussain?
(4) Has the deceased Mazhar Hussain orally gifted the immovable property to the defendant?
(5) Is the suit as framed maintainable?
(6) Has any cause of action accrued to the plaintiff as against the defendant?
(7) Relief?
(8) Costs?
5. ' The plaintiff examined herself in support of her contentions made in the plaint while the defendant examined himself and four witnesses, namely, M. Fazalullah Kamal, M. Shahabuddin, M. Shakir Farooqi and M. Ashqeen. Plaintiff had produced the copy of notice and the reply to the said notice while the defendant produced a number of documents. Both the parties had closed their side and the matter came up for arguments. I have heard the learned counsel for the parties and my findings on the issues are as under:--- ISSUES NOS. 1 AND 4: ' These are connected issues and are the crucial issues which require determination in the suit. The case of the plaintiff is that the deceased had left behind a double storeyed house on the plot as claimed in the plaint and movable properties in the form of household articles, jewelleries, valuable, electric appliances, prize bonds, Securities Certificates, Bank Balances in his account in U.B.L. Bahadurabad Branch. However, in evidence she has stated that the deceased had left behind furniture, jewellery, cash and money in bank. Except for her oral words there is no other evidence on this point. The plaintiff has not examined any witness from the bank nor produced any certificate from the bank to prove if the deceased had any bank account and if so, whether he had left any bank balance in that account. As regards the other movable items as mentioned in the plaintiff, the plaintiff has not stated a single word in her deposition. Accordingly I am of the view that the plaintiff has failed to prove if the deceased had left behind any movable properties as claimed by her.
6. ' Now, I take up the question with regard to immovable properties left by deceased. It is claimed in the plaint that deceased had owned Plot No,100/3, Sharfabad, Karachi-5 admeasuring 400 square yards with a triple-storeyed house over the same. However, the defendant in his written statement has admitted that the deceased owned the abovesaid plot which he had orally gifted to the defendant and that defendant then constructed a double-storeyed house on the same. It has come in evidence that the house constructed on the said plot is a double-storeyed house which was constructed in two phases, firstly only the ground floor and thereafter somewhere in between years 1975 and 1978 the second storey was also raised. The defendant has admitted in his cross- examination that prior to shifting to the present house the parties alongwith their parents used to live near Jublie Cinema, Karachi and that the present plaintiff was given in marriage in the year 1950 whereafter she started living separately with her husband. It is also admitted in evidence by the defendant that he and his parents had shifted to the present house somewhere in the year 1963 or 1964 and at that time two rooms were constructed on the said plot. Now, the question that arises is whether the said plot was given away by deceased to the defendant through oral gift and that the entire construction was raised thereon by the defendant or that first floor was raised by the deceased and second floor was raised by the present defendant. The defendant has placed on record a number of receipts pertaining to material, charges etc. with regard to construction as Exhs.4/1 to 4/106. These receipts pertain to the period 1975 to 1978 during which period it is said that first floor was raised. The defendant has also placed on record his note book showing various items of expenditure incurred during that period as Exh.4/107. As against this there is no other evidence brought on record by the plaintiff to rebut the contention of the present defendant. All these receipts have been issued in the name of present defendant. In these circumstances there can be no hesitation in coming to the conclusion that the first floor of the house on the said plot was raised by the defendant.
7. Reverting to the first point about the gift it may be observed that this is a case where admittedly a person has died and the suit has been filed for administration of his assets left by him. It is an admitted position that this plot was original owned by deceased. In this view of the matter the burden to prove the factum of the gift would lie heavily on the person claiming to be the donee.
8. Therefore, in the present case it is for the defendant to prove that all the three required ingredients of a gift existed in his favour at that time. A mere oral word coupled with the possession would not be sufficient. The circumstances would differ from case to case. In the present case the plaintiff being the daughter of the deceased would be entitled to her share of inheritence in the assets left by the deceased. The mere fact that she had been given in marriage and is living separately with her husband would not disentitle her from her share nor the fact that defendant is in exclusive possession of the said assets would deprive her of her share. The cardinal principle of law is that possession of one co-sharer is deemed to be the possession of all the co-sharers as he holds the same not only for himself but for all the co-sharers unless specific ouster is proved. Reliance may be placed on the D.B. Judgement of the Peshawar High Court given in the case of Saeedullah Khan and 6 others v. Mir Piaio Khan and 14 others PLD 1970 Pesh.
9. 150.
10. ' Mr. A.F.M. Mokaram, Advocate for the defendant has submitted that the Courts are to decide the issues in civil proceedings on preponderance of evidence and that where the case is that of word against word, the party on whom the onus to prove lies must fail. He has placed reliance on the case Allah Din v. Habib PLD 1982 SC 465. There is no cavil about the said proposition of law.
11. However, in the present case the facts are different than those as are in the above-stated case. In the present case it is an admitted position that the plot in dispute was originally owned by the deceased and, therefore, the burden would shift to the person claiming to be the donee for the reasons that this plea has been raised by defendant. Reliance may be placed on the case of Mst.
12. Farukh Sultana v. Messrs Darul Aloom Amjadia 1989 MLD 3795. In light of above proposition, now, I proceed to examine the evidence led by the defendant to prove the gift in his favour. Admittedly there was no written document of gift in favour of the present defendant. It is only the oral word put forth by him. According to him the said plot was given in gift to him by his father orally during his lifetime. It would be pertinent to make a reference to the reply notice sent by defendant through his Advocate to the plaintiff which is placed on record as Exh.3/2. In paragraph 6 of this reply it has been specifically stated that the deceased had no means to build a double-storeyed house being himself a dependent on his son and, thus the plot was given over to the defendant who raised all the construction thereon from his own earnings and resources. This contention of the defendant shows that the deceased could not raise the construction therefore, he gave the plot to the defendant. From this the learned counsel for the plaintiff has submitted that obviously this was not a voluntary act of making a gift by the deceased bui all that can be gathered is that the deceased may have asked for some help from his son, the defendant in connection with the raising of construction on the plot. The learned counsel has further pointed out that nowhere it has been specifically stated by the defendant in this reply notice that a gift of this plot was made to the defendant. He has pointed out that word "gift" for the first time finds place in the written statement by the defendant in the present suit and, therefore, this is an afterthought. As regards the evidence the Advocate for the plaintiff has referred to the cross-examination of the defendant who has not come out with clean hands, rather he has made changing statements when the questions were put to him with regard to the time and factum making gift by his deceased father. In his cross- examination he states that he did not remember the exact date on which his father had gifted the plot to him but it was in June, 1964. He has further stated in his cross-examination and at the time when the said gift of plot was made to him by his father his other relatives, namely uncle Dr. Abdul Samad, cousin Muhammad Idris Alam, uncle Muhammad Rafiq and friends Muhammad Fakhruddin and Umer Ashqeen were present. Again in the same breath he states that these persons knew about the gift but were not present at the time the gift was made by his father. He has taken yet third stand by saying that his mother was also present at the time the gift was made.
13. Can the oral words of such witness who is making wavering statements be believed? It may also be observed that of all the said five witnesses named by him only one Ashqueen has been examined as Exh.8. This witness M. Ashqueen states that he is the friend of defendant having been his close friend from the years 1954 to 1957. This witness states that the deceased had told him that he had handed over the properties in question to the defendant on which he may raise construction and that in the year 1%5-66 he had advanced a loan of Rs,10,000 to the defendant. It may be observed that even in this suit this witness does not state if the deceased had told him that he had made gift of the said plot to the defendant. It may be observed that making a gift of a property to somebody implies that donor divests himself of all the right and interest and ownership in the said property. Mere handing over the property to somebody to raise E construction cannot be equated with making gift of the property. A further perusal of evidence of this witness shows that in his cross-examination he has stated that the defendant shifted to the present house from Jublie Cinema flat in the year 1963 or 1964 and at that time the ground floor of the said house existed which must have been constructed by the deceased father of the defendant. This admission in cross-examination of this witness goes to show that the ground floor construction was in exsitencc in the year 1964 or so when the gift is alleged to have been made. As against this there is absolutely no evidence brought on record by the defendant to support his contention that it was he who had raised the construction of the first floor of the said house. The conclusion, therefore, is that the said construction was made by the deceased and not by defendant. It may also be observed the in case of a gift under Muslim Law the donee is required to prove the three ingredients. Firstly, that the donor had made a declaration of the gift or such intention can be gathered from the circumstances. Secondly, that the donee had accepted the gift expressly or impliedly and thirdly that the possession was handed over to the donee. As already observed that making of a gift and fulfilment of the abovesaid three ingredients would mean that the donor had divested himself of all rights, title or interest in the said property. In case where any of the three ingredients is lacking, the gift cannot be said to have been proved. The first two ingredients may not be supported by a direct proof if the circumstances and consequential acts of parties are such then a presumption can be drawn but as regards the third ingredient of delivery of possession, it may be observed that such delivery of possession by the donor must be a concrete, unequivocal and distinct act in order to complete the gift made by him. Reliance may be placed on the case of Miss Razia v. Wajid Ali and 11 others 1989 CLC 1274. In the present it is an admitted position that since year 1964 when the alleged gift is said to have been made no attempt has been made by the defendant to get his name mutated in the official records of the Housing Society nor he has placed any document or receipt on record to show if he has ever paid any taxes or performed any overt act as an owner of the said plot or construction thereon. Mere word of the defendant would not he sufficient to prove the gift in his favour as held by Division Bench of Lahore High Court in the case of Muhammad Sharif v. Din Muhammad 1989 MLD 2012. A reference may also be made to the case of Nadeem Zafar v. Mst. Salima Begum 1984 CLC 2272 when also the facts were somewhat similar as the plea of gift was taken by the plaintiff for the first time in his Written statement after the suit for administration was instituted.
14. ' The upshot of the above discussion is that the burden to prove the facturn of gift lay heavily on the defendant who claims to be the donee and that the defendant has failed to discharge the same as he has not proved that he held the possession of the said bungalow, at least plot and ground floor in his own right as a donee and not as one of the heirs of deceased. The defendant has also failed to prove by any document or other overt act that he was H exclusively owner of the said property having received the same by way of gift. In this view of the matter I answer Issue No,4 in negative and as regards Issue No,1 the answer is that deceased Mazhar Hussain had left only the plot bearing No,100/3, Sharfabad, Karachi-5 with the ground floor construction while the first floor is constructed by the defendant.
15. ISSUES NOS.2 & 3: ' On these issues the plaintiff has claimed that the 1st floor of the bungalow is on rent and the defendant is collecting the rent. However, the defendant has stated that the same is not on rent. Be as it may, as I have already held that the first floor of the bungalow has been constructed by the defendant, the plaintiff would not have any share in the same. As regards the I plot and the ground floor of the said bungalow the plaintiff would be entitled to one-third (1/3rd) share being her of the deceased Mazhar Hussain.
16. ISSUES NOS.5 AND 6: ' These issues have not been pressed by the Advocates for the parties. ISSUE NO.7: ' In view of the findings on Issues Nos.] to 4 I decree the suit of the plaintiff for administration to the extent of the Plot No,100/3, Sharfabad, Karachi and the first floor of the bungalow constructed thereon. Let the preliminary decree be prepared. Official assignee is appointed as Commissioner to administer the said property and if necessary effect partition thereof between the parties.
17. ISSUE NO.8: ' There will be no order as to costs.