1. ' This judgment will dispose of Suits Nos. 476/1975 and 1184/1991.
2. ' The facts that emerge from the pleadings of and the documents produced in the above suits are that Mst. Gulbano wife .Of Kassimali Popatia was the owner of Plot No, A/249, Block 'C', North Nazimabad, Nizari Cooperative Housing Society, Karachi, with structure thereon. She died on 2-2- 1975, leaving behind Ramzan, Mst. Parveen and Kassimali Popatia, her son, daughter and husband respectively.
3. ' Mst. Daulat was married to Ramzan Ali, the son of Kassimali Popatiya and Mst. Gulbano. Akbar Ali and Nilofar were born out of the said wedlock. Mst. Daulat Bano filed Family Suit No,2437/1974 against her husband for dissolution of marriage, which was decreed on 4-1-1975 in terms of compromise application.
4. ' Mst. Daulat in her letter dated 26-2-1975, addressed to the Honorary Secretary, Nizari Cooperative Housing Society Limited (hereinafter referred to as the "Society") claimed that Mst. Gulbano by Oral Gift made on 17-12-1974, had gifted the aforesaid property to her aforesaid grandchildren Akbar Ali and Nilofar in equal shares and had also executed declaration of gift on 18-12-1974, and accordingly requested that the said property be transferred in the records of the Society in favour of the said Donees. The aforesaid application of Mst. Daulat was forwarded by her Advocate Mr. Nisar Ally under his notice to the Secretary of the Society, reiterating contents of her application and requesting for transfer of the property in the name of the said minors. Photo copy of the declaration of gift was enclosed with the notice, ' Kassimali Popatiya and Mst. Parveen Kassimali Popatia (hereinafter the former is referred to as 'Popatia' and the latter as `Mst. Parveen') on receiving the copy of Mst. Daulat's Advocate's notice from the Secretary of the Society, replied the same through their Advocate's notice dated 27-3- 1975 in which they denied the allegations made by Mst. Daulat about the gift and it was stated that the said property was acquired in the name of Mst. Gulbano from the funds advanced by Mst.
5. Parveen. By another notice dated 27-3-1975, the Society was requested not to carry out transfer in the names of the said minors as Mst. Parveen was the sole and absolute owner of the property and even otherwise was entitled to the property by inheritance.
6. ' The first suit has been filed by Mst. Parveen against (1) the Nizari Cooperative Society, (2) Mst.
7. Daulat, (3) Master Akbar Ali, (4) islilofar, (5) Kassimali Popatiya and (6) Ramzan Ali. Whereas the second suit has been filed by Master Akbar Ali and Baby Nilofar through their mother Mst. Daulat as next friend against Mst. Parveen and Popatia respectively.
8. ' In the first suit it is disclosed that the suit property was acquired by Mst. Gulbano on 4-12-1973 with construction thereon and on 15-1-1974, the property was mutated.In her name, in the records of the Society, Mst. Parveen alleged that she was the real owner of the property and her mother was only an ostensible owner and alternatively has claimed the property as successor in interest. However, subsequently she did not press the first plea, as such it is not necessary to refer to the details of the said plea and the consequent prayer on that basis. The allegations made by Mst. Daulat in her Advocate's letter dated 26-2-1975 addressed to the honorary Secretary of the Society, regarding the gift made by Mst. Gulbano, have been termed to be false and baseless and the declaration dated 18-12-1974, allegedly executed by Mst. Gulbano is described to be a forged one and liable to cancellation. The reference is then made to her Advocate's notice dated 26-3-1975, which was also addressed to the honorary Secretary of the Society. By another notice dated 8-4-1975, she called upon the Society to transfer the property and the share certificates in her name. She, thereafter served notice dated 21-6-1975 on the Registrar or of Cooperative Society and after expiry of two months filed the suit for declaration that she was real owner and in the alternate that she had inherited the property from her mother together with her father and brother and also sought declaration that the declaration of gift dated 18-12-1974, allegedly executed by Mst. Gulbano was a forged document, void and of no legal effect and mandatory injunction against the Society to mutate the record of the suit property accordingly.
9. ' The second suit was filed by the aforesaid minor children of Mst. Daulat through their mother as next friend against Mst. Parveen and Kassimali Popatiya for delivery of possession and recovery of mesne profits, on the basis of the alleged oral gift made by Mst. Gulbano on 17-12-1974 in their favour and the declaration of the gift allegedly executed by her on 18-12-1974. It is alleged that the said minors, then being in joint possession of the property, as they were living with their mother in the suit property at the time the gift was made, they continued to be in possession of the property in their own right from the date of oral gift. It is stated that the defendants also continued to live in the said property as permanent occupants/licensees of the plaintiffs through their mother and natural guardian. After the death of Mst. Gulbano, the defendants turned out the plaintiffs and their mother from the property in February, 1975. The said plaint then refers to the notice dated 26-2- 1975 and institution of the first suit.
10. ' Several issues were framed in the first instance, however, on 6-2-1992, when the suits were taken up, Mst. Parveen gave up her plea to the effect that Mst. Gulbano was only Benami owner of the property in dispute, with the consent of the parties the suits were consolidated and the following issues were framed:-- "(1) Whether Mst. Gulbano gifted the suit property in favour of the plaintiff
(2) If so, whether the alleged gift is valid and complete in law?
(3) Decree?"
11. ' As is evident from the above issues, Akbar All and Nilofar are treated as plaintiffs and the remaining parties as defendants. Common evidence has been recorded in both the suits as ordered on 6-2-1992.
12. ' On the above issues both the parties have led evidence. The plaintiffs have examined Shamsuddin son of Jan Muhammad and Ghulam Hussain son of Muhammad as Exhs. 6 and 7. It may be observed that in deposition form these witnesses have been described as defence witnesses. The other side examined Kassimali Popatiya as their witness.
13. ' Shamsuddin is the President of Nizari Cooperative Housing Society Ltd. He produced the original record of the Society pertaining to the suit property, which includes the membership form of Mst.
14. Gulbano (Exh.6/1), nomination form (Exh.6/2), letter of Mst. Gulbano, addressed to the Society (Exh.
15. 6/3), letters dated 26-2-1975, one written by Mst. Daulat and another by her Advocate to the Society for mutation of the record in favour of the above two children on the basis of the alleged gift (Exhs. 6/4 and 6/5 respectively), photo copy of the declaration (Exh.6/6) and three letters of the Advocate of Mst. Parveen addressed to the Society (Exhs. 6/7, 8 and 9 respectively). Original declaration of gift was got produced through Ghulam Hussain as Exh.7/1. Kassimali Popatiya produced decree dated 4-1-1975 (Exh.5/1) passed in Family Suit No, 2437/1974, and the compromise application dated 2-1-1975 filed in the said suit by the parties with order thereon dated 2-1-1975 (Exh.5/2), the original allotment order issued by the Cooperative Society (Exh.6/3), share certificate of the Society in the name of Mst. Gulbano (Exh.5/4/1) and two share certificates issued to the previous owner of the property with endorsement of transfer in favour of Mst. Gulbano (Exhs.5/4/2) and 3). When the passport of Mst. Gulbano and her national identity card were sought to be produced, objection was raised to their production as they were not disclosed earlier either in the pleadings or affidavit of documents and were not filed within the time of filing of the documents. The objection was left to be considered at the time of final hearing. However, Mr. Nisar Ali, Advocate did not make any submission in this regard. As the said documents are not alleged to be forged or manoeuvred and on scrutiny appear to be genuine, the objection is overruled.
16. ' Issue No, 1.--The burden of proof of the issue is on the plaintiffs. The declaration of gift (Exh.7/1) is shown to have been executed by Mst. Gulbano in presence of Noorali Methani and Kassimali who are also alleged to be the witnesses of the oral gift. Neither the said witnesses have been examined in support of the above issue, nor Mst. Daulat had entered into the witness-box. The only evidence is that of. Ghulam Hussain on the subject. Kassimali Popatiya was examined first, who deposed that the signatures on the aforesaid declaration were not that of Mst. Gulbano. He further deposed that she could not read Gujrati. She could only write her name. He was conversant with her writing in so far as writing of her name/signature was concerned. On seeing the declaration of gift dated 18-12- 1974, he stated that signature in Gujrati on the margin of the first page and at the end of second page, which were alleged to be that of Mst. Gulbano, were not that of his wife Mst. Gulbano. It was further deposed by him that his wife had never told him that she had gifted the said property to her grandchildren. The original allotment order relating to the suit property and share certificates were in possession of the deceased and after her death they were kept with him. He produced the original documents as noted hereinabove. In view of the above denial of the oral gift and the specific allegation that the declaration of gift did not bear the signature of Mst. Gulbano, the deposition of Ghulam Hussain is to be scrutinised in detail.
17. ' He deposed that on 17-12-1974, he was called by the family of Mst. Gulbano at their house, A-249, Nizari Cooperative Housing Society at about 8-30 in the evening. At that time he used to live in the said Society. When he reached there, he found several persons were present, out of whom he knew Amir All and Barkat Ali, brothers of Mst. Daulat, Noorali Methani, Mst. Daulat, Mst. Parveen, Kassimali Popatiya, Akbar Ali and Nilofar. He did not know two or three other persons, who were also present there. On that day Mst. Gulbano said to Mst. Daulat that she wanted to give the suit property to her grandchildren Akbar All and Nilofar and she orally gifted the same to the said two children, on whose behalf Mst. Daulat accepted the gift. Mst. Gulbano handed over to Mst. Daulat the original documents relating to the suit property, namely, allotment order, share certificates and some other documents. Mst. Daulat and her two children at that time were residing in the suit property. On the next day Mst. Gulbano alongwith Mst. Daulat, two minor children, aforesaid Amir Ali, Barkat Ali, Noorali Methani and himself went to the City Court, got a document prepared by a typist near the City Court which document was signed by Mst. Gulbano and was also signed by Amir Ali and Noorali Methani as witnesses. Mst. Gulbano signed the document on each page. According to him there were two or three pages. He then identified the signatures of Mst. Gulbano on the declaration.
18. When he was confronted with the original declaration for production, he stated that the said document bore the signatures of Noorali Methani and one Kassimali and that it was also signed by Mst. Daulat. However, in cross-examination he stated that when he reached the house of Mst.
19. Gulbano, she had stated that she had gifted the said property to her grandchildren. He also stated that Ramzanali, husband of Mst. Gulbano was also present. He further stated that Mst. Gulbano had no Advocate. In cross-examination he disclosed that they had gone to Stamp Vendor for preparation of the gift deed, who had arranged the Stamp Paper for Mst. Gulbano and the clerk of Stamp Vendor typed the gift deed on the Stamp Paper and Mst. Gulbano signed the gift prepared before the Stamp Vendor, witnesses also signed it before the Stamp Vendor.
20. ' The analysis of the above evidence will show that whereas in examination-in-chief it was stated that the oral gift was made by Mst. Gulbano in his presence but in cross-examination he stated that Mst. Gulbano had informed him that she had gifted the property to her minor grandchildren which leads to logical inference that the oral gift was not made in presence of the said witness. In examination-in-chief he initially did not disclose the presence of Kassimali at the time of the alleged oral gift and execution of declaration of gift. Further he had deposed that the declaration was signed by Amir Ali and Noorali Methani. At the tail end of the examination in chief, when the declaration of gift was sought to be produced through the witness, he deposed as under:-- "I see document marked 'A' being Declaration of Gift and say that this is the document I have just now referred. I say that it bears the signature of the said Mst. Gulbano Kassimali Papotiya on the margin of the first page and below "Deponent/Declarant" on the second page bottom. This was signed before me and I produce original of the said document as Exh.7/1. This document (Exh.7/1) also bears the signature of Noor All Mithani and one Kassimali (not defendant No,5) and it was also signed by Mst. Daulat. All these persons signed the document in my presence. Exh.7/1 was not signed by me.
21. ' He, while producing the said document, stated that the document bore the signatures of Noorali Methani and one Kassimali and Mst. Daulat."
22. ' The signature of Kassimali consists of his full name. It is in Gujrati and it was stated at the bar that the said signature reads the name Kassimali. Mst. Daulat had signed it in English. It is legible as Daulat. It is, therefore, obvious that he disclosed the names of Kassimali and Mst. Daulat as signatories of the document only on reading their signatures. It is further found that according to this witness the non-judicial stamp paper, on which the declaration of gift has been typed, was produced by the Stamp Vendor. He deposed that Mst. Daulat had no Advocate that is to say, at the time when they went to the Stamp Vendor, the Stamp Paper was purchased and typed. However, Exh.7/1 shows that the said non judicial stamp paper was purchased by Mr. Nisar Ali, Advocate, who has been acting as Advocate of Mst. Daulat from the very inception of the dispute. The allegation that the non-judicial stamp paper was purchased by the Stamp Vendor, is inherently inconsistent, he himself being the vendor of stamps. If the stamp paper was supplied by the said Stamp Vendor, it would not have been in the name of Mr. Nisar Ali, as he was not present there. In the normal course, it would have been obtained in the name of the declarant and as allegedly she was present there, would have signed the vendor's register. This witness in the examination-in-chief had first sated that the declaration was signed by Amir Ali and Noorali Methani. As a matter of fact, there is no signature of any other person least to say of Amir Ali. It bears the signatures of declarant, Kassimali, Noorali Methani and Mst. Daulat. According to the witness, the aforesaid declaration was executed in presence of the Stamp Vendor, but the said document shows that the signatures have been attested by Chaudhry Mansab Ali, Advocate, a Notary Public. The witness has given the names of several witnesses, who were present at the time of alleged oral gift pronounced by Mst. Gulbano. The said list does not include the name of Kassimali. The cumulative effect of the aforesaid contradictory and inconsistent evidence leads to the conclusion that the said witness was neither present at the time of the alleged oral gift made by Mst. Gulbano, nor when the alleged declaration was executed. His evidence is, therefore, to be discarded as not reliable.
23. ' The learned Advocate for the plaintiff had also referred to the circumstances disclosed in the evidence of the said witness, to demonstrate that he was not the resident of Nizari Cooperative Housing Society. The witness stated that he was residing in Nizari Cooperative Housing Society and was called by the family of Mst. Gulbano. In cross-examination he has disclosed that he had acquired a room in a quarter, where he used to live alongwith his family consisting of his wife and two children. He further disclosed that he lived in this house for about 4 or 5 months and left the house in middle of March, 1975. He further stated that before that he used to live in a Katcha but in Patel Para, which was on rent with him and in March, 1975, he shifted back to the said hut. In reply to a question he stated that he had no proof to show that he ever resided in Nizari Cooperative Housing Society. The above evidence shows that he was designed to prove his residence in the Nizari Cooperative Housing Society only for a short period to become witness of the alleged incident of gift. Nothing has been disclosed as to what promoted the said witness to leave his Katcha but in Patel Para for this short period only to go back to the same just after a month of the alleged gift.
24. ' It was also urged by the learned Advocate that the fact that the witness was procured to give false evidence, becomes evident from following portion of the deposition:-- "Mst. Gulbano is known to me since long time. Again states that she was related to me. Q. How was she related to you?
25. Ans. She was distantly related to me. She was my Khala or Chachi in relation.
26. ' Mst. Daulat is also related to me. She is daughter of my cousin sister. Again states that she is daughter of a distant cousin."
27. ' He further deposed, "I had gone to the City Court as there was family tussle. Again says that it was a family matter."
28. The sum up of the above deposition is that this witness belonged to the family of the declarant and Mst. Daulat. If it were so, he would have shown his relationship with the said two ladies if not absolute, with some exactitude and at least would have not been widely uncertain and shaky. In the examination-in-chief, while he named each of the parties in the two suits and described their relationship inter se, he did not disclose his own relationship with any of them. All that he stated was that he knew them. To be an effective witness, it was not necessary for the witness to have any relationship with the parties concerned, but the said witness went out of way to justify his presence at the time of the gift and to lend deep colour to his credibility. The above submission of the learned counsel also lends support to the conclusion that the said witness is not a witness of truth.
29. ' It was pointed out by the learned Advocate for the defendants that the plaintiffs had filed C.MA.
30. No,1273/1992 for summoning the witnesses in which Noorali Methani was also named. It was stated in the application that the said Noorali Methani was the only surviving witness of the oral gift, but subsequently the said application was withdrawn. If Noorali was the only surviving witness, Kassimali definitely was not the witness of the alleged gift.
31. Additionally, it is also noted that though it was alleged by the witness that the original documents were handed over by the deceased to Mst. Daulat, but the original documents have been produced by Kassimali Popatiya, the husband of the deceased Mst. Gulbano. This goes to further falsify the statement of the said witness that the deceased had handed over the documents to Mst.
32. Daulat.
33. ' With the assistance of the learned Advocates of the parties I have compared the alleged signatures of Mst. Gulbano on Exh.7/1 with her admitted signatures on the documents produced by Shamsuddin, the President of Nizari Cooperative Housing Society, namely, Membership Application (Exh.6/1), Nomination Form (Exh.6/2) and application dated 4-12-1973 (Exh.6/3).
34. The scrutiny of the signatures on the said three exhibits, reveals that they have been written with an infirm hand. Formation of curves, semi-circles and loops display lack of smoothness. As against the above characteristics of the admitted signatures, the corresponding letters in the disputed signatures appear to have been written smoothly by a firm hand.
35. ' The most important factor noted in the comparison of the two disputed signatures born on Exh.7/1, is that both of them are geometrically identical in formation of corresponding letters, including their size and gaps between them. The above coincidence of the two disputed signatures can possibly be the result of tracing process only. In normal writing of signatures no person can write his signature twice, one after another, precisely and geometrically identical in almost all respects, as one finds the two disputed signatures on Exh.7/1. Consequently, it is held that Mst. Gulbano had neither gifted the said property, nor had executed the declaration of gift as alleged.
36. ' Issue No, 1 is, therefore, answered in negative.
37. ' Issue No, 2.--The learned Advocate for the defendant contended that the alleged gift was accepted by Mst. Daulat, the mother of the minors, who was not the legal guardian and as such the gift cannot be said to be complete in absence of acceptance thereof by legal guardian. It was further urged by him that the said Mst. Daulat and the minor children at the time of alleged gift were not residing with Mst. Gulbano who continued to be in possession till her death and, therefore, the allegation that the possession of the property was delivered to the said minors is a figment of imagination. The gift was invalid on that count also.
38. ' The learned counsel relied on the case of Suna Meah v. SAS Pillai and others (1932) ILR 11 Rangoon 109, wherein relying on the case of Musa Mian v. Qadir Bux (1928) ILR 52 Bombay 316 (PC), it was observed that in order to perfect a gift by Mahomedan Muslim it is necessary to make over possession of the property to the donee. If the donee is a minor, then possession must be made over to a person who is the natural guardian of the minor. In the aforesaid Privy Council case it was noted that the general rule of Mahomedan Law that a gift is invalid in the absence of delivery of possession is subject to an exception, that is, in a case of a gift to a minor by his father or other guardian, but this exception should be strictly construed. It does not extend to a gift by a grandfather to his minor grandsons if their father is alive, even though the minors have always lived with the grandfather and have been brought up and maintained by him.
39. ' In the aforesaid case of Suna Meah, the gift was declared as invalid as the possession 'was not made over to the father on behalf of the minors as their natural guardian, but to the mother who took over the possession of the property and managed the same. Mother was held not to be the natural guardian of minor sons and, therefore, could not be said that she was in possession of property as a guardian of her sons. The above cases were followed in Abdul Rahman Muhammad v. Shrimal Peecha, (1959) ILR 61 Bombay 761, holding that the gift was not complete and was invalid as the delivery of possession was accepted chi behalf of the minors not by their father, but by their mother.
40. Ghulam Hussain, the witness examined by the plaintiffs has disclosed that at the time the gift was made, Ramzan Ali, the father of the minor plaintiffs was also present. If it were so, he being the natural guardian, could have accepted the gift. In view of the settled law that the mother is neither a natural guardian of the minors nor she was appointed as a guardian by any competent Court of law, she was not competent to accept the gift. The gift was thus invalid.
41. ' It has come in evidence of Kassimali Popatiya that after the suit for dissolution of the marriage was decreed on 4-1-1975, Mst. Daulat came to the house, packed her belongings and left the house along with the minors on the same day in the evening. The above evidence clearly establishes that the said minors and her mother were not living with Mst. Gulbano after 4-1-1975.
42. ' The credibility of Ghulam Hussain has been already found to be doubtful. Nonetheless it may be observed that the said witness has not specifically rebutted the above deposition of Kassimali Popatiya.
43. ' Mst. Daulat did not enter the witness-box to prove the allegation that she had continued to live with Mst. Gulbano even after she was divorced and was dispossessed subsequently.
44. ' The above issue is, therefore, answered in negative.
45. Issue No, 3.--In view of the above findings, Suit No, 1184/1991 is dismissed. Coming to Suit No, 476/1975, it may be observed that this suit was instituted by Mst. Parveen through Kassimali Popatiya as her attorney. The said attorney in his evidence has admitted that no power of attorney was executed by Mst. Parveen in his favour. The learned counsel for the defendant, however, contended that the power of attorney was in fact executed and he also produced in Court the original power of attorney. However, in view of the admission of Kassimali Popatiya that no power of attorney was executed by Mst. Parveen, the suit cannot be said to have been instituted competently. Accordingly the above suit is dismissed, having been instituted incompetently.
46. ' It may be observed that the dismissal of the aforesaid suit is of no consequence inasmuch Suit No, 1184/1991 has also been dismissed, the effect whereof is that the suit property continued to vest in Mst. Gulbano and after her death has devolved on her legal heirs.