1. ' The present suit has been filed with the following prayers: "(i) For possession of the entire property i,e, Plot No,39-C, Block II, K.D.A. Scheme No,5, Kehkashan, Clifton, Karachi as all construction thereon with fittings and furnishings and with all furniture and household articles and personal effects as stated in the plaint.
(ii) For permanent injunction restraining the defendants, their agents and servants from delivering the possession of the property in suit and/or any other article in the property in suit to anyone or in any manner causing any loss to the properties.
(iii) For any other relief which this Hon'ble Court may deem fit.
(iv) costs of the suit."
2. ' The brief facts, as per the plaint, are that defendants Nos.1 and 2 are sons of the plaintiff and defendant No,3 is his ex-wife. The plaintiffs and the defendant No,3 were married in 1961 and four children were born within this wedlock, namely Kaimuddin, Naseemuddin (Defendants Nos.1 and 2 respectively), Salimuddin and a daughter. The plaintiff is a practising Advocate and the defendant No,3, who is now divorced by the plaintiff, is a Swiss national working in the Austrian Trade Commission in Karachi. The plaintiff is owner of plot of land bearing No,39-C, Block II, K.D.A. Scheme No,5, Kehkashan, Clifton, Karachi. He got the plan approved for construction of a house on the said plot and started construction somewhere in March, 1984. Due to paucity of funds, the plaintiff obtained a loan of Rs,I50,000 from the House Building Finance Corporation and after obtaining further loans from other resources, constructed/completed his house on the said plot. In 1987 differences arose between the husband and wife and as a result the plaintiff left the house while defendant No,3 continued to live therein with her children and subsequently the plaintiff divorced the defendant No,3 which became effective on 3-4-1989. The plaintiff allowed the defendants to live in the said house till such time as they find their own accommodation and after finding so, to vacate the said house and hand it over to the plaintiff. The plaintiff is living in a rented accommodation as he does not own any other place.
3. ' With the passage of time, the dispute between the parties became serious and both the sides agreed to arbitration to settle the disputes but the same could not be resolved. The plaintiff was always eager to settle the dispute amicably but as the defendants refused/neglected/failed to hand over the possession of the said house to the plaintiff, the plaintiff filed the present suit with the prayer as quoted above.
4. ' Notices were issued to the defendants which were duly served. Defendant No,1 filed a detailed written statement on 4-8-1991 which was adopted by defendants Nos. 2 and 3 vide their written statement dated 6-8-1991.
5. ' On the basis of the pleadings of the parties, the following consent issues were framed: "(1) Whether the defendant No,3 spent any amount for the educational expenses of her sons?
(2) Whether the defendant No,3 spent any amount as household expenses?
(3) Whether the defendant No,3 spent any amount towards the construction of the house in the suit?
(4) Whether the defendant No,3 paid certain amount to the H.B.F.C. In respect of the loan obtained by the plaintiff?
(5) Whether any payments made as alleged give right to the defendants to claim occupation and/or charge on the property?
(6) Whether the defendants Nos.1 and 2 have any right of residence in the house in the suit?
(7) Whether the plaintiff is entitled for possession of the house in the suit?
(8) Whether the plaintiff is entitled to all fittings, furnishings, furniture, household articles etc. As per list of the inventory prepared by the Commissioner appointed by this Hon'ble Court? (dropped).
(9) To what relief is the plaintiff entitled?"
6. ' Both the parties produced evidence. While the plaintiff himself appeared to give evidence, the defendants examined Dr. Abdullah Ghanghro, Mr.Sharaf Faridi, Advocate, Mr.Khalid M. Ishaque, Advocate and defendant No,1 Qaimuddin Jatoi and defendant No,3 Mrs. Liliane Chollet, appeared themselves.
7. ' Mr. Azhar Ali Sidqui the learned counsel for the plaintiff contended that according to Moham adan Law, the plaintiff was responsible for the maintenance of his sons only up to the age of eighteen years when they became major. He further contended that since the daughter was married in a family against the wishes of the plaintiff, he is not responsible for the payment of her marriage expenses.
8. ' His next contention was that no counter-claim was filed and no court-fee paid by the defendants as such no relief can be granted to them in the present suit. He further argued that the ownership of the house of the plaintiff has not been denied and if at all there is a claim, even then, the defendants cannot retain the possession of the property in lieu of that claim. In short, it cannot be a charge on the property.
9. ' As against the above, Mr. Afzal Nabi, the learned counsel for the defendants contended that the construction of the house was taken up only after the defendant took up the job and there was a clear understanding between the husband and wife that while the plaintiff will look after the construction of the house the defendant will bear the educational expenses of the children as well as contribute towards household expenses too and in return the property will belong to both of them equally.
10. ' According to him under sections 69 and 70 of the Contract Act such claims, where there is no contract, can be granted by the Courts.
11. ' I have heard both the counsel and perused the evidence, pleadings and the case-law cited and my reply to the issues is as follows:-- ' Issue No,1: ' The three sons, Nasimuddin, Salimuddin and Qaimuddin, were respectively born on 21-1-1961, 8-4- 1963 and 8-9-1965, while the daughter Amber was born on 4-10-1970. According to the dates of birth, the three sons became major in the year 1979, 1981 and 1983 respectively.
12. ' Admittedly, the defendant No,3 took up the job with the Austrian Trade Commissioner in the year 1982 when the two sons had become major and the third son attained majority in the following year. The daughter was about 12 years old at the relevant time and was brought up by the parents till 1989 when the defendant No,3 was divorced by the plaintiff. As such, if any expenses were incurred by the defendant No,3 on the education of the children, it must be for the third son and the daughter who were minors at the time when the defendant No,3 took up the job.
13. ' The defendant No,1 had filed written statement which was adopted by defendants 2 and 3. In para. 4(2) it is stated that the defendant No,3 contributed towards household items. In paras. 4(c) and
(e) it has further been claimed that she remitted SH 243,000 and $10,630 for theducation of Nasimuddin (defendant No,2) and Salimuddin Jatoi (who is not a party to the present proceedings) who were studying abroad and this fact has been acknowledged by the plaintiff (page 9 of evidence). But no proof has been filed in regard to the nature of education or the degrees, if any, obtained by the sons. The bank statement showing remittances are on the record but were not admitted in evidence. Even if these documents are looked into without having been admitted in view of justice and equity and supporting judgments of the Supreme Court in this regard (PLD 1992 SC 822) the mere bank statements without any supporting evidence of educational qualification and other relevant documents, cannot lend support to the defendant's claim as statements do not indicate if the money was remitted for educational expenses. The issue which arises is whether the claim for reimbursement of their educational expenses abroad under the circumstances, is maintainable? The second question is in regard to the educational expenses of those who were minor at the relevant time and were studying in the country. The defendant No,3 has claimed an amount of Rs,45,000 which she had spent on children's education between the period 1982-89. The plaintiff in his deposition stated that he maintained his children and paid their educational expenses till 1982 which statement has been confirmed by the defendant No,3 in her deposition (pages 189 and 193 of the evidence file). Be that as it may, since the issue as framed is whether the defendant No,3 spent any amount on the educational expenses of the sons.
14. ' According to Hamilton in 'Hidaya' and 'Principles of Mohammadan Law' by Mulla, a Muslim father is liable to maintain his male children only till the age of puberty.
15. ' According to Dr. Tahir Mahmood (The Muslim Law of India), the Muslim children are unconditionally entitled to maintenance from their parents until they attain puberty. After a son has attained puberty he can claim maintenance from his parents, only (a) if he is indigent, and (b) if physically or mentally disabled. While a female child is entitled to be maintained by the parents till she gets married, even where the marriage takes place much after the attainment of puberty. The author has further discussed that though some of the scholars have referred to the word 'puberty' means (Bulugh) in Muslim Law, but the provisions of the Majority Act cannot be stretched in order to prolong the maintenance entitlement of sons until they attain statutory majority.
16. Since no valid documents are there on the record to indicate that the defendant No,3 contributed any amount towards the educational expenses of the sons, while they were abroad and a Muslim father is not bound to maintain the sons above the age of puberty, the claim of the defendant No,3, on this account, is not maintainable. However, the claim of Rs,45,000 spent on the education of the sons and daughter, who were studying in the schools at the relevant times, is accepted under the circumstances. My answer to the issue is accordingly.
17. ' Issues Nos.2 and ' The family shifted in the new house in the year 1988 which, according to the evidence on record, nearly completed. It has been stated by the defendant No,3 in her deposition that due to financial constraints it was agreed between the husband and wife that the plaintiff will look after the construction of the house while the defendant No,3 will look after educational expenses of the children and will also contribute towards the household expenses. Admittedly, the construction started after 1982, after the defendant No,3 took up the job.
18. ' I have seen the statement in regard to the expenses filed by the defendant No,3. In the said statements the defendant No,3 has shown her monthly income and has claimed an amount of Rs,3,10,000 for the household expenses from 1988 to 1991 and an amount of Rs,3,70,000 which is in respect of repairs and refurnishing of the house and purchase of decoration pieces etc. ' Since, through the evidence it has been confirmed that till 1982 the plaintiff met all the expenses, the period for which claim is to be examined is after the year 1982. According to defendant No,3, which though denied by the plaintiff, it was agreed between the husband and wife that one of them will take the responsibility of construction of the house while the other will look after the educational expenses of the son studying abroad. This happens in many families where both the spouses are working and while the existing relationship is happy and cordial. According to her statement, she was getting a salary of 15,000 (fifteen thousand) Austrian shillings (A.S.) which was subsequently raised to 20,000 A.S. Out of which the larger amount was remitted toward the educational expenses of her sons abroad. Her further claim is that she has contributed an amount of Rs,3,10,000 towards the household expenses from 1982 to,1991.
19. The statement in regard to household expenses seems to be reasonable. It can also be understood specially when the plaintiff has been living separately since 1989 and admittedly had not paid any money towards the maintenance of her daughter, the amount of Rs,3,10,000 could have been spent towards the maintenance of the daughter.
20. ' The next issue is as to the expenses incurred, by the defendant No,3 on the construction of the house itself. According to the deposition of D.W.1 Dr. Abdullah Ghanghro the defendants were not willing to shift into the new house due to apprehension that they will be disturbed by the plaintiff subsequently. But on the assurance of the plaintiff they shifted to the new house. The witness has further deposed that at the time of shifting, the house was complete except some finishing work which remained to be completed. The defendant No,3 has claimed Rs,60,000 to Rs,70,000 towards completion of kitchen and other work which was left at the time of shifting. The-plaintiff in his evidence has accepted the payment of House Building Finance Corporation and showed his willingness for reimbursement of any other amount which defendant No,3 may have made to any person towards the construction of the house . The amount claimed seems reasonable and genuine as the completion of the kitchen and finishing work is a costly affair as such the claim of Rs,70,000 is allowed.
21. ' Next claim of the defendant No,3 is of Rs,3,70,000 which according to her, she had spent on repairs and refurnishing of the house. No separate amounts have been shown as to the amount spent towards the repairs and the nature of such repairs. No receipts have been filed except for payments to the House Building Finance Corporation. In the circumstances, the claim of the defendant No,3 for reimbursement of Rs,3,70,000 cannot be entertained and considered. If the defendant No,3 has purchased any furniture or decoration pieces these are her property which can always be removed by her when she vacates the house. The answer to the two issues is that the plaintiff is liable to reimburse the amount of Rs,45,000 and Rs,3,10,000 to the defendant No,3.
22. ' Issue No,4: ' Admittedly, the plaintiff had taken a loan of Rs,1,50,000 from the House Building Finance Corporation for the construction of the house on Plot No,39-C, Block 2, K.D.A. Scheme No,5, Kehkashan, Clifton, Karachi, which belongs to him. As per deposition of the parties, the construction was carried on by the plaintiff and in 1988 when the family shifted to the new house the House Building Finance Corporation loan was still outstanding. According to the plaintiff's own admission, he did not pay any instalment to the House Building Finance Corporation (page 11 of the evidence file) but had forwarded the notices to the defendant No,3. The plaintiff also deposed that through some friends he had offered to reimburse to the defendant No,3, the money which she had paid to the House Building Finance Corporation towards the loan and any other amount which she had paid towards the construction of the house or for the material used therein. (pages 35 and 37 of the evidence filet. During the course of arguments, Mr. Azhar Ali Siddiqui again expressed his client's willingness for the payment of the amount of loan which was paid by defendant No,3 to the House Building Finance Corporation. In terms of the above admissions, the answer to Issue No,4 is in the affirmative. The plaintiff is liable to reimburse to the defendant No,3 the amount paid to House Building Finance Corporation and any other amounts paid as taxes cess imposed on the property and paid by her accordingly.
23. ' Issues Nos. 5, 6 and 7: ' These two issues are inter-related. Mr. Afzal Nabi, the learned counsel for the defendants argued that under sections 69 and 70 of the Contract Act, the plaintiff is liable to pay the amount spent by the defendant No,3 on children's education abroad, their maintenance and towards the construction/completion of the house and House Building Finance Corporation loan: According to him, it was the liability of the plaintiff to maintain the wife and children but due to the shortage of funds it was agreed between the two that while the plaintiff will look after the construction of the house, the wife will take the responsibility of household expenses and children's educational expenses (pages 189 and 193 of the evidence file). His argument was that since it was a question of maintaining the family and its welfare, the defendant No,3 willingly took the responsibility to share the same with her husband which should have been actually discharged by the plaintiff. The consideration for accepting the said responsibility was also based on the assurance of the plaintiff that after construction of the house, the same will belong to both of them.
24. ' To understand Mr. Afzal Nabi's contentions, I will first reproduce the two sections on which he is relying, which are sections 69 and 70 of the Contract Act: "69. Reimbursement of person paying money due by another in payment of which he is interested.- -A person who is interested in the . Payment of money which another is bound by law to pay, and who therefore, pays it, is entitled to be reimbursed by the other..
70. Obligation of person enjoying benefit of non-gratuitous' act.--Where a person lawfully does anything for another person, or delivers anything to him not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of or to restore, the thing so done or delivered."
25. ' In section 69 of the Contract Act it is clearly laid down that this will be applicable in cases where a person who not being himself bound to pay the money or to do the act, do it under the circumstances for another person which give them right to recover from the said person who is benefited by it but the person who is bound to pay in such cases is the one who is "bound by law to pay". This means that the person who is claiming reimbursement under this section must satisfy two conditions firstly that he was interested in paying the money and secondly that the other person on whose behalf payment is made, was legally bound to pay.
26. ' Similarly under section 70 a person lawfully does something for another or deliver or delivers anything to the other person who enjoys the benefit thereof, and the liability to make compensation for such act or to restore the thing so delivered arises as to a statutory liability but not arising out of a contract. Under both the sections either the person should be bound by law to pay or a person does the act lawfully but not intending to do so gratuitously.
27. ' If the principle is applied in the present case, admittedly the three sons of the plaintiff had attained puberty by the year 1982 and as such were not entitled to any maintenance from the father. There is no doubt that in the subcontinent parents feel morally bound to maintain their children and to educate them so that they become independent but as already discussed hereinabove under the. Mohammadan Law a father is not bound to maintain his grown up children after they attained puberty.
28. ' Mr. Afzal Nabi, the learned counsel for the defendants relied on the case of West Bengal v. M/s. B.K.
29. Mondal & Sons AIR 1962 SC 779, in the said case it was observed that a person claiming compensation and a person against whom it is claimed, some lawful relationship must subsist for that is the implication of the use of the word "lawfully" in section 70. But the said lawful relationship arises not because the party claiming compensation has done something for the party against whom the compensation is claimed but because what has been done by the former has been accepted and enjoyed by the latter. There is no denial of the fact that under section 70, the claim is made not on the basis of any subsisting contract but it is on the basis of the fact that something was down by party for another and the said work so done is voluntarily accepted by other party.
30. ' In the above case relied upon by Mr. Afzal Nabi the respondent had offered to put up certain temporary storage godowns for the use of the Civil Supplies Department of the State of Bengal and the said offer was accepted by the Department by their letter. The work was carried on by the respondent on the written instruction of the Assistant Director of the Department. When the bills were presented the Department took the plea. That construction carried on by the respondent in pursuance of the alleged request was invalid and unauthorised and since there was no valid contract between the parties there was no privity of contract but the appeal was dismissed with costs.
31. ' In the present case no evidence has been placed on the record to show that the plaintiff had ever expressed his desire that the defendant No,3 may remit the educational expenses to her sons abroad. The plaintiff in his deposition and cross-examination denied the fact and stated that defendant No,3 was sending the money to their sons on her own volition. Be that as it may, even if the statement of the defendant No,3 is accepted that there was an agreement between the two it should be payable under the law, since the plaintiff is not legally bound to maintain the sons after attaining puberty the case is not applicable to the present facts of the case. Another case relied upon by Mr. Afzal Nabi is of R. Gangapthi Pillai v. P.A. Irudayasamy Nadar AIR 1962 Mad.
345. In the said case the petitioner on the request of the defendant put up certain additional construction in the mill which was leased to him and the defendant had promised to the petitioner that he will reimburse the expenses which were not paid to the petitioner who had to file the suit.
32. The Court on the original side dismissed the suit on the plea that the plaintiff failed to prove the specific agreement set up by him. It was observed by the High Court that even if the oral evidence was not deemed to be satisfactory the plaintiff's claim appears to have been passed on another ground i,e, under section 70 of the 'Contract Act, as according to the lease agreement between the parties it was agreed certain additions to the leased premises were necessary and the lessor had agreed to put up these constructions which he was unable to effectuate lease transaction itself, these additional constructions were necessary and if the plaintiff put up these constructions the benefit of which would subsequently accrue to the defendant/lessor, the plaintiff is entitled to be reimbursed as these constructions were not put gratuitously by him. All the conditions necessary to attract section 70 of the Contract Act would appear to exist in this case.
33. ' It was also held that "if a party to a contract has rendered service to the other not intended to do so gratuitously, and the other person has obtained some benefit, the former is entitled to compensation for the value of the services rendered by him.
34. ' Next case relied upon by Mr. Afzal Nabi is E. T. Robinson v. Mrs. R.V. Rigg AIR 1936 Allahabad 393. In the said case it was observed that "where a man comes to enforce a contract between the husband and wife as against the husband for supplying "necessaries" he will have to establish that the things sold comes within the definition of "necessaries". Further that it is open to the husband to prove that though things were necessaries but he is not liable to pay as he had been giving enough funds to his wife and there was no need for the wife to go and pledge his credit.
35. ' In the above two cases also there has always been a legal entitlement of person who was awarded compensation. Even in the cases of E.T. Robinson v. Mr. R.V Rigg. AIR 1936 Allahabad 393 the Court awarded compensation only if things sold fell within the definition of "necessaries" which again indicates that there has, to be a legal entitlement or legal relationship between the person who is claiming reimbursement and the person who has to make such reimbursement.
36. ' Considering the above case-law, I have already allowed payments under Issues Nos.2, 3 and 4.
37. ' In respect of the plaintiff's claim in regard to the counterclaim and payment of court-fee, reference was made to the case of Syed Niamat Ali and others v. Dewan Jairam Das and another PLD 1983 SC 5. It was observed that Code of Civil Procedure, 1908 nowhere provides for setting up of counter-claim by the defendant in the same suit in answer to plaintiff's claim and was held that the defendant can only raise such claim in his set-off. In the case of Khurshid Ahmed and another v. Khair Din PLD 1962 (West Pakistan) Lah. 313 it was observed that a written statement, pleading a set-off cannot be accepted unless the prescribed court-fee is paid.
38. ' In view of the established principle of law my answer to the two Issues Nos.5 and 6 is in negative and Issue No,7 in affirmative.
39. Issue No,8 was dropped by the plaintiff. However, looking at the circumstances of the case and considering the positive contribution of defendant No,3 towards providing stable and good family surrounding, education of children and her devotion to the family and her husband, she deserves and equally deserving share in the house. I grant Rs,10 lacs (rupees ten lacs) as compensation to be paid by the plaintiff to the defendant No,3 and which will remain a charge on the property till payment.
40. ' Official assignee is appointed to take over the possession of the suit premises. However, the defendants are allowed a period of two months to vacate the same. The plaintiff is entitled to receive the possession of the house in case he deposits the entire claim amount granted herein with the Official Assignee which will be payable to defendant No,3. Otherwise, the amount will be a charge on the property which will be recoverable from the sale of the suit property. Suit stands disposed of accordingly.