1. ' By order dated 30-4-1995, the following preliminary issue was settled and the parties were directed to lead evidence in relation thereto:-- ' "Whether the immovable property which is a house bearing No,164, Block-20, measuring about 120 sq. Yards, situated in Sector-16, F.B. Area, Karachi, was sold by the deceased to the present defendant No,1 Mst. Shamim Fatima Rizvi?
2. ' The suit is filed by the plaintiffs seeking decree under Order XX, Rule 14, C.P.C. In the following terms: "(A) Declaring the shares of the abovenamed plaintiffs and the defendants in the estate of Mst.
3. Naseem Fatima Rizvi, being the property bearing No,164, Block-20, measuring 120 square yards, Federal 'B' Area, Karachi;
(B) directing inquiry into what the estate of the said late Mst. Naseem Fatima Rizvi consisted and what it consists of;
(C) the assets of the property of the said deceased Mst. Naseem Fatima Rizvi be distributed 'among the legal heirs according to their respective legal shares;
(D) ordering administration of the said estate of the late Mst. Naseem Fatima Rizvi;
(E) directing that the cost of the plaintiffs be paid out of the estate of the said late Mst. Naseem Fatima Rizvi;
(F) granting Permanent Injunction restraining the defendants from transferring, mutating and/or doing any other act or thing affecting in any way the rights and claims of the parties in or over the said property being House No,164, Block-20, Federal 'B' Area, Karachi.
(G) making other further orders and giving such other or further directions as may be deemed just and proper by this Hon'ble Court in the circumstances of the case; and
(H) cost of the suit."
4. ' The plaintiffs' claim as husband, daughter and son respectively of deceased Mst. Naseem Fatima Rizvi who expired at Karachi on 21-4-1981. The deceased, a Shia Muslim, was survived by the three plaintiffs and her mother Mst. Mazhari Begum. According to averments contained in the plaint, the above named mother of the propositus died in or about the year 1983 and was survived by the three defendants who are all children of the above-referred Mst. Mazhari Begum. It is further averred in the plaint that the deceased owned, at the time of her death, immovable property being House No,164, Block-20, Scheme No,16, Federal 'B' Area, Karachi, hereinafter referred to as 'the suit property', measuring 120 sq. Yards. The heirs of the deceased and after death of Mst. Mazhari Begum, her heirs too are entitled to share in the suit property. According to the plaint, the plaintiffs demanded their share in the suit property but the same was denied by the defendants with the result that legal notices dated 28-4-1993 were caused to be issued but the defendant No,1 refused to receive the notice. Eventually, the suit for Administration of the Estate of the deceased was filed on 7-11-1993.
5. ' The plaintiffs' claim is resisted by the defendant No,1 who, besides the legal objections, has urged that the suit property was sold to her by the deceased during her lifetime ' for a consideration of Rs,78,000 and, therefore, the defendant No,1 was in possession of the suit property in her own right as an owner. It is further averred in the written-statement that on account of the close relationship and mutual confidence, the suit property was not got transferred or mutated. It is further averred that the defendant No,1 had raised additional construction and the suit had been filed belatedly with the mala fide intention of defeating the rights of defendant No,1.
6. ' On the basis of above pleadings, when the matter came up for settlement of issues, preliminary issue, as above, was settled for trial by the Court.
7. ' Both the parties have led evidence in relation to the preliminary issue. The defendant No,1 has examined herself as Exh.3 and has produced Agreement of Sale dated 10-10-1978 as Exh.3/1 and her Representation dated 14-4-1993 submitted before the concerned Director, K.D.A. As Exh.3/2. The defendant No,1, then closed her side. The plaintiff No,1, besides examining himself, has produced Death Certificate of Mst. Naseem Fatima Rizvi as Exh.4/1, Sale Deed dated 10-1-1974 in favour of the deceased pertaining to the suit property as Exh.4/2, Transfer/Mutation Letter dated 28-3-1974 addressed to the deceased as Exh.4/3, Reply dated 5th March, 1994 from K.D.A. As Exh.4/4, Office copy of Legal Notice, dated 28-6-1993 as Exh.4/5, Sealed envelope containing the Legal Notice dated 28-6-1993 as Exh.4/6 besides Delivery Confirmation Slips (Exhs.4/.7-A and 4/7-B) showing service of legal notice upon defendants Nos. 2 and 3.
8. ' I have heard the learned counsel representing the plaintiffs and defendant No,1 in relation to the preliminary issue and with their assistance have gone through the pleadings and the evidence led by them.
9. ' Mr. Umer Farooq Khan, appearing for defendant No,1, has contended that the possession of the suit property has all along remained with the defendant No,1 who had enjoyed the same uninterruptedly as owner. The learned counsel, to prove the sale of suit property in favour of the defendant No,1, has referred to Sale Agreement dated 10-10-1978 (Exh.3/1) which contains acknowledgment of payment of entire sale consideration of Rs,75,000. The learned counsel has further relied upon the deposition of defendant No,1 to the effect that the electricity, gas and water charges in respect of the suit property have been paid by her since the year 1978-79 and that additional construction had been raised by her in the year 1993. In the oral deposition too, the sale consideration is stated as Rs,75,000. Mr. Umer Farooq Khan has further referred to the cross- examination of plaintiff No,1 wherein it is admitted that the taxes in relation to the suit property had been paid by the defendant No,1 since the year 1981 up to the filing of the suit. The learned counsel further contends that constructive possession of the suit property was transferred by the deceased to the defendant No,1 at the time of sale strenuously argued that .The plaintiffs, from their conduct, have shown that they have no live interest in the suit property and after having admittedly shifted therefrom in the year 1981, had preferred claim for the first time by filing the present proceedings.
10. According to the learned counsel, even the legal notice, allegedly sent on behalf of the plaintiffs, is dated 28-6-1993 which shows gross indolence on the part of the plaintiffs. In reply, Mr. Rasheed Akhtar Qureshi has urged that the Sale Agreement dated 10-10-1978 was merely a contract for sale and did not confer any right nor had the effect of sale by virtue of section 54 of the Transfer of Property Act. The learned counsel, in support of his submission, has referred to the case of M.
11. Ghulam Muhammad v. Custodian of Evacuee Property, Lahore and others (PLD 1966 (W.P.) Lahore 953). It is further submitted by the learned counsel for the plaintiffs that in case agreement (Exh.3/1) is considered to have created interest in favour of the defendant No,1, it required registration under section 17(1)(b) of the Registration Act and on account of non-registration entails the consequences provided under section 49 of the said Act. It is further contended by Mr. Qureshi that the Sale Agreement, Exh.3/1, did not prove payment of any consideration and the signature of the deceased thereon having been disputed, required proof in terms of Article has further urged that the alleged signatures of the deceased Mst. Naseem Fatima Rizvi as appearing on Exh.3/1, upon comparison under Article 84 of the Qanun-e-Shahadat with the admitted signatures of the deceased appearing on Exh.4/2, are evidently forged. The learned counsel for the plaintiffs has further urged that the agreement, in any event, required presence of attesting witnesses and none of the two witnesses who are alleged to have signed Exh.3/1 have been produced by the defendant No,1 leading to adverse presumption. It is further urged that one of the attesting witnesses namely S. Sardar Hussain is shown in the document (Exh.3/1) as resident of the very house where the defendant No,1 had admittedly been residing till the year 1981 when she had shifted to the suit property. It is lastly pointed out by Mr. Rasheed Akhtar Qureshi that the defendant No,1 had failed to assert her claim in relation to the suit property and to have it mutated in her name despite passage of substantially long time.
12. ' Both the learned counsel, during hearing, appear to have laboured under the conception that burden to prove the preliminary issue, affirmatively, was upon the defendant No,1. However, the provisions contained in Article 126 of the Qanun-e-Shahadat, 1984, provide as follows: ' "126: Burden of proof as to ownership.--When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner."
13. ' The above-quoted provision, evidently, is in departure from the general rule contained in Article 117 of Qanun-e-Shahadat Order. A person who asserts that another person, in possession, is not owner of the property, is required to prove negatively that the latter is not the owner. In the present case, the defendant No,1 is, admittedly, in possession of the suit property and, therefore, A the burden to prove affirmatively that she is not the owner, lies upon the plaintiffs. The question of burden of proof, however, has lost importance since both the parties have led evidence in view of the dictum laid down in the case of Mst. Qaisar Khatoon and others v. Maulvi Abdul Khaliq and another (PLD 1971 SC 334).
14. ' Evaluating the evidence, which has come on record, it appears that the mainstay of defendant No,1 is on the agreement Exh.3/1 and the delayed approach to the Court. The agreement which is not registered can, at best, be termed a contract for sale and does not amount to sale itself. Sale of immovable property is defined in section 54 of the Transfer of Property Act which is as follows: ' "54. Sale defined.--'Sale' is transfer of ownership in exchange for a price paid or promised or part- paid and part-promised.
15. ' Sale how made.--Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
16. ' In the case of tangible immovable property, of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
17. ' Delivery of tangible immovable property of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
18. ' It does not, of itself, create any interest in or charge on such property."
19. ' The above-referred provision makes it evidently clear that a contract for sale does not, of itself, create any interest in or charge on the subject property. The C creation of interest in relation to immovable property valued at Rs,100 and upwards is required to be effected through registered instrument. The agreement dated 10-10-1978 (Exh.3/1), in the present case, cannot be construed to have created any interest in favour of defendant No,1 and, therefore, was exempt from registration by virtue of the exceptions contained in section 17(2)(v) of the Registration Act. The defendant No,1, in the circumstances, was required to show something more than mere agreement to claim interest in the suit property. Even with regard to payment of consideration the defendant No,1 has not produced any evidence. Besides the contradiction in the amount of sale consideration, shown as Rs,78,000 in the written-statement and Rs,75,000 in the agreement, no receipt. Acknowledging such payment has been produced. The only explanation offered by the learned counsel for the defendant No,1 to the effect that on account of close relationship between the vendor and the vendee, complete documents were not got signed does not inspire confidence. The language of clause (5) contained in Exh.3/1 again leaves a great deal to be explained. Clause (5) of the agreement, referred above, is as follows:-- ' "That the vendor will deliver/has delivered peaceful possession of the said property to the vendee alongwith all the relevant documents, rights and title."
20. ' The documents of title relating to the suit property have come forth from the possession of the plaintiffs and for such reason, too, the document Exh.3/1 cannot be termed anything more than a contract for sale. A comparison of signatures of the deceased Syeda Naseem Fatima Rizvi with the admitted signatures appearing on Exh.4/2 shows that the same are signed by different persons.
21. The deceased lady is stated to have been working as a teacher at a Secondary School in Karachi whereas the alleged signatures of deceased Naseem Fatima Rizvi appearing on Exh.3/1 do not indicate the flow and fluency as is expected from a school teacher and is otherwise manifest from the signature on Exh.4/2. Besides, the defendant No,1 has also failed to produce any of the attesting witnesses who have subscribed to the agreement Exh.3/1. Nothing about non-availability of the two witnesses has been stated. Although the delay on the part of the plaintiffs in approaching the Court has not, satisfactorily, been explained, benefit of section 6 of the Limitation Act has to be extended to plaintiffs Nos.2 and 3 who, admittedly, were minors at the time of institution of the case.
22. Moreover, the plaintiffs have shown that the suit property stood in the name of deceased Syeda Naseem Fatima Rizvi at the time of her death and admittedly continues to remain so. The possession of documents of title is again an important factor to determine ownership of property.
23. The non-payment of taxes by the plaintiffs can validly be a scribed to use and enjoyment of possession of the suit property by the defendant No,
1. Although failure on the part of the plaintiffs to assert claim after death of Mst. Mazhari Begum in 1983 or 1985 has caused some anxiety in my mind but the very contention of close relationship between the parties which is asserted by the defendant No,1 can be considered a cause for failure on the part of the plaintiffs to assert their rights. Moreover, after the death of Mst. Mazhari Begum, the defendant No,1, as per admission contained in the plaint, had inherited share in the suit property and her possession, therefore, cannot be treated adverse to the other co-owners. The argument about adverse possession raised by the learned counsel for defendant No,1 also loses significance in view of the judgment in the case of Maqbool Ahmed v. Government of Pakistan (1991 SCM R 2063) whereby section 28 of I the Limitation Act as well as Article 144 thereof were declared repugnant to Injunctions of Islam. The evidence on record is sufficient to hold. That the plaintiffs have succeeded in proving that the suit property was not sold by the deceased Syeda Naseem Fatima Rizvi to the defendant No,1, Mst.
24. Shamim Fatima Rizvi.
25. 'For the above reasons, my finding on the preliminary issue is in the negative.
26. ' Before parting, it may be recorded that the amount of costs, ordered on 12-2-1998, have been paid to the learned counsel for the plaintiffs in Court today. Let the matter be put up for further proceedings in accordance with the procedure under the Rules.