1. ' The parties to this suit are the legal heirs of late Mumtaz Begum who died at Karachi on 11-12-1995 leaving behind property on Plot No,53, C.P. And Berar Cooperative Housing Society, Block No,7/8, Amir Khusro Road, Karachi admeasuring 450 sq. Yds. With construction thereon (hereinafter referred to as the said property)
2. ' Plaintiff No,1 as son and Attorney of his sisters plaintiffs Nos.2, 3 and 4 to the suit instituted against their brother Ashfaque Ali claiming their respective shares out of the said property according to the Muslim Sunny Law of inheritance as under:--- {{TABLE}} Syed Mansoor All = 1 Share or 2/7th MRs, Fatima All = 1/2 Share or 1/7th MRs, Ruyaiya Bano = 1/2 Sahreor 1/7th Qadeer
(4) MRs, khajista Bano = 1/2 Share or 1/7th Qureshi 45) Sved Ashray All = 1 Share or 2/7th {{TABLE}} ' Plaintiffs claim that the said property was allotted to plaintiff No,1 vide Allotment Certificate No,353.
3. Dated 22-4-1954 and the construction was also raised by him. Being the eldest son plaintiff transferred this property in the name of his deceased mother according to the wishes of his parents. Defendant used to reside with the deceased in the suit property where plaintiff No,1 also resided up to 1992. After death of late Mumtaz Begum plaintiff served legal notice, dated 31-1-1996 upon the defendant calling him to distribute the said property amongst the legal representatives.
4. In the reply, dated 19-2-1996 defendant claimed exclusive ownership of the said property on the strength of a declaration of gift and an application to this effect moved by their deceased mother in the office of the C.P. & Berar Cooperative Housing Society (hereinafter referred to as the said Society) that the said property was gifted to him and in exercise of her rights defendant claimed to have rented out portion of the said property. On an enquiry by plaintiff the said Society who originally allotted the said property, vide Letter No,C. P . B./301/63/96, dated 26-3-1996 in the name of their deceased mother confirmed that the property was in the name, of the deceased Mumtaz Begum. Plaintiff instituted this suit refuting the claim of defendant on the basis of the said gift, as alleged by the defendant, with the following prayers:- "A Declaration that Plot No,53, C.P. Berar Cooperative Housing Society, Block 7/8, Amir Khusro Road, Karachi and the house constructed thereon admeasuring 450 sq. Yds. Is the property of the deceased and is liable to be sold and shares distributed in accordance with Muslim Law of Inheritance among all her legal heirs, B(a) Partition of Suit Property. No,53, C.P. 7, Berar. Cooperative Housing Society, Block 7/8, Amir Khusro Road, Karachi and the house constructed thereon admeasuring 450 sq. Yds. Among the plaintiffs and the defendant No,1 in their respective shares according to Sunni Hanfi Muslim Law through an officer appointed by this Hon'ble Court.
5. C Mesne profits and defendant No,1 be directed to submit the accounts for proper determination of income/rent collected by the defendant No,1 and its distribution among the legal heirs of the deceased. D Permanent Injunction against the defendant No,1 restraining him from selling, transferring, encumbering, mortgaging, creating any third party rights, titles, and interest in the suit property in any manner whatsoever. E Other better relief which the Hon'ble Court may deem fit in the circumstances of the case.
(F) Cost of suit."
6. ' In the written statement defendant claimed that the said property was gifted to him in 1974 by his deceased mother. Defendant allowed plaintiff No,1 to reside with him in another portion of the said property and plaintiffs finally moved to his newly constructed house in 1991. Defendant denied the property as owned by the deceased Mumtaz Begum at the time of her death. Defendant claimed his ownership and title to the said property on the basis of his possession and the fact that he rented out portion of the property himself whereas prior to the gift their deceased mother rented out the property. Defendant placed reliance on the proceedings of the said Society to substantiate this claim of ownership to the said property. The following issues were framed with the consent of the parties:-
(1) Whether the suit property has been validly gifted to defendant No,1?
(2) Whether the suit property is liable to be administered as per Islamic Law?
(3) What should the decree be?
7. ' Issue No,1: Plaintiff examined himself as P.W.1. Defendant examined Azam Ali son of Kabir Ali, Secretary of the said Society as D.W.1 and defendant examined himself as D.W.2., Both parties have produced documents (1) Death Certificate original of Mumtaz Begum as Exh. P/1, (2) Copies of allotment certificates as Exhs. P/2 and P/3, (3) Copies of Possession Letter issued by Secretary of C.P. & Berar Cooperative Housing Society as Exh.P/4, (4) Copies of Demand Notices as Exhs.P/5 and P/6, (5) Copy of Form for specimen signature as Exh. P/7, (6) Copy of the application for membership and Form of Nomination as Exh. P/8, (7) Copies of letters, dated 31-1-1996 and 19-2- 1996 as Exhs. P/9 and P/10, (8) General Power of Attorney of Ruqqiya Bano in favour of Dr. Syed Mansoor Ali as Exh. P/11 and (9) General Power of Attorney of Mrs, Fatima Ali given to Dr. Syed Mansoor Ali original as .Exh. -P/12. D.W.1, Azam Ali produced the record of the said Society and Exhibited. (1) Photo copy of the Declaration Gift, dated 8-11-1974 as Exh. P.W.1/1, (2) Letter, dated 8-11- 1974 written by Mst. Mumtaz Begum to the Secretary C.P. & Berar Society as Exh. D.W.1/2, (3)
8. Allotment order, dated 22-11-1954 as Exh. D.W.1/3, (4) Share Certificate, dated 15-5-1974 as Exh.D.W.1/4, (5) Letter, dated 15-1-1976 written by the Society to defendant No,1 as Exh. D.W. 1/5 and the letter, dated Nil addressed to the Society exhibited as Exh.D.W.1/6. Syed Ashafaq Ali appeared as D.W.2. He produced the Lease Agreement, dated 15-4-1973 Exhibited D.W.-2/1 receipt, dated 23-12- 1978 Exh. D.'W.2/2, letter of the. Plaintiffs, dated April, 1980 Exh.D.W.2/3. Lease Agreements, dated 1-5- 1994 and 1-4-1993 as Exhs. D.W.2/4 and D.W.2/5, letter of Society, dated 15-1-1976 Exh.D.2/6, Mr. Abid S. Zuberi the learned Advocate for the plaintiff has argued that the alleged gift, dated 8-11-1974 was never acted upon. It is void ab initio. The alleged declaration of gift is not even witnessed. He has pointed out the discrepancies in the written statement filed by the defendant and his statement in evidence. Learned counsel emphasized on the fact that neither physical possession was ever handed over to the defendant nor even constructive possession was handed over to the defendant. No attornment by way of intimation to tenants was made at any stage. The possession which is one of the three basic ingredients of the transaction of a valid gift under the Muslim Law is lacking. In his cross-examination defendant admitted that at the time of gift, "in 1974 I was residing with my maternal aunt and my mother was also residing with me". He further admitted that, "it is correct to suggest that on 8-11-1974, 1 had not received the actual physical possession of the house in question". The rent of the premises was also received by the deceased defendant admitted that in her lifetime his mother used to collect the rent from the tenants. Defendant on being confronted with the alleged gift deed admitted that the same does not bear the signatures of any witness. The residence of the plaintiff No,1 is also admitted in the said property, "the plaintiff and his family resided in the house in question from 1983 to 1992". These admissions of the defendant in addition to the statement of the plaintiff coupled with the fact receipt of rent constitute unrebutted evidence that neither the possession of the said property was handed over by the deceased Mumtaz Begum to the defendant nor transfer of the said property was effected. Mere recital of handing over of possession without actual delivery of possession is invalid. The law on this point is clearly laid down in the reports Syed Khurshid Ali v. Syed Abi Ali 2000 YLR 1787 (Kar.), Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143, Mir Haji Ali Ahmed Khan Talpur and 9 others v. Government of Sindh and 2 others PLD 1976 Kar. 316, Mrs, Razia v. Wajid Ali and 11 others 1989 CLC 1274. The Hon'ble Supreme Court, in the case of Shamshad Ali Shah and others v.
9. Syed Hassan Shah and others PLD 1964 SC 143 has held a mere recital as to delivery of possession to be of a little value as evidenced of delivery of possession and observed as under:--- "The legal requirement is that there should be delivery of possession by the donor. Taking of possession by the donee without the permission of the donor is of no effect. According to the Hedaya: 'If the donee takes possession of the gift in the meeting of the contract of gift without the order of the giver, it is lawful upon a favourable construction. If on the contrary, he should take possession of the gift after the breaking up of the meeting, it is not lawful unless he have had the consent of the giver so to do'. (P.114 to Amir Ali, Vol.1). Similarly in Baillie's Imameea it is said (p.204) that 'permission of the donor is a condition of valid seizin'. It is also stated in Baillie's Imameea (p.204) that 'if the donor should die after the contract, and before possession has been taken of the gift, it falls that into his inheritance'."
10. ' In the case of Ghulam Hussain and others v. Sarfraz Khan and others PLD 1956 SC (Pak.) 309 the Hon'ble Supreme Court has observed "we do not think that the argument that a mere recital (in the deed of gift) is conclusive evidence of the delivery of possession in the present case, is tenable".
11. Further, evidence to confirm the fact that the alleged gift was not acted upon, is the letter Exh.
12. D.W.1/6 written by the deceased to the said Society requesting the said Society not to take any action on her application for transfer of the property in the name of the defendant which has been produced from the record o1 the said Society.
13. ' Mr. Arif Bilal, learned Advocate for the defendant in his arguments placed reliance on D.W.2/3 this letter alleged is said to have been written by the plaintiff but neither the plaintiff who appeared in evidence was confronted with this letter nor the same refers to any transaction of gift. Learned counsel has also laid stress upon the fact that on 15-1-1997. The Managing Committee of the said Society approved the application of transfer as confirmed in their letter, dated 15-1-1975 as confirmed in Exh. D-2/6 and the fact that two agreements of tenancy Exhs. D.W.2/4 and D.W.2/5 were executed by defendant with the tenants during 1993-1994 while earlier the deceased used to let out the property and execute the lease agreement exhibited as Exh. D.W.2/1, dated 15th April, 1973. In support of his arguments learned counsel has cited the cases of Arshad Mehmood Siddiqui v. Muhammad Haroon 1992 MLD 810, Josph and others v. Mst. Teresa Joana Andrews and another PLD 1974 SC 185, Muhammad Sarwar and 6 others v. Muhammad Iqbal and 2 others 1997 MLD 130, Rehman Ali and others v. Abdul and 3 others 1980 CLC 1110, Muhammad Bashir and 6 others v.
14. Muhammad Yaqub and 11 others 1993 CLC 1084, Alif Khan v. Mst Mumtaz Begum and others 1998 SCMR '1,4 ' In his reply the learned Advocate has refuted this fact on the ground that neither any tenant nor witness has been examined and the documents are not proved. The admission of the defendant confirms the fact and settles that the deceased Mumtaz Begum used to receive the rent up to the time of her death and contended that this admission proves the tact that there was no attornment to the tenants and the possession remained with the deceased.
15. ' Tender, acceptance and seizing i.e, the delivery of possession by the donor to the donee are the ingredients of valid gift and from the evidence both oral and documentary it has been proved that the possession of the property was not handed over to the defendant. This fact makes the alleged gift invalid. Accordingly issue is answered in the negative.
16. ' Issue No,2: In view of my findings on Issue No,1 above the property was owned by the deceased Mumtaz Begum and being her Estate is to be administered as per Islamic Law of Inheritance. This issue is answered in the affirmative..
17. ' Issue No,3: Suit is decreed with costs. Plaintiffs are entitled to their respective shares under the Muslim (Sunni) Law of Inheritance as L.Rs, of deceased Mumtaz Begum out of the property situated on Plot bearing No,53, C.P. & Berar Cooperative Housing Society Block No,7/8, Khusro Road, Karachi admeasuring 450 sq. Yds. With construction thereon together with their respective shares of the income from the said property but with no order as to costs.