PLJ 2010 Lahore
214 (DB)
Present: Mian Saqib Nisar & Hafiz Tariq Nasim, JJ.
Dr. ZIA-UR-RAHMAN KHAN and another--Appellants
versus
Dr. ATIQ-UR-RAHMAN--Respondent
R.F.A. No. 469 of 2006, decided on 22.6.2009.
Pleadings--
----Scope--Plea was not raised in plaint--The rule that
no one can substantiate and prove a case beyond the scope of his pleadings and
even if any evidence has been brought on the record outside the purview
thereof, it shall be ignored and overlooked by the Court.
[P. 222] A
Partition--
----Relief of partition--In a partition lis if an issue
is joined by the defendant about the joint ownership of the suit properties, it
shall be for the Court to resolve that, if the suit properties are common thus
partitionable or otherwise. [P. 223] B
Benami--
----Benami, a term which loosely and ordinarily is used
for a such transaction in which that the property does not belong to the one in
whose name it ostensibly stands but to another who is the true and the actual
owner thereof. [P. 223] C
Gift--
----Rule of Mushaa--Effect of--There is no proof either
documentary or oral on the record as to where, when and in whose presence and
how the declaration of the gift was made by the father, which was allegedly
accepted by the respondent and the possession of the property was delivered to
the respondent on the basis of that gift--Three conditions under the Muhammadan
Law are sine qua non for the validity of the gift, which remains
unsubstantiated by the respondent on the record; besides, there is a serious
question mark, if a gift of an undivided property could be made and what is the
effect of the rule of Mushaa. [P.
225] D
Family Settlement--
----Non registration of gift--Effect--Family settlement
can always be arrived at orally, which can be subsequently acknowledged and
translated through a written instrument and this is exactly what has happened
in instant case, in such a situation, it needed no compulsory
registration--Through family settlement, no right or interest in any property
is being created or transferred rather it is only an acknowledgement and
admission of the fact that the properties mentioned therein are the estate of
the deceased father of the parties. [P.
227] E & F
Mr. Muhammad Rashid Ahmad, Advocate for Appellants.
Ch. Inayat Ullah, Advocate for Respondent.
Date of hearing: 8.5.2009.
Judgment
Mian Saqib Nisar, J.--The suit captioned as for the
administration instituted by the appellants against the respondent has been
partly dismissed to the extent of the three properties i.e Plot No. 28-G,
Commercial in Lahore Cantt., Cooperative Society (DHA), Lahore, House No. 49,
School Road, Shalimar 7, Islamabad and Aitchison College, whereas for the
remaining six properties, a preliminary decree dated 26.7.2006 has been passed
by the learned trial Court in favour of the appellants and against the
respondent. Hence this appeal.
2. Briefly stated
the facts of the case are that Major (Retd) Aziz-ur-Rehman Khan (who may also
be referred to as the father) died on 1.9.1992 leaving behind him the
appellants, the respondent, his sons and Mst. Amt-ul-Aziz, the widow.
Originally, Appellant No. 1, initiated the said suit against his two brothers
and the mother, regarding the properties mentioned in Paragraph No. 1 of the
plaint, claiming all those belonging to the deceased father. However,
subsequently, upon his application, Appellant No. 2 was transposed as a
co-plaintiff. In Paragraph No. 1 of the plaint, it is stated "that Major
(Retd) Aziz-ur-Rehman Khan, the predecessor in interest of the parties owned
immovable properties consisting of plots, buildings and agricultural land also;
a house which was infact a Benami transaction in the name of the Defendant No.
2, mother of the plaintiffs actually belonging to the deceased father of the
plaintiffs, therefore, this house as well as residential and commercial plots
in Lahore Cantt. Co-operative Housing Society, Lahore shall form part of the property of the
deceased. The description of immovable property is as follows":--
(a) House No.
33-B, Zahoor Elahi Road Gulberg-II, Lahore,
measuring 2 Kanals.
(b) Plot No.
36-C-I Harikey Road
(Ghazi Road)
Colony Lahore
Cantt.
(c) Plot No. 82-N
measuring 2 Kanals situated at Lahore Cantt. Co-operative Housing Society, Lahore.
(d) Plot No. 28-G
Commercial in Lahore
Cantt. Co-operative Housing Society, Lahore.
(e) Plot No.
H/3/80 Wapda Colony Lahore measuring 2 Kanals.
(f) House No. 49-School Road,
2 Kanal at Shalimar-7 Islamabad.
(g) Plot in
Government Co-operative Housing Society Lahore measuring 2 Kanals.
(h) 2 Plots 1
Kanal each in Aitchison College Society Lahore.
(i) Two square of
agricultural land in village Balian, District Narowal.
MOVABLE ASSETS
1. PLS AC No.
2679 NBP Main Market Gulberg Branch, Lahore-amount is not known;
2. PLS AC No.
7108 NBP Main Market Gulberg Branch, Lahore-amount is not known.
3. PLS A/C No.
7109 NBP Main Market Gulberg Branch, Lahore-amount is not known.
4. PLS AC No.
13933-5 in HBL Main Market Gulberg Branch, Lahore-amount is not known.
5. SS 983 Post
Office Account Ghalib Market, P.O, Lahore
in the name of Defendant No. 2 in 1992 amount was deposited by the deceased
father in the name of Defendant No. 2.
In Paragraph No. 2, it is averred that "the
Defendant No. 1 is simply an ostensible co-owner of House No. 49-School Road
Shalimar-7 alongwith his father Major (Retd) Aziz-ur-Rehman. Similarly another
Commercial plot in Lahore Cantt. Co-operative Housing Society, Lahore also belongs to the
deceased father, but the name of Atiq-ur-Rehman was written as
"Benamidar" only. In fact, both these properties belong to the father
of the plaintiffs." In Paragraph No. 4 of the plaint, it is specifically
mentioned that "Defendant No. 1 knows fully that he had not paid or spent
even a single penny for the transfer of the plots, mentioned above i.e in
Islamabad and other commercial plot in L.C.C.H.S (now DHA), Lahore, has
recently started claiming ownership of the commercial plot in Lahore and half
portion in the plot situated in Islamabad, inspite of the fact that in a family
settlement which was arrived at in the presence of all the elders of the
family, he has admitted these properties to be actually belonging to the
father, has no cause of re-agitate his claim over the said property once again,
because he is estopped by his own conduct in writing.". In the same
paragraph, it is stated that "a schedule of the property aforementioned is
the estate left by the deceased father Major (Retd) Aziz-ur-Rehman Khan and has
to be administered according to the share prescribed by Sunni Law of
Inheritance according to Islamic law of Inheritance, then they shall be bound
by the family settlement and the shares given therein which are more or less
based on Islamic law governing inheritance amongst the shares will
prevail." The plaint goes on to aver that "the defendants were asked
to abide by their commitment made by them, duly signed and attested by the respectables
of the family as marginal witnesses, hence get the entries incorporated in the
various Government records, but they have refused to do so". The relief
part of the plaint is also of some significance and is reproduced as below:--
"Under the circumstances, it is most respectfully
prayed that the property/assets may kindly be administered according to law and
after ascertaining share of each party the same may be given to them by
partitioning it by metes and bounds besides giving each party share in the
movable assets i.e the amount lying the various banks.
Any other relief, which this Hon'ble Court deems fit may also be
awarded to the plaintiffs besides separating the shares with costs."
3. As mentioned
earlier, Appellant No. 2, subsequently was transposed as Plaintiff No. 2 and
thus the matter was contested by the respondent, as well as the mother of the
parties (who has died during the pendency of the suit) by filing a joint
written statement, in which they only admitted the properties mentioned at Sr.
No. b, c, e, g and one plot out of the two mentioned at Sr. No. h of the plaint
were owned by the father and thus formed part of his estate. However, it was
stated that the House No. 49, School Road Shalimar Islamabad was jointly owned
by the deceased alongwith the respondent in equal share, while Plot No. 28-C
Commercial in Lahore Cantt. Co-operative Housing Society, Lahore and a plot measuring 1 kanal in
Aitchison College Society is exclusively owned by the respondent. About the
bungalow No. 33-B Zahoor Elahi
Road, Gulberg II Lahore, it was pleaded that the
same is exclusively owned by the mother; there was also the plea about 2 square
of land in village Balian. It may be pertinent to mention here that in
Paragraph No. 2 of the written statement on merits, it was stated that
"The Defendant No. 1 is the rightful owner of the property gifted to him
by his father. Four days after the demise and burial of late Major (Retd)
Aziz-ur-Rehman the elders of the family got a paper signed under coercion, which
they called as "Settlement". This paper has no legal value, neither
it is on a stamp paper nor is registered. According to this paper, they wanted
to deprive the Defendant No. 3, who is aged ailing and almost invalid of all
her means of sustenance, even the house, which she owns and in which she
resides. The so-called settlement was in equitable and mischievous in the sense
that the aged widow was left houseless and penniless."
On account of pleadings of the parties, the followings
issues were framed:--
1. Whether the
predecessor-in-interest of the parties namely Major (Retired) Aziz-ur-Rehman
Khan was absolute owner of properties described in the plaint at the time of
his death and the house and properties stated in the pliant in the names of
Defendants No. 1 and 3 were a Benami transaction, actually, the above said
deceased was owner of the said properties? OPP
2. Whether the
family settlement has been effected between the parties and the defendants were
bound to abide by the commitments made by them? OPP
3. Whether two
squares of land in village Balian District Narowal and House No. 33-B Zahoor
Ilahi Road, Gulberg-II belongs to the Defendant No. 3.? OPD.
4. Whether the
Commercial Plot No. 28-G, situated in Cantt. Co-operative Society and half
portion of House No. 49 School Road Shalimar Islamabad were gifted to Defendant
No. 1, by his deceased father and they cannot be called benami transaction? OPD
5. Whether the
plaintiff is entitled to the decree as prayed for? OPP
5-a. Whether the
plaintiff's suit is not maintainable in its present form? OPD
5-b. Whether the
plaintiff's suit is barred by law? OPD
5-c. Whether the
plaintiff's suit is liable to be dismissed for mis-joinder and non-joinder of
necessary parties? OPD
5-d. Whether the
plaintiff's suit is time barred.
5-e. Whether the
plaintiff's suit has not been properly valued for the purpose of Court fee, if
so what is correct value? OPD
5-f. Whether the
plaintiff has not come to this Court with clean hands and no cause of action
against the defendant? OPD
5-g. Whether this
Court has no jurisdiction to try this matter? OPD
6. Relief.
4. The plaintiff
Dr. Zia-ur-Rehman, appeared as PW-1 and produced the documentary evidence i.e
Ex.P-1 to P-11. Ehsan Ullah Khan (PW-2) and Brig. Najeeb Ullah Khan-PW-2
(erroneously again referred as PW-2) are the real maternal uncles of the
parties and claims to be the marginal witnesses of the settlement Ex. P.9 (this
document in original has been prepared in duplicate and in the
cross-examination of PW-2 (Brig. Najeeb Ullah), has also been produced by the
respondent as Ex.D-1). As against the above, the respondent examined Zafar
Ullah Khan UDC Estate Management-1 CDA, Islamabad as DW-1, who has brought the
record of House No. 49, School Road Sector F-7/1 Islamabad and has produced
copy of the order dated 4.7.1983 as Ex.D-1 (this document has been erroneously
given the same exhibited number as that of the family settlement) showing the
transfer of the plot jointly in the name of the father and the respondent. Ghani
Muhammad DW-2 Clerk, DHA, Lahore
has produced the record of the property bearing Plot No. 28 Block-G 7 Marla
Commercial Area and the copy of the transfer order dated 13.5.1985 Ex.D-2, in
the name of the respondent. Muhammad Afzal DW-3, Accounts Incharge, Aitchhison
Housing Society Aitchison College Lahore, has brought the record of the
property bearing No. 13/22 Block Q, Aitchison College, Staff Co-operative
Society Ltd. Lahore;
this plot is stated to have been gifted to the respondent on 15.3.1988; he has
produced the copy of the registered sale-deed Ex.D-3. Dr.Atiqur Rehman, the
respondent/defendant himself appeared as DW-4.
Learned Civil Judge, seized of the matter, gave his
finding on Issue No. 1 that properties Bearing No. 28-G Commercial Area Lahore
Cantt., half share of the House No. 49 School Road Shalimar-7 Islamabad and
plot in Aitchison Co-operative Housing Society, Lahore, (which were not proved
to be Benami transactions), whereas the other were owned by the father. On
Issue No. 4, it has been held that the plaintiffs have not challenged the
transactions in favour of the respondent in the present suit and that the
dispute about the title cannot be decided in the suit for administration. And
thus as mentioned earlier partly dismissed the suit, whereas for the remaining
a preliminary decree has been passed. It may be pertinent to mention here that
the decree for the accounts and movable assets has been refused for the lack of
proof.
5. Learned counsel
for the appellants contends that all the properties mentioned in Paragraph No.
1 of the plaint, were purchased by Major (Retd) Aziz-ur-Rehman Khan with his
money and at the relevant point of time, the respondent was a minor having no
source to acquire those; this is particularly so about the property Bearing No.
28-G Commercial DHA and the plot at Aitchison College, while the request of the
father to the CDA for including the name of the respondent regarding Islamabad
House in the record, was never a gift of half share of the property, rather
only a paper transaction without any intention of making any alienation of the
same to him; the entire consideration of such properties, which are in
respondent's name, were paid by the father, but for tax purpose, etc., those
were put into the name of his son. This also is the position about the house
Bearing No. 33-Zahoor Elahi Road, Gulberg-II, Lahore, which was purchased by the father on
27.11.1953 vide registered sale-deed Ex.P-1, whereupon a bungalow was
constructed by him, but on 24.12.1957 this property was sold in favour of his
wife Mst. Umt-ul-Aziz. This too was a Benami transaction. It is submitted that
the learned trial Court, has failed to pass a decree with regard to the bank
accounts/movable assets of the deceased, which have been specifically mentioned
in the plaint and no share has been awarded to the appellants' side. He
submitted that the family settlement dated 7.9.1992 Ex.P-9 had been admitted by
the respondent in the written statement; such being the position, the
respondent could not resile from the effect of the instrument on an
unsubstantiated and evasive plea of coercion or undue influence etc., when such
vice has not been proved by him as required under the law, rather he himself
has adduced in evidence the same document in original as Ex.D-1 with an
additional page while confronting it in the cross-examination of PW-2 (Brig.
Najeeb Ullah), when put this document stated:
However, none of the witnesses of the plaintiffs have
been crossed or suggested regarding the alleged coercion about the execution of
the document, rather contrarily, when the respondent appeared in the
witness-box he took up an altogether different stance and deposed:--
Anyhow on the first two pages of the Family Settlement,
the respondent has admitted that all the properties, which are the subject
matter of the suit, belongs to the father and it is settled law that a fact
admitted needs no proof; It is also argued that the statement of PW-1 on the
material and foundational facts of the case, that the properties mentioned in
the plaint belonged and were owned by Major (Retd) Aziz-ur-Rehman Khan and that
those were in Benami in the name of the respondent as also Mst. Amt-ul-Aziz,
has not been subjected to cross-examination, thus the legal consequences that a
fact deposed in the examination-in-chief, if not subjected to
cross-examination, shall be deemed to have been admitted, shall follow. He
further submits that despite having acknowledged in the admittedly executed
document by the respondent i.e Ex. P-9, the family settlement that the property
mentioned in the plaint belonged to the father, yet with dishonesty of purpose,
the defence was set out about the gift of the properties, which the respondent
even otherwise, has failed to prove. It is stated that under Section 123 of the
Transfer of the Property Act, 1882, a valid gift of immovable property could
only be effected through a registered instrument, signed by the donor and
attested by at least two witnesses, but this lacks in the present matter.
Moreover, the vice of registration as required under Section 17 of the
Registration Act 1908, shall entail the effect of non-registration as envisaged
by Section 49 thereof.
6. Conversely,
learned counsel for the respondent has relied upon the judgments reported as
Asghar Ali Vs. Mrs. Zohrabi and another (2000 MLD 122) Syed Mehdi Hussain Shah.
Vs. Mst. Shadood Bibi and others (PLD 1962 SC 291), Ch. Muhammad Zarif. Vs. Sh.
Abdul Haq Sethi (PLD 1956 (W.P) Lahore 1060), Mahbub Alam. Vs. Razia Bezum and
others (PLD 1949 Lahore 263), Mt. Muhamamd Zamni and another. Vs.
Fazal-ul-Rahman and another (AIR 1943 Lahore 241), Muhammad Sajjad Hussain Vs.
Muhammad Anwar Hussain (1991 SCMR 703), Binyameen and 3 others Vs. Chaudhry
Hakim and another (1996 SCMR 336) and Basit Sibtain through Legal Heirs Vs.
Muhammad Sharif through Legal Heirs (2004 SCMR 578), to argue that in the
administration suit, the validity of the alienation made by a deceased, cannot
be determined; the plaintiff in the circumstances, should have brought a
separate suit for the declaration challenging the said transaction; that the
property Bearing No. 33-Zahoor Elahi Road, Gulberg-II, Lahore, was owned by the
widow of Major (Retd) Aziz-ur-Rehman Khan, which she acquired through a
registered sale-deed dated 24.12.1957 and in this behalf, a specific plea has
been taken in the written statement that she had her own independent source of
income. As regards the half portion of the property bearing House No. 49 School Road, Islamabad and 7 Marla Commercial plot
Bearing No. 28-G, Lahore Cantt. Co-operative Housing Society, Lahore, are concerned, those were gifted to
the respondent by the father and under the Muhammedan Law, the oral gift is
permissible. It is further argued that the execution of Family Settlement
Ex.P-9, has been procured from the respondent under the coercion, etc. without
enabling him to understand the contents of the document; besides Ex.P-9 is
infact a partition-deed and being on unstamped paper, it was/is inadmissible in
evidence and due to lack of registration, it does not create or purport to
create any right or interest in the suit properties. It is also argued that the
execution of the document (Ex.P-9) by the respondent does not mean the
acceptance or the admission about the contents thereof. Ehsan Ullah Khan (PW-2)
and Brig. Najeebullah Khan (PW-2), in their testimonies have never stated that
the execution of the Ex.P-9 by the parties thereto was made in their presence,
rather they only deposed that such document when presented to them was signed.
7. We have heard
the learned counsel for the parties and find that the property Bearing No.
33-Zahoor Elahi Road, Gulberg-II Lahore, irrespective of being owned by the
father or the mother, on the demise of the mother, now is a jointly owned
property of the parties, in which they have equal shares. We are not impressed
by the argument of the learned counsel for the appellants that out of such
property half of it was gifted by the mother in favour of Appellant No. 1 and
in this behalf reference having been made to gift-deed Ex.P-10 is being
discarded because this plea has not been raised in the plaint; thus the rule
that no one can substantiate and prove a case beyond the scope of his pleadings
and even if any evidence has been brought on the record outside the purview
thereof, it shall be ignored and overlooked by the Court is squarely applicable
to the case. Besides this plea runs contrary to the case of the appellants as
set out in the plaint, where a specific stance has been taken that all the suit
properties were owned by the father and formed part of his estate.
8. Considering the
case regarding the other properties qua which decree has been declined to the
appellants, the first in line is Bungalow No. 49-School Road, Islamabad; the
land underneath was admittedly acquired by Major (Retd) Aziz-ur-Rehman Khan
from the CDA in the year 1966 and the house was also built thereupon by him; at
that time, the respondent was only a minor. But subsequently, on account of
some letter, which he addressed to the CDA, half portion of the property was
put in the name of the respondent alongwith him. This letter has not been
produced on the record by the respondent from which it could be established and
ascertained that any gift was made in his favour, but the letter of the CDA dated
4.7.1983, has been tendered in evidence as Ex.D-1 (as mentioned earlier two
documents have been erroneously given the same Exhibit number) and it is only
on the basis that the respondent claims that half part of the property was
gifted to him.
9. As far as the
property Bearing No. 28-G, Commercial area Lahore Cantt. is concerned, it at
the very inception was purchased in the year 1983 by Major (Retd)
Aziz-ur-Rehman Khan, but in the name of the respondent. Third is the Plot
Bearing No. 13/22 Block-Q situated in Aitchison College Co-operative Society, Lahore, this too is in
the name of the respondent since 1988. It may be pertinent to mention that at
the time of acquiring these two properties, the respondent was either a minor
or admittedly had no source of income; it is also not his case, that he had
purchased the properties with his own resource, rather avows that these were
gifted to him by his father since the time of purchase.
10. The key
questions thus requiring determination in the matter are; as to who is/was the
owner of these three properties; whether these are Benami transactions; whether
any valid gift has been made by the father in favour of the respondent
regarding these properties; whether the nature of such transactions can be
validly adjudged and determined in the present proceedings.
11. Extensive
portions of the pleadings of the parties have been purposely reproduced above
and the object behind it is to highlight as to what is the real purport of the
suit, because for the purpose of ascertaining its true nature, it is not the
title or the caption thereto, which must be restrictively seen, rather the
whole of the plaint must be looked into and the substance, than the form should
be examined.
Examining the plaint on the above touchstone, it is very
much clear that the appellants are not challenging any alienation made by Major
(Retd) Aziz-ur-Rehman Khan in favour of the respondent. What they are simply
asserting in the plaint is, that all the properties mentioned therein belonged
to the deceased, but some (those in dispute) were put Benami in the
respondent's name. The plaint when considered as a whole from its letter and
spirit makes the case of composite civil nature, in which the rights of the
parties regarding the inheritance to the suit properties is required to be
adjudicated i.e the suit for ascertaining the estate of the deceased father,
administering such estate under the decree of the Court and also for
partitioning it according to the shares of the parties. It may be pertinent to
mention that the relief of partition is specifically asked for in the prayer
clause of the suit and in a partition lis if an issue is joined by the
defendant about the joint ownership of the suit properties, it shall be for the
Court to resolve that, if the suit properties are common thus partition-able or
otherwise; for this purpose obviously the nature of the transaction involved as
in the case in hand can be looked into by the Court. As mentioned above, the
plaintiffs/appellants in the suit have not challenged any transaction in favour
of the respondent/defendant but asserted it to be a Benami, a term which
loosely and ordinarily is used for a such transaction in which that the
property does not belong to the one in whose name it ostensibly stands but to
another who is the true and the actual owner thereof. It is the respondent, who has pleaded in the defence
that the properties have been gifted to him by the father, either at the very
inception of the acquisition, as in the case of Commercial Plot at DHA and one
Kanal plot in Aitchison, and the gift of the half bungalow in Islamabad, after
having become the owner of the property, therefore in the circumstances, it is
not a case, in which the appellants have thrown any challenge to the validity
of the alienations, which may be impermissible in an administrative suit as per
the law laid down in AIR 1943 Lahore 241 (Mt. Muhammad Zamani Begum and another
vs. Fazal-ur-Rahaman and another), rather the respondent has made an abortive
attempt to assert gifts in his favour, which as shall be explained in the
judgment, he has failed to prove. And contrarily admitted those to be owned by
his father, in this behalf reference shall be made to the family settlement
Ex.P-9/Ex.D-1. In our view the judgment of the Division Bench reported as
Mahbub Alam. Vs. Razia Begum and others (PLD 1949 Lahore 263) is attracted to
the case, in which it has been held:--
"Order XX, Rule 13 empowers the Court when passing a
preliminary decree, to order such accounts and "inquiries to be taken and
made and to give such other directions as it thinks fit." The Court would
be at liberty to pass a decree in accordance with the circumstances of each
case.
It seems to me, if I may say so with great respect, that
it would be incorrect to rely too much on O. XX, Rule 13, or the forms of
plaints and decrees prescribed in the First Schedule of the Code of Civil
Procedure for ascertaining the objects of an administration suit."
Moreover, it was held
"The theory that the property of a deceased Muslim
vests in his heirs immediately after the death is considerably tampered by the
injunction that the heir is entitled only to the residue after the payment of a
legacy or debt and since the payment of debts and legacies necessarily involve
the administration of the estate, such administration is implied in the very
words of the Holy Quran and of authentic texts like the Sirajiyyah.
Apart from the plaintiff's right to seek his remedy in
any form permitted by law, if the choice is between a partition suit and an
administration suit, the latter should be preferred."
In the case reported as Syed Mehdi Hussain Shah vs. Mst.
Shadoo Bibi and others (PLD 1962 SC 291) it has been held as under:--
"While an administrative suit is not a remedy for
getting possession from those who claim the property in their possession in
their own right, and adversely to the deceased, there does not appear to be any
valid objection to their dispossession if they claim only as heirs or under a
will from the deceased and their claim is negatived. The question as to whether
a person is entitled to a share in the property of the deceased is a fit
subject of decision in an administration suit.
The object of an administration suit is the distribution
of assets between more than one person and if the defendants to a suit be only
trespassers and the plaintiff is the person solely entitled there can be no
administration suit by such a plaintiff against such defendants.
12. In the light
of above, we intend to examine the defence of the respondent about the gifts;
regarding the half portion of the Islamabad house, as mentioned earlier, he has
not produced any registered instrument or even any memorandum or acknowledgment
of oral gift; the letter through which Major (Retd) Aziz-ur-Rehman Khan asked
the CDA to include the name of the respondent as a co-owner of the property
(half portion) has not been adduced in evidence, from which he could establish,
if such request qualified the test of the gift; the letter of the CDA (Ex.D-1)
does not purport or in any manner proves that the inclusion of the respondent's
name was on the basis of any gift qua the said portion; there is no proof
either documentary or oral on the record as to where, when and in whose
presence and how the declaration of the gift was made by the father, which was
allegedly accepted by the respondent and the possession of the property was
delivered to the respondent on the basis of this gift; obviously, the above
three conditions under the Mahommedan Law are sine qua non for the validity of
the gift, which remains unsubstantiated by the respondent on the record;
besides, there is a serious question mark, if a gift of an undivided property
could be made and what is the effect of the rule of Mushaa.
13. As regards the
Plot No. 28-G Commercial in Lahore and Plot No. 13/22 Block Q, Aitchison
College Co-operative Society, Lahore are concerned, again there is no proof of
any gift ever having been made by the father in favour of the respondent; the
essential of the gift, which have been mentioned above, are conspicuously
missing in these transactions as well; only for the reason that bald claim of
the gift has been made by the respondent in defence without proving or
substantiating the transactions to be of that nature, shall not take the case
out of the scope and realm of the administrative suit or from the suit for
partition, which as has been earlier held, can be said to be a suit of
composite nature, therefore, in the circumstances, it was not necessary for the
appellants to have first asked for the relief of declaration to challenge the
ostensible ownership of the respondent qua these three properties. Rather it is
pertinent and significant to state that the appellants have brought on record
Ex.P-9, a family settlement envisaging in unequivocally and unambiguous terms
the acknowledgment by the parties as to what were the properties, which formed
part of the estate left by the deceased father; the respondent himself has
brought on record same document in original as Ex.D.1 (double exhibited), the
plea that it was got executed from the respondent on account of any coercion is
absolutely not spelt out from any independent evidence produced by him, rather
there is a vital and visible contradiction and shifting of the stance set out
in the written statement and his deposition as reproduced above. On the one
hand, he mentioned in the written statement that "Four days after the
demise and burial of late Major (Retd) Aziz-ur-Rehman, the elders of the family
got a paper signed under coercion which they called as family settlement"
whereas in his statement no assertion was made but in his statement he said:--
This is complete departure from the pleadings of the
respondent. It may also be mentioned here that the respondent is a medical
doctor and a highly educated (foreign) person, thus when he has admitted the
execution of the Ex.P-9/Ex.D-1, he cannot take up the plea that he was not
aware of the contents thereof; besides the story propounded in the statement
that the document was got signed the next month after the burial of the father
before boarding the plane is beyond the scope and contrary to his pleadings,
thus has to be ignored. In our view, the execution is admitted by an adequately
educated person but he wants to avoid the effects of the contents of the
document on any ground such as the lack of free consent etc. heavy burden lies
on his shoulder to prove his version, thus burden has not been discharged by
the respondent, rather from his contradictory stance and also for the reason
that he himself has brought on the record the said document (Ex.D-1), thus he
shall be bound by the acknowledgment and the admission about the estate of his
father given therein; the learned Civil Judge has glaringly over looked this
important piece of evidence and has disallowed the suit only for the reasons
that the properties mentioned above are ostensibly in the name of the
respondent and therefore, decree for administration cannot be passed; this
approach is absolutely against the law because the production of the Ex.D-1,
the family settlement infact has knocked the bottom out of the respondent's
case about the alleged gift as he has claimed.
14. The submission
of the respondent's counsel that said document
is un-stamped and un-registered,
therefore, it does not create or purport to create any right in the property,
suffice it to say that the family settlement can always be arrived at orally,
which can be subsequently acknowledged and translated through a written
instrument and this is exactly what has happened in this case, in such a
situation, it needed no compulsory registration. Moreover, even at the cost of
repetition, it may be reiterated that when the respondent himself has produced
it Ex.D-1 in his evidence, it does not lie in his mouth to take the plea of
non-registration and lack of stamp duty; besides, through family settlement, no
right or interest in any property is being created or transferred rather it is
only an acknowledgment and admission of the fact that the properties mentioned
therein are the estate of the deceased father of the parties. Assuming without
conceding that its registration was compulsory, yet the document could always
be looked into and used for collateral purposes of finding out and locating the
estate of the father, when it cannot be utilized as an instrument of
division/partition thereof.
In the light of above, by setting aside the judgment and
decree of the learned trial Court through which the relief regarding certain
properties/assets was refused to the appellants and upholding it to the extent
the relief was allowed to them, the preliminary decree for administration and
partition vis-a-vis the immovable properties mentioned at Serial No. (d) (f)
and (h) of the plaint as also for the Accounts mentioned at Serial No. 1 to 4 under
the head movable asserts, if the accounts were in the name of the father, as it
has not been denied in the written statement is also passed in favour of the
appellants and against the respondent. This appeal is accordingly allowed.
(M.S.A.) Appeal
allowed.
