KHALID ANWAR KHAN Versus ZAIB-UN-NISA
ORDER
Through this order, I intend to dispose of some eight applications in the abovesaid three suits as the facts and law involved in all these three suits are common and identical. Brief facts relevant for disposal of these applications are as follows.
2. Suit No.729/1987 involves estate and property left by Rao Noor Sher Khan son of Muhammad Abbas Khan who died on 21‑2‑1987 in U.S.A. and was buried at Karachi (hereinafter referred to as the said deceased). The said deceased left behind him surviving two widows who are defendants Nos. l and 2, four sons and six daughters from his first wife and two sons and one daughter from the second wife. All the sons of the first wife are plaintiffs while the daughters from the first wife are defendants Nos.3 to 8 and the only daughter from the second wife is the defendant No. 11. The defendant No. 12 is real brother of deceased while defendant No. 13 is the mother‑in‑law. The defendant 14 was mother of the deceased who died and her legal heirs were brought on record as defendants Nos. 14(a) to (d)(vi). The properties left by the said deceased as claimed in the suit vide prayer clause (a) are as follows:‑‑‑
(i) Property No.C‑1, Al‑Hilal Society, Karachi.
(ii) Property No.F‑53/8, Beautiful Homes, Clifton, Karachi.
(iii) Property No.F‑95/7, Clifton, Karachi.
(iv) Motor Car Mitsubishi Gallant, Registration No.1.85=734.
(v) Joint Account with Muslim Commercial Bank Limited, Clifton Branch, Karachi with approximate balance of Rs.16,00,000.
(vi) Cash of Rs.10,00,000 in the custody of the defendant No.2.
(vii) Household articles worth Rs.13,00,000.
3. On 14‑4‑1990 a preliminary decree for administration was passed by consent of all the parties and Mr. Justice (retired) Zahoorul Haque was appointed Commissioner/Receiver to take accounts and to make inquiries about the properties left by the said deceased Rao Noor Sher Khan. Thereafter, from time to time matter proceeded before the learned Commissioner/Receiver who after hard work of nearly four years succeeded in realising from different sources a sum of Rs.71,50,672.80. However, during proceedings before the learned Commissioner/Receiver, the plaintiff and the defendants Nos.2, 9, 10, 11 and 13 agreed upon certain terms to compromise their dispute and accordingly filed a statement on 30th July, 1992. As the terms and conditions of the said compromise are under discussion in some of the applications as such it would be advantageous if the relevant portion of the statement dated 30‑7‑1992 is reproduced:‑‑‑
" ....It is submitted by the plaintiffs and defendant No.2 for self and as guardian ad litem of defendants Nos.9, 10 and 11 that parties have agreed in principle whereby plaintiffs shall exclude properties bearing No.F‑95/7 and F‑53/8, both in Clifton Karachi from present: suit and shall withdraw Suits Nos.67 and 68 of 1989 and the defendants Nos.2, 9, 10 and 11 shall accept Rs.25.00,000 (rupees Twenty Five lacs) in full and final settlement of their entire share in the estate of Rao Noor Sher Khan subject to the condition that this arrangement is approved by the Hon'ble High Court..
The amount of Rs.25,00,000 as above shall be deposited by the Nazir of the Hon'ble High Court in the names of defendants Nos.9, 10 and 11 from the amounts already received and lying with him. The amounts so deposited shall be paid/withdrawn by the minors on attaining majority. The amounts and names are as under:‑‑‑
Rs.5,00,000 in the name of Baby Shehla Khan.
Rs.10,00,000 in the name of Master Shahrukh Khan.
Rs.10,00,000 in the name of Master Khurram Khan.
A compromise application shall be filed in the Hon'ble High Court in this suit and withdrawal applications in the Suits Nos.67 and 68 of 1989 during the month of August, 1992.
It is further agreed that rest of estate of Rao Noor Sher Khan shall be administered and distributed by plaintiffs amongst all other legal heirs of deceased details whereof shall be given in the compromise application and the defendants Nos.2, 9, 10, and 11 shall have no claim on any account whatsoever.
It is further agreed by that all properties movable or immovable or accounts which have been or are in the name of any legal heir shall be his/her exclusive property and the parties hereto shall have no claim whatsoever... "
4. It was in view of this factual background that the parties have filed applications under Order XXIII, Rules 1 and 3, C.P.C.
5. On 21‑4‑1994 when this matter came up before my learned brother Mr. Kamal Mansoor Alam, J., it was observed by him that the matter appeared to have been settled as far as the plaintiffs and the defendants Nos. 2, 9, 10 and 11 were concerned. The relevant portion of the order dated 21‑4‑1994 passed by this Court is reproduced as follows:‑‑‑
"As regards the amount received from U.S.A., plaintiff's counsel states that this is U.S. $ 84,898.28 which has been converted into Pakistan currency and is approximately Rs.30 lacs, since transferred to the Nazir of this Court. Out of this amount Mr. Mirza, on instructions of the plaintiffs, who are present in Court, initially offered an amount of Rs.6,50,000 as the share of the defendants Nos.2, 9, 10 and 11. The defendant No.2 is present in Court and states that she is entitled to half of that amount as that was the amount transferred from her account in the U.S.A. to the account of the deceased from which the said amount has been remitted to Pakistan. Subsequently, Mr. Mirza in consultation with the plaintiffs has increased the offer to Rs.7,50,000 which the defendant No.2 accepts. However, she states that as it is just part of the amount transferred from her account to the account in question in the U.S.A. she is entitled to appropriate the entire sum of Rs.7,70,000. Mr. Mirza states that the plaintiffs have no concern with this aspect of matter.
The defendant No.2 undertakes to produce proof about the amount having been transferred from her account in U.S.A. to the account of the deceased as claimed by her. She will do so on the next date.
The controversy, in so far as the plaintiffs and defendants Nos.2, 9, 10, 11 and 13 are concerned, is settled on the above terms. As regards other defendants, I am informed that the defendant No. 14 was ex parte and so also her legal heirs. Mr. Shahenshah Hussain is representing defendants Nos. l, 3 to 8 and Mr. Faiq Hussain holding brief for him states that Mr. Shahenchah Hussain is out of Karachi in connection with professional work."
6. Suit No.67 of 1989 was initially filed by one of the sons of deceased namely Rao Tahir Anwar Khan against Mst. Kulsoom (defendant No.2 in Suit No.729/87). Subsequently, other legal heirs were also impleaded. This is a suit for declaration, cancellation of documents, possession and injunction in respect of immovable property cited at Serial No.(iii) above. Damages from the defendants to the tune of Rs.50,00,000 is also prayed by the plaintiffs. The plaintiffs of Suit No.67/89 have filed another suit against Mst. Kulsoom, K.D.A. and one Maleehuddin for declaration, injunction, possession, cancellation of document and mesne profit for the immovable property cited ai serial No.(ii) above.
7. I have heard Mr. Atash Mirza, Advocate for plaintiffs, Mr. Shahenshah Hussain and Mr. Iftikhar Ahmed Chaudhry, Advocate for the defendants. I have also heard Mst. Kulsoom, defendant No.2 who was present throughout the hearing.
C.M.A. 53/95 in Suit No. 729/87
8. This application is filed by the defendant No.11 namely Miss Shahla Khan paying that since she has attained the age of majority as such she may be allowed to compromise the above suit. In support of this application, she has filed extract from the Register of Birth maintained by the Cantonment Board, Karachi which shows her date of birth as 26‑11‑1976. She has also filed Form‑B which again confirms her date of birth. She has also filed a copy of General Certificate of Education issued from the University of Oxford, U.K. confirming the same date of birth as mentioned hereinabove. This application is pending since 9th January, 1995 and none of the parties to this suit have filed any objection or counter‑affidavit to the same. In view of the documents filed with thi,s application which have gone unrebutted, I grant this application. CMA 53/95 stands disposed of.
C.M.A. 5069/92 in Suit No. 729/87
9. This application is filed by the defendant No.2 namely Mst. Kulsoom Akhtar under Order XXXVII, Rule 7, C.P.C. seeking leave to compromise the suit as guardian ad litem of defendants Nos.9 to 11. Since I have held above that defendant No. ll has attained the age of majority and her application CMA‑53/95 stands granted, this application is treated as filed on behalf of defendants Nos.9 and 10 only. It is averred in this application that an amount of Rs.25 lacs out of Rs.75 lacs shall go to the minors, Rs.l million to defendant No. 9, Rs.l million to defendant No. 10 and Rs.5 lacs to defendant No. 11 which shall be deposited with the Nazir of this Court. None of the parties except plaintiff No.4 has objected to grant of this application. However, Mr. Atash Mirza, Advocate, who is representing the plaintiffs states at Bar that now the plaintiffs are riot opposing to the grant of this application. Mr. Chaudhry Iftikhar Ahmed, who is an Advocate of Supreme Court of Pakistan has filed his Certificate alongwith this application as provided under Order XXXII, Rule 7(1‑a), C.P.C. to the effect that the terms of the compromise as proposed are in the interest of the said minor defendants and that the same are not in any way adverse to the interest of abovesaid minors. To me this is the full compliance of the sub‑ rule (1)(a) to rule 7 of Order XXXII, C.P.C. as amended by this Court.
10. It is an admitted fact that deceased Rao Noor Sher Khan has left surviving some 16 legal heirs. Out of a total collection of cash amounting to Rs.7.1 million, the three minors are getting Rs.2.5 million, who are three in number and amount being paid to them is more than 1/3. Therefore, in so far the amount of cash is involved I am convinced that the interest of minors is fully-protected. Accordingly, this application is granted and the defendant No.2/guardian ad litem of the minors defendants Nos.9 and 10 is permitted to enter into compromise as mentioned above.
C.M.A. 7006/92 and C.M.A. 7766/9 in Suit No. 729/89
11. Both these applications are under Order XXIII, Rule 3, C.P.C. read with section 151, C.P.C. CMA‑7006/92 has been filed by defendants Nos.2, 9, 10, 11 and 13 while CMA‑7766/92 has been filed by the plaintiffs. The defendants in their application have relied upon the statement filed by them alongwith the plaintiffs before the learned Commissioner/Receiver which I have reproduced hereinabove, while the plaintiffs have in detail set out the terms of proposed compromise. During the course of hearing none of the parties have raised any objection to the proposed terms except Mr. Chaudhr)‑ Iftikhar, learned counsel for the defendants Nos.2 and for 9,10 and 11.
He objected on placing embargo/restrictions on disposal of the property known as ' White House' situated on Plot No.F‑95/7, Clifton, Karachi. In the interest of justice and to protect the interest of all the parties, I am inclined to grant both these applications on the terms and conditions stated in the end of said order.
C.M.A. 5304/92 in Suit No. 729/87
12. Learned counsel does not press this application in view of acceptance of the compromise, as such, this application is hereby dismissed as withdrawn.
C.M.A. 7005/92 in Suit No. 67/1989
13. This is an application under Order XXIII, Rule 1, C.P.C. filed by the defendant No. l namely Mst. Kulsoom Khan praying that the abovementioned suit be dismissed as withdrawn in view of the compromise/agreement dated 30‑7‑1992. It is one of the terms of compromise that both the subsequent suits namely Suit No.67/89 and Suit No.68/89 should be withdrawn, therefore, this application must succeed in view of the fact that the plaintiffs of both the suits have separately agreed for its withdrawal.
14. On merits of the proposed compromise, Mr. Atash Mirza has referred to the case of Lal Bux and another v. Abdul Rasool through Legal Heirs and another (1994 CLC 138) in support of his contention that the parties have willingly entered into the compromise which being a lawful contract is binding on all the parties. In this reported case, plaintiff filed a revision application before this Court being aggrieved by the order of the learned Additional District Judge, Hyderabad who dismissed his application filed against the order of the trial Court who declined to record the compromise. A learned Single Judge of this Court Mr. Abdul Rahim Kazi, J. (as he then was) after considering the case of Mirza Iqrar Beg v. Hannan (PLD 1979 Karachi 620), Mst. Sajida Sultana and another v. Messrs Eastern Traders and others (PLD 1971 Karachi 109), Sree Nalini Kanta Sen v. Babu Monaranjan Prasad Barman (PLD 1967 Dacca 155) and the case of Mst. Khurshid Begum v. Mir Muhammad & Co. (1990 CLC 1614), held that since the parties at no stage denied having entered into compromise or having put their signatures on the application; the Court held that the parties had entered into a lawful compromise. It was also held by another learned Judge of this Court in the case of Mirza Iqrar Beg (supra) that the whole purpose of Rule 3 to Order XXIII, C.P.C. will be lost if the Court is deprived of the powers to decide whether the agreement or the compromise pleaded by a party has been reached or not. A Division Bench of Dacca High Court in the case of Sree Nalini Kanta Sen v. Babu Monaranjan Prasad Barman (PLD 1967 Dacca 155) has observed as follows:‑‑‑
"It will be apparent from a plain reading of the above rule that,, once the conditions laid down in it are satisfied that is to say the' Court is satisfied that the compromise is lawful it is mandatory upon the Court to record the compromise and to pass a decree in accordance with the compromise. It is further to be seen that the compromise may be with regard to the whole of the suit or any part thereof but the wordings do not indicate that the Court has power to record a portion of the compromise only rejecting the rest. When it is a case of compromise the question of adjudication does not arise. The compromise may itself relate to a part of the subject‑matter of the suit when the duty of the Court would be to record the compromise if lawful with regard to that part only of the subject‑matter of the suit. The Court itself cannot pick and choose regarding the items forming the subject‑matter of the compromise. Therefore in this case it was open to the Court either to accept the compromise as a whole or to reject the same as a whole finding that five items of the compromise were unenforceable and unlawful ...."
15. This compromise has been filed on the basis of a compromise reached before the Receiver; all the parties are legal heirs/successors of the deceased. It is a family arrangement settled between the legal heirs as appears from the contents of the compromise application. I am of the view that once a family arrangement is reached amicably and without any duress or coercion between the parties, the same should not be disturbed even if it is unfair to one of the parties. I am fortified in my view by the case of Martin Cashin and others v. Peter J. Cashin (AIR 1938 PC 103). In one of the recent cases, our Supreme Court has held that Order XXIII, Rule 3, C.P.C. requires that the Court shall order compromise of suit to be recorded when it is proved to the satisfaction of the Court that a suit has been adjusted whole or in part by any lawful agreement or compromise or where the defendant satisfies the plaintiff in respect of whole or any part of the subject‑matter of the suit. It was further held by the Hon'ble Supreme Court in the case of Umar Bakhsh and 2 others v. Azim Khan and 12 others (1993 SCMR 374) that the compromise would be completed only when it is accepted by the Court and orders are passed by the Court as desired by the parties and that the Court would consider the document to be compromised when both parties signing agree and reiterate‑the contents before the Court and in case any of the parties resiles from it then such document may be called any thing but an agreement or compromise.
16. In the instant case, none of the parties have denied their signatures on the statement made before the Receiver or upon the compromise application. The controversy is about the imposition of a condition upon the defendant No.2 Mst. Kulsoom Akhtar from disposing of a property namely White House till the minors attained the age of majority: According to Mr. Choudhry Iftikhar, Advocate if such conditions are imposed then the terms of compromise are not acceptable to defendants Nos.2 and 13. As discussed earlier, I am of the considered view that it is a lawful agreement between the parties who have 8 admitted the same on more than several occasion. None of the party is entitled to resile from this agreement. I am of the view that while allowing the parties to compromise, the Courts, in the interest of justice and particularly in the interest of the minors are empowered to' impose any condition for welfare and in the interest of such minors. In the present case, the other legal heirs have withdrawn their claim on the properties cited at paras. (ii) and (iii) above and have also agreed for unconditional withdrawal of the other two suits. In such circumstances, I do not deem it proper to impose any condition on these two immovable properties.
17. In view of the aforesaid circumstances, I hereby grant both the applications for the compromise and decree the suit No.729/1987 with no order as to cost in the following terms:‑‑‑
(i) That the following three (3) immovable properties are excluded from the estate and properties of deceased Rao Noor Sher Khan. These properties shall remain and vest in the names of those persons whose names appear on the title documents of these properties. None of the other legal heirs shall have any right, interest or share in these properties:‑‑‑
(a) House bearing No.C‑1, Al‑Hilal Cooperative Society, Karachi measuring 1000 square yards.
(b) House No.F‑95/7, Clifton, Karachi.
(c) House No.F‑53/8, Clifton, Karachi.
(ii) That out of and from money lying with Nazir, the defendants Nos. 14(a) and 12 namely, Dr. Alam Sher Khan and Rao Mubarak Sher Khan shall be paid Rs.3,60,000 each (Rupees three lacs and sixty thousands only), and other legal heirs namely defendant No. 14(b),(c) and (d)(i) to (vi), namely, Mst. Batool Begum, Mst. Hashmat Ara Begum and Mst. Shahjehan Begum and others shall be paid Rs.1,80,000 each (Rupees one lac and eighty thousands only).
(iii) That defendant No.2, namely, Mst. Kulsoom Akhtar alias Mrs. Kulsoom Khan has merged her share with that of her three minor children from deceased Rao Noor Sher Khan for arriving at a lump sum amount of Rs.25,00,000 as mentioned above and .as such defendants Nos.2, 9, 10 and 11 shall have no further or additional claim on account of share or otherwise out of estate of deceased Rao Noor Sher Khan and Mst. Razia Begum.
(iv) That out of and from money lying with Nazir and made available by learned Administrator the defendants Nos .9 and 10, namely Rao Shahrukh Khan and Rao Khurram Khan shall be entitled to Rs.10,00,000 (Rupees ten lacs only) each and defendant No.ll, namely, Shehla Khan shall also be entitled to Rs.5.00,000 (Rupees five lacs only) in full and final settlement of their entire share of inheritance
(v) That in addition to the above share, the defendants Nos.'2, 9, 10 and 11 shall also get Rs.75,50,000 as agreed on 21‑4‑1994 before this Court. Rs.3,00,000 each will go to the defendants Nos.9 and 10 while Rs.1,50,000 will be paid to defendant No. 11.
(vi) That the parties shall also be entitled for interest/profits accrued on their respective shares till this date.
(vii) That the above two legal heirs i.e. defendants Nos.9 and 10 being minors their share in the above amounts shall be invested by the Nazir in some profitable scheme.
(viii) That the plaintiffs and defendants Nos.3 to 8, namely Rao Khalid Anwar Khan, Rao Shahid Anwar Khan, Dr. Tariq Anwar Khan, Rao Tahir Anwar Khan, Mrs. Gulsabah Saeed Khan, Mrs. Fauzia Karim Khan, Mrs. Shahina Kaleem Khan, Mrs. Rubina Javed Khan, Mrs. Samina Nadeem and Mrs. Uzma Adil Khan shall jointly inherit according to their respective shares with complete exclusion of all other legal heirs of deceased Rao Noor Sher Khan and Mst. Razia Begum the property being plot of land with building thereon bearing No.D‑104, measuring 1000 square yards, situated in Block‑4, KDA Scheme No. 16, Federal B Area, Karachi.
(ix) That all other estate inclusive of movable and immovable properties, tenancy and assets, and debts and securities inclusive of residual amount with Nazir or learned Administrator, shares and accounts, and partnership business, its assets, accounts and lockers whatever and wherever in the name of or for the benefit of deceased Rao Noor Sher Khan and his legal heirs and that of legal heirs of deceased Mst. Razia Begum shall vest jointly in plaintiffs Nos.3 and 4 as joint Administrators of estate of Rao Noor Sher Khan and Mst. Razia Begum.
(x) That plaintiffs Nos. 3 and 4 as Joint Administrators of estate of deceased Rao Noor Sher Khan and Mst. Razia Begum shall jointly collect, manage, administer and utilize the estate for the benefit of themselves and plaintiffs Nos. 1 and 2 and defendants Nos. 3 to 8 in accordance with their respective shares and in the best interest of the properties.
(xi) That it is declared that properties generally known as 44 or 44/1, Khayaban‑e‑Tanzeem, Messrs Rai Zada, Messrs Awane Bostan and Plot r No.FL‑19/15, Gulistan‑e‑Jauhar never belonged to deceased Rao Noor Sher Khan and similarly all movable properties and particularly Bank Accounts No.3900‑E in United Bank Limited, Clifton, Karachi in the name of plaintiff No.4 and No.1567 in Muslim Commercial Bank Limited, Clifton, Karachi in the name of defendant No.8 belonged to persons in those names the respective properties and accounts stand and/or are maintained and deceased nor any or his legal heirs nor of that of Mst. Razia Begum shall have any claim of whatsoever nature on such properties or accounts.
(xii) That the defendant No.l is declared to be the owner and in possession of property being plot of land with building thereon bearing No.C‑1, measuring 1000 square yards, situated in Al‑Hilal Cooperative Housing Society, Off University Road, Karachi.
(xiii) That in view of the above settlement and as agreed by the plaintiffs of Suits Nos.67/1989 and 68/1989 both these suits are dismissed as withdrawn with no order as to cost.
(xiv) Suit No.729/1987 stands decreed in terms of compromise as mentioned above with no order as to cost. Consequently, all applications as mentioned above are also disposed of.
A.A. /K.16/K Order accordingly.