Mst. RAKSHINDA KANWAL Versus MUHAMMAD AMIL

ORDER

MUHAMMAD IQBAL KALHORO, J.--- Applicants are aggrieved by the consolidated judgment and decree dated 04.11.2011 passed by learned IV Additional District Judge Karachi, Central in Civil Appeals Nos. 9 and 10 stemming from the judgment and decree dated 15.12.2010 passed in two civil suits viz. Civil Suit No.682/2007 and 960/2007 filed by the parties against each other.

2. Civil Suit No.682/2007 was filed by Mst. Saeeda Begum, the mother in law of applicant No.1 Mst. Rakshinda Kanwal, for possession and mesne profits in respect of property bearing No. 8/38 Liaquatabad, Karachi claiming herself to be owner of the said property and seeking directions for Mst. Rakshinda Kanwal, the ex-wife of her late son Muhammad Alam, to vacate first floor of the said building, where she was residing as widow of her son, and to pay mesne profits till possession of the said premises was delivered. Civil Suit No. 960 was filed by Mst. Rakshanda Kanwal for declaration, possession, recovery and permanent injunction against the respondents, who were her in-laws. The said suit was, in addition to the same property as referred to above, in respect of shops Nos.38 and 53-A Haseena/Gole Cloth Market situated on plot No. 10-A, Group 1, Commercial Area, Liquabad Karachi. Her claim was that her late husband had purchased plot No.8/38 in the name of his mother Mst. Saeeda Begum and later on he from his own financial resources got 5 floor constructed on the same plot. In regard to shop No.38, her claim was that her late husband was its sole owner, and in shop No.53-A he was doing business in partnership with his brother Muhammad Aamir, defendant No.3. In the said suit, she sought declaration to the effect that she and her 4 children being legal heirs of her late husband were co-owners of property No.8/38, absolute owner of shop No.38 and co-owners in business of shop No.53-A. She also sought possession of 1st floor of the building on property No.8/38 in such capacity. Both the suits were disposed of by the consolidated judgment and decree dated 15.12.2010, the suit of applicants was decreed, whereas the suit of respondents was dismissed. The appeals, preferred against said judgment and decree, were allowed in the terms whereby the suit of the applicants (960/2007) was dismissed and the suit of respondents (682/2007) was allowed to the extent of possession. The applicants being dissatisfied with such judgment has filed instant revision application.

3. I have heard learned counsel and perused the record. Record reflects that Mst. Saeeda Begum had filed the suit against Mst. Rakshinda Kanwal on 20.8.2007 seeking possession of 1st floor of the building on property No.8/38 from her. Whereas, Mst. Rakshinda Kanwal filed her suit on 10.12.2007 and she also sought possession of 1st floor of the same building from the respondents, her in-laws. It is thus obvious that by the time Mst. Rakshinda Kanwal filed her suit, she was not in possession of the 1st floor of the same building, and the cause of action to the extent of possession of the said floor to Mst. Saeeda Begum was no more available to her. The factum of dispossession of the said floor from the applicants meanwhile is also borne out of the evidence of the parties. Learned counsel for the applicants in his arguments had laid much stress on the point that suit of the Mst. Saeeda Begum was invalid for want of power of attorney as no such power was filed by her attorney Muhammad Amil, who happens to be her husband, at the time of instituting the suit. And the power of attorney which was produced in the evidence was executed on 07.5.2008, much after the date of filing of the suit on 20.8.2007. This argument, in my view, cannot be given much importance simply because the suit of Mst. Saeeda Begum for possession of 1st floor of the building had, in effect, become infructuous the moment applicant No.1 filed the suit and in para No.12 thereof stated about her dispossession from the said floor on 07.10.2007. Thereafter obviously, possession and dispossession of Mst. Rakshinda Kanwal from the said floor had become an issue in the subsequent suit filed by her. Pendency of the suit filed by Mst. Saeeda Begum for possession had become irrelevant in view of such facts and circumstances. Regarding relief of mesne profits, the respondents do not appear much interested for its grant, as is apparent from the fact that they have not challenged its refusal.

4. The suit of Mst. Rakshinda Kanwal was based on the claim that her late husband had purchased property No.8/38 in the name of her mother Mst. Saeeda Begum and subsequently had provided finances for its construction out of his own resources. A reading of evidence and relevant documents, however, indicates that said property was purchased by Mst. Saeeda Begum in the year 1981, when her late son Muhammad Alam, the husband of applicant No.1, was only 14 years old. It is not clear how in his young age he was able to provide money for purchasing the property. Mst. Rakshinda Kanwal in her cross-examinations has deposed that her husband's paternal uncle who was issueless had adopted her husband and had provided financial assistance for purchase of property No.8/38. This plea is new to her pleadings as she has not asserted such facts either in her plaint or in her affidavit in evidence. And, notably, no evidence has been produced by her in support of such claim. Record does not show either that her claim that her husband from his own resources raised subsequent construction over the said property is corroborated by any document. She in her evidence has produced receipts of construction material at Exb.D/3 to D/ 14 in support of her claim. A perusal thereof would show that some of the receipts bear the name of her late husband and are issued in the year 1993, which is before her marriage with him in the year 1994, and therefore obviously she is not witness to such purchase. Possession of these receipts would not either establish that money for the construction material was paid by her husband. He admittedly was son of Mst. Saeeda Begum, the owner of the property and his physically purchasing the material as such was but normal and natural. Apart from that applicant No.1 has not been able to lead any other evidence to establish that construction over the property was raised by her husband with his own amount.

5. Applicant No.1/Mst. Rakshinda Kanwal has also contended in her plaint that her late husband was the sole and absolute owner of the business carried out in shop No.38 and was partner in the business being done in shop No.53-A. She has reiterated the same facts in her affidavit-in-evidence, and in poof thereof has produced at Exb.D/15 the assessment order in respect of shop No.53-A issued by Income Tax Department in the name of her late husband. Attorney of Mst. Saeeda Begum, the father-in-law of applicant No.1, in his cross-examination has admitted that his son was doing business of cloth in shop No.38, and with his brother Aamir in shop No.53-A. His contention however is that he had invested the amount in the business being carried out in the shops. Once he has made an admission that his late son, the husband of applicant No.1, was doing business in both the shops in the capacity as stated above, the burden was on him to prove that entire investment in both the shops was made by him. He has not produced any evidence in this regard. Even otherwise, assuming it to be so, it would not make him owner of all the profits in the said business. The Iqrarnama produced by him at Exb.P/10 to establish his claim is of no assistance to him, for the reasons that this document has not been proved in accordance with law. Neither the author of this document nor its witnesses have been examined by him to prove its execution. Even his other son namely Aamar who is said to be doing business with late husband of applicant No.1 and who has purportedly admitted therein ownership of his father over the stock-in-trade available in shop No.53, has not come forward to support its contents. His late son was born in the year 1966 and died in the year 2006 at the age of 40 years. Admittedly he belonged to the community which is generally known to involve its children in the affairs of business from their early age. Therefore, to assume that late husband of applicant No.1 died penniless and impecunious would be against the natural course of things and cannot be believed.

6. Notwithstanding the above, no figures regarding stock-in trade available in both the shops at the time of death of late husband of applicant No.1 on 15.7.2006 have been produced to assist the court to calculate them accordingly and pass order for its distribution among legal heirs as per their share. In absence thereof, however, the date of death of late husband of applicant No.1 i.e. 15.7.2006 can be treated as the cut-off date for calculating the stock-in-trade or its value in money terms available in both the shops, which can be verified from the account books, to which each legal heir of late husband of applicant No.1 would be entitled to. In shop No.38, the deceased was doing business alone; all his legal heirs, which would include his parents and children only as applicant No.1, his wife, after contracting second marriage is no more his legal heir, would be entitled to their respective shares in accordance with law. In shop No.53-A, it has come on record that the deceased was doing business with his brother namely Aamir. Although the pleadings do not suggest the share of each brother in the said shop, but going by principle of common wisdom. it is not hard to assume that both the brothers were holding equal share in the said shop and in that, Muhammad Alam, the late husband of applicant No.1 would be considered owner of 50% of stock-in-trade available in the said shop (or its proportionate value in money terms); therefore his legal heirs would be entitled to that much share according to their respective shares. While calculating the share of each legal heir and its distribution among them, the profits accrued, the expenditure incurred, the services rendered on the business after the death of late husband of applicant No.1 shall also be included, calculated and duly adjusted. In these terms, the issue No.7 that is "whether the defendants being legal heirs of deceased Muhammad Alam are the owners of business at Shop No.38, Gole Market? and co-owner of business at shop No.53-A Gole Market?" is replied and Suit No. 960 of 2007 filed by the applicants decreed.

Instant revision application is disposed of accordingly along with pending application.

HBT/R-9/Sindh Order accordingly.