Syed SHAHID HUSSAIN SHAH Versus Syed SAJID HUSSAIN SHAH

MAHMOOD AHMAD KHAN, J.--- This suit is for partition, possession, accounts, mesne profit and injunction filed by Syed Shahid Hussain Shah (since deceased, legal heirs impleaded being Syeda Nusrat Shahid-wife, Syed Sheraz Shahid-son, Syed Shariq Shahid-son, Syeda Shazia Shahid-daughter, Syed Zubair Shahid-son, Syed Naveed Shahid-son and Syeda Nazia Shahid and since filing of the suit the wife Syeda Nusrat Shahid also expired leaving behind the others as her legal heirs (already present on record) son of Late Syed Hussain Shah, against 1) Syed Sajid Hussain Shah, 2) Syed Samar Hussain Shah, 3) Syed Shabnam Khatoon, 4) Syeda Shaikila Khatoon, 5) Sayed Sabir Hussain Shah, 6) Mrs. Sajida Khatoon, 7) Mrs. Shaheen Khatoon, 8) Mrs. Shehnza Khatoon, 9) Mrs. Shama Khatoon all sons and daughter respectively of Late Syed Hussain Shah and 10) House Building Finance Corporation.

1. The case as made out in abbreviation with the relevant details is that the plaintiff claims that the property "Qasr-e-Nadir" situated on plot No.11-K, Block No.6, P.E.C.H.S. Karachi, measuring 1000 sq yards (hereinafter referred to as the said property) was seized and possessed by late Syed Hussain Shah for whom it is claimed by the plaintiff that the said owner gifted west wing of the said property to his wife Syeda Saeeda Khatoon by means of oral gift and also nominated her by intimating to the secretary of the Housing Society. It is also claimed that the said wife used to administer and look after the said property during her lifetime but after her death the defendants Nos.1 to 4 have illegally deprived the plaintiff and the other legal heirs.

It is also alleged in the plaint that the said property has two wings and is comprised of three floors. Each wing on the ground floor and first floor comprises of two rooms, drawing, dining and attached baths and other amenities while on the second floor there are temporary construction of one pacca room and one bath with tin sheet roofs and a kitchen. The plaintiff has been in possession of one wing on the ground floor while the other wing on second floor is occupied by Syed Sarwar Hussain defendant No.2. The west wing on the ground floor is occupied by defendants Nos. 1 and 4 and they are also in occupation of four servant quarters and garage on ground floor while the remaining portion have been let out to different tenants from time to time and it has been fetching rent about Rs. 5,500/- per month from the occupied Mr. Khalid and Mr. Akhter of NEPTHON Advertising. Two wings on the ground floor have also been let out throughout and the Defendants Nos. 2 and 4 have been collecting rent of about Rs.10,000/- per month from same. The said defendants have been appropriating the entire rents and advances from the said property exclusively to their use and they have neither been tendering accounts of the rents and profit collected .by them nor paying the due shares to the plaintiff and other shares. The telephone is in the name of the deceased functioning also is in use of the said defendants without the consent and permission of the plaintiff. It is also alleged that the defendants Nos.4 and 5 have no right, title and interest in the suit property as they are not real issues of Syed Hussain Shah and or Saeeda Khatoon and are the son or daughter of late Syed Khadim Hussain Shah, brother of the deceased and Ms. Maqbool Bano who is still alive and is residing at 173/4, Martin Quarters, Karachi. The said defendants are dis-honestly claiming share in the property of the deceased which is only available to the plaintiff and the defendants Nos.1, 2, 3, 6 to 9. It is further claimed by the plaintiff being a son of the deceased, he is entitled to 2/11 share. The plaintiff also claims for rendition of accounts of the rents and profits from the property. On 10-2-1992 the plaintiff jointly with defendants Nos. 6, 7, 8 and 9 addressed a letter to defendant No.1 for partition and share of the legal heirs. The plaintiff as such claims partition and possession along with mesne profit use and occupation of the west wings of the ground floor of the property exclusive to the other shares along with declaration that the defendants Nos. 4 and 5 are not entitled to share in inheritance of the properties of the deceased and has also prayed for partition of the subject property.

The defendants Nos.1 to 4 only filed their written statements wherein it is claimed that defendants Nos. 4 and 5 are also sons of late Syed Hussain Shah and that the said defendants Nos. 4 and 5 were never denied or disputed by late Syed Hussain Shah and his wife and continuously acknowledging being so. Reliance on documents were made and it is further alleged that late Syed Hussain Shah had created the WAQF-UL-AULAD in respect of the subject property and appointed himself as the first Mutawalli as such the subject property being a Waqf property not having absolute ownership and that the owner administered control and supervise as a Mutawalli only is available. It is also denied that the owner gifted the property to his wife and that the alleged declaration of gift is forged, fabricated and a set up document not conferring any right of ownership. It was however not denied that the said wife used to look after the entire property but it was alleged that the same was on the strength of Waqf deed in which the Waqf nominated her as the Mutawalli of the said property. It is claimed that the ownership in the said property was limited to the terms of said Waqf. It is also claimed that the plaintiff was in possession of entire top floor of the west wing exclusive with the other family members comprising of 4 rooms out of which 2 rooms are R.C. roofs and has all other amenities. It is further stated that defendants Nos. 1 and 4 are residing on the ground floor wherein defendant No.1 is married having wife and children. The occupation of the servant quarters was denied and it was further stated that the same was closed by cement block in the life time of the mother. It is further stated that the first floor of the west wing had been on rent but it never fetched Rs. 5,500/- per month as the same was fetching different rents at different times and presently the first floor of the east wing is fetching Rs. 2000/- only per month and the tenancy stood in the name of Akhter and not Khalid. As to the two wings on the first floor the amount as claimed was denied and aggregate of all the three portions was said to be in the sum of Rs. 11,000/- per month from March, 1992. The alleged mis-appropriation of rent, advances and profits was also denied along with the denial of rendering accounts and payment to the plaintiff and other defendants claimed to present in according to their shares is claimed. The use of the telephone was not denied, however it was stated that the same was with the consent of all the family members. The alleged mother of defendants Nos. 4 and 5 also specifically denied, however Mst. Maqbool Bano being alive and residing was not denied. The partition and sale of the subject property as such was resisted on the basis of the said Waqf and it was further stated that according to Waqf the plaintiff is entitled to 2/14 share. The receipt of letter dated 10-2-1992 was not denied however the same was denied to be entertained on the ground of Waqf along with the claim of the mesne profit and available sale of the subject property.

2. Following issues were framed in the matter on 9-8-1994. i. Whether late Syed Hussain Shah had created Waqf-ul-Aulad in respect of the property in suit? If so, what is the effect? ii. Whether the deceased had gifted west wing of the property in favour of his wife Syeda Saeeda Khatoon? iii. Whether the defendants Nos.4 and 5 are also the real son and daughter of late Syed Hussain Shah? If so, to what share, if any, they are entitled in the property in suit? iv. To what share, if any, are the parties entitled to in the property in suit? v. Whether the defendants Nos. 1 and 4 have been collecting rents and profits of the property in suit land are liable to render accounts? If so, to what extent? vi. What portion of the property has been in respective occupation of the parties and to what effect? vii. What are the respective shares of the parties in the property and its rents and profits? viii. Whether the plaintiff is entitled to partition of the property? ix. What should the decree be?

3. The parties lead there evidence wherein the plaintiff produced his affidavit-in-evidence as Exh. 2 and Exhibits 2/2 to 2/20, produced documents Exh.2/2 Declaration of Gift dated 29-8-1070, Ex. 2/3 Letter of nomination dated 25-7- 1970, Exh.2/4 Passport No. A 184487 dated 8-9-1956, Exh.2/5 Will by Syed Hussain Shah dated 3-2-1972, Exh.2/6 Affidavit by Syed Sarwar Hussain dated 7-9-1994, Exh.2/7 Photo copy of affidavit by Sarwar Hussain Shah, Exh.2/8 photo copy of affidavit by Sarwar Hussain dated 4-7-1996, Exh.2/9 Affidavit in Urdu by S. Sarwar Hussain dated 27-9-1994, Exh.2/10 Identity card by S. Sarwar Hussain dated 7-9-1994, Exh.2/11 Affidavit by Syeda Sajida Khatoon and Syed Shahanaz Khatoon dated 6-5-1992, Exh.2/12 Affidavit by Shama Khatoon (in Urdu) dated 18-5-1992, Exh.2/13 affidavit of Shahnaz Khatoon dated 25-1-1993, Exh.2/14 Heirship certificate dated 2-5-1981, Exh.2/15 Affidavit of Akhtar Hussain, Exh.2/16 Permanent permit dated 23-3-1950, Exh.2/17 postal receipt dated 18-2-1992, Exh. postal A/D dated 20-2-1992, Exh.2/19 photo copy of Death Certificate of S. Syeda Khatoon with Arabic dated 10-11-1906, 14-1-1993, Exh.2. Notice dated 10.2.1992, Exh.2/21 Nikahnama of Shahida Khatoon dated 18.12.1960, Exh.2/22 Invitation card dated 21-5-1972, Exh.2/23 passport No. AC 258581 of S. Sabir Hussain dated 15-11-1968, Exh.2/24 Letter in Urdu dated 22-6-1964, Exh.2/25 Letter in Urdu, Exh.2/6 letter in Urdu dated 2-8-1972, Exh.2/27 letter in Urdu dated 2-8-1972, Exh.2/28 will by Syed Hussain Shah dated 2-9 -1965, Exh.2/29-32 Admit cards etc, Exh.2/33 Kindend roll dated 1-6-1958, Exh.2/34 Kindend Roll dated 6-8-1968, Exh.2 Invitation card dated 18-1-1990, Exh.2/36 Photo copy of Matric Certificate dated 31-12-1966, Exh.2/37 photo copy of Nikahnama of S. Sabir Hussain, Exh.2/38 true copy, Exh.2/39 Attested copy of Certificate of S. Sabir Hussain dated 21-12-1965, Exh.2/40 True copy of Certificate of B.A by S. Sabir Hussain dated 8-6-1978, Exh.2/41 Rent agreement of 1980, Exh.2/4 Rent agreement dated 5-4-1984, Exh.2/43 Photo copy of will by Syed Hussain Shah dated 13-8-1978, Exh.2/44 Will by S. Saeeda Khatoon dated 10-3-1985, Exh.2/45 Special Power of Attorney, Exh.2/46 Special Power of Attorney by S. Saeeda Khatoon dated 8-4-1984, Exh.2/47 Special Power of Attorney dated 2-7-1978, Exh.2/48 photo copy of I/Gen P/A by four sisters dated 4-3-1992, Exh.2/49 Special P/A by four sisters dated 13-10-1994, Exh.2/50 Signature on the photo copy of Gen. P/A by S. Khadim Hussain, Exh.2/51 Affidavit by S. Khadim Hussain dated 8-10-1983, Exh.2/52 Letter in Urdu (photo copy) dated 5-9-1996, Exh.2/53 Affidavit in Urdu Aqiba Khatoon (in Urdu) dated 2-10-1993, Exh.2/54 Reply to notice dated 27-11-1999, Exh.2/55 Notice in Urdu dated 27-11-1999, Exh.2/56 Statement of Fixed deposits, Exh.2/57 Draft will in Urdu (22 sheets). Along with evidence of one Akhtar Hussain as Exh.3/1.

The defendant No.1 produced his evidence. He produced documents Exhs.4/2 to 4/11 and also referred to Exhs. 2/11 to 2/57 already produced by the plaintiff. All the witnesses were cross-examined also.

By the order dated 22-1-2002 it was ordered that the documents Exhs.2/5 to 2/45 and 2/51 are not relied upon by the plaintiff and by the order dated 20.5.2002 on the statement of learned counsel for the plaintiff that the plaintiff will not rely upon the disputed documents viz. Exhs.2/5, 2/45 and 2/51 and in case of reliance the defendant No.1 will be entitled to seek assistance of the Court to compare signature on admitted documents with the disputed signature or reference to the hand writing expert.

4. Learned counsel for the parties have preferred and relied upon written arguments wherein the learned counsel for the plaintiff has reiterated the stand taken in the plaint, with the only exception that in case this Court comes to a conclusion that the defendants Nos.4 and 5 are the children of the deceased owner of the property distributed among them will also be available. In support of his contentions reliance is placed upon some portions of the evidence.

On the other hand the leaned counsel for the defendants has reiterated the position taken in the written statement with the basic stand that the subject property being a waqf cannot be disturbed and in this regard apart from the evidence has relied upon the following;

In support of his contentions as to waqf 1992 CLC page 2054, PLD 1976 Lahore page 1221 (DB.), PLD 1949 PC (sic.), Mohammadan Validation Act 1930 Sec 3, AIR 1920 PC page 87, AIR 1970 SC page 1035, 1920 Indian Case 991 Bombay, 88 Indian Case 167 (DB. of 1925 Rangoon), 216 Indian Cases 143 DB. of 1945 Calcutta, 1921 Calcutta 477 DB, PLD 1956 (W.P.) Lahore page 264, 1989 MLD page 3795 Karachi, 1992 CLC page 2054, PLD 1967 Lahore page 1221 (DB).

For admissibility of documents and in respect to the validity of non- registered documents PLD 1977 Karachi 285, 1988 CLC 2228, PLD 1964 (W.P.) Karachi page 116 and AIR 1961 Rajistan,(sic.)

For the element of legitimacy and acknowledgment Mohammadan Law Chapter XVII, sections 343, 345 and 346. Qanun-e-Shahadat, Art. 46(5 and 6), 1980 CLC page 1724, 1985 CLC page 2737 also 1991 CLC page 662, 1980 SCMR page 340 and 2002 SCMR page 1335, Articles 46 and 64 and PLD 1976 SC page 767, 2000 YLR page 1669, 1990 MLD page 355.

5. Having heard/gone through the arguments/synopsis as filed by the learned counsel for the plaintiff and the defendants and having examined the available material on record, in my humble understanding as the matter has come to this final stage the contestation between the parties originate and is having contestations for the law and facts which require the same being limited accordingly, as such under the available powers the issues are recast as under, thereafter the findings and discussion is made thereto;

1. Whether the subject property is amenable to partition in law and in fact?

2. Whether the defendants Nos.4 and 5 are also the real son and daughter of late Syed Hussain Shah?

3. What should the decree be?

Findings.

Issue No.1 Affirmative

Issue No.2 Affirmative

Issue No.3 Suit decreed, preliminary decree for sale of sell the subject property/accounts.

Issue No.1. Whether the subject property is amenable to partition in law and in fact?

This issue as far as the law is concerned arises from the concept of the parties that creation of wakf (as alleged) restricts the same, un-fortunately this a misconception of law as it has already been held in AIR 1940 Privy Council page 116, the case of Mosque known as Masjid Shahid Ganj and others v. Shiromani Gurdwar Parbandhik Committee, Amiritsar and another wherein the relevant interpretation is discussed: Muhammadan Law - Rule that wakf property ceases to be under human ownership applies even if wakf is wakf-alal-aulad - Result of rule stated -- The rule of Hanfi law that wakf property is taken to have ceased to be held in human ownership is applied to all such property even if the wakf be a wakf-alal-aulad or wakf for the benefit of descendants. The result of the rule is not that the property cannot, in any circumstances, be alienated but that it can only be alienated for proper purposes and save as provided by the terms of the endowment with the leave of the Court. In some circumstances it can even be taken in execution. (the underlining made by me for clarification).

In my humble understanding in this matter without going into the question of whether there was/is a wakf present in the matter the fact is present before this court that the parties are unable to successfully deal with the subject property in according with the wish of the owner and the resulting acquisition of trust of the beneficiaries is absent, even otherwise prima-face the return/benefit obtained not qualifying to a sense of reasonability. The said property as such not restricted by law is amenable to partition, further support to this is even the pendency of the matter speaking for itself.

In the matter no one can say that a reasonable lest alone best possible benefit is being obtained let alone being given to the legal heirs/descendants. The subject property as such being held to be open/amenable to partition in the present circumstances the required forthcoming proceedings of the inquiry as to division in meter and bounds need not be indulged into as by now the mere number of those entitled renders such exercise meaning less. The said property as such is liable to be sold and proceeds thereof be distributed among the legal heirs of the owner in proportion prescribed by sharia coming to them from there predecessor/s in interest as the case may be accordingly. This issue is decided in affirmative.

Issue No. 2. Whether the defendants Nos.4 and 5 are also the own son and daughter of late Syed Hussain Shah?

This issue in view of the evidence that has come on record whereby the said defendants have been so acknowledged especially by Late Syed Hussain Shah this issue is determined in affirmative.

Issue No.3. What should the decree be?

In view of the above discussion and findings, it is ordered that preliminary decree for sale through the Nazir/Official Assignee of this Court be drawn up for the subject property i.e. namely "Qasr-e-Nadir" situated on plot No.11-E, Block No.6, P.E.C.H.S. Karachi, measuring 1000 sq yards, forthwith. To be sold by way of public auction in accordance with the rules, all the legal heirs shall be entitled to match the highest bid coming forward and/or to improve the same, for which however no specific notice shall be required.

In view of the collection of rent the parties receiving the same are also liable to account for the amounts received and its distribution to the other legal heirs. The same be submitted forthwith and/or at best within 30 days from the date of this order with the Nazir of this Court.

In view of the questions raised and common misconception along with the benefit of the parties secured by appreciation of the value/price of the property, the parties shall bear their own costs.

Let such decree be drawn.

HBT/N-19/Sindh Suit decree