Syed MINHAJUDDIN vs Syed BELEIGHUDDIN through Legal Heirs and 10

WALI MUHAMMAD KHAN, J.---Syed Minhaj-Uddin, appellant herein, through leave of the Court, calls in question the judgment dated 23-7-1988 passed by a learned Division Bench of the Lahore High Court in R.FA. No, 103/70, whereby his appeal against the judgment of the Civil Judge dated 21- 7-1970 dismissing his suit for possession of 63/336 share through partition of the property inherited by him from Khan Sahib Syed Aziz-Uddin and for rendition of the accounts of the property was dismissed. The operative part of the leave granting order is reproduced below:- "We have heard the learned counsel for the petitioner at some length. Thereafter on his request having summoned the original record, are of the view that there are many such points in this case which require examination. Learned Judge in the High Court did not deal with (even) those points which were left by the learned trial Judge to be dealt with by the High Court in appeal because in an earlier revisional order it had already been held that those points might be dealt with and decided by the appellate Court.

Not only this it needs examination whether, in the facts and circumstances of this case the deceased shall be deemed to have freely executed the documents relied upon from the respondents side and he was not under any coercion of general or particular nature--this would include also the examination of the condition in which he was kept by the family. And whether, in the said condition in the background of the case and the circumstances in which he was made to live particularly at a meagre 'Guzaraof Rs,50 could he at all be treated as free agent and could the documents concerned be treated as the result of his own volition. Another important question arises: whether, the so-called alienation was Tamleek/gift (if they are different) a relinquishment/surrender or any other form of transfer. In this context the judgment rendered by this Court recently in the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 Supreme Court 1) might be attracted. And another judgment in the case of Abdul Ghafoor and others v. Muhammad Shafi and others (PLD 1985 Supreme Court 407) might also be attracted in order to examine: whether, notwithstanding the then prevailing customary law of inheritance, Punjab Muslim Personal Law (Shariat) Act (Amendment) Ordinance XIII of 1983 which has been held to be retrospective, the property of the deceased could be dealt with and transferred only in accordance with the Muslim Law of alienation.

The question regarding gift in favour of the plaintiff's side by defendants No,1 to 4 of one house; namely, 147-A also requires further examination with a view to see; Whether, there was acceptance thereafter? Amongst others a major question would also be examined? Whether, on admitted facts with regard to collection of rents by the owners for long time, the alienation, if it was a gift by him, was with the transfer of the possession? If it was not transferred despite being capable of being transferred what is the effect on the present litigation? Many other similar questions would require examination. Thus we grant open leave to appeal in this case. "

We have heard Mr. M.A. Khadim, Advocate, for the appellant; Ch. Hamiduddin, Senior Advocate, for respondent 1 (a-b); Qureshi M. Hafeez, Advocate, for respondent-12; and have perused the record of the case.

The facts of the case have been enumerated in the leave granting order as well as the judgments of the lower forums and need not be reiterated. On the date fixed viz., 12-1-1993 the learned counsel for the parties argued the matter at length but ultimately agreed that the entire property of their predecessor, namely, Syed Aziz-Uddin be put in a pool as on May, 1951, the date when alleged gift as family settlement was made and divided amongst his heirs applying Shariat Law in 1952, which are as follows:- 1.Mst. Hashmi Begum widow 1/16 2.Mst. Sardar Begum widow 1/16 3.Syed Minhajuddin son 2/16 of 7/8 4.Syed Baleeghud Din son 2/16 of 7/8 5.Syed Muzaffar-ud-Din son 2/16 of 7/8

6. Syed Muiz-ud-Din son 2/16 of 7/8

7. Syed Saleem-ud-Din son 2/16 of 7/8

8. Mst. Asghari Begum daughter 1/16 of 7/8

9. Mst. Akhtari Begum daughter 1/16 of 7/8 10.Mst. Umatul Mughani daughter 1/16 of 7/8 11.Mst. Umatul Qadeer daughter 1/16 of 7/8 12.Mst. Umatul Rauf daughter 1/16 of 7/8 13.Mst. Tanveer Ara Begum daughter 1/16 of 7/8 They left the question of debt of the Custodian to be dealt with separately by the Court. They sought time for the mutual amicable division of the property on the spot to finally settle the entire dispute. The judgment in the case was reserved and they were directed to effect partition of the property between them by metes and bounds through the assistance and active participation of their learned counsel.

They have submitted a detailed report duly signed by their counsel showing the detail of the joint property and the manner in which they effected partition thereof by metes and bounds which report shall be deemed to be part of the judgment and the decree of this Court, and each page thereof has been signed by the author Judge. The parties to whom specific area has been allotted for the partition according to the report are declared exclusive owners thereof.

As regards the debt of the Custodian, in view of the mutual settlement of the long-drawn dispute between the heirs of Syed Aziz-Uddin, the last full owner according to the Muslim Law of Inheritance, we, in the exercise of inherent powers under Order XXXIII, rule 6 of the Supreme Court Rules, waive the debt of the Custodian. The appeal is disposed of in the above terms.