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.
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.
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