1989 PLP 352 (CLC)

The defendants plea is that the disputed property was gifted to defendant No.l by Hissamuddin through an oral gift which was made on 30‑6‑1966 and confirmed by a declaration of gift dated 4‑9‑1966. After the gift was made an application was sent by late Hissamuddin to the Manager, House Building Finance Corporation stating that he has gifted away the said property to the defendant No.l on 30‑6‑1966 and given possession of the said house to her. He. had requested that the loan of the House Building Finance Corporation may be transferred in her name. The original letter has also been produced as Exh.18/5 but it does not bear any date nor it bears any date of receipt by the House Building Finance Corporation. Another application Exh.8/7 dated 13‑9‑1966 received by the House Building Finance Corporation on 17‑10‑1966 was filed by the defendant No.l for transfer of loan in her name on the basis of the gift deed. This was filed through Haji Mohammad Ishaque and has been signed .by A the defendant No.l. A guarantor s form signed by Haji Muhammad Ishaque Exh.18/8 was also submitted as required by the House Building, Finance Corporation. Another document relied upon by the defendant No.l is an application made by Muhammad Ishaque dated 3‑11‑1966 for transfer of loan in favour of defendant No.l. Exh.8/1 is the affidavit of defendant No.l stating about the gift and the names of the tenants. D.W.2 Noor Muhammad Assistant Manager House Building Finance Corporation has produced a chit which shows that Hissamuddin had visited the office on 24‑10‑1966 for scrutiny of the account. It also mentions that payment was received upto 1‑11 1966 and Rs.19,954.66 was due and payable. Relying on these documents it was contended by Mr. Merchant, the learned counsel for the defendant No.1 that as the gift has been made and accepted by the defendant No.l Hissamuddin had completely divested himself from the ownership of the property and could not subsequently sell it to any other person. Mr Akram Shaikh, the learned counsel for the plaintiff has contended that the gift was made merely to defraud the creditors and to save the property from the claim of Akhtari Khatoon who had filed a suit for recovery of Rs.9,000 against the deceased Hissamuddin. The learned counsel further contended that after the property was attached in Execution No.37/1967 (Suit No.101/1966) (Mst. Akhtari Khatoon v. Hissamuddin) the defendant No.l filed an application (Exh.12) dated 26‑3‑1968 praying that she had no objection to the execution of the decree and the balance amount left after satisfaction of the decree be paid to her for the maintenance of minor children. Again in Execution Application No.93/1968 (Suit No.101/1967) the defendant No.l filed an application under Order I, Rule 10, C.P.C. dated 15‑11‑1968 (Exh.14). In the application and affidavit she has stated that the minor children of Hissamuddin are also the co‑owners of .,the disputed property and they should be joined as party. Accordingly they were joined as party. In the order dated 5‑5‑1969 (Exh.7/38/1) it has been stated that on 1‑10‑1968 the defendant had filed an application under section 47, C.P.C. for stay of the execution of the decree on the ground that the disputed property has been transferred to the plaintiff in collusion to defraud the creditors and possession was given to her for a total consideration of Rs.42,000 although house was worth Rs.70,

000. It was also stated that Rs.15,000 have been received from the plaintiff and the defendant is taking action for setting aside the sale. The plaintiff also filed an application under Order XXI, Rule 58, C.P.C. pleading that the house has been sold to her for valuable consideration. The defendant No.l opposed this application on the ground that this house was gifted to her and confirmed in writing on 4‑9‑1966. The learned Civil Judge in his order dated 5‑5‑1969 Exh.ll noted that Suit No.101/1967 was decreed against Hisssamuddin for Rs.9,000 but against the defendant No.l it was dismissed. However, in that suit the defendant No.l had not pleaded gift made on 4‑9‑1966, and in view of the application and affidavits Exh s.13, 14 and 15 filed by her as stated above; her objection was dismissed. As regards plaintiff s objection it was held that the agreement of sale between the plaintiff and Hissamuddin was collusive, made after the judgment was passed in Suit No.101/1967, with a view to defeat the decree. The plaintiff s application was, therefore, dismissed. The plaintiff then filed Suit No.1402/1969 under Order XXI rule 103 C.P.C. which is still pending. She deposited the decretal amount in Court and obtained the release of the property. In that suit the defendant No.l filed an application under Order I, Rule 10 C.P.C. dated 12‑8‑1969 stating that as her minor children are the co‑owners of the disputed property they should be joined as a party. The learned counsel for the plaintiff has contended that as the learned Court has rejected the plea of gift to the defendant No.l, the said order is conclusive and binding and unless it is set aside it will remain operative. In this regard reference has been made to 80 IC 938, 41 IC 630, and P L D 1970 Pesh.

194. The defendant No. l filed application under section 47 in which objections in the nature of objection under Order XXI Rule 58 were raised and dismissed. As the defendants failed to file suit under Order 21, Rule 103, C.P.C. the order became conclusive. The main question for consideration is whether a gift was made by the deceased in favour of the defendant No.1 and whether by subsequent conduct of the defendant No.l she is estopped from pleading gift. The obvious and overt conduct of the defendant No.1 is that she made application before the Executing Court without pleading gift and declaring that she and her children are the co‑owners of the property. This representation was completely counter to the fact of gift. The defendant No :1 pleaded gift, but at a late stage which was not accepted by the learned trial Court. The defendant has not challenged this finding of the learned trial Court either in appeal or by way of suit under Order XXI, Rule 103, C.P.C. which was operative at that time. Another aspect of the case which has been emphasised by the learned counsel for the plaintiff is that the sale‑deed was executed by the deceased in the presence of defendant No.l and it bears her signature as a witness. The letter of authority Exh.7/3 in favour of Rashid Ahmad the husband of the plaintiff addressed to the Director Land and Estate K.D.A.. Karachi for the transfer of the house in favour of the plaintiff is also witnessed by the defendant No.l Besides this, Exhs.7/18,7/19, 7/20, 7/21 and 7/22 are the letters written by Hissamuddin to the tenants. that the property has been transferred to the plaintiff from 1‑10‑1987 and they should pay rent to Rashid Ahmad attorney of the plaintiff. These documents show that there was a transaction between the plaintiff and Hissamuddin Exh.7/2 is the receipt for payment of Rs.15,000 to Hissamuddin towards the sale consideration. The witness to the agreement namely Munawar Ahmad P.W.6 has testified the execution of the agreement by Hissamuddin and the plaintiff. He has further stated that Rs.15,0001 was paid and at the time of payment defendant No.l, Hissamuddin Bundu Dalal, the plaintiff and her husband were also present. He is an estate broker but no record was produced to establish this fact Bundu Khan stated that he had brought about the transaction and that Rs.15,.000 was paid to Hissamuddin and possession was given to[ the plaintiff. He also stated that all the four documents referred above were executed in his presence. He has denied the suggestion that the value of the property was Rs.70,000 and that the defendant No.l was not present at the time of execution of the agreement Rashid Ahmad. the husband of the plaintiff P.W.9 has corroborated all these facts and there does not seem to be any contradiction in their statement. He admitted that his sister, Zarina is married to Hassamuddin s brother, but they are not on visiting terms with the defendant, nor had any friendly relations with the deceased. These facts do corroborate and,prove the execution of the agreement. Mr. M.I. Merchant, the learned counsel for the defendants contended that the signature on these documents were obtained by misrepresentation by Hissamuddin as he had stated that these documents are required for the purpose of transfer of the property under the gift. Except the statement of the defendant No.l, no conclusive evidence has been produced to establish this fact. The agreement was executed on 29‑9‑1967 whereas the declaration of gift was made on 4‑9‑1966. Mr. Merchant the learned counsel has contended that fraud and mis‑representation is established by the fact that except the receipt all the documents executed at the time of the alleged sale have been signed by the defendant No.l as a witness. This shows that the receipt was kept away from defendant No.l. P.W. Bundu Khan has stated that the money was paid to Hissamuddin in notes of Rs.100 denomination which were handed over by him to the defendant No.l who had counted them at the time of execution of the receipt. Mere fact that her signature was not obtained on the receipt may not lead to the conclusion that the sale agreement was executed through mis‑representation or by fraud. The conduct of defendant No.l in making application in Court in execution proceeding shows that even if the gift was made it was not acted upon, otherwise the defendant No.l would not have filed application stating that the minor sons of Hissamuddin were co‑owners of the property. This fact has been stated twice in the affidavit and in the application and even she had gone to the extent of stating that the decree may be satisfied from the sale proceeds of the house but the interest of the minors be taken care of. Although in these proceedings a plea of gift has been raised at subsequent stage it has not been accepted by the learned trial Court. The defendant have not examined the witness who had signed on the declaration of gift. Admittedly, the house and shops were on rent, but no intimation was given to the tenants regarding gift in favour of the defendant No.l. The learned counsel for the defendant No.l has relied on the rent receipts Exhs.5/1 to 5/11 which have been signed by deceased Hissamuddin as for landlord of Mahtab Manzil . The learned counsel for the defendant No.l contended. that this shows that Hissamuddin was recovering the rent on behalf of the landlord of Mahtab Ma nzil which is the name of the disputed property. This mode of issuing the receipt does not lead to the presumption that he was acting for and on behalf of the defendant No.l. The defendants have not produced the counterfoils of the receipt to show that prior to sale the deceased was issuing receipts to the tenants differently. Nor any tenant has been examined to prove that at any time he had attorned to the defendant No.l. Mr. Merchant, the learned counsel for the defendant contended that the agreement between Hissamuddin and the plaintiff was collusive as it was made for saving the property from attachment. This contention cannot sustain the scrutiny because if the property had been gifted to the defendant No.l earlier there was no need to sell it subsequently to avoid the attachment. The question arises whether once a gift has been made can it be revoked. A gift made by a Muslim to his wife in not revocable ‑without her consent. In the present case the facts and circumstances are such that they lead to presumption that either the gift was not acted upon or that the gift was revoked with the consent of the defendant No.l. The evidence and facts have already been discussed above, but on pain of repetition it may be stated that the consent of the defendant No.l in selling the property by her husband which is manifested by her signatures on four documents executed at the time of sale and the applications and affidavits made by her in execution E proceedings stating that the property belongs to the children who are the co‑owners leads to the irresistible conclusion that even if the gift was in existence, the defendant No.l is estopped from challenging the sale. The defendant No.l did not object to the sale or handing over the possession to the plaintiff. Even if she was not aware of the sale, after the death of Hissamuddin she had not realised rent from the tenants nor paid any installment to the House Building Finance Corporation. It was due to such conduct of the defendant No.l that the plaintiff not only paid part of the sale consideration, she deposited the decretal amount for release of the property and paid instalment to the House Building Finance Corporation. The defendant No.l is, therefore, prohibited from proving any thing which contradict her declarations or acts to the prejudice of the plaintiff who relying upon them, has altered her position. In view of the above discussion, my finding is as follows:‑ Issue No.1 In the negative. Issue No.2. In the negative. Issue No.3. In the affirmative. Issue No.4. In the affirmative. Issue No.5 In view of Exhs.7/25, 26 27 the finding is in the affirmative. Issue No.6 In the affirmative. Issue No.7: One Akhtari Khatoon had filed Suit No.101 of 1967 against Hissamuddin for recovery of loan advanced to him. This suit was decreed on 31‑8‑1967 but its copy has not been produced. Mst. Akhtari Khatoon filed Exh.No.93/1968 and the house in dispute was attached. Mst. Ishrat Begum the plaintiff in this suit filed application under Order XXI, Rule 58, but it was dismissed. The plaintiff then filed Suit No.1402 of ‑1909. Her application for‑ grant of injunction was allowed by order dated 25‑10‑1969 (Exh.7/38/2) as she had deposited the decretal amount in Court. This order is an interlocutory order and will merge in the decree passed in the suit. Exh.11 is order passed in Exh.93/1968 in which the agreement of sale in favour of Ishrat Begum, the plaintiff has been held to be fictitious. This order was passed on the application filed to resist the attachment of the disputed house. Mst. Ishrat Begum has already filed Suit No.1402/1969. This order will, therefore, be subject to the decree passed in that suit. My finding is accordingly. Issues Nos. 8 and 9: The plaintiff had paid Rs.15,000 at the time of execution of agreement and after deducting the amount which she was to pay to the House Building Finance Corporation she was required to pay Rs.9,551 at the time of registration of sale‑deed. Although the plaintiff claims to have deposited Rs.9,664.50 in Exh.No. 93 of 1968, her Advocate has stated that if a decree for specific performance is passed the plaintiff will deposit Rs.9,551 in Court. In view of the finding in the aforesaid issue, the suit is decreed for specific performance of the agreement dated 29‑9‑1967 on the condition that the plaintiff shall deposit Rs.9,551 in Court on or before 7‑8‑1988. Within four weeks of the deposit of Rs.9,551 the defendants shall execute sale‑deed, cost of which shall be borne by the plaintiff. If the defendants fail iv execute the sale‑deed the Nazir shall execute the case on their behalf. After execution of the sale‑deed, Rs.9,551 shall be paid to the defendants. The parties to bear their own costs. M. Y. H./I‑59/K Suit decreed.