1992 PLP 695 (MLD)

Issue Nos. 3 &

4. As under. A sum of Rs.90,000 (Rupees ninety thousand only) was received by the, defendant, Baidar Bakht, from the said Company. As stated in Exh.2, the list of the assets of the deceased. Issue No.6. In affirmative. Issue No.7. In negative. Issue No.8. In affirmative. Issue No.9. In negative. Issues Nos. 10 &

11. As under.

9. Before taking up the issues for discussion, it ma;! be stated that the plaintiff examined himself at Exh.5, and produced extract from the Register of Death issued by Karachi Metropolitan Coporation as Exh.5/1; Affidavit of one Mushtaq Ahmed as Exh.7/1; Declaration of Gift as Exh.5/2; Affidavit of Muhammad Hussain Butt as Exh.5/3. He also produced challan pertaining to payment of Water and Conservancy Charges for the year 1987‑88 which is also marked as Exh.5/3. Since two documents have been assigned the same Exhibit Number, the latter document i.e. the paid challan of Water & Conservancy Charges is renumbered as Exh.5/11. He also produced other receipts pertaining to payment of Water & Conservancy Charges and Property Tax as' Exhs. 5/4 to 5/9, and a notice issued by the Excise & Taxation Officer as Exh.5/10. Documents Exhs. 5/4 to 5/11 pertain to the property bearing No.III‑H/6/29, Goal Market, Nazimabad, Karachi. Plaintiff also examined p.W.2, Oudsia Khanum at Exh.6; P.W.3 Mushtaq Ahmed at Exh.7; and P.W.4, Abdul Malik at Exh.8. This witness produced photo copies of Allotment Order in respect of Plot NO.III‑E‑2, Nazimabad, Karcahi, as Exh.8/1; Possession Certificate of Property No.III‑H/6/29 as Exh.8/2; Allotment Order of the above property as Exh.8/3; and Transfer Deed as Exh.8/4. Exh.8/4 is a torn photo copy of the first page of the document between one Ghani Ahmed Khan and the deceased, Abdul Hameed Chughtai. Plaintiff also examined SA. Shahenshah, Assistant Director, K.DA., as Exh.9. The defendants examined Baidar Bakht Chughtai at Exh.10 and Abdul Samad Khan at Exh.11.

10. No issue was framed with regard to ornaments, cash and prize bonds, belonging to the deceased that were alleged to be in possession of the plaintiff. Even in evidence, the above assets of the deceased have not been mentioned by any of the parties. .

11. Following are the reasons for the above findings: Issue No.1. It is not disputed that the deceased had left behind the plaintiff and the defendants as his sons, daughter and widow, respectively. Issue No.2. The deceased has left behind the following properties and assets:‑‑ (1) The investment of the deceased in M/s. Taj Company Limited including the amount of Rs.90,000 (Rupees ninety thousand only) received by the defendant No.1, Baidar Bakht from the said Company. (2) The cash lying in PLS‑92‑9, Habib Bank Ltd., McLeod Road Branch, Karachi. (3) The amount lying in PLS Account No.268‑B in U.B.L., Nicol Road Branch, Karachi. (4) Plot No.III‑E‑2 situated in Commercial Area, Goal Market, Nazimabad, Karachi, with structure thereon. (5) Shop No.I1I‑E‑3, Nazimabad, with structure thereon. (6) Plot No.III/H/6/29 situated in Goal Market, Karachi, with structure thereon. (7) House No.35, Survey No.328, Maula Ram Compound, Malir City, Karachi. (8) The tenancy rights of the shop situated at Talpur Road, where the deceased used to carry on business in the name of Chughtai Typewriters Company. It is necessary to discuss here the ownership of the business that is being carried out in a rented shop in the name of Chughtai Typewriters Company. The parties have not produced any rent receipt with regard to tenancy rights of the shop in question. The plaintiff has claimed that he is the owner of the said business and has thereby indirectly claimed that he is the tenant of the said shop. It has come in evidence that deceased used to carry on the repairing work in the said shop in the name of Chughtai Typewriters Company. The plaintiff in his cross‑examination deposed as under:‑‑‑ ",My father used to carry out repairing work of typewriters. The name of his firm was Chughtai Typewriters Company. It is correct that I have been carrying on business at the same place. I have been assisting my father in typewriters repairs work for the past 40 years." From the above statement, the only inference possible is that the shop was taken on rent by the deceased, who used to do the work of repairing of typewriters therein. Since the tenancy rights are an inheritable asset, it is included in the assets of the deceased. So far as the other properties are concerned, they are discussed under the relevant Issues. Issues Nos. 3 &

4. Defendant, Baidar Bakht in his evidence stated that his ‑father had invested some money in Taj Company Limited for the benefit of his daughter, and in cross‑examination, he disclosed that he had taken Rs.90,000 (Rupees ninety thousand only) from Taj Company out of the money invested by his father. In the cross‑examination of the plaintiff, it was suggested by the learned Advocate of the defendants that investment made by the deceased in Taj Company Limited was gifted by him to Baidar Bakht during his lifetime. Thus, there is an obvious contradiction with regard to the claim raised by defendant, Baidar Bakht in this regard. The burden of proof was on defendant Baidar Bakht to establish that the above amount was gifted by the deceased to him or that it was invested for the benefit of his daughter, which he has failed to discharge. I accordingly hold that the investment made in Taj Company Limited was an asset of the deceased and is to be distributed accordingly amongst the heirs. The sum of Rs.90,000 (Rupees ninety thousand only) received by the defendant, Baidar Bakht, shall form part of the pool of the assets and properties of the deceased and so also any other amount payable by M/s. Taj Company Limited on account of the above investment and the profits thereof, if any, recoverable from the said Company. With regard to the investment in Monadina Electronics, the plaintiff has not given any evidence and so far as D.W.1, Baidar Bakht is concerned, he has deposed that no such investment was made by the deceased. It is, therefore, held that the deceased had not made any investment in Monadina Electronics. Issue No‑

5. The amount mentioned in Exh.2, is not disputed by the parties. The Issue is answered accordingly. Issue No.6. It is not disputed between the parties that the shops bearing Plot Nos. III‑E‑2 and III‑E‑3, situated in Commercial Area, Goal Market, Nazimabad, Karachi, belonged to the deceased and that they are in possession of defendant, Baidar Bakht. Issue No.7 It is the case of the plaintiff that property bearing Plot No.1l1‑H‑6/29 was gifted by the deceased to him in presence of two witnesses who had sighed Exh.5/2 also as attestation witnesses of the Declaration of Gift, said to have been executed by the deceased on 26‑7‑1981. The authenticity of Exh.5/2 has been challenged by the .defendants. The plaintiff did not examine any of the witnesses in whose presence the gift was allegedly made. He also did not bring any evidence on record to prove the signature of the deceased on Exh.5/2. He examined his wife, Qudsia Khanum and Mushtaq Ahmed in proof of the above gift. P.W.2, Qudsia Khanum who is the wife of the plaintiff deposed that his father‑in‑law used to live alongwith them in the above property and that the deceased had. gifted the said property to the plaintiff and also handed over documents relating to the gift to the plaintiff in her presence. However, this witness was neither shown Exh.5/2, nor she deposed that the gift was made by the deceased in her presence. Therefore, the mere assertion of this witness that the property was gifted by the deceased to the plaintiff cannot. be accepted as, a proof of the gift. So far as P.W.3, Mushtaq Ahmed is concerned, he had sworn an affidavit which was produced by the plaintiff as Exh.7/1, in which he has stated that the above property was gifted by the deceased to the plaintiff and the physical possession was given to the plaintiff on 26‑7‑1981. This affidavit was sworn by him on 4‑2‑1985. In his evidence, he deposed before the Court that the deceased was his uncle and that before proceeding for Haj, the deceased had giver, the said property to the plaintiff and ha also handed over certain documents to him in respect of the said property. In cross‑examination he stated that he had not signed the documents in respect of the said property that were handed over by the deceased to the plaintiff. He further stated that no one had signed the documents in his presence. He nonetheless stated that the documents were handed over to the plaintiff on 26‑7‑1981, but did not know the contents or the nature of the documents. He stated that he was also not aware of the contents of Exh.7/1. This witness did not state that the property was gifted by the deceased in his presence and disowned the contents of Exh.7/1 by showing his ignorance about the same. Although this witness stated that the documents were handed over by the deceased to the plaintiff on 26‑7‑1981 which in fact is the date of the execution of the alleged Declaration of Gift Exh.5/2, but this witness does not say that the said document was executed by the deceased in his presence. If it is assumed that the document was executed by the deceased on the same day before the arrival of this witness, there is no reason as to why the deceased would not hand over Exh.5/2 to the plaintiff immediately after its execution and to wait for the arrival of this witness for handing over the documents pertaining to the property in question including Exh.5/2. It is further noted that the Declaration of Gift is alleged to have been signed on 26‑7‑1981, before the Magistrate, First Class, Karachi (West), but the second page of the document 'shows that it was attested by a Notary Public on 25‑?‑1981 i.e. a day before the gift was made as in the document itself. It is also pertinent to note that Exh.5/2 is a typed document. On page 1; it is stated that the gift was made in presence of the witnesses on 26‑7‑1981 and page 2, which pertains to the acceptance of the gift, the physical possession is said to have been delivered to the plaintiff on 26‑7‑1981. At both the places the date and month have been entered in ink while the year, 1981, is typed. The date! 25‑7‑1981, has been written by the Notary Public. Therefore. the authenticity of the document is highly doubtful and cannot be accepted as proof of the alleged oral gift. Additionally, it is admitted that the deceased used to live alongwith the plaintiff on the ground floor of his property and defendant Baider Bakht used to live on the Ist floor. Under these circumstances, the question of delivery of possession also required detailed reference in the declaration of gift. It is not, the case of the plaintiff that on making the gift, the. deceased had asked his son, Baider Bakht to attorn the plaintiff as the owner of the property. The document is also absolutely silent about the joint possession of the property. Under these circumstances, it cannot be. said that the deceased had delivered the possession of the property to the plaintiff which is an important ingredient for valid gift. The plaintiff has, therefore, failed to establish that the property was gifted by the deceased to him. The issue is, therefore, answered in negative. Issue No.8. It is not disputed that House No.35, Survey No.328, situated in Mola Ram Compound, was owned by the deceased and is in possession of the widow of the deceased who is stepmother of the plaintiff and other two defendants. It is, therefore, held that the property is a part and parcel of the assets of the deceased. Issue No.9. The building situated in Sector 5‑C/1, bearing No.1/95, Nai Abadi, North Karachi, according to. the plaintiff belonged to the deceased. In evidence, he also made an oral assertion in this regard but did not produce any record. Defendant No.1, Baidar Bakht deposed that the said property was owned by him and the lease was also executed by the K.D.A. in his favour plaintiff had examined S.A. Shahenshah, Assistant Director, K.DA., and he also had brought the record pertaining to the aforesaid property. He deposed that the aforesaid plot was originally in the name of one Abdul Salam son of Saeed Khan and on 2-5-1978 this plot was transferred to defendant, Baidar Bakht Chughtai zand on 15‑4‑1984, lease was executed in his favour. He also stated that an agreement was made in respect of the above property between Abbdul Salam and Baidar Bakht Chughtai. It is, therefore, established that the said property did not blong to the deceased but to defendant Baidar Bakht. Issue No.10 Sons i.e. plaintiff and defendant No.1, have inherited shares of 14/40 each, defendant No.2, the daughter 7/40 and defendant No.3, the widow 5/40.

12. The above are the reasons for the following short order, dated 16‑9‑1991, whereby the suit was decreed as under:‑‑‑ "For the reasons to be recorded it is held that the following are the. assets left behind by the deceased Abdul Hamid Chughtai:‑‑ (1) "The investment of the deceased in M/s. Taj Company Limited including the amount of Rs.90,000 (Rupees ninety thousand only) received by .the defendant No.1, Baidar Bakht, from the said Company. (2) The cash lying in PIS 92‑9 Habib Bank Limited, McLeod Road Branch, Karachi. (3) The amount lying in PLS Account No.268‑B in U.B.L., Nicol Road Branch, Karachi. (4) Plot No.I1I‑E‑2 situated in Commercial Area, Goal Market, Nazimabad, Karachi, with structure thereon. (5) Shop No.111‑E‑3, Nazimabad, with structure thereon. (6) Plot No.111/H/6/29 situated in Goal Market, Karachi, with structure thereon. (7) House No.35, Survey No.328, Maula Ram Compound, Malir City, Karachi. (8) The shop situated at Talpur Road, where the deceased used to carry on business in the name of Chughtai Typewriter Company as .a tenant. There is no evidence with regard to investment of the deceased in Monadina Electronics. Plot No.1/95, Sector 5‑C‑I, Nai Abadi, Karachi, measuring 80 sq. yds., with structure thereon is owned by Baidar Bakht. The preliminary decree is accordingly passed in respect‑.of the aforesaid assets of the deceased. The Nazir is appointed as Commissioner to take over the properties and distribute the assets amongst the heirs of the deceased in accordance with Shariat. The parties to bear their own costs." AA./A‑1106/K Suit decreed.