PLD 1988 Lahore 699 (PLP)

ABAID ULLAH KHAN, J.‑‑ This is plaintiffs, appeal against the judgment and decree of the learned Civil Judge, Lahore, dated the 21st. July,. 1970, dismissing the suit for possession through partition of 63/336th snare in the immovable property in dispute comprising of four Havelis bearing Nos.115‑A, 115‑B, 140‑A, 150‑A and three houses having Nos.146‑A, 147‑A and 149‑A, situate inside Taxali Gate, Lahore, and for rendition of accounts of the income of the property. The following pedigree table will help understand the facts of the case and respective contentions of the contesting parties. Khan Sahib Syed Muhammad Aziz‑ud‑Din Mst. Jahan Ara Begum Syeda Hashmi Besum (died issueless in 1909) (defendant 5) Mst. Sakina Begurr Mst. Sardar Begurn (died in 1902) (defendant 11) Syed Minh‑‑j‑ud. Din (plaintiff 1) Syed Tanvir Ara Begum (plaintiff 2) Syed Saleem‑ud-Din Mst. Umat-ul-Qadeer (defendant 7) (defendant 9) Syed Moiz‑ud‑Din Mst. Umat‑ur‑Rauf Mst. Umat-ul-Ghani (defendant 6) (defendant 8) (defendant 10) Syed Baleigh‑ud‑ Syed Muzaffar‑ud‑Din Syeda Asghari Begum Syeda Akhtari Begum Din (defendant 1 (defendant 2) (defendant 3) (defendant 4) Khan Sahib Syed Muhammad Aziz‑ud‑Din son of Khan Bahadur Shams‑ul‑Ulema Syed Muhammad Latif, who retired as Deputy Superintendent of Police and expired on the lst May, 1953, at the age of about 80 years, was originally the owner of the entire immovable property in question. Syed Baleigh‑ud‑Din (defendant No.1), Syed Muzaffar‑ud‑Din (defendant No.2) are his sons and Syeda Asghari Begum (defendant No.3) and Syeda Akhtari Begum (defendant 4) his daughters from his first wife, Mst. Sakina Begum, who died in 1902. He contracted second marriage with Mst. Jahan Ara Begum who died issueless in 1909. The same year he married Syeda Hashmi Begum (defendant No.5) who bore him Syed Moiz‑ud‑Din (defendant No.6), Syed Saleem‑ud‑Din (defendant No.7), Mst. Umat‑ur‑Rauf (defendant No.8), Mst. Umaat‑ul‑Qadeer (defendant No.9) and Mst. Umat‑ul‑Ghani (defendant No.10). He went in for marriage for the fourth time with Mst. Sardar Begum (defendant No.11) in 1937. Syed Minhaj‑ud‑Din (plaintiff No.1) is the son and Syeda Tanvir Ara Begum (plaintiff No.2) daughter of Khan Sahib Syed Muhammad Aziz‑ud‑Din and Mst. Sardar Begum.

2. According to the plaintiffs the various Havelis and houses in dispute left by their father were jointly owned by the parties. They averred that they were in possession of the house No.147‑A and also in possession of house No.149‑A through their tenants. They claimed to be in possession of a portion of House No.150‑B through a tenant. They were minors when their father died. They complained that though they had repeatedly asked the defendants to separate their share of the property through partition and make over its possession to them as well as to share the income of the property the defendants had refused to oblige them and had instead told them that Khan Sahib Syed Muhammad Aziz‑ud‑Din had during his lifetime transferred the entire property to them. Disputing the correctness of the defendants' assertion in this behalf the plaintiffs contended that their father had not voluntarily executed any document alienating the property in the defendants' favour and that heart trouble and diabetes, from which he had been suffering for quite long, had adversely affected his mental faculties and taking undue advantage of the same the defendants might have through misrepresentation and undue influence got executed some documents of transfer of property in their favour in 1934. They maintained that despite the alleged execution of such documents their father continued to remain in possession of the property and that the defendants could not secure its possession till 1952 and by that time Khan Sahib Syed Muhammad Aziz‑ud‑Din had become owner of the property through adverse possession.

3. The contesting defendants 1 to 4 came out with a different story. They said that Khan Sahib Syed Muha, mad Aziz‑ud‑Din was not owner of any property when he died, that he had alienated the property to defendants 1 to 10 before he had married defendant 11 and before the plaintiffs were born. They contended that thereafter defendants 5 to 10 had sold them their share of the property and in that way they had become owners of the entire property of their father. They explained that they had mortgaged the property with Lala Bolaqi Mal & Son, money lending firm of Gumti Bazar, Lahore, for Rs.37,000 and out of the mortgage money they had paid sale consideration to defendants 5 to 10 in respect of their share and some amount for liquidating the debt which their father had incurred. They maintained that they had gifted House No.147‑A to the plaintiffs and defendant 11 in lieu of maintenance and dower debt of defendant

11. They gave a lie to the plaintiffs' allegations that Khan Sahib Syed Muhammad Aziz‑ud‑Din had not alienated the property 'in their favour voluntarily. They took exception to the correctness of the value of the cause for purposes of court‑fee and jurisdiction and pleaded the bar of limitation.

4. Defendants 5, 6 and 11 confessed judgment. Defendants 7, 8, 9 and 10 did not choose to enter appearance; they were proceeded against ex parte.

5. The learned civil Judge seized with the trial of the suit came to the conclusion that Khan Sahib Syed Muhammad Aziz‑ud‑Din w left with no right or interest in the property before he died on that barring House No.147‑A, which had been gifted by defendants 1 to 4 to the plaintiffs and their mother, defendant 11, during the lifetime of Khan Sahib Syed Muhammad Aziz‑ud‑Din, the property in dispute belonged to defendants 2 to

4. In the absence of any evidence the learned Judge could not help recording the finding that no misrepresentation had been made to or undue influence exercised upon their father by the defendants. The plaintiffs did not produce any member of the medical profession to say a word touching his mental infirmity or weakness. He formed the view that since the suit had been instituted by the plaintiffs after more than three years of their attaining majority it was time‑barred which, if the property were to be held to be jointly owned by the parties, the learned counsel for the parties conceded, is not sustainable The suit was accordingly dismissed.

6. In appeal the learned counsel for the contesting parties confined themselves to the resolution of the crucial question whether Khan Sahib Syed Muhammad Aziz‑ud‑Din was the owner of the property in dispute when he died or that defendants I to 4 had acquired during his lifetime exclusive ownership of the property, with the exception of House No. 147‑A which they said they had given over to the plaintiffs and defendant

11. They did not touch the alleged weakening of the mental faculties of Syed Muhammad Aziz‑ud‑Din or exercising of any undue influence upon or making of misrepresentation to him by the defendants.

7. It would be advantageous to narrate and comment upon the events and circumstances touching various alienation of the property in dispute in chronological order. On the 23rd June, 1934, Syed Muhammad Aziz‑ud‑Din executed a Tamliknama, Exh.D.W.4/2 (which was registered on the 29th June, 1934), whereby he gave away his entire immovable property, of which he was owner at that moment, to his wife. Mst. Syeda Hashmi Begum (defendant 5) and two of his sons from her, namely, Syed Moiz‑ud‑Din (defendant 6) and Syed Saleem‑ud‑Din (defendant 7). In Exh.D.1;.4/2 mention was'made that Syed Muhammad Aziz‑ud‑Din had already given to Mst. Syeda Hashmi Begum (defendant 5) in lieu of her dower a house by means of a registered deed dated the 5th April, 1928. Exh.D.W.14/1 is the copy of the Dastbardari Nama in respect of dower executed by defendant 5 on the 4th April, 1928, and registered on the 17th April, 1928, setting out the details of the house which had been given by Syed Muhammad Aziz‑ud‑Din to defendant 5 in lieu of her dower amount of Rs.30.000 and of which she said she had become full owner and was in possession thereof. However, on the 20th August, 1934, by means of registered document, whose copy is Exh.D.W.4, he cancelled the Tamliknama Exh.D.W.4/2 of the i3rd June, 1934. Thereupon, Mst. Syeda Hashmi Beguin (defendant 5) instituted against him Suit No.59 of 1934 on the 28th August, 1934, impugning the validity of the cancellation of Tmaliknama and for declaration of her right of ownership over the property which had been given to her. A similar suit (No.60 of 1934) was brought by Syed Moiz‑ud‑Din (defendant No.6) and Syed Saleem‑ud‑Din (defendant 7). The suits ended in a compromise on the 19th November, 1934; the Tamliknama (Exh.D.W.4/2 of the 23rd June, 1934) was cancelled and the property which had been given to defendants 5 to 7 was distributed among the then living wife and children of Syed Muhammad Aziz‑ud‑Din, namely, defendants 1 to 10, according to Sharai shares. Defendant 5 got 1/8th share, defendants 2, 3, 6 and 7 got 14/104th each and defendants 3, 4, 6 to 10 were given 7/104th each. Defendants 1 to 10 were declared to be owners of their respective shares. Syed Muhammad Aziz‑ud‑Din was allowed to reside in a portion of the house and was given maintenance allowance of Rs.50 per mensem. The contents of the compromise (copies Exhs. D.W.4/3 and D.W.4/5) filed in the Court and on basis of which the suits were decreed (copy of the decree Exh.D.W.4/4) are reproduced below:‑

8. Lala bolaqi Mal & Son and B. K. Sood of Lahore, whom Syed Muhammad Aziz‑ud‑Din owed a debt of Rs.22,000 instituted suit (copy of the plaint Exh.D.W.3/1) on the 23rd February, 1935, against defendants I to 10 and their father contending that the above referred to compromise and decrees passed in the suits brought by defendants 5, 6 and 7 were aimed at impeding the recovery of their debts and as such were void and ineffective. Defendants. 1 to 4 took upon themselves, thereby relieving defendants 5 to 10 of the liability of clearing the debts of their father. Defendants 5 to 10 conveyed their share of the property which had been given to them as a result of the compromise of the 19th November, 1934, alongwith the one and a half‑storeyed Haveli known as Pathanwali, which had been given to defendant 5 by Syed Muhammad Aziz‑ud‑Din in lieu of her dower and of which she was the owner, to defendants I to 4 for Rs.20,800 which amount was paid to 'defendants 5 to

10. Defendants 1 to 4 undertook to get redeemed the mortgage of Rs.3,000 with which the Haveli Pathanawali was burdened. This transaction was incorporated in the sale‑deed (copy Exh.D.1) executed by the defendants on the 20th October, 1936, and registered on the 4th November, 1936. The same day, that is, on the 20th October, 1936, defendants 1 to 4 executed mortgage deed, which was registered on the 4th November, 1936, mortgaging the property in dispute with Lala Bolaqi Mal & Son for Rs.37,000 which sum they received. The outstanding debt of Lala Bolaqi Mal & Son and B.K. Sood was paid out. Thereafter, Lala Bolaqi Mal & Son and B.K. Sood moved application (copy Exh.P.W.3/2) before the Court where their suit was pending that the parties had effected compromise in the following manner. Defendants 5 to 10 had sold away their share in the property in dispute to defendants 1 to 4 who had accepted the liability of payment of their (plaintiffs in that suit) debt, that defendant 1 to 4 had executed a mortgage deed for Rs.37,000 in favour of plaintiff 1 in that suit and that the debt of the plaintiffs in that suit had been liquidated. In the circumstances they withdrew from the suit which was consequently dismissed.

9. All the above events took place before Syed Muhammad Aziz‑ud‑Din married Mst. Sardar Begum (defendant 11). Defendant 5 transferred by sale the house which she had obtained from her husband in lieu of dower in April, 1928, as well as the share in the property which had been given to her as a result of compromise of the 19th November, 1934, to defendants 1 to

4. Defendants 6 to 10 sold their share of the property they had got by virtue of the said compromise to defendants I to

4. Thus, defendants 1 to 4 became. exclusive owners of the entire immovable property of their father.

10. At the fag‑end of his life Syed Muhammad Aziz‑ud‑Din though of providing the plaintiffs and defendant 11 with a place of their own to live in and of securing financial assistance for them after his death. He prevailed upon defendants 1 to 4 to give House No.147‑A to the plaintiffs and defendant 11 and to agree to pay them maintenance allowance after he was no longer. in this world. Defendants 1 to 4 obliged him. They, executed on the 27th May, 1952, the deed of gift whereby they gifted away House No.147‑A in dispute to their step‑mother, Mst. Sardar Begum (defendant 11), step‑brother, Syed Minhaj‑ud‑Din (plaintiff 1), and step‑sister, Syeda Tanvir Ara B0gum (plaintiff 2). They also executed deed (copy Exh. D.W.4/33) undertakng to pay after the death of Syed Muhammad Aziz‑ud‑Din monthly maintenance allowance of Rs.50 to defendant 5 till her life or remarriage, of Rs.25 to Syed Minhaj‑ud‑Din (plaintiff 1) till he passed B.A. , or till the age of 25 years and at the rate of Rs. 25 to Syeda Tanvir Ara Begum (plaintiff 2) till she attained the age of 19 years. It was stipulated that the plaintiffs and defendant 11 would vacate House No.140‑A after the death of Syed Muhammad Aziz‑ud‑Din and would move to House No.147‑A, which had been gifted to them or to some other place of their choice, failing which the payment of maintenance allowance would be stopped. The same day Khan Sahib Syed Muhammad Aziz‑ud‑Din executed the document, Exh.D.W.4/8, titled as Idastbardari namal, which recounts distribution of his estate among defendants 1 to 10 by virtue of the compromise of the 17th November, 1934 (copies Exhs. D.W.4/3 and D.W.4/5), mentions the willingness of defendants 1 to 4 to provide for board and lodging of the plaintiffs and defendant 11 and records relinquishment by Syed Muhammad Aziz‑ud‑Din of his right to residence in the four rooms of House No.A‑140 and receive monthly allowance of Rs.50 given to him as per decree of the 17th November, 1934, passed on the basis of the above mentioned compromise, in favour of defendants 1 to

4. These three documents were presented for registration on the 27th May, 1952, and were registered on the 16th July, 1052.

11. On the 28th May, 1952, Syed Muhammad Aziz‑ud‑din addressed a signed application (Exh.D.W.4/34) to the Taxation Officer, Lahore, and another signed application (Exh.D.S.4/42) to the Secretary of the City of Lahore Corporation, stating that properties Nos.A‑140, A‑144, A‑149, A‑150, A‑115‑A and A‑115‑B in dispute were owned by and were in possession, of his sons, Syed Baleigh‑ud‑Din (defendant 1), Syed Muzaffar‑ud‑Din (defendant 2) and daughters, Syeda Asghari Begum (defendant 3) and Syeda Akhtari Begum (defendant 4), and that he had no connection nor he would have any in future connection with the ownership and possession thereof. He requested the Taxation Officer and the Secretary of City of Lahore Corporation to enter the names of the aforementioned Syed Baleigh‑ud‑Din (defendant 1), Syed Muzaffar‑ud‑Din (defendant 2), Syeda Asghari Begum (defendant,3) and Syeda Akhtari Begum (defendant 4) in the column of owners.

12. From the above‑referred to narration of events and perusal of various documents it is clear that defendants 1 to 4 had become owners of the property in dispute during lifetime of their father, Syed Muhammad Aziz‑ud‑Din, who had ceased to have any right or, interest therein. The plaintiffs and defendant 11, by virtue of the gift made by defendants 1 to 4 in their favour, became owners oil House No.147‑A. No property is jointly owned by the plaintiffs and the defendants. Therefore, it is not amenable to partition. The suit was misconceived and has been rightly dismissed. There is no force in this appeal which is dismissed with costs. A. A. /M-852/L Appeal dismissed.