1989 PLP 110 (CLC)

This is an administrative suit Lt.‑Genl. (Rtd.) Sheikh Mohammad Afzal Farooqui died on 16‑4‑1970 at Karachi leaving behind him as his sole heirs his son Kamal Afzal Farooqui from his first wife and Begum Shehzada Afzal Farooqui as widow and second wife. The deceased left houses and other immovable properties mentioned in Schedule 'A' and bank accounts, cash and jewellery mentioned in Schedule 'A'. The plaintiffs, who are the heirs of Kamal Afzal Farooqui, who died during the pendency of this suit, have prayed for accounts and administration as well as the division of the properties of deceased S . M . A . Farooqui.

3. Defendant Begum Shehzada Afzal Farooqui filed written statement in which she admitted that Shaikh Mohammad Afzal Farooqui had died as shown above and had left the defendants as his widow and second wife and plaintiffs' predecessor‑in‑interest Kamal Afzal Farooqui as son from the first wife as his sole heirs. She has however, denied that all the properties mentioned in Schedule 'A' belonged to the deceased. According to her, properties mentioned at item Nos.l, 4, 5 and 6 are the exclusive properties of the defendant. Properties Nos. 4, 5 and 6 were purchased by her long ago by registered sale‑deed in her own name and out of her own funds. She was nominated by the deceased as his nominee under section 27 of Co‑operative Societies Act with respect of property at item No.l in Schedule 'A' and is therefore entitled to own the same exclusively. She has however, admitted that property No.2 owned by deceased. So far as property No.3 was concerned it was an agricultural land and was granted to the deceased by G . H . Q. on 10 year:; lease in 1967 which is resumable on the death of the lessee. Kamal Afzal Farooqui as well as the defendant filed separate applications for grant of the above land after the death of the deceased and the G . H . Q. had granted this land to the defendant. With regard to items Nos.l, 2‑ 3 and 5 of Schedule 'B' the defendant has admitted that the same belonged to the deceased. So far as item No.4 of Schedule 'B' is concerned she has alleged that this was joint account of the defendant and her deceased husband and that the amount therein exclusively belongs to her. Regarding item No.7 of Schedule 'B' she has stated that the same is in possession of the Local Tehsildar. She has neither disputed the ownership with regard to item No.7 nor regarding the remaining items Nos.8 to 12 of Schedule 'B'. On the pleadings of the parties following issues were framed:‑ (1) What are the total assets and properties left by Lt.‑Gen. S. Mohammad Afzal Farooqui ? (2) Whether the deceased had nominated the defendant as his nominee in respect of Plot NO.A/11, 10th Central Street, Pakistan Defence Officers Co‑operative Housing Society Karachi. If so, is the defendant entitled to inherit to the exclusion of the plaintiff ? (3) Whether the defendant purchased the properties Nos.4, 5 and 6 mentioned in the Schedule to the plaint from her own resources or she was holding as a benami ? (4) Was property No.5 mentioned in the Schedule to the plaint purchased by the defendant from the deceased. If so, is the sale void ? (5) Was the building on Plot No.96‑D, Satellite Town, Fifth Road, Rawalpindi, constructed by the defendant from her own resources ? (6) Whether the deceased had an account with Investment Corporation of Pakistan, If so, what are the assets with I.C.P.? (7) What was the Meher of the defendant. Is it due to the defendant and is she entitled to claim in these proceedings ? (8) Whether the defendant had advanced loan of Rs.32,000 to the deceased. If so, is the defendant entitled to claim in the present suit ? (9) What the decree should be ? My findings on these issues with reasons therefor are as follows:‑

4. ISSUES Nos. 1, 3, 4 and 5 Since these issues are inter‑connected, hence I have taken all of them together. The evidence on these issues consists of the deposition of the deceased plaintiff Kamal Afzal Farooqui Exh.ll and the documents produced by him as Exhs.ll/1 to 11/9 from the side of the plaintiff. As against this the defendant examined in the Court D.W. Syed Yousaf Din Exh.5 and produced photo copy of Nomination Form Exh.5/1, Certificate Exh.5/2, Statement of Account Exh.5/3, another photo copy of the same Nomination Form Exh.5/4. She also examined on commission through Mr. Tanvir Hussain Ansari, Advocate L.C.W.1,.~Ilyas Ahmad Secretary District Housing Committee Rawalpindi, L.C.W.2:Sardar Ameer Mohammad, L.C.W.3 Ch. Mohammad Sharif Assistant Engineer Rawalpindi Improvement Trust, L.C.W.4 Hawaldar Mohammad Sarfaraz Khan Record Clerk, Pension Corporation G.H.Q. L.C.W.5 Khalid Mehmood Choudhry Junior Clerk Excise & Taxation Office, Rawalpindi, L.C.W.6 Shaik Fakhruddin Ahmad Qanongo, L.C.W.7 defendant Begum Shehzada Farooqui and produced tire following documents:‑ Allotment Ex.LCW 1/1, Application Form Ex.LCW 1/2, Temporary Allotment Ex.LCW 1/3, Approval Ex.LCW 1/6, Building Plan Ex.LCW 1/7 to 1/10, Challan Form Ex.LCW 1 and Ex.LCW 2, Ex.LCW.3.

5. Immovable property at item No.l of Schedule 'A' is a plot of land measuring 2,000 sq. yds. with building and structure thereon situated at A/11, 10th Central Street, Pakistan Defence Officers Co‑operative Housing Society, Korangi Road, Karachi. Deceased plaintiff' Kamal Afzal had made an oral assertion that this property belonged to his father. As against this the defendant has examined Syed Yousaf Din Office Superintendent of the Defence Housing Society who has brought the record regarding this plot which bears No.A/11, 10th Central Street, Defence Housing Society, Karachi. He has stated that this plot was allotted to Lt.‑Gen. S.M.A. Farooqui on 22‑4‑1963. Lt.‑Gen Farooqui on 21‑5‑1966 filed a Nomination Form whereby he nominated his wife defendant Begum Shehzada as his heir and nominee. This Nomination Form was signed by Lt.‑Gen. Farooqui and was acknowledged by Administrative Officer of the society. Photo copy of the Nomination Form has been produced as Ex.5/1. The witness has also produced a certificate of the Administrative Officer dated 12‑9‑1970 which shows that Lt.‑Gen Farooqui was a member of the society and was allotted this plot. Begum Shehzada is also a member of this society and is nominee of Lt.‑Gen. Farooqui for this plot and there was no revocation or change for nomination during the lifetime of the deceased. The statement of account Exh.5/3, which was produced in the cross‑examination of this witness, shows that a sum of Rs.29,231 was paid towards the price of the plot out of Rs.10,

231. The witness has stated in the cross‑examination that he does not know how much payment was made by Lt.‑Gen. Farooqui. He further states that the defendant had paid a sum of Rs.18,830 on 12th September, 1980. The question now for consideration would be whether nomination made under section 27 of the Co‑operative Societies Act as shown above validly affects a transfer of immovable property in favour of the nominee absolutely and to the exclusion of all other legal heirs of the deceased nominator. Similar question had arisen before the Supreme Court in the case of Amtul Habib and others v. Mst. Musarrat Parveen reported in P L D 1974 SC 185 where it was held that unless a nomination under section 27 of Co‑operative Societies Act can amount to a valid gift inter vivos, it cannot pass title to the nominee in respect of immovable property nor can the making of a nomination give right to the nominator at his own choice to change the law of succession which would otherwise be applicable in the case of his death. It was further held by the Supreme Court that obviously, the nomination cannot operate as a valid gift in the Mohammadan Law because such a gift in order to confer title on the donee, must be accompanied by the delivery of possession of the property gifted. The Supreme Court further went on to hold that the position of a nomination under section 27 of Bombay Co‑operative Societies Act was different from that of a nomination under section 5 of the Provident Fund Act because the wording of this section are materially different. There 'is no analogy between the two. Under section 27 of the Co‑operative Societies Act all that passes to the nominee is a sum representing value of such member's share or interest in the society. Section 27 does not deal with the properties allotted by the society to a member. A member of a Housing Society has two distinct and separate capacities:‑ (1) As a member of I the society itself, that is to say, as a shareholder in the society, and. (2) As an allottee under the society under its rules and bye‑laws of plots or houses distributed or sold by the society. The nomination transfers only shares or other interests such as dividends or profits which may have accrued to the member in his lifetime in respect of these shares in the society itself, but it cannot be said that this necessarily covers also all beneficial interests in all other transactions entered into between the deceased and the society in a different capacity. The holding of a share is merely a qualification for the allotment of a plot or a house, but it does not follow from this that every member is necessarily entitled to a plot or house. It appears furthermore that under bye‑law 12‑A of the Bye‑laws of the Pakistan Employees Co‑operative Housing Society Ltd., Karachi, even a non‑member may become the owner of a plot if he has acquired the same by sale or mortgage or otherwise from a member of the society. It is, therefore, also not necessary that to acquire a plot one must be a member. The membership of. the society is thus something different from the right to hold a plot or house under the society. It is therefore, quite clear that the defendant cannot claim to be the absolute owner of this property to the exclusion of the other heirs of the deceased. Hence I hold that the immovable property at item No.l of the schedule belonged to the deceased and it will be inherited by all the heirs of the deceased according to their respective shares.

6. Property at item No.2 of Schedule 'A' is a plot measuring 2,000 sq. yds. bearing No.14 Survey No.295, Lahore Cantonment. The defendant has admitted in her written statement that this plot belonged to the deceased and, therefore, there remains no dispute about the ownership of the same.

7. Item No.3 of Schedule 'A' is leasehold right in an agricultural land measuring 12 squares situated in Chak No.70/NB, Risala No.8, Sargodha, together with a Shed, Farm, and a house constructed thereon. The deceased plaintiff Kamal Afzal has stated in his deposition that this land was leased out to his father by Military Authorities for the purpose of breeding the horses and also for agriculture. He has admitted in his cross‑examination that this farm was leased out to his father for 10 years and could be resumed by Government at any time. He has not denied the suggestion that the lease was determinable by the demise of the lessee. He has admitted that he as well as the defendant had applied to the authorities for transfer of Lt. Gen. Afzal Farooqui's rights in this stud farm and that the fresh lease was granted to the defendant. In view of this clear admission made by the deceased‑plaintiff Kamal Afzal himself there remains no doubt that the defendant is now the owner of leasehold rights in item No.3 to the exclusion of all other heirs of the deceased. Item No.5 of Annexure 'A' was an immovable property described as plot of land together with building and structure thereon situated at 96‑D, Satellite Town, 5th Road, Rawalpindi. While item No.5 thereof was a piece of land in Abbottabad on the Hill left side as one leaves Abotabad on the road to Kakul and Murree adjoining belonging to late Dr. Khan Sahib. Item No.6 thereof is an orchard at Company Bagh, Murree Hills, district Rawalpindi. Regarding these three items the defendant has alleged in her written statement that these three properties were purchased by the defendant long ago by registered sale‑deeds in her own name and out of her own fund. They stand in her name in official records. She further clarifies in written statement that the property No.4 was allotted to the defendant in 1954 by the Rahahilitatinn rnmmi~inner Rawalpindi and the payment was made by the defendant in instalments from her own resources. The defendant has constructed only annexe on this plot and is residing therein. The property at item No.5 was purchased by her on 26‑11‑1956 by registered sale‑deed. According to her the property at item No.6 was not orchard but it comprises of four pieces of land which were purchased by the defendant from the year 1954 to 1956 through four registered sale‑deeds. Alongwith her written‑statement the defendant has produced photostat copies of all the documents referred to by her. She has also led evidence of Mr. Ilyas Ahmad who has brought the record of Plot No.96‑D, Satellite Town, Rawalpindi. He has produced the application for allotment made by the defendant, the temporary allotment issued in her favour, the permission for construction, approved plan of construction and the challan form about the payment of money. From these documents it is quite clear that the property at item No.4 of Annexure 'A' which is the schedule of the immovable property was the exclusive property of the defendant. The defendant has also examined herself on commission and has stated that this property was purchased by her from her own money. She has been able to show that she was throughout serving as Medical Officer and had also flourishing private practice. She has also stated that the land at item No.5 was purchased by her by the registered sale‑deed. She has produced the said sale‑deed in her evidence. She has also stated that she had purchased 19 kanals, of land in four bits by the four sale‑deeds which she has produced in her evidence. These are with regard to immovable property at items Nos.5 and

6. Hence I have no hesitation in coming to the conclusion that the property at items Nos. 4,5 and 6 exclusively belongs to the defendant and the' deceased had no right or interest therein. The plaintiff had taken a plea that the defendant was the Benamidar of the property while the real owner was his deceased father. He has not been able to substantiate his allegations, although burden of proof was on the plaintiff. The plaintiff has failed to show that consideration for any one of these three items came from the pocket of the deceased father of the plaintiff.

8. With regard to the items in the Schedule 'B' of movable property there was no. serious contest between the parties and it was conceded by them that the same were of small value and those items which were in possession of any one of the parties may be allowed to remain in the possession of the respective party who was enjoying or had already enjoyed them. With regard to items which were in custody of the third persons, it was stated that the same may be divided amongst the heirs. The defendant's amount of Rs.25,000 of Mehar and amount of the loan if she could prove it before the Commissioner be also paid to her from the estate of the deceased.

9. I, therefore, pass preliminary decree in the suit only with regard to items Nos.l and 2 of the Annexure 'A' i.e. schedule of immovable property and direct that the accounts may be taken by Official Assignee, who is appointed as Commissioner thereof and the same be administered and divided amongst the plaintiffs and the B defendant according to their legal shares, defendant getting 1/8 and the plaintiffs getting residuary 7/8 share according to the following further sub‑divided shares. The, plaintiff No.l, to get 7/64. Plaintiffs Nos.2, and 5 to get 49/256 each, while plaintiffs Nos. 3, 4 and 6 to get 49/265 each. I hold that the items Nos. 3, 4, 5 and 6 of Annexure 'A' relating to the immovable property exclusively belong to the defendant and neither the deceased had nor the plaintiffs have any right or interest therein. A.A./K‑112/K. Suit decreed.