1986 PLP 1462 (MLD)

No other document in, support of the alleged oral gift of the business concern was produced by the defendant No.l. He did not even produce his account books in support of his plea of acquiring ownership in 1956. As against the above documentary evidence I may first refer here to the Income-tax Return for the year 1970-71 (ending 31st March 1970) Exh. 5/13, filed with Income-tax Department by the defendant No. 1, and it shows that it was signed by the defendant No-1 as a legal heir of Mst. Tayyaba Khanum who was expressly described as the proprietor of Near East Watch Company. In the aforementioned return for the year 1970-71 (ending 31 March, 1970) (Exh. 5/13) the defendant No.l expressly admitted the the said concern in the said year was owned by individual (Mat. Tayyaba Khanum), the relevant declaration made by the defendant No.l is reproduced below: - I further declare that the Company/local authority resident and Ordinarily resident the firm was resident but not Ordinarily resident the association not resident the family in Pakistan during the previous year for which the return is made for late Mst. Tayyaba. (Seal of) Signature for Near East Watch Co. Status Sdl- signed legal Heir Individual Proprietor. Dated 14-9-1970" The portion which has been circled in red was marked Exh. 5/13-A after the defendant No.l was confronted with it during his cross-examination. It may be recalled here that Mst. Tayyaba Khanum had died on 16th October, 1969 and therefore, for the assessment year 1970-71 (ending 31st March, 1970) the assessment return was signed for late Mst. Tayyaba Khanum by one of her legal heirs i.e. the defendant No.l on her behalf. It would also be relevant here to refer to the statement made by the defendant No.l when confronted with his above declaration admitting Mst. Tayyaba Khanum as the proprietor of Near East Watch Company in his cross-examination. The statement of the defendant No.l was: - "The document Exh. 5/13 is the return for the year ending 31-3-1970 (assessment year 1970-71). It is correct as suggested that the income of the property and the business both are shown in this return which was filed by me. It is also correct that at page 7 of this' return details of the income of the property are given. This return was filed under my signature. The business referred in the document Exh. 5/13 pertains to Near East Watch Company of which I was the proprietor. The property referred in this document is Lodhi Mansion. At page 9 of Exh. 5/13 it is shown that this return was made for late Mst. Tayyaba Khanum and that it was signed as legal heir but I state that these words were not written by me in the original 'Returns' (of which Exh. 5/13 is certified copy). The handwritten words at page 9 encirled in 'red' were not written in the original return when it was filed. (The witness voluntarily states that he had not written the words 'for late Tayyaba Khanum' and the words 'legal heir'. However, the words 'individual proprietor' were written by him and that the seal (rubber stamp) 'For Near East Watch Company Proprietor' was put by him on the original return). I have got photo copy of this return and I produce page 9 of the same which is marked Exh. 6/129. Question. Please see Exh. 6/129 and I put it to you that this contains the same words as Exh. 5/13? Ans:- This is some "Gerber" of the plaintiffs." A reading of the statement of the defendant No.l in his evidence reproduced above, clearly establishes that according to the defendant No.l himself till her death on 16-10-1969 (during the assessment year 1970-71 ending 31st March, 1970) Mst. Tayyaba Khanum was the proprietor of the concern Near East Watch Company. The defendant' No-1 attempted to explain that handwritten words in the Income-tax Return for the year 1970-71 at page 9 encircled in "red" in Exh. 5/13 were not written in the original return filed by him and in proof of his story he produced his 'own photostat copy at page 9 of the original return filed by him. A perusal of this photo copy (Exh. 6/129) a document produced by the defendant No.l himself, would show that it contains exactly the same words as in Exh. 6/13 and which have been encircled in red and marked Exh. 6/13-A. When confronted with this situation that the defendant No.l himself had filed the return showing late Mst. Tayyaba Khanum as the proprietor of Near East Watch Company and that the said return -Exh. 6/13 had been signed by him on behalf of the sole proprietor, late Mst. Tayyaba Khanum, describing himself as legal heir of the said lady and even the photo copy (Exh. 6/129) produced by him also confirms this, the defendant No.l could not give any reply except making a vague statement. "This is some "gerber " of the plaintiffs". It would also be relevant here to mention that even for the period prior to the year 1970-71 Mst. Tayyaba Khanum was assessed to income-tax as the proprietor of Near East Watch Company. This fact was admitted by the defendant No.l in his evidence when he stated, "The assessment used to be made in the name of my mother namely Mst. Tayyaba Khanum as the proprietor of the said business". The defendant No.l when further confronted with Income-Tax Return and balance-sheet Exh. 5/17 stated: - "I am shown Exh. 5/17, which is income-tax assessment order for the assessment year 1969-70, ending on 31-3-1969. This refers to the period when my mother was the proprietor of the said business." The above admission of the defendant No.l also conclusively proves that Mst. Tayyaba Khanum alone was the owner of the said business concern "Near East Watch Company" till her death on 16th October, 1969. The defendant No.l tried to state that in the assessment year 1977 he was proprietor of the said business, on the face of it is a false statement and belied by documentary evidence with which he was confronted in cross-examination. The defendant No.1 was also confronted with the documents Exh. 5/18 which he tried not to accept on the plea that it was a photo copy, whereas this document is the certified copy of the balance-sheet of Near East Watch Company for the accounting year ending 31-3-1969. The defendant No.l when confronted with its contents admitted it to be the balance-sheet for the assessment year 1970-71 when the said business concern was owned by Mst. Tayyaba Khanum. In this balance sheet capital amount of Mst. Tayyaba Khanum is shown as Rs. 89,830.43 out of which Rs. 2,175.50 drawn are deducted and thus the balance towards her credit as capital amount is shown as Rs.87,654.93. Out of this amount net loss of Rs. 3,419.62 was deducted for the said year, reducing the capital account of Mst. Tayyaba Khanum to Rs. 84, 235.31 as on 31st March, 1969. It is also significant to note that in the abovementioned balance sheet Rifatullah Khan is shown on the credit side for Rs. 400 and with this entry when the defendant No.l was confronted he unsuccessfully tried to explain that the said person was an employee and that his name was also Rifatullah Khan. The defendant No.l however failed to produce any evidence whatsoever to substantiate this statement of his. Neither any salary register nor any other evidence of any kind whatsoever was produced by him to show that in the said concern at any time there was any employee of the same name (i.e. Rifatullah Khan) as that of the defendant No.l. It is obvious that this entry relates to the defendant No.l whose status was no more than of an employee in it and that in any case he was not the proprietor of the said business concern. It is also interesting to note here the following replies of the defendant No.l given in his cross-examination to the questions put to him by the Advocate for the plaintiffs. "Q. I put it to you that Rs. 84,235.31 capital amount shown in Exh. 5/18 was that of your mother? Ans: I do not remember. In 1969 my mother was the proprietor of the business namely Near East Watch Company." The defendant No.l was then confronted with documents Exh. 5/15 (the balance-sheet ending on 31st March, 1970) the question, put and the answer given being relevant are reproduced below:- "Q. I put it to you that the above entry of Rs. 55,213.75 was in fact the capital amount of your mother which was brought forward in this year from the previous year 1969-70? Ans: It is correct." In my opinion the admission made as above by the defendant No.l in his cross-examination conclusively establishes that till her death on 16-10-1969 Mst. Tayyaba Khanum was the proprietor of Near East Watch Company and the story set up by the defendant No. l that in 1956 the parents had transferred to him by gift the abovementioned concern Messrs Eastern Watch Company is totally false.

10. It would be appropriate to refer to the evidence of the two witnesses Saghir Ali D.W.2 (Exh. 7) and Sabz Ali D.W.3 (Exh. 8) produced by the defendant No.l who had stated that in their presence Haji Fiqhatullah Khan (father) had confirmed the fact of making of the gift of the said business concern in his favour. Saghir Ali D.W:2 (Exh. 7) though supported the 'statement of the defendant No.l during his examination-in-chief but in his cross -examination he admitted that he was not present when the alleged gift was made. His statement that Haji Fiqhatullah Khan Lodhi, had informed him subsequent to Me making of the lift, that he and his wife had transferred the two business concerns, Near East Watch Company to the defendant No.l and Lodhi Watch Company to Shoukat Ali, is inadmissible being hearsay evidence. Even otherwise this statement of the witness cannot be believed in the presence of documentary evidence discussed above and the admissions of the defendant No.1 himself in cross-examination that till 1969 Mst. Tayyaba Khanum was the owner of the said business concern. It would be recalled here that Mst. Tayyaba Khanum had died on 16th October, 1969. This witness (Saghir Ali) obviously, is an obliging witness. He had voluntarily come to the Court to give evidence in favour of the defendant No.l. The other witness Sabz Ali D.W.3 (Exh. 8) in his examination-in-chief deviated from the story given by the defendant No. 1 and that by Saghir Ali (Exh. 7). The witness, Sabz Ali Khan, in his statement in examination-in-chief deposed that Haji Fiqhatullah Khan told him that both the shops "he had given in gift one shop namely Lodhi Watch Company to Shoukat Ali and other namely Eastern Watch Company to the defendant N.o.1 by gift". It would be recalled that defendant No.l had stated in his evidence that the gift was made in his favour by his parents namely Mst. Tayyaba Khanum and Haji Fiqhatullah Khan Lodhi. A similar story was narrated by Saghir Ali D . W . 2 (Exh. 7) but this witness, Sabz Ali Khan has gone a step forward in supporting the defendant No.l by stating that Haji Fiqhatullah Khan told him that he had given in gift business concern in question to the defendant No.l. I need not make any comment in respect of Lodhi Watch Company which is not a subject-matter of this suit and also for the reason that Shoukat Ali or his heirs are not present before me. This witness Sabz Ali Khan admitted that the alleged gifts were not made in his presence. The statement of this witness can very well be described as hearsay evidence and even otherwise unreliable.

11. For reason's discussed above I hold that the business concern known as East Watch Company was owned by Mst. Tayyaba Khanum on whose death on 16th October, 1969 it devolved upon the parties in suit besides Haji Fiqhatullah Khan who died on 16-12-1974. Thus, the ownership of this business concern since after 16-12-1974, vests in the parties with undivided shares as mentioned below. On 16-10-1969 when Tayyaba Khanum died On 16-12-1974 on the death of Haji Fiqhatullah Khan "Plaintiff No. 1, Zahida Khanum (Daughter) 15% 20% Plaintiff No.2, Tasneem Khanum (Daughter) 15% 20% Defendant No. 1, Rifatullah Khan (Son) 30% 40% Defendant No.2, Salika Khanum (Daughter) 15% 20% Haji Fiqhatullah Khan (Husband) 25% Died on 16-10-1974. His share devolved upon the abovenamed persons (son & daughters). Regarding Issues Nos. 2 and 3:

12. These issues can be taken up together as on them the learned Advocates advanced common arguments. The properties which are subject-matter of the suit as noted above are (i) Lodhi Mansion and (ii) the business concern known as the Near East Watch Company. The property known as Lodhi Mansion, it is admitted, consists of 12 flats out of which Flat No.3 is in possession of Plaintiff No.l with whom is also residing the defendant No.2. The plaintiff No.l is also in possession of one store room on the ground floor. The Flat No.12 is in occupation of the plaintiff No.2. The remaining ten flats are in possession of various tenants from whom the defendant No.1 is recovering rent. The defendant No.l in his evidence deposed that during the lifetime of Mst. Tayyaba Khanum he used to collect rent from the tenants and the amount collect was always handed over by him to the father and this practice continued even after the death of Mst. Tayyaba Khanum (the mother). He further stated that after the death of the father, he continued to collect rent in the same manner but as in spite of requests made, his sisters refused td settle the question of shares in the property, therefore,. he started to put his own seal as owner on the rent receipts issued by him to the tenants. As the father, Haji Fiqhatullah. Khan Lodhi, to whom rent collected during his lifetime used to be handed over by the defendant No.l, died on 16-12-1974 it can be safely inferred that only thereafter the defendant No.l started appropriating rent received by him. He, therefore, in the light of the findings reached by me as above that the parties to the suit are joint owners with undivided shares specified earlier, the defendant No.l is liable to render account of the rent received by him since after the death of Haji Fiqhatullah Khan Lodhi (the father). Mr. Muhammad Zaki Ahmed, the learned counsel for the plaintiffs conceded during his argument that the defendant No.l shall be liable to render account for the rent received by him after 16th December, 1974 when the father of the parties died. This would be so also in my opinion as the statement of the defendant No.l to the effect that during the lifetime of Haji" Fiqhatullah Khan Lodhi, the rent collected used to be handed over t him by the defendant No.l with the consent of the sisters who used to live and ate with him (the father). In the plaint also the plaintiff' case is that only after the death of the father, the defendant No. started appropriating the income. I, therefore, hold that the defendant No.l is liable to render account in respect of the amount collected by him from the tenant C since after 16th December, 1974 when Haji Fiqhatulah Khan Lodhi, expired. I may here also observe that the Commissioner who would be entrusted with the job for taking accounts would take into consideration amount equivalent to rates of rent which the plaintiffs and the defendant No.2 would have been liable to pay for the flats and store room in Lodhi Mansion but are not paying for being co-owners whereas the defendant No.l though a co-owner is residing in rented premises. Js the accounts in respect of the business concern known as the Near East Watch Company the learned counsel for the plaintiff stated that they would be satisfied if the defendant No.l was directed to render account of the income from the said business concern from the 16th December, 1974 when the father died. This statement of the learned counsel for the plaintiffs is reasonable in view of the averment in the plaint itself that after the death of Mst. Tayyaba Khanum and Haji Fiqhatullah Khan Lodhi, the defendant No.l took the management of the properties on his own behalf as well as on behalf of the plaintiffs and the defendant No.2.

14. I accordingly hold that in respect of the abovementioned busines concern the defendant No.l shall render account to the plaintiffs. andD the defendant No.2 from 16th December, 1974 which was the date o which Haji Fiqhatullah Khan Lodhi died.

15. Regarding issue No.4: Since the parties to the suit are not agreeable as to the manner in which the immovable property in suit namely Lodhi Mansion and the business concern known as Near East Watch Company could be partitioned, this matter would be referred to the Commissioner effecting partition and would be decided by the Court after the report is received.

16. Regarding issue No.5: This issue was not pressed by the learned Advocate for the defendant No.l at the time of the arguments.

17. Regarding Issue No.6: The learned counsel 'for the defendant No.l was unable to show anything as -to how the plaint did not disclose any cause of action against his client. On the facts pleaded in the plaint and on the evidence on record, having come to the conclusion that the immovable property known as Lodhi Mansion and the business concern -(Near East Watch Company) were originally owned by Mr. Tayyaba Khanum -(the mother) and the same devolved upon her heirs and that now the parties to the suit are joint owners as mentioned above with undivided shares, I hold that the suit is maintainable under the law. The issue, accordingly answered.

18. Regarding Issue No. 7: The suit is decreed for partition and accounts of the two properties which are its subject-matter. A preliminary decree shall be drawn incorporating the following directions:- (i) The undivided shares of the parties in the immovable property known as Lodhi Mansion, bearing Survey No. AM-27/1, Artiller Maidan, Karachi are declared as follows: - (i) Plaintif No.1, Zahida Khanum

15% (ii) Plaintiff No. 2, Tasneem Khanum

15% (iii) Defendant No.1 Rifatullah Khan

30% (iv) Defendant No.2, Salika Khanum

40% (ii) The defendant No.l shall render account in respect of the immovable property known as Lodhi Mansion and the business concern known as Near East Watch Company, for the period from 16th December, 1974 till the Commissioner submits his report. (iii) For partition of aforementioned immovable property and also the business concern known as Near East Watch Company according to their respective shares. In the abovementioned business concern (known as Near East Watch Company the undivided shares of the parties are declared to be:

On 16-10-1968 when Tayyaba Khanum died On 16-12-1974 on the death of Haji Fiqhatullah Khan "Plaintiff No. 1, Zahida Khanum (Daughter) Plaintiff No.2, Tasneem Khanum (Daughter) Defendant No. 1; Rifatullah Khan (Son) Haji Fiqhatullah Khan (Husband) Died on 16-10-1974, when his shares devolved upon the abovenamed persons (son and daughters). The Commissioner shall submit his report as to the state of account, showing amount due and payable to the respective parties an also as to partition of the properties (Immovable property and business concern) after making such enquiry as he may find necessary, according to the shares of the parties declared as above the Commissioner ma in his report, submit if any of the properties (immovable property and/or the business concern is/are incapable of partition, in Court for further orders and proceedings. (iii) While taking account, the Commissioner shall also take into consideration the amount payable/ adjustable equivalent to rent of similar flats/premises as occupied by the plaintiffs an defendant No.2 in Lodhi Mansion. (iv) The Commissioner shall also make inquiry as to the expense incurred on maintenance of the building and those incurred running the business arid shall also take into account such amount including taxes as have been paid by the defendant No.l toward the carrying on of the said business in normal course. (v) The Commissioner shall collect rent in respect of the immovable property known as Lodhi Mansion. The business of Near East Watch Company shall be allowed to be carried on by the defendant No.l under the control and supervision of the Commissioner for interim period till the submission of the report by the Commissioner but subject to such directions which the Court may give from time to time. The defendant No.l shall be liable to be removed from carrying on the business if the circumstances are brought to the notice of the Court which may justify th0 he is not a fit person to run the business or otherwise has rendered himself liable to be removed. (vi) The plaintiffs and the defendant No.2 till the partition take place, subject to such directions as the Court may give, are restrained from parting with the possession of the flats/premise in their possession and occupation in the property known as Lodhi Mansion without the permission of the Court. The defendant No.l is also restrained from in any manner encumbering the business concern and/or parting with possession of the shop premises-or assets till further orders. The defendant No.l shall submit monthly accounts to the Commissioner till further orders. The official Assignee is appointed as the Commissioner to carry out the directions as above. He shall submit his report within four months of the receipt of the notice by him from the Court or within such period as the Court may from time to time fix. M. Y. H. Order accordingly.