1986 PLP 1151 (CLC)

(3) Whether late Niaz Ahmad was literate and always used to sign in Urdu or English and whether he ever put his thumb‑impression on any documents? (4) Whether the alleged Divorce‑deed, Power of attorney and plaint in Suit No.301 of 69 bear thumb‑impression of late Niaz Ahmad? (5) Whether the alleged divorce‑deed was forged and the same was sent to the plaintiff without the consent and knowledge of late Niaz Ahmad? (6) Whether the plea of divorce is barred by the limitation? (7) Whether the plaintiff entitled to a share in the properties left over by late Niaz Ahmad as his successor? (8) Whether the properties mentioned in Schedule 'A' to the plaint belonged to late Niaz Ahmad or were purchased from the Niaz Ahmad or were purchased from the funds belonging to the deceased Niaz Ahmad? (9) Whether late Niaz Ahmad was a partner in the firm of New Ruby Jewellers? (10) Whether late Niaz Ahmad was proprietor of Niazi Jewellers? (11) Whether issues Nos.l, 2, 6 are the subject‑matter of Suit No.301/69 in Civil Suit. If so its effect? (12) To what relief the plaintiff is entitled?

8. In perusance of the order dated 19‑12‑1979 both. the suits were heard together and as per statement dated 7‑11‑1983 of the learned counsel for the parties the evidence of Mst. Sardar Begum recorded in Suit No.142/80 was treated as evidence of the plaintiff in Suit No.183/70. No attempt was made by the parties to file consolidated issues in the suits. Mr.Mahmoodul Hasan counsel for the L.Rs. of late Niaz Ahmed submitted that the issues framed subsequently in Suit No.183/72 covered the issues framed in Suit No.142 of 1980. This is partly correct. I, therefore, proceed to consider first the issues framed in Suit No.183 of 1972 and thereafter take up the issues in Suit No.142 of 1980. Suit No.183 of 1972.

9. The plaintiff (Mst. Sardar Begum) to prove the gift in her favour has examined herself and two witnesses, namely, Hamidullah who is her cousin, and Saeedur Rahman, who is her brother. She stated in her deposition that "the house was gifted to me orally". Hamidullah has simply stated "The house was later on gifted' to Mst. Sardar Begum". The other witness Saeedur Rahman stated in the examination‑in‑chief that "the gift made by late Niaz Ahmad was oral, but I do not remember the date. At the time of gift I, and Hamidullah son of Shafiqullah were present. In the cross‑examination he stated"I never visited the house of late Niaz Ahmad after marriage. The gift which have (sic) referred in my examination‑in‑chief took place before Niaz Ahmad suffered from paralysis. I used to visit the house of Sardar Begum off and on. I cannot give the year or the date on which the gift was made." He further stated that"Niaz Ahmad told in our presence that he has constructed this house for Mst. Sardar Begum. In the upper portion of the house where Mst. Sardar Begum came to stay, the son of late Niaz Ahmad, from his first wife used to live. I cannot say if any intimation was given to the son of late Niaz Xhmad, who was living on the first floor, about the gift in favour of Mst. Sardar Begum."

10. It is admitted by the above witness that he never visited the house of Niaz Ahmad after marriage. It, therefore, seems doubtful that he was at all a witness to the gift. Moreover, Sardar Begum has not mentioned the names of these two witnesses in her deposition. The other witness, Hamidullah only states that "the house was later on gifted to Mst. Sardar Begum" but his evidence is silent about the time (month or year) as well as the presence of the other witness Saeedur Rahman or any one else at the time of gift. Their evidence, to say the least, is vague. It does not inspire confidence, that the gift was made by Niaz Ahmad‑in favour of the plaintiff in their presence.

11. Mst. Sardar Begum except producing these two witnesses, has placed no document on the record to show that the property was gifted to her by her late husband and she exercised her right of ownership in respect of the portion of the house comprising of two rooms in her possession as owner thereof. On the contrary, she stated in para. 8 of her written statement filed by her in Suit No.1584/67(now numbered as 142/80). That:‑‑"after marriage the plaintiff constructed the present house for the defendant and passed on the possession to the defendant for her exclusive use of House No.A‑71/1, Khudadad Colony, Karachi saying and assuring that the defendant would be living there independently without any interference either from his first wife or from the children and further promised and assured that the part of the aforesaid house would be her own property as a part of legal heir of his property according to Muslim Law.

12. No plea of gift was taken in August 1967 when the written statement was filed. What can be reasonably inferred or interpreted from the contents of para. 8 quoted above is that the portion of the house where Mst. Sardar Begum is living was to remain under her exclusive use without any interference by the first wife or her children. No inference to the gift can be made there from.

13. A gift is a transfer of movable or immovable property with immediate effect and without consideration by one person in favour of another and the acceptance of the same by that another himself or by p some one authorised on his behalf is called 'gift' provided that one making the gift must totally renounce all his title and rights in the property gifted away of his independent free will. It is a covenant that is constituted by proposal and acceptance and gets completed by possession. It is thus stated in A1‑Mukhtasar Quduri (Quran Mahal Karachi p.128) Kanz al Daqaiq by AI‑Nasafi Mutbai Mujtabai, Delhi) p.332 and Hidayah by Al‑Marghinani, Vol. III, p.283. that gift is R constituted by proposal and acceptance and gets validity by possession. Gift is thus, not complete unless the donor delivers the possession of gifted property to the donee.

14. However, under the Islamic Law it is not essential for the gift) to be in writing. I may refer to Wazir Begum v. Noor Jehan P L D C 1961 Kar., wherein Waheeduddin and A.R. Khan, JJ., held that the oral gift of immovable property is valid provided possession too has been made over to the donee.

15. I may also refer to several other cases in this respect. The Supreme Court of Pakistan has, in the case of Shamshad Ali v. Syed Hassan Shah P L D 1964 S C 143 held that "Under the Muhammadan Law the delivery of possession to the donee is a condition precedent to the validity of gift... At the same time the legal requirement is that there should be delivery of possession by the donor. Anjuman Islamia, Muzaffargarh v. Ashiq Hussain and another P L D 1967 Lah. 336 of the Lahore High Court it was observed as under:‑ "The three essentials of a valid gift under Muslim Law; (1) a declaration or gift by the donor; (ii) an express or implied acceptance of the gift by the donee; and (iii) seisin, the delivery of possession of the gift property by the donor to the donee. It is of the essence of a gift that it should be completed by delivery of possession. The delivery of possession by the donor as a conscious, unequivocal and distinct act on his part is necessary to perfect the gift made by him. Mere registration of the deed of gift does not cure the defect in the delivery of possession to the donee."

16. In other two cases the Supreme Court observed that the delivery of possession by the donor as a conscious, unequivocal and distinct act on his part is necessary to perfect the gift made by him. Where, therefore, the land in dispute was in cultivating possession of the tenants and the donee was Mukhtar of the donor and he was collecting the produce from the tenants, it was held that the mere declaration in the gift‑deed that possession was delivered to the donee was not sufficient to complete the gift. Ashiq Hussain and another v. Ashiq Ali 1972 S C M R 50 and Haj Khan and 5 others v. Fazal Hussain and 5 others 1972 S C M R 267.

17. In a Karachi case Ali Ahmad v. Government of Sind, P L D 1976, Kar. 316 at pp.333, 336 it was observed that: "It is well‑known that Muhammadan Law has prescribed just three simple but very essential requisites for a valid gift. These are: (1) a declaration of gift by the donor, (2) acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of, the subject‑matter of the gift by the donor to the donee. In simple words, the three acts involved are that the donee should make a declaration of gift and give the gift property to the donee, and the latter should accept it. It is not even essential that the gift should be made in writing, for a written gift is as good as an oral one. The Privy Council upheld a verbal gift. Writing is, therefore, not essential to the validity of a gift, either of movable, or of immovable property. No mutation of names in the Record‑of‑Rights is also necessary to complete the transfer of possession of the gift property. A gift of lands in occupation of Haris may be completed by the donor asking the Haris to attorn to the donee, or by delivery of title deeds, or, by getting the mutation‑entries effected in donee's favour in the Record‑of‑Rights. A husband making a gift of the house to his wife which is in their joint occupation, may complete the delivery of possession of the corpus of the gift which is one of the essential requisites of a valid gift, by making a declaration to the effect that he gives the house to his wife as a gift alongwith its possession, on his wife accepting the property, the gift would be complete and valid under the Muhammadan Law. The same procedure would be true in the case of a house let put to the tenants, or in the case of land ‑ativated by Haris, if the tenants or the Haris are asked by the husband to attorn to his wife. In such cases the facts that the husband continues to lie in the house or receives the rents from the tenants, after the date of the gift, would not invalidate the gift, the presumption being that the rents were received by him on behalf of his wife, and not his own account. No transfer of possession is required in the case of a gift by a father to his minor child or by a guardian to his ward. All that is, however, necessary is to establish the bona fide intention to make the gift. The requirement of change of possession in such a case is not necessary for the father himself is the person to receive possession as the guardian of his son. Similarly, no change of possession is necessary in the case of a gift by a grandfather to his minor grandson if the father is dead, for the grandfather is the lawful person to take delivery on behalf of his grandson as his guardian."

18. The portion of the house, which was already in possession of Mst. Sardar Begum is alleged to have been gifted before the deceased suffered from paralysis, which means prior to September, 1964. In 1972 when the second suit was filed considerable time had elapsed, but Mst. Sardar Begum has failed to produce any evidence to show that her late husband had totally renounced all his title and rights in the said portion alleged to have been gifted away to her. No step seems to have been taken by her as separate owner in respect of the said portion. She was putting up with her husband in the said portion of the house before the gift is alleged to have been made in her favour. It was all the more necessary to prove her possession as a conscious and distinct act as owner to perfect the gift made in her favour. Neither any bill in her name for the electricity consumed by her or the challan for payment of taxes paid by her in her name to the K.M.C. or taxation authority in respect of the portion of the house in question have been produced by her nor it has been shown that the said portion of the house has been entered in the property register maintained by the taxation authority in respect of urban properties showing particulars as to ownership etc.

19. It is also pertinent to note that in the notice dated 19‑4‑1967 (Exh.9/3 in Suit No.142/80) issued by her counsel, Mr. Sabir Hussain Ansari, the lady had asserted that the plot (only) of the house in question was gifted to her by her husband and the construction over the said plot was made by her out of her own funds, whereas in the pleadings of the suit No.183/72, it has been alleged that a portion of the house, which was occupied by her, was gifted to her. In fact, no plea of gift was taken by her in her written statement filed in the earlier suit. It is significant to note that Mst. Sardar Begum finding herself placed in such a situation dared to deny on oath the reply to notices sent by her counsel and even her signatures on the written statement and affidavit filed on her behalf in Suit No.142 of 1980 which is not believable. Niaz Ahmad the alleged donor died on 2‑8‑1969. The plaintiff filed the Suit on 11‑5‑1972. Onus to prove the oral gift and her possession 'as donee' rests on the plaintiff under section 117 of the Qanun ‑i‑Shahadat Order, 1984, which is similar in terms of section 101 of the Evidence Act, 1872. The plaintiff has failed to discharge the burden. Mst. Sardar Begum also alleged that she invested her own money in the construction of the house, but has produced no evidence at all to substantiate the allegation. In fact, even no evidence as to her source of earning prior to her first marriage has come on record in this behalf, except her statement. This statement is also belied by the L.Rs. of Niaz Ahmad's filing in suit No.142/80, a sale‑deed dated 6‑3‑1962 which shows that a house consisting of five rooms was purchased by Niaz Ahmad. This document bears the signatures of two witnesses including Jamilur Rahman; brother of the plaintiff. My finding on Issue No.l is in the negative.

19. Issue Nos. 2, 4 and 5.‑‑As these issues are interrelated. I deal with them together.

20. The question arises whether late Niaz Ahmad due to the attack of paralysis lost his senses completely that he was not able to speak or understand anything, so as to vitiate the divorce and his thumb -impression on the divorce‑deed. Looking to the evidence produced by the plaintiff it seems that late Niaz Ahmad was, attacked by paralysis and the right side of his body was affected with it in September, 1964. Dr. Khawaja Zaki Hassan (Exh.6) was, however, not able to say whether his mental capacity was affected. It cannot, therefore, be said, on the basis of his evidence, that late Niaz Ahmad was unable to speak and understand things. It appears that the deceased was able to speak and understand things as well. In fact, the plaintiff's own witness Hameedullah Exh.7 who is closely related to her, has stated in the cross‑examination that "after he fell ill he once called me at his old house. He talked about his illness but did not specifically refer to any other matter. The other witness Abdul Aziz (Exh.8) who is a neighbour, produced by her, did also state in his cross‑examination that "after Niaz Ahmad fell ill he shifted to the house where his children were residing. I had seen several times Niaz Ahmad going to Jamia Masjid after his illness." This evidence shows that late Niaz Ahmad was not entirely incapacitated so as to be unable to utter the word of 'divorce' or that his brain was so affected that for 4 years before his death he was not able to speak or understand the divorce or its implications.

21. The divorce proceedings were initiated before the Chairman, Union Committee. The plaintiff's own representative, Jamilur Rahman, her brother attended the divorce proceedings on her behalf, about whom she, however, stated in her deposition that he was not authorised by her, but she has herself produced, during the course of argument, one letter signed by Jamilur Rahman, her nominee written by him to the Chairman and the certified copy of the divorce proceedings, which were brought on record with the consent of the counsel for the legal representatives of Niaz Ahmad. The evidence of S.M.Rafi, B.D. Member (Exh.10 in Suit No.183/72) is clear on the point of fixing the thumb‑impression by Niaz Ahmad in his presence and B.D. Chairman Syed Abdul Bari Jillani. Not a single question was put in the cross -examination that Niaz Ahmad was not in his senses and that he could not talk at that time.

22. As regards the divorce‑deed being forged, reference may be made to the written statement of Mst. Sardar Begum (Exh.4) to defend suit No.142/80 filed by her late husband for recovery of possession of ground floor of House No. A‑71/1, Khudadad Colony, wherein she has stated that "After giving this perpetual mental and physical torture the plaintiff (Niaz Ahmad) also sent a divorce‑deed unilateraly under a well‑considered scheme ‑ which bears some thumb‑impression of the about the allegation, which was made by her, later on, that the divorce‑deed was forged. In support of the divorce, Vaqar Ahmad (Exh. 5 in Suit No.142/80) for himself and as attorney for the other legal representatives pf the deceased Niaz Ahmad stated that the divorce was pronounced by his father in his presence. The Chairman of the Union Committee, Syed Abdul Bari Jillani, who was also produced as a witness (Exh.13 in Suit No.142/80) in proceedings before him under section 7 of the Family Law Ordinance, 1961, had confirmed the divorce. He has also admitted the certificate to that effect produced in Suit No.142/80. Mst. Sardar Begum admitted to have received a notice from the Chairman Union Council concerned with a copy of Talaqnam Land asking her to nominate a representative on her behalf. Thus, in the divorce proceedings before the Chairman both the parties were represented. The divorce‑deed bears the name and signatures of two witnesses, Syed Abdul Bari Jillani and S.M. Rafi a B.D.Member. Both, these witnesses have been examined in Court and support the case of the legal heirs of the deceased. The mere fact that the divorce‑deed bears thumb‑impression of the deceased, although he was a literate person, cannot vitiate the validity of the divorce, because, admittedly, the right side of the part of body of the deceased had suffered an attack of paralysis and so he appears to have become unable to put his signature on the divorce‑deed. 23. iMst. Sardar Begum, who seems to be an English knowing‑lady herself argued the case, urged that her late husband was suffering from Murzul Maut and was not able to walk and speak or write down and was not in a sound state of mind, and thus, the divorce‑deed is ineffective. Mr. Mahmoodul Hassan, in reply, submitted that the plea of 'Marzul Maut' was not taken in the pleadings. It is true that the pleadings are silent about the allegation of Marzul Maut, but even otherwise the plea is not sustainable.

24. I would like to state the submission of the plaintiff that divorce was pronounced during Marzul Maut and was not effective so as to disentitle. her from inheritance. During the course of arguments, she produced a Fatwa issued by Darul Iftah, Jamia Ulum Islamia, Binnori Town, Karachi, which was brought on record with the consent of the counsel for the defendant. The learned counsel for the defendant, however, submitted that no issue or plea was taken by her in the plaint and thus no issue was struck on the question of Marzul Maut. It is correct that no specific issue was framed but, to my mind it is a natural consequence of issue No.2 and, therefore, after putting the counsel for defendants on notice, I allowed the plaintiff to raise this plea. I find that in the said Fatwa Exh.ll in Suit No.183 of 1972 the question has not been dealt with in its true perspective and it does not apply to the facts of the present case.

25. Marzul Maut has been defined in section 1595 of the Majella A1‑Ahkam al Adliyah, the first codified law of Hanafi Fiqah pertaining to twelve substantive laws and four procedural laws, in accordance with Hanafi Fiqah, compiled by a Committee of scholars, set up by Sultan Abdul Hameed, the Second of Turkey, during 1869‑1876, which remained in force in Turkey until about 1924 when Mustafa Kamal Ata Turk took the reins of kingdom in his hand. The translation of section 1595 reads as under:‑ 1595:‑ "Marzul Maut" (mortal sickness) is the kind of sickness, such that in the condition of sick person there has generally been a fear of death for him, and the sick person being unable to attend to his business, if he is a man, his business outside the house, if she is a woman, her business inside the house, has died before a year has passed on account of this condition. Whether the person has been confined to his bed or not. And if, when the illness of the sick man is prolonged, and one year passes while he is always in one state, unless the illness of the sick man has got worse, and his state is changed, he is like a man who is well, and his transactions are like the transactions of a man who is well. But his illness gets worse and his state changes and he dies before a year passes, his state until he dies, calculating from the time of the change, is mortal sickness. Trans by Tyser of Kenya). The definition of death‑illness laid down in Fatwa Bazaziyah is to the effect that comparatively there be greater possibility of occurrence of death in that illness than in others, and that illness makes the man so incapable that is unable to go out of his house on his daily business and perform his essential chores.

26. So, the ingredients of death illness may be summarized as under:‑ (1) The man or woman, on account of that illness, be unable to perform their daily chores. For instance, the man is not able to go out of his house and the woman is incapable of performing her household duties. (2) Preponderance of the possibility of the occurrence of death in that illness. (3) Imminent fear of the occurrence of death in that illness in the mind of the sick:. person. (4) The occurrence of death during one year of the said sickness.

27. As an example, Muslim jurists have cited that diseases like pthysis (consumption) and paralysis, if progressively worsening, will be classed as death illness and if they are chronic and steady will not be regarded as such.

28. According to Hanafi Fiqah if a man pronounces irrevocable divorce to his wife during his death‑illness and dies in that illness during the observance of her term of probation she shall be entitled to inherit from him whether the disvorce a irrevocable or she be thrice divorced. H However, if the husband dies after the exit of her term of probation of divorce, not inherit from him. t a reports tat. same is the assertion Ibn Abbas, Ibn Al‑Musyyib, Ibn Shabruma, Awza'i, Thawri, Ibrahim Nakh'i, Hammad, Layth, Talus and Shurayah. And it is also reported that similar are the views of 'Umar and Aishah. Reference may be made to Majma' al Anhur by Damad Afandi (died 1078 A . H .) , Cairo 1319 A.H., Vol. 1 Chapter on Talaq al Mareez pp. 427‑28; Fath al‑Qadeer by Ibn al‑Humam (died 861 A.H.) Cairo 1356 A.H. Vol. 111, pp. 150‑155; Radd al Muhtar, a commentary on Al‑Durr al‑Mukhtar by Ibn Abidin (died 1252 A.H.) Cairo 1256, Vol. II p.435; Muwatta by Imam Muhammad (Arabic) Karkhana‑e‑Tijarat Kutub, Noor Muhammad, Karachi. Chanter on Talaq al Mareez pp.257‑58; Bahr al Ra' iq by Ibn al Nujaim (died 970 A.H.) Cairo 1311. A.H. Vo1.III, p.266 and A1 Mabsut by Imam Sarakhsi (died 482), Cairo 1324 A.H. Vol. VI, p.

55. So,. according to the consensus of the Hanafi jurists as laid down in the book Fiqah, referred to above, the said settled Hanafi law is that a I divorce pronounced during death‑illenss, shall not be effective for the purposes of inheritance provided the husband dies of that illness within' the period of probation of that divorce.

29. Mr. Mahmoodul Hassan has only produced an extract from Jami'al Ahkam (p.261). It is Urdu work of Syed Amir Ali which says that a Sunni widow will be deprived of inheritance if her husband dies within 'Iddat period of Talaq for fear of death ill. He has also referred to Mullas Muhammadan Law, 16th Ed. Chapt. X Section 135 (p. 133) which reads as under:‑ "it is an essential condition of Marzul Maut, that is, death‑illness, that the person suffering from Marz (malady) must be under an apprehension of Maut (death). "The most valid difinition of death illness is that it is one which it is highly probable will issue fatally". Baillie,

552. Where the malady is of long continuance, as, for instance, consumption or albuminuria, and there is no immediate apprehension of death, the malady is not Marzul Maut.; but it may become Marzul Maut if it subsequently reaches such a stage as to render death highly probable and does in fact result in death. According to the Hedaya, a malady is said to be of "long continuance", if it has lasted a year; a disease that has lasted a year does not constitute Marzul Maut, for "the patient has become familiarized to his disease, which is not then accounted as sickness", Hedaya,

685. But "this limit of one year does not constitute a hard‑and‑fast rule, and it may mean a period of about one year".

30. In the instant case, firstly, the illness continued for four years, that is, beyond one year. It, therefore, ceases to be a death illness because the attack of paralysis was received on 23rd September, 1964 and late Niaz Ahmad died on 2nd August, 1969, and, secondly, the divorce was given by him on 22‑1‑1967 which became effective after three months as provided under section 7 the Family Law Ordinance, 1961, that is, long before his death. The plaintiff is thus not entitled to inherit the estate of the deceased under the Hanafi Law. The findings on issues Nos.2, 4 and 5 are accordingly. Issue No.3.‑‑ The evidence led by the parties show that late Niaz Ahmad was literate and used to sign his name beforefie received the attack of paralysis on his right side. After the paralysis he put his thumb‑impression on the divorce‑deed, power of attorney, plaint in Suit No.142/80. On Talaqnama (Exh.9/1) he put his thumb‑impression before respectable witness. With regard to any other document, Vaqar Ahmad son of Niaz Ahmad in his deposition has stated that "My father used to sign in Urdu and English but after the paralysis he used to put thumb‑impression. I have documents in my possession that shows that the deceased's put thumb‑impression on , many documents". He produced photo copy of indemnity Bond bearing thumb‑impression of Niaz Ahmad as Exh.9/3. Finding accordingly. Issue No.6.‑‑ No argument was addressed by either side that the plea of divorce is barred by the limitation. As such there is no finding. Issues Nos.7 to 10.‑‑ Since it has been found by me that the divorce was legal and effective, there arises no need for giving any finding on these issues as they relate to the question of properties left by the deceed, and the alleged share of the plaintiff. Issue No.11.‑‑ There arises no need to consider this issue. Issue No.12.‑‑ It will be dealt with at the end. Suit No. 142/80. Issue No.l.‑‑It is proved by the evidence that the defendant lady has lived for sometime at Burnse Road after her marriage with late Niaz Ahmed. Then she shifted to the house in question when it was purchased by him as per agreement dated 6‑3‑1962 (Exh.12 in Suit No.142/80) purported to be a sale‑deed, for a sum of Rs.7,

500. This document shows that the house consisted of 5 rooms, whereof ground floor was given to the lady far her exclusive use and occupation, whereas the first floor was occupied by two sons of late Niaz Ahmad from his first surviving wife.

31. It has been alleged on behalf of the heirs of late Niaz Ahmad that the dower amount of Rs.1,000 has been deposited with the Union Committee in or about 1967 when the notice of divorce and copy of the divorce‑deed was sent to her. On my inquiry, the lady stated before me that she has not been paid the said amount so far, either by the Chairman or the legal representatives.

32. Admittedly the possession of the said house was with the consent of late Niaz Ahmad. In fact he was himself living with her before the sickness. It was observed in the case of Mst. Mains Bibi and others v. Chaudhri Bakil Ahmad and others 1925 P C 63 that the possession of the property being once peaceably and lawfully acquired, the right of the widow to retain it till her dower debt is paid, is conferred upon her by the Muhammadan Law. The right of property is however, extinguished on the payment of dower as observed in the case of Gela Ram v. Mst. Mahbub Jan A I R 1942 Pesh. 92.

33. I, therefore, hold that the lady is entitled to be and remain in possession of the ground floor of house in her occupation bearing No.A‑71/1, Khuddad Colony, Kararachi till such time that her dower amount of Rs.1,000 is paid by the legal heirs of late Niaz Ahmad direct to the lady or is deposited with the Nazir of this Court. Issues Nos.3 and 4.‑‑Since I have already held, while discussing issues Nos.2, 4 and 5 in Suit No. 183/72 that the divorce became effective and the defendant lady is not entitled to any share of the property of the deceased, there is no need for recording separate finding on these issues. Issue No.5 in Suit No. 142/80 and Issue No.12 in Suit No.183/72. Now dealing with these issues as to the relief the parties are entitled, I, for the reasons discussed above, decree Suit No.142/80 as prayed in para (a) of paragraph No.7. The defendant shall vacate the premises situated on the ground floor of the house in question on the payment to her of Rs.1,000 towards her dower. So far as the claim for wrongful use and occupation charges of the said ground floor is concerned, I dismiss the claim as no evidence was led by the legal representatives of Niaz Ahmad.

35. Suit No.183/12 is hereby dismissed. The plaintiff is not entitled to claim any share in the property left by the deceased.

36. The parties will bear their own costs in both the suits. M.B.A Order accordingly.