2016 PLP 2164 (SCMR)

FAISAL ARAB, J.

The dispute in all these petitions pertains to a claim of inheritance in the estate left by the deceased Syed Muhammad Murtaza who upon his death left behind a widow Syed Amtul Aziz; a daughter Amna Khatoon; and four sons namely Syed Muhammad Noor ul Huda, Syed Muhammad Badrudduja; Syed Muhammad Ala and Syed Muhammad Sadrullah. The immovable properties in dispute are (i) House No. 107-H/2, Block-2, PECHS Society, Karachi measuring 300 square yards; (ii) a godown in Juna Market, Karachi; (iii) a plot of land bearing No. 216, Block. No. 10, Federal B Area, Karachi with construction thereon measuring 600 sq. yards; and (iv) shop in Sarafa Bazaar, Karachi.

2. After the death of Syed Muhammad Murtaza, her daughter Amna Khatoon in order to claim her right in the estate left by her father filed Suit No. 1652/1968 against her mother and four brothers for declarations administration and accounts in 1968. The defendants in Suit No. 1652/1968 filed joint written statement on 11.10.1968. The two of the sons of Syed Muhammad Murtaza namely Syed Muhammad Noor ul-Huda and Syed Muhammad Badar-ud-Duja also died during the, pendency of the litigation. They were issueless. It was claimed that the disputed immovable properties were in-fact owned by the mother and the deceased only owned the godown in Juna Market. However, subsequently they filed amended written statement dated 28.08.1971 and claimed that mother Syeda Amtul Aziz has created Waqf-ul-Aulad making her two sons only name Syed Muhammad Ala and Syed Muhammad Sadrullah as its beneficiary. During the pendency of the suit Amna Khatoon died. After her death her mother Mst. Amtul Aziz filed Suit No. 1959/1971 against her heirs claiming share in the House bearing No. 1-H-2/3, Nazimabad Karachi and other moveables that were given to Amna Khatoon in dower at the time of her marriage. Subsequently, the mother Syeda Amtul Aziz also died. Thus the contest remained between the heirs of Amna Khatoon on the one hand and two surviving brothers i.e. Syed Muhammad Ala and Syed Muhammad Sadrullah. The Trial Court vide judgment dated 30.09.1978 partly decreed Suit No.1652/1968 in relation to undisputed assets i.e. the godown in Juna Market, cash and furniture plus fixtures in favour of Amna Khatoon and rejected the claim in relation to four disputed properties. The Suit No. 1959/1971 filed by deceased mother insofar as the House No. 1-H-2/3, Nazimabad, Karachi was concerned was decreed in her favour. Against the judgment passed in two suits, five appeals were filed by both the contesting parties before the Appellate forum. The Appellate Court vide judgment dated 2.1.1989 allowed three appeals filed by the heirs of Amna Khatoon and dismissed the two appeals filed by mother Syeda Amtul Aziz. Resultantly, the Suit No. 1959/1971 stood dismissed. The judgment of the Appellate Court was challenged in three separate Revision Applications before the High Court, which were dismissed vide common judgment. Hence these petitions for leave to appeal.

3. The parties expired during the pendency of the proceedings and their case is being contested by their legal heirs. In the impugned judgment, the learned Single Judge of the High Court has upheld the decision of the Appellate Court after reaching the conclusion that the disputed properties in fact belonged to the deceased Syed Muhammad Murtaza and upon his death devolved upon his widow and five children. The two issueless sons of the deceased Syed Muhammad Murtaza namely Syed Muhammad Noor-ul-Huda and Syed Muhammad Badar ud-Duja's shares also devolved upon Amna Khatoon and the two surviving brothers namely Syed Muhammad Ala and Syed Muhammad Sadrullah. Hence the High Court awarded 20% share in the estate of late father to the legal heirs of Amna Khatoon and 40% each to the heirs of the remaining two brothers namely Syed Muhammad Ala and Syed Muhammad Sadrullah.

4. We have also noted that only in the amended written statement, a claim was raised that Mst. Amtul Aziz executed a Waqf deed in 1966 making her two sons, Syed Muhammad Ala and Syed Muhammad Sadrullah as beneficiaries, which claim was not accepted by the High Court on the ground that no one has been shown as a witness to the Waqf deed except the beneficiary himself. Hence, no sanctity was attached to the Waqf deed and was thus declared to be invalid. Apart from this, we have noted that the Waqf deed is said to have been created in 1966 but in the written statement that was filed in the year 1968 the factum of creation of Waqf in favour of two sons of late mother was not mentioned. It was clearly an afterthought that such a claim was raised in the amended written statement where the plea of Waqf was taken for the first time. We are, therefore, of the view that amendment in the written statement ought not to have been allowed by the Trial Court as it has changed the entire complexion of the defence raised in the original written statement. In any case, the plea that was taken in the amended written statement also could not be established through confidence inspiring evidence. Hence, plea of ownership of deceased mother was rightly rejected by the High Court.

5. For what has been discussed above, we are of the view that the conclusion drawn by the High Court is based on proper appraisal of the pleadings as well as the evidence that had come on the record. Consequently, these petitions are dismissed and leave is refused. MWA/M-69/SC Petitions dismissed.