1986 PLP 2593 (MLD)

S. Rashid‑Rahim for Respondent No. 2. Ch. Manzoor Ahmad for Respondent. 3. Dates of hearing: 11th March, 1984 and 11th June,1986. This judgment will dispose of Civil Revision No.603 of 1982 filed by Mst. Zainab Begum and also two Civil Miscellaneous Petitions bearing Nos. 2304/ C and 4140/ C of 1982, filed therein, by respondents Nos. 2 and 3 respectively. 2. The dispute relates to a house bearing No.S.III‑3‑S‑27, Kabir Street, Paisa Akhbar, Lahore. A suit for separate possession of th share through partition of the house and for rendition of accounts regarding the rent thereof was filed by Muhammad Anis, respondent No‑1 against his mother Mst. 'Zainab Begum, his sister Mst. Zareen Begum and his brother Muhammad Idrees. This is an erstwhile evacuee property and was transferred jointly in favour of all four of them by means of a P.T.D. (Exh.P.l) issued in the year 1961. The suit was contested by all three defendants. The mother, Mst. Zainab Begum denied that the plaintiff was at all a co‑sharer in the house. She claimed herself to be the sole owner thereof. The other two defendants, in their separately filed written statements, admitted the plaintiff to be a co‑sharer but contested the suit on various other pleas. The divergent pleadings of the parties gave rise to the following issues:‑ "(1) Whether the plaintiff is estopped by his own conduct to file the present suit? (2) Whether the plaintiff has no cause of action? (3) Whether the defendants 1, 2 and 3 have any charge over the property by means of repair and construction of the property? If so to what extent and with what effect? (4) What is the proportionate share of the plaintiff in the property and in its rent? (5) Relief." Issue No.4 was recast the same day in the following words:‑ "4. Whether the plaintiff has got a share in the property? If so, what is the proportionate share?" After recording the evidence desired to be produced by the parties, learned Civil Judge on 6‑11‑1979 passed a preliminary decree for possession through partition by determining th share for each one of them. Three appeals thereagainst were filed before the Additional District Judge, Lahore, by Muhammad Idrees, Mst. Zainab Begum and Mst. Zareen‑ Begum, respectively. They were dismissed by means of the judgment, dated 25‑1‑1982 by affirming the findings recorded by the trial Court on all the issues. 3. The mother, Mst. Zainab Begum has come up to his Court in revision whereas the other two defendants namely, Muhammad Idrees and Mst. Zareen Begum, have filed the aforementioned civil miscellaneous petitions on the assumption that their independent revision petitions would not be competent. Even though I am of view that the two defendant‑respondents are not debarred from maintaining their own independent 'revision petitions during the pending of the one brought by their co‑defendant, Mst. Zainab Begum, yet, since the controversy between 'the parties is confined to the findings recorded by the Court A below under issue No. 3, therefore, it is desirable that the entire dispute between the mother and her children may be decided in this case, without insisting upon the petitioners respondents to file separate revision petitions. Therefore, I have heard the learned counsel for the parties at length. 4. It is argued for the petitioner that the document of title P. T. D. has been misinterpreted with regard to the shares of the parties. He learned counsel has contended that the Old Settlement Manual contain instructions issued by the Settlement Department which require that where a property is jointly transferred to two or more persons there, in the absence of agreement to the contrary, their shares should be fixed according to the contributions made by them. His contention is that those instructions should have been kept in view by the Courts) below for the purpose of determining title of the parties and them disregard has vitiated their judgments. I do not find any merit in this contention, firstly, because departmental instructions relating to the preparation of documents do not have any direct bearing upon the interpretation of such a document in civil Court and, secondly, because there is no evidence pointed out by the learned counsel which may have been adduced in this case with regard to the respective contributions made by the joint transferees. In this situation, even the principle laid down in section 45 of the Transfer of Property Act cannot be applied because the petitioner has not proved the extent of even her own contribution in the payment. In the absence of such proof, the principle laid down by a Full Bench, of this Court in Nanak v. Ahmad Ali A I R 1946 Lah. 399 will apply. Therein, relying on an earlier Full Bench judgment reported as A I R 1928 Lah. 43, it was concluded that in the absence of specification of shares ins sale‑deed, the property will be presumed to have been purchased by the vendees in equal shares. In the above view of the matter, the finding recorded by the two Courts below that each transferee held th share in the house in dispute, is only unexceptibnable. 5. Next argument of the learned counsel for petitioner is that the agreement Exh. D.1 deserved to be given effect by, the Courts below but it has been wrongly ruled out of consideration because it was not an executed contract between the parties but was executory in nature and had been prepared for being filed in the Settlement Department. This argument is clearly misconceived and, proceeds upon a disregard of the contents of Exh.D.1 which is, dated 31‑1‑1962 and clearly recite that transfer had already been made to all four of them on 25‑11‑1959. It contemplates to extinguish the rights of the executants as the existed on the day of its execution and is, therefore, not merely an agreement but is a document which on the one hand purports to assign, extinguish and limit rights and title in immovable property of the value of more than one hundred rupees and, on the other, also purports to create, declare and assign such rights therein and is, therefore I, compulsorily registrable under section 17 of the Registration Act, 1908 and having not been registered, by virtue of section 49 thereof, it cannot operate with regard to the house in dispute. This objection equally applies to the document Mark 'A' to the same effect executed on 9‑9‑1967. Change .of shares of the parties in the hope cannot be deemed to have been brought about by either of these documents. Contention of the learned counsel is, therefore, repelled. 6. Learned counsel for respondent No.1 has simply reiterated the reasons which prevailed in the Courts below to refuse to give effect to EXh.D.l, namely, that it had not been acted upon. But in view of the foregoing finding with regard to the value of EXh.D.l it is not necessary to give any considered opinion as to whether or not it had been acted upon. He has next urged that respondent No.1 was entitled to be granted a decree with regard to his outlay on the suit house. A similar claim has been made by the learned counsel for respondent No.2 who has further submitted that since the receipt Exh.D.W. 1/2 was extracted in cross‑examination, therefore it should be deemed to have been admitted without objection inasmuch as the contesting parties had full notice of it on account of its mention in the written statement and absence of formal proof thereof is not of any significance. On this premises it is claimed for both respondents Nos.2 and 3 that issue No.3 should have been decided in their favour. Their claims are only preposterous because trial Court has held that there has not been led any evidence to prove the respective claims with any exactitude and neither of the two counsel has pointed to any specific evidence on the point. Mere presence of a receipt, without its executant having been brought into the witness box cannot be regarded sufficient for soliciting a favourable finding, under issue No.3. More particularly so, in the absence of any evidence with regard to a liability of the co‑sharers to make reimbursements. Contentions raised for respondents Nos. 2 and 3 cannot, therefore, be sustained and they are accordingly repelled. 7. Judgments passed 'by the two Courts below are unexceptionable on the record and. their decrees do not call for interference. 8. There is no case at all made out for interference in favour either of the petitioner, or 'of respondents Nos.2 and 3. Civil Revision as well as the two miscellaneous applications are, therefore. dismissed. There will, however, be no order as to costs. H. B . T . Revision petition dismissed.