2005 PLP 219 (CLD)

ATA-UR-REHMAN, J.

This is an appeal arising out of the order dated 1-8-1996 passed by the learned Single Judge in J.M. No.26 of 1991 whereby she dismissed C.M.A. No.810 of 1995 an application under Order XXI, rule 58 filed by the present appellant in respect of the property bearing No. 122-A, Sindhi Muslim Cooperative Housing Society, Karachi and hereinafter referred to as the said property.

2. The case of the appellant is that the said property was initially owned by his father namely G.M. Malik who died on 17-3-1990 leaving among others the appellant and the respondent No.6 as, his legal heir. The respondent No.6 during the life time of her father i.e. on 21-3-1985 executed a personal bond i.e-annexure "F" to the R and P whereby she stood guarantor for respondent; No.2. Messrs. Mineral Grinding Mills Ltd. against a loan granted to them by the I.D.B.P.; and in the personal bond she declared herself of having 1/4th share in the said property. It is being urged that at that relevant time respondent No.6 was not the owner in any manner. She violated the provisions of section 6(a) of the Transfer of Property Act which is reproduced as under:-- Section 6(a) "

6. What may be transferred. Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force. (a) The chance of an heir-apparent succeeding to an estate the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of like nature, cannot be transferred."

3. It is contended that after the death of the father said property devolved in his legal heirs including the appellant and the respondent No.6, and she became entitled to 7/96th share therein. The respondent No.6 by declaration of oral gift dated 5-1-1991 gifted her 7/96th share in the said property to the appellant.

4. The Bank filed the proceedings on 7-4-1991 under section 39 of the I.D.B.P. Ordinance, 1961. In those proceedings ad interim order of attachment dated 10 -9-1991 in respect of the said property was passed and was made final on 24-11-1992. These orders were obtained by the respondent No.1 on the basis of annexure `F' i.e. personal bond to the R and P.

5. After having knowledge of the aforesaid attachment orders the present appellant moved the said C.M.A. No.810 of 1995. The matter was argued before the learned Single Judge and she dismissed the application mainly on the grounds that:-- (i) The application was barred by limitation. (ii) The declaration of gifts executed in favour of other donees were subsequent to the attachment orders. (iii) Other legal heirs of deceased G.M. Malik have not approached the Court.

6. Learned counsel for the appellant contended that in fact it was due to the typographical mistake that in para.(7) of the affidavit filed in support of C.M.A. No.810 of 1995 the date has been given as 16-4-1994 whereas it should have been 16-4-1995. In support of this he referred to the annexure `D' to his application No.810 of 1995 which is the letter dated 16-4-1995 of Messrs Usmani Iqbal and Company Advocates addressed to the respondent No.4 and according to him the one year period would start from the receipt of that letter. As to the declaration of the gift he submitted that the learned Single Judge was in fact impressed by the documents and their dates executed in favour of other donees and have not separately discussed- the declaration of gift dated 6-1-1991 executed in favour of the appellant which was much earlier to the date of attachment orders dated 10-9-1991 and 24-11-1992. As to the observation of the learned Single Judge that the other legal heirs have not approached to the Court, he submitted that it does not affect in any manner the case of the appellant and his case has to be decided on merits.

7. Mr. A.I. Chundrigar, learned counsel for the respondent No.1 supported the impugned orders and in reply to the provisions of section 6 of the Transfer of Property Act, ire referred the provisions of section 39(1)(a) of the I.D.B.P. Ordinance, 1961 which is reproduced as under:--

39. Special provisions for enforcement of claims by the Bank:

(1) Where by reason of the breach of any condition of any agreement between the Bank and an industrial concern, the Bank becomes entitled to require the immediate payment of any loan before the due date, or where an industrial concern fails to repay such loan by the due date or in compliance with the notice under section 38, an officer of the Bank, generally or specially authorized by the Board in his behalf, may apply to the District Judge within the local limits of whose jurisdiction the concern carried on the whole or a substantial part of its business, for one or more of the following reliefs, namely:-- (a) An order for the sale of the property pledged, mortgaged, hypothecated or assigned to the Bank as security for the loan, or

8. He submitted that even, if the said property was not mortgaged or placed with the Bank, the bank was at liberty to obtain orders against any of the property owned by the respondent No.6. He, however, had not rebutted the contentions of the learned counsel for the appellant in respect of declaration of the gift dated 6-1-1991 which is registered and is a public document.

9. We considered the submissions. It is an admitted position that at a time when a personal bond was executed by respondent No.6 in favour of the respondent No.1 as a guarantor the owner of the property was alive and as such, legally she was not entitled to create any charge thereat or to declare any part thereof as her own. At best she had an expectancy of inheriting from her father. Such an expectancy is not a transferable estate as would be evident from a plain reading of section 6 of the Transfer of Property Act. Section 39 of the I.D.B.P. Ordinance would apply to "property.". In the present case the respondent No.6 had no property interest in the attached property and as such section 39 of the I.D.B.P. Ordinance is not attracted. We have perused the R and P and seen the letter of Mesrs Usmani and Iqbal and Company which is in fact dated 16-4-1995 and it appears that due to typographical mistake while drafting the pleading the appellant inadvertently mentioned the date as 16-4-1994. If the date is taken as 16-4-1995 for the knowledge of attachment orders then the application was within a period of one year as it was filed on 18-5-1995. The case of the appellant will not be affected by the fact that the other legal heirs have not approached the Court against attachment orders because the case of the appellant has to be seen on its own merits.

10. The upshot of the above is that the appeal is allowed and the impugned order dated 1-8-1996 is set aside with no order as to costs.

11. The respondent No. 1 however, will be at liberty to proceed for the recovery of loans against respondent No.6, if so permitted by law, in respect of any other property owned by her. M.B.A./Z-14/K Appeal accepted.