ccordingly (PLP)

This matter was being fixed for orders on Commissioner's report dated 22‑2‑1981‑ from time to time. However, ultimately, the matter was fixed for hearing on 7‑4‑1991 from which date it was adjourned to 29‑4‑1991 in presence of Mr. S.M. Noorul Hassan, Advocate for the plaintiffs. On 29‑4 1991, the matter was partly heard in presence of Mr. SA. Kirmani, Advocate (since deceased) and Mr. S.M. Noorul Hassan, Advocate for the plaintiffs and Mr. Shabbir Ahmed Shaikh, Advocate for the defendant and was adjourned to 20‑5‑1991 for‑further arguments. On 20‑5‑1991, the matter‑was adjourned in presence of M/s. S.M. Noorul Hassan and Shabbir Ahmed Shaikh, Advocates. The matter then came up for arguments on 20‑8‑1991 when only Mr. Shabbir Ahmed Shaikh, Advocate for the defendant was 9 resent, arguments were heard and it was reserved for orders which were then written and announced on the same day and final decree was ordered to be prepared. However, on an application moved subsequently by the learned counsel for the plaintiffs, the said order was recalled on 13‑1‑1992, On this day Mr.Shabbir Ahmed Shaikh, Advocate for the defendant submitted his arguments while Mr. S.M. Noorul Hassan, learned counsel for the plaintiffs sought time to submit written note of ,arguments within 10 days, which he has done on 20‑1‑1992. The facts briefly are that this is a suit for administration, in which a preliminary decree was passed on 7‑9‑1977 and the Nazir was appointed as Commissioner to hold enquiries and give report with the following directions: (1) An account of the funeral and testamentary expenses be taken. (2) An account of the movable property of the deceased come to the hands of the defendant or to the hands of any other person by his order for his use be taken. (3) An inquiry what part (if any) of the movable property of the deceased is outstanding and undisposed of be made. (4) And it is further ordered that the defendant do, on or before the 31st day of December, 1977, pay into Court all sums of money which shall be found to have come to his hands, or to the hands of any person by his order or for his use. ‑ (5) And that Nazir be receiver in the suit and receive and get in all outstanding movable property of the deceased and pay the same into the hands of the legal heirs. (6) (a) an inquiry what‑immovable property the deceased was seized of or entitled to at the time of his death be made; (b) an inquiry, what are the encumbrances (if any) affecting the immovable property of the deceased or any part thereof be made. (7) And it is further ordered that for the purpose of the inquiry hereinbefore directed the Nazir shall advertise in the newspaper according to the practice of the Court, way which shall appear to the Nazir to give the most useful publicity to such inquiries. t, (8)' And it is ordered that the above inquiries and accounts be made and that all other acts ordered to be done be completed before the 8th day, of January, 1978 that the Nazir do certify result of the inquiry and the accounts and that his certificate in behalf of the inspection of the parties on the day of December, 1977. (9) Process to compel the attendance before you of witnesses, or for the production of documents, which you may desire to examine, ‑inspect, will be issued by the Court having jurisdiction on your application." The Nazir accordingly held the inquiries. The plaintiff No.1 filed his affidavit before the Nazir wherein he disclosed that the deceased at the time of his death was seized or possessed of the following properties:‑‑ (1) Plot of land bearing No.C‑32/A admeasuring 997 square yards situated in K.D.A. Scheme No.1, Karachi together with the building standing thereon. (2) Cash, ornaments and household goods of the value of at least Rs.50,000. (3) Rent received by the defendant from various tenants since the death of the deceased. (4) About Rs.4,000 lying to the credit of the deceased in his account with National Bank of Pakistan, Mohammad Ali Housing Society Branch, Karachi. He also disclosed that he carried on business in partnership with the deceased and (i) Taqi Ahmed, (ii) Mohammad Kaleem, (iii) Mohammad Aleem and (iv) Mrs. Najma Begum since 1963 in the name of "Messrs. Amir Brothers". It is further the case of the plaintiff that this firm had suffered heavy losses and the entire capital was lost. All the accounts were settled during the lifetime of deceased and the firm ceased to do any business since 1971. The plaintiff No.1 also claimed in his affidavit that he ‑also carried on business in partnership with the deceased and plaintiff No.2 in the Firm, namely, "K. Mohammad Moosa & Sons" which ceased to do any business in 1962 and all the accounts were settled between the parties. The plaintiff No.1 further disclosed about the third business which he carried out in partnership with the deceased and the aforesaid Messrs Taqi Ahmed, Mohammad Kaleem, Mohammad Aleem and Mrs. Najma Begum in the Firm, namely, "Ahmed Petroleum Services" which Firm is stilt in existence. As against this,. the defendant also filed her affidavit in which she disclosed the following assets to have been left by the deceased K. Mohammad Moosa:‑‑ (1) An amount lying in the account in the name of deceased in National Bank of Pakistan, Muhammad Ali Housing Society Branch, Karachi. (2) Security deposit lying with M.E.S. (3) Steel shuttering that was lying at Dockyard at the time of death of my husband. (4) Cash paid to Taqi Ahmed and Ghaza Sab for Steel work and to one Abdul for lorry account. (5) Amount of Rs.35,000 (Rupees Thirty‑Five Thousand) only received by the plaintiff No.1 in cash from Parvez Pipe Account which was payable by plaintiff No.1 to the deceased but he did not pay the same and is liable to account for the same. A sum of Rs.27,800 received by plaintiff No.1 from the K.D.A. on account of deceased and the plaintiff is liable to account for the same. (7) A sum of about Rs.7,00,000 (Rupees Seven Lakhs) only received by plaintiff No.1 from the deceased for husincss purposes, which the plaintiff No.1 is liable to.account for. The business account of M/s. M. Mohammad Moosa and Sons which is in the exclusive possession of plaintiff No.1 and several lacs of rupees have been received and/or drawn by him from the said business account and the plaintiff No.1 is liable to account for the same.., The defendant further claimed in her affidavit that the immovable property bearing No.C‑32/A, KDA Scheme No.1, Karachi was orally gifted to her by the deceased on 5‑10‑1962 and possession was handed over to her and thereafter on 8‑10‑1962 the deceased also executed the Declaration pertaining to the fact of oral gift and further confirmed the delivery of possession and also executed an agreement pertaining to tenancy rights; and that eversince then, even during the lifetime of deceased, the present defendant had been acting as owner of the said property which she had been letting out to the tenants and realised rent from them. She has also produced an Agreement of Tenancy executed on 15‑9 1971 with one Sajjad Akbar Naqvi. She also produced the other agreement executed on 15‑10‑1972, during the lifetime of deceased with Society of Air Craft Engineers of Pakistan; and that the deceased himself was a witness to the former agreement. The case of the defendant further is that the Firm Messrs K. Mohammad Moosa & Sons was in the hands of plaintiff No.1 at the time of death of the deceased. Both the parties produced various documents in respect of their claim. The Nazir in his report has first taken up the property bearing Plot No.C‑32/A, KDA Scheme No.1, Karachi admeasuring 997 square yards with the house built thereon. With regard to this property, the Nazir has given his finding that the said house and plot had been gifted to the defendant by the deceased in October, 1962. The Nazir has based his finding on Declaration of Oral Gift, Deed of Acceptance of Gift and the subsequent Lease/Rent Agreement. The above documents show that the first one is a Declaration executed by (he deceased on 8‑10‑1%2 wherein he has confirmed the gift made in favour of the defendant and consequent delivery of possession also. The other document is the Rent Agreement dated 15‑10‑1962 duly attested by Income‑tax Officer Circle V Karachi (West) wherein the defendant has been shown as the owner of this property. These two documents fully confirmed the contention of the defendant that she is in occupation of the said property by virtue of the gift as claimed by her. As against this Mr. S.M. Noorul Hassan, learned counsel for the plaintiffs in his note of arguments has submitted that the defendant has failed to substantiate her case. The learned counsel has submitted that in case of gift, the onus is on the donee to prove the factum of the gift. Not only this, but, he has submitted, that there arc three essential ingredients of the gift, which the donee is required to prove. Firstly it should be proved that the donor had all intention and had unequivocably declared his intention of making gift, secondly, there should be acceptance on the part of the donee, which may be express or implied, and thirdly, the donor should have delivered the possession of the demised premises to the donee. ‑ He has submitted that in the present case, none of the three ingredients have been proved by the donee. He has challenged the Declaration of Gift by submitting that the same was, a forged one prepared subsequently as the signatures on this document do not tally with the signatures of the deceased on the letter addressed to Karachi Development Authority and on the letter to the Excise & Taxation Department. As regards these letters, it may be observed that the Income‑tax Officer produced by the plaintiffs was not cross‑examined. This Officer was examined with the purpose to prove the contention of the plaintiffs that the said property was mentioned in the statement of assets and liabilities filed for the period ending 30th June, 1968. Be that as it may, the record shows that this witness avoided to appear and submit to cross‑examination in spite of notices which were issued to him. These notices he has refused to accept and consequently there was an order for issuance of show‑cause notice to this witness. In these circumstances, his evidence loses weight and cannot be taken into consideration. The other letter brought on record by the plaintiffs is only a photostat copy from where the learned counsel submits that up to the year 1971, the deceased claimed himself to be the owner of this property. This letter is only a photostat copy and not an original one and, therefore, it cannot be taken into consideration and was rightly declined by the Nazir. The learned counsel for the plaintiffs has then submitted that the fact that the defendant did not disclose the Declaration of Gift and did not get the record mutated in her name with the K.D.A. since 1962 goes to give rise to an inference that these documents are forged. The learned counsel for the plaintiffs has then submitted that during earlier period, the plaintiffs had been residing in the upper storey of the said bungalow and the fact that the deceased was also residing in the bungalow goes to show that the possession was not handed over to the defendant and from this, he has submitted that even the third essential ingredient does not stand proved. He has placed reliance on the case of Rais Mohammad Mushtaq and 2 others v. Mir Haider Bakhsh PLD 105 Karachi 416.' ' This is a Single Bench judgment of this Court which does not involve a gift from husband to wife living in the same premises and with all respect I am of the view that this case will not have any direct bearing on the present case. The other case relied upon by the learned counsel for the plaintiffs is the case of Mt. Abdul Satiar Begum v. Member, Board of Revenue, West Pakistan PLD 1913 Peshawar

1. This is a Division Bench judgment of the Peshawar High Court involving a case of gift from husband to wife. In this case their Lordships have relied on the case of K.S. Agha Mir Ahmed Shah and others v. K.S. Agha Mir Yaqub Shah and others PLD 1957 Karachi 258 wherein it was held as under; "Even in case of husband and wife, both residing together, actual delivery of possession of the property to the donee by the donor and the donor divesting himself of the possession of the property is absolutely necessary because delivery of possession of the subject of the gift by the donor to the donee is a necessary condition to be complied with for the completion of a valid gift." In the same judgment of the Peshawar High Court, their Lordships have distinguished the case of Ma Mi and another v. Kallander Ammal (AIR 1927 PC 22). In this case of Privy Council it was held as under : "in the case of a gift of immovable property by a Mahomedan husband to his wife, once mutation of names has been proved, the natural presumption arising from the relation of husband and wife existing between them is that the husbands subsequent acts with reference to the property were done on his wife's behalf and not on his own." In view of above judgments, there can be no cavil about the legal position that even in case of gift from husband to wife, the transfer of possession is one of the essential ingredients of a Muslim Gift. However, in such cases where the husband and wife are residing in the same premises which are subject‑matter of the gift, the transfer of possession‑ could be actual physical or constructive. All that is to be seen is whether the husband after Declaration of Gift has performed any act evidencing the factum of gift or has abstained from doing something which he otherwise in normal course would have done as an owner of the demised property. In the present case, it is an admitted postition that the deceased Mohammad Moosa had expired on 25th December, 1973. The defendant has produced on record an agreement of tenancy executed on 15‑9‑1971 with one Sabad Akbar Naqvi. She also produced the other agreement excuted on 15‑10‑1972 with Society of Aircraft Engineers of Pakistan. These agreements are executed by !4c defendant and arc executed in the lifetime of the deceased' Mohammad Moosa. Not only this the former agreement dated 15‑9‑1971 bears the signature of the deceased himself as a witness. This conduct of the deceased himself would show' that he had confirmed the ownership of the defendant and thus in my view, the principles laid by the Hon ble Privy Council in the case ot Ma M1 and another v. Kallandar Ali as cited above would be applicable. Further reliance may also be placed on a Single Bench judgment of Miaruddin Bhuiyan and another v. Salch Meher Bibi and others PLD 1960 Dacca 120 wherein his Lordship has observed that in case a Gift Deed contains recital about transfer of possession the same would be binding not only on the donor but on his heirs. In a Division J, bench judgment given in the case of Safi Ullah v. Ghuldin Jabbar PLD 1955 Lahore 191 it was observed by Akhlaq Hussain, J., as under, "A declaration by a donor regarding the delivery of the gifted property made solemnly, intelligently and freely, is irrevocably binding on him and those who may claim the property through him in disregard of his gift. The true doctrine of the Muslim Law relating to gifts does not require either that only a particular kind of possession be given; or that possession can be given only in certain specified ways. What is really required by Muslim Law is that there should be satisfactory evidence that the donor did in fact part with possession of the subject‑matter of his gift either physically or constructively. A declaration that possession has been delivered, if satisfactorily proved, is by itself sufficient to show that possession has been given to the donee." Also in the case of Mst. Sardar Khatun v. Secretary of State and others AIR 1939 Sindh 9 it was held by a Division Bench that where the Deed of Gift itself recites that the donor has given up possession of his property to the donee, such recital is binding on the heirs of the donor. In view of the above discussion and the case‑law, it can be observed that of course one of the essential ingredients in a valid Muslim Gift is the transfer of possession but in case of a gift from a husband to wife where they are residing in the same premises, the possession can be transferred constructively also. This can be gathered from the conduct of the donor who by doing or abstaining from doing certain acts supports the donee. Consequently, I confirm the report of the Nazir/Commissioner on this point and hold that the Defendant is the exclusive owner of the said plot and bungalow by virtue of the gift. With regard to the business being run in the names of "Amir Brothers" and "K. Mohammad Moosa & Sons" the Nazir's reports show that no document was produced by both the parties. The plaintiffs' own case is that these businesse$ ceased to function during the lifetime of the deceased; and that the accounts were settled at that time. However, nothing has been brought on record by,the parties. , Accordingly, I hold that these businesses ceased to exist at the time 0 death of the deceased and nothing could be said to be outstanding against the plaintiffs. With regard to third business being run in the name of "Ahmed Petroleum Services" the' Nazir's !report and the record shows that plaintiff No. 1 has admitted that the deceased had 0‑3‑0 anna share in the business which is still existing. However, the case of the plaintiff No.1 is that this partnership came to an' end after the death of his father, the deceased K. Mohammad Moosa; and that now he is the sole owner of the business. No evidence has been produced by the plaintiff 'No.1 to prove the settlement of the shares of the deceased in the Firm. Mr. S.M. Noorul Hassan, learned counsel for the plaintiffs in his note of arguments has not challenged these facts but all that he has submitted is that the calculations made by the Commissioner are not correct. 'this is a ,vague plea without any substance. I accordingly hold that the deceased's share in the Firm would devolve on his heirs in accordance with Mohammadan Law: and that the defendant will also be entitled to the extent of 13% share thereof. In these circumstances, I would accept the Nazir's report as regards the Petroleum business tun in the name of "Ahmed Petroleum Services". It is an admitted position that the Firm earns about Rs. 12,000 per annum and according to the report of Nazir, the commission received by the plaintiff No.2 during the period 1974 to December, 1980 would be about Rs.1,50,000 and in addition the plaintiff No.1 had also received a sum Rs.67,200 being the rent of Service Station let out to one Nazar Mohammad during the abovesaid period. I would accordingly direct the plaintiff No.1 t deposit the shares of the co‑heirs of deceased from the sum of Rs.1,50,000 an Rs.67,200 in the Court within a period of one month from the date of till decree. He will also deposit the of the co‑heirs for the period January 1981 till the date of this decree at the same rate within a period of one month from the date of this decree and also continue to deposit every month their shares. Admittedly the plaintiffs Nos.1 and 2 arc the sons while plaintiff Nos.3 and 4 are daughters of the deceased while the defendant is the widow of the deceased. Accordingly the shares of the parties would, b asunder: Plaintiff 1No.1. Now succeeded by his legal heirs' No.1(a) to (h) 29 Paisa. Plaintiff No.2. 29 Paisa. Plaintiff No‑3. 14.5 Paisa. Plaintiff No.4. 14.5 Paisa. Defendant. 13 Paisa.' Let the final decree be passed in terms of the above order. A.A./R-200/K Order accordingly,