P L D 2011 Karachi 232 (PLP)

SYED HASAN AZHAR RIZVI, J.

By the order dated 27-10-2009 learned counsel for the plaintiff was required to be prepared to argue on the maintainability of the suit. Since the matter is fixed for arguments on the point of maintainability of the present suit, therefore, I have also heard C.M.A. No.2390 of 2006 fixed at Serial No.4 filed by the defendants for rejection of the plaint.

2. Learned counsel for the plaintiff submits that the plaintiff is the stepbrother of deceased Syed Altaf Hussain, who died at Karachi on 2-8-2001. After the death of the deceased Syed Altaf Hussain, Mst. Shamshad Begum the defendant No.1 who is widow of the deceased filed S.M.A. No.106 of 2002 in this Court stating therein that the deceased left behind his two legal heirs i.e. defendants Nos.1 and

3. The contention of the plaintiff's counsel is that the defendant No.1 in the present suit filed S.M.A. No.106 of 2002 in this Court. In the memo of petition in S.M.A. No.106 of 2002 it was stated that the deceased contracted second marriage with defendant No.2 in the present suit and out of their wedlock the defendant No.3 in the present suit was born. However, before the death of deceased, the deceased on 14-10-2000 divorced defendant No.2 and therefore, the defendant No.1 in the present suit along with defendant No.3 are entitled to inherit properties left by the deceased Syed Altaf Hussain.

3. It is stated in the memo of plaint in the present suit that during hearing of S.M.A. No.106 of 2002 the plaintiff filed an application to the effect that he is step-brother of the deceased and is, entitled to inherit the properties left by the deceased. Plaintiff further stated in the plaint that present defendant No.3 is not real son of the deceased as the deceased was issueless and incapable to become a father.

4. The plaintiff also stated in the plaint that the marriage of the deceased with defendant No.2 was not valid as Nikahnama produced by defendant No.1 in S.M.A. No.106 of 2002 was forged, manipulated and fabricated, signature of the deceased on the divorce deed too not tally with the signature of Nikahnama.

5. It is further stated in the memo of plaint that at the request of plaintiff the learned single bench of this court sent Nikahnama for verification but before arrival of its report, on appearance of Nikah Registrar, the Court decided the S.M.A. No.106 of 2002 in haste by rejecting the application of plaintiff and excluded him to inherit, the properties of the deceased.

6. It is further stated in the memo of plaint that after rejection of the plaintiffs' application in S.M.A. No.106 of 2002, the plaintiff filed High Court Appeal No.249 of 2002 and after hearing the said appeal the Divisional Bench of this Court while observing the plaintiff to belong Jaferi Fiqqah, dismissed the appeal on 31-10-2002.

7. The plaintiff further stated in the memo. of plaint, that the plaintiff and his deceased step-brother are followers of Sunni Hanafi Law and since there is error in the order of the Divisional Bench as word Jaferi is attached in the name of plaintiff and therefore the Divisional Bench of this Court has held the plaintiff and deceased are followers of Fiqqah Jafria, Hence according to the plaintiff it is necessary that proper declaration regarding the Maslak of the deceased and the plaintiff be made by this Court after collection of evidence. According to the plaintiff the deceased never married with defendant No.2, therefore, defendant No.3 cannot claim to be legal heir of the deceased and is not entitled to receive the share of inheritance from the properties of deceased. Along with memo of plaint the plaintiff has filed photocopies of application under section 372 of the Succession Act, 1925 bearing S.M.A. No.106 of 2001 filed by the defendant No.1 in his Court, Nikahnama of the deceased with defendant No.2, divorced deed, photocopy of certified copy of order dated 3-9-2002 in S.M.A. No.106 of 2002, photocopy of memo of Appeal in H.C.A. No.249 of 2002 and the photocopy of the certified copy of the order dated 31-10-2002 passed by the Divisional Bench of this Court comprising of Mr. Justice Sabihuddin Ahmed as Lordship the then was and Mr. Justice Aamir Hani Muslim.

8. Learned counsel for the plaintiff while arguing on the maintainability of the present suit has urged that collection of the material from both parties regarding the validity of marriage between deceased and defendant No.2 as well as legitimacy of defendant No.3 being son of the deceased is very essential and necessary which can only be done after recording of evidence of the parties. It is further argued by the plaintiff's counsel that the plaintiff had no opportunity to adduce his evidence in S.M.A. No.106 of 2002 and the learned Single Bench of this Court dismissed the objections of the plaintiff in S.M.A. No.106 of 2002 without arrival of report of the Nikah Registrar, which was sent for verification and rejected objections. Learned counsel for the plaintiff further contended that while deciding H.C.A. No.249 of 2002 by the Divisional Bench of this Court it is held that the appellant (the present plaintiff) who is stepbrother of the deceased does not clarify to be legal heir under the Jafria Fiqqah, According to the learned counsel for the plaintiff the deceased and the plaintiff are the followers of Sunni Hanafi Fiqqah and the plaintiff is entitled to have received his share of inheritance from the properties of the deceased, therefore, determining of the Maslak essential which can only be decided through evidence.

9. Mr. Shahanshah Hussain learned counsel for the defendants while arguing the application for rejection of the plaint submits that admittedly the plaintiff is the stepbrother of the deceased., Mother of the plaintiff and deceased were different but their father was same. He further submits that admittedly S.M.A.No.106 of 2002 was filed in this Court, the plaintiff intervened in that case pleaded that the defendant No.2 was not wife of the deceased and defendant No 3 was not his son, this Court called the Nikah Registrar, who was examined in this Court 'and was cross-examined by the present plaintiff. The original Nikahnama was produced before this Court and by order dated 3-9-2002 in S.M.A. No.106 of 2002 this' Court has held that from the evidence of Mr. Qazi Sher Muhammad the Nikah Registrar, who produced original Nikahnama beyond any reasonable doubt that Noshina the defendant No.2 was legally wedded wife of deceased Altai Hussain Jaffry and Azeem Altaf is the son of the two i.e. Altai Hussain Jaffry and Noshina Manzoor and had rejected the objection of the plaintiff and consequently granted letter of administration in respect of properties of the deceased. The plaintiff filed H.C.A. No.249 of 2002 before the Divisional Bench of this court, which has also been dismissed. The plaintiff neither challenged the order of the High Court Appeal No.249 of 2002 passed on 31-10-2002 nor tiled any application for review. The counsel for the defendants submits that the points raised by the plaintiff in the present suit have already been decided by this Court in S.M.A. No. 106 of 2002, which order has been maintained by the Divisional Bench of this court in HCA No.249 of 2002 and therefore, present suit is barred by the res judicata. Learned Counsel for the defendant further submits that being stepbrother of the deceased the plaintiff in presence of real son of deceased is not entitled to inherit under Muslim Hanafi School of Thought like followers of Fiqah-e-Jafferia. Learned counsel for the defendant has argued that no cause of action has occurred to the plaintiff to file the present suit and the plaint is liable to be rejected. He has relied upon the case of Damodarlal v. Gopinath reported in 1956 Nagpur 209 (AIR V 43 0 72 Aug.), relevant portion is reproduced as below: "The rule of res judicata applied to the decisions of probate Courts given in cases not only where the seeking of probate or letters of administration if obligatory, but also when it is optional"

10. Learned counsel for the plaintiff while rebutting the arguments submits is that since the legal points are involved in the matter therefore, he had not filed any counter affidavit, however, he submits that the plaint can only be rejected under Order VII Rule 11, C.P.C.

11. I have heard Mr. Khalid Imran Advocate for the plaintiff, Mr. Syed Shahanshah Hussain Advocate for defendant No.1 and perused the case law cited by the counsel for the defendant No.1.

12. Heirs, according to Hanafi Law, are mainly sharers, residuaries and distant kindred. Sharers are those heirs whose shares are specified in Holy Qur'an, expounded by the Holy Prophet (peace be upon him) and Ijma-ul-Ummat. They are also called Zavil Furuz or Dhawai-al-Furud.

13. Sharers are twelve in number; (1) father, (2) true grandfather, (3) husband (4) wife or wives, (5) mother, (6) true grandmother or true grandmothers, (7) daughter or daughters (8) son's daughter or son's daughters, (9) uterine brother or uterine brothers (10) uterine sister or uterine sisters, (11) full sister or full sisters, and (12) consanguine sister or consanguine sisters:

14. After having satisfied claims of funeral expenses, debts of the deceased and will, if any, sharers will first get their prescribed shares and the residue will be distributed amongst residuaries. As regards shares there is not much difference between Sunnis and Shias.

15. After sharers, residuaries get the residue; they may be one or many. The nearer in degree excludes the more remote.

16. According to classical Hanafi Jurists, following is the order of inheritance; (i) Sharers; (ii) Residuaries; (iii) Return to sharers by blood if there is no residuary; (iv) Distant kindred; (v) Person in whose favour paternity has been acknowledged by deceased; (vi) Legatee for the whole of property; (vii) Bait-ul-Maal.

17. On careful examination of the averments of the plaint I found order dated 3-9-2002 in S.M.A. No.106 of 2002 this court wherein it is observed that from evidence of Qazi Sher Muhammad the Nikah Registrar, who appeared in court and was examined, verified that the Naikhnama was executed by him, confirmed the marriage of the deceased Altaf Hussain with Mst. Noshina, who produced original Nikahnama before this court and after having fully satisfied, this court has held that Mst. Noshina the defendant No.2 was legally wedded wife of deceased Altaf Hussain and Azeem Altaf the defendant No.3 is the son of the two i.e. Altaf Hussain and Mst. Noshina. Objection of the present plaintiff was rejected by this court and letter of administration in respect of the properties was issued in favour of the plaintiff No.1. The Divisional Bench of this court has also maintained the order of the Single Bench in HCA No.249 of 2002 vide order dated 31-10-2010, High Court Appeal No.249 of 2002 filed by the plaintiff was dismissed in limini. The plaintiff did not challenge the order dated 31-10-2010 of HCA No.249 of 2002 which attained finality. Submission of the learned counsel for the plaintiff that in HCA No.249 of 2002 the order was passed in appeal by the divisional bench on the presumption that the deceased was followers of Fiqah-e-Jafria whereas the plaintiff and deceased both also belong to Sunni Hanafi Law and as such, the plaintiff is entitled to receive the share of inheritance from the estate of the deceased in accordance with Sunni Hanfi Law. As I have already observed that there is no any material difference in Sunni Hanafi Law and Shia Law of Inheritance. In both the sects step brother of a deceased is not entitled to any share in the property of his deceased stepbrother in presence of the real son of that deceased. Hence the plaintiff has no cause of action to file the present suit. Moreover, it has been held in 1956 Nagpur 209 that the rule of res judicata applied to the decisions of probate courts.

18. It is held in the case of Mst. Hajiani Khatija Bai and 8 others and Haji Dawood and 11 others reported in 2003 MLD 828 authored by Justice Anwar Zaheer Jamali as his Lordship then was that: "The provision of Order VII Rule 11, C.P.C. are not exhaustive of all situations in which plaint can be rejected in a suit. Further reading of plaint in the suit for that purpose should not be formal but practical, meaningful, realistic and rational so as to record a correct conclusion from the pleadings rather than giving it an artificial meaning. Moreover, to extend the true import of Order VII, Rule 11, C.P.C., apart from the averments of plaint, admitted/undisputed documents such as record of previous litigation can also be looked into. The court while doing so has to keep in mind the true spirit of this provision of law that incompetent suit should be buried at its inception without any delay."

19. The defendants Nos.1 and 3 along with their written statement in the present suit have enclosed an application under Order XXIII, Rule 3, C.P.C. filed in Family Appeal No.17 of 1993 in the court of VIIth Additional Sessions Judge, Karachi (South) filed by the deceased Syed Altaf against Mst. Naushina Manzoor the present defendant No.2 wherein it was stated that Syed Azeem Altaf the son of the deceased after passing of the order of Guardian Judge in G&W Case No.151 of 1993 started residing with the deceased and had left Lawrence College of Ghora Gali, Muree by consent of his parents. The said application bears the signatures of the deceased. The deceased on 3-7-1996 appeared before the Court of VII Additional District Judge, Karachi (South) admitted the contents of the compromise application and put his signatures on that application before the court. In the light of the compromise, the VII-Additional District Judge, Karachi (South) disposed off Family Appeal No.17 of 1993 according to terms and conditions of compromise arrived at between the appellant Syed Altaf Hussain now deceased and Mst. Noshina Manzoor the present defendant No.2 regarding custody of Syed Azeem Altaf, the present defendant No.3. Hence it can be inferred that the defendant No.3 is the real son/heir of the deceased Syed Altaf Hussain and Mst. Noshina Manzoor the defendant No.2.

20. It is also held in the ease of Ghulam Muhammad and 8 others v. Town Committee Piplan and 7 others reported in 2003 MLD 1222 authored by Justice Mrs. Fakhar-un-Nisa Khokhar as her Ladyship then was that: "the plaint would be rejected in four cases; i.e. where it did not disclose a cause of action; where relief claimed had been undervalued; where court-fee of full value had not been paid; and where suit appeared on face of plaint to be barred by any law. All such conditions deal with powers of court to reject plaint. Purpose of rejection of plaint was that stillborn suit ought to be buried at its very inception so that no further time be consumed on fruitless litigation and that plaintiff would have a chance to retrace his steps at the earliest possible time so that if permissible under law, he could file properly constituted case. Rejection of plaint under Order VII, Rule 11, C.F.C. was distinct from dismissal of suit. For rejection of plaint under Order VII, Rule 11, C.P.C. plaint was considered to be true and only facts averred therein were to be looked into."

21. For the aforementioned circumstances, legal position and the case law referred to above and on bare reading of the averments of the plaint, I am of the view that present suit is barred by res judicata and discloses no cause of action, therefore, I hold that the present suit is not maintainable under the law. Since present suit is barred under section 9 of C.P.C. and does not disclose any cause of action against the defendants, therefore, I allow C.M.A. No. 2390 of 2006 filed by defendant No. 1 under Order VII Rule 11, C.P.C. and reject the plaint without order as to cost. All the listed applications are also dismissed. S.A.K. /I- 12/K Plaint rejected.