2003 PLP 1095 (MLD)

(3)??????????? Whether the deceased K.M. Ikram constructed the house on Plot No.123-A, Block No.2, P.E.C.H.S., Karachi, repaid the loan to H.B.F.C. and got the, property redeemed out of his own funds and resources. If so, to what effect? (4)??????????? Whether the deceased Abdul Ghafoor Khan, at the time of his death, had any right, title or interest in the suit property. If not, to what effect. (5)??????????? Whether the defendants are in possession of the suit property in their own right since 1957. If so, to what effect'? (6)??????????? Whether the Sale Agreement dated 30r3-1957 between Abdul Ghafoor Khan and K.M. Ikram is agenuine and valid one. If so, whether any legal right to the suit plot stands transferred or conveyed to K.M. Ikram under such Sale Agreement? . (7)??????? What is the legal effect of the General Power-of-Attorney dated 10-10-1973? (8)??????????? Whether the defendant No. 1 executed the surrendered deed/affidavit dated 5-10-1983 with respect' to suit premises in favour of the plaintiff. If so, what is the effect? (9)??????? What is the legal effect of the mutation of the plot made in favour of the defendant No. 1 by the defendant No. 8 on basis of nomination? (10)??????????? Whether the plaintiffs are entitled to mutation of the suit plot in their names, as the legal heirs of the allottee/sub-lessee, Abdul Ghafoor Khan in the record of the defendant No.8? (11)??????????? Whether the defendants Nos.2 to 7 are liable to pay mesne profit at the rate of Rs.2,000 per month from September, 1989 till the delivery of vacant possession of first floor of the suit house to the plaintiffs? (12)??????????? Whether the defendants Nos. 1 to 7 are liable to render accounts in respect of the rental income of the suit house received by them to the plaintiffs? (13)????? What should the decree be? Plaintiffs in support of their case examined, Muhammad Sohail, the plaintiff No. 1 as P. W.1. Defendant No.4 Tariq Ikram examined for himself and as an attorney for defendants Nos.3, 5, 6 and

7. Legal heirs of the defendant No. 1 Abdul Rasheed since deceased did not step into the witness-box nor the defendant No.8. P.E.C.H.S. chose to contest the matter. I have heard the parties and perused the record. Issue No. 1.

Plaintiffs are legal heirs and successor of deceased Abdul Ghafoor Khan. It is admitted fact that, the suit plot was originally allotted to the deceased, Abdul Ghafoor Khan on 14-5-1950 (Exh.5/4) sub licensee was also executed and registered in his favour on 27-3-1955 (Exh..5/5). It is also admitted that H.B.F.C. loan was obtained by the deceased on 16-3-1956 vide Exh.5/6. It is also not disputed that, "defendant No. 1 Abdul Rasheed Khan who died during pendency of the instant proceedings was the nominee of Abdul Ghafoor Khan in the record of P,E.C.H.S. Case of the plaintiffs is that the suit property was fraudulently got mutated in favour of Abdul Rasheed. On acquiring such information the plaintiffs through Exh.5/8, dated 155-1976 applied for cancellation of such mutation and sought transfer of suit property' in their favour. The defendants Nos.2 to 7 successor of K.M. Ikram, however, pleaded that the deceased Abdul Ghafoor sold the property to their predecessor, K.M. Ikram under an agreement of sale dated 30-3-1957 (Exh.6/9). However, said defendants relied upon agreement of sale dated 10-10-1973 (Exh.6/34) purportedly executed, between Abdul Rasheed the nominee arid deceased K.M. Ikram to seek mutation and transfer of the property in his name. Admittedly, mutation .was effected to favour of defendant No.1 (since deceased) on 28-5-1973 immediately one month after the demise of Abdul Ghafoor Khan on the basis of nomination. It is settled position in law that Nomination by a member of the Cooperative Society does not operate either as a gift or as a will and thus cannot deprive the other heirs who may be entitled thereto under, the law of Succession. [For reference see Amtul Habib v. Musarrat Parveen (PLD 1974 SC 185) and Fazal Shah v. Muhammad Din and others (1990 SCMR 868)]. In a case reported as Karnal Afzal Farooqui represented by Legal Heirs v. Begum Shahzada Farooqui (1989 CLC 110), it was held that nominee of the deceased, therefore, could not claim to be the absolute owner of immovable property to the exclusion of all other heirs of the deceased. Such property would be inherited by all the heirs of the deceased according to their respective shares. Position of nominee therefore, is merely that of a trustee of the owner of the property. such nominee is accountable to the original allottee and to his successor as the case may be, therefore, in my opinion prima facie the plaintiffs have a cause of action in respect of suit property, being legal heirs of deceased allottee/Abdul Ghafoor. Issue No.2.

Burden of this issue rests on the defendants, it is submitted by Mr. Iftikhar Javaid Qazi, learned counsel for the defendants that deceased Abdul Ghafoor executed sale agreement to the year 1957. It was not challenged, therefore, suit is barred by limitation and doctrine of waiver and estoppel, laches and acquiescence are attracted in the instant case. As against this, Mr. K. B. Bhutto learned counsel for the plaintiffs submits that there is nothing on record to show that the plaintiffs or deceased Abdul Ghafoor was ever confronted with the alleged sale agreement. In absence of such confrontation no waiver acquiescence would be attracted. It is admitted position that apparently for the first time when the suit was filed by the plaintiffs. Defendants Nos.2 to 7 took up the plea of the sale agreement. There is no evidence or a suggestion made by the defendants to the effect that the plaintiffs were ever confronted with the sale agreement dated 30-3-1957 prior to filing of the written-statement. Therefore, it cannot be argued that, plaintiffs could have challenged purported sale agreement which was never brought to their knowledge. On the contrary plea of limitation may come in the way of defendants Nos.2 to 7, who did not seek enforcement of such sale agreement. Nor their predecessor chose to claim specific performance of the same during the lifetime of Abdul Ghafoor. The issue is answered in negative. Issue No.3:

This issue relates to the cons ruction of the house over the suit plot. It is an admitted position that, late Abdul Ghafoor, the predecessor of the plaintiffs, was owner of the suit plot. He resided in Islamabad. He nominated his brother Abdul Rasheed, in the record of the Society, who at the relevant time was residing at Karachi. Admittedly on 16-3-1956 H.B.F.C. loan (Exh.5/6) in the sum of Rs.13,000 was granted in favour of. Abdul Ghafoor. Case of the plaintiffs is that, the construction was raised by Abdul Ghafoor out of the loan amount and since his brothers were residing at Karachi they supervise the construction. Defendant No.4 the Attorney for defendants Nos.2 to 7 and legal heirs of deceased K.M. Ikram has produced original receipts showing repayment of the H.B.F.C. loan, which prima facie shows that such loan was repaid by deceased K.M. Ikram. A person who is in, possession and produces original receipts the presumption attracted is that, such payment has been made by the person in whose possession the B original receipts are. But the fact that, where a mortgage debt is paid of by a third person, there is no presumption that he was the, owner of the property or had any title in that property. For reference see AIR 1926 Calcutta

916. On the own showing of the defendant No.4 the construction was completed in 1958 defendant No.4 had also produced Exhs.6145/A to 6/45/K to show that payment regarding construction was made by deceased K.M. Ikram. A register (Exh. 6/44) has been produced showing the accounts regarding the construction. Though such register is neither signed nor any evidence, otherwise has been produced to show that entire amount was spent or paid by the deceased K.M. Ikram. Furthermore, the expense as reflected in the register shows that total expenses incurred in respect of construction raised on suit plot as well as on adjoining plot owned by K. K. Ikram were Rs.58,355.11. If at all this figure is presumed to be correct then, also 50% of the above amount comes to Rs.29,0178 out of which Rs.13,000 was the load leaving a balance of Rs.16,178 out of the loan amount from Exh. 6/13 (i.e. H.B.F.C. deposit slips) 10 slips show deposit of instalments in the sum of Rs.1,286 was made by Abdul Ghafoor, even it is presumed that said amount was paid by deceased M.A. Ikram at the best he could have lien over the said property to the extent of, amount spent out of his pocket on the construction over suit plot and to the extent H.B.F.C. loan repaid by him. By no stretch of imagination, he could claim hostile or adverse title to the suit property on the basis of such expenditure or repayment of loan. Fact remains that, the property was let out since 1958 and rent was being realized by deceased K.M. Warn, during his lifetime and by defendants Nos.2 to 7 after his demise, till date. It was contended by Mr. K.B. Bhutto that if at all it is presumed that, aforesaid expenses were incurred by K.M. Warn, then, the amount of rent recovered and realized by him, could be adjusted against the cost of construction and repayment of H.B.F.C. loan, if any made by him. In view of the foregoing discussion. I am of the view that since the defendants Fos.2 to 7 have produced the original receipts of payment of H.B.F.C. loan (Exhs. 6/14 to 6/25). Exact figure of expenses incurred by deceased K.M. Ikram on the construction has not been established. However, giving benefit of presumption on the basis of receipt of constructions, as stated above amounts, excluding loan comes to Rs.16,178 only. The presumption of repayment of such loan and costs of construction incurred by K.M. Ikram prima facie is in their favour but, the fact remains by such payment, they cannot claim title to the suit property. At the best, defendants Nos.2 to 7 could claim adjustment of such amount against the rent received by them. Issue answered accordingly. Issue No.4.

While discussing Issues Nos.1 and 3, it has been held that, the nominee is merely a trustee of the allottee, he could no become the owner of the property after the demise of the original allottee. Such nominee remains accountable to the legal heirs of the original allottee for all the benefits derived out of such property. It is admitted that the property remained in the name of deceased till his demise on 9-4-1973. Defendant No.1, Abdul Rasheed applied for mutation of suit property in his name on 26-5-1973. Suit property was transferred/mutated on the basis of nomination in his favour on 28-5-1973. As discussed above, since nominee does not become owner E of the property. The mutation in the name of P.E.C.H.-Society was not in accordance with law, same cannot be sustained. It is settled position in law that immediately on the demise of intestate, the property, if any, devolves unto the legal heirs of intestate forthwith. Since, mutation anti transfer in favour of defendant No. 1 subsequent to demise of original allottee is against the law, suit property, on demise of Abdul Ghafoor vested in his legal heirs the plaintiffs herein, in accordance with their respective entitlement under Muslim Personal Law. Therefore, the property would devolve unto all the legal heirs of the deceased Abdul Ghafoor, the plaintiffs herein, according to their respective shares. Issue answered accordingly. Issue No.5.

Since it has been held that, deceased Abdul Ghafoor, at the time of his death was owner of the suit property, therefore, there is no difficulty in arriving at conclusion that, the defendants are not in possession of the suit property in their own rights but, as a trustee for the owners thereof and are accountable for their possession to the plaintiffs. The issue is answered accordingly: Issue No.6.

The defendants Nos.2 to 7 resisted the claim of the plaintiffs on the basis of Sale Agreement dated 30-3-1957 Exh. 6/9 and also on the basis of a nomination in favour of defendant No.

1. By virtue of which nomination, the defendant No. 1 managed to obtain mutation and transfer of the property in his favour after the demise of Abdul Ghafoor. The defendant No. 1 on the basis of such mutation also executed a Sale Agreement dated 1975 (Exh. 6/34) together with registered Power-of-Attorney (Exh. 6/35) of the same date in favour of Mr. K.M. Warn, while discussing the issue above. The nomination, it was held, under law does not confer any title in favour of the-nominee, therefore, mutation and transfer of title on the basis of nomination is not legal. Now claim of the contesting defendant rests on the basis of Sale Agreement dated 30-3-1957. The claim on the basis of above Sale Agreement surfaced, when the suit was filed by the plaintiffs claiming title in the suit property on the basis of inheritance after the demise of Abdul Ghafoor, the original allottee. The Agreement dated 30-3-1957 was produced as Exh.6/9 by the contesting defendants. Signature of late Abdul Ghafoor Khan on the said Agreement was disputed by the plaintiffs. It was pleaded that, the same is forged. Defendants have also produced purported specimen signatures of the deceased as Exh. 6/49, same were disputed by the plaintiffs. The only documents which are authenticated and could be said to be executed by the deceased are the registered Mortgage Deed dated 18-4-1956 Exhibit 6/8 and 'Form-A' sub-licence, executed in favour of Abdul Ghafoor Khan by P. E. C. H. Society dated 29-3-1955 (Exh. 6/11). In terms of Article 84 of the Qanun-e-Shahadat Order, 1984, in order to ascertain, whether a signature or writing is that of a person by whom it purports to have been written or made any such signature or writing that is admitted or proved to that satisfaction of the Court to have been written or made by that person may be compared with one which is to be proved. In the appropriate case, the, Court has jurisdiction to examine the disputed signatures. In a case Tahira Dilawar v. Ghulam Samdoin (1995 SCMR 246) apex Court held that a writing may be proved in following ways: (i)???????? By calling and examining the writer himself; (ii)??????? by the evidence of a person who saw the document being written; (iii)?????? by the evidence of a person acquainted with the handwriting of the writer; (iv)?????? by comparison of the disputed writing with admitted writing of the writer; and (v)??????? by expert evidence. Same criteria can safely be applied on signatures as well. Since executant Abdul Ghafoor has passed away. No witness was produced by the defendants to prove that deceased Abdul Ghafoor signed and executed the agreement in their presence nor, any person was examined I who could be said to be acquainted with the signature of the deceased nor the disputed signature was referred to Handwriting Expert, therefor, only, course available to the Court, under circumstances of the case, is to compare the disputed signature itself. Mortgage Deed Exh. 6/8 and Forrn-A/Sub-License Exh. 6/11 are duly registered documents. Endorsement of Sub-Registrar, in terms of section 60 of the Registration Act to the effect that, said documents have been executed by Abdul Ghafoor Khan, is relevant consideration for proving the execution of the said document. Therefore, presumption of correctness is attached to a registered instrument that it has been made and signed by the person executing it before the competent authority. None of the defendants have disputed the signature of Abdul Ghafoor on Exhs. 6/8 and Exh. 6/11 respectively. Since the signatures of Abdul Ghafoor Khan on the Sale Agreement Exh. 6/9 were disputed. Therefore, I have examined the signatures on the admitted registered instruments Exhs. 6/8 and 6/11 with that of the signatures of the disputed Sale Agreement. The deceased, it appears used to sign as "A.G. Khan". On comparison of his signatures on the registered instruments and the purported Sale Agreement dated 30-3-1957 (Exh. 6/9) shows great deal of dissimilarity. "A" of the signatures in Exhs. 6/8 and 6/11, is Tin the slanting fashion, titling towards left and the stroke flows from upper left to right downwards, whereas, "A" in the Agreement Exh. 6/9 appears to be an attempt to copy in the same fashion but bare examination of both the alphabet keeping side by side, one can safely say that, it is not under one hand. Similar is the position of "G" in the registered documents which is signed in the form of loop starting from bottom and circling in a crescent fashion to the bottom in a harmonious fashion. Flow of "G" is one stroke, in interrupted fluent manner. Whereas the "G" of the signature in purported Sale Agreement is not in a circular forth but more like a capital "G" and the base is formed in the form of loop as is normally done while writing small "G". Size of "G" is quite disproportionate with rest of the signatures on Exh. 6/9 as against "G" on Exhs. 6/8 and 6/11. The word "H" in "Khan" in both the registered instruments appears to be in running writing with fluent stroke "H" is without any loop, Khan is underlined in the registered instrument in curve fashion, "N" in the Khan is written in Exhs. 6/8 and 6/11 more like a "U". Whereas , in the Sale Agreement "H" in the "Khan" is with loop, and "N" is clearly readable as "N". Underline beneath the Khan is also straight. Having carefully examined the signature and noting the dissimilarity, I am of the considered opinion that signatures on the Sale Agreement are not of deceased Abdul Ghafoor Khan. Therefore, no right to the suit property equitable or otherwise flowed out of the Sale Agreement in favour of K.M. Ikram. It is admitted position that K.M Ikram, during his fifetime, never asserted any right title over the suit property on the basis of purported Sale Agreement. In cross? examination, defendant No.4 admitted that no suit for specific performance was filed. It is also settled position in law, that Sale Agreement does not confer any title over the property. It only creates an equity to have the agreement specifically enforced, which I equitable right even if presumed to be possessed faded away and lost by passage of time. Therefore, even otherwise purported Sale Agreement, is of no legal value. This issue is therefore, answered accordingly. Issue No.7.

While discussing issues above, it has come on record that defendant No. 1 was appointed as a Nominee in respect of the suit property by the, deceased, Abdul Ghafoor. As held above, on the death of original allottee, the property does not vest in the nominee but devolves on the legal heirs of the deceased allottee. It is further held that, for all intent and purpose on the demise of Abdul Ghafoor the property vested in the legal heirs of the deceased. Therefore, the nominee had no right or title in the property to be further bargained or, passed on. By virtue of the nomination simpliciter, nominee is not seized or possessed of any right, title or interest in the property. It is settled position in law that a buyer cannot have a better title than that of a seller r (for reference see PLD 1958 SC 104). Therefore, there is no difficulty in arriving at a conclusion that the Power-of-Attorney (Exh. 6/35) allegedly executed by the defendant No.1 in favour of K.M. Ikram, the predecessor of defendants Nos.2 to 7 was of no legal effect and consequence Whatsoever. As the executant of the Power-of-Attorney was bereft of any right or title in the property, he could not have conveyed the same, as he had none. Issue No.8.

During the pendency of the suit, it appears tat the defendant No. 1 had executed a Surrendered Deed/Affidavit dated 5-8-1983 Exh. 5/9 denouncing his right, title and interest in the suit property, in favour of the plaintiffs. Defendant No. 1, passed away before the evidence could be led. It has further come on record that said documents alongwith letter Exh. 5/10 seeking transfer of the suit property in favour of the plaintiffs was also submitted by deceased Abdul Rasheed Khan to the defendant No.8, P.E.C.H. Society. In evid6nce, it was pleaded that the original of the said documents had been filed with the Society. Plaintiffs served a Notice under Article 76 of the Oanun-e?-Shahadat Order, 1984 upon the counsel for defendants Nos. 1 to 7 and upon the Society to produce original of the same, alongwith other documents. The Notice has been produced as Exh. 5/8 but originals of the said documents were not produced by the Society: The defendant No.4 in Affidavit-in-Evidence has not denied the execution of said documents by deceased Abdul Rasheed Khan. What he had stated in his Affidavit-in-Evidence in para. 21 is to the effect that, the signatures of late Abdul Rasheed Khan on said documents were obtained by force, coercion, duress and pressure. But the fact remains that, no evidence was led to establish-the force, coercion, duress and pressure allegedly exerted upon Abdul Rasheed to obtain his signature.? Therefore, by. producing photo copies of said documents the plaintiffs had succeeded to show that same was signed by the deceased Abdul Rasheed Khan. Contention of learned counsel for the defendants that .since the deceased Abdul Rasheed Khan had: already executed the Sale Agreement dated 10-1U-1973 (Exh. 6/34) together with registered Power-of-Attorney (Exh. 6/35), therefore, no authority was left with Abdul kasheed to sign such declaration., Arguments though luring but. on examinations are found to be without any substance. For the reasons that it has already been held that the mutation on the basis of nomination was not legal. Deceased Abdul Rasheed Khan did not derive any title or interest in the suit property on the basis of such nomination, therefore, he had no authority, right or title in, the suit property, none could be conveyed any further. His execution of the Power-of-Attorney and so also the Sale Agreement dated 10-10-1973 do not convey or. confer any better right or title on M.A. Ikram as he possessed none. No evidence as stated above was led to show that Surrendered Deed dated 5-10-1983 (Exh. 5/9) was not executed in favour of the plaintiffs. On the contrary defendant No.4 admits that it was signed by the deceased but under duress and pressure which allegations were not proved. Legal heirs of deceased Abdul Rasheed did not contest the matter. Therefore, under the circumstances, I am of the view that Exh. 5/9 amounts to renouncing right or interest, if any, possessed by the deceased in favour of the plaintiffs. Even otherwise, Exh. No.5/9, in view of what has been held above, is hardly of any legal sanctity. Issue No.9.

While deciding Issues Nos. 1 and 3, it has already been held that, nomination simpliciter does not confer any title in favour of the nominee. Therefore, there is no difficulty in arriving at a conclusion that the mutation effected in favour of Abdul Rasheed on the basis of such nomination is of no legal effect. Issue No. 10.

In view of the foregoing discussion, the plaintiffs are entitled to mutation of the suit property in their names as the legal heirs of the allottee/sub-lessee of Abdul Ghafoor Khan in the record of defendant No.8, Society. Issues No. 11.

It is admitted that the defendants Nos.2 to 7 are in occupation of the first floor of the suit property since 1975. While deciding Issue No.3, it was held that apparently the construction was raised on the suit property by M.A. Ikram, defendant No.4 has produced H.B.F.C. loan original repayment receipts and other receipts relating to the construction. Prima facie in presence of such receipt and documents it was concluded that, he had apparently incurred such expenses. Mr. Bhutto argued that even if such amount had been spent by deceased K. M. Ikram, same is adjustable towards the profits derived out of the rental income of the suit property. Therefore, in my humble, opinion giving the benefit of presumption to the defendants, it will be just, fair and equitable to give adjustment of all the rental income of the suit property till 31-7-2002 to the defendants against the cost of construction as well as on account of repayment of H.B.F.C. loan with interest. The defendants have themselves admitted in their evidence that ground floor was let out at the rate of Rs.700 P.M., which is stated to be still under tenancy. For the purpose of ascertaining prevailing rent, I deem appropriate to appoint Nazir of this Court as a Commissioner in terms of Order 20, rule 12, C.P.C. to determine and ascertain the rental value of the first floor of the suit property admittedly in possession of the defendants Nos.2 to

7. Such determination is to be made w.e.f. 1-8-2002. Upon determination of such rental value, the defendants shall pay such rent mesne profit w.e.f. 1-8-2002 till such time vacant possession is handed over to the plaintiffs. The defendants Nos.2 to 7 will also be liable to render the accounts in respect of ground floor of the suit premises to the plaintiffs and the Nazir of this Court. Nazir to also ascertain from the tenant of ground floor, rate of rent paid to defendants Nos.2 to 7 since tenancy and shall direct the tenant to attorn to the plaintiffs and pay the rent of , the ground floor of the suit property w.e.f. 1-8-2002 to the plaintiff No.1 being attorney for and on behalf of all the plaintiffs. Plaintiff No.1 shall distribute all the amount of mesne profits and rental income amongst all the plaintiffs in accordance with their due share as prescribed under Muslim Law. In view of the foregoing discussion, suit of the plaintiff is decreed in terms of prayer (i) to (iv). As far as prayer for mesne profits as directed above, the Nazir will ascertain the same with effect from 1-8-2002 till delivery of possession to the plaintiffs in terms of Order 20, rule 12, C.P.C. Final decree in respect of mesne profits shall be passed after the result of enquiry by the Nazir is submitted to the Court. Defendants Nos.2 to 7 to hand over the vacant possession of the suit property to the plaintiffs in presence of Nazir of this Court on or before 1-11-2002. Tentatively, Nazir Fee of Rs.10,000 to be deposited by the plaintiffs. S.A.K./M-464/K????????????? ??????????????????????? ??????????????????????? ??????????? ??????????? Suit decreed.