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2005 Y L R 1995

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. SHEEREEN TAHIRA and 6 others---Petitioners

Versus

Brig. (Retd.) SHER AFGHAN---Respondent

Civil Revision No.1728 of 2002, heard on 5th May, 2004.

(a) Civil Procedure Code (V of 1908)---

----O. VI, R. 2 & O. VIII, R. 2---Pleadings---Suit for partition of ancestral house was
concurrently dismissed on the ground that plaintiffs had received their share from the
other ancestral properties---Validity---No plea was raised in the written statement that
there was an agreement between the parties whereby the entire estate of the deceased
was partitioned and that it was agreed upon that the house shall vest in the two sons
and sisters and mother will be excluded---Case put up at trial was not pleaded---
Judgments and decrees of Courts below were set aside in circumstances.

(b) Qanun-e-Shahadat (10 of 1984)---

----Arts. 132(2), 140 & 141---Cross-examination-Pleadings-Proof-Witness was

recalled for cross-examination---Witness was not confronted with previous statement
or pleadings---Witness stated "yes" to every question---Witness had stated what had
not been pleaded---Something not pleaded could not be allowed to be proved---
Evidence inconsistent with the pleadings was to be ignored---Answers contrary to
previous statement were ignored in circumstances.

M. Farooq Qureshi Chishti for Petitioners.

Saeed-uz-Zafar Khawaja for Respondent.

Dates of hearing: 4th and 5th May, 2004.

JUDGMENT

Before I proceed further I may state here that the petitioners Nos. 1 to 5 are the sisters
of the respondent while petitioners Nos.6 and 7 are the daughters of their deceased
brother Khalid Ahmad. The suit property' admittedly belonged to Professor Saeed
Ahmad Khan, their father. On 5??-8-1994 the petitioners along with Mst. Zarina
Begum widow of said Saeed Ahmad Khan filed a suit against the respondent for

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possession of their share in the suit property comprising of house built on 6 Kanals of
land bearing No.117-A located in Model Town, Lahore. The respondent filed a written
statement. He admitted that the house belonged to Saeed Ahmad Khan and that the
parties are his only legal heirs. In response to para.7 of the plaint, he stated that his
father also owned agricultural land in Sargodha and a residential House at Gujrat.
These properties were disposed of by the legal heirs through a general attorney and the
sale proceeds are with Mst. Zarina Begum deceased (plaintiff No.1). He further stated
that all the petitioners/plaintiffs have received their share through the said Mst. Zarina
Begum except the respondent and as such the suit property also stands divided as he
did not take a single penny from the sale proceeds out of the land at Sargodha and
house at Gujrat. According to him, the said sale proceeds ought to be included in the
sale price of the suit property by taking back the value of the suit property to the time
of the said sales and the accounts be rendered. In response to para.9 of the plaint, he
stated that as the plaintiffs have accepted the sale proceeds of the suit properties, this
amounts to an acknowledgement that the suit property has fallen in the share of the
respondent. In the very next line he stated that let the other two properties be valued
afresh and then the division be effected. He also asserted that he had spent
Rs.24,00,000 on the assumption that the property has fallen to his share. At the same
time, he stated that some of the plaintiffs are also residing in the suit property.
Following issues were framed by the learned trial Court:--

(1) Whether the property in suit is jointly owned by the parties? If so, what are
their respective shares in it? OPP

(2) Whether suit is not maintainable in its present form? OPD.

(3) Whether plaintiffs have no cause of action to file this suit? OPD

(4) Whether suit has not been correctly valued for the purpose of court-fee and
jurisdiction? If so, what is correct valuation and to what effect? OPD

(4-A) Whether the plaintiffs have wilfully omitted to mention two other
properties? If so, what is its legal effect? OPD.

(4-B) Whether the plaintiffs have already received their shares out of the estate
of Saeed Ahmad Khan deceased? OPD.

(5) Relief.

Evidence of the parties was recorded. Vide judgment and decree dated 17-9-2001 the
learned trial Court passed a preliminary decree in favour of the petitioners Nos.6 and 7
and against the respondent for partition of the suit property. The suit of the remaining
petitioners was dismissed. I may note here that Mst. Zarina Begum died during the
pendency of the suit. A first appeal filed by the petitioners was dismissed by a learned
A.D.J., Lahore, on 20-3-2002.

2. Learned counsel for the petitioners contends that the learned trial Court acted
without jurisdiction while re-calling Mst. Zarina Begum and permitting the respondent

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to further cross-examine her. According to him, the said lady in the process changed
her entire statement already recorded and both the learned Courts below have built
their judgments on the answers given by the said lady to the questioning by the cross-
examiner. Learned counsel contends that not only that the lady was made to depose
falsely but the said deposition is also against the pleadings of the respondent on record.
He also complains that the statement made by the other petitioners denying the receipt
of any share in the sale proceeds of the said properties and further denying having
authorized the respondent to sell the properties were not at all taken into consideration
whereas there is no evidence on record that the petitioners authorized the respondent to
sell the said properties. Learned counsel for the respondent, on the other hand,
contends that the consistent stance of the petitioners had been that the said lady faltered
in the witness box being subjected to the cross-examination two years after the
recording of her earlier statement. He further contends that the later statement made in
the course of further cross-examination was a bona fide and true statement and the said
lady being related in equal degree to all the parties cannot be attributed any ulterior
motive in the matter. The learned counsel further contends that it has come on record in
the statement of the said Mst. Zarina Begum that the sale proceeds were distributed
amongst the daughters and that the residential house was to be given only to the
respondent and his brother i.e. the father of petitioners Nos.6 and 7 which is a fair
agreement between the parties. He has also argued that his client had also spent money
on the marriage of his sisters either from his own pocket or from the sale proceeds.

3. I have gone through the copies of the records, with the assistance of the learned
counsel for the parties. I have already reproduced above the material contents of the
pleadings of the parties. Admittedly, the house belonged to Saeed Ahmad Khan. He
was survived by a widow, five daughters and two sons including the respondent. I have
already referred to the written statement. There is no plea that there was any agreement
between the parties whereby the entire estate of the deceased was partitioned and that it
was agreed upon that the house shall vest in the two sons and that the sisters and the
mother will be excluded. The only grievance being made out was that a general
attorney (the respondent did not mention but it has turned out that the said general
attorney happened to be the respondent himself) sold the properties at Sargodha and
Gujrat and gave money to the late mother and everyone got his share except the
respondent and he assumed that the house has come to his share.

4. have gone through the impugned judgment. It is but evident that the vital issues in
the case have been decided by both the Courts below on the basis of the statement
made by Mst. Zarina Begum the deceased plaintiff No.1. Now the record shows that on
8-12-1994 Mst. Zarina Begum appeared as P.W.1. She proceeded to state that Professor
Saeed Ahmad was her husband who died in the year 1981 and left behind the suit
property. His heirs include two sons, namely, Khalid Ahmad, Advocate and Brig. Sher
Afghan and five daughters. Khalid has died leaving behind two daughters. His wife has
also died. There is no other heir. She herself resides in the suit property. Before their
marriages her daughters also used to live there while the respondent has taken up
residence a year ago. The property is joint and we want partition according to Muslim
law shares. The respondent has started construction some .time ago and that she has
been restraining him. Lower portion has been constructed by her while the respondent
has raised construction after the stay order. She was cross-examined on the same day.

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In response she stated that when her husband died, apart from the suit property he left a
square of land in Sargodha and a house in Gujrat at the time of his death. Three
daughters were unmarried. She cannot tell the bank-balance of the deceased which is,
known to the respondent as he had gone to collect the money. She denied that the
respondent has constructed the lower portion. She stated that she spent Rs.2,00,000 on
the lower portion and the amount was with her. On the same day, the learned counsel
for the petitioners closed the affirmative evidence reserving the right of rebuttal.
Thereafter, an application was filed by the respondent seeking an order to recall Mst.
Zarina Begum for further cross-examination. Vide order dated 18-7-1995 the learned
trial Court allowed the application. On 4-7-1996 Mst. Zarina Begum re-entered the
witness box. Now in response to cross-examination she stated that Saeed Ahmad Khan
was her husband who died in October 1981 and was survived by five daughters and
two sons. At the time of death, the late professor owned land in Sargodha, a house in
Gujrat and the suit property. Thereafter, she admitted that his legal heirs .have entered
into an agreement according to which it was settled that let the property in Gujrat and
Sargodha be sold and for this purpose all the heirs appointed the respondent as an
attorney who sold the said properties. She admitted that the sale proceeds were handed
over to her. According to the agreement, out of the sale proceeds she bought land for
Mst. Nigar Bano. She paid Rs.1,00,000 each to Mst. Shirin and Mst. Nargis and
Rs.50,000 each to Mst. Gulbadan and Mst. Ghazala. She admitted that according to the
agreement the marriage expenses of three daughters were also borne out from the same
amount. She admitted that according to the agreement, the suit property was to be
given to the two sons in equal share. Khalid and his wife died in 1985. He left two
daughters. She admitted that according to the agreement everyone has got his share.
She cannot read or understand English. She was made to sign the plaint on the
representation that the suit is being filed for the right of her grand-daughters. The
plaint was never read over to her. She has never met the counsel for the plaintiffs. She
has stated that the suit property is joint with reference to her grand-daughters. She
admitted that she has filed the suit under the pressure of her daughters. She admitted
that when the. respondent was in Saudi Arabia, he sent lot of goods for the marriages
of her daughters. She admitted that she gave the said goods to her daughters at the time
of marriage. She admitted that the respondent has spent a lot of money on the suit
property for its renovation.

5. A bare look on the said statement made by Mst. Zarina Begum on 4-7-1996 would
show that she took a 360-degree turn and said yes to every question put to her in the
cross-examination. I may note here that she was confronted with the plaint but not with
the statement made on 18-12-1994 both in examination-in-chief and cross-
examination. It is this latter part of the statement made on 4-7-1996 which has been
made the basis for passing the impugned judgments and decrees.

6. I have already repeatedly referred to the written, statement above. Whatever was
suggested to the said lady was not even pleaded by the respondent in his written
statement. Now Mst. Shirin Tahira appeared as P.W. 2, Mst. Nargis Saeed appeared as
P.W.3 and Mst. Ghazala Bano appeared as P.W.5. All these ladies stated that they had
not appointed the respondent as an attorney. They categorically stated that they did not
receive any amount from the sale proceeds of the properties in Sargodha and Gujrat.

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7. Now the respondent Sher Afghan appeared as D. W.1. He proceeded to state that his
parents were to proceed for Hajj in the year 1981. His father appointed him as a
guardian of the family. He is younger than Khalid Ahmad. His father made an oral Will
according to which he was to arrange the marriage of Mst. Gulbadan and Mst. Ghazala
and was to give Rs.10,000 each to all the sisters and this was to be given from the sale
proceeds of the house at Gujrat and land at Sargodha and from the suit property of
Model Town, three Kanals was to be given to Khalid Ahmad and three kanals to him.
Unfortunately, his father died during Hajj. Before his death, in the presence of his
mother he dictated a Will to his daughter Mst. Nargis Tasleem when his mother came
back she handed over the Will to him and also a bill for the expenses incurred by Mst.
Nargis Tasleem. This Will is Exh.D.1 (under objection). When his father died, there
was a square of land in Sargodha, a Haveli in Gujrat and the suit property. He read over
the Will to all the family members and it was decided that it would be acted upon. He
as a guardian of the family directed his brother Khalid Ahmad to work out the value of
the entire property. He worked out the value of the suit property as Rs.3,00,000, the
land at Sargodha at Rs.3,75,000 and the Gujrat house at Rs.2,50,000. According to this
valuation, the share of mother comes to Rs.1,15,625. The petitioners gave him general
power of attorney regarding the said three properties (Exh.D.2). He sold the land at
Sargodha for Rs.3,75,000 and the house in Gujrat for Rs.2,50,000 and handed over the
entire amount to his mother. His mother gave Rs. 1,00,000 each to Mst. Shirin and
Nargis and Rs.50,000 each to Mst. Gulbadan and Mst. Ghazala. While she purchased
land for Nigar Bano in Rawalpindi. This was the share of the sisters in the entire estate
of the father. Ghazala Bano purchased land of Rs.50,000 in Rawalpindi. Gulbadan also
purchased the land in Rawalpindi. He then stated that a forged application was filed
with the Model Town Authority and the names of all the heirs were entered. These
orders were set aside in the year 1996. He is the guardian of the two daughters of
Khalid Ahmad and was appointed by learned District Judge, Rawala Kot. His sisters
filed a complaint with the Magistrate at Model Town that he has sold away the plots of
the two nieces. The case was dismissed. Khalid Ahmad died in October, 1985. His
wife also died in the same accident. He has been treating his nieces well. He then refers
to allotment of two plots in the names of the said nieces (petitioners Nos.6 and 7).
These were sold for Rs.1,50,000 and Defence Savings Certificates were purchased. He
has purchased certificates of the value of Rs.8,40,000 in his own name and the
beneficiaries are the said two girls. These were purchased on 6-7-1998 and 20-12-
1999. He has been paying the maintenance allowance of the said girls.

8. Now without referring to the cross-examination it will be seen that the respondent
has stated in the witness box a case, which was never pleaded by him. Needless to state
that what has not been pleaded cannot be allowed to be proved and even if some
evidence inconsistent with the pleadings comes, the same is to be ignored.

9. Now coming back to the statement of Mst. Zarina Begum recorded on 4-7-1996 in
the form of the so-called cross-examination, this statement is absolutely contrary to the
statement made by her on 8-12-1994. Whatever was put to her in cross-examination is
not the case of the respondent in his written statement. Now Mst. Zarina Begum as
well as the respondent as D.W.1 have stated that out of the sale proceeds Rs.1,00,000
each was given to two daughters, Rs.50,000 each to two daughters and land was
purchased for the 5th daughter. It is a matter of record that the land purchased by Mst.

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Nigar was worth Rs.24,000. This makes a total of Rs.3,24,000. According to the
respondent, he sold the property at Gujrat and Sargodha for Rs.6,25,000. There is no
explanation for the balance amount of Rs.3,00,000. Now assuming that the sisters had
appointed the respondent as an attorney and he had sold the properties for the amounts
he has stated i.e. Rs.6,25,000, the widow's share was 1/8 which comes to Rs.78,125.
The share of each daughter comes. to Rs.60,763.88 while the share of each son comes
to Rs.1,21,527.77. Now even going by the statement of the respondent No.1 and the
said statement dated 4-7-1996 of Mst. Zarina Begum the balance unexplained almost is
equal to the shares of the two sons and that of the mother. Nothing, therefore, turns on
the said statements even if taken on their face value.

10. So far as the impugned judgments and decrees are concerned, it appears that the
learned Courts below were so much overwhelmed by the manner in which the said
statement dated 4-7-1996 of Mst. Zarina Begum was procured and brought on record.
They forgot that even going by the said statement and the ipsi dixit of respondent No.1
as D.W.1, the property goes to the two brothers. The second brother and his wife are
stated to have expired at the same time in an unfortunate accident. They were survived
by two daughters. This leaves a residue, which has to go to the respondent No.1 and
the, remaining petitioners i.e. the sisters of the deceased. The impugned decrees are
therefore, wholly without jurisdiction.

11. Before I close this judgment, I may note here that since the rights of the petitioners
Nos.6 and 7 are to be affected. At the request of both the learned counsel for the
parties, I summoned the petitioners Nos.6 and 7 to appear in person. They put in
appearance today. They have attained majority. Both of them are studying in M. A.
Classes in a local College. It was explained to them that a decision in this civil revision
may have result of reducing their share in the property while their uncle i.e. respondent
No. 1 has stated that the house has come to him and the father of the said ladies and as
per the decisions recorded by the learned Courts below they have been held to be
entitled 1/2 share in the property whereas this will be reduced substantially. They have
answered in categorically term that all the heirs should get their shares in accordance
with the personal law. Upon my query, they have stated that the statement is voluntary
and after considering all pros and cons.

12. This civil revision accordingly is allowed. Both the impugned judgments and
decrees passed by the learned Courts below are set aside. The shares of the parties in
the suit property bearing No. 117-A Model Town, Lahore, are declared as follows:

(i) Sher Afghan respondent/plaintiff. = 368/1512

(ii) Each of the petitioners Nos.1 to 5/plaintiffs. = 184/1512

(iii) Each of the petitioners Nos.6 and 7/plaintiffs = 112/1512

This includes the share which the respondent and the petitioners sisters get as residuary
in the estate of Khalid Ahmad inherited from his father and also from his mother and
also the share of the petitioners Nos.6 and 7 inherited from their grand-mother Mst.

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Zarina Begum. A preliminary decree is accordingly passed for separation of 1144/1512

share of the petitioners/plaintiffs in the suit property.

13. A copy of this judgment be immediately remitted to the learned trial Court who
shall commence proceedings for passing of a final decree. No orders as to costs.

M.I./S-147/L Revision accepted.

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