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Suit No.1047 of 2011, decided on 12th February, 2015.

----Ss. 284, 278 & 372---Sindh Chief Court Rules (O.S.), R.413---Grant of Letter of Administration in respect of immovable property of deceased---Caveats against grant of Letter of Administration---Alleged oral gift---Succession petition was supported with "no objection" affidavits of three legal heirs, however, one remaining legal heir filed caveat under S.284 of the Succession Act, 1925 contending that deceased had orally gifted suit property solely to him---High Court converted petition into a suit as per R.413 of the Sindh Chief Court Rules (O.S.) and held that burden of proving the said oral gift was on the caveator, however, he failed to appear as a witness to prove his claim of oral gift of the property in dispute and also failed to cast doubt on evidence led by the petitioner and her witnesses in support of her claim of seeking Letter of Administration of the property of the deceased---Caveator had not disputed relationship of the petitioner and other legal heirs with the deceased and had failed to prove the alleged gift and did not produce any witnesses to confirm the contents of declaration of the said oral gift---Caveat filed by the caveator/objector was dismissed and High Court directed that Letter of Administration be issued to the petitioner in accordance with the Rules---Petition was allowed, accordingly. Mumtaz Ali Khan Deshmuk for Plaintiff. Muhammad Junaid Aziz for Defendant No.1 (absent). Zia-ur-Rehman for Defendant No.2 (absent). Muhammad Qaiser Qureshi for Defendant No.3 (absent). Zareen Ishaque Defendant No.4 (absent). Date of hearing: 12th February, 2015.

Heard learned counsel for the plaintiff and perused record with his assistance. This suit was initially filed on 8-4-2009 as succession petition under section 278 of the Succession Act, 1925, for grant of Letter of Administration in respect of an immovable property of deceased Fatima Begum bearing Plot No.11, Row No.2, Sub-Block "D" in Block No.II, Nazimabad, Karachi admeasuring 216 sq. yard, who has been survived by three sons and two daughters. The petition was supported with "no objection" affidavits of three of the legal heirs. However, one legal heir namely Mr. Rizwan-ur-Rehman, through attorney filed his caveat under section 284 of the Succession Act, 1925, claiming that the deceased had orally gifted her sole property to him. Therefore, on his objection by order of the Court dated 8-8-2011 the succession petition was registered as suit No.1047/2011. The memo. of succession petition and caveat were to be treated as plaint and written statement in terms of Rule 413 of S.C.C.R. and following issues were framed by consent of the petitioner/plaintiff and objector/caveator/defendant. (i) Whether property bearing Plot No.11 Row No.2, Sub-Block-D, Block No.II, measuring 216 sq. yards, Nazimabad, Karachi, is the estate left behind by the deceased mother Mst. Fatima Begum and all the legal heirs are entitled to have their share as per their entitlement (ii) Whether property bearing Plot No.11, Row No.2, Sub-Block-D, Block No.II, measuring 216 sq.yards, Nazimabad, Karachi, was gifted out by the deceased mother in her lifetime to the objector Rizwan-ur-Rehman (iii) Whether Declaration of Gift, allegedly made by the mother in the name of Rizwan-ur-Rehman, is a genuine document (iv) What should the decree be Evidence of the parties was ordered to be recorded through commission. The burden of proof of issue No.1 was on the petitioner. Before Commissioner for recording evidence petitioner, Mst. Parveen Jamal Hasan, appeared and she corroborated each and every statement made in the succession petition. In support of her case plaintiff also produced two witnesses namely Zubair Ahmed Rajput and Rizwan-ul-Hasan and both confirmed the contents of the succession petition. The other legal heirs namely Mushtaq-ur-Rehman, Zia-ur-Rehman and Zareen Ishaque have also sworn their respective affidavits in support of succession petition. In cross-examination, the statement of witnesses remained unshaken. The plaintiff and other legal heirs successfully proved their case that they are entitled to their respective share in the suit property according to Mohammadan Law. The burden was shifted on the Caveator/defendant to disprove the claim of other legal heir by positive and cogent evidence in support of his claim that the deceased has gifted the suit property to him. The burden of proof of issues Nos.2 and 3 was on the Caveator/ defendant. The Caveator/defendant has failed to come in the witness-box to prove his claim of oral gift of the property in dispute. He has also failed to cast any doubt on the evidence led by the plaintiff and her witnesses in support of her claim of seeking of letter of administration of the property of the deceased. The caveator has not disputed the relationship of the petitioners and the other legal heirs with the deceased Mst. Fatima Begum that she has been survived by legal heirs mentioned in para-3 of their petition/suit. Only objection raised by the Caveator/ defendant was oral gift but neither he came in the witness-box nor produce gift nor produce any witness to confirm the contents of declaration of oral gift in favour of the Caveator. In view of the above, facts and circumstances, the caveat filed by the Caveator/objector on 7-8-2009 stands dismissed and the petitioner"s suit is decree as prayed. The office is directed to issue decree of Letter of Administration in Form No.32 of the Sindh Chief Court Rules (O.S.). KMZ/P-10/Sindh Order accordingly.

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