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صرف 1000 روپے میں 10 وکلاء تک کی براہِ راست رابطہ تفصیلات حاصل کریں اور کال یا واٹس ایپ کے ذریعے موزوں قانونی ماہر سے رابطہ کر کے اپنا معاملہ پورے اعتماد کے ساتھ آگے بڑھائیں۔
Civil Appeal No. 20 of 1985, decided on 24th May, 1986.
---O.XIII, R.2 & O.XLIII, R. 1(r)--Appeal against interlocutory order- Production of additional documents--Requirements--Appellate Court was required to examine correctness of order on basis of material which was made available by parties before Trial Court--Parties could not file additional documents as a matter of right in such appeal--Appellate Court in a fit case, if dictates of justice so demanded, however, could permit filing of additional documents by both parties.
Sardar Ahmed Khan and others v. Mst. Zamroot Jan P L D 1950 Pesh. 45; K.S.Agha Mir Ahmed Shah and others v. K.S. Agha Mir Yaqub Shah and others P L D 1957 (W.P.) Kar. 258; Malik Najibullah Khan and others v. Malik Muhammad Bahadar and others. 1980 C L C 1216; Anjum Rehmat and another v. Rtd. Sqn/Ldr. Shaikh Chulam Sadiq 1981 C L C 276; Khushi Muhammad v. Ata Muhammad, 1982 CLC 1947, Principles of Mahomedan Law 1976; Mst. Hamida Begum v. Mst. Murad Begum and others P L D 1975 S C 624; Muhammad Farooq Khan v. Sulaiman A.G. Panjwani and 2 others P L D 1977 Kar. 88 and Abdur Rahman Mobashir and 3 others v. Syed Amir Ali Shah Bokhari and 4 others P L D 1978 Lah. 113 ref.
---Gift--Spes successionis, rule of--Validity--Rule of spes successionis, i.e. expectation or hope of succeeding to property of another, not recognized by Muhammadan Law.
The hope/ expectation is contingent on the happening of two things, which may or may not happen, namely: (i) that the heir apparent will outlive his ancestor whose property he expects to inherit and (ii) that the ancestor at the time of death will leave behind some property. Prima facie, the right to sue accrues to an heir apparent on the death of the ancestor whose property he may be entitled to inherit. During the lifetime of an ancestor, a legal heir cannot challenge the validity of a gift made by his ancestor. However, once the ancestor concerned dies and the succession opens, the validity of the gift can be impugned by any of the legal heirs.
Kurrutulain Bahadur v. Nuzbat ud Dowla Abas Hussein Khan (1905) 33 Cal. 116 ref.
---S. 42--Declaratory suit, competency of--Person having no legal right, held, could not seek declaration for protection thereof.
---S. 54--Civil Procedure Code (V of 1908), O.XXXIX, Rr.l & 2--Suit for permanent injunction--Ad interim injunction, grant of--Requirements.
For the purpose of grant of an ad interim injunction under Order XXXIX, Rr.l and 2, C.P.C. read with section 151, C.P.C. the Court has to examine the case on the basis of the following three ingredients:-
(i) Whether the plaintiff has a prima faice case
(ii) Whether withholding of ad interim injunction would result in irreparable loss to him and
(iii) The balance of convenience between the parties.
Additionally the Court may also look into the conduct of the plaintiff and the question of delay i.e. whether the plaintiff has approached the Court with clean hands and whether he has so approached promptly or after delay. The plaintiff may be declined the relief of an ad interim injunction, if he has not approached the Court with clean hands or he is guilty of laches. If the Court comes to the conclusion that the plaintiff has no prima facie case, injunction is to be refused. The above principles cannot be deviated even in a suit, in which a plaintiff may claim a permanent injunction.
Arts Council of Pakistan v. Riazuddin Pirzada P L D 1969 Kar. 349 ref'
---0. XLIII, 11.1(r)--Muhammadan Law--Alienation--Appellate jurisdiction, exercise of--Appeal against interlocutory order--Relief claimed in suit based on rule of spes successionis--Plaintiff, held, would have no locus standi to challenge alienation made by a Muhammadan during his lifetime--Such plaintiffs having failed to make out a prima facie case would not be entitled to seek ad interim injunction--Appeal against refusal to grant of interim injunction was dismissed in circumstances. --[Muhammadan Law].
Tahir Muhammad Khan for Appellants.
Nemo for Respondents Nos. 1 to 3.
Iftikhar and Shakeel for Respondents Nos. 4 to 8.
Respondent No.9: Ex parte.
Date of hearing: 17th May, 1986.
This appeal is directed against an order, dated 18th September, 1985 passed by the learned Additional District Judge-1, Quetta in Civil Suit No. 70 of 1985 dismissing the appellants /plaintiffs application, under Order XXXIX, Rules 1 and 2, C.P. C read with section 1 51, C.P. C. The brief facts leading to the filing of the above appeal are that the two appellants/ plaintiffs are the daughters of the respondent No.l/ defendant No.1whereas, the respondents Nos.2 and 3/defendants Nos. 2 and 3 are the sons of respondent No.l/defendant No.l. The respondent No.8/defendant No.8 is the daughter-in-law of respondent No.1/ defendant No. 1 and the-widow of respondent No.l/defendant No.l's son late Haider Aliani, who died in an air crash on 6th July, 1984 whereas Respondents Nos. 4 to 7/defendants Nos. 4 to 7 are sons and daughters of respondent No.8/defendant No.8 and grandsons and daughters of respondent No.l/defendant No.l. The present applicants/ plaintiffs filed the aforesaid suit on or about 5th August, 1985 for declaration and permanent injunction in respect of property bearing No.8-20/45 (hereinafter referred to as the "property") situated on Baluchi Street, Quetta. The case of the appellants /plaintffs as disclosed in the plaint was that late Haider Aliani on or about 23rd December, 1982 had managed-to prepare or forge a General Power of Attorney purportedly on behalf of respondent No.l/defendant No.1and got it registered under S. No. 1703 with the Sub-Registrar, Karachi. It was averred that the above Power of Attorney was neither executed by the free will of the respondent No.l/defendant No.l, nor was within his knowledge. It was further averred that respondent No.1/defendant No.1had never shown any intention to alienate or gift the property for any consideration and that the above Power of Attorney was obtained on the basis of misrepresentation and fraud with the mala fide intention to deprive the appellants /plaintiffs and other legal heirs from their lawful share in the father's property. It was also averred that late Haider Aliani dishonestly misrepresented before the respondent No.9/defendant No.9, i.e. the Naib-Tehsildar, Settlement, Quetta that the respondent No.1defendant No.1had gifted away the property in favour of respondent No.8/defendant No.8 and got the mutation attested on 9th February, 1983 under No. 178. It was also averred that by another Mutation No. 1782 on the same day, respondent No.8/defendant No.8 re-gifted the property in favour of her husband late Haider Aliani. It was also averred that upon the death of late Haider Aliani in July, 1984, the property was mutated in the joint names of respondents Nos. 4 to 8/defendants Nos. 4 to 8 being the legal heirs. It was also averred that the above whole transaction was naaa fide and was based on misrepresentation and fraud in manner to give a legal cover to an apparently illegal transaction. In the alter native, it was averred that respondent No.l/defendant No.1 even otherwise could not have surreptitiously made the above transaction to deprive the other legal heirs from their legal share in the property, particularly so when the respondent No.1/defendant No.1due to old age and incapability was unable to make any intelligent decision. It was also asserted that the appellants/plaintiffs discovered the above transaction in July, 1985, when the respondent No.8/defendant No.8 came to Quetta to show that she was removing the possession of the suit property and wanted to sell the same. It was also asserted that factually the respondent No.8/defendant No. 9 was not in possession of the property. On the basis of the above pleadings, the above reliefs were prayed for. Alongwith the above suit, the above application was also filed, upon which, an adinterim injunction was granted on 6th August, 1985.
The respondents Nc s.4 to 8/defendants Nos. 4 to 8 in their written statement as well as in their objection to the injunction application had refuted the averments contained in the plaint and in the application. It is also asserted that factually the appellants /plaintiffs also received the properties from the respondent No.l defendant No.1in the like manner, n which, late Haider Aliani got the property. It was also overfed that late Haider Aliani was holding a Power of Attorney, dated 1st January, 1981, under which, he executed a Special Power of Attorney in favour of his mother, who in turn gifted a property on 5th October, 1982 in favour of appellant No.2/plaintiff Nc.2. It was also averred hut the respondent No.1 /defendant No. 2 was not suffering from any ailment of the nature rendering him incapable to form an opinion. It was also averred that during the lifetime of respondent No.l/defendant No.1the appellants /plaintiffs had no locus standi to file the suit on the ground that they would be the legal heirs after the death of respondent No. 1/defendant No.l.
The learned trial Court after hearing the parties, vacated the id interim injunction by his order, dated 18th September. 1985. The appellants; plaintiffs being aggrieved by the above order have filed the present Civil Miscellaneous Appeal.
3. In support of the above appeal, Mr. Tahir Muhammad Khan, earned counsel for the appellants has made the following submissions-
(i) That respondent No.l/defendant No.1was not competent to deprive the other legal heirs from their lawful share from his property by allegedly gifting the same through late Haider Aliani;
(ii) That the Power of Attorney, on the basis of which, the gift was effected, was obtained by fraud and from a person suffering from ailment of the nature rendering him incapable of forming any opinion;
(iii) That under the Power of Attorney, no valid gift could have been given as it does not reflect express intention on the part of the donor to give gift in favour of respondent No.8/defendant No. 8;
(iv) That even otherwise, there could not have been a valid gift, as the property was in possession of appellant No.2/plaintiff No.2 and respondent No.l/defendant No-1 and there was no delivery of possession, nor acceptance of the possession; and
(v) That since the suit was inter alia for permanent injunction, and interim injunction should have been granted as a matter of course.
On the other hand, Mr. Iftikhar Muhammad, learned counsel appearing for respondents/ defendants Nos. 4 to 8 has contended as follows: -
(i) That a legal heir has no legal right in terms of section 42 of the Specific Relief Act during the lifetime of a person in respect of whose property, a declaration is sought and, therefore, the appellants /plaintiffs have no prima facie case;
(ii) That the appellants /plaintiffs have not come to the Court with clean hands, inasmuch as, that they had not challenged the above transaction immediately upon effecting of the above gift or even for about one year during the lifetime of late Haider Aliani, but have come forward after his death thinking that respondent No.8/defendant No.8 being widow, would not be able to defend; and
(iii) That the appellants/ plaintiffs had also received the properties of respondent No.l/defendant No.1 in the manner, in which, late Haider Aiiani had received the property.
4. Mr. Tahir Muhammad Khan, learned counsel for the appellants in furtherance of his above submissions has relied upon the following passages from volume 1:
He has also relied upon the following cases:-
(i) Sardar Ahmed Khan and others v. Mst. Zamroot Jan, reported in P L D 1950 Pesh. 45, in which, a Judicial Commissioner of the Peshawar Chief Court, inter alia, held that it is the policy of the Muslim Jurists to prevent any interference with the course of devolution of property amongst the testator's heirs as laid down in the Holy Quran and that the gift in order to be effective should be a genuine transaction and not merely a plan to achieve some ulterior object. It was further held that the effect of almost all the gifts will be disinheritance of one or the other of the heirs of the donors, but then it should be the effect and no the real object of the gift. It was also held that if the real object of the gift was the disinheritance of an heirs, it would be bad in law.
(ii) K.S.Agha Mir Ahmad Shah and others v. K.S. Agha Mir Yaqub Shah and others, reported in P L D 1957 (W.P.) Kar. 258. In the above case, a Division Bench of the erstwhile High Court of West Pakistan at Karachi held that there should be an unequivocal declaration of intention of gift and that in the absence of proof of such declaration, the evidence that the property was called as donee property or that the rent as received by the donee, was not enough to constitute gift.
(iii) Malik Majibullah Khan and others v. Malik Muhammad Bahadar and others reported in 1980 C L C 1216, in which, a learned Single Judge of the Lahore High Court held that in an undivided share in a property gifted, delivery of possession is must in order to constitute a valid gift.
(iv) Anjum Rehmat and another v. Rtd. Sqn/Ldr. Shaikh Ghulam Sadiq, reported in 1981 C L C 276. In the above case, in a suit for specific performance of a sale agreement in respect of an -f _ immovable property, a learned Single Judge of the Sind High Court while disposing of an application under Order XXXIX, Rules 1 and 2, C.P. C. held that since, prima facie, the plaintiff was able to show that there was an agreement of sale in his favour, he was entitled to an ad interim injunction for restraining the defendant from disposing of the suit property.
(v) Khushi Muhammad v. Ata Muhammad, reported in 1982 C L C 1647, in which, a learned Single Judge of the .Lahore High Court while hearing a Civil Revision against the grant of an injunction, held that in a suit for permanent injunction, temporary IRIA' injunction is granted as a rule and refusal of it is an exception, particularly when by refusal, the very object of the suit would be defeated.
5. On the other hand, Mr. Iftikhar Muhammad learned counsel appearing for respondents Nos. 4 to 8/defendants Nos. 4 to 8 has referred to paras. 52 and 54 of Mulla's "Principles of Mahomedan Law" 1976 Print, which read as follows:-
The right of an heir apparent or presumptive comes into existence for the first time on the death of the ancestor, and he is not entitled until then to any interest in the property to Which he would succeed as an heir if he survived the ancestor."
The chance of a Mahomedan heirs-apparent succeeding estate cannot be the subject of a valid transfer of release." He has also referred to the following judgments:-
(i) Mst. Hamid Begum v. Mst. Murad Begum and others reported in P L D 1975 S C 624, in which, the following observations were made:
In observing that the right' to sue had accrued to the plaintiff during the lifetime of her father, the learned Judge has overlooked a basic principle of Muslim Law, namely, that the right of an heir-apparent or presumptive comes into existence for the first time on the death of the ancestor, and he is not entitled until then to any interest in the property to which he would succeed as an heir if he survived the ancestor". (Section 52 of Mulla's Mohammedan Law, 13th Edn. The Mohammedan Law does not recognise spes successionis, i.e. an expectation or hope of "succeeding to the property of another by survival. Till that death occurs a presumptive heirs has no right at all in the property of his ancestor.
It is interesting to observe that the illustration given by the learned author under this section is almost identical with the facts of the instant case. He has observed that a suit brought by a son, during the lifetime of his father, to challenge a gift made by the latter on the ground of undue influence was bound to be dismissed as the son had no interest in praesent in his father's property during the latter's lifetime."
(ii) Muhammad Farooq Khan v. Sulaiman A.G. Panjwani and 2 others reported in P L D 1977 Kar. 88. In the above case, the facts were that the plaintiff who was a partner of a dissolved firm filed a suit, inter alia, for declaration to the affect that he was not liable to Messrs Habib Bank Limited for the over draft amounting to Rs.2,50,000 and interest thereon and that the action of the Bank to advance the above draft to him ex-partner was collusive and not binding upon him. A learned Single Judge of the Sind High Court while construing section 42 of the Specific Relief Act held that the declaration sought neither with respect to plaintiff's legal character in sense of status, nor with regard to any right to property and, therefore, the same was not available by way of relief under the above section.
(iii) Abdur Rehman Mobashir and 3 others v . Syed Amir Ali Shah Bokhari and 4 others reported in P L D 1978 Lah. 113 in which a Division Bench of the Lahore High Court after reviewing the case-law on the scope of section 42 of the Specific Relief Act observed as follows: -
"It is clear from these authorities that section 42 would be attracted to a case in which the plaintiff approaches the Court for the safeguard of his right to legal character or property but where right to his own legal character or property is not involved, the suit is not maintainable. The suit must be one which must bring benefit to him in regard to these two rights. No suit involving any other right, hypothetical or abstract would be competent under that section. The Court will not therefore, entertain suits in which no benefit accrues to the plaintiff or where the plaintiff sets up merely an abstract right to satisfy his ego or satisfy his grudge against another person. Section 42 cannot be invoked in matters of mere sentiments which have no concern with the vendication of the plaintiff's title to status and property."
6. It may be observed that the applicant have filed some additional documents in the above appeal alongwith the appeal and during the pendency of the above appeal in order to demonstrate that the above Power of Attorney was not factually executed by respondent No-1/defendant No-1 in the manner reflected therein. The above documents, inter alia include Photostat copy of identity card of the above respondent /defendant and also a Photostat copy of the identity card of one of the alleged witnesses to the above Power of Attorney, namely, Muhammad Zahir Khan to indicate that the alleged Power of Attorney do not contain the signatures of the above executant and the witness. Affidavits on four rupees non-judicial stamp paper of Muhammad Zahir Khan and of one Ghulam Muhammad have also been filed, in which, Muhammad Zahir Khan has averred that he had not attested any Power of Attorney and that respondent No-1/defendant No.1has been mentally, sick for the last five years. In the second affidavit, the deponent has also averred about the legal mental ailment of the above respondent /defendant. Two Medical Certificates have also been brought on record, one dated 9th October, 1985 and the other, dated 18th February, 1986 signed by three doctors to show that the respondent No.l/defendant No.1was not fit to have executed the power of Attorney. The above certificates read as follows:-
"Secret. No. DMS/6302/3
Dated Quetta the 9th October, 1985.
To,
Dr. D.K. Riaz Baluch,
Secretary, Government of Baluchistan,
Health Department, Quetta.
On clinical grounds Mr. Jam Mir Khan is suffering from Parkinsons On clinic Disease possibly associated with Cerebral arterio Sclenosis as a normal ageing process. The patient may be referred to a Neurologist for second opinion and for Neuro Physiological Investigation at Jinnah Post-Graduate Medical Centre, Karachi.
(Sd.)
Medical Superintendent,
Sandeman (Provincial) Hospital, Quetta.
1. Member. (Sd.)
(Dr. Allah Din, Physician)
2.Member. (Sd.)
(Dr. Abdul Malik Achak;
3. Member. (Sd.)
(Dr. Habib-ur-Rehman)
Copy to the Additional Registrar, High Court of Baluchistt Quetta with reference to his Memo No. 9896/Jdl. M.A.7/84, day 6-10-1985."
Mr. Jam Mir Khan son of. Jam .Yaqoob Khan has been examine by the Standing Medical Board on this 18th day of Februari 1986. He is an old man and appears to be of the age of eight (approximately). He is suffering from Parkinsons Disease Cerebral anther sclehosis and seniladementian.
(Sd.) 18-2--1986
Medical Superintendent
Sandeman (Provincial) Hospital,
Quetta (President of Board).
1. (Sd.)
Dr. A.J.Jaffar,
Professor of Surgery,
Consultant Surgeon,
Civil Hospital, Quetta.
2. (Sd.) Member.
3.(Sd.) Member. 18-2-1986.
(Sd.)
Deputy Secretary (General)
Health. "
7. Mr. Iftikhar Muhammad , learned counsel for the respondents Nos.4 to 8/defendants Nos. 4 to 8 has pointed out that since the above documents were not filed before the learned trial Court, same cannot be filed in an appeal against an interlocutory order passed by the learned trial Court and, therefore, this Court should not look into the same. It is true that in an appeal against an interlocutory order, the Appellate Court is to examine the correctness of the order on the basis of the material which was made available by the parties before the trial Court. The parties cannot file additional documents as a matter of right in such appeal. However, I may observe that an Appellate Court in a fit case, if the dictates of justice so demand, may permit the filing of additional documents by both the parties and may either examine itself or may remand the case to the trial Court for fresh appraisement of the matter. In the present case, in my view, it is not necessary to dilate upon the above additional documents at this stage of the trial of the suit, as I am inclined to hold that since respondent No.l/defendant No.1is still alive, the appellants /plaintiffs have no, prima facie, case to challenge the validity of the gift.
The ratio decidendi of the above Supreme Court case referred to hereinabove, and the case of Hasan Ali v. Nazo (1889) 11 All. 456, referred to by Mulla as an illustration to the above-quoted para. 52, is on all fours applicable to the instant case. Muhammadan law does not recognize spes successionis, i.e. an expectation or hope of succeeding to the property of another by survival. The above hope/ expectation is contingent on the happening of two things, which may or may not happen, namely; (i) that the heir apparent will out live his ancestor whose property he expects to inherit and (ii) that the ancestor at the time of death will leave behind some property, Prima facie, the right to sue accrues to an heir apparent on the death of the ancestor whose property he may be entitled to inherit. During the lifetime of an ancestor, a legal heirs cannot challenge the validity of a gift made by his ancestor. However, once the ancestor concerned dies and the succession opens, the validity of the gift can be impugned by any of the legal heirs. In this regard, reference may be made to the Privy Council case, namely, Kurrutulain Bahadur v. Nuzbat-ud-Dowla Abbas Hossain Khan, reported in (1905) 33 Cal. 116.
8. In this view of the matter, prima facie, the appellants /plaintiffs have no legal right of the nature, of which, a declaration can be sought. Additionally I may also observe that there is no material before me, on the basis of which, it can even tentatively be concluded that in 1982 when the Power of Attorney in question was allegedly executed, respondent No. l/defendant No. l was not fit to form any view in relation to his property. It may also be pointed out that none of the other legal heirs has come forward to support the present appellants /plaintiffs.
9. This lead us to the last submission of Mr. Tahir Muhammad Khan that since the suit was, inter alia, for permanent injunction, ad interim injunction should have been granted as a matter of course. In this regard, it may be observed that a well-settled principle of law is that for the purpose of grant of an ad interim injunction under Order XXXIX, Rules 1 and 2, C.P.C. read with section 151, C.P.C., the Court has to examine the case on the basis of the following three D ingredients: -
(i) Whether the plaintiff has a prima facie case
(ii) Whether withholding of ad interim injunction would result irreparable loss to him and
(iii) the balance of convenience between the parties.
Additionally the Court may also look into the conduct of the plaintiff and the question of delay i.e. whether the plaintiff has approached the Court with clean hands and whether he has so approached promptly or after delay. The plaintiff may be declined the relief of an ad interim injunction, if he has not approached the Court with clean hands, or he is guilty of laches. If the Court comes to the conclusion that the plaintiff has no prima facie case. Injunction is to be refused. The above principles cannot be deviated even in a suit, in which, a plaintiff may claim a permanent injunction. If I were to hold that a plaintiff is entitled to an ad interim injunction invariably as a matter of course in a suit, in which, he has, inter alia, sought a permanent injunction, this will lead to miscarriage of justice, inasmuch as, that a defendant may be restrained from doing some act, which he may be otherwise legally entitled to do so. It will not be out of context to refer to a judgment of Dorab Patel, J (as he then was) of the erstwhile
High Court of West Pakistan at Karachi in the case of Arts Council of Pakistan v. Riazuddin Pirzada, reported in P L D 1969 Kar. 349, in which the petitioner, Arts Council of Pakistan had filed a Revision against an ad interim injunction granted by the learned trial Court in a suit for declaration and permanent injunction. It was contended by the respondent /plaintiff before the learned Judge (Dorab Patel, J) that if the injunction would not have been granted, the suit would have become infructuous. The above contention was repelled and the following observations were made:-
"6. If this argument is accepted, a plaintiff, with a flimsy cause of action can harass a defendant by filing a suit at the eleventh hour and then contend that the suit will become infructuous unless interim orders are passed in his favour, and if this Court cannot examine the conduct of such a plaintiff, or whether he has a prima facie case, it will put a premium on false claims and lead to absurd results."
10. I am, therefore, of the view that the appellants /plaintiffs cannot claim ad interim injunction as a matter of course though in the suit one of the prayers is for permanent injunction unless I am satisfied that the appellants /plaintiffs have, inter alia, prima facie case. My tentative view is that the appellants/plaintiffs have failed to make out a prima facie case in view of the above clear pronouncement of the Honourable Supreme Court of Pakistan.
The order under appeal seems to be in consonance with law and does not call for an interference by this Court. The appeal is, therefore, dismissed, but there shall be no orders as to cost.
Before parting with the above discussion, I may observe that the observations contained hereinabove are of tentative nature and they are to be ignored by the learned trial Court while deciding the suit at the regular hearing.
A . A . Appeal dismissed.
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