IN THE HIGH COURT OF SINDH, KARACHI
Suit No. 102 of 2007
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Date Order with signature of Judge
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For final arguments.
13th May, 2016.
Mr. Nayyar Ziauddin, Advocate for plaintiff.
Mr. Habib Jalib, Advocate for Defendants No. 1,3,4 and 5.
Mr. Idrees Ahmed, Advocate for Defendants No. 7 to 11.
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At the outset, it is argued that preliminary decree was passed with regard to immovable property left by deceased Lieutenant Commander Muhammad Ismail Khan as well counsel for the defendants No.1, 3, 4 and 5 contends that Flat No. A-96, , Rabia Palace, Gulshan-e-Iqbal is in possession of plaintiff which is owned by defendant No.3. It is further surfaced that out of total properties left by deceased 500 square yards were sold out by the deceased to his brother Abdul Hayee. Parties also claim Rs.95,000/- spent on constructions by defendant No.4 as well Rs.2,88,000/- for the education of son of the plaintiff.
2. Without prejudice to the disputed claims i.e. 500 square yards, which were purportedly sold out by the deceased to his brother Abdul Hayee, Rs.95,000/- and Rs.2,88,000/-, it is prima facie evident that parties are not on dispute with regard to remaining 1272 square yards to be that of late Lieutenant Commander Muhammad Ismail Khan. Such undisputed position, leaves nothing to delay rights of legal heirs of said deceased to inherit the same which opens the moment one dies. I shall add that term ‘inherit’ shall not stand satisfied unless a legal entitlement is received/given to legally entitled person. The word inherit, per Black’s Law Dictionary, means:
‘To receive (property) from an ancestor under the laws of intestate succession upon the ancestor’s death.’
I shall, without any reluctance, add that in such like matters the Court (s) should not keep whole rights (properties) hanging (under litigation) if a part/piece thereof is undisputed because an undisputed legal right, even how low it may be, should not be delayed in name of other disputes even if between same parties, which otherwise, is the theme and object of Order XII, Rule 6 CPC.
3. Accordingly, instant suit is partly decreed only to extent of undisputed rather admitted position that an area of 1272 square yards out of total area of 1772 Sq. Yds, which as per parties not partitionable, leaving disputed claims to be determined as per law separately. Nazir shall auction this property as per market value and distribute the sale proceeds among the legal heirs according to their share as per law. Parties would be at liberty to bring any buyer or match the price, however, Nazir shall withheld Rs.95,000/- and 2,88,000/- from the sale proceeds which issue including the dispute with regard to 500 square yards would be decided after hearing the parties. Learned counsel for the plaintiff is agreed that after receiving the share plaintiff would vacate the aforesaid flat and will hand it over to the defendant No.3 under the supervision of Nazir. This exercise shall be completed preferably within two months. Nazir would be entitled to receive Rs.20,000/- fees. All expenses incurred on this exercise shall be deducted from sale proceeds as per share of the parties.
Let such decree be drawn.
JUDGE
Sajid.