IN THE HIGH COURT OF SINDH AT KARACHI.

 

II-APPEAL NO.72 OF 2014

 

                                                      PRESENT: 

MR. JUSTICE FAHIM AHMED SIDDIQUI

 

 

 

Appellant               :   Amanullah through

 M. Talib Shah, Attorney of appellant          

     

Respondents         :   Inamullah and Shahid Hussain     

No.1&2                       through Mr. Ahmer Javed Alam, advocate

           

 

Date of haring           :         10.12.2016     

 

Date of Judgment     :           _________

                    

           

JUDGMENT

 

            FAHIM AHMED SIDDIQUI, J:  This second appeal is directed against the common judgment and decree dated 08-08-2014 passed by the learned Additional District Judge-V, Karachi South in Civil Appeal No. 111/2013 (filed by respondent No. 1 and 2) and Civil Appeal No. 118/2013 (filed by the appellant), whereby allowing appeal filed by respondents and dismissing the appeal filed by appellant.

 

1.                     Briefly, the facts of the case as per memo of appeal are that the appellant and respondents are siblings and reason of internecine feud is the property inherited to them from their deceased father i.e. house No. 824, sheet No. 900, MACI, Mehmoodabad No. 6, Karachi, measuring about 220 square yards. After the death of their father, the appellant filed SMA bearing No. 166/1984 before this Court for the issuance of Letter of Administration in respect of the said property, which was granted vide order dated 19-05-1985, with condition that any alienation of the property could only be done with the permission of this Court. According to appellant, he tried to distribute the share amongst all the legal heir including respondents and two sisters namely (1) Nafeesa Begum and (2) Zarifa Begum but respondents used to deny his share, therefore, he filed an administration suit bearing No. 485/2006 in which the respondents filed WS. The appellant’s counsel received his copy of WS with annexures including Mutation Letter and Relinquishment Deed allegedly executed by him and his sisters in favour of respondents. After receiving the said relinquishment deed and mutation letter in the name of respondents, the appellant filed suit No. 740/2006 in which he sought declaration and cancellation of the alleged relinquishment deed and mutation letter in favour of the respondents, as well as the permanent and mandatory injunction. During proceedings of the said suit, the signature and thumb impression of appellant on relinquishment deed got verified and found genuine.  The trial court in judgment/decree dated 26-04-2013 decided all the issues against the appellant save to issue No. 1 by holding that since the permission for relinquishment was not obtained from this Court, as envisaged in letter of administration, therefore, relinquishment is not proper and legal. Both the parties felt aggrieved and preferred appeals before the first appellate court, which were decided by impugned order against the appellant.

 

2.                     The learned counsel for the appellant preferred his arguments and also supplied the synopses of his arguments. During the course of his arguments, he described the entire facts of the case as mentioned above. He submitted that the appellant filed SMA No.166/1984 before this Court and after completion of all formalities, the letter of administration was issued in his favour subject to condition that he would not in any manner sell, mortgage or alienate the said property without the permission of the Court and the petitioner (appellant) submit annual account of all the income and expenditure of the said property. He argued that the respondents by committing fraud, cheating and forgery succeeded in getting the so-called relinquishment deed registered. According to him on the basis of such relinquishment deed, the property was also mutated fraudulently. According to him, it is established that the said property is an inherited property as such the relinquishment deed and mutation are required to be cancelled and the said inherited property be distributed amongst all the legal heirs. He further submitted that the learned first appellate court committed grave illegality and irregularity in passing judgment and decree as well as the findings of the first appellate court are contrary to the facts and law. According to him, the first appellate court could not appreciate properly that the appellant had never relinquished his rights over the suit property. In the end, he prayed for setting aside the judgment and decree of the first appellate court and restoring the judgment and decree of the trial court as per prayer.

 

3.                     Conversely, the learned counsel for the respondents supported the impugned judgment and decree by submitting that the first appellate court has rightly come to the conclusion that the suit filed by the appellant is liable to be dismissed. He submitted that the sanctity is attached to the relinquishment deed as it is a registered document. He furthered submitted that the writing and thumb impression expert reports are on the record, which verify that the signature and thumb impression available on the relinquishment deed are genuine and original and belonging to the appellant. In the end, he submitted that the entire evidence recorded or produced before the trial court goes against the appellant as such the instant appeal should be turned down.

 

4.                     I have examined the entire material available before me in the light of the worthwhile submissions of both the learned members of the bar. It is worth noting that regarding the facts of the case, the trial court and the first appellate court are having the same opinion. They concurred regarding the execution of relinquishment deed by the appellant in favour of the respondents and other factual aspects of the case. The concurrent findings of the facts are ordinarily not reopened in an appeal under section 100 of the Code of Civil Procedure. However, in the instant matter, a legal issue is required to be addressed regarding ‘not seeking permission’ from this Court before execution of relinquishment deed in compliance of the condition of the Letter of Administration issued to appellant.

 

                        The two courts below are having different views regarding the validity of relinquishment deed because of the execution of the same without getting permission from this Court as per condition imposed in the Letter of Administration issued in SMA No. 166/1984. The trial court has framed a good number of issues, amongst them nearly all the issues were decided by the trial court against the appellant except issue number one, which is as under.

"Whether the relinquishment deed executed in favour of defendant is according to law?”

 

5.                     The above issue was decided as negative and the trial court came to the conclusion that the relinquishment deed was very much executed by the appellant which bears his genuine signature and thumb impression but the same is not according to law because it was executed without the permission of High Court as directed under SMA No. 166/1984. It appears that the learned judge of trial court conceived that the direction given in the aforesaid SMA is a condition precedent for a relinquishment deed. In my humble view, it is not so and the purpose of such directions is that the petitioner may not be able to get undue advantages in respect of the property of deceased being the holder of the letter of administration. The intention of such conditions at the time of granting the letter of administration is to put some embargo on the unfettered powers of a petitioner to transfer the property to some third person by depriving the legal heirs of deceased. The trial court could not appreciate that the ‘relinquishment’ itself is not alienation or transfer but it is only the waiver of his right by the petitioner in the property in question. Only execution of ‘Relinquishment Deed’ itself is not amounting to transfer of the property. In this respect reliance may be taken from the case reported as Abdul Hakeem v. Abdul Majid and another; P L D 1957 (W. P.) Karachi 379. As such, I am of the considered view that since there is no sale, alienation or transfer in respect of the inherited property, except that the appellant has voluntarily excluded himself from his right in the property in question, therefore, no violation of any condition imposed under the letter of administration issued by this Court has taken place.

 

6.                     The relinquishment deed is a registered document, and a registered document would become a public document and the presumption of correctness and reliability would attach to such document. Mere denial on the part of appellant being the plaintiff in respect of a registered document is not sufficient but he is required to prove his case with strong and non-rebuttable evidence, as the onus to prove of a registered document never shifted to defendants. In this respect, reliance may be taken from the case reported as Muhammad Sarwar Khan and others v. Mst. Rukhsana Zohra Bibi and others; 2016 C L C Note 20. I am of the view that before the trial court the appellant could not discharge his onus in denial of ‘relinquishment deed’ while the execution of the said document is established before the court bellow. The eventual outcome of the above discussion is that the first appellate court has rightly dismissed the suit of appellant and the same does not need interference by this Court.

 

The instant Appeal stands dismissed in the above terms.

 

                                                                                                             JUDGE