ORDER SHEET

ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Suit No. 1134 of 2009

Date Order with signature of Judge

For Final Disposal.

02-11-2012

Plaintiff No.2 Syed Asghar Hussain Rizvi present in person.

Mr. Qadir Hussain advocate for the defendant along with the defendant Syed Nayar Hussain.

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Nadeem Akhtar, J. : This is a Suit for administration and partition in respect of an immovable property and some other assets left behind by late Syed Akbar Hussain Rizvi, hereinafter referred to as “the deceased”, who passed away intestate at Karachi on 25.02.2007. Plaintiffs 1 and 2 and the defendant are the real sons of the deceased, whereas plaintiffs 3 and 4 are the real daughters of the deceased. Admittedly, except for the plaintiffs and the defendant, there is no other surviving legal heir of the deceased.

2. As per the averments made in the plaint, the deceased left behind him the following immovable property and other assets which have been inherited by the plaintiffs and the defendant as per their respective shares governed by Fiqa-e-Jaffria :-

a. Plot No. 2/684, Liaquatabad, Karachi, measuring 143.33 sq.yds., with construction thereon ;

b. An amount of Rs. 110,066.00 lying in PLS Account No. 0060336001 with Habib Bank Limited, Liaquatabad Branch, Karachi ; and

c. Locker No. 60 at Habib Bank Limited, Preedy Street Branch, Karachi.

3. In respect of the only immovable property described in paragraph 2(a) above, which has been inherited by all the parties as per their respective shares, it has been stated in the plaint that the said property consists of a ground floor and a first floor. It has been further stated that there are five (05) shops on the ground floor, out of which three (03) shops are in possession of tenants and some portion on the ground floor is in possession of plaintiff No.4, whereas the first floor is in possession of the defendant. It has been alleged in the plaint that the defendant is not ready or willing to distribute the shares of all the legal heirs as per their entitlements. Regarding the bank account and the locker, it has been stated that the same were / are in the name of the deceased and as such none of the parties can operate the same. In the above background, this Suit has been filed by the plaintiffs, who are two brothers and two sisters, against the defendant, who is their real brother, praying inter alia for appointment of a commissioner / receiver to take over the properties left by the deceased, for partition of the immovable property, and for determination and distribution of their respective shares.

4. Service on the defendant was held good on 04.05.2012. However, he did not file his written statement. Accordingly, he was debarred from filing the written statement and the matter was ordered to be fixed before the Court for final disposal. Today the defendant has appeared in person along with his counsel. He submitted that he never denied the rights or entitlements of any of the plaintiffs nor did he ever stop them from claiming their right in the immovable property and/or from using or enjoying the same. The defendant in fact admitted that all the legal heirs of the deceased, including the plaintiffs, are entitled to their respective shares. He denied the allegations leveled against him in this Suit by the plaintiffs. The defendant submitted that he has no objection if the immovable property is partitioned / divided, the other assets are collected, and shares of all the parties / legal heirs are distributed as per their respective entitlements. He prayed that a commissioner be appointed by this Court to carry out and complete the entire exercise within a specified time period.

5. Plaintiff No.2 Syed Asghar Hussain Rizvi, who is present in person, has confirmed that all the other plaintiffs have conveyed their consent to him, and he (plaintiff No.2) also has no objection, in case this matter is resolved as prayed by the plaintiffs, to which the defendant has also agreed as noted above. I have verified the identities of the plaintiff No.2 and the defendant, who produced before me their original CNICs for inspection, copies whereof have been retained and have been placed in the Court file.

6. Before passing the final decree for administration and partition, a preliminary decree for administration has to be passed under Order XX Rule 13 CPC, and likewise a preliminary decree for partition has to be passed under Order XX Rule 18 CPC, whereby directions can also be given by the Court as it may deem fit and proper. In view of the express consents given before this Court today by the defendant and by the plaintiff No.2 for himself and on behalf of other plaintiffs, a preliminary decree is passed on the following terms and conditions :

A. The Nazir of this Court is appointed as commissioner to inspect the immovable property described in paragraph 2(a) above in order to ascertain whether or not the same can be partitioned / divided by metes and bounds in such a manner that shares / portions in the said property can be physically divided and handed over to each of the parties as per their respective shares, that is, 25% each to plaintiffs 1 and 2 and the defendant, and 12.5% each to plaintiffs 3 and 4. For this purpose, the Nazir may seek assistance of any qualified engineer or architect. The Nazir shall complete this exercise within three (03) weeks from today and shall submit his detailed report along with sketch(s) and building plan to this Court for further orders within four (04) weeks from today. In his report, the Nazir shall also give all relevant details of the shops on the ground floor, names of the persons who are in possession thereof as tenants or otherwise, the rate of rent of each shop, and the name(s) of the person(s) who has / have been receiving the rents. All future rents etc. shall be collected by the Nazir and shall be retained by him till further orders.

B. After examining the report of the Nazir, if this Court comes to the conclusion that the aforementioned property can be partitioned and shares / portions therein can be divided and handed over to each of the parties as per their respective shares, a final decree shall be passed accordingly. However, if the Court concludes that the partition / division / distribution is not possible, then all the parties shall appear before the Nazir, on the date to be fixed by the Nazir through proper notice, and shall submit their respective offers to purchase the shares of the other parties in the said property. If none of the parties succeed in purchasing shares of the other parties in the said property, then the Nazir shall proceed to sell the said property through public auction and the sale proceeds thereof shall be distributed by him amongst the parties as per their respective shares / entitlements.

C. The Nazir shall collect the entire amount lying in the bank account mentioned in paragraph 2(b) above and shall also collect all the contents of the locker mentioned in paragraph 2(c) above. The amount and the contents so collected by the Nazir shall be retained by him till further orders. This exercise shall also be completed by the Nazir within three (03) weeks from today and a report in this behalf along with all relevant details and particulars shall be submitted by him before this Court for further orders within four (04) weeks from today.

D. The fee of the Nazir / commissioner is tentatively fixed at Rs. 25,000.00 (Rupees twenty five thousand only). Such fee, as well as the fee, if any, of the engineer or architect shall be deducted by the Nazir from the sale proceeds of the immovable property before disbursing the shares of the parties.

The office is directed to immediately deliver a copy of this preliminary decree to the Nazir / commissioner.

J U D G E

Abdul Salam/P.A