ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
SMA No.174 of 2006
Date Order with signature of Judge
Petitioners Mst. Zubaida Khaliq and others through Mr. Mubarak Ahmed, advocate.
Objector Mst. Mehmooda Sharif widow of Brigadier (rtd.) Chaudhry Muhammad Abdul Wahab, through Chaudhry Muhammad Iqbal, advocate.
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KHAWAJA NAVEED AHMED, J., Originally, this SMA/Petition was filed on 07.12.2006. On 07.5.2007 an application under Order VI, Rule 17, CPC (CMA No.324/2007) was filed for amending the prayer clause of the main SMA/Petition, in which it was inadvertently mentioned that the Letter of Administration be issued in favour of attorney of the petitioners. Through this application the amendment in the prayer clause has been sought to the effect that the Letter of Administration may be issued in favour of the petitioners.
2. Thereafter, the amended Succession Misc. Application has been filed on 06.9.2007 by Mst. Zubaida Khaliq, Mst. Jamila Shafique, M.A. Ghafoor Chaudhry, M.A. Qayum and M.A. Rahim Chaudhry in respect of the assets left by deceased Brigadier (rtd.) Chaudhry Muhammad Abdul Wahab, (hereinafter referred to as the "deceased"), an Ahmadi by faith, who had expired at Karachi on 26.1.2006. According to the petitioner, following properties were left by the deceased:-
(i) Agricultural land consisting of 10 Kanal 3 Marlas in Village 50/12-L, Tehsil Chechawatni, District Sahiwal;
(ii) Plot No.8, Block A, Phase I, measuring One Kanal in Green City, Burki Road, Lahore;
(iii) Plot No.249 (new No.F-109);
(iv) Plot No.E-II-178 (new No.F-110), both the plots situated in Sector D-18, Sangani, Al Paswal of Engineering Cooperative Housing Society, Islamabad.
3. The legal heirs/petitioners are sisters and brothers of the deceased as he was issueless. It is claimed that deceased was married to Mst. Mehmooda Begum, in whose name he had purchased an Apartment bearing No.10-B, Askari-II, School Road, Karachi Cantt., Karachi, ("said Apartment") and thereafter Mst. Mehmooda Begum had gifted the said Apartment to the deceased. The Gift Deed was sent to General Headquarters, Adjutant General Branch (Housing Directorate), Rawalpindi. It is stated in the petition that in the meanwhile differences between the spouses led to divorce by the deceased to Mst. Mehmooda and the deceased had filed a suit bearing Suit No.1055/2004 in the Court of VIIth Civil Judge, Karachi (South), on the ground of benami transaction. The deceased had expired during the pendency of the said suit and after the death of deceased the Military Estate Office had mutated the said Apartment in the name of deceased. The legal heirs of the deceased after the death of deceased had moved an application for withdrawal of the said suit, which was disposed of as withdrawn. Mst. Mehmooda Begum had filed Suit No.1018/2006 in the Court of VIIIth Sr. Civil Judge, Karachi (South) in respect of the said Apartment and as such the petitioners have not included the said Apartment in the list of properties left by the deceased in this amended SMA/Petition and the name of Mst. Mehmooda Begum in the list of legal heirs of deceased. It has been mentioned by the legal heirs that Mst. Mehmooda Begum was divorced on 01.6.2004 and the deceased was issueless. According to the petitioners, Mst. Mehmooda Begum in her written statement filed in Suit No.1055/2004 had admitted the fact of divorce pronounced to her by the deceased in his life time. It is stated that one of the legal heirs of the deceased namely M.A. Bari Chaudhry has declined to take share from the properties left by the deceased and as such a photo-copy of his withdrawal from claiming the share has been filed with the Petition and has been marked as annexure "G".
4. The disputed property i.e. said Apartment was also excluded from the SMA/Petition vide order dated 08.10.2007. The Court had ordered for issuance of notice to the ex-wife of the deceased Mst. Mehmooda Begum. Mst. Mehmooda Begum was served through the VIIIth Sr. Civil Judge, Karachi (South) wherein her Suit bearing No.1018/2006 is pending.
5. Mst. Mehmooda Begum has filed her objections by way of counter affidavit. She says that she is the necessary party. She intentionally was not made party to the petition on the ground that she has been divorced by the deceased. Mst. Mehmooda Begum claimed that intimation notice of divorce under Section 7 of the Muslim Family Law Ordinance, 1961 ("Ordinance, 1961") has not been given to the Chairman, Arbitration Council so the divorce, if any, has not become effective and as such she is not a divorcee within the meaning of law. She has further stated that except the petitioners at serials Nos.1 and 3, all are Ahmedis and their share shown at paragraph 8 of the petition is in accordance with Muslim Law of Inheritance. It has been argued by the petitioners that the deceased being the Ahmedi was not governed by Ordinance, 1961 and as such requirement of intimation notice under Section 7 of Ordinance, 1961 was not mandatory for him. In reply to this argument, Mst. Mehmooda Sharif's counsel has argued that Ahmedis are governed by the Hanafi School of thought as per Fiqah Ahmedia, which has consent of Khalifatul Maseeh Al Rabeh. She has further stated that Ahmedis do not have any personal law of their own and as such the Hanafi Law as well as Law of the land is applicable to Ahmedis. Mst. Mehmooda Sharif has stated in her affidavit that she has spent more than forty years with the deceased as his wife and the divorce which he had pronounced due to his old age, being issueless and under the influence of the petitioners was never acted upon by him. He never wished that the same become effective by his conduct of not issuing notice to the Chairman, Union Council or to the Chief of Ahmedia faith and as such she claims to be the widow of the deceased. She has prayed in her objections/counter affidavit that the present SMA may be converted into suit for administration as it needs recording of evidence and appreciation of facts and law.
6. Mr. Mubarak Ahmed, after arguing at length had submitted a short note for the assistance of this Court wherein he has mentioned that Ordinance, 1961 is applicable to Muslim of Pakistan as contained in Section 1(2) of Ordinance, 1961, which says that it extends to whole of Pakistan and applies to all Muslim Citizens of Pakistan where they may be. He has further stated that Ahmedis were declared non-Muslim by Article 260(3)(a) and (b) of the Constitution of Islamic Republic of Pakistan, 1973, which is reproduced as under:-
"260(3)(a)"Muslim" means a person who believes in the unity and oneness of Almighty Allah, in the absolute and unqualified finality of the Prophethood of Muhammad (peace be upon him), the last of the Prophets, and does not believe in, or recognize as a prophet or religious reformer, any person who claimed or claims to be a prophet, in any sense of the word or of any description whatsoever, after Muhammad (peace be upon him); and
(b) "non-Muslim" means a person who is not a Muslim and includes a person to the Christian, Hindu, Sikh, Budhhist or Parsi community, a person of a Quadiani or the Lahore Group (who called themselves 'Ahmadis' or by any other name), or a Bahai, and a person belonging to any of the Scheduled Castes."
7. In support of his above contentions Mr. Mubarak Ahmed has relied upon the case of MUHAMMAD RASHID AHMAD v. NUSRAT JEHAN BEGUM (1986 MLD 1010) where it was held that Ordinance, 1961 was not applicable to Qadianis. Mr. Mubarak Ahmed, advocate for the petitioners, in his short note has mentioned that the objector herself has admitted the fact of Talaq in her statement filed in Suit No.1055/2004 in the Court of VIIth Sr. Civil Judge, Karachi (South) and also in her suit No.1018/2006, pending in the Court of VIIIth Sr. Civil Judge, Karachi (South). He has further filed a statement claiming to be that of Mst. Mehmooda Sharif, which she had made to Ahmadia Community in which she has mentioned that the deceased had divorced her after forty years of married life on 23.5.2004 and the divorce has become effective. This statement is in the shape of an application moved by Mst. Mehmooda Sharif to the Ahmadia Jamat wherein she had asked for return of her dowry articles as well as maintenance for the Iddat period at the rate of Rs.15,000/- per month. She had also asked for her salary at the rate of Rs.31,000/- per month with effect from 1982 to 2002, from the two companies namely Messrs Kohkan Engineering Limited and Messrs Waraich Sons, established by late Brigadier in which she was one of the Directors/co-owner.
8. Mr. Mubarak Ahmed, advocate for the petitioners, in his short note has further drawn the attention of the Court to Annexure P/8 with objections filed by Mst. Mehmooda Sharif, in which she claims that the latter has played fraud on the Court by tampering with the documents and has asked that Mst. Mehmooda Sharif should be prosecuted under Section 476, Cr.P.C.
9. It transpires from the pleadings that at the time of her marriage Mst. Mehmooda Sharif she was 19 years old. On July 20, 1962 when her Nikah was solemnized with her husband, who was at that time Lieutenant in Pakistan Army and was aged about 24 years only. The dower amount was Rs.5,000/- and Nikah was registered on the form prescribed for Muslims under Ordinance, 1961. It was registered with Nikah Registrar Ward Saddar, Union Council No.5, within the jurisdiction of Preedy Police Station.
10. From the pleadings and arguments of the learned counsel for both the parties it transpires that husband and wife lived together for more than forty years and they were issueless. It has come on record that the deceased had pronounced divorce to Mst. Mehmooda Sharif and at the time of death of deceased they were living separately in their respective houses. It is an admitted position that the intimation of divorce was not given by the deceased to Chairman, Union Council, under Section 7 of Ordinance, 1962 or to the Chief of Ahmadi Jamat. The effects of non-confirmation of divorce or not giving the intimation to Ahmedi Jamat regarding divorce need consideration and this important question of law cannot be decided through these proceedings, especially under the circumstances when the advocate for the Objector Mst. Mehmooda Sharif has relied upon the following case law in support of his contention that Ordinance, 1961 is applicable in the circumstances of this case:-
(i) NAEEM AHMAD v. NUZHAT ALMAS (NLR 1981 Civil 35);
(ii) DAPHNE JOSEPH v. ERIC ROSHAN KHAN (PLD 1971 Karachi 887);
(iii) MUBBASHER AHMAD v. TALAT KHURSHID (1996 CLC 1963);
(iv) JAVID ALI v. ABDUL KADIR (1987 SCMR 518);
(v) EYESHA SIDDIQUA v. SHAFQAT HUSSAIN ARSHAD (2007 CLC 1009); and
(vi) MUHAMMAD SALAHUDDIN KHAN v. MUHAMMAD NAZIR SIDDIQI (1984 SCMR 583).
11. Mst. Mehmooda Sharif in her counter affidavit has prayed that the SMA/Petition be not granted and same be treated contentious and as such be registered and numbered as suit with a chance to file proper written statement by her.
12. I have gone through Section 295 of the Succession Act, 1925, which is reproduced herein below:-
“295. Procedure in contentious cases. In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908, in which the petitioner for probate or letters of administration, as the case may be, shall be plaintiff, and the person who has appeared to oppose the grant shall be the defendant.”
13. I am of the considered view that from the facts and circumstances as emerged from the pleadings and arguments advanced by learned counsel for the respective parties this matter is a contentious one and can only be adjudicated upon by converting this SMA/Petition into civil suit. Accordingly I hereby ordered that this SMA/Petition No.174/2006 be converted into civil suit. Office is directed to number the suit. All concerned parties are allowed to file further documents as well as pleading within two weeks from the date of this order.
Adjourned. Put up according to roster.
Karachi,
January 24, 2008 Judge