SALEHA FATIMA Vs. MIRZA FAZAL HUSSAIN BAIG

JUDGEMENT

(1.) THE defendants in O. S. No. 1828 of 2003 preferred the present appeal challenging the Decree and Judgment of the lower Court dated 12. 3. 2008 in Os No. 1828 of 2003. The plaintiffs filed the above suit for partition of money of Rs. 21,00,255. 75ps. The suit was decreed holding that plaintiffs are entitled to l/6th share each out of total amount received on the personal insurance policy of late Mirza Hashim Hussain Baig by the first defendant. Being aggrieved by the same, defendants 1 to 3 preferred the present appeal.

(2.) THE averments of the plaint filed by the plaintiffs are briefly as follows : The plaintiffs are the father and mother of late Mirza Hashim Hussain Baig. He is the only son among other children. Defendant No. l is the wife and defendants 2 and 3 are children of the deceased Baig. During the lifetime of the deceased, he worked at Meero and Co. , Sharjah, Abu Dhabi as Project Engineer and while working he purchased insurance policy of his life for $45,000.00 through Alliance Insurance Company at Sharjah of Abu Dhabi. On 28. 8. 2001 the deceased nominated his wife as nominee to receive amount in case of his pre-mature death. The first defendant as per the nomination entitled to receive all benefits from the insurance company and liable to distribute the amount among all heirs of late Baig. The deceased died in his car on Abu Dhabi Road on 12. 3. 2002 intestate due to cardio respiratory arrest. After the death of late Mirza Hashim Hussain Baig, all his movable and immovable properties will become Matruka properties and they devolved upon all legal heirs. The plaintiffs are entitled to give l/6th share each in those properties. The plaintiffs intimated to Alliance Insurance Company about the presence of other heirs of late Mirza Hashim Hussain Baig, but the insurance company did not consider this fact. The defendant No. l had received an amount of Rs. 21,00,255. 75ps. from the insurance company through cheque and also all the movables and cash from the bank accounts of the deceased from Mashreq Bank, Sharjah, and also from the Meero Company amounting to Rs. 10,00,000.00, but failed to distribute among the heirs as per law. The first defendant did not disclose the other movable property. D1 deposited cheque in her personal account No. 01190015489. The plaintiffs demanded their share of amount, but the first defendant at first gave evasive replies. On 23. 9. 2002, she refused to give the share of property to plaintiffs without any reason. Plaintiffs tried for amicable settlement, but Dl refused for the same. Hence, the suit.

(3.) AFTER amendment of the plaint, D1 to D3 filed additional written statement by denying the averments in plaint Para 9 (A) contending that the Pay Order and covering letter dated 4. 6. 2003 addressed to the first defendant have nothing to do with the plaintiffs as the suit itself is not maintainable. The defendant No. 4, State Bank of Hyderabad, filed a separate written statement contending that there is no cause of action against D4 and no relief sought against the fourth defendant. D4 is not a necessary party to the suit, therefore, the suit is liable to be dismissed with damages of Rs. 2,500/ -. Basing on the above pleadings the lower Court framed the following issues :