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IN THE COURT OF DISTRICT JUDGE HYDERABAD
Guardianship Appeal No. of 2009
Jawed Iqbal s/o Iqbal
Christian, adult, Resident of House
No.803 Christian Colony Unit No.5
Latifabad Hyderabad ---------------------------------- Appellant
versus
1- Foster Raja d/o Raja Masih
Christian, adult, Resident of
9/B Block-B, Unit No.10
Latifabad Hyderabad
2- Civil Judge & Judicial Magistrate-IX
Hyderabad ----------------------------------- Respondents
GUARDIANSHIP APPEAL
Being aggrieved and dissatisfied by the order dated
20-5-2009 copy replied on 01-06-2009 posted by learned Civil Judge & Judicial Magistrate-IX respondent No.2, the appellant begs to prefer present appeal, inter alia, on the following facts, grounds and prayed that this Honourable Court may be pleased to call for R & Ps of above guardianship application bearing No. 29 of 2007 titled” Mst. Fosta Raja v/s Javed Iqbal from the court of Civil Judge & Judicial Magistrate-IX, Hyderabad after saving the records, its legality, prosperity and having two parties may pleased to set-aside impugned order allow the appeal with cost and any other relief being fit and proper under the circumstances of the case.
F A C T S
Briefly facts leading to present appeal are that the appellant/plaintiff filed suit No.64 of 2004 for dissolution of
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marriage which was decided by judgment/decree 22-02-2005 and 28-2-2005 and the marriage was dissolved with the respondentNo.1/ defendant (copy of the judgment/decree is filed as annexure-B & C). Thereafter a compromise deed was executed between the appellant/plaintiff and respondent No.1/defendant on 18th February 2006 at Hyderabad in presence of witnesses (Copy of the compromise deed is attached herewith as annexure-D). The main terms and condition of the compromise deed was as under: -
1- That, all the three children shall remain in the custody and look after of the party No.2.
2- That, the first party who is the real father of the children shall visit four times in a month at any convenient day decided mutually by the both parties, to meet the children for sufficient time.
3- That, the party No.2 shall make it sure that during this meeting none of the family members of relatives of the second party shall interfere in this meeting.
4- That, the party No.1, shall deposit an amount of Rs.3000/- per month towards the maintenance of the above named children in the bank account of party No.2, which is PLS account No.26398-9, Habib Bank Unit No.7, Latifabad branch Hyderabad and this amount shall be properly and justly be spent by the second party on the welfare of the children.
5- That, whenever the second party will enter into second marriage with any person than the custody of the children will be returned/delivered to the party No.1, and the payment of maintenance shall be seized.
6- That, both the above mentioned parties shall utilized their best abilities for the welfare and bright future of the children.
7- That, both the above parties shall not interfere into the personal life/affairs of each other and in no way shall cause any disturbance to each other.
That, in total violation of the above terms & conditions of compromise deed the respondent No.1 filed guardianship application No.21 of 2007, therefore respondent No.2 learned Civil Judge & Judicial Magistrate-IX who without hearing the appellant
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and without considering the deed of compromise and interest of the minor children passed the impugned order depriving the appellant of his right as a father of the minor children hence this appeal on following grounds:-
G R O U N D S
1- That, the impugned order is against the facts, law, equity, conceives play of justice.
2- That, the trial court did not appreciate the interest of the minors and same findings are based on presumption conjunctions.
3- That, the learned trial court respondent No.2 did not hear the version of the appellant being father of the minors and did not give any serious consideration to compromise deed executed between the parties which was made out for the interest and welfare of the minor children
4- That, the concerned court has not acted properly and passed the order in hurry manner without hearing the appellant and his advocates and the appellant condemned unheard
5- That, the learned trial court has wrongly given findings on issues No.1,2,3 against the appellant/plaintiff that the interest and welfare of minors rests in the respondent No.1 who has no source of earning and entirely depends on others.
6- That, the learned trial court respondent No.2 has un-necessarily tried to impose certain conditions which were not settled in deed of compromise and being not sustained in law as it goes against the interest of welfare of the minors.
7- That, the order suffers from patent illegality hence it is liable to be set aside.
8- That, the learned trial court / respondent No.2 has not assigned any cogent, convincing valid, legal ground, reason, plausible explanation, justification for passing an order against compromise deed which is liable to set-aside by allowing the appeal.
9- That, the impugned order is based on misreading and
non-reading at any integrated of the oral/documentary evidences by the appellant in support of his
10- That, the impugned order is one sided biased, falsely,
pre-determined
11- That, the appeal is in learned certified copy of the impugned order is submitted herewith.
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P R A Y E R
Therefore, it is very humbly prayed that this Honourable Court issue the pleased to set-aside the impugned order dated 26-5-2009 passed by learned Court & Judicial Magistrate-IX (respondent No.2) and passed strategic order as well as compromise deed executed between by the parties on 18th July, 2006 and order for custody of minors with the appellant, grant any other relief being decreed fit and proper under the circumstances of the case.
Hyderabad
Dated: 06-06-2009 APPELLANT
ADVOCATE FOR APPELLANT
IN THE COURT OF DISTRICT JUDGE HYDERABAD
Guardianship Appeal No. of 2009
Jawed Iqbal s/o Iqbal ---------------------------------- Appellant
versus
Foster Raja & ANOTHER ------------------------------- Respondents
APPLICATION U/R 14 OF SINDH
CIVIL COURT RULES
It is respectfully prayed that this Honourable court may be pleased to take up this appeal during summer vacation and fixed for hearing on treating it as urgent one, on consideration of the grounds set out in accompanying affidavit.
Prayer is made in the interest of justice.
Hyderabad
Dated: 06-6-2009 ADVOCATE FOR APPELLANT
IN THE COURT OF DISTRICT JUDGE HYDERABAD
Guardianship Appeal No. of 2009
Jawed Iqbal s/o Iqbal ---------------------------------- Appellant
versus
Foster Raja & ANOTHER ------------------------------- Respondents
Affidavit
I, Jawed Iqbal s/o Iqbal, adult, Christian, resident of House No.803 Christian colony Unit No.5 Latifabad Hyderabad, do hereby state on oath as under:-
1- That, I am appellant in the above matter, as such am well conversant with the facts of the matter.
2- That, present affidavit & accompanying application have been drafted and filed under my instructions and contents of the same are true and correct.
3- That, my very right as well as rights of minors and welfare are involved in the matter as such matter in hand requires urgent consideration
4- That, I have a good prima facie case, as well as balance of convenience in my favour.
5- That, if the matter in hand is not treated as urgent one I will suffer irreparable loss and injury.
6- That, contents of accompanying application may please be treated as part and parcel of this affidavit for the sake of brevity.
7- Whatever stated above are true and correct to the best of my knowledge and belief.
Hyderabad
Dated: 5-06-2009 ( DEPONENT )
I know the deponent above named
( Advocate )
The deponent above named is identified by Mr.
Advocate, who is personally known to me.
Commissioner for taking affidavit.
The contents of above affidavit have been read over and explained to the deponent above named in his language at Hyderabad on this 6th day of June 2009 which he confirm by putting his signature as true and correct on solemn affirmation before me.
Commissioner for taking affidavit.
IN THE COURT OF SESSION SJUDGE HYDERABAD
Misc. Application No. of 2009
AMMAD SHAIKH
s/o Muhammad Anwar Shaikh
Muslim, adult, Resident of
House No.H-4/A Sharif Square
Latifabad Hyderabad -------------------- APPLICANT/PETITIONER
Versus
General Public ------------------------------------------
PETITION FOR SUCCESSION CERTIFICATE
U/S 372 OF SUCCESSION ACT.
The petitioner above named states as follows:-
1- That, deceased Muhammad Anwar Shaikh s/o Shaikh Abdul Karim died on 06-01-2006 at Hyderabad. (copy of death certificate is attached herewith).
2- That, said deceased at the time of his death left his surviving following persons/heirs as his next-of-kin .
1) Ammad Shaikh s/o Muhammad Anwar Shaikh Son
2) Faryal d/o Muhammad Anwar Shaikh daughter
3- That, deceased has also left following debts/securities in his name in the following financial institutes and defense saving certificates:-
S. No. Name of Bank Amount
1 Soneri Bank 010662 150,000/-
2 Soneri Bank 010661 150,000/-
3 Soneri Bank 010675 200,000/-
4 Sindh Bank TDR 0056740 100,000/-
5 Sindh Bank 0056727 100,000/-
6 Sindh Bank 0056826 100,000/-
7 Bank Al-Habib 0000535231 200,000/-
8 Bank Al-Habib 0000535277 100,000/-
9 Bank Al-Habib 0000534982 200,000/-
10 Bank Al-Habib 0000535015 200,000/-
11 Bank Al-Habib 0000534785 100,000/-
12 Bank Al-Habib 0000534786 200,000/-
13 Bank Al-Habib 000534747 100,000/-
14 Bank Al-Habib 0000534756 100,000/-
15 Bank Al-Habib 000535314 100,000/-
16 Bank Al-Habib 0000535342 200,000/-
17 Soneri Bank 0102-1210182 400616.34
18 Bank Al-Habib 10100074
–005019-01-1 153767.87
19 Bank Al-Habib 1010-0077-005401-01-9 732184.10
20 Silk Bank 012014999601 35479.66
21 Habib Metropolitan Bank 20610-714-111255 81953.38
22 Habib Metropolitan Bank 20620-714-111255 177052.37
23 Habib Metropolitan Bank 20410-714-111255 1000,000.00
4- That, petitioner as son of deceased Muhammad Anwar Shaikh claims to be entitled to her share of the estate/securities/debts of deceased.
5- That, said deceased died intestate and that due diligent search has been made for a will but none has been found.
6- That, no application has been made to any court for, and no grant has been made of, any certificate, probate or letters of administration in respect of the debts, securities or estate of the said deceased and there is no impediment under section 370 or under any other provision of Indian Succession Act, 1925 or of other enactment to the grant of the certificate or the validity thereof, if it were granted.
7- That, the petitioner has truly set forth in schedule of property the debts and securities in respect of which the certificate is applied for.
PRAYER
The petitioner, therefore, prays that a succession certificate may kindly be granted to the petitioner in respect of the debts and securities set forth in schedule of property with power to collect the same from the concerned banks, encash the same and disburse among all the legal heirs of deceased named above as per their share.
Hyderabad
Dated: -06-2009 PETITIONER/APPLICANT
ADVOCATE FOR
PETITIONER/APPLICANT
IN THE COURT OF SESSION SJUDGE HYDERABAD
Misc. Application No. of 2009
AMMAD SHAIKH ------------------------ APPLICANT/PETITIONER
Versus
General Public ------------------------------------------
AFFIDAVIT.
I, Ammad Shaikh s/o Muhammad Anwar Shaikh, Muslim, adult, Resident of House No.H-4/A Sharif Square Latifabad Hyderabad, do hereby state on oath as under:-
1- That, I am petitioner/applicant in the above matter, as such am well conversant with the facts of the matter.
2- That, present affidavit and accompanying succession petition/application have been drafted and filed under my instructions and contents of the same are true and correct.
3- That, I am one of the legal heir of my deceased father namely Muhammad Anwar Shaikh alongwith my sister Faryal who have no objection to the grant of succession certificate in my favour.
4- That, all the legal heirs of deceased Abdul Muhammad Anwar Shaikh have no adverse interest to each other.
5- That, there is no other legal heir of my deceased father, except myself and my above named brother and sisters.
6- That, contents of accompanying petition may please be treated as part and parcel of this affidavit for the sake of brevity.
7- WHATEVER stated above are true and correct to the best of my knowledge and belief.
Hyderabad
Dated: -06-2009 ( DEPONENT )
I know the deponent above named.
( Advocate )
The deponent above named is identified by Mr. , Advocate who is personally known to me.
Commissioner for taking affidavit.
The contents of above affidavit have been read over and explained to the deponent above named in her language at Hyderabad on this , day of June 2009 which she confirms by putting her signature as true and correct on solemn affirmation before me.
Commissioner for taking affidavit.
IN THE COURT OF SESSION SJUDGE HYDERABAD
Misc. Application No. of 2009
AMMAD SHAIKH ------------------------ APPLICANT/PETITIONER
Versus
General Public ------------------------------------------
AFFIDAVIT.
I, Mst. Faryal d/o Muhammad Anwar Shaikh, muslim, adult, Resident of House No.H-4/A Sharif Square Latifabad Hyderabad, do hereby state on oath as under:-
1- That, I am real sister of applicant/legal heir of deceased Muhammad Anwar Shaikh in the above matter, as such am well conversant with the facts of the matter.
2- That, present affidavit and accompanying succession petition/application have been drafted and filed under my instructions and contents of the same are true and correct.
3- That, I, Mst. Faryal are only surviving legal heirs of deceased Muhammad Anwar Shaikh being her real daughters and sons and there is no other legal heir of deceased Begum Rani except us.
5- That, applicant Muhammad Aslam has filed instant application for grant of succession certificate with our will and consent and I and other legal heirs have no objection if succession certificate is granted in his favour.
6- That, applicant has no adverse interest to me as he is my real brother and legal heir of deceased Muhammad Anwar Shaikh.
7- That, if the succession certificate is not granted in favour of applicant, I, applicant and other legal heirs of deceased Muhammad Anwar Shaikh will suffer irreparable loss and injury.
8- WHATEVER stated above are true and correct to the best of my knowledge and belief.
Hyderabad
Dated: -06-2009 ( DEPONENT )
I know the deponent above named.
( Advocate )
The deponent above named is identified by Mr. , Advocate who is personally known to me.
Commissioner for taking affidavit.
The contents of above affidavit have been read over and explained to the deponent above named in her language at Hyderabad on this 12th, day of February 2008 which she confirms by putting her signature as true and correct on solemn affirmation before me.
Commissioner for taking affidavit.
IN THE COURT OF SESSION SJUDGE HYDERABAD
Misc. Application No. of 2009
AMMAD SHAIKH ------------------------ APPLICANT/PETITIONER
Versus
General Public ------------------------------------------
AFFIDAVIT.
I, Shamsuddin s/o Muhammad Punhal, muslim, adult, Resident of House No.10 Junejo Colony new Wahdat Colony Hyderabad, do hereby state on oath as under:-
1- That, I know late Mst. Begum Rani since last ---- about years as such am well conversant with the facts of the matter.
3- That, said deceased Mr. Begum Rani was expired on
16-12-2007 at Hyderabad and at the time of her death she has left behind her following legal heirs.
NAME OF LEGAL HEIRS RELATIONSHIP AGE
1) Ammad Shaikh son -years
2) Mst. Faryal daughter -years
4- That, to the best of my knowledge, I know that there is no other legal heirs of deceased Mst. Begum Rani except the above named persons.
5- That, for the sake of brevity contents of accompanying application may be treated as part and parcel of this affidavit.
6- WHATEVER stated above are true and correct to the best of my knowledge and belief.
Hyderabad
Dated: -06-2009 ( DEPONENT )
I know the deponent above named.
( Advocate )
The deponent above named is identified by Mr. , Advocate who is personally known to me.
Commissioner for taking affidavit.
The contents of above affidavit have been read over and explained to the deponent above named in her language at Hyderabad on this 12th, day of February 2008 which she confirms by putting her signature as true and correct on solemn affirmation before me.
Commissioner for taking affidavit.
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