Petitioner Mst. Husan Bano and others filed an application under Order 1, rule 10, C.P.C. Read with section 19 of the Sindh Rented Premises Ordinance, 1979 in Rent Case No,664 of 1994 (which is pending in the Court of learned IInd Rent Controller, Karachi Central with a prayer that they being the wife, sons and daughters of Ahmed Dad Khan deceased, be joined as the party in the said ejectment case, as the said deceased was brother of applicant Wali Dad IChan/respondent herein vide order, dated 31st October, 1998, learned Rent Controller dismissed the said application with the observation that the applicant Wali Dad Khan of the said ejectment case filed a copy of an order dated 28th May 1989 passed by this Court in S.M.A. No,84 of 1989, whereby the said applicant of the rent case was-granted Letters of Administration in respect, of the estate left behind by deceased Muhammad Bashi'. Khan son of Haleetn Dad Khan, who expired at Karachi on 29-9-1986, and the father, of the interveners/petitioners herein had recorded his no objection A statement to the grant of Letters of Administration in favour of the applicant Wali Dad Khan of the rent case.
2. The petitioner filed F.R.A. No,834 of 1988 in this Court against the said order which was transferred to learned District Judge, Karachi Central, where new number (F.R.A. No,305 of 2001) was assigned to the said appeal, and wherein they had specifically pleaded that no Letters of Administration have been granted by this Court so far, and further that the petitioners 1 to 10 have agreed to sale out, convey and transfer their shares in the property, (which was in the premises involved in the said rent case) in favour of Mst. Fouzia Salahuddin Zubaidi wife of Salahuddin Zubaidi/tenant in the said premises, for a consideration amount of Rs,6,00,000 (Rupees six lac only) vide agreement dated 2nd December, 1996, and also received sale consideration amount from her and further that the amounts of monthly rent for the said premises also stand received by them, and that the tenant is not bound to pay any further rent amount: learned District Judge vide order dated 18-7- 2002 dismissed the said appeal with his observations to the effect that learned Rent Controller could not consider the application under Order I, rule 10, C.P.C. Under his limited jurisdiction of being a Rent Controller, whereas the dispute in between the parties is of the nature between landlord and tenant in the rent case and not between two landlords (with regard to their right over the property in possession of the tenant) and further that any such question could only be decided by a Civil Court of competent jurisdiction and the tenant can take a plea of being joint owner in the property, which pleas would be appreciated by learned Rent Controller at the time of decision of the relevant issues in the rent case_
3. At page No,55 of this C.P. a copy of order dated 28-5-1989 is placed on record passed by this Court in S.M.A. No,64 of 1989 and operative portion therein recorded by Honourable Chief Justice Ajmal Mian (as his Lordship then was) is to the effect that "I would, therefore grant the above petition subject to the rules" and the application for Letters of Administration stood granted viz. Under section 290 read with section 291 of the Succession Act, 1925.
' Section 291 of the Succession Act reads as under:-- "291 Administration bond.-- (1) Every person to whom any grant of Letters of Administration other than a grant under section 241, is committed shall give a bond to the District Judge with one or more surety or sureties engaging for the due collection granting in, an administering the estate of the deceased, which bond shall be in such form as the Judge may, by general or special order, direct.
(2) When the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person;
(a) the exception made by subsection (1) in respect of a grant under section 241 shall not operate;
(b) the District Judge may demand a like bond from any person to whom probate is granted."
4. Thus, this. Court had passed order dated 28-5-1989 only to the extent that the S.M.A. No,64 of 1989 stood granted, but subject to the rules. Section 291 of the Succession Act directs that the person whom Letters of Administration is granted shall give a bond to the Court with one or more surety or sureties, engaging for the due collection, getting in and administering in the estate of the deceased, which bond shall be in such form as the Court may by general or special order direct, and on furnishing of such bond/bonds, Letters of Administration is to be issued in favour of such a person, form whereof is under Schedule VII of the Succession Act. It is only on issuance of Letters of Administration to Such a person/applicant that he becomes competent/having undertaken to administer the property and credits of a deceased of the particular case, and then to make a full and true inventory of the said property and credits and to expedite the same in the Court within six months from the date of issuance of such Letters of Administration, or within such time, as the Court may direct, from time to time, with further details, as provided in the said Schedule VII of the Succession Act.
5. Thus, by mere passing of order, dated 28-5-1989, the applicant of said S.M.A. No,64 of 1989 cannot be said to have been competently holding/issued Letters of Administration.
6. In a case of Muhammad Javed Akhtar reported as 1987 CLC 262 a learned Judge of this Court recorded following observations at page 222:-- "A careful reading of this section will show that every applicant in whose favour Letters of Administration have been granted, other than a grant under section 241 of the Act, is required to give a bond to the District Judge with one or more surety or sureties for due collection and administration of the estate of the deceased. The bond to be executed by the petitioner is to be in such form as may be prescribed by the Judge. The language of section 291 of the Act leaves no discretion with the Judge, while granting Letters of Administration to a petitioner, to dispense with the execution of the bond or providing surety or sureties as the case may be. The word "shall" used in subsection (1) of section 291 is used in an imperative sense in contradiction to sub-clause (b) of subsection (2) of the same section, where it is discretionary with the Judge to demand a bond from a person to whom a probate has been granted. Mr. A. Lateef, A. Shakoor and Mr. Naseem Ahmed, learned counsel for the petitioners in two cases relied on the cases of Ramchandra Ramratan v. Ramgopal Onkarji and others AIR 1957 Madhya Bharat 31 and Zubeida Khatoon v.
Muhammad Zakaria AIR 1938 Rang. 67 in support of the contention that a Judge, granting Letters of Administration, has discretion to dispense with the surety. Although the head notes of these two cases appear to support the contention of the learned counsel, but a careful reading of the case itself will show that both these cases decided by the Court related to the grant of probates, and not Letters of Administration. I have already reproduced the provisions of section 291 of the Succession Act, which provides for execution of administration bond, and after reading the said section, I am in no doubt that, while in cases of grant of Letters of Administration, the execution of the bond with surety or sureties is a must, as provided under section 291(1) of the Act, the same is discretionary with the Court, while dealing with a case of grant of probate pursuant to a will. Both Mr. A. Lateef A.
Shakoor and Mr. Naseem Ahmed also cited the case in the Goods of Kumar Projondra Narayan Singh Deo AIR 1953 Cal. 606 to contend that the observation in the above case supported their contention that Letters of Administration could be issued only on execution of administration bond.
The case cited by the learned counsel is on the point that, where a bond is directed to be executed by him personally and individually, and not by his attorney. I have carefully read this case, and I do not find any observation, which supports the contention of the learned Advocates that Letters of Administration could be issued by a Court without asking for surety. Mr. Iqbal Kazi, learned counsel in one of the petitions also expressed the view that in cases of Letters of Administration, the Court has no discretion to dispense with the furnishing of surety by a person in whose favour the Court grants Letters of Administration. I am, therefore, of the view that under section 291 of the Succession Act, an applicant in whose favour Letters of Administration have been granted by the Court must execute a bond with one or more sureties, as directed by the Judge as a condition precedent for the issuance of Letters of Administration and that under this section the Court has no power to dispense with the sureties altogether while granting Letters of Administration. However, the case of grant of probate, which is governed by subsection (2) of section 291 is different, but it is not necessary to express any conclusive opinion here at this stage, as, in one of the cases before me the question of probate is involved."
7. Thus, the interveners/petitioners have a right to be joined as party in the said rent case, and this Constitutional petition stands admitted and allowed. Orders of learned two Courts below are set aside and such an application of the petitioners stands allowed for the purpose of just and proper decision of the said rent case (on its own Merits).