' KHAWAJA NAVEED AHMED, J.--- The petitioner has filed this petition under section 278 of the Succession Act, 1925, in respect of assets/estate left by her (late) husband Arshad Masood son of Masood Nabi Siddiqui, who was murdered on 10-2-1998 and in this regard F.I.R. No,89 of 1989 was lodged at Ferozabad Police Station, Karachi by his brother Nadeem Akhtar Siddiqui. The deceased Arshad Masood had left behind widow Mst. Zafrain Iqbal (petitioner), his mother Mst. Iqbal Jehan Begum (objector) and his son Umair Masood, who is minor and is now aged about 14 years and is living with the petitioner at Florida, USA. As per Schedule of Property, annexed with the petition, the deceased had left double storey bungalow, constructed on Plot No,42-Q, measuring 1500 square yards, Survey Sheet 35-P/1, Chalta No,18, Survey No,153, Block-6, P.E.C.H.S., Karachi (hereinafter referred to as the "property in question").
2. This Court by order, dated 22-10-2007, issued notice for personal appearance of Mst. Iqbal Jehan Begum, who was finally served and on 2-11-2007 Mirza Waqar Hussain, Advocate, has filed Vakalatnama on behalf of Mst. Iqbal Jehan Begum (mother of deceased Arshad Masood).
3. Today, the matter was fixed for hearing of C.M.A. No,811 of 2007 and hearing of C,M.As. Nos.767 of 2007 and 663 of 2007. Mirza Waqar Hussain, learned counsel appearing on behalf of the objector has waived notice of C.M.A. No,811 of 2007 and has filed counter-affidavit of attorney and son of the objector Sohail Iqbal Siddiqui.
4. I have heard learned counsel for the petitioner as well as the objector and have gone through the material available on record so also the case-law referred by them in support of their contentions.
5. C.M.A. No,663 of 2007 moved on behalf of the petitioner is in respect of exemption from producing copy of "B" Form of the deceased Arshad Masood as the same is not available with the petitioner. This application cannot be granted. However, the Director, National Data-Base and Registration Authority, Karachi Region, is directed to submit the copy of "B" Form of deceased Arshad Masood, whose National Identity Card number at the time of his death was 517-61-051925 and the same may be kept on record of this case.
6. The perusal of case file shows that learned counsel for the petitioner has filed an application under Order XXXII, rule 3, C.P.C. On 10-10-2007 for appointment of guardian ad litem of minor son/legal heir of deceased Arshad Masood, namely Umair Masood. Somehow due to oversight, office has not allotted number of this application. Office is directed to allot number to this application. Notice of this application was already given to Mirza Waqar Hussain, Advocate for the objector, who had filed counter-affidavit to this application sworn by Sohail Iqbal Siddiqui, son and attorney of Mst. Iqbal Jehan Begum, the objector. I have heard arguments of both the learned counsel on this application.
7. On the application under Order XXXII, rule 3, C.P.C: learned counsel for the petitioner Mr. Abdul Aziz A. Munshi has argued that the petitioner is real mother of minor Umair Masood and she is looking up to the child for the last ten years after the death of her husband. The petitioner has no interest adverse to that of the minor. Moreover, the minor himself is now aged about 14 years and student of a school in America. He has argued that the petitioner being the real mother of the minor is a fit person to be appointed as guardian ad litem of the minor for the purpose of proceedings in this case.
8. The son and attorney of the objector stated in his counter-affidavit that Mst. Iqbal Jehan Begum is 70 years old lady. It has been mentioned in the counter-affidavit that Mst. Zafrain Iqbal can never act as next best friend of minor Umair Masood, who is now aged about 14 years and as such she cannot be appointed as guardian ad litem. It has been mentioned in the counter-affidavit that the petitioner is not qualified to act as such, besides she has also having adverse interest to that of minor. It is mentioned in the counter-affidavit that Mst. Zafrain Iqbal, the petitioner, was married to one Sarfraz Mustafa Qarni of Bangladesh origin at Miami, USA, after having obtained licence to marry from Florida in November, 1998. It has further been stated that the petitioner had taken divorce from Sarfraz Mustafa Qarni through the Court on September 25, 2003. It has further been stated that the petitioner has applied for succession certificate after nine years and ten months of the death of her husband and as such the petition is not maintainable.
9. On the issue of appointment of guardian ad litem, I am in agreement with the arguments advanced by learned counsel for the petitioner on application under Order XXXII, rule 3, C.P.C. As the conduct of the mother shows that during last ten years she is looking after minor without any financial assistance from the grandmother or the paternal-uncle. Moreover, she has taken divorce from her second husband and as such is now a single parent for the child. Regarding delay in applying for letter of administration Mr. Abdul Aziz A. Munshi has replied that the son of deceased is minor and he still has many years at his disposal to apply for letter of administration and as such the delay in applying for letter of administration in this case is not material. In the circumstances mentioned above, Mst. Zafrain Iqbal, real mother of the minor, is a fit person to be appointed as guardian ad litem of minor Umair Masood. Application under Order XXXII, rule 3, C.P.C. Moved on behalf of the petitioner, is granted as prayed.
10. C.M.A. No,811 of 2007 has been filed on behalf of the petitioner. Learned counsel for the petitioner Mr. Abdul Aziz A. Munshi has argued that the property in question is on rent with the City School. He states that the said property belongs to deceased Arshad Masood and property of the deceased along with rental income from property need to be preserved for distribution of its shares amongst legal heirs including the petitioner and her minor son Umair Masood. He has further stated that the petitioner and minor son have 14 Annas in a Rupee as their share while the remaining two Annas goes to mother of the deceased Mst. Iqbal Jehan Begum. Learned counsel has prayed that in the circumstances of the case Receiver may be appointed with authority to collect the rent(s) from the Managing Director of City School in respect of property in question. It has been prayed that the Receiver further be directed to take proper accounts from the tenant namely City School for the paid rents through its Managing Director from the date of tenancy i,e, July, 1994 till date. It has further been prayed that Mst. Iqbal Jehan Begum, may be restrained from creating third party interest on the property in question. Learned counsel for the petitioner in support of his arguments has relied on the following case-law:--
(i) Moinuddin Paracha v. Sirajuddin Paracha 1994 CLC 247, (ii) Moinuddin Paracha v. Sirajuddin Paracha 1993 CLC 1606, (iii) Ataur Rehman Alvi v. Inamur Rahman 1974 SCM R 54 and (iv) Ghazala Zakir v. Muhammad Khurshid PLD 1989 Kar.
350.
11. In the case of Moinuddin Paracha reported in 1994 (supra) it has been held that where parties were joint co-owners of the property each one of such co-sharers has share in each millimeter of such property. The learned Single Judge of Sindh High Court in this judgment has relied upon the case reported as Aftab Ahmad Mufti and others v. Mst. Seema alias Zarina 1988 CLC 1567 wherein it was observed as under:-- "It, therefore, follows that under Order XL, rule 1, C.P.C. a Court will appoint a receiver of the disputed property if the Court reaches the conclusion that it is just and convenient to order so and to persuade the Court to reach this conclusion the plaintiff has to make out a prima facie case that he owns the suit property or has a substantial interest therein which requires protection or preservation pending final determination of the rights protection or preservation pending final determination of the rights of the parties in the suit and because of expected waste or peril to such property, the right or interest of the plaintiff cannot be protected or preserved without appointment of receiver. And an application for appointment of receiver under Order XL, rule 1, C.P.C. Is not liable to be dismissed merely for the reason that the defendant is in possession of the suit property -- generally the defendant is in possession."
12. The learned Judge in his judgment has also relied on the case of Ghazala Zakir v. Muhammad Khursheed and 7 others PLD 1989 Kar. 350, relevant portion of which is reproduced hereinbelow:-- "... In a suit for administration of the property of a deceased person or for accounts in the partnership or by shareholders in a private limited company, for its partake elements of partnership, property is normally involved and in such suits requirements of rule 1 of Order XL are more satisfied than not, and, in principle, it is generally, just and proper to appoint receiver, if it appears necessary for the interest of the contestants."
13. In the case of Basant Ram v. Dasondhimal and others AIR 1929 Lah. 497, following observations were made:- "that in all cases where a property is in the hands of one co-sharer and the share of the profits is withheld from the others, there is sufficient reason for appointing a receiver.
14. In the case of Moinuddin Paracha reported in 1994 (ibid) Mr. Justice Muhammad Hussain Adil Khatri, J., (as he then was) has relied upon more than fifteen authorities of Pakistani as well as Indian jurisdiction and has reached on the conclusion that where there are serious disputes between the parties, appointment of a receiver in such circumstances will be just and convenient.
15. Learned counsel for the objector Mirza Waqar Hussain, Advocate has strongly opposed C.M.A.
No,811 of 2007 on the ground that deceased was not the owner of the property in question as the deceased in his life time through declaration of oral gift had gifted the said property to his father Masood Nabi Siddiqui through an oral gift which was attested by a Magistrate on 16-9-1994. No copy of this oral gift has been filed with the objections to the main petition. It is further submitted that deceased died on 16-2-1998. The father had gifted the property to objector, his two daughters and two sons. The gift deed was registered on the basis of declaration of oral gift on 4-4-1998 i,e, two months after the death of the deceased.
16. Mirza Waqar Hussain, Advocate for the objector has drawn my attention towards the case reported as T. Krishnaswa my Chetty v. Thangayelu Chetty and others AIR 1955 Mad.
430. In this judgment, learned Judge of Madras High Court has laid down the following principles for appointment of receiver:-- "The appointment of a receiver is recognized as one of the harshest remedies which the law provides for the enforcement of rights and is allowable only in extreme cases and in circumstances where the interest of the person seeking the appointment of a receiver is exposed to manifest peril.
Therefore, this exceedingly delicate and responsible duty has to be discharged by the Court with the utmost caution and only when the five requirements embodied in the words "just and convenient" in Order XL, R.1, are fulfilled by the facts of the case under consideration.
' These five requirements are:--
(1) The appointment of a receiver pending a suit is a matter resting in the discretion of the Court.
(2) The Court should not appoint a receiver except upon proof by the plaintiff that prima facie he has a very excellent chance of succeeding in the suit.
(3) Not only must the plaintiff show a case of adverse and conflicting claims to property, but, he must show some emergency or danger or loss demanding immediate action and of his own right he must be reasonably clear and free from doubt. The element of danger is an important consideration.
(4) An order appointing a receiver will not be made where it has the effect of depriving a defendant of a "de facto" possession since that might cause irreparable wrong. It would be different where the property is shown to be "in medio", that is to say, in the enjoyment of no one.
And
(5) The Court, on the application made for the appointment of a receiver, looks to the conduct of the party who makes the application and will usually refuse to interfere unless his conduct has been free from blame."
17. In the case of T. Krishnaswa my Chetty (ibid) the learned Judge had referred to fifty authorities of British, English and American jurisdiction. The learned' Judge had observed that the judgment of the superior Courts of England and United States of America are only persuasive precedents. The Judges of India are under no obligation to follow them, but, in many cases they have followed it, though they have not hesitated to differ from them when they conflict with the statutory provisions contained in India Acts and Civil Procedure Code.
18. Mirza Waqar Hussain, Advocate for the objector has further relied upon Pillai and Nair's Law of Receivers, 3rd Edition and has drawn my attention to page 100, which is reproduced hereinbelow:-- "the use of the word appears (in Order XL, rule 1), indicates a lesser degree of probability than would be neessary if proof had been required. But the word "may" cannot be read as "must" and words "just and convenient" cannot be ignored altogether The discretion given by this rule is one that should be used with greatest care and caution. Of course, it is not necessary that a strong case should be made out to justify the appointment of a Receiver in a case of simple mortgage, yet it is necessary that a fair prima facie case is established 'before the order for appointing a Receiver is made."
19. Mirza Waqar Hussain, Advocate for the objector has referred to page 208 of the same book where the appointment of receiver has been discussed. These pages deal with furnishing security by the receiver for appointment of receiver. It is not applicable in the present case.
20. In rebuttal to the arguments of Mirza Waqar Hussain, Advocate, learned counsel for the petitioner Mr. Abdul Aziz A. Munshi, has argued that the declaration of oral gift is a false and fabricated document. The deceased has purchased this property in July, 1994. Had he any intention to give the said property to his father he would have directly purchased it in the name Of his father? Moreover, the signatures appearing on the declaration of oral gift are totally different from that appearing on the power of attorney of deceased Arshad Masood. The power of attorney and declaration of oral gift was shown to this Court as well as to Mirza Waqar Hussain, Advocate for the objector by Mr. Abdul Aziz A. Munshi, Advocate. Learned counsel for the petitioner is directed to file a copy of power of attorney in the matter. The declaration of oral gift of property in question by deceased Arshad Masood in the name of his father Masood Nabi Siddiqui has become strongly doubtful. The deceased has left behind three legal heirs namely Mst. Zafrain Iqbal, the widow/petitioner, Umair Masood, son, now aged about 14 years and Mst. Iqbal Jehan Begum, mother of deceased Arshad Masood, now aged about 70 years old. There is no dispute about their being the legal heirs of deceased Arshad Masood. The only point for determination is whether deceased Arshad Masood had orally gifted the property in question to his father in his life time and authenticity of registration of declaration of oral gift. The signatures of deceased Arshad Masood on the declaration of oral gift dated 16-9-1994 differ from his routine signatures subscribed on power of attorney. It is attested by a Magistrate. The second oral gift dated 4-4-1998 is competent only if first gift is proved valid. If the dispute is as to title only, the Court very reluctantly disturbs possession by receiver, but if the property is exposed to danger and loss and the person in possession has obtained it through fraud or force the Court will interpose by receiver for the security, of the property. The property in question is already on rent, therefore, no harm can be done to any one by taking it and preserving it for the benefit of the legitimate who may prove successful. In the present case, the declaration of oral gift, dated ID 16-9-1994 is highly questionable and the onus to prove it lies on the shoulder of objectors.
21. In the above circumstances, the petitioner has made out a strong prima facie case and this case falls within the ambit of cases mentioned in the case-law produced by the parties as mentioned hereinabove. Now, it is necessary to appoint a Receiver of the property in question in order to protect the property in question and interest of widow and son of (late) Arshad Masood, the original owner of the property in question. I hereby appoint the Deputy Registrar (Judicial) of this Court as Receiver of the property in question and direct him to take charge of property in question and collect its future rent(s) from the tenant City School and take the accounts from the date of commencement of tenancy and rents from Mst. Iqbal Jehan Begum as well as from City School and all other concerned in respect of the property in question and keep all amounts with him till further order. The Receiver shall also take in possession all agreements/ correspondence between the City School and Mst. Iqbal Jehan Begum. The parties to the present proceedings will be entitled to receive copies thereof. C.M.A. No,811 of 2007 stands disposed of.
22. C.M.A. No,767 of 2007 has been filed on behalf of the objector. Learned counsel for the objector has filed this application under section 295 of the Succession Act, 1925, wherein he has stated that the deceased Arshad Masood had already gifted the property in question to his father, who had gifted the same through declaration of oral gift to his wife and children. Since the signatures on the National Identity Card, power of attorney and declaration of oral gift are different, therefore, the genuineness or otherwise of the declaration of oral gift, dated 16-9-1994 requires proper adjudication for which section 295 of the Succession Act, 1925, would be applicable. To start with I reproduce section 283 of the Succession Act, 1925 as follows:-- "283. Powers of District Judge.--- (1) In all cases the District Judge or District Delegate may, if he thinks proper:
(a) examine the petitioner in person, upon oath;
(b) require further evidence of the due execution of the will or right of petitioner to the letters of administration, as the case may be;
(c) issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration.
(2) The citation shall be fixed up in some conspicuous part of the Court-house, and also in the office of the Collector of the District and otherwise published or made known in such manner as the Judge or District Delegate issuing the same may direct.
(3) Where any portion of the assets has been stated by the petitioner to be situate within the jurisdiction of District Judge in another Province, the District Judge issuing the same shall cause a copy of the citation to be sent to such other District Judge, who shall publish the same in the same manner as if it were a citation to be sent to such other District Judge, who shall publish the same in the same manner as if it were a citation issued by himself, and shall certify such publication to the District Judge who issued the citation."
23. Thereafter, section 286 deals with power of the Court not to grant probate or administration.
Section 286 is reproduced as follows in extenso:-- "286. District Delegate when not to grant probate or administration. A District Delegate shall not grant probate or letters of administration in any case in which there is contention as to the grant; or in which it otherwise appears to him that probate or letters of administration ought not to be granted in his Court.
Explanation.--- "Contention" means the appearance of any one in person, or by his recognized agent, or by a pleader duly appointed to act on his behalf, to oppose the proceeding."
24. Section 295 of the Succession Act, 1925, is reproduced hereinbelow:-- "295. Procedure in contentious cases.--- In any case before the District Judge in which there is contention, the proceedings shall be taken, 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."
25. It is mentioned in section 295 of Succession Act, 1925, that proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of Code of Civil Procedure, 1908. This matter is contentious one and there is only one issue in this contentious matter, which is as follOws:-- "Whether the declaration of oral gift dated 16-9-1994 is a forged and fabricated document and what is its validity?"
26. I allow this application (C.M.A. No,767 of 2007) and convert this Succession Miscellaneous Application into Civil Suit, with direction to parties to file further pleadings on behalf of their respective clients within ten days from the date of announcement of this order and led evidence according to law in order to enable the Court to determine the issue for decision of the main application.