This administration suit has been filed by Mst. Ayesha Bai and Muhammad Salim, widow and minor son respectively of deceased Haji Ebrahim A.I Muhammad who died at Karachi on 21-5-1977 leaving behind the two plaintiffs and defendant No. 1, Mst. Shahida, daughter, as his only heirs.
Three other persons, who are not heirs of the deceased, had been made as the other defendants when the suit was filed on 24-5-1977, Defendant No. 2, Mst. Fatma Bai is the sister, and defendants Nos. 3 and 4, Mustafa and Abdul Majeed, are the sons of another sister, of the deceased.
2. According to para. 4 of the plaint the deceased left behind certain properties including the following :-
(i) A running business at shop No. 44, Kazim Raza Cloth Market, M. A. Jinnah Road, Karachi.
(ii) Tenancy rights of a flat in Javed Manzjl, Jamila Street, Ghas Mandi together with furniture, fixtures, household goods, jewelry, and ornaments lying therein.
(iii) Tenancy rights of a godown in Ranchore Lines, Karachi together with stock-in-trade and fittings and fixtures.
3. Para. 5 of the plaint is to the effect that the plaintiff No. 1 was not aware of other properties and assets left behind by the deceased as she was a pardanashin lady and residing separately from the deceased. According to paras. 4(a) and 6 of the plaint, after the death of the deceased, the defendants have taken over control, possession and management of all the properties, and business of the deceased.
4. C. M. A. No. 2073/77, an application under Order I, rule 10(2) read with section 151, C. P. C. Was moved by one Muhammad Yaseen son of Muhammad Usman on 31-5-1977 stating that the shop No. 44 in Kazim Raza Cloth Market, Karachi belonged to him as he had acquired the tenancy rights and obtained possession of the same from a third party in October, 1976 and none of the parties to the suit or the deceased had any right over the same. Prayer made in the said application was that he be made a defendant in the suit. By order dated 13-10-1979 this application was granted by consent but a statement was made on behalf of the plaintiff No. 1 that she did not admit the allegations in C. M. A. 2073/77 and the affidavit of Muhammad Yaseen became defendant No. 5 and the amended plaint was filed by the plaintiff on 25-11-1979.
5. Defendants Nos. 1 to 4 filed separate written statements but a perusal of the 4 written statements show that they are identical. Written statements of defendants 1, 2 and 3 bear their respective thumb-impression all affixed on 6-6-1977, whereas defendant No. 4, Abdul Majid has affixed his signatures on his written statement on 6-6-1977. A significant feature of the written statements of defendants Nos. 1, 2 and 3 is that in each case the verification on solemn affirmation is by Abdul Majid, defendant No. 4 and for this purpose an application under Order I, rule 12, C. P. C. Was filed.
6. The case of the four defendants in the written statements is that deceased Haji Muhammad Ebrahim did not leave behind any property at all and that these defendants had not seen the plaintiff for the last ten or twelve years when they had separated from the deceased and never met him or his relations during his lifetime. The most relevant paragraph of their identical written statements is para. 4 which is reproduced here :- "4. That para. No. 4 of the plaint is totally denied. The deceased Haji Muhammad Ibrahim has not left any property whatsoever behind him at the time of his death to the best of knowledge of the defendant.
(i) The running business mentioned in part (t) of this para, entirely belongs to one Mr. Muhammad Yaseen son of Muhammad Usman, who has filed an application under Order I, rule 10(2), C. P. C. As an intervenor in the suit and has no connection with the late Haji Muhammad Ibrahim.
(ii) That similarly the tenancy rights of flat No. 8 and the articles lying therein as mentioned in part
(if) of this para. Belong to one Muhammad Umar who died about fourteen months back leaving all the things in the sole control and use of defendants Nos. 1 and 2 for whose benefits and maintenance they were acquired and purchased by the said Muhammad Umar, and they have not the least concern with the deceased Haji Muhammad Ibrahim. No doubt Muhammad Ibrahim was the elder brother of Muhammad Umar, but he was always lodging and fooding separately from Muhammad Umar.
(iii) So also the tenancy right of godown mentioned in part (iii) of the paras. Is concerned was vested in Late Mr. Muhammad Umar, and he was using it in storing certain articles there.
(iv) The rest of the contents of para. 4 of the plaint as stated in 4(a) are totally denied as being false and baseless."
7. By order dated 8-3-1980 consent issues proposed by the learned counsel for the parties were adopted by the Court. Another application, C. M. A. 349/80, had been filed by the defendants under Order VII, rule 11, Order XIV, rule 2 read with section 151, C. P. C. Praying for dismissal of the strait on the ground that the plaintiffs had failed, on the face of the plaint, to point out any property which belonged to deceased Haji Muhammad Ibrahim for which an administration decree might be passed by this Court. By consent this application was disposed of by order dated 26-4-1980 when it was ordered that issue No. 5 would be tried as a preliminary issue.
Issue No. 5 is as follows :- "5. Whether the suit is maintainable in its present form as a suit for administration and accounts?"
8. I have heard Mr. A. Sattar Memon, counsel for the plaintiff and Mr. Shamiuddin, counsel appearing for all the five defendants at great length on the preliminary issue. According to Mr. A.
Sattar Memon, counsel for the plaintiffs the present suit for administration and accounts is main-- tainable in view of the contents of paras. 4, 4(a) and 5 of the plaint in which details of properties left by the deceased are given about which the plaintiffs had knowledge and it is also averred that the four defendants have illegally taken possession of the estate of the deceased after his death.
Although it is denied by the defendants that the three properties belonged to the deceased, according to learned counsel for the plaintiffs the question of ownership can be decided in an administration suit.
9. Counsel for the plaintiff first placed reliance on a judgment of a learned Single Judge of this Court in the case of Muhammad Bibi v. Abdul Ghanl PLD 1975 Kar. 979. I may quote here para. 43 of the judgment :- "43. Before I part with this aspect of the matter I must add that it was contended on behalf of the defendants that it is not open to this Court in an administration suit to question the validity of the alienations made by the deceased during his lifetime. Some decisions were cited from foreign jurisdiction in support of this conten--petition. I am, however, of the view that in an administration suit the Court has the jurisdiction to decide whether a particular property belonged to the deceased or not and it would be impossible for the Court to administer the estate without deciding what that estate is. The form of the decree given in Schedule I, Appendix `D' of the Code of Civil Procedure, would also support this view."
10. Counsel for the plaintiff then relied upon the judgment of a Single Judge of the Andhra Pradesh High Court in the case of Suryanarayana Anasuyamma (1). I may reproduce here paras. 3, 4 and 5 of this judgment on the point in issue as these paras. Refer to various other judgments on the point .- "3. Order XX, rule 13, C. P. C. Deals with administration suit. It provides that the Court shall first pass a preliminary decree directing accounts and inquiries. In Appendix 'D', Form No. 17 prescribes the form of the preliminary decree in administration suit. Paragraph 10 of the Form of decree is the relevant paragraph. It provides that an enquiry as to what immovable property the deceased was seized of or entitled to at the time of his death should be held. In Muhammad--ally Adamjl v. Abdul Hussain I L R 48 Born. 331 : AIR 1924 Bom. 313), reference is made to Seton on Decrees, Vol. &I, page 1412 (7th Edition) as to the form of decree in an administration suit. The learned Judge pointed out that among the inquiries contemplated in the course of the administration, the inquiry as to what immovable property the deceased was seized of or entitled to at the time of his death is included.
It is therefore clear to my mind that-- in a suit for administration, the Court has to necessarily ascertain what properties belonged to the deceased at the time of his death. As the 4th defendant claims "title to items 5 and 7(1) of Schedule A and item 3 of Schedule B, the Court is entitled to ascertain whether the 4th defendant was in lawful possession of those properties.
4. The decision of the Privy Council in Benode Behari Bo:e v. Smt. Nistraini Dassi I L R 33 Cal. 180 throws considerable light on the question arising for decision in the instant case. Lord Davey, deliver--ing the judgment of the Privy Council, held that for the due administration of the estate, it was necessary to set aside the leases of land effected by the executor. The relevant observations am as follows :- "The High Court of Calcutta, in its Ordinary Jurisdiction had a right to order administration of the estate, and as ancillary to such an order, to set aside deeds obtained by the fraud of the executor."
Itwas pointed out that the decree based on the award as also the lease deeds were liable to be set aside. This decision was considered by Venkatasubba Rao, J. In Mi. Amir Bai v. Abdul Rahim, AIR 1928 Mad. 769. Following the view of the Bombay High Court in I L R 48 Bom. 331 : AIR 1924 Bom. 313), the learned Judge summed up as follows :- "The learned Judges point out that in an administration suit a complete inquiry "necessarily implies determination of title to immovable property and the Court is bound to decide questions as to ownership of such property-whether situate within or outside jurisdiction as an incident of the administration of the estate."
The decision of the Bombay High Court in Motibhal Shankarbhai v. Nathabhi Naranbhal I L R 45 Bom. 1053 ; AIR 1921 .Bom. 187 is to the same effect. Macleod, C. J. Pointed out at page 1955 (of I L R Bom.) : (at p. 187 of AIR) that there is no reason why the Court should not decide as between the parties to the suit whether those assets belonged to the estate of the deceased or not. It was rightly held that if that was not done, the only result would be that another suit would have to be filed in which the contesting parties would be the same and the issues would be PLD1962SC291 AIR 1-963 Andh. Pra. 298 the same as have already been raised in that suit. The decisions referred to supra were followed by the Nagpur High Court in Goswa mi Rameshpuri v. Madhukar AIR 1953 Nag. 276.
5. A contrary view was taken in Shivaparasad v. Prayagkumarl, Debee AIR 1935 Cal.
39. Ah Kyan Sin v. Yea Ah Gwan AIR 1937 Rang. 497 and Shafi-ul-Nisa v. Fazal-ul-Nisa AIR 1950 E Pb. 276. Those decisions were sought to be distinguished by the Judges of the Nagpur High Court on ground which do not appeal to me. I am inclined to follow the decision of the Privy Council and the decision of the Single Judges of the Madras High Court in preference to the decisions taking a contrary view.
I hold that as an ancillary to the administration of the estate, the Court is entitled to decide whether the family arrange--ment pleaded by the 4th defendant is valid or not."
11. In the case of Muhammad Bib! v. Abdul Ghani, the contention that it was not open to the Court in an administration suit to question the validity of the alienations made by the deceased during his lifetime was rejected and the learned Single Judge took the view that in such a suit the Court has the jurisdiction to decide whether a particular property belonged to the deceased or not. In the judgment reported in AIR 1963 Andh. Pra. 298 the Single Judge of that Court referring to Order XX, rule 13, C. P. C. Took the view that in a suit for administration the Court has to necessarily ascertain what property belonged to the deceased at the time of his death and held that the Court was entitled to decide the validity or otherwise of the family arrangement pleaded by one of the defendants in the case. In his judgment the learned Single Judge relied upon the decision of the Privy Council in the case reported in I L R 33 Cal. 180 where it was held that the Court in an administration suit had the right to set aside deeds obtained by the fraud of the executor.
12. Mr. Shamsuddin, learned counsel for the defendant, however, in support of his contention that the present administration suit was not maintainable advanced the following pleas :-
(a) For an administration suit to be maintainable it is necessary that the deceased must have left some property and it is the duty of the plaintiff to come with some record before the Court that the property was in possession of the deceased at the time of his death and in case such record was not there the administration suit would not be maintainable.
(b) If the property which is claimed by the plaintiff in an administration suit to have been left by the deceased, was in possession of the defendants including heirs of the deceased and the defendants claimed the, property to be their own, no administration suit was competent.
(c) If the defendants, including heirs, were trespassers even then no administration suit would lie.
13. In support of his contention the learned counsel for the defendants relied upon a judgment of the Supreme Court in the case of Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi (1). The learned counsel relied upon the following passage at page No. 294 of the judgment :- "While an administration suit is not a remedy for getting possession from those who claimed the property in their possession and their own right and adversely to the deceased there does not appear to be any valid objection to their dispossession if they claimed only as heirs or under 'a will from the deceased and their claim is negatived'."
Following passage which appears at page 295 of the judgment was also specifically referred to by the learned counsel for the defendants :- "The object of an administration is the distribution of assets between more than one person and if the defendants to a suit be only tres--passers and the plaintiff is the person solely entitled there can be no administration suit by such a plaintiff against such defendants."
14. In the present case the principle enunciated by our Supreme Court at page 295 of the judgment reported in PLD 1962 SC 291 is not applicable because here the dispute is not between the plaintiff and "trespassers" only as plaintiffs are not claiming to be the only heirs of the deceased. In the instant case, according to the plaint, defendant No. 1 as a daughter, is entitled to her share and it is an admitted position that she is the daughter and heir of the deceased.
15. As regard the other passage at page 294 of the Supreme Court judgment on which reliance has been placed by learned counsel for the defendants, it may be observed that the plaintiffs in this case are not claiming possession .From the defendants Nos. 2 to 5 only. According to the plaint the three properties were left by the deceased in which the two plaintiffs acrd defen--dant No. I as the only heir have their respective shares, and after the death of the deceased, defendant No. 1, the daughter of the deceased, in collaboration with other defendants, has taken over possession of the same.
16. Reliance was also placed by the learned counsel for the defendants on the judgments of a learned single Judge of the Lahore High Court in the case of Muhammad Sarwar v. Abdul Latif(1) where it was held that a suit in which the claim of the defendant was based upon a gift and not on will, and the plaintiff's case was that the gift was invalid, did not come with--in the compass of Order XX, rule 13, C. P. C. And accordingly such an administration suit was not maintainable. The facts of that case arc dis--tinguishable and the ratio decidendi of the judgment in the Lahore case is not applicable to the facts of the case.
17. The learned counsel further relied upon a judgment of a learned Single Judge of this Court in the case of Hussain v. Mansoor All (2). The points involved in that judgment are not at all relevant to the facts of this case. In that judgment it was decided that as the claims of a creditor or a legatee can be investigated and determined subsequent to the preliminary decree, they are not necessary parties to an administration suit.
18. In the present case as regards property No. (ii) mentioned in para. 2 hereinabove, the defence of all the five defendants including defendant No. 1, in their written statements is that the tenancy rights of the said property and the articles lying therein vested in one Muhammad Umar deceased who died 14 months earlier leaving al! This in the sole control and use of defendants Nos. 1 and 2 for whose benefit and maintenance the same were acquired by Muhammad Umar. As regards property No. (iii) mentioned in para. 2 hereinabove, the defence of all the defendants is that the tenancy rights of the godown vested in Muhammad Umar and he was using it for storing certain articles there. It is also admitted in the written statements that Muhammad Umar was the real brother of deceased Haji Muhammad Ibrahim. The plea is not taken in the written statement that Muhammad Umar left behind any other heirs and, therefore, deceased Haji Muhammad Ibrahim as a brother, in the absence of any wife and children of surviving Muhammad Umar, could have acquired the tenancy rights or at least a share in both the properties mentioned at serial Nos. (ii) and (iii) in para. 2 hereinabove. In the present administration suit it can be decided whether the deceased had any tenancy rights and/or was the owners of articles in such premises. The defendant 't have not taken any clear position as to how they or any one of them acquired the properties left by Muhammad Umar.
(1) PLD 1978 Lah. 391(2) PLD 1977 Kar. 8
19. As regard property at serial No. (i) in para. 2 hereinabove also the common stand of all the five defendants including defendant No. 1, daughter of the deceased, is that the same did not belong to the deceased but it is not their case that the property belonged to Muhammad Umar from whom defendant No. 5 acquired the same. It is their case that defendant No. 5 is the owner in his own right. The plaintiffs have not shown whether this property being shop No. 44, Kazim Raza Cloth Market, M. A. Jinnah Road Karachi and the running business carried therein at any time vested in the deceased. Defendant No, 5 on the other hand has filed documents to she B that prima facie he was the owner of this running business and the deceased had no share in the said property.
Defendant No. 5, is neither the heir of the deceased nor does he claim to have acquired the same property through! Will or otherwise from the deceased or through Muhammad Umar.
20. If in the plaint the only property shown to have been left by the deceased had been property mentioned at serial No. (i) in para. 2 hereinabove, the present suit would not have come within the compass of Order XX, rule 13, C. P. C. However, as I have already held that on account of the pleadings in this suit in relation to the other two parties this suit as an administration suit is maintainable, the issue whether property No. (i) in para. 2 bereinabove belonged to the deceased at the time of his death can also be decided in the present administration suit. I am of this view on account of two reasons. Firstly defendant No. 5 himself applied to become a defendant in this suit and on his own application the Court joined him as defendant No. 5. Secondly, all the parties who are interested in this property are before the Court and if at this stage it is decided that the question of ownership of this property ought not to be decided in these proceedings, the parties i. e. The plaintiff and defendant No. 5, will get involved in another litigation. In vie of the special circumstances and facts of this case and additionally to avoid multiplicity of proceedings, this question can also be decided in this suit. I may observe here that facts differ from case to case and the decision whether an administration suit is maintainable or not largely depends on the pleadings in a particular case.
21. I may now refer to the three contentions raised by the learned counsel for the defendants and enumerated in para. 12 above. As regards contention (a) I have already observed that the pleadings show the link between the two properties and the deceased and the question of the rights of the deceased in these two properties can be properly determined in the present administration suit. As regards contention (b) referred to para. 12 above, it is to be noted that according to the plaint the deceased was in possession of the properties at the time of his death and defendants took over possession illegally thereafter.- I have already referred to the link between the deceased and the two properties mentioned at serial Nos. (ii) and (N) in the plaint and in para. 2 above. In the face of these pleadings I do not accept the contention that because the defendant claim to be in possession of the properties alleged to have been left by the deceased the present admi--nistration suit is not maintainable. The last contention at serial No. (c) in para. 12 is also not relevant as in the present case the avdrmant in the plaint is that the deceased was in possession and the defendant took over possession illegally after the death of deceased Ibrahim A.I Muhammad.
22. As a result, I decide the preliminary issue in the affirmative and E hold that the present suit is maintainable in its present form.
23. Mr. Shamsuddin, learned counsel for defendants made a grievance that on account of delay in the disposal of this suit serious prejudice is being caused to his clients. The suit will be fixed for regular hearing in January, 1981.