1. ' SYED SAEED-UD-DIN NASIR, J.---By this common order I intend to dispose of all the listed applications filed on behalf of the plaintiff.
2. This is an application (CMA No,9585 of 2009) under Order XXXIX Rules 1 and 2 read with Section 151, C.P.C. Through which the plaintiff seeks interim injunction restraining the defendants, their agents, servants, employees, and or anybody else claiming or acting through or under them, from transferring, alienating, mortgaging, disposing of and/or dealing with the immovable and movable properties or the accounts, as shown in Schedules A, B, and C and/or to create third party interest therein in any manner whatsoever till decision of the suit.
2. ' It is the case of plaintiff that the plaintiff's father, namely, Muhammad Wali Imam died at Karachi on 13-12-1998 leaving behind the (1) plaintiff (daughter), (2) defendant No,1 (widow), (3) defendant No,2 (son) and (4) defendant No,3 (daughter).
3. ' Learned counsel for the plaintiff contends that late father of the plaintiff left behind considerable movable and immovable properties either in his own name or as Benami in the name of his widow, the defendant No,1, his son, the defendant No,2, defendant No,4 being son-in-law and husband of defendant No,3, defendant No,5 being brother of defendant No,1 and one Malick Mazhar Imam and S.I.A Jafry Imam. Thereafter, the plaintiff has more elaborately described the movable and immovable properties left behind by the deceased in Schedules 'A', B' and 'C' to this application so also to the main plaint.
4. ' Learned counsel for the plaintiff further contends that out of the immovable properties mentioned in Schedule 'A', one plot measuring 2000 Sq. Yds. Bearing No,128, Khayaban-e-Hafiz, Phase-V, DHA, Karachi, has been sold surreptitiously by defendant No,1 under the influence and at the behest of defendants Nos.2, 3 and 4, defendants Nos.1 to 4 have retained with then all the sale proceeds being minimum Rs,100,000,000 of the said plot. Out of the sale proceeds of the said plot, a partly amount has been deposited in Account No,0004-0176494-0041 with NIB Bank, Main Branch, I.I.
5. Chundrigar Road, Karachi, which is liable to be attached and the balance amount has been hidden by defendants Nos.1 to 4.
6. ' Learned counsel for the plaintiff also contends that defendant No,6, the company, was incorporated by the deceased and he had taken his brother late Afzal Imam, as a shareholder in the same for the purposes of Company Laq. The nominal share capital of the company was Rs,5,00,000 divided in 5000 shares, each share being of face value of Rs,100 . The deceased transferred Benami 500 shares in the said company to his brother Afzal Imam, who subsequently transferred the same to the deceased.
7. ' Learned counsel for the plaintiff submits that in the year 1984, the issue and paid-up capital of the company, defendant No,6, became 5000 shares inasmuch as 4000 bonus shares were issued.
8. Although, the bonus shares ought to have gone to the existing members, however, the deceased retained 1500 shares with himself and distributed as Benami the remaining 2500 shares to his wife, Mazhar Imam and defendant No,6 and one S.I.A. Jaffery as Benami transaction.
9. ' Learned counsel for the plaintiff further submits that by 31-12-1985, the nominal share capital of defendant No,6 had been increased to Rs,5,000,000 divided into 50000 ordinary shares, each share being of Rs,100 ' Learned counsel also submits that Form 'A' as of 31-12-1986 shows that the shares of late Muhammad Wali Imam became 2400 and he transferred 100 shares to defendant No,2 as Benami.
10. Form 'A' as on 31-12-1990 shows that the paid-up capital of the company was increased by 10000 shares which were issued as bonus shares. On account of this, late Muhammad Wali Imam took the shares 7200, defendant No,1 3750 shares, Malik Mazhar Imam 1500 shares, defendant No,5 1500 shares and defendant No,2 1050 shares.
11. ' Learned counsel for the plaintiff states that while the issued and paid-up capital of the company as on 31-12-1997 was 50000 but Form 'A' of the said date shows that the defendant No,4 was transferred 1500 shares although before that the issued and paid-up capital was Rs,5,000,000 (50000 shares). After the death of the deceased, the shareholding of the defendant No,1 came to 9000 shares, as she was transferred extra 5250 shares and that of defendant No,2 increased by.
12. 450 shares.
13. ' Learned counsel for the plaintiff further states that in the year 2005, Malik Mazhar Imam transferred his 1500 shares to defendant No,1 and her holding came to 10500 shares.
14. ' Learned counsel for the plaintiff also states that the plaintiff has been kept out of the affairs of defendant No,6 malafidely and fraudulently by defendants Nos.1, 2, 4 and 5. The defendants Nos.1, 2 and 4 are illegally managing all the affairs of defendant No,6 and have not rendered any accounts of its business right from the date of death of the deceased Muhammad Wali Imam. Intentionally, the shares which had belonged to the deceased as well as Benami in the name of defendants Nos.1 to 5 and Mazhar Imam have not been distributed amongst the heirs and no share has been transferred to the plaintiff which has deprived the plaintiff of all the fruits of the said company. To the knowledge of plaintiff, the said company owns valuable properties like Mercedes Car bearing Registration No,AET-400 etc. The Bank account of defendant No,6 is also operated solely by defendants Nos.1, 2, 4 and 5 singly or jointly.
15. ' Learned counsel for the plaintiff states that the properties of the deceased are liable to be administrated and I am entitled to my share in all these properties as well as in the profits of the company, the defendant No,6. The defendant No,4 right from the beginning, immediately after the death of the deceased, is siphoning out the entire money from the company which has lucrative business as the defendants Nos.3 and 4 are planning to migrate permanently to U.K. Or elsewhere outside Pakistan.
16. ' At the end of his arguments the learned counsel for the plaintiff has submitted that the plaintiff has made out a prima facie case for the grant of injunction, the balance of convenience is also in favour of the plaintiff and the plaintiff is likely to suffer irreparable loss if the instant application is not granted.
17. ' Controverting the arguments submitted by learned counsel for the plaintiff, Mr. Khurrum Rasheed, learned counsel for defendant No,2, has, inter alia, submitted that the properties listed at Serial Nos.1 to 4 of Schedule 'A' mentioned in the affidavit and at Serial No,6 of Schedule 'B' mentioned in the affidavit are owned, both legally and beneficially, by defendant No,2 and were never acquired under a Benami transaction, and the plaintiff accusation/allegation let merit has no basis whatsoever has been shown for such a claim.
18. ' Learned counsel further submitted that the properties mentioned at Serial Nos.1 to 4 in Schedule 'A' of the affidavit, one of the four properties was acquired in 1974, while the remaining three were bought during the period spanning from 1987 to 1989.
19. ' Learned counsel for defendant No,2 also refers to the Agreement to Sell dated 1-12-1987 entered into between one Muhammad Aslam Qureshi and defendant No,2. According to learned counsel for defendant No,2 the sale consideration of Rs,400,000 was paid by defendant No,2 through Pay Order No, 110642 dated 1-12-1987. Thereafter, the second document referred to by learned counsel for defendant No,2 is an Agreement to Sell dated 17-3-1988 listed at Serial No,2 in Schedule 'A' of the affidavit, about which he states that the same was acquired from an acquaintance, namely, S. Rahat Sultana for a total sale consideration of Rs,195,000 which was paid by defendant No,2 vide Pay Order No,617522 dated 17th March,1988. The third documents listed at Serial No,3 in Schedule 'A' of the affidavit for which the defendant No,2 states that the same was acquired from an acquaintance, namely, S. Rahat Sultana under an Agreement to Sell dated 4-1-1989 for a total sale consideration of Rs,100,000, which was paid by defendant No,2 vide Pay Order No,949183 dated 2- 2-1989.
20. ' Learned counsel for defendant No,2 contended that the property listed at Serial No,4 in Schedule 'A' of the affidavit was allotted to the defendant No,2 by the Ahsanabad Cooperative Housing Society Limited under an Allotment Order dated 17-7-1974 and the purchase price of this plot was Rs,11,00 which was paid by defendant No,2 in instalments on 13-6-1973 and 4-6-1975.
21. ' The learned counsel next contends that all the aforesaid properties were acquired by defendant No,2 using his personal savings, accumulated by him out of the income that he generated as a Director and shareholder of Maritime Agencies (Pvt.) Limited, Tri-Continent Shipping Agencies (Pvt.)
22. Limited, Gem Industries Limited and gum International Limited, which is duly reflected in the relevant Forms 'A' and Forms '29' filed with the Securities and Exchange Commission of Pakistan along with the Income Tax Returns for the relevant years, as well as from the income of other sources include the funds received from various family members over a period of years that had been saved by, defendant No,2 for the purpose of acquiring land. As far as 1050 shares in Maritime Agencies (Pvt.) Limited are concerned the same was never stood in the name of deceased father of defendant No,2 and the said deceased was not owner of the said shares at the time of his death.
23. The shares were transferred into the name of defendant No,2 during the lifetime of the deceased.
24. The plaintiff has now after almost elevert (11) years is claiming a right in the shareholding of defendant No,6 Maritime Agencies (Pvt.) Limited standing in the name of defendant No,2 whereas she is fully aware of the validity of the title of these shares. Learned counsel further submits that the plaintiff has not adduced any evidence in support of her claim that the said shares were transferred by way of Benami transaction in the name of defendant No,2.
25. ' At the end of his arguments learned counsel for defendant No,2 has stated that the plaintiff has failed to show any prima facie case for grant of injunction in her favour nor does the balance of convenience is in favour of the plaintiff nor any irreparable loss is likely to be caused to the plaintiff if the injunction is not granted.
26. ' Mr. Arshad M. Tayebaly, learned counsel for defendants Nos.1, 3, 4 and 6, has, inter alia, controverting the arguments extended by learned counsel for the plaintiff submitted that the plaintiff has not even pleaded the circumstances in which she claims the properties to be Benami and such claim is completely frivolous and has been filed with mala fide intention to make a claim on the properties owned by other individuals which claim is completely false and bogus.
27. ' He further contends that the property mentioned at Serial No,5 in Schedule 'A' being Plot No,58, Sector 5-A, Aligarh Muslim Housing Society, Karachi, was initially allotted in favour of late Muhammad Wali Imam, the deceased and on his death on 13-12-1998 the said property stood vested in favour of the legal heirs being the plaintiff, defendants Nos.1, 2 and 3 and the plaintiff and defendants Nos.2 and 3 all relinquished their shares in the said property in favour of their mother that is defendant No, 1.
28. ' He also submits that the plaintiff having relinquished her share in the said property cannot claim any share in the same. As far as the property mentioned at Serial No,6 in Schedule 'A' being Plot No,40-Z/ 1, Block 6, PECHS, Karachi, is concerned the same has been owned by defendant No,1 since the year 1966 and is the house in which the defendant No,1 along with the plaintiff and defendants Nos.2 and 3 being her children have been lived and grownup, therefore, the plaintiff has wrongly chosen to claim this property to be a Benami property after a period of more than 40 years despite the fact that the plaintiff all along knew that the said property belonged to the defendant No,1 right from the beginning. The said property was mortgaged with the House Building Finance Corporation and was redeemed by defendant No,1 in the year 1978.
29. ' Learned counsel states that the property mentioned at Serial No,7 in Schedule 'A' being Plot No,128, Khayabane-Hafiz, Phase-VIII, Defence Housing Authority, Karachi, was acquired by defendant No,1 in the year 1980 and since then the said property remained in the name of defendant No,
1. This DHA property has been sold by defendant No,1 and the same has now been transferred in the name of one Mr. Danish Ali vide transfer order dated 26-6-2009.
30. ' With regard to the property mentioned in Schedule 'B' being the shares of Maritime Agencies (Pvt.)
31. Limited, learned counsel for defendants Nos.1, 3 and 4 submits that the same belonged to the company and the majority of such sharps are owned by defendant No,4 and the company has throughout been managed by defendant No,4 who is presently the majority shareholder therein and at present not a single share is held in the name of deceased Muhammad Wali Imam. He further contends that that the transfer of the shares of deceased was made on 31-12-1998.
32. ' At the end of his arguments learned counsel for defendants Nos.1, 3, 4 submits that the plaintiff is not entitled to the grant of injunction inasmuch as the plaintiff has not been able to show a prima facie case, balance of convenience in her favour and no irreparable loss is likely to be caused to the plaintiff, if injunction is not granted, and request for dismissal of the instant application.
33. ' I have heard the learned counsel for the parties and perused the record and material available on the record of this case.
34. Since this is a suit for administration of the properties of the deceased in which several allegations and counter allegations have been made by the parties, and a specific plea of Benami has been raised by the plaintiff, I am of the considered view that controversy with regard to the fact that as to which properties belong to the plaintiff and which do not, and in which property the plaintiff and defendants are entitled to get their shares in accordance with Sharia can only be decided upon leading evidence by all the parties to the suit. Therefore, I allow the instant application (C.M.A.
35. No,9585 of 2009) as prayed and restrain the defendants from selling, alienating, disposing of and creating third party interest in the movable and immovable properties including the shares in the company allegedly left behind by the deceased, during the pendency of this suit till its final decision.
1. This is an application (C.M.A. No, 14824 of 2009) under Order XX, Rule 13 of the Code of Civil Procedure, 1908, through which the plaintiff has prayed for passing of a preliminary decree in Form 17 of Appendix 'D' to the First Schedule of the Code of Civil Procedure. While arguing this application the learned counsel for the plaintiff, inter alia, has pressed the same grounds for passing of a.
36. Preliminary decree in terms of Order XX, Rule 13, C.P.C. As in the memo of plaint and while arguing the aforesaid injunction application.
37. ' While controverting the arguments extended by learned counsel for the plaintiff the learned counsel for defendant No,2, and defendants Nos.1, 3, 4 and 6 have more or less extended the same arguments as they did while arguing the aforesaid injunction application, but have gone one step further by relying on the case of Muhammad Zahid v. Mst. Ghazala Zakir and others (PLD 2011 Karachi 83) on the ground that since the properties did not belong to the deceased at the time of his death, therefore, the same properties cannot form subject matter of a suit for administration in the light of the aforesaid judgment. The learned counsel for defendants Nos.1 to 5 have argued that since the properties shown in the schedules annexed to the plaint never stood in the name of the deceased, therefore, the same cannot form part of the administration suit and a preliminary decree cannot be passed in respect thereof. The learned counsel, while placing reliance on the aforesaid case-law contended that the learned Division Bench of this Court as laid down the parameters of an administration suit and held that when the question is whether a property forms part of the estate of a deceased, and a determination of this question involves a person who is a stranger to the estate, then the -question should be determined by means of a separate proceedings and not in an administration suit.
38. ' Learned counsel for the plaintiff in rebuttal has relied upon the cases of Mohammed Bibi and others v. Abdul Ghani and others (PLD 1975 Kar. 979) and Mst. Sherbanoo v. Sadruddin and another (1984 MLD 803) and has also contradicted that the arguments of the counsel for the defendants placing reliance on the case of Muhammad Zahid v. Mst. Ghazala Zakir and others (PLD 2011 Karachi 83) lends any support to them on the ground that the defendants have only cited the analysis (a) on the basis- of test formulated in para 11 of the said judgment. The learned counsel for plaintiff further contents that the learned Division Bench of this Court in the case reported as PLD 2011 Karachi 83 Supra has formulated the propositions for the properties which can be included in a suit for administration and those properties which cannot be included in such a suit.
39. ' Learned counsel for the plaintiff also contends that the defendants have relied upon one part of such analysis as aforesaid whereas analysis (b) to (d) are in favour of inclusion of all the properties which were purchased from the funds of the deceased, regardless of whether these stand in the name of deceased at the time of his death or not. For the sake of convenience the aforesaid points formulated in the said judgment are reproduced hereinbelow:-- "(a) when the question is whether a property forms part of the estate of a deceased, and a determination of this question involves a person who is a stranger to the estate, then the question should be determine by means of separate proceedings;
(b) proposition (a) is subject to the qualification that if the question is also whether the stranger is a sharer in the estate, then the matter comes within the scope of the administration suit;
(c) when the determination of the aforesaid question involves a person who is a sharer in the estate, then the question conies within the scope of the administration suit, and this is so regardless of whether the sharer claims through or under the deceased (e.g., by way of a gift or sale from the latter) or in his own right;
(d) it is immaterial whether or not the property in question stood in the name of the deceased at the time of his death, and it is likewise immaterial whether any alienation was by way of a registered instrument or otherwise."
40. ' The learned counsel for plaintiff has also referred to para 19 of the aforesaid judgment wherein it is stated as under:-- "19 .Furthermore, subject to what has been said in this judgment, the observations made in Ghulam Jilani and others v. Abdul Kadir and others 1996 (1847 (as reproduced above in para.4) and in Muhammad Bibi and others v. Abdul Ghani and others PLD 1975 Kar. 979 (as reproduced above in - para. 14) are approved."
41. ' The aforesaid case reported in PLD 1975 Kar. 978 relied upon by the learned counsel for the plaintiff wherein it has been held as under:-- "45 ........Where there are other circumstances showing that the purchase intended the property to belong to the person in whose favour the conveyance was taken, the essence of benami being the intention of the purchaser, the Court must give effect to such an intention. The law has been well summed up by Mr. K. A. A. Qamaruddin in his book "Law of Benami Transactions in India and Pakistan" at pages 86 and 87 as follows: "It would, therefore, seem clear upon the authorities cited so far that there is no conclusive presumption, either in favour of or against, benami transfers.
42. ' Whatever presumption may arise from a transaction which is benami, such presumption is rebuttable. The long line of decision of different High Courts in British India and the Privy Council firmly established the rules that in a benami transfer or purchase the source of purchase money for acquisition of the property must come from some one other than the ostensible transferee or the purchaser; that there will always be an initial and primary presumption in behami that the property belongs to the real purchaser. But it is also a well-settled and established rule of law, that notwithstanding that the doctrine of advancement does not apply in India and Pakistan, the presumption of resulting trusts in benami transfers is always liable to be rebutted upon evidence that the purchaser, grantor or donor intended to benefit the person in whose name the property was acquired and the conveyance of the legal estate was taken. And, it seems necessary to point out here that this doctrine of Indo-Pakistani law of 'Intention to Benefit' has not only been established by judicial decision but the very essence of it is contemplated and embodied in section 82 of the Trusts Act, 1882, which deals, as we have seen earlier, with the application of the principles of resulting trusts- in benami purchases. For section 82 of the said Act provides: 'Where property is transferred to one person for a consideration paid or provided by another and it appears that such other person did not intend to pay or provide such-consideration for the benefit of the transferee, transferee must hold the property for the benefit of the person paying or providing the consideration,' ' and the above clause put in italic type abdundantly makes it clear that a resulting trust in benami will only arise if the person paying or providing the purchase money pays or provides without any intention to benefit the transferee. It will be seen that section 82, Trusts Act, was so interpreted in Chittaluri v. Sittapati Rao AIR 1938 Mad. 8 where their Lordships of the Madras High Court held that:- 'It is true that in Indian law, the English rule as to the presumption of advancement has not been adopted, but section 82, Trusts Act, recognizes that money may have been contributed by another towards a purchase with the intention of giving a beneficial interest to the person in whose name the purchase is made.""
43. The next case relied upon by the learned counsel for the plaintiff is 1984 MLD 803 wherein it has been held as under:-- "43 . . . . . 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."
44. ' The learned counsel for the plaintiff also referred to the case of Mehdi Hussain Shah v. Shadoo Bibi PLD 1962 SC 291 in support of his contention. No doubt the above-quoted passage from Muhammad Bibi's case did support the contention of learned counsel for the plaintiff to some extent but in view of the law laid down in Mehdi Hussain Shah's case in my humble opinion a property which is adversely claimed to the deceased by one of the heirs cannot be included in a suit for administration unless it is shown that it stood in the name of deceased at the time of death or it is held as the property of the deceased in some appropriate proceedings."
45. ' It is an admitted position that defendant No,2 was a Director in Maritime Agencies (Pvt.) Limited, which was a company formed by his father, in which other legal-heirs and their spouses have been directors and shareholders from time to time. The defendant No,2 was drawing salary as a Director from the said company and did not have any independent means of earning. The defendant No,2 could also not prove by leading any prima facie evidence to the effect that he had independent means of earning, which were sufficient to purchase the properties mentioned in the Schedules 'A', B' and 'C' mentioned in the plaint and which are alleged by the plaintiff to have been purchased by the deceased with his funds in the name of defendant No,2. The deceased died on 13-12-1998.
46. In view of above, I am of the considered opinion that all the properties mentioned in Schedules 'A', 'B' and 'C' to the plaint can be included in the suit for administration if there is allegation against such properties that the same are Benami and were purchased by the deceased with his own funds. However, the defendants will be at liberty to lead evidence to contradict the allegation of Benami alleged by the plaintiff against them at the time of recording of evidence before the Commissioner/Administrator, being appointed by the Court under the preliminary decree and shall also be at liberty to adduce as much evidence as they want in order to rebut the said allegation.
47. ' In view of the submissions made by the learned counsel for the plaintiff in the aforesaid application as well as submissions made by the learned counsel for the parties in Court today and after appreciation of case-law cited as above it is ordered as under:-
(i) The Nazir of this Court is hereby appointed as Administrator to administer the estate of deceased Muhammad Wall Imam.
(ii) The defendants Nos.1 to 5 by themselves, their agents and servants are hereby ordered to put the said Administrator in constructive possession of the said estate left behind by the deceased and to render to the Administrator true and correct/ full accounts of the deceased's estate which shall include movable and immovable properties left behind by the deceased. The parties are further directed to disclose any other movable and immovable properties of the deceased which are within their knowledge.
(iii) The said Administrator shall take action to determine the extent and value of the movable and immovable properties which the said deceased was seized of, or entitled to, at the time of his death.
(iv) The said Administrator shall determine what shares, if any, the plaintiff and the defendants Nos.2 and 3 are entitled to in the estate of deceased.
(v) The said Administrator shall also be Receiver in the suit and receive and get all outstanding debts and outstanding movable property of the deceased and pay the same to this Court.
(vi) The said Administrator shall perform all such functions and duties as are performable by the Receiver or nominee of this Court under the preliminary decree according to Form 17 of Appendix 'D' to the First Schedule of the Code of Civil Procedure.
48. (vii)The plaintiff is directed to deposit, in this Court, a sum of Rs,2,50,000 towards the preliminary expenses of the administration of the estate of the deceased within two weeks, which amount shall be shared equally by the sharers of the estate of deceased and shall be refunded to the plaintiff.
5. The Administrator/Commissioner appointed by the Court shall also record evidence of the parties to both the suits on the following issues after affording them complete opportunity to file list of documents and witnesses, these issues shall be treated as consolidated issues:--
(1) Which are the properties left behind by the deceased in their personal names and in the names of the legal-heirs, which were purchased by the deceased by his own funds but stands in the names of legal-heirs as ostensible owner! Benamidars?
(2) What is the extent to which the plaintiff and the defendants are entitled to get their shares in the properties of both the deceased?
(3) Whether the properties mentioned in Schedules 'A', 'B' and 'C' to the plaint form part of the estate of the deceased?
49. ' The Commissioner/Administrator appointed by the Court through preliminary decree shall submit his report within four months from the date of passing of this order.
50. 3&4. In view of the order passed as aforesaid for preliminary decree Mr. Mansoor-ul-Arfin, learned counsel for the plaintiff, submits that the purpose of making C.M.As. Nos.9586/2009 and 9587/2009 is served and does not press the same, which are accordingly dismissed as not pressed.
51. ' Since defendant No,1 in Suit No,1492 of 2009 is the mother of plaintiff and defendants Nos.2 and 3 who during the pendency of instant suit has died and Suit No,1259 of 2011 has been filed by the same plaintiff for administration of the property of the deceased mother the preliminary decree passed above shall also be treated as the preliminary decree in Suit No,1259 of 2011. Both the suits shall be considered as consolidated suits and issues framed by the Court today as consolidated issues. The office is directed to draw preliminary decree in the above terms.