SYED SAEEDUDDIN NASIR, J.---These High Court Appeals are directed against a common judgment dated 10.09.2014 and decree dated 16.09.2014 passed by the learned Single Judge of this Court in consolidated Suits Nos. 92 of 2010 and 1445 of 2008, which were Suits for Administration of the properties of the deceased, Declaration, Permanent Injunction, Partition, Cancellation, Rendition of Accounts and Mesne Profit, etc. whereby both the aforesaid suits have been disposed of in the manner that Suit No,1445 of 2008 has been dismissed, whereas the learned Single Judge passed a preliminary decree for administration of the estate of the deceased Z.A. Khan in Suit No, 92 of 2010, and appointed the Official Assignee of this Court as Administrator Receiver.
2.Since we have heard both the learned counsel for the parties at length, therefore, we convert the instant appeals at the Katcha Peshi stage to regular hearing and propose to dispose of both the appeals by this common judgment.
3.Brief facts of the case as narrated in both the memos of appeals are that the legal heirs of late Z.A. Khan, who died at Karachi in the month of September, 1974 leaving behind two widows, three sons, four daughters as his sole surviving legal heirs, filed two similar suits being Suit No,1445 of 2008 and Suit No,92 of 2010 for declaration, administration, cancellation, permanent injunction, rendition of accounts and mesne profits in respect of the immovable properties of the deceased and impleaded each other as defendants who are common in both suits. The appellants in High Court Appeal No,258 of 2014, and respondents Nos.1 to 6 are the legal heirs of deceased Z.A. Khan who married two wives namely; Mst: Mirzago Begum, the respondent No,1 who was first wife of the deceased and Mst: Shamshad Begum, who is the appellant No,3, who was the second wife of the deceased.
4.From the first wife (Mst: Mirzago Begum), the deceased had four children namely; (i) Taj Nabi (son), (ii) Saifullah (son), (iii) Mst: Zeba Yasmeen (daughter) and (iv) Mst: Fatima (daughter) the respondents Nos.1 to 5 in HCA No,258 of 2014, and appellants Nos.1 to 4 in the connected Appeal No,254 of 2014.
5. From the second wife (Mst: Shamshad Begum) the deceased had three children, namely (i)
Faizullah Khan (son), (ii) Mst: Yasmeen Khan (daughter) and (iii) Mst: Afshan, who are the respondents Nos.1 to 4 HCA No,254 of 2014.
6. Respondent No,10 in HCA No,258 of 2014, namely Tauseef Ahmed Siddiqui had allegedly purchased one of the properties left behind by the said deceased viz. house bearing No,B-83, situated in Block-11, Federal-13' Area, Karachi, in collusion with respondents Nos.1 to 5 in HCA No,258 of 2014, which according to legal heirs from the second wife, who are the appellants therein, stood in the name of the first wife of the deceased as benamidar, as the same had been purchased from the funds provided by the deceased. Remaining respondents in the appeal are official respondents.
7. Deceased Z.A. Khan died in September, 1974 at Karachi leaving behind the following immovable properties within the knowledge of the legal heirs of the said deceased. a)Double Storey House No,B-83, Block-11, Federal 'B' Area, Karachi, admeasuring about 400 square yards. b)Plot No,390, Sher Shah Kabari Market, Trans Lyari, Quarters, Karachi, admeasuring about 5000 square yards. c)A house at Tehsil Topi, Post Office Kab Ghani, District Swabi, N.-W.F.P. d)House No,B-82, Block-11, Federal 'B' Area, Karachi.. e)Shop No,617-A, Gall No,1, Shershah Kabari Market, Karachi.
8. Mrs. Lali Tabassum, the learned counsel for the appellants in HCA No,258 of 2014 and for respondents NOs.2,3 and 4 in HCA No,254 of 2014 has inter alia contended that the impugned judgment and decree passed by the learned Single Judge in Suit No,1445 of 2008 is opposed to facts and Mohammaden Law and Sharia is liable to be set aside; that it is an admitted position that the appellants are the legal heirs of the deceased Z.A. Khan and they are entitled to get their due share in the same in accordance with Mohanunaden Law/Sharia, however, the properties of the deceased have been sold by the respondents Nos.1 to 5 without obtaining a letter of administration in respect thereof from the Court of competent jurisdiction and at the time of selling the said properties the respondents have concealed the names of appellants in the sale agreement/sale deeds, therefore, the sale is nullity in the eye of law and the Sale Deed is liable to be cancelled. One property bearing House No,B-82, Bldck-11, Federal 'B' Area, Karachi was purchased by the deceased in the name of his first wife namely Mst: Mirzago Begum as Benamidar whereas the funds for purchasing the same were provided by the deceased himself, therefore, all the legal heirs of the deceased are entitled to get their due shares in the same. She further contends that double Storey House No,B-83, Block-11, Federal 'B' Area, Karachi, ad measuring about 400 square yards has also been sold by the legal heirs from the first wife of the deceased, the respondents Nos.1 to 5, without disclosing the names of other legal heirs from the second wife; similarly the property bearing Plot No,390, Sher Shah Kabari Market, Trans Lyari, Quarters, Karachi, ad measuring about 5000 square yards has been surreptitiously got leased out in the names of the respondents Nos.1 to 5.
9.She next contended that the value of each property is much more than three crores in the current market and the appellants are entitled to get their due share in the same in accordance with Mohammaden Law and Sharia; that the deed of relinquishment dated 20th June, 1997 and payment receipt were fraudulently , manipulated and are forged documents; that the respondents Nos.1 to 5 have falsely stated that they have paid the shares of the appellant in the properties of the deceased, whereas the appellant only signed the receipts of payment of her share of rent of several years accruing on such properties; that the appellants have neither filed any affidavit-in- evidence nor have participated in the evidence because their advocate misguided them that since both the suits are consolidated and the evidence of appellants' real sister, respondent No,6 in Suit No,92 of 2010 is enough, therefore, there is no need to lead evidence by the appellants; that despite of fact that appellants are legal heirs of the deceased, however, the properties left behind by the deceased have been surreptitiously sold out by the respondents Nos.1 to 5 without obtaining letters of administration from this Court. At the end of her arguments, the learned counsel for the appellants prayed for setting-aside the judgment and decree of the learned Single Judge of this Court and order trial of both the suits afresh which were consolidated and consolidated issues were framed vide order dated 07.03.2012 after affording an opportunity to the appellants for leading evidence before the Court.
10.Mr. Haji Zafarul Haq, the learned counsel appearing for the appellants in HCA No,254 of 2014, while controverting the arguments of the learned counsel for the appellants in HCA No,258 of 2014 has submitted that the respondent No,6 Mst: Afshan has filed Suit No, 92 of 2010 in bad faith and in collusion with plaintiffs in Suit No, 1445 of 2008 after receiving her entire due share in the properties of the deceased and executed proper relinquishment deed in the presence of her husband and one Abdul Wahab; that the appellants have not led any evidence to substantiate their claim during trial of Suit No, 1445 of 2008, the respondent No,6 has not examined her husband and Abdul Wahab, who are the attesting witnesses of relinquishment deed dated 20th June, 1997. He next contended that the respondents divided and distributed all shares of the respective legal heirs as per law/Sharia in three properties mentioned at (a), (b) and (c) above; that the respondent No,6 has failed to produce any document that the amount which was paid to her was in respect of rent of the property situated in Shershah.
11.We have heard the learned counsel for the parties, perused the material available on the record of the case and our considered view thereon is that main purpose of a suit for administration is to have the estate of the deceased administered by Court, this Court can, for the purpose of achieving the object of such a suit besides determining the question of title to any property, the power of Court also extends to determining the existence or validity of any alienation of property, not only by other persons after the death of deceased, but also by deceased himself during his life time. Under a decree passed in Administration Suit, the Court takes over charge for determining property and entire process of realization, payment, settlement and distribution of assets of deceased has to be made under supervision of the Court.
12.Since these are suits for administration of the properties of the deceased in which several allegations and counter allegations .have been made by the parties against each other, and a specific plea of Benami has been raised by the parties in respect of certain immovable properties of the deceased, - and no evidence has been led by any one of the parties with regard to the same, and especially when the properties of the deceased have not been administered subject to supervision of the Court in accordance with law, we are of the considered view that controversy with regard to the fact that as to which property belonged to the deceased and which did not at the time of his death, and in which property the appellants and respondents are entitled to get their shares in accordance with Sharia, can only be resolved upon leading comprehensive evidence by all the parties to the suits in order to ward off any suspicion or cloud existing in respect of the title of any property of the deceased.
13.It is also an admitted position that the appellants, who were plaintiffs in Suit No, 1445 of 2008 have not been able to lead evidence on account of some wrong advice given to them by their counsel or due to some mistaken belief that they did not have to lead evidence.
14.Upon careful examination of the record of the case, it transpires that no preliminary decree in terms of Order XX, Rule 13, C.P.C. was passed in either of the suits for appointment of an Administrator to administer the properties of the deceased under the supervision of the Court. Despite the fact that there is specific prayer in Suit No,92 of 2010 for rendition of accounts and distribution of shares of the legal heirs of deceased in prayer clause 11, no Administrator was appointed by the trial Court to administer the properties left behind by the deceased under the supervision of the Court, no accounts of the properties were ordered to be rendered by the trial Court, whereas titles in both the suits speak for themselves that these are suits for administration of the properties left behind by the deceased.
15.15.In our view it is mandatory requirement of Order XX, Rule 13, C.P.C. that where a suit is for an account of any property and its due administration under the decree of the Court, the Court shall, before passing the final decree, pass a preliminary decree, ordering such accounts and inquiry to be taken and made, and giving such direction as it thinks fit. For the sake of convenience Order XX, Rule 13, C.P.C., 1908 is reproduced hereunder, which reads as: Order XX, Rule 13, C.P.C
13. Degree in administration suit. --- (1) Where a suit is for an account of any property and for its due administration under the decree of the Court, the Court shall, before passing the final decree, pass a preliminary decree, ordering such accounts and inquiries to be taken and made, and giving such other directions as it thinks fit.
(2) In the administration by the Court of the property of any deceased person, if such property proves to be insufficient for the payment in full of his debts and liabilities, the same rules shall be observed as to the respective rights of secured and unsecured creditors and as to debts and liabilities provable, and as to the valuation of annuities and future and contingent liabilities respectively, as may be in force for the time being, within the local limits of the Court in which the administration suit is pending with respect to the estates of persons adjudged or declared insolvent; and all persons who in any such case would be entitled to be paid out of such property, may come in under the preliminary decree, and make such claims against the same as they may respectively be entitled to by virtue of this Code.
16.Since this mandatory requirement prescribed by the procedural law as aforesaid, was not fulfilled by the trial Court, therefore, it not only vitiated the entire subsequent proceedings in the suits before the trial Court, but also opened a Pandora's box of allegations and counter allegations with regard to the properties of the deceased and shares inherited from them by the legal heirs, which could not culminate into logical end of the litigation between the parties in the shape of distribution of shares between them in accordance with Muslim Personal Law. The learned trial Court while passing the common judgment in both the suits has over-looked this material irregularity in conducting the trial of the suits for administration filed by the legal heirs of the deceased, which in our view vitiated the entire proceedings before the trial Court, and the trial Court could not reach to a just and equitable conclusion by dismissing the administration suit filed by one set of legal heirs and allowing the other suit filed by one legal heir and passing a preliminary decree therein, while disposing of both the suits. We observe that no due administration of the properties of the deceased, subject to supervision of the Court, could be carried out due to this initial default in passing the preliminary decree and appointment of Administrator in respect thereof, which would have answered many questions with regard to the rendition of, accounts in respect of the estate of the deceased and determining its liabilities, and entitlement of due shares of all the legal heirs of the deceased in the estate.
17. In ordef to determine as to what properties form part of the estate of the deceased for the purpose of due administration and rendition of accounts, guidance can be taken from the cases of Mohammad Bibi and others v. Abdul Ghani and others (PLD 1975 Karachi 979) and Mst: Sherbanoo v. Sadruddin and another (1984 MLD 803) and Muhammad Zahid v. Mst: Ghazala Zakir and others (PLD 2011 Karachi 83). The learned Division Bench of this Court in the last case 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. For the sake of convenience the aforesaid points formulated in the said judgment are reproduced hereunder- "(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 determined 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 s as under:-- "19 Furthermore, subject to what has been said in this judgment, the observatiperson who is a sharer in the estate, then the question comes 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."
' It is pertinent to reproduce the para 19 of the aforesaid judgment which readons made in Ghulam Jilani and others v. Abdul Kadir and others 1996 CLC 1847 (as reproduced above in para.4) and in Mohammed Bibi and others v. Abdul Ghani and others PLD 1975 Karachi 979 (as reproduced above in para. 14) are approved."
18. We, therefore, for the aforesaid reasons set aside the judgment and decree in .Suit No,1445 of 2008 and preliminary decree in Suit No,92 of 2010 and remand the case back to the learned Single Judge of this Court for adjudication of both the consolidated suits afresh in terms of the preliminary decree, which shall be passed by the learned Single Judge in respect of only those properties which are in the name of the deceased and in case the properties are not in the name of deceased then order in terms of point (a) formulated by this Court in the case of Muhammad Zahid (supra). Commissioner/Administrator be accordingly appointed to record evidence of the parties to the suits on the consolidated issues dated: 07.03.2012. The parties shall be at liberty to propose further issues, if they wish to do so. The instant appeals are disposed of in terms of the aforesaid judgment along with all listed applications.