1. OMAR SIAL, J.---Through these proceedings the Appellants have impugned an order dated 17-12- 2014 passed by a learned single Judge in Suit No. 1362 of 2003 which is still pending adjudication. In terms of the said order, the learned single Judge had passed a preliminary decree and had also framed two issues for decision in the Suit.
2. 2.Mr. A. M. Qureshi, having married twice, died on 22-6-1989. Subsequently, various disputes arose over his estate between his legal heirs which culminated in several litigations. One such litigation was Suit 1362/2003 filed on the Original Side of the Court for declaration, cancellation, rendition of accounts, mandatory and permanent injunction filed by Respondents Nos. 11 and 12 in these proceedings against, inter alia, the Appellants ("Suit 1362/2003"). (The parties, as convenient, are hereinafter from time to time referred to as per their character in the Suit.)
3. 3.Suit 1362/2003 was originally filed on 22-12-2003 (the title being amended a couple of times after that) and prayed that the Court be pleased to (i) declare that the Plaintiffs were shareholders of a company named Qureshi Salt and Chemical Works (Pvt.) Limited ("company", being a company in which the late A.M. Qureshi, at the time of his death, owned 700 shares according to the Plaintiffs (i.e. the present Respondents Nos. 11 and 12) and 70 shares according to the Defendants (i.e., the present Appellants), (ii) cancel the Form A filed in the SECP in connection with the company in 1987,
(iii) cancel the gift deed, if any, which the Defendants relied on to show that the late Mr. Qureshi had gifted 630 shares to the Defendants during his lifetime, (iii) order rendition of accounts since 1989, and (iv) order a permanent injunction restraining the Defendants to dispose off the shares or create any third party interest therein without the consent of the Plaintiffs.
4. 4.During the proceedings of Suit 1362/2003, on 20-10-2014, the Plaintiffs filed C.M.A. No. 13929 of 2014 under 0. XX, R. 13, C.P.C. praying therein that the Court pass a preliminary decree for administering the estate of late Mr. Qureshi and further make an order that the Defendants render accounts of Qureshi Salt and Chemical Works (Pvt.) Limited ("CMA 13929/2014").
5. 5.On 12-11-2014, a learned single Judge allowed C.M.A. 13929/2014, passed a preliminary decree and appointed an Administrator for the estate of late Mr. Qureshi. The Defendants being aggrieved by this order challenged the same in H.C.A. No. 280 of 2014 on the main ground that the said order was made in the absence of the Defendants. On 10-12-2004, a learned Division Bench, hearing the appeal, set aside the order of the learned single Judge dated 12-11-2014 and remanded the case for the application to be decided afresh after hearing the parties.
6. 6.On remand, after hearing both parties, the learned single Judge, on 17-12-2014, made an order that essentially retained the original order of 12-11-2014 but modified the same by framing two issues in which the Administrator was directed to record evidence in connection with the disputed shareholding. This is the order that has been challenged in these proceedings.
7. 7.Learned counsel for the Appellants has argued that the learned Single Judge erred in passing a preliminary decree under Order XX, Rule 13, C.P.C. as the same could only be made in a suit for administration. He argued that as Suit 1362/2003 also sought cancellation of documents, the same could not be said to be a suit for administration. The learned counsel argued that the late Mr. Qureshi has gifted 630 shares in the company during his lifetime hence those shares could, in any case, not be a part of the estate of the deceased and therefore could not fall within the ambit of administration. He further contended that passing a preliminary decree in the matter was tantamount to a decision of the whole case and that could not happen at this stage because the shareholding in the company had been challenged in Suit 1362 of 2013.
8. 8.Learned counsel for the Respondents, on the other hand, has supported the order of the learned single Judge and has argued that the same is in accordance with law. While explaining the circumstances in which the learned single Judge had passed the preliminary decree, learned counsel stated that successive orders dated 24-11-2010 and 21-3-2011 made by a Division Bench in H.C.A. 76 of 2008, and orders dated 14-2-2014, 20-2-2014 and 22-4-2014 made in Suit 1362/2013 clearly showed that the Appellants herein (who are the Defendants in the Suit) deliberately and intentionally had avoided co-operating with the Administrator.
9. 9.We have heard learned counsel for the contesting parties and have also examined the record available with their able assistance. The main issue which requires determination in this appeal is whether, keeping in view the fact that there was a dispute between the legal heirs of the deceased over 630 shares of the company (said to have been gifted by the deceased to certain legal heirs during his life time), the company could form part of the estate of the deceased and be included in the estate of the deceased for the purposes of administration?
10. 10.A Division Bench of this Court, of which one of us was a member (namely, Mr. Munib Akhtar. J), was faced with a similar question in Muhammad Zahid v. Ghazala Zakir and others PLD 2011 Kar. 83.
11. In this case, there was a dispute between legal heirs as to a property of the deceased situated in North Nazimabad. The appellants in that case had taken the stance that that property was also the property of the deceased and thus formed part of his estate and was liable to be administered along with the rest of the latter's properties. The case of the respondent therein in respect of the property was that the deceased had gifted the same to her during his lifetime and that therefore the said property, and any issue relating thereto, including in particular, the question of the validity of the gift, lay outside the scope of an administration suit.
12. 11.The Division Bench observed (pg. 93): "In our view, when these considerations are balanced, the proper test to establish whether such a determination lies within the scope of an administration suit, or beyond it, is as follows: if the determination will not disturb the inter se position of the sharers, and will affect all the sharers equally, then the question lies outside the scope of the administration suit. If however, the determination will affect and upset the inter se position of the sharers, and may give one or more of the heirs an advantage over the others, then the question lies within the scope of the administration suit."
13. 12.The Division Bench went on to observe (pg. 95): "We would therefore ... sum up the foregoing analysis in the form of the following propositions: (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 a determination of the aforesaid question involves a person 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."
14. 13.A similar view was expressed by another learned Division Bench of this Court in Saifullah Khan and others v. Afshan and others PLD 2017 Sindh 324 in which it was held (at pg. 328) that the "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 the 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 lifetime".
15. 14.In the present case, the dispute is between the legal heirs of the deceased as to the number of shares held by the deceased at the time of his death (the Respondents in these proceedings claiming that the deceased held 700 shares whereas the Appellants claim that he held only 70, having gifted 630 shares to them during his lifetime). The determination of this question does not involve a stranger. Applying the aforementioned principles to the present case, with great respect, we are not persuaded by learned counsel's argument that as there was a prayer for cancellation of documents in Suit 1362/2003, the same took it out of the scope of an administration suit and hence a preliminary decree could not have been made. Similarly, we also are not persuaded by learned counsel's argument that the preliminary decree is tantamount to deciding the suit. We notice also that in any case issues have been framed, one such issue being whether the transfer of 630 shares of the company was rightly recorded and evidence is yet to be led in this regard.
16. 15.In view of the above, the appeal stands dismissed with no order as to costs.