1. ' SAEEDUZZAMAN SIDDIQUI, C.J.---This appeal under section 3 of the Law Reforms Ordinance is filed by the appellants/defendants against the order of the learned Judge in Chambers dated 18-2-1991, passed on an application under Order 40, Rule 1, C.P.C. Filed by the respondents in a pending suit for administration, accounts, cancellation of document and injunction, being No,104 of 1989. By the impugned order the learned Judge appointed receiver of the properties namely Al-Habib Building on Plot No,61, M-II/E Block-D, Shehr Shah Colony, Karachi, and Mohammadi Market Building situated on 14 plots in Baldia Town, Karachi. The facts giving rise to this appeal may be stated as follows:- ' Deceased Haji Adam Khan died at Karachi on 20-7-1988 leaving behind appellant No,12 and respondent No,1 as the two widows and appellants Nos.1 to 11 being the children of the deceased from appellant No,12 and respondents 2 to 10 as deceased's children from respondent No,1. The deceased at the time of his death left considerable landed properties in Karachi as well as in Baffa, District Mansahra. It appears that after the death of I Haji Adam Khan disputes arose between the appellants and respondents in respect of two properties situated in Karachi namely, Al-Habib Building and Mohammadi Market Building. Respondents Nos.1 to 10 claimed that the above- mentioned two buildings namely, Al-Habib Building and Mohammadi Market Building in Karachi belonged to the deceased Haji Adam Khan and as such they formed part of the estate of the deceased which is inherited jointly by the appellants and respondents on the demise of Haji Adam Khan. The appellants on the other hand contended that the two buildings mentioned above were gifted by late Haji Adam Khan during his lifetime in favour of the appellants and as such the respondents are not entitled to claim any share in the said properties by way of inheritance. In the wake of the above controversy the respondents instituted Suit No,104 of 1988 in this Court for administration, accounts, partition, declaration, cancellation of the documents and injunctions against the appellants. Alongwith the suit, the respondents also filed an application under Order 40, Rule 1, C.P.C. For appointment of receiver of the aforesaid two buildings. The application was opposed by the appellants, but the learned Judge in Chambers after hearing the parties' Counsel, reached the consclution that the parties have yet to establish their respective title in respect of the above properties and accordingly appointed the Official Assignee as receiver for both the buildings namely Al-Habib Building and Mohammadi Market Building with direction to take over possession of the said buildings for receiving rents from the tenants and maintenance of the accounts till final disposal of the suit. The above order is challenged by the appellants/defendants.
2. ' On 21-5-1991 the case was fixed for hearing of interim application only in which the appellants had sought stay of the order of learned Judge in Chambers, but with the consent of the learned Counsel for the parties, we heard the main appeal as well and by a short order, the main appeal was disposed of as follows:- "Today only Miscellaneous Application is fixed for hearing. However, with the consent of learned Counsel for the appellants, we have heard the main appeal as well, and following short order is passed for the disposal of the appeal as well as the Miscellaneous Application:- ' That the order of learned Single Judge appointing receiver of the properties is modified to the extent that the property namely Al-Habib Building will not be taken over by the receiver appointed by the Court. The appellants who are in possession of the property will continue to manage and administer this property subject to the conditions that they shall maintain full and detailed account of the income and expenditure of the property and they will file quarterly accounts in the Court with a copy thereof to the respondents' Counsel. The appellants during the pendency of the suit, shall not charge the tenancy of any of the premises in the building except with the permission of the Court. The receiver appointed in the case will prepare a complete list of the tenants in the building within two weeks giving the names of the sitting tenants and the monthly rent paid by them. Such report will be filed in the Court. There will be no order as to the costs.
3. ' The main appeal as well as the miscellaneous application stand disposed of accordingly."
4. ' The following are the detailed reasons for the above short order:- ' Mr. Fazle Ghani, the learned counsel for the appellants contended before us that the learned Judge in Chambers while appointing receiver of the properties known as Al-Habib Building and Mohammadi Market Building failed to take into account the valuminous documentary evidence on record which established beyond any shadow of doubt that the above buildings were gifted by late Haji Adam Khan, during his lifetime in favour of the appellants and as such these properties did not form part of the estate of the deceased. Accordingly, it is contended that neither the Suit for administration in respect of these properties could be maintained, nor a receiver of these properties could be appointed by the Court on the assumption that these properties formed part of the estate of the deceased Haji Adam Khan. The learned Counsel in support of his contention relied on various documents containing the alleged admission of late Haji Adam Khan regarding the factum of gift in respect of the properties during his lifetime. It may be mentioned here that Mr. Fazle Ghani Khan in the beginning pressed for removal of receiver appointed by the learned Judge in Chambers in respect of both the properties but ultimately agreed that to the extent of Mohammadi Market Building there is no categorical admission of late Haji Adam Khan in respect of the alleged gift made in favour of appellants. The learned Counsel, accordingly pressed his appeal only for removal of receiver in respect of the building known as Al-Habib Building.
5. ' Mr. Iqbal Kazi, the learned Counsel for the respondents on the other hand supported the order of learned Judge in Chambers and contended that the deceased Haji Adam Khan during his lifetime acted in a manner which was inconsistent with the rights of the alleged donees (appellants) which gave rise to a strong presumption that either there was no gift of the above properties or that the gift was never acted upon.
6. ' After hearing the learned Counsel for the parties at length we are of the view that the order of the learned Judge in Chambers in so far it related to the appointment of receiver in respect of the building known as Al-Habib Building cannot be sustained in law. It is quite clear from the material on record that after the death of Haji Adam Khan, the building known as Al Habib Building remained in possession of the appellants who are allegedly utilising its income. We will briefly refer here those documents which are relied by the appellants to establish that the building known as Al-Habib was gifted to them by late Haji Adam Khan during his lifetime. These documents are statements of assets and liabilities and the reconciliation statement filed alongwith the Income- tax return for the period ending 30th June, 1975, tenancy agreements of building Al-Habib and copies of rent receipts of Al-Habib Building. In the reconciliation statement filed by late Haji Adam Khan alongwith his Income-tax return for the period ending 30th June, 1975, it is categorically stated that Al-Habib Building was gifted out to appellants and that Haji Adam Khan was managing the affairs of this building in his capacity as the guardian of the donees. The photostats of various tenancy agreements executed between the deceased Haji Adam Khan and the tenants of Al - Habib Building during the period from 1974 to 1988 show that these tenancy agreements were executed by late Haji Adam Khan on behalf of Habibullah and brothers, as their guardian. Similarly photostats of various rent receipts issued by late Haji Adam Khan to the tenants of Al-Habib Building also show that late Haji Adam Khan used to recover the rent from the tenants on behalf of Habibullah, his brothers and sisters as their Rent Collector. In addition to these documents which were before the learned Judge in Chambers at the time, he heard the application for appointment of receiver the appellants have also filed in this appeal certified copy of the memo of petition C.P.
7. No,922 of 1981 filed by appellants alongwith late Haji Adam Khan against Sindh Industrial Trading Estate, Karachi. In the aforesaid petition which was signed by Haji Adam Khan for self and on behalf of appellants who were then minors, in paragraph 5 a categorical statement was made to the effect that in the years 1970 and 1971 late Haji Adam Khan constructed three-storeyed prestigious building and after constructing the same in the year 1973 he gifted the property in favour of the petitioners and mutation in their favour was also effected in respect of the said building in the record of Excise and Taxation and K.M.C. The statement made in the petition was also supported by an affidavit which was sworn by late Haji Adam Khan.
8. The above documentary evidence prima facie support the contention A of the appellants that the property known as Al-Habib Building was gifted in favour of appellants by the deceased Haji Adam Khan.
9. ' Mr. Iqbal Kazi, learned Counsel for the respondents on the other hand contended that late Haji Adam Khan during his lifetime described himself in sever Court proceedings as the owner and the landlord of the premises and in this connection, the learned Counsel referred to the proceedings in Rent Case No,858 of 1979 instituted by late Haji Adam Khan in his own name in respect of the shops Nos.13, 14 and 15 of Al-Habib Building. The learned Counsel laid much stress on the statement made in the above ejectment application by late Haji Adam Khan pleading for his personal requirement of the premises and the orders of Rent Controller and the 1st Appellate Court passed thereon. Mr. Iqbal Kazi on the basis of the above document contended that the above acts of late Haji Adam Khan was inconsistent with the alleged gift pleaded by the appellants. On a tentative examination of the material so far placed by the parties, it cannot be said that the plaintiffs/respondents had succeeded in showing that the building known as Al-Habib Building formed part of the estate of late Haji Adam Khan and as such in our view no case for appointment of receiver was made out.
10. ' Mr. Iqbal Kazi, the learned Counsel for the respondents raised a technical objection that the copy of the memo of Petition No,922 of 1981 filed by the appellants in appeal could not be considered by us as this document was not filed before the learned Judge in Chambers. It is true that this document was not produced before the learned Judge in Chambers, but this document is part of the record of the proceedings of this Court and its genuineness is not challenged before us. We are otherwise of the view that even if we exclude memo of Petition No,922 of 1981 from consideration, there was enough material in the form of Income-tax returns of the deceased, the tenancy agreements of the building known as Al-Habib Building, and other material produced before the learned Judge which supported the contention of appellants regarding the alleged gift in their favour by late Haji Adam Khan. The respondents have placed before us the proceedings in Rent Case No, 858 of 1979, which Haji Adam Khan had instituted in his own name and in which one of the grounds related to his personal use of the shops, but this fact alone was not sufficient to negate the title of the appellants which they claimed on the basis of gift in their favour. It is also to be kept in mind that under the provisions of Sindh Rented Premises Ordinance, 1979, a landlord is entitled to file application for ejectment of the tenants and it is not necessary that such application should be filed by the owner of the premises.
11. ' Mr. Iqbal Kazi, learned Counsel for the respondents also contended that the respondents/plaintiffs are minors and, therefore, the Court rightly appointed receiver of the property in order to safeguard their interests. There are minors on both the sides. The appointment of receiver in the circumstances of the case could only be justified if the building was shown to be the part of the estate of late Haji Adam Khan. On the face of the documentary evidence produced by the appellants in support of their contention that property namely Al-Habib Building was gifted by their late father Haji Adam Khan, there was no room for appointment of receiver of this property during the pendency of the Suit. It is true that the respondents/plaintiffs have also made a prayer in the suit for cancellation of the gift in favour of the appellants and they are also disputing the genuineness of gift. However, till such time they succeed in their assertion, their interest can be fully safeguarded by imposing terms on the appellants, which we have already done at the time of the passing of the short order in the case. We may also mention here that apart from the terms imposed on the appellants in our short order the appellants have also been restrained from disposing of or encumbering the property in any manner till the disposal of the suit. We are of the view that these restrains put on the appellants are sufficient to safeguard the interests of the respondents/plaintiffs if any, in the suit. Mr. Iqbal Kazi, learned Counsel for the respondents contended that the income arising from the property namely Al-Habib Building is much more than other properties of the deceased. The learned Counsel, however, admitted before us that the property in Baffa(Mansahra) is in exclusive possession of the respondents and that the income arising from that property is being appropriated from the time of death of the deceased by the respondents alone. No doubt Baffa property as stated by the learned counsel for the respondents has been entered in the name of all the legal heirs of the deceased, but that was for the reason that the Baffa property stood in the name of the deceased at the time of his death. Therefore, even on equitable ground no interim relief by way of appointment of receiver can be granted to respondents at this stage.
12. We, therefore, modify the order of appointment of receiver passed by the learned Judge in Chambers to the extent and on the conditions indicated by us in our short order dated 21-5-1991.
13. The appeal and the miscellaneous application stand disposed of accordingly with no order as to the costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.