1. ' This is a revision petition from a judgment of learned Additional District Judge, Lahore, reversing the judgment and decree of the trial Court dismissing the plaintiffs' suit for administration of the estate of deceased Major Ajmal Hussain. For proper appreciation of the points of law involved for decision in the revision petition, it was necessary to set out salient facts of the case bearing upon them.
2. ' Late Mirza Ajmal Hussain was a Major in Army Medical Corps. He was a doctor by profession. He owned a residential house No, 40-A, situate on Empress Road, Lahore and another house No, 8-A, Javed Street, Muhammad Nagar, Lahore. In addition to the above two residential properties, he also owned a Morris Car No, KAG-98. He was married to Ellis Grace. He had no issue from her. She breathed her last in the year 1976. Thereupon, he married Mst. Amina Rehman on 18-5-1976. Her Rukhsati took place on 1-7-1976. She was a lecturer in Government College for Women at Lahore.
3. Independent of marriage, she was his maternal cousin. This marriage was also not blessed with an offspring. On 15-8-1978, Mirza Ajmal Hussain died. He was survived by a real brother Mirza Karamat Hussain and three sisters, namely, Mst. Zubeda Begum, Mst. Ansari Begum and Mst. Khalida Khanum. Mirza Karamat Hussain, Mst. Zubeda Begum, Mst. Ansari Begum were plaintiffs Nos.1 to 3 in the suit. Mst. Khalida Khanum was arrayed as defendant No,2 in the suit.
4. ' On 26-9-1978, plaintiffs brought a suit for administration of the estate left by the deceased for its management and distribution amongst his surviving heirs. Mst. Amina Rehman, widow of the deceased, was defendant No,1 in the suit for administration. Particulars of the immovable property and movable assets left by the deceased were given in the plaint.
5. ' Defendant No,2 did not contest the suit and gave concessional written statement in favour of the plaintiffs. Defendant No,1 solely contested the suit. Her principal defence to the suit was that the residential houses and Morris car were gifted to her by her husband in his lifetime in mid-June, 1978, in presence of witnesses and therefore, the deceased was not owner of the immovable property sought to be administered under the decree of a Civil Court.
6. ' On 18-2-1980, the trial Court settled following issues for determination. These are:----
(1) Whether the house No,40-A, Street No,9, Muhammad Nagar and House No,8-A, Ajmal Street, Muhammad Nagar were gifted away to defendant No,1 by the deceased Major Ajmal Hussain during his lifetime, if so, its effect? OPD 1.
(2) Whether Car No,KAG-98 was also gifted to the defendant No,1 by the deceased Ajmal Hussain during his lifetime?OPD 1.
(3) Whether the property mentioned in para. 6 except that mentioned in issues Nos.1 and 2 of the plaint belonged to Major Ajmal Hussain deceased?OPP
(4) Relief.
7. ' In support of the above issues, plaintiff No,1---real brother of the deceased and his paternal cousin, Mirza Akbar Ali, gave evidence to support ownership of the residential properties and Morris car by the deceased Mirza Ajmal Hussain and denial of their disposition in favour of the wife of the . deceased. On the contrary, two D.Ws. and defendant No,1 gave evidence in defence of oral gift of the residential houses and the car in her favour. At this stage, a little digression from the main stream of facts shall be advantageous. After demise of late Mirza Ajmal Hussain, his widow remarried Ghulam Yazdani Malik. D.W.1, namely, Ghulam Rabbani, who gave evidence to support oral gift of the immovable property and the car by deceased Mirza Ajmal Hussain, was a real younger brother of the second husband. D.W.2, Syed Javed Masood was his close friend. Both the D.Ws. deposed that the deceased Mirza Ajmal Hussain had orally gifted his above properties to his wife in mid-June, 1978 in their presence. D.W.3 supported them for upholding her ownership of the immovable properties and the car, once belonging to her late husband. Apart from the oral evidence led in support of the verbal gift, copy of assessment from register in Form P.T. I, for the year 1976-77 Exh.P.1 came on record. It showed that the ownership of the property was mutated in favour of Mst. Amina Ajmal vide an order dated 17-9-1978.
8. ' Upon analysis of the above material, the trial Court found that gift of the properties and the car was complete in favour of the donee and upon reaching this conclusion, dismissed the plaintiffs' suit with costs, on 29-10-1981. In appeal, learned Additional District Judge differed with the reading of the record by the trial Court and the application of law to the facts found by him and opportioned the estate of the deceased in favour of his heirs in accordance with Islamic law of Inheritance. The widow of the deceased was allotted 1/4th share in the disputed property and the remainder was divided between three sisters and the brother. Consequently, a preliminary decree on the above lines was passed in favour of the plaintiffs on 4-6-1983. Defendant No,1 is in revision before this Court and challenges the correctness of the above dispensation.
9. ' On her behalf, it is contended by Mr. Amir Alam Khan, Advocate that the suit for administration of the estate of the deceased did not lie, inasmuch as, the validity of inter vivos gifts of immovable property and the car could not be challenged in it and for avoidance of them, a separate suit of the appropriate nature was required to be instituted by the plaintiffs; verbal gift was adequately proved and for arriving at a different conclusion, the lower Appellate Court ignored the record; the gift of immovable properties and the car emanating from the husband to his wife, expression of a mere intention to transfer ownership rights by donation was sufficient in law and transfer of their physical possession was unnecessary. In support of the contention that the suit for administration of the estate was incompetent to challenge the validity of gifts, learned counsel referred to the cases in Mst. Muhammad Zamani Begum and another v. Fazalur Rahman and another AIR 1943 Lah.
10. 241, Mahbub Alam v. Razia Begam and others PLD 1949 Lah. 263, Mt. Shafi-ul-Nisa v. Mt. Fazal-ul- Nisa AIR 1950 (East) Punj. 276; Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi and others PLD 1962 SC 291, Muhammad Sarwar and 2 others v. Abdul Lateef and another PLD 1978 Lahore 391, Muhammad Younus Qureshi and 5 others v. Mrs. Feroz Quraishi and 2 others 1982 CLC 976 (Karachi), Muhammad Sulaiman Malik and another v. Royal Trust Corporation of Canada and 2 others PLD 1983 Kar. 382, Syed Mohsin Raza Bukhari and 4 others v. Syed Azra Zcnab Bukhari 1993 CLC 31 and as for the completeness of the gift, learned counsel extensively read from the oral evidence produced by the petitioner to support her case.
11. ' As against it, learned counsel for the respondents submitted that essentials of a gift under Muhammadan Law were not proved and oral evidence led in this behalf was too meagre to sustain the transfers. In this behalf, he relied upon K.S. Agha Mir Ahmad Shah and others v. K.S. Agha Mir Yaqub Shah and others PLD 1957 (W.P.) Kar. 258, Anjuman Islamia, Muzaffargarh v. Ashiq Hussain and another PLD 1967 Lah. 336, Ashiq Hussain and another v. Ashiq Ali 1972 SCMR 50, Mir Haji Ali Ahmad Khan Talpur and 9 others v. Government of Sindh and 2 others PLD 1976 Kar.
316. It was also submitted that since the alleged defective form of the administration suit and its competence was not objected to in defence in the lower Courts and also in the memo. of revision filed in this Court, it was not open to the petitioner to agitate about it for the first time at the hearing of this civil revision. In support of the contention, learned counsel referred to S.M. Khodabux and another v. The Union of India AIR 1960 Pat. 410, Chiman Ram Bhatar and others v. Ganga Saha and another AIR 1961 Orissa 94. It was argued that if the petitioner had objected to the form of the suit at the appropriate stage of proceedings and the time, the plaintiffs should have rectified the alleged error and brought the suit in its proper form. However, it was strenuously disputed that the administration suit did not lie or its form was defective in any manner.
12. ' In reply, Mr. Amir Alam Khan urged that form of the suit and its competence was a pure question of law and no rule of procedure prohibited its urging at any stage; even the final stage. He supported himself by reference to cases in Government of Punjab through Secretary, Department of Education, Lahore v. Prof. Mst. Jamida Malik and another 1991 MLD 824 (Lahore), Riasat Ali v.
13. Muhammad Jaffar Khan and 2 others 1991 SCMR 496, Water and Power Development Authority and another v. Messrs Pakistan Associated Construction 1992 CLC 771.
14. ' Civil revision raised two material questions for consideration by this Court. The first question related to existence and validity of gifts of immovable and movable property by the deceased Mirza Ajmal Hussain to his wife Mst. Amina Raman and the second question was, whether the suit for administration of the estate left by the deceased could competently be instituted by his heirs.
15. The first question was more material, because if the gifts were found to have been made, the civil suit filed was bound to fail, regardless of its form in which it was brought. Therefore, I shall first advert to the first question and examine, whether the deceased made the gifts as alleged in defence by his wife. It cannot be gainsaid that onus to prove the gift lay upon the donee and it was her obligation to establish beyond doubt that her husband in his lifetime had made the gifts of his immovable and movable property to her. The deceased was an educated person. He was a doctor by profession and was employed in Army Medical Corps. Petitioner was his second wife. He had taken her as his wife, after the death of his first wife. Their marriage took place in 1976. Muslim Family Laws Ordinance, 1961 had come in force by then. It required registration of marriages performed under it. Nikahnama of the petitioner with the late Mirza Ajmal Hussain was not forthcoming on record. Therefore, her dower fixed at the time of her marriage was not ascertainable. No evidence about it was given by either party. From the time of marriage to the time of mid-June, 1978, when the gifts were allegedly made, there was no reliable evidence that the husband intended to donate his property to his wife. Hardly after three months of the making of alleged gifts, Mirza Ajmal Hussain died in the hospital. Within these three months, he did not scribble, even a few lines to evince his intention and the act of making the gifts of his properties to his wife. Ownership of the properties owned by him was recorded in his name although. He did not inform the Municipal Authorities or intimate the Excise and Taxation Department for mutation of names in favour of his wife on the basis of alleged gifts. The wife also did not demur. For the first time, after the death of Mirza Ajmal Hussain, an application for change of ownership in the Taxation record was submitted on the basis of which correction was made. Neither copy of the application for mutation of names, orders passed on it and whether the other heirs of the deceased were heard, was brought on file. This material was quite relevant to the point at issue. It could have disclosed the basis for the change of ownership sought to be brought about in the records. As said above, two witnesses gave evidence to support the oral gift of a very valuable property situated at Lahore, more particularly, the property situated at Empress Road. One of the witnesses was real brother of the second husband of the petitioner and the other was his close friend. Their testimony was interested. They had an animus to depose in favour of the petitioner. In absence of written records, oral evidence of a very high order was required to establish the gifts of immovable and movable properties by the deceased. I would not suggest that oral gift was impermissible, but I would observe that in case of a dispute, evidence of an unimpeachable character was necessary to prove the donation and that was, which was lacking in the case. Presence of D.Ws. at the opportune time was a little improbable and extraordinary. It appeared that as if Mirza Ajmal Hussain was waiting for them to open out his mind to them about the attitude of his brother and intention of making a gift of his property to his wife. That looked incredible and against the ordinary course of nature. I have reviewed the record and analysed it with deserving care. In my opinin, the evidence of D.Ws. and self-serving statement of defendant No,1 was insufficient to hold the gifts of residential houses and the car proved in her favour. Three essentials of a Muhammadan Law gift were not proved in the present case. Therefore, I feel inclined to agree and uphold the finding on question of gift by the lower appellate Court. Question of existence of gifts having not been proved, the question regarding their validity may not arise for consideration.
16. Above conclusion takes me to the consideration of the other point relating to the competence of the administration suit. It is common ground that the petitioner did not object to the maintainability of the suit or its form in the lower Courts. It is also not disputed that no objection regarding the form of the suit was taken in the grounds of revision submitted in this Court. Therefore, it shall not be a proper exercise of jurisdiction to permit the petitioner to urge it now. Be that as it may, there was no defect in the suit filed by the plaintiffs for administration of the estate left by their deceased brother. The object, scope of and inquiry in a suit for administration of the estate had been subject- matter of comments in number of cases in this Court as well as other Courts. Some of them have been noted above. In Nazarali Kazamali and others v. Fazlanbibi and others AIR 1975 Gujarat 81, it was found that the scope of an administration suit clearly is one to collect the assets of the deceased to pay off the debts and other legal charges, to take account of the income and expenses of the estate, and to find out what is the residue of the estate available for distribution amongst the heirs of the deceased and in what shares and distribute the same amongst the heirs of the deceased. It is only after the accounts were taken that proper administration of the estate can be made and this is moreso in the case of a deceased Mahomedan. In an administration suit, a complete inquiry is to be made as to what property the deceased was possessed of or entitled to at the time of his death and this necessarily implies determination of title to immovable property and the Court is bound to decide questions as to ownership of such property, which is the subject- matter of an administration suit. It was further held that the power to entertain an administration suit is conferred by section 9 of the Code of Civil Procedure, as the cognizance of such suit by a Civil Court is not barred expressly or impliedly. The provisions of Order 20, Rule 13 are merely procedural and lay down the procedure for drawing up a decree in such suit. They are not partly substantive and partly procedural. The forms of pleadings in such suit to be found in Appendix A, Form Nos.41, 42 and 43 are merely model forms and not statutory forms as is evident from Order 6, Rule 3 of the Code. So also the form of preliminary decree and final decree to be passed in such suits which are to be found at Nos.17 and 18 respectively in Appendix 'D' are also model forms and not statutory forms as is evident from Order 48, Rule 3 of the Code. In case of Mst. Muhammad Zamani Begum AIR 1943 Lah. 241, it was ruled that it was open to the Court to determine in an administration suit, whether certain alienations were or were not in fact made by the deceased. It was, however, not open to the Court in an administration suit to determine the validity of any alienation made by him. Existence of alienations could be looked into in the administration suit but the question regarding their validity was prohibited in the administration suit in view of the Division Bench of this Court. In case of Mahbub Alam, this question did not directly arise before the Court for its decision. In Syed Mehdi Hussain Shah's case, challenge to the will was examined in the suit for administration. At page 294 of the report, their Lordships observed, "While an administration suit is not a remedy for getting possession from those who claim the property in their possession in their own right and adversely to the deceased, there does not appear to be any valid objection to their dispossession if they claim only as heirs or under a will from the deceased and their claim is negatived. The question as to whether a person is entitled to a share in the property of the deceased is a fit subject of decision in an administration suit and in fact learned counsel for the appellant does not contend to the contrary, his plea being that a defendant in an administration suit can raise a question as to whether the plaintiff or another defendant is entitled to a share but that the plaintiff cannot raise such a plea as to a defendant We see no good reason for this distinction". Case of Muhammad Sarwar and 2 others PLD 1978 Lah. 391 merely followed the earlier decision of this Court and did not contain any independent reasoning. In Masireddi Suryanarayana v. Akula Anasuyamma AIR 1963 Andhra Pradesh 298, it was held that where in a suit for administration of estate of a deceased, family arrangement is pleaded as a defence by the defendant in possession of certain properties included in the plaint, the Court, is entitled to decide the validity of the family arrangement. From the tenor of the judgment, it appeared that not only the existence of the alienation but its validity was also open to examination in a suit for administration of the estate left by the deceased. However, since I have held above that gifts were not proved, it was unnecessary to pursue the inquiry on this point further.
17. ' In view of the aforesaid, civil revision is without merit. It is dismissed by leaving the parties to bear their own costs.
18. ' Records be returned.