1. ' This application has been moved by the plaintiff for grant of injunction restraining the defendants Nos,1 to 5 from selling, gifting, alienating, mortgaging, disposing of, transferring, leasing, renting or parting with possession of any portion/tenant of the plot and buildings thereon bearing City.
2. Survey No,11/8, Sheet RY-9, known as Bombay Hotel and situated at I.I. Chundringar Road, Railway Quarters, Karachi till the final disposal of the suit. Mr. Munawar Malik, learned counsel for the contesting defendants Nos,1 and 2, conccedes to this application which is accordingly allowed in the above terms.
2. This application has been moved under the provision of Order 40, rule 1, C.P.C. Read with section 151, C.P.C. For appointment of receiver over the abovesaid property which is commonly known as "Bombay Hotel" with powers to the receiver to realise rents and to manage the same. This application has been contested by the defendants Nos,1 and 2 while the defendants Nos,3 to 5 are absent. Briefly the plaintiff's case in the present suit is that the deceased father of the plaintiff namely Syed Nazir Ali had two wives, the present defendant No,6 and deceased Mst. Hashmi Begum while the plaintiff and defendants Nos,7 to 10 are the children of the said deceased from his wife defendant No,6 and defendants No,1 to 5 are his children from his deceased wife Mst. Hashmi Begum who had predeceased the said late Syed Nazir Ali. It is further the case of the plaintiff that the said deceased Syed Nazir Ali had purchased the property bearing City Survey No, 11/8, Sheet No, RY-9 situated at I.1. Chundrigar Road, Karachi commonly known as "Bombay Hotel", Benami in the name of his wife late Mst. Hashmi Begum on 1-7-1959 and he had also purchased another property bearing Survey No,11/3, Survey Sheet RY-9, Ellender Road, Karachi in the joint names of his two wives, the present defendant No,6 and deceased Mst. Hashmi Begum. It is further case of the plaintiff that the deceased Mst. Hashmi Begum had in her lifetime agreed to sell the said property at Ellender Road, Karachi (Survey No,11/3) to the present defendant No,6 but subsequently she resiled and, therefore, the present defendant No,6 had brought the suit for specific performance against her heirs which is pending in this Court as Suit No,651/88 while by way of counterblast the present defendants 1 and 2 (heirs of deceased Mst. Hashmi Begum) filed the suit for partition against the present defendant No,6, her children and also one Mst. Amtul Haseen and tier children who is said to be 3rd wife of deceased Syed Nazir Ali. This suit is also pending in the Court as Suit No,904/89 and pertains to the abovesaid property situated at Ellender Road, Karachi also the properties which were purchased by the deceased S. Nazir Ali in the name of his 3rd wife Mst. Amtul Haseen as shown in the said suit (904/89). The present plaintiff has, therefore, filed the present suit for partition and accounts pertaining to the abovesaid property, commonly known as "Bombay Hotel" hereinafter referred to as the suit property. In the said suit this application has been moved for appointment of receiver as according to the plaintiff the suit property, which is in possession of the present defendants Nos,1 and 2 who have refused to render accounts or to give the share of the plaintiff and her mother, brother and sisteRs, The defendants Nos,1 and 2 have contested this application and have filed their counter-affidavit wherein they have alleged that a number of suits are pending between the parties. It has also been asserted by them that the suit property was purchased by the deceased Mst. Hashmit Begum from her own funds and thus it was not a Benami transaction. They have also alleged that there was a 3rd wife of the deceased Syed Nazir Ali who is very much alive with her children and is settled in Canada. It is also claimed by the defendants that the said Mst. Amtul Haseen is also in possession of various properties purchased by the late Syed Nazir Ali for her.
3. ' From the above facts, it is obvious that the deceased Syed Nazir All had 3 wives of whom one Mst.
4. Mushtri Begum mother of defendants Nos,1 to 5 predeceased her husband. She died in the year 1979 while the deceased Syed Nazir Ali expired in 1981. This fact also stands admitted that the properties involved in the 3 suits were purchased by the deceased Syed Nazir All in the name of his wives. However, with regard to the property in suit i,e, "Bombay Hotel" the plea taken by the present defendants Nos,1 and 2 is that it was purchased by late Mst. Hashmi Begum from her own resources but they have not been able to point out any independent source of her income. All that is said in counter-affidavit is that she had purchased the suit property from her own funds. This is a general allegation not supported with any other material to at least prima facie show that late Mst.
5. Hashmi Begum had any independent source of income from which she could have paid for the suit property. As against this the other admissions as discussed above show that it was the deceased Syed Nazir All who had purchased the various properties in the names of 3 wives. From this fact which shows that in case where wife does not have any independent source of income and that the property is purchased by the husband in the name of wife then even if the possession is enjoyed by the wife as an ostensible owner, she can be treated to hold the property as such ostensible owner as a trustee for the former. This inference finds support from the case of Khan Imtiaz Ahmad Khan v. The Islamic Republic of Pakistan (PLD 1983 Federal Shariat Court 28), wherein their Lordships were pleased to hold:-- "We pointed out to him that the custom of Benami recorded only in the sense that the Courts give relief to the real owner and do not extend its benefit to the ostensible owner. When the case comes before the Courts and they are satisfied that in any particular case the transaction was Benami and the property was purchased by the person supplying the consideration thereof the Courts have always given the decree in favour of the plaintiff who has supplied the money and held the ostensible owner, to be only a trustee for the former."
6. ' Also in the case in Ismail Dada Adam Soomar v. Shorat Banoo (PLD 1960 (W.P.) Karachi 852), a learned Single Judge of this Court has placed reliance on the case reported in AIR 1925 PC 181 wherein it was held: "A purchase in India by a native of India of property in India in the name of his wife unexplained by other proved or admitted facts is to be regarded as a Benami transaction by which the beneficial interest in the property is in the husband although the ostensible title is in the wife. The rule of the Law of England that such a purchase by a husband in England is to be assumed to be a purchase for the advancement of the wife does not apply in India."
7. ' In view of the above case-law, it can safely be assumed that the suit property, as the other properties, was purchased by the deceased Syed Nazir Ali in the name of his wife and that she being only an ostensible owner held the same as a trustee on behalf of the real purchaser.
8. Consequently on the demise of Syed I A Nazir Ali, his heirs would be entitled to share in the said property.
9. ' Now the other question which is vehemently urged by Mr. Munawar Malik, learned counsel for the defendants Nos,1 and 2 is that the plaintiff has not shown any peril to property and, therefore, there is no justification for appointing a receiver in the case by dispossessing the said defendants Nos,1 and 2 who are on the plaintiff's own showing entitled to some share in the suit property and thus are in lawful possession. Now a person who is in possession of a property in his own right and title is not to be lightly dispossessed unless some particular instance of waste or damage to the property is shown. Appointing receiver by dispossessing a person of the property which he is holding is a very harsh action which should not be resorted to lightly but a strong case of peril to property by citing the instance of waste and damage should be made out. However, in the instant case Mr. Khalilur Rehman, learned counsel for the plaintiff, has submitted that the suit property is mostly rented out and there is a likelihood that the defendants Nos,1 and 2, who are presently managing the suit property, would misappropriate the income and funds derived from the property in question as they have refused to render the accounts and distribute the income among the co- heiRs, The provision of Order 40, rule 1 provides that "where it appears to the Court to be just and convenient, the Court may order appointment of receiver of any property, etc." This provision will show that the discretion can be exercised under Order 40, rule 1, C.P.C. Where it appears to the Court that it would be just and convenient to do so. While section 94 of the C.P.C. Deals with the supplemental proceedings, clause (e) of section 94 provides that 'in order to prevent the ends of justice from being defeated the Court may, if it is so prescribed, make such other interlocutory orders as may appear to the Court to be just and convenient.' In view of the above provisions and circumstances of the present case, I am of the view that the present defendants Nos,1 and 2 are not to be dispossessed from the property in suit but at the same time it would be equitable and in the interest of justice that interest of other heirs of deceased Syed Nazir Ali be protected till the disposal of the suit and for that the defendants Nos,1 and 2 ought to be put on terms. In case of Mir Muhammad v. Muhammad Hashim and others (1988 CLC 2195) Saeeduzzaman Siddiqui, J. (as his Lordship was then) has held:-- "The trial Court keeping in view the above circumstances should have passed an equitable order while refusing to appoint Receiver, as the applicant had failed to establish specific instance of waste. In my view in such circumstances an order directing the respondents to file regular accounts in respect of disputed property could appropriately serve the interest of justice. I accordingly accept this revision application and modify the orders of the Courts below to the extent that the defendants/respondents shall file quarterly accounts with the Nazir of the District Court in respect of all the income and expenditures with regard to the properties standing in the name of the deceased and which are under their control."
10. ' A similar view was taken and order passed in case of Rehmat Sons Ltd. v. Saeed Tourist Enterprisers and 4 others (1982 CLC 2667), by my learned brother Salim Akhtar, J. Under these circumstances the prayer for appointment of receiver is declined. However, the defendants Nos,1 and 2 are directed to submit quarterly accounts with the Nazir of this Court in respect of all the income and expenditures with regard to the suit property (Bombay Hotel) with copy of such accounts to be supplied to the plaintiff/applicant who will be entitled to examine the same and if after examination of such accounts the plaintiff found there is any act which amounts to waste of property in suit it will be open to the plaintiff to file a fresh application for appointment of receiver on such grounds. The defendants Nos, 1 and 2 are also directed to deposit an amount equivalent to 32% (approximate share of the heirs of deceased Syed Nazir Ali from his wife defendant No, 6) in this Court alongwith the accounts. The accounts shall be furnished on Ist of April, 1st of July, 1st of October and 1st of January every year. However, there will be no order as to costs.