1. ' This order will dispose of CMA No,681/92, filed by the plaintiffs for appointment of receiver for the suit property and CMA No,1939/92, filed by defendants Nos,1 to 8 and 10 to 12 under Order VII, Rule 11, C.P.C. For rejection of the plaint (hereinafter referred to as the said defendants).
2. The dispute in the suit pertains to property, bearing No,2-11-B, Nazimabad No,2, commonly known as Azecm Market, Karachi (hereinafter referred to as the "suit property").
3. Briefly the case as reflected in the plaint is that late Mahboob Bux, who died on 26-3-1965, owned 50% share in the suit property which devolved on plaintiff No,1, defendants Nos,1 and 15 and Aziz Bux as his sons, defendants Nos,14, 16 and 17, daughters, Mst. Zainab Khanum, widow and Mst.
2. Quraishunnisa, mother. The remaining 50% share was owned by one Muhammad Naeem which was purchased by plaintiff No,1 and defendant No,1 on 30-10-1969 in equal shares. Aziz Bux died on 16-9-1975, leaving behind Mst.Zainab Khanam, the mother, defendant No,18, widow, defendant No,19, son and defendants Nos,20 to 24, daughteRs, ' The share inherited by Mst. Quraishunnisa was purchased by Mst. Zainab Khanam, who gifted her entire share in the suit property to plaintiff No,6 on 1-7-1990.
3. ' It is the case of the plaintiffs that the property was jointly managed and accounts were being jointly operated by, the parties to the suit through their representatives, plaintiffs Nos,1 and 2 on the one and defendants Nos,1 and 2 on the other hand. Defendants Nos,1 and 2, attempted to oust plaintiffs Nos,1 and 2 from the management of the suit property. The plaintiffs Nos,1 and 2, therefore, filed Suit No,373/1985 in this Court for declaration and permanent injunction. In the said suit by order 'dated 5-6-1985, the aforesaid defendants were restrained from receiving any rent or changing the tenancy of the shops situated in the suit property without the consent and approval of plaintiffs Nos,1 and 2. In spite of the said order defendnats Nos,1 and 2 in collusion with defendants Nos,5 and 6 started recovering rent from the tenants in the name of latter two defendants who are daughters of defendants Nos,1 and 3.
4. ' It the case of the plaintiffs that they are entitled to the rendition of accounts from November, 1984 and so also for partition of the property by metes and bounds. Accordingly the suit has been filed for the said purposes.
5. ' Alongwith the suit, as stated above, the plaintiffs have filed an application for appointment of Receiver and defendant No,1 for himself and on behalf of the said defendants has filed counter- affidavit in which he has not denied that 50 paisa share in the suit property was owned by late Mahboob Bux which devolved on his successors, as stated in the Plaint. He has, however, taken the stand that the remaining 50 paisa share owned by Muhammad Naeem was purchased by him alone for himself and on behalf of his family members, namely, his wife, sons and daughteRs, ' It is then stated by him that out of the 50 paisa share, the share of 25 paisas was purchased by him for himself and his family members in the name of plaintiff No,1, who is benamidar and the said defendants are the real owneRs, According to him the entire sale consideration was paid by him and no consideration was paid by plaintiff No,1 towards the purchase of the said 25 paisas share.
6. According to the said defendants, plaintiff No,1 under the directions and instructions of defendant No,1 made benami gift of 20 paisas share out of the said 25 paisas in favour of his wife Mst. Anisa Begum, plaintiff No,2 herein. Under further instructions of defendant No,1, plaintiff No,2 made benami gift out of 20 paisas standing in her name to plaintiffs Nos3 to 7. Thus it is the case of the said defendants that the plaintiffs are not the real owneRs, It is stated that the physical possession of the property has always remained with defendant No,1 and was not delivered to the donees as they were only benamidar. The gifts, according to him, therefore, are not valid. He claims that the original sale-deed was initiatlly in his possession and was later on deposited by him in United Bank Ltd. He has made reference to the gift made by defendant No,15 Muhammad Sualeheen Paracha of the share inherited by him from late Mahboob Bux to Master Nooruddin Paracha, defendant No,10, through his mother Mst. Yasmin Begum, who took over the actual physical possession of the said share. As stated in the counter-affidavit, the plaintiffs owned only 6.44 paisa share which was inherited by plaintiff No,1 from late Mahboob Bux. Denying the gift made by Mst. Zainab Khanam in favour of plaintiff No,6 on 1-7-1990, it is stated that the share of Mst. Quraishunnisa inherited by her from her son Mahboob Bux was purchased by defendant No,1 in the name of Mst. Zainab Khanam and entire sale consideration was paid by him and thus his mother Mst. Zainab Khanam is also a benamidar for him and on his behalf. It is further claimed that the shares inherited by Mst. Zainab Khanam from her husband and son late Aziz Bux were gifted by her to defendant No,1 on 1-7-1991. It is stated that the actual and physical possession of the said share gifted to him was handed over to him by Mst. Zainab Khanam and he had taken over the possession. Similarly, Mst. Zainab Khanam had gifted to him her shares in all other properties. He has denied that the property was being managed jointly as disclosed by the plaintiffs. It is the case of defendant No,1 that the accounts were not being jointly operated but he was operating the accounts. He has denied the rights and interests claimed by the plaintiffs in the suit property except the share inherited by plaintiff No,1. Plaintiffs Nos,1 to 7, as stated above, are described by defendant No,1 only as benamidars whereas he claims himself to be the real owner of the property. According to the said defendants, the plaintiffs are not entitled to partition of the property as only meagre share of 6.44 paisas is owned by them.
7. ' The plaintiffs in reply to the counter-affidavit filed affidavit-inrejoinder in which they denied the allegations made in the counter-affidavit and reiterated the case as set up in the plaint. Alongwith the aforesaid affidavit in rejoinder they filed a bunch of documents and, therefore, the said defendants were allowed to file their further affidavit-in-Mply to the affidavitin-rejoinder, which has been done. Plaintiff No,1 has filed his further counter-affidavit in reply to the further affidavit of defendant No,1.
8. ' In so far as application under Order VII, Rule 11, C.P.C. Is concerned, the plaintiffs have filed their counter-affidavit through plaintiff No,1 which is followed by affidavit-in-rejoinder filed on behalf of the said defendants. Defendant No,15 has filed his counter-affidavit in reply to the application for appointment of Receiver in which he has supported such appointment. The remaining defendants have not come forward to oppose the appointment of Receiver.
9. ' CMA No, 1939/1992:--It would be appropriate to first dispose of the above application.
10. ' As arleady stated the above application has been filed by the said defendants for rejection of the plaint under Order VII, Rule 11, C.P.C..
11. ' The learned Advocate for the said defendants contended that the suit is bad for misjoinder of plaintiffs as well as defendants and that such joinder of the parties is bound to embarrass the trial of the suit. The above submissions are based on Order I, Rules 2 and 3 of the Code of Civil Procedure (hereinafter to be referred to as the "Code").
12. ' It was submitted that the plaintiffs have acquired specific shares in different modes, that is by purchase, inheritance and gift and therefore the respective plaintiffs can sue for reliefs regarding their respective shares acquired in different modes, independently by separate suits, each acquisition being separate and independent transaction and therefore, they cannot sue jointly as plaintiffs as the relief on the basis of each acquisition is to be sought separately and so also all the defendants cannot be sued jointly.
13. ' It is further contended that the right to sue has not arisen to the plaintiffs against the defendants jointly in respect of the same act or transaction or series of acts or transactions and as also different questions of law and fact would require to be investigated with regard to each of the acquisitions and enforceability of each of such rights against the defendants would be based on different considerations.
14. ' The learned counsel has relied on the following authorities in support of his above contentions:--
(i) Anukul Chandran Chakrawarti v. Province of Bengal and others (AIR 1947 Cal. 374).
15. ' In the above-reported case a suit was filed against 155 defendants. Against some of the defendants declaration was sought and against others the suit was for possession. The defendants, who were termed as trespassers, were independently in possession of separate portions of land. It was found that the defendants could be divided into three separate groups by virtue of the nature of case against each of the groups. The Court put the plaintiffs to election as to against which one of the three groups, they would proceed in the suit.
16. ' Under the abvoe circumstances it has been observed that where different portions of an estate are in possession of different persons, interest of each of whom is opposed to that of the others, the person interested in the estate cannot ordinarily join all such parsons in possession in one suit unless they are in possession by virture of the same transaction or the same series of transactions.
17. ' It is then observed:-- "It is now will-settled that having regard to the provisions of Order I,rule 2 when common questions of law and fact are involved a suit impleading several defendants will not be multifarious only because the plaintiffs causes of action against the several defendants, he has joined, are different."
(ii) In Kanhaiyalal v. Keshodas (AIR 1961 Madhya Pradesh 46) it is observed that the following two conditions must be satisfied before two or more defendants can be joined in the same suit. (a) A right to relief against them arises in respect of the same act of transaction or series of acts or transactions and (b) if separate suits were instituted against the defendants any common question of law or fact would arise.
18. ' Both these conditions must exist together. There must be some nexus or common link. This condition is not fulfilled if the case against each defendant is entirely distinct and separate, in its subject-matter from that of the other defendants.
19. ' The aforesaid requisite conditions for joining the two defendants in one suit were not found to exist in the facts of the reported case. The plaintiff in the suit had purchased the suit house in which two defendants were residing as tenants in separate portions and the suit for eviction was filed against both the defendants claiming different reliefs againt each of them, i,e, in repsect of different portions held by them independently, at different rates of rent. It was found by the Court that the causes of action against both the defendants were quite different as each of the defendants was in possession of separate portion and, therefore, it was held that the case against each of the defendants was entirely distinct and separate in its subject-matter.
(iii) Kamal Kant Gopalgi v. Madhavji (AIR 1935 Bombay 345). In the said case reliefs for recovery of money due under promissory note and money due on account of debt, were sought jointly. The distinction was drawn between a suit on the promissory note and a suit on the debt. It was held that the aforesaid two claims cannot be joined together because a suit on a promissory note is necessarily to be filed against the executing party only and the coparceners cannot be joined in the suit although the debt might be binding on the estate. It was observed that if the debt and the promissory note are simultaneous and constitute one transaction then there will be no separate cause of action in respect of the debt. The rule laid down in the above authority is hot in any manner relevant to the case in hand.
20. ' The facts of this case, seen in juxtaposition of the above case-law, I do not find any substance in the submissions of the learned counsel for the said defendants. In this case neither the defendants are in possession of different portions of the property in suit, nor the suit against each defendant is entirely distinct and separate, in its subject-matter from the other defendants. Although the plaintiffs and so also the defendants have acquired their specific shares in the property in dispute by different modes, such rights have been acquired by them in respect of one and the same subject-matter. The parties are joint co-owners of the property in the suit which is one and single entity. Each one of them has share in each millimeter. It is immaterial that they have acquired undivided shares in different modes-inheritance, gift and purchase. It would have been different, if each or some of the plaintiffs, instead of acquiring joint shares had acquired separate shares in respect of specific divided and separate portions in the property.
21. ' By the present suit the plaintiffs seek partition of the property so that their entire share is separated from that of the defendants by metes and bounds. Such relief will not be feasible if sought by a particular plaintiff on the basis of acquisition of a particular share in a particular mode, as this will lead to multiplicity of litigation. Since the property is jointly owned by the parties, the suit could not have been filed choosing particular defendant or defendants on the basis of the mode of acquisition of the shares therein. If one were to put all the plaintiffs or some or one of them to election or election of some or one of the defendants, it woud create only ridiculous situation.
22. ' The underlying object of the provisions as contained under Order I, Rules 2 and 3 is to avoid multifariousness. Looking at the present dispute in the light of the rule laid down in the authorities relied upon by the learned Advocate for the defendants, it cannot be said that common questions of law or facts have not arisen inter se the plaintiffs and the defendants. It also cannot be said that no nexus or common link exists in respect of the shares acquired in different modes by the plaintiffs, individually or collectively. On the contrary in my humbly assessment of the dispute the plaintiffs had to be joined together for seeking their relief and so also join the defendants together for the said purpose. All the plaintiffs and so also all the defendants are co-owners of the property and as such all of them are necessary parties. If any of them is dropped, the suit will be rendered bad for non-joinder of necessary party.
23. ' No doubt, that the Court has to assess and determine the legality of each of the acquisitions pleaded by the plaintiffs and possibility cannot be ruled out that each of the defendants may raise different pleas with regard to separate acquisition by the plaintiffs but merely for such reason, the suit cannot be said to be multifarious. The argument raised by the learned counsel for the defendants overlooks the provisions of Order I, Rule 4 which specifically provides that judgment may be given, without any amendment, for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to against such one or more of the defendants as may be found liable according to their respective liabilities.
24. ' Again Order I, Rule 5 specifically provides that it shall not be necessary that every defendant shall be interested as to all the reliefs claimed in the suit against him. Similarly Order I, Rule 6 provides that where plaintiff is in doubt as to the defendant from whom he is entitled to obtain redress, he may join two more defendants and the question as to which of the defendants is liable and to what extent, may be determined as between all parties.
25. ' As already observed above, all the plaintiffs and defendants are proper and necessary parties for final adjudication of the dispute raised, as all of them jointly own the property in dispute and the redress by way of partition cannot be granted in absence of any plaintiff or defendant arrayed in the suit.
26. ' It was next contended that the suit is barred under Order II, Rule 2, C.P.C. It was argued that earlier plaintiffs Nos,1 and 2 had filed Suit No,373/1985 in respect of the same property wherein the relief with regard to partition was not claimed and the plaintiffs having relinquished the relief with regard to partition, the claim was barred under the said provisions. It was submitted that the cause of action in both the suits is the same, that is the alleged exclusion of the plaintiffs from the management of the property.
27. ' The above submission is without any substance and deserves to be overruled for the reason that the previous suit is not between the same parties. The previous suit was filed by plaintiffs Nos,1 and 2 herein, against defendants Nos,1 and 2 alone. Plaintiffs Nos,3 to 6 and so also defendants Nos,3 to 23 are not parties in the said suit.
28. ' It is established law that no decree can be granted for partition of property unless all the joint owners are party in the suit. Therefore, in the earlier suit, the Court would not be competent to partition the suit property in absence of plaintiffs Nos,3 to 6 and defendants Nos,3 to 23.
29. ' It was pointed out at the Bar that apart from the suit property the parties are also owners of other properties which are subject-matter of Suit No,373/1985. All the owners of the properties have been ordered to be joined as parties in the said suit and the plaintiffs Nos,1 and 2 herein, who have filed the above suit, have been directed to file amended memo. Of plaint. Be that as it may, in so far as the present suit is concerned, it cannot be said to have been rendered as incompetent because of the above fact. At the most it would be for the parties to request for joint trial of both the suits if they think it proper.
30. ' It may further be pointed out that plaintiff No,6 acquired share in the property by way of gift on 1- 7-1990. The suit for partition can be instituted by any co-owner at any time so long as his right in the property subsists, even in E absence of any wrongful act on the part of the defendant.
31. Therefore, the bar under Order II, rule 2 of the Code is not attracted in the facts and circumstances of this case.
32. ' In Rama Swami Mudalia and others v. Allagathi Ali (AIR 1929 Mad. 96), it was held that Order II, Rule 2 would have no application where the parties to the suits are not the same. Reference may also be made to Muhammad Azam v. Pakistan Employees' Cooperative Housing Society,Karachi and 4 others (PLD 1985 Kar. 481) and M.K. Abbasi v. United Bank Limited (1983 CLC 482).
33. ' It was lastly contended that the suit, in so far as it pertains to accounts, is barred under Articles 88, 89 and 106 of the Limitation Act. The first Article relates to a suit against factor for an account, the 'second one by principal against his agent and the last one to suit for an account and the share of the profits of a dissolved partnership. None of the said Articles is attracted to the present case. The learned counsel for the plaintiffs submitted that the Article applicable under the circumstances is residuary Article 120 which provides limitation of six years when the right to sue accrues. In the present suit according to the plaint the right to sue accrued in the year 1984 and the accounts have been claimed from the year 1984. It may be observed that the defendants are liable to account for the rents and other amounts received by them from day to day and since the case of the plaintiffs is that the defendants are continuously realising the rent amount, the suit cannot be said to be barred by time in respect of all the sums that have been realised by the defendants continuously from 1984 till today. This submission can be considered properly only at the time of final disposal of the suit. The present suit is also for partition of property. It is settled law that in suits for partition, administration or of the like nature which do not necessarily arise out of any wrongful act on the part of the defendant, the right to sue accrues day to day so long as the right in property subsists as already has been observed hereinabove. Rerence may be made to the case of Sarakhi Abdul Rahiman Taragan and another v. Mohidin Pathammul Bivi and another (XXXII Indian Cases 83).
34. ' It is also settled law that the plaint in the suit cannot be rejected partly if it is found barred by law only again some of the defendants or if some of the plaintiffs are found not entitled to enforce the relief. Such pleas are to be decided at the trial. It is well-settled law that for rejection of the plaint, the Court has to confine itself to the contents of the plaint, taking them to be true and correct, and cannot look into the pleadings of the other side.
35. It was also contended by the learned counsel for the said defendants that, the proceedings of this suit are liable to be stayed as Suit No,168/1979, filed by Mst. Amtul Rauf for administration, rendition of account and partition of various properties owned by the parties is pending before this Court.
36. The learned Advocate for the plaintiffs urged that the above suit is not between the same parties.
37. Some of the plaintiffs and defendants in the present suit are not parties in the said suit and some of the defendants in the said suit are not parties in the present suit. Section 10 of the Code comes into operation only when the matter in issue is also directly and substantially in issue in the previously instituted suit between the same parties. Stand taken by the learned counsel for the plaintiffs as stated above was not controverted by the learned counsel for the said defendants.
38. Apart from above the previous suit being for administration of properties of the deceased Mahboob Bux, it cannot be said that issue involved in this suit like the purchase of share of third party is directly and substantially in issue in the said suit. The above plea is, therefore, overruled.
39. ' C.M.A. No, 1939/1992 is, therefore, dismissed.
40. CMA No, 681/1992.-- The plaintiffs have claimed joint ownership and management of the property whereas the said defendants have denied the ownership of the property to the extent claimed by the plaintiffs and have only conceded to such share to plaintiff No,1 as was inherited by him. It is, thereforce, to be first seen whether the plaintiffs are prima facie owners of the shares as claimed by them and they have been managing the property alongwith the said defendants. The learned Advocate for the plaintiffs in his arguments has mainly relied upon the documents filed alongwith the plaint and the affidavit in rejoinder.
41. ' The case of defendant No,1 is that he is the real owner of the entire share purchased from Muhammad Nacem, out of which 25 paisas share was purchased by him in the name of plaintiff No,1 who is only an ostensible owner and benamidar for him and his family membeRs, So also it is his case that the gift of 20 paisas share in the property by plaintiff No,1 in favour of plaintiff No,2 and further gift by plaintiff No,2 to plaintiffs Nos,3 to 7 were made under his directions and are benami in nature. Similarly it is claimed by him that his mother Mst. Zainab Khanam was not the real purchaser of the share of Mst. Quraishunnisa but it was purchased by him in the name of his mother and has termed the gift made by Mst. Zainab Khanam, in favour of plaintiffs as invalid.
42. ' The property was being jointly managed by plaintiff No,1 and defendant No,1. The rental income of the suit property was being deposited in current Accounts Nos,540 and 825 of United Bank Ltd. With its Inverarity Road Branch and Current Accounts Nos,4801 and 4802 with National Bank of Pakistan, Saddar Branch, Karachi. The fact that the bank accounts were being maintained by both the parties jointly, shows that the property was being jointly managed by both the sides. The plaintiffs have produced four letters, two dated 1-6-1982 and the other two dated 2-6-1982, informing the above bankers that thenceforth the accounts were to be joinity operated by plaintiff No,1 and his wife plaintiff No,2 and defendant No,1 and his son Rafiuddin, defendant No,2. They have also produced copy of letter dated 14-4-1986, addressed to the Manager of National Bank of Pakistan, Saddar Branch, which is signed by defendant No,1 and was also intended to be signed by plaintiff No,1 but he has not signed the same.
43. ' The plaintiffs have also produced letter dated 13-12-1984, addressed by defendant No,1 to plaintiffs Nos,1 and 2 warning them about the hindrances created by them by refusing to sign the cheques for the amount required to be paid towards the dues and wealth tax which were piling up and the consequent imposition of fines, penalties and penal interest that might be levied and holding them liable for the same. The rent receipt dated 31-3-1982, issued to the tenant acknowledging the receipt of rent is jointly signed by plaintiff No,1 and defendant No,1 and receipt dated 5-5-1984 is jointly signed by plaintiff No,2 and defendant No,2. The plaintiffs have produced nine rent receipts dated 22-12-1971, 29-2-1972, .4-5-1972, 3-2-1973, 10-5-1973, 16-1-1974, 9-5-1974, 8-12-1974 and 8-8- 1987, in all these receipts alognwith defendant No,1, his wife and mother and others including plaintiffs Nos,1 and 2 and so also defendant No,15 are shown as owneRs, ' Other set of 51 rent receipts, issued to various tenants in the year 1974, have been jointly signed by plaintiff No,2 and defendant No,2. The rent acknowledged in the said receipts appears to have been deposited by the tenants with National Bank of Pakistan in Account No,4802. The 13 rent receipts pertaining to the years 1982, 1983 and 1984 have been signed jointly either by plaintiff No,1 and defendant No,1 or by plaintiff No,2 and defendant No,2 or by plaintiff No,1 and defendant No,2. Six rent receipts pertaining to the year 1980 have been signed by plaintiff No,1 alone.
44. ' Alongwith the rejoinder affidavit the plaintiffs have filed statement of the income of Azeem Market and the shares payable to the 32 joint owners which include the names of all the plaintiffs also. The above statement pertains to the period from 1-7-1989 to 30-6-1990 for the accounting year 1990-
91. The said statement is signed by defendant No,1. Mr. Muhammad Asar Hussain, Advocate had sent notice dated 4-2-1980 to a tenant under sections 18 of the Sindh Rented Premises Ordinance, 1979 on behalf of all the owners in which again the plaintiffs are shown as owners of the property.
45. The two notices dated 23-11-1970, sent by Mr. Shabbir Ghouri, Advocate to the tenants on behalf of the owners also disclose the names of plaintiffs Nos,1 and 2 as owneRs, It further confirms that Mst.
46. Quraishunnisa Begum sold her share to Mst. Zainab Khanam and the 50% share of Muhammad Nacem was purchased by plaintiff No,1 and defendant No,1. Same is the case with notice dated 28- 6-1976 which was sent by defendant No,1 to the tenants in which it is stated that up to 30-6-1972 there were 10 owners, including Mst. Zainab Khanam, Aziz Bux, plaintiffs Nos,1 and 2 and other sons and daughters of deceased Mahboob Bux. It gives the names of the donees, to whom the property was gifted by plaintiff No,2, namely, her two minor daughters and two minor sons, and the donees, to whom some shares were gifted by defendant No,3, the wife of defendant No,1. The donees are three sons and five daughters of defendant No,l. It also gives the names of the persons on whom the share of late Aziz Bux devolved. Finally it gives the names of in all 29 persons who are the owners of the property by gift and inheritance.
47. ' The plaintiffs have also relied upon the pleadings in various suits. Alongwith the plaint they have filed written statement filed by defendant No,1 for himself and others including plaintiff No,1 in Suit No,168/1979, in which he has stated that 50% share of Muhammad Nacem was purchased by plaintiff No,1 and defendant No,1 out of their own personal funds through Conveyance Deed dated 3-10-1969. Defendant No,1 in his deposition in Rent Case No, 1022/1971 stated that he and plaintiff No,1 had purchased 50 paisa share from Muhammad Naeem on 3-10-1969. It is further deposed by him that his mother Mst. Quraishunnisa sold the share inherited by her to Mst. Zainab Khanam. In the affidavit filed by defendant No,1 in support of an application in F.R.A. No, 737/80, he has described himself and plaintiff No,1 as the co-owneRs, It may be stated that this assertion has been made in respect of the rent case filed in the year 1978. Alongwith the affidavit-in-rejoinder they have brought on record photostat copies of the plaints in Suits Nos, 109/1979 and 391/1983, filed by United Bank Ltd which also show plaintiffs Nos,1 and 2 as owners of the property in suit which was mortgaged with the said Bank. Copy of the letter dated 20-12-1990, addressed by plaintiff No,1 and defendants Nos,1 and 15 to the President, United Bank Ltd., which bears the signature of defendants Nos,1 and 15, which is though not signed by plaintff No,1 but bears his name. This letter refers to the losses suffered to the extent of Rs,1.65 crore in respect of the property in suit.
48. ' The explanation given by defendant No,1 with respect to the letters written to the banks for operating the rent account jointly by plaintiffs Nos,1 and 2 and defendants Nos,1 and 2 is that some employee of defendant No,1 had started forging his signatures. The above explanation prima facie is not such as would inspire any confidence. Such situation could have been obviated by many other means and in case it was necessary to operate account under two joint signatures, he could have opted to join his wife or son. The letters written to the Banks already show that accounts were to be operated jointly by both the contesting parties, through their representatives, from plaintiffs' side either by plaintiff No,1 or 2 and on the said defendants' side either by defendant No,1 or 2.
49. Similarly with regard to signatures on the rent receipts the only explanation offered in the further affidavit is that the plaintiffs Nos,1 and 2 used to sign the receipts as agents of defendant No,1 which is hardly convincing and on the contrary the plea is incongruous. If the receipts have been signed by the principal himself, there would be no need of signature of the agent thereon. The receipts also indicate that like the bank accounts that were being jointly operated, property also was being jointly managed by both the aforesaid sides. Defendant No,1, however, has given no explanation whatsoever with regard to admission by him of the co-ownership of the plaintiffs in the suit property in various Court proceedings, yearly statement of account of the income of the suit property, detailing the shares payable to each co-owner and so also the various notices sent under section 18 by the Advocates of the parties to the tenants wherein the names of plaintiffs have also been mentioned as owners of the property.
50. ' The case set up by the said defendants that the plaintiffs are only ostensible owners of the property and that defendant No,1 is the real owner, under the above circusmtanccs cannot be accepted at this stage, merely for the reason that he has been in possession of the sate-deeds executed in favour of plaintiff No,1 and Mst. Zainab Khanam, even if one were to believe the said version. No doubt, payment of sale consideration and possession of title documents are relevant considerations for proving the benami transaction, but are not the conclusive ones. Even at that the above two factors are yet to be proved. There are several other considerations which are also to be proved before accepting the plea of benami ownership. The plaintiffs have been able to prima facie show that the property was being jointly managed by them with the said defendants.
51. ' The averments made by defendant No,1 in the written statement in Suit No, 168/1979 prima facie destroy the case set up by the said defendant. It is stated by him that the 50% share of Muhammad Naeem was jointly purchased by him and Moinuddin, plaintiff No,1 out of their personal funds and that he, Moinuddin and Sualeheen are in exclusive possession and controlling the managment of the suit properties which include Azeem Market, the suit property. Similarly, in the said written statement he has stated that the shares of Mst. Quraishunnisa were purchased by Mst.
52. Zainab Khanam. It is nowhere stated that he was actual purchaser of the said shares. No plea of benami transaction was taken. The above plea and that of exclusive management of property by defendant No,1 has been taken by him for the first time in Suit No, 373/1985 apparently as an afterthought. The above written-statement was filed on 31-12-1980 and is signed and verified on oath by defendant No,1. In face of the overwhelming material on record, which indicates that the property in suit was being jointly managed and the statement of account which shows that the parties were sharing the profits in accordance with their respective shares, it cannot be said that the plaintiffs have failed to make out prima facie case, as contended by the learned counsel for the said defendants.
53. ' The statement of account shows that the plaintiffs own more than 30% share and defendants Nos,1 to 8 and 10 to 12 about 29%. The present application is being resisted only by defendants Nos,] and 8 and 10 to 12, rest of the defendants, who own nearly more than 40 paisas share in the suit property, have not come forward to contest this application.
54. ' The suit property is in absolute control of defendant No,1 and the rent is being realised by two of his children to circumvent the injunction order passed in Suit No,373/1985. The said defendants by denying the title of the plaintiffs, have declared their intention not to pay to them their due share in the income of the property. The record prima facie shows that the property was being jointly managed and looked after by both parties but the said defendants have deprived the plaintiffs of participation in the management of the property. The parties are at daggers drawn and are involved in litigation among themselves. Several tenants are depositing rent in Courts.
55. ' Under the above circumstances it was contended by the learned counsel for the plaintiffs that the property is in danger of being wasted and dissipated and, therefore, it would be just, convenient and equitable to appoint receiver. The learned Advocate for the said defendants has opposed the application on the plea that the plaintiffs are owners of very small share and there is no likelihood of the property being wasted, which assertion prima facie does not appear to be correct.
56. ' The learned counsel for the said defendants relied on the case of Abdus Samad Khan and others v. Moulvi Abdullah (1989 CLC 1563) in support of his contention that defendant No,1 being the benami owner of the majority shares, standing in the names of the plaintiffs, the appointment of receiver will not be just and convenient and the Court should accept the ownership of all the said shares as vesting in the defendants, particularly when the sale-deeds show that the consideration for purchase of the shares in the names of plaintiff No,1 and Mst. Zainab Khanam was paid by defendant No,1 and he also remained in possession of the sale-deed, pertaining to the purchases in the name of plaintiff No,1 till it was deposited in the bank for borrowing loan and continues to be in possession of the sale-deed executed in favour of Mst. Zainab Khanam. It was further urged by him that defendant No,1 has been continuously from the very beginning managing the property exclusively. Under these circumstances the appointment of receiver will not be just and convenient.
57. In the authority relied upon by him, the Court had found that by preponderance of evidence it was established that the bid money for purchase of the property in auction was paid by the plaintiff and he had been dealing with the property through the years as an owner and thus was the real owner. Such finding was returned at the conclusion of trial. But in so far as the present case is concerned, defendant No,1 in various judicial proceedings, as already observed above, has admitted payment of consideration by plaintiff No,1. In Rent Case No,1022/1971, also it was deposed by him that plaintiff No,1 had purchased 50 paisas share from Muhammad Naeem and that Mst.
58. Quraishunnisa had sold the share inherited by her to Mst. Zainab Khanam.
59. ' On execution of registered sale-deed, the vendee becomes the owner of the property and a very strong presumption exists in favour of plaintiffs. It is for defendant No,1 to rebut such presumption at the trial. For the time being, the above presumption is reinforced and strongly supported by bulk of documents, referred to hereinabove, to atleast prima facie hold that defendant No,1 and Mst.
60. Zainab Khanam were/are the owners of the respective shares purchased by them.
61. ' Defendant No,1 in his counter-affidavit has pleaded that plaintiff No,1 had gifted 20 paisas share in favour of plaintiff No,2 under his directions who had gifted some portion in turn to other plaintiffs again on his directions.
62. ' The concept of benami transactions is peculiar to Pakistani and Indian law. It is confined to sale and purchase; when sale is affected in the name of a person other than the real and actual purchaser. Neither any law was pointed out, nor there is any law or principle of law that may warrant application of the said concept to gifts. A gift cannot be benami in nature. The concept of gift essentially pertains to the domain of Islamic Law. Once a donor has divested himself of his rights in the property by Hiba, it cannot be retrieved. If defendant No,1 was in fact real owner of the said share and had directed plaintiff No,1 to gift the property to plaintiff No,2, the donee became the owner and the title of defendant No,1 vanished, even if there was any.
63. ' The learned counsel for the said defendants relied on the case of Sheikh Muhammad Anwar v.
64. Sheikh Muhammad Iqbal and another (1984 CLC 103), in which it was held that a receiver can be appointed if prima facie title to property existed and strong case is made out.
65. ' In Mansoor E. Khan v. Sofia Mansoor Khan (1987 MLD 737), Saleem Akhtar, J. (as he then was, now Judge of the Supreme Court), in a suit where the property in dispute standing in the name of the defendant, was claimed by the plaintiff to be benami, appointment of receiver was ordered as the facts showed existence of a serious dispute between the parties. For the said reason, it was found just and convenient to appoint the receiver. Similarly, Nasir Aslam Zahid, J. (as he then was, now Chief Justice of this Court), while considering application for appointment of receiver in respect of the property where title was in dispute, in the case of Aftab Ahmed Mufti and others v. Mst. Seema alias Zarina (1988 CLC 1567), after scholarly analysis of catena of case-law, observed that it is just and convenient to appoint a receiver so as to preserve the property and also its income for the benefit of whosoever is or are found to be the owners of the property. The rule laid down in the above authorities are squarely applicable to the facts and circumstances of this case.
66. ' In the case of Ghazala Zakir v. Muhammad Khursheed and others (PLD 1989 Kar. 350), my brother Wajihuddin Ahmed, J., after referring to numerous authorities has observed that in a suit for administration of the property of a deceased person or for accounts in the partnership or by shareholders in a private limited company, for it partakes elements of partnership, property is normally involved and in such suits the requirements of rule 1 of Order XL are more satisfied than not, and, in principle, it is generally, just and proper to appoint receiver, if it appears necessary for the interest of the contestants.
67. ' The record prima facie shows that the plaintiffs and the said defendants have been managing the property jointly and subsequently the plaintiffs were ousted from the management and now the property is in the hands of defendant No,1 only who is adamant in denying the due share of the plaintiffs in the property. In Basant Ram v. Dasondhimal and others (AIR 1929 Lah. 497), it was observed that in all cases where a property is in the hands of one co-sharer and the share of the profits is withheld from the others, there is sufficient reason for appointing a receiver.
68. ' It has been noted above that the plaintiffs on the one hand and the said defendants on the other hand are at daggers drawn since a long time. Apart from Suit No,373/1985, Suit No, 168/1979, J.M. No, 43/1990 and J.M. No, 44/1990 between the parties are pending in this Court. It is also stated in the affidavit-in-rejoinder filed by plaintiff No,1 that even criminal cases are pending between the parties. In the case of Basant Ram (ibid), it is observed that when there are quarrels in the family and the conduct of the defendant has made it impossible for the plaintiff in the past and during the pendency of the suit to get his share of the harvest, and it seemed probable that in spite of any precautions taken by the Court, the plaintiff would not be able to secure his fair share in the income from the property so long as it remained in the hands of the defendant, the appointment of the receiver was considered just and convenient.
69. ' Keeping in view the quarrels, bickerings and serious disputes between the parties in this suit, I am of the firm view that appointment of a receiver in this case will be just and convenient.
70. ' The learned counsel for the plaintiffs also relied on the case Maqbool Hussain v. Haji Muhammad Ashraf (1991 MLD 1134). In this case the plaintiff, who was purchaser of the property, was put in possession thereof but subsequently was dispossessed by the defendant. The defendant sought injunction against the plaintiff restraining him from interfering with his possession and the plaintiff applied for appointment of receiver. The Court held that it would be just and proper to appoint receiver for preservation of property during pendency of the suit.
71. ' It is alleged that the said defendants are renting out shops on Pugree which they are misappropriating to their benefits. It is also alleged that the said defendants have opened another account in which rent is being deposited and no taxes are being paid. Defendant No,1 in his further affidavit has though denied the above allegations, but has not specifically stated that no shop was reined out by him on Pugree, nor he has placed any material on record to prima facie show that the rent was being deposited in the above-stated joint account of the parties or that taxes were being paid by him. The above coupled with the fact that the rent is being realised by the children of defendant No,1 sidestepping the injunction order, the bank has filed suit for recovery of money by sale of the mortgaged property and the due shares in the income of the property are not being acknowledged by the said defendants, overwhelmingly show that the property is in danger of being wasted and dissipated.
72. ' Reference may be made to the other authorities relied upon by the learned counsel for the said defendants.
(i) Anandi Lal and others v. Ram Sarup and others (AIR 1936 Allahabad 495): ' In this case the Full Bench of the Allahabad High Court on reference made, held that a simple mortgagee has no present right of possession and, therefore, the prayer for appointment of receiver was denied.
(ii) In Sitaram Kundanlal and others v. Pannalal Kundanlal and others (AIR 1957 Nagpur 1), it was observed that there should be no appointment of a receiver in cases of partition between members of a joint Hindu family, who were in separate possession of property which fact was not disputed from a long time.
(iii) Rasi Dei v. Bikal Maharana and others (AIR 1965 Orissa 20) also relates to joint Hindu family property. The trial Court had ordered appointment of receiver on the application of plaintiffs who were outsiders and had acquired by purchase only 3 acres out of 5,656 acres of land. The parties were in separate possession of their more or less respective shares and proceedings under section 145, Cr.P.C. Initiated by the plaintiff were pending. It was under the above circumstances that the High Court set aside the order of the subordinate Judge. It has been observed that appointment of receiver is recognised as one of the harshest remedies which the law provides for the enforcement of rights and is allowable only in extreme cases and in circumstances where the interest of the person seeking the appointment of the receiver is exposed to manifest peril.
(iv) In the case of M. Ataur Rehman Alvi v. Inamur Rahman (1974 SCMR 54), the plaintiff had failed to make out a prima facie title to the property in dispute, as none of the properties, for which apppointment of receiver was being sought, stood in his name. On the above facts it was held that the person bona fide in possession cannot be deprived of the properties by appointment of receiver.
(v) Mst. Muhammad Bibi v. Additional Settlement Commissioner, Khairpur -and 2 others (PLD 1976 Kar. 181). In this case Zaffar Hussain Mirza, J. (as he then was) refused the appointment of receiver in respect of the property in suit for the reasons that the person in possession of the property sought to be dispossessed, was in possession of land for 18 years and the appointment was sought merely on the ground that there would be difficulty in recovering profits of property in event of success of the petitioner.
(vi) In Mst. Ghulam Zainab and 7 others v. Mst. Tahira Sultana and 3 others (PLD 1977 Lahore 830), it was held that appointment of receiver fair property not sued for is without jurisdiction.
(vii) (vii) In Bakhtiar Khan and 2 others v. Rahim Bux and 2 others (PLD 1978 Kar. 410), the applicant seeking appointment of receiver had made bald allegation that the land in suit was under waste in hands of defendants, without giving any instance whatsoever and it was held that such allegation is hardly sufficient to show that land is in danger of being wasted and accordingly the order appointing the receiver was set aside.
73. ' None of the above authorities in any manner advances the case of the defendants, as in this case, neither the parties are in separate possession, nor it can be said that the plaintiffs have failed to show prima facie title to the property, nor it is prima facie established that the said defendants or defendant No,1 has been in exclusive possession, control and management of the suit property, nor suit is based on bald allegations.
74. ' To sum up: the plaintiffs are the co-owners of a substantial share and have always been associated with the control and management of the suit properties, were dispossessed from such de facto management by the said defendants who were denying the due share of the plaintiffs and are depriving them of their due share in the suit property, exact share of the different parties in the suit is in dispute and is to be resolved, the said defendants have prima facie circumvented the order passed by this Court in Suit No,373/1985, various tenants are depositing rent in the Courts, the property in suit is already subject-matter of litigation in suits filed by the banks for recovery of loans, the parties are at daggers drawn and are involved in litigation among themselves. L Defendant No,15 has supported the application under consideration and defendants Nos,9, 13, 14 and 16 to 24 have not come forward to contest the application. Under the above circumstances the property is in danger of being wasted and dissipated and as held above it is only just and convenient and also in keeping with the equitable principles that for preservation of the property, receiver be appointed. I accordingly appoint Mr. Bashir Ahmed Memon, the Official Assignee as receiver of the suit property. It is, however, observed that if any receipt is to be changed or any vacant premises is to be let out, the receiver will do so after consultation with the respective representatives of the plaintiffs, said defendants and the remaining defendants and in case if such representative is not appointed, the receiver will do so after consultation with plaintiff No,1 and defendant No,1 and if they or any of them is non-cooperative, permission will be sought from the Court.
75. ' The application is allowed accordingly. It is made clear that the observations made in this order are tentative in nature and shall not prejudice any party at the trial.