By this application plaintiffs claiming to be shareholders in the property of their deceased brother Khawaja Muhammad Iqbal who died on 12-2-1993 leaving behind a widow i.e. Defendant No. 1 and daughter i.e. Defendant No.2 seek an order restraining defendants Nos. l to 3 from transferring or encumbering industrial as well as parting with possession of Plots Nos. 130 and 131 situated in sector 24 Korangi Industrial Area and half undivided share in bungalow No.59/F, Block-6, P.E.C.H.S., Karachi till the decision of the suit.
2. It is the case of the plaintiffs that the plots in suit were purchased by the deceased in the name of defendant No. 3, his real brother whereas aforesaid bungalow in P.E.C.H.S. Was purchased by him in the name of his wife to the extent of 50 paisa share and remaining 50 paisa share was purchased by Mst. Abida Sultana wife of defendant No.3 which were Benami transactions. Since the deceased left no son to inherit his estate, plaintiffs being his real brothers alongwith defendants No. 3 and 4 claim to be entitled to their share in the Property purchased by the deceased in the name of his wife and his brother according to the Muslim Personal Law.
3. Relief claimed in the suit relates to declarations and permanent injunction restraining the defendants from alienating or encumbering the property and parting with the possession thereof in any manner. They have also prayed for joint possession of the property of the deceased partition and accounts.
4. Suit itself as well as C.M.A. Seeking temporary injunction have been resisted on behalf of defendants Nos. l and 2 who have filed separate written statements as well as counter-affidavits. It is said that defendant No. 3 purchased Plot No. 130 from Rock 'Field Traders in 1965 through an agreement of sale which was accepted by the K.D.A and property transferred in his name. Likewise Plot No. 131 was allotted in favour of I.K. Traders on 16th July, 1965 by K.D.A who transferred the same in favour of defendant No.3 vide registered lease deed dated 2-11-1969. As regards Bungalow No.59/F P.E.C.H.S., the same was purchased sometimes in 1973 in equal shares in the name of defendant No. 1 i.e. Wife of the deceased and Mst. Abida Sultana wife of defendant No. 3.
5. It may be pointed out that the defendant No. 3 in his counter-affidavit has supported the plea raised by the plaintiffs to the effect that both the Industrial plots were purchased in his name by deceased Muhammad Iqbal who also purchased half undivided share in Bungalow No. 59/17 P.E.C.H.S. In the name of his wife i.e. Defendant No. 1 and was residing with her in half of the portion of the bungalow. He has also stated about partnership in business with the deceased from 1975 to 1987 whereafter partnership was closed and both Industrial plots came to the share of the deceased as owner.
6. It further transpires from the pleadings of the parties that on the strength of unregistered general power of attorney executed by defendant No. 3 in favour of defendant No. l the latter entered into an agreement of sale with her daughter defendant No. 2 with regard to both the Industrial plots for a consideration of Rs.15,00,000 vide agreement dated 24-6-1993. It is further said that subsequent to this agreement defendant No. 2 has entered into an agreement of tenancy with Multi-Chem Limited in respect of both the Industrial plots but the stand taken by defendant No.3 in his counter- affidavit is that he never parted with the possession of both the Industrial plots. It further transpires that by public notice published in Daily "News" dated 1-8-1994 defendant No.3 cancelled the power of attorney executed by him in favour of defendant No. 1.
7. Upon hearing learned counsel for the parties and without touching the merits of the rival claims raised by each of them, in my view the following questions would arise at the trial:
(i) Whether deceased Khawaja Muhammad Iqbal purchased the property in suit in the names of his wife and brother as Benami?
(ii) Whether the recorded owners of the property are actual owners of the property in suit or the real ownership vested in the deceased?
(iii) Whether defendant No. l acted in excess of her authority by entering into an agreement of sale in relation to the Industrial plots in favour of her daughter?
(iv) Whether the agreement to sell between mother and daughter is a fake transaction?
(v) Whether the plaintiffs and defendant No. 3 are in collusion with each other?
(vi) What is the affect of delay in challenging the transaction on the part of the plaintiffs?
8. In view of foregoing issues to arise for decision in my view a good prima facie case for passing of interim orders is made out in order to preserve the property and to safeguard the interests of the parties to suit. At any event an arguable case has been made out which requires determination at the trial. For these reasons, I would direct defendants Nos. 1 to 3 not to deal with the property or place it under encumbrance or to part with possession thereof till further orders of the Court. This disposes of aforesaid C.M.A.
C.M.A No.3526 of 1994.