This judgment shall deal with and decide Civil Revision No,1565 of 1995 and Civil Revision No,809 of 1991 being between the same parties and relating to the same subject-matter. Civil Revision No,809- of 1991 arose out of preliminary decree passed in the suit for administration of Abdul Karim deceased, while Civil Revision No,1565 of 1995 arose from final decree dated 29-5-1991, passed in the same said suit.
2. Abdul Karim was allotted and transferred Houses bearing Nos,62 and 64 in Infentary Bazar, Lahore Cantt. by Settlement Authorities Abdul Karim died issueless on 17-7-1966. His widow i,e, Mst.
Rasoolan Bibi, on the basis of purported will dated 5-7-1966 in her favour by late Abdul Karim obtained declaration as successor to the assets of Abdul Karim and on that basis secured amendment in her favour in Settlement Record by order dated 22-4-1968 passed by Deputy Settlement Commissioner Centre-VI, Lahore.
Mst. Rasoolan Bibi thereupon transferred Houk No,64 to Muhammad Qasim petitioner through registered sale-deed dated 14-4-1969 at a sale price of Rs,2,000. House No,62 was bequeathed by her in favour of Anjuman Islamia Lahore Cantt. (respondent No,5) and also transferred possession thereof to the said respondent. This property is in occupation of Hazrat Jamal i,e, respondent No,7 as tenant of respondent No .5.
3. Mst. Rasoolan Bibi died on 10-1.1- 1969. On 14-4-1962, Abdul Ghani i,e, predecessor-in-interest of respondents Nos,3 and 4 i,e, Abdul Ghafoor and Mst. Zubaida, tiled a suit against petitioner, Muhammad Qasim. Anjuman Islamia (respondent No,5) and its tenant Hazrat Jamal (respondent No,7), for administration of the property of the deceased and for mesne profit, claiming himself to be the real brother of deceased Abdul Karim (husband of late Rasoolan Bibi).
Said Abdul Ghani in his plaint set out pedigree-table and claimed that deceased Abdul Karim (who died on 17-7-1966) had two brothers namely the plaintiff Abdul Ghani and Ramzani. Since Ramzani also died issueless in India before partition, therefore, Abdul Ghani claimed 3/4th share of the property of deceased as his real brother and asserted that Mst., Rasoolan Bibi as widow is only entitled to 1/4th share of the estate of the deceased. It was further pleaded by said Abdul Ghani in the plaint that Mst. Rasoolan Bibi had no right or authority to sell and transfer House No,64 to petitioner Muhammad Qasim and that respondent No,5 Anjuman Islamia was illegally occupying House No,62 without any title or right therein and induction of respondent No,7 as tenant therein was also illegal. Abdul Ghani, as such, challenged sale of House No,64 to petitioner by Mst.
Rasoolan Bibi on the ground that the same is beyond her 1/4th share as well as occupation by Anjuman Islamia of House No,62 and claimed accounts in administration of the said property being in possession respectively of petitioner and respondents Nos,5 and 7.
Said Abdul Ghani, plaintiff, died on 19-1-1973 and his legal heirs were substituted as plaintiff out of whom Abdul Ghaffar and Abdul Waheed also died, wherefore, their respective legal heirs became respondents in the present civil revisions alongwith other surviving legal heirs of Abdul Ghani.
4. Plaint was amended from time to time, to incorporate the legal heirs of Abdul Ghani and those of his sons expiring during the pendency of the suit. Petitioner submitted his written statement, wherein maintainability of the suit for administration was also challenged on the basis that suit for administration lies only for distribution of admitted assets of the deceased amongst the legal heirs of a deceased person, but such a suit was unmaintainable, where questions of title of the properties require determination qua non-heirs of the deceased. Petitioner in his written statement also challenged status and locus standi claimed by the original plaintiff Abdul Ghani as real brother of the deceased. By order dated 25-2-1980, the then learned Civil Judge, upon preliminary issues held Abdul Ghani to be real brother of deceased Abdul Karim vesting with locus standi to file the suit. Upon settlement of this issue of locus standi, the learned Civil Judge framed following issues on merits as well as on maintainability of the suit:--
(1) Whether order of D.S.C. dated 22-7-1968 regarding amendment of P.T.O. and P.T.D. in favour of Mst. Rasoolan Bibi is null and void and without jurisdiction and outcome of fraud? OPP (2)Whether the transfer of House No,64 in the name of defendant No,1 was illegal, void and has no effect on the plaintiff's right? OPP
(3) Whether defendant No,2 is occupying House No,62 without any title? OPP
(4) Whether the defendant No,1 is in possession of article mentioned in para.7 of the plaint? OPP
(5) What are the mesne profits of the property in dispute? OPP
(6) Whether the plaintiffs are entitled to property left by Abdul . Karim and Mst. Rasoolan Bibi? OPP (6-A) Whether the defendants Nos,2-A to 2-C are severally and jointly and personally ' liablewith other defendants to render account of suit property? OPP (6-B) Whether the suit is time-barred against defendant No,4? OPD (6-C) Whether the suit is maintainable? OPD
(7) Relief.
5. Parties led their evidence. Learned Civil Judge by judgment and decree dated 9-4-1989 decided Issues Nos,1 and 6 in favour of the plaintiffs/respondents and answered Issues Nos,4, 5 and 6-A against them. Issues Nos,6-B (limitation) and 6-C (maintainability of the suit) were held against petitioner and other defendants while Issue No,3 (Anjuman Islamia's occupation of House No,62) was held against the said defendant/respondent No,5. Abdul Ghani (represented through his legal heirs) was held to be entitled to 3/4th of the share in the estate of the deceased while Mst.
Rasoolan Bibi was held to be entitled to 1/4th share as widow, in the estate of the deceased. On the basis of 1/4th share of Rasoolan Bibi in both the houses i,e, Houses Nos,62 and 64, learned trial Judge observed on Issue No,2 that clubbed together, Rasoolan Bibi was competent to sell only one-half share of House No,64 at maximum to the petitioner and transfer through sale-deed (Exh.D.1) in favour of the petitioner/defendant in excess of one-half of the said property was invalid thus transfer of House No,64 to the extent of one-half to petitioner/defendant was declared to be valid.
6. The learned Civil Judge held amendment of P.T.D. in favour of Mst. Rasoolan Bibi to be illegal and without jurisdiction and also adjudged the pwrponed will in favour of Rasoolan Bibi to be illegal and unlawful. He further held oral bequest of House No,62 and transfer of its possession by Rasoolan Bibi to Anjuman Islamia (respondent No,5) to be without any legal right thereby holding respondents Nos,5 and 7 to be illegal occupants without title of the said property. On the question of maintainability, the learned Civil Judge held that the suit for possession and administration was competent, therefore, he issued a preliminary decree on 9-4-1989 in favour of the plaintiff to the extent of their 3/4th share. This decree was challenged by the petitioner in appeal which was dismissed and he filed Revision Petition No,809 of 1991. titled Muhammad Qasim v. Abdul Ghaffar and others.
7. The Local Commissioner reported House No,64 to be indivisible whereupon, sale of the said property and distribution of sale price between the parties was directed and final decree was issued through judgment and decree dated 29-5-1991. Appeal and cross-objections in appeal were filed against the preliminary decree. Learned Appellate Court through judgment and decree dated 20-4-1991 partially modified trial Courts' findings on Issue No,2 by adjudging that Rasoolan Bibi was entitled to 1/4th share in the estate and could, therefore, transfer only 1/4th of House No,64 to petitioner Muhammad Qasim instead of one-half, as observed by the, learned trial Court. The preliminary decree and this part of the decree was challenged in Civil Revision No,809 of 1991.
Learned Additional District Judge, Lahore, on appeal against the final decree dated 29-5-1991, dismissed petitioner's appeal and held him entitled to 1/4th share in House No,64 and upheld all other findings of the learned Civil Judge as contained in the preliminary decree as well as in the final decree. Petitioner Muhammad Qasim thereupon, filed Civil Revision No,1565 of 1995.
8. In view of the above. Civil Revision No,809 of 1991 and Civil Revision No,1565 of 1995. are being decided through a common judgment.
9. Learned counsel for the petitioner argued that upon transfer of House No,64 by the widow of the deceased on the basis of amended P.T.D. issued to her, suit for administration was not a proper suit to be filed by the respondents-plaintiffs against the petitioner etc. for administration of properties of deceased Abdul Karim and reliance was placed by him on number of judgments i,e, Syed Mehdi Hussain Shah v . Mst. Shadoo Bibi and others PLD 1962 SC 291, Mst. Ayesha Bai and another v. Mst.
Shahida and 4 others PLD 1981 Kar. 177, Muhammad Sarwar and 2 others v. Abdul Lateef and another PLD 1978 Lah. 391, Razia Begum v. Iqbal Begum and 7 others PLD 1957 (W.P.) Lah. 1040, Mahbub Alam v. Razia Begum and others PLD 1949 Lah. 263, Muhammad Younus Qureshi and 5 others v. Mrs. Feroze Qureshi and 2 others 1982 CLC 976. It was further contended by the learned counsel for the petitioner that none of the learned Courts below either adverted to the abovesaid judgments or decided this question property, wherefore, they failed to exercise jurisdiction vesting in them.
10.Contrarily, learned counsel for the respondents contended that preliminary issue as to the relationship of Abdul Ghani, predecessor-in-interest of the respondents i,e, the original plaintiff, was settled in favour of Abdul Ghani, who was declared by the learned Civil Judge through his judgment dated 25-2-1980 as the real brother of deceased Abdul 'Karim ' vesting with locus standi to file the suit. And that Abdul Ghani thus became entitled to 3/4th share of the property in dispute.
It was further contended that this finding was not challenged through appeal or revision and thereby became final and even otherwise the learned Courts below concurrently decided and rendered this finding in the final adjudication of the suit and appeal. It was further maintained by the learned counsel for the respondents on the strength of AIR 1963 Andh Pradesh 298 (V 50 C 93), Masiredi Surayanarayana v. Akula Anasuyamma PLD 1949 Lah. 263(b), Mst. Sharifan through Legal Heirs and another v. Nazimuddin and another PLD 1994 Kar. 135, Khawaia and another v. Nur Alam and others PLD 1953 Lah. .277 that suit for administration of the properties of the deceased as existing at the time of his death was maintainable and subsequent illegal transactions by his widow being ultra vires can form part of the administration of suit for the purposes of settling the title and assets of the deceased Abdul Karim. It was further contended that judgments and decrees of the subordinate Courts settled the justice of the case, wherefor, interference in revision by this Court can be denied even if the form of the suit was not proper.
11. Learned counsel for Anjuman-e-Islamia (respondent No,5) supported the case of the petitioner and prayed for the setting aside of the impugned judgments and decrees for the reason that possession and alleged bequest in favour of respondent No,5 in House No,62 had also been set aside and declared to be invalid by the leaned Courts below. It is, however, noteworthy that respondent No,5 neither filed an appeal against the decree of learned Civil Judge nor any other proceedings against the appellate decree as such impleadment of respondent No,5 in this revision petition by the petitioner is only formal and respondent No,5 does not have any locus standi or right to agitate against the impugned judgments and decrees.
12. Having considered the submissions of learned counsel for the parties and record, I am of the opinion that cumulative effect of the reading of judgments relied upon and referred to by the learned counsel for the parties is that the remedy of suit for administration is the most appropriate remedy for distribution of assets of prepositus amongst the heirs and to take account of properties and to settle the same upon the heirs in accordance with their respective share under Muhammadan Law. In the present case administration was sought by Abdul Ghani of the estate of deceased Abdul Karim, who admittedly died issueless on 17-7-1966 and was also admitted owner of the suit properties i,e, Houses bearing Nos,62 and 64. The Court determined the said houses to be the estate belonging to the deceased at the time of his death, available for distribution amongst his heirs. The learned Courts below declared alleged will in favour of Mst. Rasoolan Bibi i,e, the widow of deceased Abdul Karim and amendment by the Deputy Settlement Commissioner in P.T.D. declaring her as owner of the said house on the basis of will to be illegal and invalid. As stated above, the learned Civil Judge also declared through order dated 25-2-1980 Abdul Ghani to be real brother of deceased Abdul Karim. These findings of fact have been concurrently held by the Courts below and have not been seriously assailed by the petitioner in the present civil revision. In fact no arguments at all were addressed at the bar by the learned counsel for the petitioner on these concurrent findings of fact and no effort was made even to suggest that the said concurrent findings of fact by the Courts below were incorrect. The effect thereto is that Abdul Ghani i,e, the real brother of deceased Abdul Karim was declared and continues to be entitled to 3/4th share in the estate of the deceased Abdul Karim after sequestrating 1/4th share for widow i,e, Mst. Rasoolan Bibi. The learned Civil Judge in order to effect complete justice between the parties observed that petitioner (purchaser of House No,64) be allowed to hold Mst. Rasoolan Bibi's entire 1/4th share in the total estate of the deceased and Mst. Rasoolan Bibi's 1/4th share in each house if clubbed be together, shall be equal to 1/2 of one house as value of the two houses is admittedly almost the same. The learned Additional District Judge, however, in his impugned judgment upheld all the findings of law and fact pronounced by the learned Civil Judge but modified the decree of the learned Civil Judge by reducing petitioner's share in House No,64 to 1/4th as purchaser from Mst.
Rasoolan Bibi.
13. I am of the considered opinion that even if the form of the suit to challenge the sale-deed in favour of the petitioner was not proper, yet the result of any litigation in any other form of the suit will not materially change the nature of factual findings qua the shares between the parties and the entitlement of Abdul Ghani to 3/4th share in the estate of the deceased being his real brother and Mst. Rasoolan Bibi's 1/4th share as widow of the deceased. As such, I feel that interference through exercise of discretionary revisional powers of this Court in the impugned judgments and decrees owing to the technicality of form of the suit, will not advance justice of the case because there is no likelihood of a result on merits different from the findings set down by the learned Courts in this case. It will, therefore, be unjust to relegate the parties to another round of litigation on the same subject-matter and the same issues as involved in the present litigation which has already consumed about 30 years from Abdul Ghani's suit dated 14-4-1972. I am, therefore, not inclined to interfere in the impugned judgments and decrees passed by the learned Courts below except that to ensure complete justice between the parties, observations of the learned Additional District Judge, in para.18 of the impugned judgment dated 2-7-1995 are modified to the following effect:-- "Plaintiffs (heirs of the original plaintiff Abdul Ghani and respondents in this civil revision) are declared and held to be exclusive owners of House No,62 and co-owners in House No,64 to the extent of 1/2 share alongwith the petitioner Muhammad Qasim (defendant in the suit), who is declared to be owner of House No,64 to the extent of 1/2 share of deceased Mst. Rasoolan Bibi and sale-deed in his favour shall be valid only to the extent of 1/2 of the said house. Since Muhammad Qasim petitioner (defendant in the suit) is in possession of House No,64, therefore, he shall, upon execution of the decree, be given the first choice to purchase 1/2 share in House No, 64, belonging to the plaintiffs (heirs of the original plaintiff Abdul Ghani)."
14. These petitions are, therefore, disposed of with above observations and the parties are left to bear their own costs.