' The appellants who claim to be reversioners of Sultan Ali Shah, filed an Administration Suit on 4th of July. 1963, against the present respondents. The suit land in this case is 301 kanals described in the plaint situated in Chak No, 465 Tehsil Samundari District Lyallpur, and Chat No, 19/G. B. Tehsil and District Sheikhupura and an Ihata situated in Chak No, 465 Tehsil Samundari District Lyallpur.
The suit land was gifted by Mst. Fazal Bibi (hereinafter called the donor who died on 14th of December, 1962) on 19th of January, 1960, in favour of the respondents; who are her daughter's sons, by a deed registered before the Sub-Registrar, Samundari, District Lyallpur. In the plaint it is claimed that the donor being a widow of Sultan All Shah, was only a limited owner having only a life estate and had no authority either to sell, mortgage or gift the suit land. This was controverted in the written statement wherein it was alleged that the donor was a complete owner of the entire property and had the right to alienate in any manner she wanted. It was averred in the plaint that the donor never executed a gift deed nor she ever appeared before the Sub-Registrar or, before the Revenue Officer for the purposes of mutation. Even if she did so, the gift was invalid that the respondents are in possession of the suit land that no child of the donor from Sultan All Shah is alive ; their only daughter died inter vivo ; the respondents are the sons of predeceased daughter, therefore, the plaintiffs appellants are entitled to 3/4th share and the respondents are entitled to 1/4th share only.
' The above contentions of the appellants were controverted. The respondents maintained that the gift was valid and executed in accordance with law and possession was delivered to them. The respondents denied that the plaintiffs are the heirs of Sultan Ali Shah. They further denied that their mother had died during the life time of her father and at the time of the making of the gift, the donor was in her perfect condition that the plaintiffs had no claim to any share of the property. The prayer of the appellants in their plaint was that the decree of administration may be passed in regard to the suit property whereby they should have 3/4th share of the suit land by partitioning it, and any other relief which may be deemed proper.
3. On the pleadings of the parties, six issues were framed of which the first two were
(1) Whether the oat in its present form is maintainable ? (it) If not, what is the proper form ?
' The decision of the Courts below has been given on these two issues only. Both the Courts below have held that the suit was not maintainable in its present form and was dismissed. The trial Court held that the substance of the suit was to declare alienation made by the donor invalid, whereas the respondents were interested in upholding the alienation. The following rulings, namely, Syed Mehdi Husain Shah v. Mst. Shadoo Bibi and others Oh Umar Draz All v. Khurshid Ali and others (2) and Akbar and others v. Mst. Rabia Bibi and others (3) relied by the plaintiffs' counsel were not attracted to the present case, whereas the learned Civil Judge held that Mst. Muhammad Zamani Begum and another v. Fazal-ul-Rehman and another (4) was squarely applicable which held that while in an administration suit a Court could determine whether certain alienations were or were not in fact made, but in the same suit the validity of such alienation could not be questioned.
4. Learned counsel for the appellants relying on PLD 1962 SC 291 and AIR 1943 Lab. 241 (referred to above) and Mahbub Alam v. Razta Begurn and others (5) has argued that in his plaint, inter alia, the plaintiffs had challenged not only the validity but the factum of the making of the gift. That being so, the ruling quoted above by the Courts below, viz. A 1 R 1943 Lah. 241 was in his favour.
5. I have gone through the entire plaint of the plaintiffs. En passant the making of the gift has also been challenged. But pith and substance of the plaint seems to be that since the donor was a limited owner, and had no authority to make the gift therefore, the gift is invalid and the possession of the respondents had no warrants of law. That being the case, the above ruling is squarely against the appellants. In fact, basically the suit of the appellants is for possession of 3/4th of the suit land this claim cannot be adjudicated unless the validity of the gift is adjudicated upon. That being so, AIR. 1943 Lah. 241 is squarely applicable.
6. The language of Order XX, rule 13, C. P. C. Which deals with the administration suits suggests that in an estate of the deceased all persona who could be possibly interested as plaintiffs or as defendants may be impleaded so that their respective shares could be proportionately determined, Mulla in his Code of Civil Procedure (Vol. II, 1976 Edition) in the commentary at page 1401 gives a category of persons who can maintain (1) PLD 1962 SC 291 (2) PLD 1960 Lah. 834 (3) P LD 1957 Lah. 588 (4) AIR 1943 Lah. 241 (5) PLD 1949 Lab. 263 administration suit, as (t) creditor of the deceased, (ii) legatee, (iii) next-of kin and (iv) executor or administrator. PLD 1962 SC 291 assumes that in an administration suit the Court performs the functions of administrator which will realise the assets of the deceased for the discharge of his debts and legacies and will take an account of the income of the property and will distribute the assets amongst those entitled to it, and for discharging this duty and to completely adjudicate upon and settle law questions, any person whose presence is deemed necessary, is impleaded. (Reference Order I, rule 10, C. P. C.). It is laid down that an administration suit is not a suitable remedy for getting possession from those who claim property in their possession in their own right. But if the person in possession claimed the suit property either as heir or under a will, then it may be adjudicated in an administration suit.
In the present case, the claim of the respondents is based upon gift and not on a will, and in their own right being in possession.
7. Basically, the appellants' case is that the gift made by the donor is invalid and the respondents' claim is that it is valid. Such a suit is definitely not within the campass of Order XX, rule 13, C. P. C.
The reasoning's given in Mehdi Hussain Shah's case (referred to above) are not in part materia with the present case nor the ratio of that case in any way supports the plaintiffs' case.
8. Reliance has been placed on Mahbub Alain v. Hist. Rada Begum by the learned counsel. This case is based on the ratio that on the demise of the propositus it is the fundamental right of a Muslim heir to demand partition of the property and if the choice was to file an administration or a partition suit, the former is to be preferred. In that case, there was a family dispute and the plaintiff had filed his suit for administration against his three brothers and a sister regarding the estate left by their father who had died in 1913 and their mother who had died in August, 1945, both of whom had left behind considerable property. In this ruling, the scope of Order XX, rule 13 read with section 9 bad been examined. The facts of that case are not at all in part material with this case. In that case, the children of the propositus were inter alia disputing with regard to their respective shares as brothers and sister. No one had challenged the status of the others as heirs of the propositus. In the present case, inter alia, the respondents do not accept the status of the appellants as heirs of donor or of Sultan Ali Shah. Therefore, under no circumstance, the present suit can be termed as also a family affair. The ratio decidendi of the above case is applicable in the present case.
9. For the reasons above given, I see no merit in this appeal which is dismissed with costs.