P L D 1975 Lahore 492 (PLP)

The review petitions were dismissed on 21-3-70 on the ground that review cannot be claimed as a matter of right and Sardar Wali Muhammad had denied having signed this will.

3. Sardar Muhammad Iqbal Khan, respondent No. 1 in F. A. O. No. 87 of 1972 and appellant in F. A. O. No. 152 of 1972 filed a suit on 28-11-70 for a declaration that the property in dispute was a joint property of the plaintiff and the defendant including Sardar Wali Muhammad and others respondents in F. A. O. No. 87 of 1972, and the plaintiff's share was 1/12 in this property. He also claimed rendition of accounts in regard to the income of this property. It is pleaded in the plaint that the parties were governed by custom before the enforcement of Shariat Act IX of 1948; that the property in dispute was ancestral and was jointly owned by the parties who were enjoying possession of the same; that Sardar Nur Muhammad used to manage this property; that sometimes more property was purchased or obtained on mortgage by him in his own name from the income of the ancestral property, cash and other movables, but he always admitted that this property was jointly owned by the parties; that on 5-5-1957 Sardar Nur Muhammad executed a will in which also he acknowledged that all this property was under his management and supervi sion as a Manager but all his brothers and nephews were entitled to it; that his brothers also signed this will as marginal witnesses admitting the correct ness thereof and that ultimately after the death of Sardar Nur Muhammad, on 2-12-62, at the time of Qul Ceremony, Sardar Wali Muhammad admitted the correctness of this will and promised to act upon it. Two applications were also made by the plaintiffs. One was for appoint ment of a Receiver under Order XL, rule 1, C. P. C. and the other for issuance of temporary injunction restraining Sardar Wali Muhammad from alienating the property or any part of it during the pendency of the suit. Both these applications were contested by Sardar Wali Muhammad. On 3-5-1972 the learned Civil Judge issued injunction on the ground that there was a prima facie case in favour of the plaintiff. He overruled the contention of Sardar Wali Muhammad that the suit was barred by time and the plaintiffs were out of possession of the property. It was held on the last point that possession of one co-sharer is the possession of all and if ultimately it is proved that the plaintiff is a co-sharer under the will he would be deemed to be in possession as co-sharer through Sardar Wali Muhammad. The learned trial Court, however, dismissed the application for appoint ment of a Receiver on the ground that the plaintiff had prayed for rendition of accounts and if he succeeds in this respect, Sardar Wali Muhammad would be liable to account for the produce of the land. In such circumstances, in the opinion of the learned Judge there was no necessity of the appointment of a Receiver as it would be a drastic step and would cause hardship to Sardar Wali Muhammad. Sardar Wali Muhammad has challenged the order of temporary injunc tion by F. A. O. No. 87 of 1972 while the order of dismissal of the applica tion for appointment of a Receiver by the plaintiff is challenged in F. A. O. No. 152 of 1972.

4. The learned counsel for Sardar Wali Muhammad argued that there was no prima facie case for the reasons that firstly the suit is barred by limitation and secondly the will is a forged document. He also argued that the will would be effective at most to the extent of 1/3rd and the temporary injunction could be issued at most regarding that portion of the property. Lastly he argued that the plaintiff would not suffer any irreparable loss and injury as the alienation, if made, will be hit by the principle of lis pendens. In this connection he submitted that Sardar Wali Muhammad would like to gift this property to his other heirs in order to take advantage of the Law Reforms Ordinance, 1972, and an application has been made for obtaining the necessary permission. He, therefore, contended that the fate of this application may be governed by this order. The learned counsel for the respondents on the other hand, argued that Article 120 will not apply to a case where the property is jointly owned by the parties and the proper Article will be either Article 123 or Article 1.44 of the Limitation Act; it cannot, therefore, the said that the suit is, in any way, barred by limitation. He also urged that for the purpose of deciding the question of limitation at this stage, only the plaint can be seen but it will appear from this document that the plaintiff had been claiming the property as a co-owner. He relied upon P L D 1956 Kar. 521 in support of his further argument that injunction can be issued in spite of the principle of lis pendens. For this he also relied upon Order XXXIX, rule 1, C. P. C. which contemplates temporary injunction against an alienation. Regarding the question of gift under the Land Reforms Ordinance, he submitted that the Government cannot take over this property for so long as this dispute is pending in the Court. He relied upon Articles 29, 30 and 31 of the Constitu tion of the Islamic Republic of Pakistan, 1973, and urged that these Articles make it the responsibility of each organ or authorities of the estate to administer the law according to Quran. He, therefore, argued that according to the Holy Quran the will must be first given effect to before the devolution of this property on the heirs. Regarding appeal of the plaintiff the learned counsel criticised the judgment of the learned trial Court. He argued that the only ground for dismissing the application for appointment of a Receiver is that the respondent Sardar Wali Muhammad shall have to account for the profits if ultimately the plaintiff succeeds in the suit. Regarding the argument of the learned counsel for Sardar Wali Muhammad about the non-genuineness of the will, he submitted that the signatures of Sardar Nur Muhammad can be compared with thousands of signature on the counterfoils of the receipts issued by him. It may be stated that he had brought a bundle of such receipts with him.

6. The learned counsel also founded an argument on section 247 of the Succession Act which provides for appointment of Administrator of the estate of the deceased under that Act, and on section 211 which makes provision for the vesting of the property in the executor. He urged that it is open to the plaintiff either to apply under the Succession Act and claim the remedy provided by section 247 of that Act or to apply under Order XL, rule 1, C. P. C. but the Court cannot interfere with the preference of the plaintiff in such a matter. He sought support from A I R 1952 Nag. 253 wherein it was held that the remedies provided by section 247 and Order XL, rule 1., C. P. C. are independent of one another and choice rests with the party con cerned. It was further held that the Court cannot interfere with this choice. He has also cited P L D 1947 Lah. 263 in which on the basis of Chapter IV verse 180 of the Holy Quran it was held that implementation of the will necessarily involved administration of the estate.

7. On the question whether this is a fit case for appointment of a Receiver, he relied upon P L D 1949 Lah. 60, A I R 1928 P C 49 and 1953 T C

228. In the last case the appointment of a Receiver was justified on the ground that the person in possession of the property had disputed the genuineness of the will The learned counsel also argued that the bank balance and income is being misappropriated by Sardar Wali Muhammad to his own use and no account is being retained by him.

8. In reply the learned counsel for Sardar Wali Muhammad submitted that the question whether the will is genuine is bet to be determined. He argued that there is no prima facie evidence that Sardar Wali Muhammad ever agreed to the arrangement made in the will at any stage after the death of Sardar Nur Muhammad. He contended that the conduct of the plaintiff himself shows that the point about the genuineness of the will was never taken in the grounds of appeal or revision. Alternatively, he argued that the will could be effective only to the extent of 1/3rd.

9. The learned counsel also argued that there was no danger of property being mismanaged and the income being not available. He submitted that there are no allegations of wastage and mismanagement in the application under Order XXXIX, rule 1, C. P. C., although such allegations are there in the application for temporary injunction. He added alternatively that if it is considered necessary to safeguard the interest of the plaintiff a direction can be issued to Sardar Wali Muhammad for maintenance of the accounts of the income of the property.

10. The question raised by the learned counsel for Sardar Wali Muhammad regarding limitation or genuineness of the will cannot be decided without evidence. At this stage the question of limitation can only be prima facie decided on the basis of the averments in the plaint which is based upon the allegation of co-ownership. Prima facie Article 120 of the Limitation Act is not applicable. Moreover, the patties had been contesting the same matter before the Revenue Officers. The limitation will, therefore, in a suit prima facie start even tinder Article 120 from the date when the last order of dismissal of review petitions was passed by the Board of Revenue.

11. The document relied upon by the plaintiff, although that purports to be a will. is primarily an acknowledgement of Sardar Noor Muhammad being a trustee of the property owned by his father Sardar Abdul Rahman and of his purchasing the further property from the income and profits of that property. It is also admitted that the income and profits of the property had already been deposited by him in his own name in different Banks and the plaintiff, his brothers and his other nephews were also legal heirs () entitled to this property. The allegation that the property was purchased from the joint income is repeated in the plaint, reverting to the alleged will. It is stated there that Sardar Majidullah, Sardar Hidayat Ullah, Sardar Muhammad Iqbal sons of Sardar Jamil Ullah were entitled to 1/4th, Sardar Azmat Ullah son of Sardar Amir Ullah to 1/4th, and Sardar Faqir Ullah and Sardar Wali Muhammad brothers to 1/2nd. This document purports to 'have been signed by Sardar Nur Muhammad as an executants and his brothers "Sardar Wali Muhammad and Sardar Faqir Ullah. Prima facie this docu ment is not so much a document of will as a document evidencing an ad mission that the entire property in dispute was joint property.

12. The main argument of the learned counsel for Sardar Wali Muhammad, in order to show that this document is prima facie forged, is that it was not relied upon at any stage either in the grounds of appeal or in grounds of revision filed before the Revenue Authorities. This argument is without any force as I have already shown that throughout the case of the appellants and petitioners before those authorities had been that Sardar Nur Muhammad was holding the property in trust and this was joint property. At the revisional stage, it was stated in the grounds of revision that the will was in possession of those petitioners. It prima facie appears that throughout the plaintiffs and his other co-appellants or co-petitioners before the Revenue Authorities had been trying to show that this was a fit case for remand to the Assistant Collector who had attested the mutation. When the Member, Board of Revenue based his revisional order on the ground that no such document was produced, the copy of the document was produced in the review proceedings. The non-production of the document cannot, therefore, ,prima facie lead to the conclusion that this document was forged later on. It may also be seen that this document does not purport to bear only the ,signature of Sardar Wali Muhammad but also the signature of Sardac Faqir Ullah. Sardar Faqir Ullah had died in the year 1958 as is apparent from the Pedigree-table filed by Sardar Wali Muhammad. The presence of his alleged signature, therefore, shows that the plaintiff does have a prima face strong arguable case.

13. Sardar Wali Muhammad had signed the written statement, power of attorney and an affidavit. In all these documents he has written himself as Wali Muhammad `only'. The signature on the alleged will is in the form "Wah Muhammad Baqalam Khud". The above signature prima facie appears to be of a person who had accustomed himself by practice to make that form of signatures. Although it my not be may province to compare these signatures but I cannot halt observing that the word "Wah" on the power of attorney does bear resemblance to the same word in the signatures on the disputed document. I, therefore, agree with the finding of the learned trial Court that the plaintiff has been able to make out a prima facie case. In fact, he has made out a strong case for consideration of his application for appointment of a Receiver. The alternative argument of the learned counsel for Sardar Wali Muhammad that in any case will can operate to the extent of 1/3rd, has not much weight in view of the contents of the disputed ,document. Prima facie it appears to be an acknowledgement or admission of the entire property being owned jointly by all the heirs of Sardar Abdi Rahman.

14. It appears clear that Wali Muhammad wants to alienate this property whether by a gift to his other heirs or in some other manner. Order XXXIX, rule 1, C. P. C. is, therefore, attracted to the case. It provides that where in any suit it is proved by affidavit or otherwise that any property in dispute in a suit is in danger inter ally of being alienated by any party to the suit or wrongfully sold in execution of a decree, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying the alienation. Merely because the alienation would be hit by the principle of lis pendens is thus no ground for wit holding the temporary injunction. In certain cases alienation may introduce complications which it becomes the duty of the Court to avoid, Respectfully agreeing with the decision of the High Court of West Pakistan in P L D 19 6 Kar. 521, I am of the view that the applicability of principle of lis pendens is no ground for refusing to issue a temporary injunction. In case where prima facie the property in suit is jointly owned by a party, the denial of the right of one party by the other may be a source of causing irreparable loss and injury. In the present case the suit has been filed for rendition of accounts against Sardar Walr Muhammad. If he alienates this property, the persons who will be in posses sion of the property by way of alienation will have to be impleaded as party to the case at least in order to compel them to make a restitution of whatever income and profits the plaintiff is deprived. In these circumstances, I am of the view that the temporary injunction was rightly issued and the balance of convenience was in favour of the issuance to temporary injunction inter alia on the ground that it would avoid multiplicity of suits or inclusion of stranger to the suit. The appeal of Sardar Wali Muhammad has no force and is liable to be dismissed.

15. In view of my finding that the document relied upon by the plaintiff is primarily an acknowledgement of co-ownership of the plaintiff and the defendants in the shares specified therein and it can only be considered to be a will alternatively, it is not necessary to consider the arguments of the learned counsel or the plaintiff that to a case of administration of property the Receiver should normally be appointed. I cannot, however, help remarking that in this respect the provisions of Order XL, rule 1, C. P. C. vest the Court with a very wide discretion which has to be exercised in accordance with the facts of a particular case.

16. I have already dealt with question whether the plaintiff had a prima facie case And I have held that he had a prima facie, strong case. But this does trot conclude the matter. A Receiver can be appointed if it is just and convenient to do so. Appointment is not as a matter of course. It is dis cretionary with the Court. Order XL, rule 1, C. P. C. does not lay down any clear principles governing the exercise of discretion but these principles have been laid down by the Superior Courts. One of these principles is that they power to appoint a Receiver should be sparingly used. Another principle is that it should be exercised for the safeguard of the interest of all the parties as well as the property which is subject-matter of the litigation. A third principle is that the possession of persons bona flare in occupation of the property should not be disturbed unless there ape allegations of wastage o dissipation of property or apprehension of irreparable loss and injury.

17. In the present case the only ground of dissipation is the apprehension of alienation of property by Sardar Wali Muhammad. After the issuance of temporary injunction this apprehension should be allayed. In the petition under Order XL, rule 1, C. P C. the apprehension is only of mis appropriation of movables. Bat the bulk of the property in dispute consist of considerable agricultural land. In the absence of any definite allegation of wastage, dissipation, misappropriation or malversation of property is dispute the discretion under Order XL, rule 1, C. P. C. cannot be exercised.

18. At the time of arguments it was urged that the plaintiff has sued for a decree for mesne profits and the plaintiff's apprehension is that the mesne profits may be misappropriated and the real income may be concealed. This is only an apprehension. There is nothing, however, on the record to show that the plaintiff Sardar Wali Muhammad has so far concealed the income of the property. This can be established only if he is called upon to render accounts and he does not give the correct accounts.

19. I feel that the learned counsel for Wali Muhammad has made a very reasonable suggestion in this respect that respondent, Sardar Wali Muhammad can be asked to maintain proper accounts. The proper order in this case would be to direct Sardar Wali Muhammad to maintain full and correct accounts of the income and profits of the property in dispute and I order accordingly. He shall submit accounts to the learned trial Court after every six months before the 15th of February and 15th of August i.e. after Kharif and Rabi crops respectively. If, however, the Court, at arty stage, comes to the conclusion that the accounts maintained by him are not correct or some income is being suppressed or unreasonable expenses claimed, the Court can consider advisability of appointing a Receiver at that stage either suo motu or on an application by the plaintiff.

20. The appeal of Sardar Wali Muhammad is dismissed and subject to the above modifications the appeal of the plaintiff is allowed to the extent of direction issued to Sardar Wali Muhammad to maintain and render proper accounts. There will be no order as to costs. S. A. H. Order accordingly.