2000 PLP 122 (MLD)

In Mst. Ayesha Bai and another v. Mst. Shahida and 4 others (PLD 1981 Kar 177), learned Judge in Chambers at page 183 observed:‑‑ "In the present administration suit it can be stated whether the deceased had any tenancy rights and/or was the owner of Articles in such premises. The defendants have not taken any, clear position as to how they, or any of them acquired the properties." In paragraph 20, it has been observed:‑‑ In view of the special circumstances and, facts of this case and additionally to avoid multiplicity of proceedings, this question can also be decided in this suit. I may observe here that facts differ from case to case and the decision whether an administration suit is maintainable or not largely depends on the pleadings in a particular case." In Mahbub Alam v. Razia Begum and others (PLD 1949 Lah. 263 D.B.), learned Judges of Division Bench at page 270 observed:‑‑ "It, thus, seems that the distribution of the residue among the successors of a deceased person is a duty attached to the estate notwithstanding that it vests in the heirs at the time of the death of the propostitus, and as the distribution of the residue forms pan of the administration of an estate, it clearly falls within the province of administration suit. Even the Divine Book upon which the Sirajiyyah relies insists on administration before the heritage over devolves on the heirs" at page 274 observed:‑ "I must say with very great respect, in view of the abundance of authority on the opposite side, that if there is any estate to be administered in any form excluding, of course, cases relating purely and obviously to rival claims), an administration suit would not only be competent, but often desirable. " and at page 277 last para. it has been observed:‑‑ "I am not impressed by the argument that an administration suit is barred merely because the plaintiff could have sued in some other form In the present, case, it is said that, the plaintiff should have sued for partition. Form No. 42 of the forms of plaints in Appendix 'A' to the First Schedule of the Civil Procedure Code relates to administration suit brought by a specific legatee, and Form No.43 relates to a ‑similar suit brought by a pecuniary legatee, m each of these cases a similar argument could be put forward, viz that the legatee bringing the suit should have specifically sought possession of the particular property bequeathed to him. The plaint forms in these two cases furnish no indication that any relief is contemplated to any person other than the plaintiff and one of the decree forms viz. 19 in Appendix "D" of the same Schedule, will also show that in such a suit it is open to the Court to grant individual relief. to the plaintiff. Consequently, it appears to me that the mere fact of the possibility of the present plaintiff bringing a suit in a different form is no bar to her as permitted by law and I would here respectfully adopt the reasoning of Macleod, C.J. and Heaton, J. in the case of Essafally Alibbai (ILT 45 Bom. 75), in the extracts quoted in the judgment of my learned brother. " Hussain v. Mansoor Ali and 5 others (PLD 1977 Kar. 8), the learned Judge in Chambers at page 13, para. 15 has observed:‑‑ "It will, thus, be seen that the claims of creditors and legatees, specifically momentary legatees can very well be put in after the preliminary decree even though such creditors of legatees are not parties to the suit. This is consistent with the very object of an administration suit. As observed by their Lordship of the Supreme Court, the Court assumes the function of an administration, inter alia, for discharge of the debts and legacies. There is no doubt that a creditor or legatee himself can maintain such a suit but his interest being limited to receive a contribution to the extent of his debt or legacy or reteably, it cannot be said that even in a suit filed by next‑of‑kin all the creditors and legatees would be necessary parties. The very fact that their claims can be investigated and determined subsequent to the preliminary decree conclusively shows that they are not necessary parties to such a suit." In Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi and others (PLD 1962 SC 291 at pages 294 and 295), it has been observed:‑‑ "Some authorities were cited before us in support of the contention that if the plaintiff claims to be a sole heir and contends that the defendants, though they claim as heirs of the deceased are in fact not his heirs, but in wrongful possession, a suit for administration does not lie. With this proposition we have no quarrel. The object of an administration suit is the distribution of assets between more that one person and if the defendants to a suit be only trespassers and the plaintiff is the person solely entitled, there can be no administration suit by such a plaintiff against such defendants. But the suit before us is not of that kind. There are two persons who according to the plaintiff are entitled to a share in the assets of the deceased, that is, the plaintiff and defendant No.

1. The plaintiff wants a distribution of the estate of the deceased as between her and defendant No.

1. The other of defendants have been joined because they are claimants to the property and before a decree is passed their rights are to be determined and negatived so as to prevent the decree from being nullified by a subsequent suit filed by any, of them. It is impossible to contend that in this suit no decree is being claimed, as against defendant,No.l. The prayer is for administration." In Muhammad Younus Qureshi and 5 others v. Mrs. Feroz Quraishi and 2 others (1982 CLC 976), the learned Judge in Chambers at page 977 has observed:‑ "The scope of administration suit is limited. The question of title to a property claimed by any heir in his own independent right cannot be decided in these proceedings. The object of the suit is to determine the estate of the deceased at the time of his death. Reference can be made to PLD 1962 SC. 291, PLD 1978 Lah. 391, and to an unreported order passed by Zafar Hussain Mirza, J., in suit No. 271 of 1975. The learned counsel for the plaintiff contended that for the time being the consideration of this property may be deferred and preliminary decree in respect of the remaining properties may be passed. In view of the controversy between the parties, the question of title to the plot cannot be decided in the present proceeding. The plot has been sold and this controversy can be settled by independent proceeding. As there is no dispute in respect of the remaining properties as contained in order dated 26‑4‑1981, I pass a preliminary decree in terms of Order XX, Rule 13, C.P.C. and appoint Mr. Muhammad Kalim Siddiqui, the Deputy Registrar as the Administrator of the properties left by the deceased excluding item No.3 of Schedule B to the plaint and direct the Administrator to administer the properties and realise all assets and investigate of all the liabilities of the deceased and after satisfying the liabilities if properties are left the same may be distributed amongst the legal heirs according to Muslim Law." CH. Muhammad Zafir v. SH. Abdul Haq Sethi (PLD 1956(WP) Lah. 1060 D.B.) (at page 1063), it has been observed:‑‑ "All questions that can be agitated in an appeal against a preliminary decree can be agitated before the Senior Civil Judge, who will no doubt give his own findings on all the questions that are properly raised before him. The contention of the learned counsel for the appellant is that suit for administration would not be competent in the absence of prayer of partition. The instant suit for administration of the estate of deceased Ghulam Hussain Esaji Antaria and Mst. Amtullah Bai has been filed by the daughters (respondents/plaintiffs) of the said deceased against their brother (appellant/defendant), who in the written statement admitted that the property No. W.0.7/34, Wadhumal Udhamal Quarters, opposite city Courts, Karachi, belonged to the deceased father of the parties while property No.W.0.7/30, Easaji Ibrahimji Street, Karachi, stood in the name of deceased Amtulla Bai mother of the parties but was purchased by the appellant from his own funds. At the time of death of said deceased admittedly above two properties stood in the name of deceased parents of the parties though the appellant/defendant claimed that the latter property was purchased by him in the name of his deceased mother, therefore, the respondents/plaintiffs being the legal heirs of the said deceased would be entitled to get their shares at least from the admitted property left by deceased at the time 9f their death according to Muslim Law, by filing the administration suit in respect of the estate of the deceased as the said remedy is permissible under the law and in case of choice between a partition suit and, administration suit, the latter is to be preferred. Reference may be made to the' case Mahboob Alam v. Razia Begum and others (PLD 1949 Lahore 263, D.B.).' Accordingly, administration suit in absence of prayer of partition in the main suit is competent and maintainable as both the parties to the suit are the legal heirs of deceased to inherit the properties left at the time of their death. Reference may also be made to the case Mehdi Hussain Shah v. Mst. Shade Bibi and others (PLD 1962 SC 291). , The next contention of the learned counsel for the appellant is that the judgment and preliminary decree are not legal as the same have been passed without inquiry and without recording evidence. The appellant/defendant in written statement has admitted that Property No. W.0.7/34, Wadhumal Udhamal Quarters belonged to the deceased father of the parties while property No. W.0.7/30, Essaji lbrahimji Streets belonged to the deceased Amtulla Bai though the latter property was purchased by him from his own funds in the name of his deceased mother but both properties stood in the name of deceased parents of the parties at the time of their death. This being the admitted position, there was no need to hold an inquiry or adduce any evidence, therefore, preliminary decree for administration of the said property of deceased was legally and rightly passed by the learned Single Judge. So far the claim of the appellant/defendant it could be investigated and determined subsequent to the preliminary decree as in terms of the preliminary decree the estate of deceased would be administered and Court would assume the function of administration of estate of deceased thereby would realise all the assets, discharge the debts and legacies and 'would take accounts of income of the properties and would distribute the assets amongst those entitled to it. The preliminary decree for administration of assets of deceased cannot be withheld only on the assertion that one of the said properties was purchased by the appellant in the name of his deceased mother from his own finds, when the said property even stood in the name of his thother at the time of her death. In view of the above circumstances, there is no merit in the contention of the learned counsel for the appellant. In view of the facts of this case, reasonings and settled propqsition of law, the appeal has no merits which is hereby dismissed alongwith the listed application. These are the reasons in respect of the short order, dated 22‑8‑1996, dismissing this appeal with no order as to costs. H.B.T./A‑315/K Appeal dismissed.