1984 PLP 803 (MLD)

Jan Muhammad Dawood for Plaintiff. J.H. Rehmatoollah for Defendants. On 10-4-1984 when this suit came up for hearing before me, I pointed out to the learned counsel for the parties that the issues framed in the suit are such which should be tried by the Commissioner and, therefore, a preliminary decree as provided under Order XX rule 18, C.P.C. can be passed straightaway in the case. The learned counsel agreed to it, but there was disagreement between them as to the properties which should be included in the preliminary decree. The learned counsel for the plaintiff contended that accounts should be ordered of even those properties which the defendant No. 1 is claiming as his own and adversely to the deceased, as defendant 1 is only a Benamidar of the deceased. The learned counsel for defendant No.1 on the other hand contended that only those properties can be subject-matter of a suit for administration which are admitted by the parties as belonging to the deceased. Therefore, the properties which defendant No.1 is claiming as his own cannot be included in the preliminary decree. In these circumstances the case was adjourned to consider the above contention of the learned counsel. I have heard the learned counsel for the parties on the scope of an administration suit. Mr. Jan Muhammad Dawood, the learned counsel for the plaintiff referred to the case of Muhammad Bibi v. Abdul Ghani P L D 1975 Kar. 979 in support of his contention that the property though adversely claimed by one of the heirs can become a subject-matter of a suit for administration. The learned counsel specifically relied on the following passage appearing at page 18 of the report which is as follows:- "

43. Before I part with this aspect of the matter I must add that it was contended on behalf of the defendants that it is not open to this Court in an administration suit to question the validity of the alienations made by the deceased during his life-time. Some decisions were cited from foreign jurisdiction in support of this contention. I am, however, of the view that in an administration suit the Court has the jurisdiction to decide whether a particular property belonged to the deceased or not and it would be impossible for the Court to administer the estate without deciding what that estate is. The form of the decree given in Schedule I, Appendix 'D' of the Code of Civil Procedure, would also support this view." The learned counsel for the plaintiff also referred to the case of Mehdi Hussain Shah v. Shadoo Bibi P L D 1962 S C 291 in support of his contention. No doubt the above-quoted passage from Muhammad Bibi's case did support the contention of learned counsel for the plaintiff to some extent but in view of the law laid down in Mehdi Hussain Shah's case in my humble opinion a property which is adversely claimed to the deceased by one of the heirs cannot be included in a suit for administration unless it is shown that it stood in the name of deceased at the time of death or it is held as the property of the deceased in some appropriate proceedings. I respectfully produce here the following observation made by the Supreme Court in the above case which appears at page 294 of the report. "Great stress is laid by learned counsel on the fact that the plaintiff will by an administration suit be getting possession from persons who are in fact only trespassers and this is outside the scope of an administration suit. But the plaintiff will be getting possession only from persons who claim t entitled to a share in the property of the deceased and who claim no independent right in themselves. While an administration suit is not a remedy for getting possession from those who claim the property in their possession in their own right and adversely to the deceased there -does not appear to be any valid objection to their dispossession if they claim only as heirs or under a will from the deceased and their claim is negatived. The question as to whether a person is entitled to a share in the property of the deceased is a fit subject to decision in an administration suit and in fact learned counsel for the appellant does not contend to the contrary, his plea being that a defen dant in an administration suit can raise a question as to whether the plaintiff or another defendant is entitled to a share but that the plaintiff cannot raise such a plea as to a defendant. We see no good reason for this distinction." I am, therefore, of the view that 50$ share of the defendant No.1 in Property No.1 of Schedule A to the plaint which stands in the name of defendant No. 1 cannot form part of the estate of the deceased for the present and, therefore, it will not be included in the preliminary decree. It will, however, be open to the plaintiff, if she is so advised to follow any other remedy under the law available to her, to establish that the 50$ share of the property shown in the name of defendant No.1 in fact belonged to the deceased and if she succeeds in that behalf she may apply for administration of this part of the property as well later on. In so far Property No.2 mentioned in the Schedule 'A' to the plaint is concerned it is admitted that. it stands exclusively, in the name of deceased. In so far properties mentioned in Schedule 'B' to the plaint are concerned, the defendant No.1 stated that in the firm known as Angle-Pakistan Trading the deceased at the time of his death had 670 shares out of 1,000 shares. In the firm Asian Drum Barrel Supply Company, the deceased had 50% share as a partner, at the time of his death. With regard to firm known as Mls. Habib Kasimbai it is stated that no such firm existed but the deceased used to maintain some accounts in that name. With regard to Motor Car No. KAB 837 (Opel Record), is stated by defendant No.1 that it belonged to the firm Asian Drum & Barrel Supply Company and has been sold for Rs.4,

000. The existence of assets mentioned at serial No.5 of Schedule 'B' were completely denied and it was further stated by defendant No.1 that if at all any such assets existed they were in the custody of defendant No.2. The above details of assets given by defendant No.1 were accepted by Mr. Jan Muhammad Dawood the learned counsel for the plaintiff who stated that his client does not want to lead any evidence in this regard. The defendant No.1 also admitted that he is occupying ground floor of the property mentioned at serial No.2 of the Schedule 'A' while the other portion is occupied by tenant. He also admitted that after the death of the deceased he is realising the rent of the two properties mentioned in the Schedule 'A' to the plaint. I may also mention here that defendant No.1 though admitted before me that at the time of his death the deceased had 670 shares in Anglo Pakistan Trading and 50$ share as a partner in the firm Asian Drums & Barrel Supply Co. but claimed that these two businesses after death "f the deceased belonged to him exclusively. This oral assertion of defendant No.1 cannot be accepted in view of his admission that the deceased at the time of his death had 670 shares in Anglo-Pakistan Trading Corporation Ltd. and 50% share as partner of Asian Drum & Barrel Supply Co. I, therefore, hold that to the extent of the properties admitted by defendant No.1, the accounts be taken of the estate of the deceased and properties be administered accordingly. The learned counsel jointly suggested the name of Mr. Aziz Ahmad, Secretary, H. H. The Agha Khan Shia Imami Ismaili Regional Council as Commissioner. I, therefore, pass a preliminary decree for accounts as prescribed in Form 17 of Appendix 'D' of Schedule I to the Code and appoint Mr. Aziz Ahmad, as the Commissioner to take accounts of the properties of the deceased and determine the shares of the parties therein. Report is to be submitted within 3 months from the date of receipt of this order and the Commissioner will be free to claim his fees which will be determined by the Court. M. I. Order accordingly.