1997 PLP 167 (CLC)

This is a suit for administration and accounts filed by the daughter of deceased Haji Muhammad Zakir in respect of immovable property consisted of a house at PECHS, Karachi and in respect of assets and goodwill of a firm namely M/s. Noor Muhammad & Brothers. The plaintiff and the defendants are legal heirs of the said deceased. The defendants Nos. l and 3 to 8 were debarred from filing written statement on 16‑5‑1988 while defendant No.2 has filed his written statement disputing the absolute ownership of deceased ‑in the workshop but admitted ownership of house at PECHS in the name of deceased. In this written statement he raised an objection that the deceased also owned a Plot No. 1499 at North Nazimabad, Karachi admeasuring 2000 square yards. Defendant No.2 has pleaded that the property at North Nazimabad should also be included in this suit for the purpose of administration.

2. On 16‑1‑1990, by consent of the parties following issues were framed: (1) Whether late Haji Muhammad Zakir was the sole proprietor of the Workshop styled as M/s. Noor Muhammad and Brothers or was he only a partner? (2) Whether the deceased owned other property i.e. Plot No. 1‑499 (200 sq. yards) North Nazimabad, Karachi at the time of his death? If so, its effect on the suit? (3) Whether the will dated 28‑8‑1980 was, by conduct, consented to by the heirs of late Haji Muhammad Zakir and was given effect after his death? If so, its effect? (4) Whether the deceased gifted Plot No.1‑499, Block ' I' North Nazimabad, Karachi to the plaintiff during his lifetime? (5) Whether all the heirs were paid their shares as mentioned in the Will? If so, its effect. (6) Whether the plaintiff has any interest or claim to the said workshop? (7) How the estate of the deceased is to be administered? (8) Whether the suit is at all maintainable? (9) What relief, if any, is the plaintiff entitled to?

3. On 30‑1‑1992 when this case came up for hearing of arguments before his Court it was observed as follows:‑‑‑ "It appears that among the disputes arising in this suit is a dispute as to whether one of the properties had been gifted by the deceased Eaji Muhammad Zakir to the plaintiff. There is also a dispute as to whether or not the deceased was the sole proprietor of the workshop. Since this is a suit for administration of the property of the deceased, it is necessary first to decide whether a dispute as to the alleged gift of the property or as to the alleged title of the deceased to the workshop can be subject‑matter of a suit for administration. Since Mr. S.H. Mujtaba who appears for defendant No.2, questions the gift of a property in favour of the plaintiff by the deceased, it is for him to satisfy me that the dispute raised by him is within the scope of suit of administration. Mr. S.H. Mujtaba requests for adjournment to enable him to prepare his argument on this point. By consent, adjourned to 24‑2‑1992."

4. I have heard Mr. Mushtaque Memon, Advocate for plaintiff and Mr. S.H. Mujtaba and Mr. Arif Khilji, Advocates for the defendants. Mr. S.H. Mujtaba, learned counsel for the defendant No.2 in his well‑prepared arguments 'Y attempted to classify several judicial pronouncements commencing from the year 1905 till date to show that there are two schools of thought. One, which supports the view that in a suit for administration of properties of a deceased a Court is competent to inquire and probe into the title of properties which are already alienated. The second school of thought holds the view that the Courts are not competent in a suit for administration to probe or hold inquiries into the title of the parties or that of deceased. He had cited the following case‑law pertaining to both the schools of thought:‑‑‑ (i) Ah Kyan Sin and another v. Yeo Ah Gwan and others (AIR 1937 Rangoon 497); (ii) Mt. Muhammad Zamani Begam and another v. Fazal‑ul‑Rehman and another (AIR 1943 Lahore 241); (iii) Mt. Shafi‑ul‑Nisa v. Mt. Fazal‑ul‑Nisa (AIR 1450 E.P. 276); (iv) Mehboob Alam v. Razia Begum and others (PLD 1949 Lahore 263); (v) Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi and others (PLD 1962 SC 291); (vi) Muhammad Sarwar and 2 others v. Abdul Lateef and another (PLD 1978 Lahore 391); (vii) Muhammad Younus Qureshi and 5 others v. Mrs. Feroz Quraishi and 2 others (1982 CLC 976); (viii)Yousuf v. Zubeda and others (1984 MLD 590); (ix) Syed Mohsin Raza Bukhari and 4 others v. Syed Azra Zenab Bukhari (1993 CLC 31); (x) Benode Behari Bose and others v. Srimati Nistarini Dassi and others (32 Ind. A. 193); (xi) Benode Behari Bose v. Nistarini Dassi (ILR 33 Cal. 193); (xii) Motibhai Shankarbhai *Patel v. Nathabhal Narayan Bhai Patel (AIR 1921 Bombay 187); (xiii) Goswami Rameshpuri Guru Maheshpuri and another v. Madhukar and others (AIR 1953 Nagpur 276); (xiv) Masireddi Suryana v. Akula Anasuyamma (A.I.R. 1963 Andhra Pradash 298); (xv) Muhammad Bibi and 2 others v. Abdul Ghani and 2 others (PLD 1975 Karachi 979); (xvi) Mst. Ayesha Bai and another v. Mst. Shahida and 4 others (PLD 1981 Karachi 177); (xvii) Muhammad Sulaiman Malik and another v. Royal Trust Corporation of Canada and 2 others (PLD 1983 Karachi 382); (xviii) Banarasidas Khandelwal and another v. Anriga Debi and others (AIR 1934 Cal. 33); (xix) Nazarali Kazamali and others v. Fazlan Bibi and others (AIR 1975 Gujarat 81); (xx) Ishaque Sharif v. Mumtaz Begam (1971) 1 M.L.J. 362); (xxi) Syed Muhammad Iftikharuddin v. Syed Muhammad Ansaruddin (Suit No.274/75); (xxii) Yousuf Abbas and others v. Mst. Ismat Mustafa and others (PLD 1968 Karachi 480).

5. Mr. Mushtaque Memon, Advocate for plaintiff has vehemently argued that the scope of suit for administration of the deceased property is very limited and that the Courts are not competent to probe into the title of the properties. This view was endorsed by Mr. Arif Hussain Khi1ji, Advocate for defendants Nos. l and 3 to

8. Mr. Mushtaque Memon has cited the case‑law cited at serial Nos.3, 5, 6, 8, 9 and 17 above. In addition he has also cited the case of Ishaque Sharif v. Mumtaz Begam ((1971) 1 MLJ 362).

6. In the case of Ah Kyan Sin (AIR 1937 Rangoon 497) it was held by u learned Single Judge that a stranger cannot be joined in a suit for administration, if he is not in possession of a part of the estate of the deceased. Proper course is to file a separate suit for recovery. The Privy Council has held in the case of Binde Bihari Bose (XXXII Indian Appeals 193) and also ILR 33 Cal. 180) that the primary object of the suit for administration is to administer the estate of deceased person and as ancillary to set aside the deeds obtained by fraud of the executor. The case of Binode Bihari Bose (supra) was followed by a Division Bench of Punjab High Court in the case of Mst. Sharif‑ul‑Nisa (AIR 1950 EP 276). After referring to the case of Chand Narain v. Ram (AIR 1940 Lahore 179), Mst. Muhammad Zamani Begum v. Fazlur Rehman (AIR 1943 Lahore 241) and the case of Shiv Parshad Singh v. Prayab Kumari Debb (AIR 1935 Calcutta 39) it was held that the main object of such suit is to decide as to the existence or otherwise of an alienation. It was further held that if object of the suit is to set aside an alienation allegedly made by the deceased or to obtain possession of property illegally withheld by any of his heirs an administration suit is not a proper remedy. A question whether who can be a party to the administration suit or which properties are to be made subject‑matter came up for consideration in the case of Goswamy Rameshpuri (AIR 1953 Nagpur 276) before a Division Bench where it was held that such persons who are in possession of property left by the deceased can be joined as defendants since they are heirs/legatories/executors etc. The rule laid down in the case of Ali Kyan Sin and Muhammad Zamani Begum were followed. In view of rule laid down by the Privy Council in the case of Secretary of State v. Parijat Debi (AIR 1935 PC 203) it was held that the legatee is also entitled to maintain an administration suit and the mere fact that the defendant refutes the claim of the plaintiff does not alter the nature of the suit.

7. The above view that a Court can consider the question of title in the suit for administration was also followed by a Division Bench of Bombay High Court in the case of Moti Bhai Shankar Bhai Patel (AIR 1921 Bombay 187) and was further followed by another Division Bench of Gujarat High Court in the case of Nazarali Kazimali (AIR 1975 Gujarat 81). It was argued before the Gujarat High Court that the question of title of the several properties which were subject‑matter of the gift does not fall within the purview of an administration suit. In a well reasoned answer this argument was repelled with the following observation:‑‑ "But the pleas in the written statement cannot be allowed to decide the nature of the suit. The orders that may have to be passed in the final decision of the suit on merits cannot also be decisive in the matter. If it were so, in every administration suit, a defendant would raise a plea covering a question of title or some other complicated question and can urge that the suit, as framed, is not competent. This would defeat the very purpose of an administration suit and would lead to avoidable multiplicity of judicial proceedings between the same parties, a situation which cannot be allowed to arise in such a suit, the main purpose of the suit being not to determine as to who is the rightful heir of the deceased, but to administer the estate of the deceased. If, for the purpose, the questions of title have incidentally to be gone into, that would certainly be within the purview of an administration action. The question as to title of the property can be appropriately considered in an administration suit. That would not alter the nature and character of the suit. This is also indicated by the procedure prescribed in Order 20, Rule 13 of the Code of Civil Procedure and by Forms of Decree Nos. 17 and 20 in Appendix D of the First Schedule of the Code which are illustrative forms though not exhaustive." 8.The case of Banarsidas (AIR 1934. Cal. 33) is not relevant for the determination of the present question. Now, I will revert back to the case from the Pakistani jurisdiction. The leading case which still holds the field on the question of nature and scope of an administration suit is the case of Syed Mehdi Hussain Shah (PLD 1962 SC 291) wherein lave was granted by the Hon'ble Supreme Court to consider whether the form of the suit falls within the scope of administration suit since the Will was challenged and the rights of other heirs were also disputed. It was held by the Hon'ble Supreme Court that in the suit for administration of deceased's properties, the Court assumed the functions of an administrator. It will realise the assets and to discharge the debts of legatees and to take account of properties and to distribute the assets among those entitled to it. It was further held that the Court in persuit to find out who the persons entitled are can join all such persons who claim to be so entitled. It was further held that where the survivor is the sole legal heir he cannot file suit for administration for recovery against strangers/trespassers.

9. The same question was earlier considered by a Division Bench of Lahore High Court in the case of Mehboob Alam (PLD 1949 Lahore 263). The provisions of section 9, Order XX, Rule 13, C.P.C. as well as Forms 41, 42 and 43 in Schedule I, Appendix‑A, Forms 17, 18, 19 and 20 of Schedule I Appendix D were also considered in detail. It was held that the form appearing in Appendix A and Appendix D of the First Schedule to C.P.C. are not exhaustive and that if a suit for the administration of an estate is not barred expressly or impliedly by any provision of law, it must be entertained. It was observed that where there is a choice between a partition suit and an administration suit, the latter should be preferred. The learned Division Bench of the Lahore High Court was pleased to follow the rule laid down by the Privy Council in the case of Muhammadali Khan v. Sadikali Khan (AIR 1938 PC 169) and the case of Mst. Amir Bi v. Abdul Rahim (AIR 1928 Madras 760). The rule laid down by the Indian Courts are not rigid and hard and fast rule can be laid down to define the exact scope of an administration suit.

10. For the view that the Courts are competent to question an alienation or transfer of a property left by the deceased in an administration suit, reference can be made to the case of Muhammad Bibi (PLD 1975 Karachi 979) where a learned Single Judge of this Court considered the validity of a Will in such a suit. This view was further followed by another learned Single Judge of this Court in the case of Mst. Ayesha Bai and another (PLD 1981 Karachi 177). Mr. Nasir Aslam Zahid, J. (as his Lordship then was) who also considered the cases of Benode Behari Bose, Ali Kyan Sin and Sharif‑ul‑Nisa held that the suit for administration was maintainable with the following observation:‑‑ "I am of this view on account of two reasons. Firstly defendant No.5 himself applied to become a defendant in this suit and on his own application the Court joined him as defendant No.5. Secondly, all the parties who are interested in this property are before the Court and if at this stage it is decided that the question of ownership of this property ought not to be decided in these proceedings, the parties i.e. the plaintiff and defendant No.5, will get involved in another litigation. In view of the special circumstances and facts of this case and additionally to avoid multiplicity of proceedings, this question can 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. "

11. The other school of thought is of the view that the scope of administration suit is limited which is reflected in the case of Muhammad Sarwar (PLD 1978 Lahore 391). In this reported case learned Single Judge of Lahore High Court held that since the making of a gift was also challenged in an administration suit, such suit does not fall within the compass of Order XX Rule 13, C.P.C. A learned Single Judge of this Court Mr. Saleem Akhtar, J. (as his lordship then was) in the case of Younas Qureshi (1982 CLC 976) held that the scope of administration suit is limited and that the question of title of a property claimed by any heir in his own independent right cannot be decided. The view held by a learned Single Judge of Lahore High Court in the case of Muhammad Sarwar (supra) was followed. Another learned Judge of this Court Mr. Saiduzzaman Siddiqui, J. (as his lordship then was) in the case of Yousuf v. Zubeda and others (1984 MLD 590) held while following the law laid down in Syed Mehdi Shah's case that a property which is adversely claimed to the deceased by one of the heirs cannot be included in suit for administration unless it is shown that it stood in the name of deceased at the time of death or it held as the property of the deceased in some proper proceedings. (Under‑lining is mine). Accordingly a preliminary decree was passed by this Court excluding the disputed properties. The 'same view was followed by a learned Judge of Lahore High Court in the case of Syed Mohsin Raza Bukhari (1993 CLC 31) wherein it was held that the question of title to property claimed by an heir in his own independent right is to be got settled by initiating independent proceedings and not in an administration suit.

12. Resume of above case‑law indicates that there is .a very thin line in-between the properties which are to be made subject‑matter of the administration suit and which arc to be excluded therefrom. The ratio decidendi of the above case‑law is that generally in a suit for administration of the properties left by a deceased involves all such properties left by him but with some distinction. The Hon'ble Supreme Court of Pakistan has always discouraged multiplicity of proceedings and disposal of cause in piecemeal. This is the spirit of Order Il, Rule 3, C.P.C. which provides joinder of cause of actions which view was followed by a learned Single Judge of this Court in the case of Mst. Ayesha Bai (PLD 1981 Karachi 177).

13. In view of the above case‑law it would be pertinent to observe that necessity for filing a suit for administration arises when there exists dispute between the creditors, next of kins and heirs at law on the question of what movable or immovable properties the deceased was seized of or entitled to at the time of his death and how such properties are to be distributed. Therefore, there may be several instances where a suit of like nature may not be allowed to be maintained. Following are the few guidelines to determine the nature of administration suit: (a) In a suit for administration for the estate and properties left by a deceased a preliminary decree is to be first granted prior to the final decree, to ascertain the correct position of assets and liabilities, if any, of a deceased in order to share the same amongst heirs, claimants and creditors. (b) A Court is competent to probe into title of the properties for the limited purpose to ascertain whether it was alienated at any time prior to the death of the person whose properties are sought to be administered. (c) Where legality or validity of a registered document is challenged or where a closed and past transaction is questioned then it is out of scope of administration suit. (d) Where any property is alienated, transferred or conveyed through a registered document during the lifetime of a deceased then such property cannot be made subject‑matter of an administration suit and that a separate suit for declaration and possession is to be preferred. (e) Where there is only a sole survivor and where a stranger/trespasser (other than creditor) is made party to the suit for administration then such suit becomes an ordinary suit and loses its character as a suit for administration.

14. Here, I would like to lay down a mark of caution that in a suit for administration where any party claims to be owner of a property which admittedly stood in the name of deceased at the time of his death then for determination of such claim a suit for administration is maintainable. I would also like to observe that Form 17 of Appendix ' D' to Schedule I of the C.P.C. provides that a suit for administration, accounts and partition is maintainable which impliedly suggests joinder of several causes of action

15. It is provided under Order XX, Rule 13(1) that before passing any final decree a. preliminary decree is to be ordered for taking accounts and inquiries. Therefore, I would refrain from discussing merits of the case issue‑wise. I have gone through the evidence recorded by this Court and I am of the considered view that the property situated at North Nazimabad is a closed and past transaction and, therefore, cannot be made subject‑matter of the suit and could not be included in the preliminary decree.

16. All the parties have admitted execution of the will (Exh.6/1) which supports the plaintiff's plea that the property at North Nazimahad was transferred to her during the lifetime of the deceased This operates as an estoppel against the defendants and now they cannot he allowed to take turn and challenge the same in this suit. I, therefore, pass a preliminary decree as provided under Order XX, Rule 13, C.P.C. read with Form 17 of Appendix D to Schedule I of the Code and appoint Nazir of this Court as Receiver with all the powers prescribed therein and for the following properties: (i) House No.60‑S/2, P.E.C.H.S., Karachi. (ii) M/s. Noor Muhammad and Brothers. A. A./G‑12/K Suit decreed.