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Petitioner: SHAHAR BANO VS Respondent: MUHAMMAD ASLAM BAIG
1989 M L D 4425
1989 M L D 4425
[Karachi]
Before Ajmal Mian, CJ. and Abdul Rahim Kazi, J.
Mst. SHAHAR BANO--Appellant
Versus
MUHAMMAD ASLAM BAIG and 22 others--Respondents
High Court Appeal No.149 and Civil Miscellaneous Application No.1177 of 1988, decided on 19th April, 1989.
Succession Act (XXXIX of 1925)--
---Ss.218 & 264--Civil Procedure Code (V of 1908), OXL, R.1--High Court Appeal--Appellant obtained letters of administration in respect of estate of her deceased husband--High Court on application by father of deceased to the effect that appellant committed breach of terms of grant of letters of administration, appointed Receiver but at the same time did not revoke letters of administration--High Court in fact did not consider question whether it was a fit case for revoking letters of administration or not on grounds which were urged in application--Held, no Receiver could have been appointed in presence of letters of administration--Order of High Court was set aside and case remanded for decision of application afresh.
Shaikh Abdul Sattar for Appellant.
S.M.W. Hazratji for Respondents Nos. 1 to 12.
ORDER
AJMAL MIAN, CJ.--This appeal is fixed for hearing of the stay application. By this order we intend to dispose of the main appeal. It seems that the appellant had obtained a letters of administration in respect of the estate of her deceased husband Abdur Rashid. Cane of the sons of Asghar Baig, who was the father of deceased Abdur Rashid filed an application in the above administration case (CMA No.1 of 1982) alleging therein that the appellant had committed the breach of the terms of the grant of letters of administration inasmuch as she had inter alia surrendered a valuable property to the Evacuee Trust Board, whereas Mr. Hazratji states that this was not correct as it was sold out to the Mutawalli of the adjacent mosque. Be that as it may, the learned Single Judge by the order under appeal appointed a receiver but at the same time did not revoke the letters of administration.
Mr. Shaikh Abdul Sattar learned counsel for the appellant has urged that so long as the appellant remained as the Administrator of the property under the letters of administration, which was not revoked, the receiver could not have been appointed. On the other hand Mr. S.M.W. Hazratji invites our attention to ground No.4 in the appeal in which he has made following averment:-
"That the appellant is a Parda-Nashin lady and her male children being minors, she could not look after the business and the premises were lying vacant and neglected and were being misused by the public at large."
According to Mr. Hazratji the appellant himself admits that she is incapable of administering the property of the deceased.
In our view, the learned Single Judge should have considered the question, whether it was a fit case for revoking letters of administration or not on the grounds which were urged in the application which included the above ground and the question of maintainability of the application, but the receiver could not have been appointed in presence of letters of administration. We would, therefore, set aside the order under appeal and remand the case to the learned' Single Judge who will decide the above application afresh. There will be no order as to costs.
M.Y.H. /S-434/K
Case remanded