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Petitioner: GHULAM JILANI and 10 others VS Respondent: ABDUL KADIR and 17 otherss
Court Name: Sindh High Court Judge(s): G. H. Malik Title: GHULAM JILANI and 10 others vs ABDUL KADIR and 17 otherss Case No.: Civil Miscellaneous Application No, 338 of 1990 Date of Judgment:1993-01-12 Reported As: 1996 CLC 1847 Result: Application dismissed
Judgment ORDER ' This is an application filed by defendant No,1 praying that the property mentioned at Serial No,6 in Annexure 'A' to the plaint be deleted; and has been made in the following circumstances. ' Mohamed Ghulam Qadir (the deceased) died intestate on the 6th October, 1970, leaving behind plaintiffs Nos.1 and 3 to 5 (sons and daughters), plaintiff No,2 (widow), defendants Nos.1 to 10 and 13 (sons and daughters) as well as two sons, Inayat Kadir and Abdullah Kadir and Mst. Shahzadi Begum, a widow, as his heirs. Inayat, Abdullah and Mst. Shahzadi Begum died subsequently. The heirs of Inayat are plaintiffs Nos.6, 7 and 8 and defendants Nos.15 and 16. The heirs of Abdullah are plaintiffs Nos. 9, 10 and 11 and defendants Nos.11, 12 and 14. The original plaintiff No,4 and defendant No,13 died during the pendency of the suit and their respective legal representatives have since been impleaded as parties to the suit. Thus, all the parties to the suit, except defendants Nos.17 and 18 against whom no relief has been claimed, are the heirs of the deceased. ' The deceased is alleged to have left certain movable properties as well as immovable properties specified in Schedule 'A' to the plaint. It is alleged by the plaintiffs that major portion of those properties are in the possession of the defendants who have been exclusively managing them and receiving profits thereof and have not given the plaintiffs the true and full 'accounts of such profits. The plaintiffs have, therefore, filed this suit for administration of the estate of the deceased. ' The defendant No,1 has alleged, in his written statement, that the property mentioned at Serial No,6 in the Schedule to the plaint, namely, cotton ginning factory and cotton ginning press with land, etc., situated at Hyderabad (hereinafter referred to as "the Hyderabad property"), is "solely owned by and has been in exclusive possession of defendant No,1" and that it is claimed by him "in his own right as the owner thereof". All the remaining defendants, except defendants Nos.7 and 8,
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have filed written statements supporting the plaintiffs. The defendant No,7 supports the defendant No,1 while the defendant No,8 has not filed a written statement. ' The plaintiffs made an application in the suit to restrain the defendant No,1 from disposing of the Hyderabad property. That application was disposed of on the 3rd February, 1988, when it was observed that the controversy regarding that property can be decided after evidence is recorded and it was ordered, with the consent of the parties, that the property be sold and the proceeds deposited in Court "subject to the decision of the suit". ' Consent issues filed by the parties were adopted on the 18th March, 1985, and one of the issues for trial is whether the Hyderabad property is a part of the estate of the deceased. ' On the 16th October, 1989, early hearing of the suit was ordered and the plaintiffs were required to file affidavit in lieu of examination-in-chief; but, before the evidence could be recorded, the defendant No,1 filed the present application on the 18th February, 1990. The case then came up in Court on the 28th February, 1990, for hearing of the application as well as evidence when, in view of the fact that there was no dispute among the parties except with regard to the Hyderabad property and the property mentioned at item (a) of para. 9 of the written statement of defendant No,1, preliminary decree for partition of those properties was passed with the proviso that, before taking any action with regard to the Hyderabad property, the present application (C.M.A. 338/90) will be decided first; and that: "In case it is decided in favour of defendant No,1, then the property will be excluded from preliminary decree. Otherwise evidence will be led to determine as to whether the property belonged to the deceased propositus till the time of his death or it was gifted to defendant No,1." ' It is clear from the above order that the question whether the Hyderabad property forms part of the estate of the deceased is not to be decided on this application but will be decided on evidence at the trial if the application fails; and it is for this reason that neither of the learned counsel addressed any argument on that question and confined their arguments to the maintainability of the suit with regard to the Hyderabad property. The scope of the present application is, therefore, necessarily confined to the question of the maintainability of the suit with regard to the Hyderabad property in the light of the pleadings of the parties. ' The prayer in the present application is that the Hyderabad property be "deleted/struck off from the list of assets and properties/estate of the deceased (late Mr. M.G. Kadir) as the same cannot be the subject-matter of the present suit". ' Mr. Noorul Hassan, the learned counsel for the defendant No,1, submitted, firstly, that on the language of Order 20, Rule 13, C.P.C. a suit for administration lies only in respect of properties about which there is no dispute. There is, however, no warrant for the proposition in the language of rule 13 which does not by itself provide for filing of a suit for administration. It merely recognises such a suit and provided for a kind of decree to be passed therein. ' In was then contended by the counsel that because the defendant No,1 claims to be entitled to the Hyderabad property in his own right, that property cannot be the subject-matter of the present suit and, further, that validity of an alienation of a property by the deceased cannot be decided in a suit for administration. The question that arises, therefore, is--what, in the absence of any statutory provisions in that behalf, is the scope of a suit for administration and what matters may be determined in such a suit? The answer is provided by our Supreme Court in the case of Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi (PLD 1962 SC 291) wherein it was observed:--- 'in the absence of any specific provision in the procedural law the question as to the matters to be determined and parties to be impleaded in a suit depends on the relief that is to be granted in that suit....In a suit for administration the relief to be granted is that the estate of the deceased is to be administered under the decree of Court. This means that the Court will assume the functions of an
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administrator, it will realise the assets, will discharge the debts and legacies, will take an account of the income of the property and will distribute the assets amongst those entitled to it." and it was held that for the purpose of distributing the estate of the deceased among those entitled to it, the Court has to find out who the persons entitled are and, therefore, it will be proper to join in the suit all those persons who claim to be so entitled. The relief to be granted in a suit is the object or the purpose thereof and if, in order to achieve the object or purpose of a suit for administration, viz. To distribute the estate amongst persons entitled to it, it is necessary to find out who those persons are, then, by the same token, it would appear to be necessary to ascertain what the estate to be distributed is. This is also indicated by the form of preliminary decree provided by Form 17 in Appendix D to C.P.C., which requires that "for carrying out the object of the suit" an inquiry be made as to "what immovable property the deceased was seized of or entitled to at the time of his death. ' What then, is to be scope of such an inquiry to ascertain what immovable property the deceased was seized of or entitled to at the time of his death? And is the Court debarred from making such an inquiry merely because a defendant asserts simply that he claims a property in his own, right? It is true that the scope of a suit for administration is limited and such a suit cannot be converted into a suit for an altogether different purpose such as setting aside alienations by the deceased but, on principle, there appears to be no reason why in a suit for administration properly so-called, viz. a suit the main or the real object of which is to obtain administration of the estate of the deceased, the Court should not determine the question of a party's claim to be entitled to a property in his own right and for that purpose determine the existence or validity of any alleged alienation by the deceased; for ultimately determination of such questions is nothing more than an inquiry as to what property the deceased was seized of or entitled to at the time of his death. If it were otherwise, any suit, even if its main or real purpose is to have the estate of the deceased administered, would be liable to be defeated merely by the defendant alleging that he is the owner of the property in question; and the result would be multiplicity of litigation. ' Mr. Noorul Hassan, however, contended otherwise and, in support of his contention, cited the cases of Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi (supra), Chand Nasrain and another v. Ghasi Ram (AIR 1940 Lah, 241), Mst. Shafi-ul-Nisa v. Mst. Fazal-ul-Nisa (AIR 1950 (East) Punjab 276), Muhammad Sarwar and 2 others v. Abdul Lateef and another (PLD 1978 Lahore 391) and Muhammad Yunus Qureshi and 5 others v. Mrs. Feroz Qureshi and 2 others (1982 CLC 976). ' In Syed Mehdi Hussain Shah's case the plaintiff had filed a suit for administration alleging that she and the defendant No,1 were entitled to the estate of the deceased; that the defendants Nos.2 to 8 who claimed to be heirs of the deceased were not such heirs; and that the will under which the defendant No,9 claimed was not genuine. The form of the suit was attacked on the ground that an administration suit can only be filed as against parties who are admittedly entitled to a share in the estate of the deceased and not against persons who according to the plaintiff are not entitled to any such share and are only trespassers; and it was held that for distribution of the estate among those entitled to it the Court had to find out who those persons are and, therefore, it is proper to join in the suit all those persons who claim to be so entitled. It was argued on behalf of defendant that the plaintiff will by an administration suit be getting possession from trespassers but that argument was repelled with the following observation-- "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 any their claim is negatived." ' Mr. Noorul Hassan laid particular emphasis on that observation to support his contention that an administration suit is not competent where a defendant claims a property in his own right. The
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observation, however, has to be read in the context of the argument, mentioned above, which was advanced in that case and of another observation made in that case, viz. That 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. Thus, read, the effect of the observation is that there can be no administration suit for recovery of a property from a person who claims it in his own right but there appears to be no justification for reading more than that into it and to say that it lays down any rule that in a suit which on the case of it, is a proper suit for administration the Court must stay its hands as soon as a defendant claims the property in his own right. The suits referred to in the case are obviously not the suits the main or the real purpose of which is to obtain administration of the estate of the deceased but, in the garb of suits for administration, suits to obtain possession from trespassers or persons in wrongful occupation. In any event, the plaintiffs in the present suit are not claiming possession from defendant No,1 alone. The observation quoted above is, therefore, not opposite. ' In AIR 1940 Lahore 179, the suit was between rival claimants to the estate of a deceased and each one claimed to be the sole heir of the deceased. The main purpose of the suit was, thus, to determine who was the heir of the deceased; and it was held that the suit was not an administration suit. ' The question for determination in AIR ,,1943 Lahore 241 was whether an administration suit was competent in respect of four out of the five properties involved; and it was held that the suit was not competent because the object thereof was to obtain cancellation of the transactions entered into by the deceased. It was observed:-- "If the plaint is read as a whole, it is clear that the object of the present plaint is to obtain cancellation of the transactions entered into by means of various deeds by the deceased and his father in respect of houses Nos. 2 to 5. According to the plaint, the gifts and the sale in favour of defendants 5 and 6 have been brought about by the exercise of undue influence on Zaheer Din. The allegation with respect to undue influence is made repeatedly in the plaint. It is stated that as a result of the undue influence, the gifts and sales made by the deceased were not binding on the plaintiffs. In its essence, therefore, the present suit is a suit for having certain alienations made by Zaheer Din declared invalid and ineffectual against the rights of the plaintiffs. So far as the factum of these alienations is concerned, the parties did not join issue." ' It will be seen that the character of the suit in that case Was decided in the light of the averments in the plaint. Applying the same criterion to the present case, it is clear that the object is to obtain administration of the estate of the deceased and not to question any alienation by the deceased. There is not even a mention, in the plaint, of any alienation by the deceased let alone the question of validity of any alienation; and the nature of the suit is not affected by the rather bare averments in the written statement of defendant No,1 that he is the owner of the Hyderabad property. The case is, therefore, distinguishable, and is of no assistance to defendant No, 1 . ' Mr. Noorul Hasan referred to a passage occurring at page 243 of the report of the case, which is as follows:-- "After a review of all the authorities cited at the Bar. I am of the opinion that it was open to the Court to determine in an administration suit whether certain alienations were or were not in fact made by the deceased. It is, however, not open to the Court in an administration suit to determine the validity of any alienation made by him." ' The authorities reviewed are those reported in AIR 1940 Lahore 179, 61 Calcutta 711, 45 Bom. 1053, AIR 1936 Lahore 365, 48 Bombay 331 and 33 Calcutta 180. Out of those authorities, the question whether validity of alienation of a property by a deceased can be challenged in a suit for administration did not admittedly, arise in AIR 1940 Lahore 179, 45 Born. 1053 and 48 Bom. 331; and, with all due respect to the learned Judge, the question did not really arise in any of the other authorities reviewed.
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' As for the case reported in AIR 1936 Lahore 365 the facts were that Mst. Rehmat Sultan died on 6th April, 1924. An administration suit was instituted by her heirs against her husband Mohamed Din. Mohamed Din claimed one of the houses as his property. On the other hand, the plaintiffs contended that Mohamed Din was liable to pay Rs,700 as dower to the heirs of Mst. Rehmat Sultan. Mohamed Din did not admit the amount of dower. It was held that a disputed debt cannot be deemed to be an asset which has come in the hands of any person representing the estate and the finding of the District Judge that in an administration suit it is not open to the Court to direct the debtor to pay the debt due to the estate to the administrator or to the receiver was upheld; and, as to the house, it was held that in a case like that the party in possession of the assets of the deceased can be directed to hand the same over to the administrator. In other words, the question whether the house formed part of the estate of the deceased could be, and was determined in that suit. It may be noted that, with regard to the house, the plaintiff's case was that house was purchased by Mohamed Din with the money of Mst. Rehmat Sultan. ' In 61 Calcutta 711, it was averred in the plaint that the plaintiffs are the real heirs of their husband and they are entitled to recover the properties left by him; that the plaintiff No,1 or at any rate one amongst them is entitled to succeed to the impartible estate; and that the defendant had no right or title to the properties left by the plaintiffs' husband but has obtained wrongful possession of them by exercising fraud, misrepresentation and undue influence and the reliefs claimed were declaration of title and recovery of possession from the defendant. It was held that the suit against the defendant was for wrongful withholding of possession of the properties and was not in the nature of an administration suit at all. No question of determination of validity of alienation in an administration suit, therefore, arose in that case. ' In 33 Calcutta 180=32 Indian Appeals 196, the plaintiff brought a suit for administration of the estate of her deceased husband. After the death of her husband she was induced to execute certain instruments by which she surrendered her rights under the will and she alleged in the suit that those instruments were obtained by fraud. The defendants disputed the jurisdiction of the High Court of Calcutta but the High Court and the Appellate Bench sustained the jurisdiction, set aside the series of deeds and decrees impugned, and granted administration. On appeal, their lordships of the Privy Council held: "On the question of jurisdiction their lordships consider the decision right. The primary object of the suit was the administration of the estate of a deceased person resident within the jurisdiction, the principal executor being also resident there and the actual administration going on there. The High Court of Calcutta, in its Ordinary Jurisdiction, had a right to order administration of this estate, and, as ancillary to such an order to set aside deeds obtained by the fraud of the executor." (Underlining is mine) ' In AIR 1950 (East) Punjab 276, the plaintiff brought a suit for administration alleging that deceased was, before his death, under the influence of the defendants; that he was suffering from Maraz-ul- Maut' and that all documents executed by him, including a deed of gift of the property in favour of the defendant, were invalid; and that the gift was not valid because it was made without the consent of the plaintiff. She pleaded that because of the invalidity of the deed of gift, she was entitled to have the estate of the deceased. Administered. Relying on the decision in AIR 1943 Lahore 241, the learned Judges held:-- " if the main object of a suit is to administer the estate, and if the Court, in the suit, has to decide as to the existence or otherwise of an alienation, an administration suit will lie, but where the main object of the suit is to have an alienation, alleged to be made by the deceased, set aside or to obtain possession of property illegally withheld by one of the heirs, an administration suit is not proper remedy."
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' The passage quoted above shows quite clearly that the maintainability or otherwise of a suit filed for administration depends on the main object of the suit. In the present case, it was not even argued by Mr. Noorul Hassan that the main object of the suit is to question the validity of any gift. ' In PLD 1978 Lahore 391, the 'pith and substance' of the plaint was that since the donor was a limited owner, and had no authority to make the gift, the gift was invalid. It was, therefore, held that the suit was not maintainable. ' In 1982 CLC 976, there was a dispute about one of the properties which the defendant claimed had been gifted to her by the deceased and which had subsequently been sold by her. It was held:-- "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 Lahore 391 and two unreported orders passed by Zafar Hussain Mirza, J. In Suit No,274/75." and the disputed property was excluded from the preliminary decree passed in respect of other, undisputed, properties. The two reported judgments mentioned above have already been discussed hereinabove. As for the unreported order in Suit No,274/75, the plaintiff alleged therein that the deceased had left behind several properties. As to one of them, the defendant No,1 claimed that it belonged exclusively to him, and, as to the other, the plaintiff's case was that it was owned by the deceased Benami in the name of his wife who purportedly gifted it to defendant No,7 when the deceased was seriously ill and in unconscious condition. The defendant sought to have these properties excluded from the suit. Before the issues were framed, the plaintiff made an application under Order 20, Rules 13, C.P.C., praying that preliminary decree be passed ordering the 'administration of the estate of the deceased under the decree of Court with specified steps towards ascertainment, preservation and final distribution thereof among the parties in accordance with their shares. Zafar Hussain Mirza, J. Held, with regard to the property which the defendant No,1 claimed to belong to him exclusively, that it was premature to pass a preliminary decree because the question whether defendant No,1 was liable to account for partnership effects and income had still to be decided. The application was, therefore, dismissed and the office was directed to fix the suit for settlement of issues. It will, thus, be seen that the unreported order is not an authority for the proposition that question of title to property claimed by a defendant in his own right cannot be determined in a suit for administration. As for the other property i,e, the one which was alleged by the plaintiff to have been held by the deceased Benami in the name of defendant No,7, the learned Judge held that it was beyond the scope of suit for administration and, in that connection, referred to the decision in AIR 1950 (East) Punjab 276. This, however, is contrary to AIR 1936 Lahore (supra) where similar dispute with regard to a house was entertained in an administration suit. ' Mr. Noor Muhammad relied, apart from PLD 1962 SC 291, on the cases of Masireddi Suryanarayana v. Alaila Anasuyamma (AIR 1963 Andhra Pradesh 298), Muhammad Bibi v. Abdul Ghani (PLD 1975 Karachi 979) and Mst. Ayesha Bai and another v. Mst. Shahida and 4 others (PLD 1981 Karachi 177). ' In AIR 1963 Andhra Pradesh 298, the plaintiff, in a suit for administration, alleged, inter alia, that the family settlement in relation to some of the properties of the deceased was not valid and that those properties which were in possession of the defendant No,4 formed part of the estate of the deceased and were liable to be administered; and it was held:-- "3. Order XX, rule 13, C.P.C. Deals with administration suit. It provides that the Court shall first pass a preliminary decree directing accounts and inquiries. In Appendix 'D', Form No,17 prescribes the form of the preliminary decree in administration suit. Paragraph 10 of the Form of decree is the relevant paragraph. It provides that an enquiry as to what immovable property the deceased was seized of
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or entitled to at the time of his death should be held. In Muhammadally Adamji v. Abdul Hussain ILR 48 Bom. 331. AIR 1924 Born. 313, reference is made to Seton on Decrees, Vol. II, page 1412 (7th Edition) as to the form of decree in an administration suit. The learned Judge pointed out that among the inquiries contemplated in the course of the administration, the inquiry as to what immovable property the deceased was seized of or entitled to at the time of his death is included. It is, therefore, clear to my mind that in a suit for administration, the Court has to necessarily ascertain what properties belonged to the deceased at the time of his death. As the 4th defendant claims title to items 5 and 7 (1) of Schedule A and item 3 of Schedule B, the Court…
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