PLJ 2011 Karachi 120 (DB)
Present: Muhammad Athar Saeed and Munib Akhtar, JJ.
MUHAMMAD ZAHID through Legal Heirs--Appellants
Mst. GHAZALA ZAKIR and 7 others--Respondents
H.C.A. No. 127 of 1996 and CM. As. Nos. 988 of 1996, 140 of 1997, 1954 of 1998, decided on 12.11.2010.
Law Reforms Ordinance, 1972 (XII of 1972)--
----S. 3--Civil Procedure Code, (V of 1908), O. XX, R. 13--lntra-Court Appeal--Administration suit--Maintainability--Scope--Gift in favour of legal heir--Plaintiff claimed that property in-question was gifted in her name by deceased in his life time, therefore, it did not stand in his name at the time of his death and could not be questioned in administration suit--Plea raised by defendant was that since gift in-question related to a matter that was among the heirs, validity of gift could be determined in administration, suit--Validity--Nature of administration suit was limited, inasmuch as it was intended only to settle issues and matters among the sharers--When such considerations were balanced, the proper test to establish whether the determination lay within the scope of an administration suit or beyond which was if determination did not disturb inter se position of sharers and affect all sharers equally, then the question would lie outside the scope of administration suit--If however, determination affected and upset inter se position of sharers and might give one or more of the heirs advantage over the others, then the question would lie within the scope of administration suit and it was immaterial whether alienation sought to be challenged was by way of registered instrument or otherwise--Preliminary decree passed by Trial Court was set aside and case was remanded to Trial Court--Appeal was allowed accordingly. [Pp. 130 & 135] A & B
1997 CLC 167; 1982 CLC 976 and 1984 MLD 590 dissented. 1996 CLC 1847 and PLD 1975 Kar. 979 approved. PLD 1962 SC 291 disting. PLD 1981 Kar. 177 and PLD 2009 Lah. 641 ref. 2000 MLD 122 and 2008 CLC 484 ref.
Mr. Shafaat Hussain, Advocate for Appellants.
Mr. Abid S. Zuberi, Advocate for Respondents.
Date of hearing: 12.11.2010.
Munib Akhtar, J.--The present appeal arises out of an administration suit filed on the original side of this Court in which, by means of the impugned judgment dated 9-5-1996, the learned single Judge made a preliminary decree in respect of the properties of the deceased. The impugned judgment is reported as Ghazala Zakir v. Muhammad Khurshid and others 1997 CLC 167, and for convenience, all references to page numbers are to the reported version of the judgment.
2. The administration suit was filed by the present Respondent No. 1, as plaintiff, against the present appellant and the other respondents, as defendants. All of the parties are the heirs of the deceased Haji Muhammad Zakir. (It may be noted that some of the parties have since expired and are being represented in these proceedings by their successors in interest.) A number of issues were framed by consent (see page 169), of which only two inter-connected ones fall for determination in the present appeal. In his written statement, the present appellant took the stand that one property, located at North Nazimabad ("the subject property"), was also the property of the deceased and thus formed part of his estate and was liable to be administered along with the rest of the latter's properties. The case of the present Respondent No. 1 in respect of this property was that the deceased had gifted the same to her during his lifetime and that therefore the said property, and any issue relating thereto, including in particular, the question of the validity of the gift, lay outside the scope of an administration suit. In respect of the subject property, the following issues were framed by the Court:
"Whether the deceased owned other property i.e. Plot No. 1-499 (200 square yards) North Nazimabad, Karachi at the time of his death? If so, its effect on the suit?"
"Whether the deceased gifted Plot No. 1-499, Block `T' North Nazimabad, Karachi to the plaintiff during his lifetime?"
3. On 30-1-1992, it was ordered that these issues needed to be determined in particular since that would determine whether the said property came within the scope of the administration suit (the order is reproduced at pg. 170). The learned single Judge heard detailed arguments from learned counsel, and case-law was also extensively cited before him. The case of the plaintiff (i.e., the present Respondent No. 1) was that the subject property had been gifted to her during the lifetime of the deceased and did not stand in his name at the time of his death. The validity or otherwise of the gift could not therefore be questioned in an administration suit since the scope of such a suit was limited only to determining and administering those properties which stood in the name of the deceased at the time of his death. On the other hand, the case put forward by the present appellant was that since the gift in-question related to a matter that was inter partes among the heirs, the validity of the gift could be determined in an administration suit. After considering the matter, the learned single Judge came to the following conclusions and made the following observations (pages 175-6):
"(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 are 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 II, 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 plaintiffs plea that the property at North Nazimabad was transferred to her during the lifetime of the deceased. This operates as an estoppel against the defendants and now they cannot be allowed to take turn and challenge the same in this suit."
On the foregoing basis, the learned single Judge made a preliminary decree for the administration of the estate of the deceased from which the subject property stood excluded. Being aggrieved by this judgement and decree, the present appellant preferred the instant appeal.
4. Mr. Shafaat Hussain, learned counsel for the appellant, submitted that the learned single Judge had erred materially in his appreciation of the scope of an administration suit. He submitted that that the Court seized of an administration suit had ample jurisdiction to decide all matters between the heirs, including whether any alienation made by the deceased during his lifetime to an heir was valid or not. He referred to a number of decisions, including a decision of a single Judge of this Court reported as Ghulam Jilani and others v. Abdul Kadir and others 1996 CLC 1847. This was a case involving an administration suit in which one of the properties sought to be administered as part of the estate of the deceased was claimed by one of the heirs as his own property, although as the learned Judge noted, the heir did not in his pleadings specifically over the basis on which he claimed that the property was his. It was contended that the question whether the deceased had title to the property being claimed by the heir could not be the subject of an administration suit. A number of cases was cited before the learned single Judge and considered by him, being essentially the same case law that was considered in the impugned judgment. The contention was repelled by the learned single Judge, who held as follows:--
"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." (pp. 1851-52)
"It would, thus, appear, both on principle and on authority, that in a suit for administration properly so-called i.e. a suit the main or the real purpose of which is to have the estate of the deceased administered by the Court, this Court can for the purpose of achieving the object of such a suit, namely, collection and distribution of the estate, and as ancillary to order for administration, decide the question of Title to any property; and the power of the Court to do so extends to determining the existence or validity of any alienation of the property not only by other persons after the death of the deceased but also by the deceased during his lifetime." (pg. 1862)
5. Mr. Abid Zuberi, the learned counsel for the respondents, supported the impugned judgment and submitted that the learned single Judge had properly laid down the applicable principles and on the basis thereof, reached the correct conclusion that the matter of the subject property, being beyond the scope of an administration suit, should be excluded from the preliminary decree. He placed strong reliance on a decision of the Supreme Court reported as Syed Mehdi Hussain Shah v. Shandoo Bibi and others PLD 1962 SC 291 and a decision of a Division Bench of this Court reported as Asghar Ali v. Zohrabi and others 2000 MLD 122. He also referred to another decision of this Court reported as Tahira Parveen and others v. Saba Jamil and others 2008 CLC 484, and prayed that the appeal being without merit ought to be dismissed.
6. We have heard learned counsel for the parties, examined the record with their assistance, and considered the case law relied upon by them. It will be seen that in a sense, the question that falls for determination in the present appeal is whether the view taken in the impugned judgment, namely that the scppe of an administration suit is limited only "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 deceased, is correct, or whether the view taken in the Ghulam Jilani case (1996 CLC 1847), namely that "the power of the Court... extends to determining the existence or validity of any alienation of the property not only by other persons after the death of the deceased but also by the deceased during his lifetime" is to be preferred. If the, first view is correct, then all that the Court can do is determine which properties stood in the name of the deceased at the time of his death and administer the estate accordingly. It is to be noted that even on this view, a challenge to the validity of an alienation made by the deceased in his lifetime is not barred; it is only that such alienation can be challenged by means of separate proceedings. On the other hand, if the second view is correct, then the scope of an administration suit encompasses even alienations made by the deceased during his lifetime and the validity of the same can be determined by the Court in which the administration suit is pending. As noted above, most of the case-law, especially from the Indian jurisdiction, was extensively cited and considered in both cases. In order therefore to decide the present appeal, it will only be necessary to examine those cases which constitute binding authority for this Court, and also other single bench decisions of this Court to see whether the correct principles have been enunciated and applied in those decisions.
7. We start therefore with the decision of the Supreme Court reported as Syed Mehdi Hussain Shah v. Shahdoo Bibi and others PLD 1962 SC 291. This was a case involving the administration of the estate of a person who was of the Shia fiqh. The deceased left behind two daughters and administration proceedings were commenced by one of them. In the suit, the plaintiff joined not merely her sister as defendant, but also another person who claimed to be the widow of the deceased and the children claimed by the latter to be from her marriage to the deceased. In addition, the plaintiff also impleaded her paternal uncle (i.e., the brother of the deceased) who laid claim to one of the properties of the deceased on the basis of a will made by the latter. The plaintiff denied the validity of the will, and hence her uncle's right to any share in the estate. The uncle took the plea that the suit as framed was not maintainable, since the validity of the will had been challenged. On this, an issue was framed by the Court, which was decided in favour of the plaintiff, i.e., it was held that an administration suit was maintainable. A revision taken to the High Court against this decision failed, and the uncle appealed to the Supreme Court. The Supreme Court first explained the scope and meaning of an administration suit:
"In the absence of any specific provision in the procedural law the question as to the matters to be determined and the parties to be impleaded in a suit depends on the relief that is to be granted in that suit. With respect to an administration suit no such specific provision exists though the competence of such a suit is recognized in Order XX of the Civil Procedure Code and in the forms of plaints and decrees contained in Appendices to that Code. 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 administrator, it will realize 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.... It is clear that for 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.... There should be no objection to a plaintiff joining in an administration suit all those who claim to be entitled to a share in the property of the deceased and whose claim he wants to be adjudicated upon. To refuse the plaintiff to implead such persons will lead to an almost intolerable situation... It seems clear therefore that an acceptance of the contention of learned counsel for the appellant may lead to a hopeless multiplicity of suit." (pp. 293-4)
It was contended on behalf of the uncle that since, according to the plaintiff, the will under which he claimed was invalid, he was a stranger to the administration proceedings and hence, any order made against him would be tantamount to using an administration suit to gain possession from, or to dispossess, a stranger to the estate. The submission was that this lay beyond the scope of an administration suit and was a matter that could only be decided by separate proceedings. The Supreme Court emphatically rejected this contention:
"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 to be 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 of decision in an administration suit and in fact learned counsel for the appellant does not contend to the contrary, his plea being that a defendant 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." (pg.294)
It will be seen from the foregoing that the question raised before and decided by the Supreme Court was entirely different from the question that requires determination in the present appeal. The question before the Supreme Court was only whether an administration suit lay against a person claiming a share in an estate, whether as an heir or as a legatee, which claim was denied by the plaintiff, and this question was answered in the affirmative. In the present case, there is no dispute as to who are the heirs of the deceased Haji Muhammad Zakir. The facts of the present case, and the issue before this Court, are therefore entirely dissimilar.
8. The next case that requires consideration is the Division Bench decision of this Court reported as Asghar Ali v. Zohrabi and others 2000 MLD 122. In this case, the administration of two properties, one standing in the name of the husband and the other in the name of his wife (both deceased) was sought by their two daughters, who impleaded the other heir, their brother, as the defendant. The defendant claimed that one of the properties, namely the one that stood in the name of his deceased mother at the time of her death, was not the latter's property, but the property of the defendant and hence outside the scope of the administration suit. His case was that he had acquired the property from his own funds. However, the learned single Judge made a preliminary decree in respect of both the properties, and the defendant appealed against this decision. The appeal was dismissed, the Division Bench observing, inter alia, as follows:
"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 funds, when the said property even stood in the name of his mother at the time of her death." (pg. 128)
9. The other decision relied upon by learned counsel for the respondents, Tahira Parveen and others v. Saba Jamil and others 2008 CLC 484, was also a High Court Appeal but one with a rather unusual litigation history. The appeal was dismissed by means of a short order, but before the reasoned judgment could be delivered, the events of November 3, 2007 intervened and one of the learned members of the Bench (who coincidently is one of us, i.e., Muhammad Athar Saeed, J.) ceased to function as a Judge for the duration. The other learned member, who continued to serve as a Judge, released his reasons for the short order. It is these reasons, which are of course not the reasons of the Division Bench and hence have no binding authority, that appear in the report of the decision. The facts of the case were quite similar to those in the Asghar Ali case. At the time of the passing away of the deceased, the disputed property (a plot with a house constructed on it) stood in his name. However, it was claimed by the successors-in-interest of one of the heirs (a son of the deceased, by name Anwar) that the property was his as he had significantly contributed towards the purchase of the plot and the completion of the structure built on it. Notwithstanding this claim, the learned single Judge made a preliminary decree which included the property in dispute. The appeal against this decision failed and, as noted above, was dismissed by means of a short order. In his reasons, the learned Judge opined as follows:
"The purpose of a suit for administration and partition is to decide whether the property belongs to deceased or not and without deciding this it is not possible for the Court to administer and partition the property. The scope is limited. The question of title to a property claimed by any heir in his own independent right cannot be determined in these proceedings. The object was to determine the estate of the deceased at the time of his death. Admittedly at the time of death, the property stands in the name of deceased owner and the appellants have failed to prove that the same was relinquished in favour of Anwar by the deceased owner in his lifetime." (pg. 491)
10. learned counsel appearing on behalf of the respondents sought to argue from the foregoing two decisions of this Court that the correct legal principle was that the Court could only look at the properties that stood in the name of the deceased at the time of his death, and it was only these properties that formed part of the estate. However, in our view the cited cases do not support any such conclusion. All that the cases decide is that even if a property that stands in the name of the deceased at the time of his death is claimed by an heir in his own right, it may be regarded as forming part of the estate of the deceased. It may be noted that in the Tahira Parveen case, evidence was led before the preliminary decree was made and the putative owner (or rather, his successors in interest) were given an opportunity to establish the case that the property actually belonged to the heir. Upon a consideration of the evidence, it was held that no such case had been made out. In the Asghar Ali case, it was contended that the preliminary decree was bad as it had been made without recording any evidence. The Division Bench repelled this contention, observing that it was open to the putative owner to adduce evidence in support of his claim even after the preliminary decree (see at pg. 128). Thus, it was not held in either case that in an administration suit, an heir could not raise an objection that a property standing in the name of the deceased was actually the heir's and did not belong to the deceased. It was simply that a preliminary decree could be made for such property as well (since it stood in the name of the deceased); the putative owner could object to such inclusion either before or after the preliminary decree. If the scope of an administration suit allows an heir to raise such an objection, then surely the converse, namely an objection to an alienation made by the deceased in his lifetime in favour of an heir ought also to be within the scope of an administration suit. Thus, if anything, the two cited cases indicate that the Court seized of an administration suit has ample jurisdiction to decide issues of title raised by any of the heirs in respect of any of the properties sought to be administered.
11. The nature of an administration suit, as explained by the Supreme Court, has been noted above. There are, in general, two classes of persons who can be regarded as having an interest in the estate of the deceased: creditors and sharers. The present proceedings are not concerned with creditors and therefore nothing more need be said about this class. Insofar as sharers are concerned, they fall into two categories, heirs and legatees (i.e., those entitled to a share, whether of movable or immovable property, under a will). The first order of business therefore is to determine who are the sharers, and as the Supreme Court has made clear, this is a matter well within the scope of an administration suit. Since an administration suit, even if adversarial in nature, is for the benefit of all the sharers, the next question is a determination of the properties of the deceased since it is these properties that constitute the estate and are to be administered by the Court. The key question is, what is the proper scope and extent of this enquiry, within the context of an administration suit. This is the question that lies at the heart of the present appeal. (It is important to keep in mind that even if the question whether a particular property is part of the, estate cannot be decided in an administration suit, such a question can undoubtedly be decided in separate proceedings.) How is the boundary to be drawn to determine what lies within the scope of an administration suit, and what is outside its purview? On one hand is the reluctance of the law to countenance any multiplicity of litigation and its desire that such an outcome be avoided if at all possible. On the other is the recognition that the nature of an administration suit is limited, inasmuch as it is intended only to settle issues and matters among the sharers. In our view, when these considerations are balanced, the proper test to establish whether such a determination lies within the scope of an administration suit, or beyond it, is as follows: if the determination will not disturb the inter se position of the sharers, and will affect all the sharers equally, then the question lies outside the scope of the administration suit. If however, the determination will affect and uspset the inter se position of the sharers, and may give one or more of the heirs an advantage over the others, then the question lies within the scope of the administration suit. It is immaterial whether the alienation sought to be challenged was by way of registered instrument or otherwise. A few examples may help illustrate the point. Suppose the question is whether the sale of a property by the deceased to a stranger is liable to be set aside on account of fraud. A determination of this issue does not affect the inter se position of the sharers. If the issue is decided in favour of the estate, all the sharers will benefit equally to the extent of their respective shares (the property will form part of the estate). If the decision is to the contrary, the inter se position of the sharers will again remain unaltered. A determination of this question then lies beyond the scope of an administration suit, and it must be settled by separate proceedings. On the other hand, suppose the question is whether the sale of a property by the deceased to an heir is liable to be set aside on account of fraud. As is obvious, a determination of this issue does affect the inter se position of the sharers. This question then lies within the scope of the administration suit. If the question were held to be outside the scope of such a suit, that would lead to needless multiplicity of proceedings. A separate suit would have to be filed among the same parties to determine whether the property forms part of the estate, and if the question is answered in the affirmative, the property would have to be administered separately or afresh. A third situation could be where an heir claims a property in his own right and contends that it does not form part of the estate. This again is a question the determination of which could affect the inter se position of the sharers. The question would therefore fall within the scope of the administration suit. This conclusion is fully in accord with the decisions of this Court in Asghar Ali and Tahira Parveen (supra). As noted above, in both cases, one of the heirs claimed in his own right a property standing in the name of the deceased. Notwithstanding such claim, the preliminary decree included the property. In both cases, an appeal against such inclusion failed, and it was held that the putative owner could have the issue determined in the administration suit.
12. In light of the foregoing analysis, we are of the view that the specific question raised in this appeal, namely whether the validity of the gift of the subject property by the deceased to the Respondent No. 1, an heir, came within the scope of the administration suit, must be answered in the affirmative. Quite obviously, a determination of this question affects the inter se position of the heirs. The initiation of separate proceedings to determine this question would lead to a needless multiplicity of litigation among the same parties. In this context, we would also note that the use of the expression "closed and past transaction" by the learned single Judge was somewhat unfortunate. This expression is normally used in the context of a change in the law, when the question before the Court is whether such change affects something that has already occurred or a right that has already vested. Furthermore, a "closed and past transaction" cannot be reopened at all and if the gift were such a transaction, it could not be challenged even in separate proceedings. That is obviously not the case, since the question before the learned single Judge was limited only to determining whether the gift could be challenged in the administration suit. Equally, the learned single Judge's observation that the challange to the validity of the gift was hit by estoppel was also inapposite since such an observation could only be premised on the challenge being within the scope of the administration suit, and on this point the learned single Judge had given a negative finding.
13. We would therefore (subject to the test formulated in Para. 11 above) sum up the foregoing analysis in the form of the following propositions:
(a) when the question is whether a property forms part of the estate of a deceased, and a determination of this question involves a person who is a stranger to the estate, then the question should be determined by means of separate proceedings;
(b) proposition (a) is subject to the qualification that if the question is also whether the stranger is a sharer in the estate, then the matter comes within the scope of the administration suit;
(c) when a determination of the aforesaid question involves a person who is a sharer in the estate, then the question conies within the scope of the administration suit, and this is so regardless of whether the sharer claims through or under the deceased (e.g., by way of a gift or sale from the latter) or in his own right;
(d) it is immaterial whether or not the property in-question stood in the name of the deceased at the time of his death, and it is likewise immaterial whether any alienation was by way of a registered instrument or otherwise.
14. We now turn to consider the single bench judgments of this Court in the light of the foregoing. The first decision is reported as Muhammed Bibi and others v. Abdul Ghani and others PLD 1975 (Kar.) 979. Although the actual facts of this case were different, the following observations of the learned single Judge require to be noted:
"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." (Para. 43 at pg. 1004)
15. The next decision is reported as Ayesha Bai and another v. Shahida and others PLD 1981 Kar 177. This was an administration suit instituted by the widow and son of the deceased (Haji Muhammad Ibrahim) against his daughter, the three being the only heirs. In addition to the daughter, certain other persons were also impleaded as defendants, who were admittedly not the heirs of the deceased. Three properties were in dispute. As to two of these properties, the defendants contended that the properties belonged to a (predeceased) brother (Muhammad Umar) of the deceased and thus had nothirig to do with the latter. As to the third property, it was contended that the same belonged solely to the Defendant No. 5 (who was not an heir) and the deceased had nothing to do with that property as well. The suit was nonetheless allowed to proceed as an administration suit. The learned Judge's attention was drawn to the observation of the Supreme Court in the Mehdi Hussain Shah's case (supra) to the effect that the plaintiffs "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". The learned Judge held that this observation did not apply, as the (non-heir) defendants were alleged to have taken over the properties in collusion with the Defendant No. 1 (the daughter). As to whether the properties formed part of the estate, the learned Judge held, in relation to the properties that had belonged to the predeceased brother, as follows:--
"The plea is not taken in the written statement that Muhammad Umar left behind any other heirs and, therefore, deceased Haji Muhammad Ibrahim as a brother, in the absence of any wife and children of surviving Muhammad Umar, could have acquired the tenancy rights or at least a share in both the properties." (pg 182-3)
As to the third property, the learned Judge observed as follows:
"If in the plaint the only property shown to have been left by the deceased had been [the third] property ... the present suit would not have come within the compass of Order XX, Rule 13, C.P.C. However, as I have already held that on account of the pleadings in this suit in relation to the other two [properties] this suit as an administration suit is maintainable, the issue whether [the third] property ... belonged to the deceased at the time of his death can also be decided in the present administration suit. 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 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." (pg 183); Emphasis supplied)
In our view, this case does not lay down any generally applicable principle, and as the learned single Judge himself recognized, must be regarded as turning on, and limited to, its own special facts. Certainly, the joining of the third property, which was claimed by a stranger to the estate, would militate against the suit proceeding as an administration suit. Even as regards the other two properties, the question whether the deceased was an heir of his predeceased brother would not be a question among his own heirs (i.e., his widow and son, the two plaintiffs, and his daughter, the Defendant No. 1). Thus, in relation to all the three properties allegedly forming part of the estate, the questions raised involved strangers to the estate. In our view, if the same or similar facts arose today in any suit, it would be incorrect to regard it as an administration suit.
16. The third decision is reported as Muhammad Younus Qureshi and others v. Mrs. Feroz Qureshi and others 1982 CLC 976. In this administration suit, one property was in dispute, which the widow of the deceased claimed had been gifted to her by the latter, and on which she had raised a construction with her own funds. The widow claimed that she had subsequently sold away the property. It was held that the dispute whether the property formed part of the estate did not lie within the scope of the administration suit, and could only be decided by separate proceedings. In our view, with respect, this decision cannot now be regarded as good law. Clearly, the inter se position of the heirs was affected by the claim put forward by one of them, i.e., the widow. Putting them to separate proceedings would only lead to a needless multiplicity of litigation. The fact that the widow had sold away the property also could not stand in the way of the question being determined in the administration suit. If the Court concluded that the property formed part of the estate, then the widow would have to account for the sale proceeds of the property, and the other heirs would be entitled to their respective shares therein.
17. The last single Bench decision of this Court that needs to be examined is reported as Yusuf v. Zubeda and others 1984 MLD 590. Here the issue relevant for present purposes was whether one property, which stood partly in the name of an heir, and which share was claimed by him in his own right, could be included in the preliminary decree. It was contended by the other heirs that the share actually belonged to the deceased. The learned single Judge held as follows:
"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 cannot form part of the estate of the deceased for the present one, 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." (pg 591-92)
In our view, with respect, this decision, like the one before it, cannot now be regarded as good law. The inter se position of the heirs was obviously affected. Putting them, as the learned single Judge observed, to separate proceedings would only lead to a needless multiplicity of litigation. Were a similar matter to be litigated today, it would be regarded as coming within the scope of an administration suit.
18. Finally, we would refer to a recent Division Bench decision of the Lahore High Court reported as Dr Zia-ur-Rehman Khan and another v. Dr. Atiq ur Rehman PLD 2009 Lah. 641. The deceased left a number of properties, of which three were claimed by the respondent-defendant in his own right. A preliminary decree was drawn up in an administration suit filed by the appellants, but the three properties were not included in the decree. On appeal, the Lahore High Court held that the three properties came within the scope of the administration suit.
19. In view of the foregoing discussion and analysis, we hold in conclusion that the impugned judgment must be reversed and set aside (except to the extent of the making of the preliminary decree in respect of the undisputed properties), with the result that the decision as reported (Ghazala Zakir v. Muhammad Khurshid and others 1997 CLC 167) cannot be regarded as good law. Furthermore, subject to what has been said in this judgment, the observations made in Ghulam Jilani and others v. Abdul Kadir and others 1996 CLC 1847 (as reproduced above in para.4) and in Muhammed Bibi and others v. Abdul Ghani and others PLD 1975 Kar 979 (as reproduced above in Para. 14) are approved. The appeal is allowed in the above terms and matter is remitted for further proceedings in Suit No. 1 of 1988 for a decision on the two issues noted in Para. 2 above. If the subject property is found and held to be part of the estate of the deceased Haji Muhammad Zakir, an appropriate preliminary decree shall be made in respect thereof and the matter shall be further dealt with in accordance with law. Since this is an old matter, which has remained lingering for a number of years, it is hoped that the aforesaid two issues will be heard and decided within a period of four months. There shall be no order as to costs in this appeal. The listed applications, having become infructuous, are disposed off as such.
(R.A.) Case remanded.