IN THE HIGH COURT OF SINDH AT KARACHI
Plaintiff : Khair Muhammad Khatian and others,
Through Mr. Haider Waheed, advocate.
Defendants : Liaquat Ali G. Kazi and others,
Through Mr. Mushtaq A. Memon, advocate for defendants No.1 & 3.
Mrs. Shazia Hanjrah, advocate for Nazeer Ahmed Mehar, alleged contemnor No.2.
For hearing of CMAs No. 5138/2014 & 10978/2014
Date of hearing : 15.04.2015.
Date of announcement : 13.05.2015.
O R D E R
SALAHUDDIN PANHWAR – J :-Through application under Order 39 Rules 1 & 2 CPC (CMA No.10978/2014) the plaintiffs seek restraining orders against defendants, regarding creating third party interest in respect of property No.54, JM-9985, measuring 1609 sq. yards, situated at Muslimabad Cooperative Housing Society Ltd, Karachi, till final disposal. Defendants No.1 and 3 in their application filed under Order 39 Rule 2(3) CPC (CMA No.5318/2014), prays to initiate contempt proceedings against plaintiffs and alleged contemnors for disobedience of injunction order, whereby parties were directed to maintain status-quo as well seeks direction and to restore the position existed at the time of grant of status quo orders.
2. Succinctly, relevant facts as set out in the plaint are that the grand father of plaintiffs No.2 to 6 late Ghulam Mustafa S. Kazi (deceased) died on 16.06.1972 leaving behind follow heirs :-
1. Sikandar Kazi
2. Imam Ali Kazi
3. Dr. Haider Ali Kazi
4. Akhtar Ali Kazi
5. Liaquat Ali Kazi
6. Mehmooda Kazi
7. Hafiza Yahya
8. Dr. Nargis Farooqi
9. Asif Ali Kazi
10. Saeeda Qureshi
11. Zafar Ali Kazi
3. Out of other legal heirs Sikandar Kazi, the wife of deceased and late Imam Ali Kazi died on 27.6.1977 and 05.08.1997 respectively. The plaintiffs and defendants are claiming to be legal heirs. Instant suit pertains to the properties mentioned in para 8 as under :-
Residential House, Property No.54, JM-9985, measuring 1609 sq. yards, situated at Muslimabad Cooperative Housing Society Ltd, Karachi, in possession of Liaquat Ali Kazi/defendant No.1, and
Agricultural land, Deh Bandh, Tapo Bandh, Ghotki, Talika, District Ghotki, Near Qadirpur Gas Fields, in occupation of Liaquat Ali Kazi/defendant No.1.
As per pleading, residential House described above, has been in the occupation of defendant No.1 for the last 39 years whereas the agricultural land was in occupation of Akhtar Ali Kazi till October 2010 and thereafter possession was handed over to defendant No.1; cause of action arose in favour of plaintiffs when legal heir Mehmooda Khatian from whom the right of inheritance devolved on plaintiffs of said deceased passed away on 27.07.1984 and subsequently when defendants refused to distribute said estate amicably despite efforts for compromise.
4. In the above background plaintiff prays as under :-
(A) That the Honourable High Court may be pleased to permanently restrain the defendants, their agents or officers, from encumbering the said property, or from creating any liabilities thereon, or selling or alienating the same in any manner;
(B) That the Honourable High Court may be pleased to pass a preliminary decree ordering accounts and enquiries to be taken pertaining to the arrears of rent of the said property, from the date of death of the said deceased till date, and give such other directions as this Honourable Court deems fit;
(C) That the Honourable High Court may be pleased to pass a final decree administering the estate of the said deceased amongst the surviving legal heirs;
(D) That the Honourable High Court award costs of the suit to the plaintiffs;
(E) That the Honourable High Court may be pleased to award any and all reliefs to the plaintiffs as it deems fit and appropriate.”
5. In contra, defendant No.1 filed written statement contending therein that suit is incompetent as predecessor in interest of plaintiffs namely Mahmooda Khatian during her lifetime had alienated her entire share by way of gift in favour of defendant No.1, present suit is an indirect attempt to obtain cancellation of gift made by above named Mahmooda Khatian after expiry of limitation prescribed by law; that plaintiffs do not have any right to seek administration of estate of deceased and no cause of action accrued to them; suit is incompetent and liable to be rejected on account of non-joinder of necessary parties i.e. the children of Mrs. Saeeda Qureshi whose names are stated as (a) Dr. M. Shafi Qureshi, son, since deceased through his legal heirs namely (i) Mrs. Sadia Qureshi, (ii) Muhammad Saleh Qureshi, (iii) Muhammad Saleh Qureshi, (b) Dr. M. Saeed Qureshi, (c) Dr. M. Muneer Qureshi, (d) Dr. Mrs. Noor Jehan and e) Ms. Shaheen Quraishy; that while all plaintiffs are legal heirs of Mahmooda Khatian hence immovable property sought to be administered through decree in the present suit can not be claimed by any plaintiff as Late Mahmooda Khatian had no interest or right left in the subject property and thus plaintiffs can not claim administration and accounts in respect of the subject property. Defendant No.1 denied that plaintiffs have any present right or share in respect of properties left by deceased; plaintiffs can not inherit what was already relinquished by late Mahmooda Khatian; alleged working of shares is contrary to law; that plaintiffs are not entitled to claim any rent or share in estate of deceased G.M. Kazi; their predecessor in interest late Mahmooda Khatian had no right or interest in subject properties at the time of her demise on 27.07.1984, the institution of present suit and claim for arrears of rent after such long delay speaks for itself. The defendant No.3 filed written statement reiterating the same pleading as insisted by defendant No.1.
6. Learned counsel for plaintiff has argued that the plaintiffs are legal heirs of deceased Mst. Mehmooda Khatian who passed away on 27.7.1984 after the death of deceased (16.6.1972); that plaintiffs have filed instant suit for inheritance share of Ms. Mehmooda Khatian which was devolved to the plaintiffs after her death; after the death of Ms. Mehmooda Khatian her legal heirs (plaintiffs) get assigned her rights of inheritance therefore the plaintiffs become the legal heirs hence can file a suit for administration of estate of late Ghulam Mustafa G. Kazi under Ms. Mehmooda Khatian; plaintiffs filed this suit for administration after her death, hence same is maintainable; judgment relied upon by other side being 2014 CLC 1006 to claim that plaintiffs did not have a right to file instant suit, said judgment does not have the enunciation of law that learned counsel for defendants is claiming it to have. The enunciation of law in said judgment has to be read with facts for it to be interpreted in the right context. That non impleading of parties is not a non-curable defect and suit can not be dismissed on this ground, that article 120 of Limitation Act does not apply to suit for administration; there is no limitation for exercising the right to inheritance independent of the fact that who has the possession; that defendant No.10/Society is a proforma party and no prayer is sought against him and moreover the society was made a party so that relevant records of same may be adjusted once administration is allowed to plaintiffs. Learned counsel has relied upon case laws reported as MUHAMMAD ALI ABBAS vs. Syed HASSAN RAZA RIZVI [2014 CLC 1006], FAQIR BAKHSH vs. JINDWADDA [2005 YLR 2882], Mst. JANNAT BIBI vs. SARAS KHAN [2011 SCMR 1460], BASHARAT ALI vs. MUHAMMAD ANWAR [2010 SCMR 1210], MUHAMMAD IQBAL vs. ALLAH BACHAYA [2005 SCMR 1447], ASWAR MUHAMMAD vs. SHARIF DIN [1983 SCMR 626], Mst. SHAHNAZ alias JAHAN ARA vs. Syed AHTISHAM ALI SHAH [2015 CLC 672], Mst. SUBAN vs. ALLAH DITTA [2007 SCMR 635], TAHIR IKRAMULLAH vs. MST. ZUBAIDA KHANUM [2002 MLD 334], GULAB DIN vs. Mst. JANNAT BIBI [2010 MLD 156], QADIR BAKHSH vs. SHAHAL [2001 MLD 686], BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, LAHORE vs. FARRAKH MANSHA [2001 MLD 690], KHAIR DIN vs. Mst. SALAMAN [PLD 2002 Supreme Court 677], GHULAM ALI vs. GHULAM SARWAR NAQVIPLD [1990 Supreme Court 1], RAFIQUE AHMAD vs. Mst. SAKHOO MAI [2005 CLC 1173], Syed MUHAMMAD BAQIR SHAH vs. FARIDA SAJID [2013 CLC 52] and MUHAMMAD NAWAZ vs. MUHAMMAD KHAN [1989 CLC 2140].
7. Learned counsel for defendant has argued that plaintiff has filed suit for administration of properties relating to deceased late G.M. Kazi who died about 39 years back leaving behind legal heirs, some of legal heirs have also passed away. Plaintiffs deliberately and intentionally have not joined legal heirs of Saeeda Qureshi, suit is hit by Limitation Act as plaintiffs are claiming the possession; instant suit is specific for properties same is not in general terms, hence plaint does not fall within the purview of suit for administration. The plaintiffs have not given proper table of distribution of shares; while at the time of admission of suit, parties were directed to maintain status quo inspite of that they have sold out the agricultural land hence they are liable to be prosecuted under contempt law; official respondents inspite of having knowledge as defendant approached to them for transfer of title; they are also liable for contempt proceedings; plaintiffs are legal heirs of Mehmooda who died after 12 years of the death of her father late G.M. Kazi, during her life she did not claim her right over the properties of deceased, hence plaintiffs have no right to claim any inheritance as their inheritance ceased when their mother died hence when deceased G.M. Kazi died they were not in legal heirs therefore they were not legal representatives and their mother during life did not claim anything from the properties. In support of his contention he has relied upon case laws reported as ARTS COUNCIL OF PAKISTAN vs. RIAZUDDIN PIRZADA [PLD 1969 Karachi 349], YASMEEN QURESHI vs. TARIQ QURESHI [PLD 2006 Lahore 311], KHURSHEED AHMED through Attorney vs. FAYYAZ AHMED [PLD 2006 Karachi 234], MUHAMMAD ALI ABBAS vs. Syed HASSAN RAZA RIZVI [2014 CLC 1006], MUHAMMAD SULAIMAN MALIK vs. ROYAL TRUST CORPORATION OF CANADA [PLD 1983 Karachi 382], FIDA HUSSAIN SHAH vs. MUHAMMAD RAFIQ SHAH, DR. A. N. M. MAHMOOD vs. DR. M. O. GHANI, VICE-CHANCELLOR [PLD 1967 Dacca 67], IFTIKHAR ALI vs. JAVED DASTGIR [PLD 1975 Lahore 126], NOOR MUHAMMAD vs. CIVIL AVIATION AUTHORITY [1987 CLC 393], NAZAR MUHAMMAD vs. DISTRICT COUNCIL [PLD 1992 Lahore 200], M. O. GHANI, VICE-CHANCELLOR, UNIVERSITY OF DACCA vs. DR. A. N. M. MAHMOOD [PLD 1966 SC 802] and GHULAM JILANI vs ABDUL KADIR [1996 CLC 1847].
8. With regard to contempt application learned counsel for plaintiff contends that albeit two properties were mentioned in the plaint as subject matter properties but injunction application, seeking interim relief with regard to one property/residential house, situated at Karachi hence at the time of admission of suit notices were issued on that application and parties were directed to maintain status quo therefore transfer of land in any way is not in violation of status quo order therefore contempt application is not maintainable.
9. Mrs. Shazia Hanjrah learned counsel for official respondent argued that her client was not party in this suit, no notice was issued nor they were having any intimation with regard to pendency of this suit; stay order was applicable to the parties in the suit; mutation was effected prior to filing application; hence official defendants have not committed any contempt. In support of her contention she has relied upon KHALID RASHID vs. KAMRAN LASHARI, Chairman, C.D.A., Islamabad [2010 SCMR 594] and ABDUL MAJEE vs. GOVERNMENT OF SINDH [PLD 2000 Karachi 310].
10. At the very outset I would like to examine the scope of the ‘Administrative suit’ which, since, not defined but is covered by Order XX rule 13 of the Code hence the same, being material, is referred hereunder:-
13.-(1) Where a suit is for an account of any property and for its due administration under the decree of the Court, the Court shall, before passing the final decree, pass a preliminary decree, ordering such accounts and inquiries to be taken and made, and giving such other directions as it thinks fit.
1(2) In the administration by the Court of the property of any deceased person, if such property proves to be insufficient for the payment in full of his debts and liabilities, the same rules shall be observed as to the respective rights of secured and unsecured creditors and as to debts and liabilities provable and as to the valuation of annuities and future and contingent liabilities respectively, as may be in force for the time being, within the local limits of the Court in which the administration suit is pending with respect to the estates of persons adjudged or declared insolvent; and all persons who in any such case would be entitled to be paid out of such property, may come in under the preliminary decree, and make such claims against the same as they may respectively be entitled to by virtue of this Code.
(underlining is for emphasis)
The Rule 13(1) makes it quite clear that the Court is competent to entertain a suit for ‘account’ of any property and for its due administration under the ‘decree of the Court’. This is not confined or restricted to the estate of deceased only but the object thereof is ‘administration’ of ‘any property’ under the ‘decree’ of the Court for an ultimate object of :-
“‘ordering such accounts and inquiries to be taken and made”
Here the definition of term ‘administration’ would make this aspect rather clear, which, per Black’s Law Dictionary (Eighteenth Edition)
”1.The management….., 2) In public law, the practice……, 3) A judicial action in which a court undertakes the management and distribution of property: Examples include the administration of a trust, the liquidation of a company, and the realization and distribution of a bankrupt estate. 4. The management and settlement of the estate of an intestate descendent, or of a testator who has no executor, by a person legally appointed and supervised by the Court. Administration of an estate involves realizing the movable assets and paying out of them any debts and other claims against the estate. It also involves the division and distribution of what remains’
As discussed above, it should not be disputed any more that an ‘administration of estates’ is not limited or confined to the estate of the deceased only but the court is competent to undertake such proceedings in respect of any property. Since the issue, involved in the matter, revolves round the ‘estate of deceased’ which is governed and controlled by the Rule 13(2), therefore, I would confine myself to that only. This speaks and deals with a situation where the property of a ‘deceased’ is to be administered. The object thereof (Order XX rule 13(2) of the Code) stood defined by Honourable apex courts as:-
‘to determine what estate the deceased left at the time of his death; administration thereof; payment of debts and liability and partition of rest of estate between the heirs’
The above can well be rephrased as an inquiry to determine:-
‘1. what estate the deceased left at the time of his death;
2. administration thereof;
3. payment of debts and liability; and
4. partition of rest of estate between the heirs’
11. From above, it prima facie appears that ultimate object of the ‘administrative suit’ is that of partition/distribution of shares among the legal heirs of what (the estate) a deceased has left at the time of his/her death but after payment of debts and liability. Thus, the person, qualifying the test of ‘heir’ of the deceased; a ‘creditor’ or even a Legatee, that is to say, a person to whom a cash legacy has been bequeathed, can competently file the administrative suit either for his share in estate or deceased or for his due against deceased. The purpose and object of the ‘inquiry’ is nothing but to bring the following determined i.e :-
a) estate of deceased, left at time of death;
b) temporary ‘administration’ till payment of debts and liabilities out of such estate and finally division/distribution and partition of remaining among the legal heirs, entitled at such time;
12. Thus, it should not be disputed or confusing any more that the administration on such estate is nothing but a temporary step/arrangement not only to pay up/clear liabilities of such deceased but to safeguard the interests and rights of all legal heirs for which they (heirs) would be entitled under law of inheritance which governs them. Hence, it can safely be said that the object and scope of the ‘administrative suit’ relates and revolves round the law of inheritance which always demands clearing of liabilities of deceased first and distribution of remaining (assets) among the heirs later. I would take advantage of the case of Mahbub Alam vs. Razia Begum (PLD 1949 Lahore-263) wherein it was held that:
“Thus, the theory that the property of a deceased Muslim vests in his heirs immediately after his death is considerably tempered by the injunction that the heir is entitled only to the residue after the payment of a legacy or debt, and since the payment of debts and legacies necessarily involves the administration of the estate, such administration is implied in the very words of the Holy Quran and of authentic texts like the Sirajiyyah”
(Underlining is supplied for emphasis).
13. At this juncture, before proceeding further it would be relevant to say that law is quite clear on following propositions:-
i) Succession opens the moment one dies and is continuing in nature and character;
ii) there runs no limitation in matter of inheritance;
It is pertinent to mention that an administrative suit shall not be barred on point of limitation nor it can fail on the count that the person, filing the suit, stands how low-so-ever, may be, in pedigree of the deceased whose estate is being sought to be administered because the term ‘heir’ is not restricted to son/daughter alone rather the ultimate object of the ‘administration of a deceased’s estate’ is to give due to heirs, entitled. Had there been any other intention the law should have confined it by mentioning the particular word or term. Needless to refer the well settled principle of law that inheritance/succession is a continuing right which is not dependant upon ‘mutation’ in record, if made or not. I have gone through the case law, referred by the learned counsel for the defendant as MUHAMMAD ALI ABBAS vs. Syed HASSAN RAZA RIZVI (2014 CLC 1006) wherein it is held that:-
’13. Yet another hurdle…….This is fatal to these proceedings as no suit for administration of the estate of properties can be filed by someone who was not amongst the legal heirs of the deceased at the time of opening of succession to claim any thing by way of inheritance. This is basic principle of inheritance.’
(Underlining is supplied for emphasis)
With due respect to above, I do not find myself in agreement with the above conclusion because if this is allowed to hold the field it shall amount bringing a ‘full stop’ to succession which, in all senses, is a continuing in nature hence this view cannot be stamped. The issue of getting an estate partitioned normally arises when differences accrue between the members of a family, therefore, a harmony or understanding between the members of a family cannot be taken as a sword to deprive a ‘legal heir’ from his guaranteed fundamental right for which he/she, otherwise, is entitled under the relevant law of inheritance. Suppose a family, consisting on grand parents, parents and grand children met with an accident where grand parents and parents dies with some interval of times and only grand children survives who, on opening of the successions, not only received rights but also liabilities of deceased grand father. In such eventuality, it cannot be legally said that an administrative suit shall be incompetent if there are questions requiring an inquiry towards ‘what was left by deceased or whether a particular property is a part of estate of deceased’. In case of Mahbub Alam vs. Razia Begum (PLD 1949 Lahore-263), the case of Essafally Alibhai (I L R 45 Bom. 75 was referred wherein similar point was attended and it was held as:
“I cannot myself see why an administration suit in this case cannot lie, considering that Ghulam Hussain died in 1904; that his estate has never been distributed; and that his estate has never been administered. It is impossible for any one who could prove he was entitled to an interest in the estate to get that interest until the estate has been ascertained by proper administration. It is perfectly true that under the law there is no need on the death of a Muhammadan for Letters of Administration to be taken out to his estate, and the result, as I have often pointed out, is that frequently the heirs live in harmony after his death without distributing the estate. Some of them may die leaving their heirs, and it is only when disputes arise in the family that the trouble begins. The point is abundantly clear that if there is an estate it can be administered, and if a party who has an interest in that estate has asked the Court to administer that estate, even if he knows exactly what it consists of, he is entitled to come to Court and ask for a preliminary decree for the administration of that estate. He is not bound, even although he knows what the estate consists of, to file a suit for partition. He may do so or he may not. * * * .
It may be discovered when the suit is heard on the merits that Alibhai and Mariambu have no interest in Ghulam Hussain’s estate. But that has nothing to do with the preliminary point which has been decided against the plaintiff.’
(Underlining is provided for emphasis).
14. Let me again emphasis that well settled scope of the ‘administrative suit’ , as was held in case of Syed Mehdi Hussain Shah vs. Mst. Shadoo Bibi & another (PLD 1962 SC 291) wherein it is held that:-
“…. 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.”
(Underlining is supplied for emphasis)
In addition to above, I am strengthened in such conclusion with the fact that the ultimate object of ‘distribution of the remaining estate among those ‘entitled to it’ is also sufficient to show that the scope does not restrict the right to file an ‘administrative suit’ to those only who were alive at the time of death of the deceased, however, is confined to what the deceased has left at the time of his/her death. It may also be added that distribution of estate of a deceased among the legal heirs after payment of debts and legacy is a divine direction which in no way could be denied on plea of death of one of the legal heir of deceased during intervening period when necessity arise to seek partition or administration. Needless to add that in an ‘administrative suit’ the question of one to be ‘heir’ or otherwise can well be inquired and determined by the Court, trying such suit. This however, gives rise to another question that when normally the matters of inheritance are covered through ordinary suit then why the law has provided another mechanism for the purpose which, otherwise, appear to be one of ‘inheritance’.
15. This has made me to say that a suit shall qualify the status of ‘administrative suit’ when the ‘administration’ of a property/estate under decree of the Court is required as temporary arrangement till payment of debts, liabilities and distribution/partition of residue among legal heirs if this strictly revolves round the ‘creditor’, ‘legatee’ and ‘legal heirs/ sharers’ alone. Since the object of the ‘administration’ stood defined as to inquire into questions of:
i) whether a property forms part of the estate of a deceased?
what estate a deceased left at the time of his death?
ii) what debts and liabilities are due against estate of deceased;
iii) determination of legal heirs and division/partition of residue among them;
16. Since I am conscious that the scope of the Administrative suit and limitations to grant reliefs in such like suit in absence of any specific provision of law, make me of the view that it would always be material to examine the reliefs sought and effect of such reliefs against the parties (persons). At this stage, worth to refer the case of MUHAMMAD ZAHID through legal Heirs vs. Mst. GHAZALA ZAKIR and Mst. Ghazala Zakir and 7 others [PLD 2011 Karachi 83] wherein guideline to gauge the maintainability of the ‘Administrative suit’ has been detailed as:
“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 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 administration suit;
c) when a determination of the aforesaid question involves a person who is a sharer in the estate, then the question comes 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.
Even above criteria is in conformity to the fact that determination of maintainability shall be subject to the reliefs and effect thereof. If the reliefs sought affects the independent claim of a stranger it shall be beyond the scope of Administrative Suit and a separate suit shall be competent. To maintain a suit within capacity of ‘administrative suit’ against stranger it is necessary to show that such stranger is a sharer’. I had the privileged of going through the land-mark judgments of this Court and that of Honourable Supreme Court dealing with the issue including the above referred judgment of this Court. Needful to say that although the scope of the ‘administrative suit’ was widened even to probe into titles but such was made subject to the condition that it should revolve around the ‘sharer’ only. This was with an object to avoid multiplicity of the lis but confining the scope to extent of ‘sharer’ was sufficient to establish that nature and character of the ‘administrative suit’ is different from that of an ordinary civil suit (governed by Specific Relief Act). In an ‘administrative suit’ the final decree is to follow the result of an inquiry within meaning of Order XX rule 13 CPC while in an ordinary suit the determination of rights and status is dependant upon a full fledged ‘trial’. Thus, now I can conclude that a suit for ‘administration’ shall sustain where an ‘administration’ of an estate/property of deceased (as is involved in instant matter) is required for said purposes within above three ‘status’ i.e ‘creditor’, ‘legatee’ and ‘legal heirs/ sharers’ alone. Thus, the matters where no such questions are involved nor an ‘administration’, as a temporary arrangement (preliminary decree U/O XX r 13 of the Code) is required then the suit should normally be one of ‘ordinary’ in nature regardless of the fact that it may be among the sharers for their legal entitlement or by a creditor/legatee against legal heirs, seeking payment of his/her due against the deceased, under whom the legal heirs claim.
17 The perusal of the record shows that the agricultural land (Form-VII B, attached with plaint as Annexure-A) foti-khata of agricultural land from Qazi Ghulam Mustufa stood devolved among the legal heirs, including Mst. Mehmooda hence she, the predecessor-in-interest of present plaintiffs, was/is an undisputed sharer in said land. Needless to add that on her (Mst. Mehmooda’s) death present plaintiffs, being successors/L.Rs, have stepped into title and status of Mst. Mehmooda. Since this property (agricultural land) does not require any inquiry for:
i) determination of status of property to be part of estate of deceased or otherwise;
ii) no administration is required because each legal heir of deceased Qazi Ghulam Mustufa received their due share in land which, none of them, ever challenged;
The proper course available for the plaintiffs is to seek official partition by approaching proper revenue forum/authority within meaning of the Section 35 of the Land Revenue Act. This fact is even acknowledged by plaintiffs while couching the para-10 of the plaint as:
“10. That the partition/administration proceedings for the agricultural land described in the table above, pursuant to the inclusion in the proper record-of-rights, will separately be applied with the relevant revenue officer for partition of shares amongst the surviving legal heirs.’
Now, there remains the property bearing No.54, JM-9985, area 1609 Sq. Yds. Muslimabad Co-Operative Housing Society Ltd. Karachi. To know the status of this, it would be proper to refer contents of the Annexure-C (attached with plaint) i.e a letter addressed by Office Secretary, Muslimabad Co-operative Housing Society Ltd. which is:
With Reference to above subject the said property stands in the name of Ghulam Mustufa S. Kazi.
For the Administration of the Property refer to the Court of Law. Further we are not in position to provide any title documents of the said property till we will not received the Succession Certificate of the legal heirs.”
This makes it clear that property is undisputedly standing in name of deceased (Ghulam Mustufa S. Kazi) and it may be in possession of defendant No.1 alone. The mutation (foti-khata badal) is not yet effected however, this does not change the legally established principle of law that:-
“the said property on opening of succession stood devolved among legal heirs of deceased Ghulam Mustufa S. Kazi, including Mst. Mehmooda, under whom plaintiffs are claiming”
This brings to conclusion that matter if any is of ‘partition’ of said property among the legal heirs but no question of ‘administration’ of property is involved. At this juncture, I feel it quite proper to say that it is well settled law that partition of joint property is a continuing right enforcement of which is not bound by any period of limitation. Reliance in this regard is placed on the cases of ‘ Sarakhi Abdul Rahiman Trangan and another vs. Muhaldin Pathaummal Bivi and another (AIR 1917 Madras 244), Habib-ur-Rehman vs. Abdul Rahman and 3 others ( 1987 CLC 195), Hamayun Kabeer vs. Qaiser Nazir (2006 MLD 1496 ) and Moinuddin Paracha vs. Sirajuddin Paracha 1994 CLC 247). Further, it is also well settled principle of law that though mere holding of possession does not disentitle other co-owners from claiming partition of the property and in such cases limitation is not relevant and suit for partition could be filed at any time. Reliance in this regard is placed on the case of Moolchand and 9 others vs. Muhammad Yousuf (Udhamdas) and 3 others (PLD 1994 SC 462), wherein it has been held as under:
“16. ……… There is no cavil with proposition that if property is joint, possession of one co-heir is sufficient to be considered as possession of all co-heirs. Some co-heirs on the ground of exclusive possession cannot defeat the claim of other co-heirs by taking plea of adverse possession. Persons taking such plea have to produce positive evidence to show exclusion and ouster of other co-heirs. This question came up for consideration in the case of Mst. Omai and others vs. Hakeem Khan and others 1970 SCMR 499 and this Court has held that when property is inherited by co-heirs of deceased, then possession of one co-heir is in law possession of all the co-heirs and mere non-participation in profits of property by one co-heir and exclusive possession by others would not be sufficient to constitute adverse possession. Persons making such claim have to show that they were in hostile possession of the property in dispute to the exclusion and ouster of others.”
Since, in view of above discussion, I am of the clear view that a lis of ‘administrative suit’ or a suit for ‘partition’ are altogether different from character and nature. A suit for administration is one which qualifies the above discussed touch-stone while suit for partition, even if amongst the heirs, is controlled by Section 8 of Specific Relief Act and manner of recording decree is provided by Order-XX rule 18 of the Code. Therefore, I have got no hesitation in concluding that suit in its present form is not sustainable, therefore, same is hereby rejected under Order 7 rule 11 CPC. However, this shall not prejudice the right of the plaintiffs to file proper suit before proper court. Needless to add that the rejection of the plaint, shall make all pending interlocutory applications in-fructuous.
18. As regard the contempt application, it would suffice to say the contempt would lies where there is a deliberate act on part of the contemnor which within judicial conscious of the Court itself falls within meaning of a ‘contempt’. It is not the right of the complainant to insist for initiation of contempt proceedings but it is always between the court and the alleged contemnor. It is a matter of record that stay was not granted in respect of the property complained of, hence the complained act does not qualify as an act of deliberation on part of the alleged contemnors to have been done or taken knowing it to turn out as a ‘contempt, hence contempt application is not sustainable and is dismissed as such. However, Here, it needs not be mentioned that it is settled law that a co-sharer is entitled alienate or transfer his share in the khata and deliver possession of property in his occupation/control. The vendee steps into his shoes as a co-sharer and the property so purchased shall of course be subject to partition. No doubt there is no bar against transfer of land by way of gift by a co-owner to the extent of his share but in the present case the donor/Nasir Jang was attorney of other co-owners and without prior approval of the principal he could not make any gift in favour of his sons/respondents Nos.1 to 4.