Suit No. 1501 of 2010
Muhammad Shabbir Khan & Another ------------------------------------ Plaintiffs
Versus
Abdul Moid Khan & Others -------------------------------------------------Defendants
1) For hearing of CMA No. 3699/2015.
2) For examination of parties / settlement of issues.
Date of hearing: 15.04.2015
Date of Order: 27.04.2015
Plaintiffs: Through Mr. Riaz Alam Khan Advocate.
Defendants No. 1 to 5: Through Mr. Muhammad Zahid Kabeer Advocate.
O R D E R
Muhammad Junaid Ghaffar-J:- Through listed application filed under Order 20 Rule 13 read with Section 151 CPC, the plaintiffs have prayed that a preliminary decree may be passed in the instant matter and Nazir be appointed as Administrator of the properties left by the deceased Fahmida Khanum.
2. It has been contended by the learned Counsel for the plaintiffs that deceased Fahmida Khanum was the wife of the plaintiff No.1, whereas, the plaintiff No. 2 is the adopted child of the plaintiff No.1 and the deceased. Learned Counsel contended that pursuant to a decree dated 13.12.2006 passed in Suit No. 688 of 2005 by this Court; the deceased had become owner to the extent of 30% share in respect of property bearing No. 40-C situated in Block 2, PECHS Karachi, admeasuring 300 square yards. It has been further contended that on the basis of the same decree, the deceased was also entitled for her share according to sharia in respect of the properties bearing plot No. 567, admeasuring 58 square yards situated in Commercial Area, Block 2, PECHS, Karachi with constructed flats and shops thereon and open Plot bearing No. 4-C Commercial area, admeasuring 15.33 square yards situated in Darusallam Cooperative Housing Society, Karachi. Learned Counsel further contended that the deceased and the plaintiff No. 1 were issueless, whereas, plaintiff No. 2 who is an adopted child, also became owner / share holder of 25% in the estate / share of the deceased by virtue of a Will executed by the deceased in favour of the plaintiff No. 2. Per learned Counsel in view of such position the properties in question were required to be administered by this Court by passing preliminary decree and by appointing Nazir as the Administrator during pendency and final disposal of instant Suit. In support of his contention learned Counsel has relied upon the case of Muhammad Zahid Vs. Mst. Ghazala Zakir and 7 others (PLD 2011 Karachi 83), Zafarul Hassan Qureshi Vs. Messrs Pakistan Tobacco Company Ltd and 6 others (1991 CLC 1580), Muhammad Sulaiman Malik and another Vs. Royal Trust Corporation of Canada and 2 others (PLD 1983 Karachi 382).
3. Conversely the learned Counsel appearing on behalf of defendant’s No. 1 to 5 has vehemently opposed grant of listed application and contended that the Suit in the instant matter, except for the title, is not for administration and is rather a Suit for declaration and injunction. Learned Counsel further contended that the deceased was not the exclusive owner of the properties in question by means of any registered document including a Sale deed, but had inherited some share in the said properties by way of a compromise decree passed amongst the family members after expiry of their mother. Learned Counsel further contended that the properties in question were never owned exclusively by the deceased as there are other Co-sharers in the said properties, against whom the plaintiffs have no claim, whereas, the question of Will, which has been disputed by the Defendants No.1 to 5, has to be decided after evidence in the instant matter, therefore, listed application may be dismissed.
4. I have heard both the learned Counsel, perused the record and the case law relied upon by the learned Counsel. Insofar as the facts of instant matter are concerned, the Plaintiffs through listed application have prayed for passing of a preliminary decree in respect of the properties in question, in which a certain share had devolved to the deceased, pursuant to passing of a compromise decree dated 13.12.2006 in Suit No. 688 of 2005, whereas the claim of Plaintiff No.2 is based on a Will, which according to the Plaintiffs had been executed by the deceased in favor of her adopted child to the extent of 25% share in her estate. Insofar as the question of administration of properties by passing of a preliminary decree in terms of Order 20 Rule 13 CPC in an administration Suit is concerned, it may be observed that the same can only be passed by the Court, wherein, there is no factual dispute amongst the parties with regard to the absolute ownership of the properties of the deceased, i.e. the parties must agree that the property in question was admittedly, exclusively owned by the deceased or the same was in the name of the deceased. Alternatively, there must be a prima facie evidence before the Court, even in cases wherein the parties dispute such ownership of the property in the name of a deceased, whereby the Court can come to the conclusion, on the basis of such prima facie evidence, that a preliminary decree is inevitable. Here, in the instant matter it is an admitted position that the deceased was not the exclusive owner of the properties in question whereas, the 30% share had devolved to her by way of a compromise decree in Suit No. 688 of 2005 amongst the brothers and other family members of the deceased after expiry of their mother. If any order, in respect of the properties in question, for administration by way of preliminary decree is passed, the same may prejudice the rights and interest of other Co-sharers against whom; admittedly, the plaintiffs have no case or grievance. It is further noted that no execution proceedings have been finalized in respect of the Suit and the compromise decree, whereas as informed, the properties in question have still not been transferred nor any conveyance deed has been registered pursuant to such decree in favor of any of the parties to the compromise including the deceased. Therefore, insofar as the case of Plaintiff No. 1 is concerned, the same is only to the extent of his share in the estate of the deceased which has still not materialized, as the properties in question have still not been transferred or sold, whereas the Plaintiff No.1 also appears to be in possession of some portion of the property bearing No. 40-C, Block No. 2, P.E.C.H.S., Karachi, of which the rent is being demanded by the defendants. It is further noted from perusal of the record that the parties are also in dispute with regard to payment of taxes and charges on the properties in question and the amount payable by the deceased as her share of liability, whereas, the plaintiffs also claim that rental income is being enjoyed by the defendants exclusively and the share of the deceased is being usurped. Needless to observe that all these issues and questions are to be determined and decided at the trial stage and any such amount which may become payable to the deceased and vice versa shall be subject to outcome of the proceedings at the trial stage and final decision in the instant Suit. The pivotal question is that the defendants have not denied that insofar as the share of Plaintiff No.1 is concerned, the same shall be paid in accordance with Shariah as and when the properties are transferred and sold.
5. Insofar as the issue of execution of a will in favor of Plaintiff No. 2 is concerned, the same has been disputed on behalf of the Defendants, whereas, even otherwise, admittedly the Plaintiff No.2 is not the real child of the deceased, hence, no case for passing of a preliminary decree is made out for administration of the property of deceased, as the same can only be decided once evidence is recorded and all the parties are allowed to lead their respective evidence in the matter with regard to the veracity and validity of the will in favor of the Plaintiff No.2. Whereas the case law relied upon by the learned Counsel for the Plaintiffs is concerned the same is not applicable in the instant matter as the facts of the instant case are materially different than the one in the reported cases, hence of no assistance to the case of the Plaintiffs.
6. Therefore, in view of hereinabove facts and circumstances of the instant case I am of the view that the Plaintiffs have failed to make out any case, whereby a preliminary decree could be passed in respect of the share of the deceased devolved to her in the properties in question by means of a compromise decree of the Court, wherein, there are other Co-sharers, from whom the Plaintiffs do not derive any interest or share, whereas, the Defendants who are real brothers and sisters of the deceased, may have a claim in respect of the estate of the deceased who had admittedly died issueless. Accordingly listed application bearing CMA No 3699 of 2015 is hereby dismissed.
7. (2): Adjourned, office is directed to list the matter for settlement of issues on the next date.
Dated: 27.04.2015
J U D G E