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Suit No. 656 of 1985 and Miscellaneous Application No. 2249 of 1986, decided on 2nd December, 1986.

‑‑‑O. XL, R. 1‑‑Appointment of receiver‑‑House in dispute falling in the share of minor plaintiff being issue of a predeceased son of ancestor and his claim to ownership thereof stronger than claim of defendant who was in possession and raised plea of gift of said property in his favour‑‑Plaintiff making serious allegations of waste and mismanagement and misappropriation of property in hands of defendant who was enjoying full residential facilities in house and also collecting rent from tenants of six shops annexed to residential units‑‑Receiver appointed by Court in circumstances in respect of property in suit to take all past accounts.

S.M. Muslim Naqvi for Defendant No.3.

This suit has been filed by minor and the property involved is a residential house plus four shops situated in Liaquatabad, Karachi. The minor is aged 14 years and the suit has been filed by Mr. Abdul Hameed, the maternal grand‑father of the minor as a next friend. Defendant No.l is the real aunt ( ) of the plaintiff. The plaintiff is the son of the pre‑deceased son of one Abdul Karim, who died on 24‑4‑1984. At the time of his death the Defendant No.l, who is the daughter of Abdul Karim was the only surviving issue of Abdul Karim. Abdul Latif, the son of Abdul Karim had already died on 6‑8‑1972.

The dispute has now arisen on the ownership of the property. The suit has been filed as forma pauperis. An application under Order XL, Rule 1, C.P.C. has also been filed with the suit. Para 2 of the supporting affidavit may be reproduced as a whole. This affidavit has been filed by the guardian of the plaintiff Mr. Abdul Hameed. Para 2 of the Affidavit runs as under:‑--

"2. I say that the plaintiff is the owner of the house on the Plot No.9/272 Liaquatabad Karachi as the same was owned and constructed by his deceased father Abdul Latif s/o Abdul Karim as the plaintiff is the sole surviving heir of his father Abdul Latif . "

The above para would reveal that the plaintiff is claiming the entire house as exclusive owner on the ground that (though the plot on which the house is constructed was originally allotted to Abdul Karim some time in 1957, but) the constructions have been raised by Abdul Latif son of Abdul Karim and the father of present minor plaintiff.

The case of the Defendant No. l is that she is the only daughter and the property was gifted over to her by Abdul Karim through a "declaration of gift" dated 7‑11‑1972. In support of this claim for exclusive ownership, as a Donee from Abdul Karim, the Defendant No. 1 has filed the "Declaration of Gift" which is purported to have been signed by Abdul Karim. It is not a registered document and has been written out on a Stamp‑paper of value of ks.3.50.

I would restrain from making any comments on the evidential value, authenticity, genuineness or merits of the contents of this document, because at this preliminary stage such a comments may not be helpful to any party. Suffices to say that this is an unregistered document. There is no other document from the Donor to evidence and support the plea of this gift. Learned counsel for the Defendant No.1, however, relied on a lease‑deed executed by the K . M . C . / Defendant No.3 in favour of the Defendant No.l.

Mr. S.M. Muslim Naqvi learned counsel for the Defendant No.3, when questioned by me, frankly conceded that they have no means nor the mandate to investigate the title of different persons, who may come to claim the property or mutation etc. Mr. S.M. Muslim Naqvi further adds that the main consideration that weighs with the K . M. C . is as to who is in possession of the property. As such the K . M . C . cannot watch safe for the authenticity of claims or representations made at the time of mutation before the K . M . C . by different applicants desiring mutation.

In view of this statement of the learned counsel and even otherwise these documents are mere formal documents executed by the K.M.C. In normal course of their duty, and unless properly examined by the contestant, they cannot be relied upon for purpose of title to the property.

The only question that remains is whether the claim of the minor plaintiff for exclusive ownership of the property, as set out by him in pars. 2 of his affidavit, is correct or the claim of the Defendant No.l as Donee from Abdul Karim on the basis of declaration is correct

There is another angle to look into the case, that under the Muslim Family Law Ordinance, 1961, even the issues of a pre‑deceased son or daughter are entitled to a share to the extent of the deceased issue of the ancestor. From whatever angle may be looked the case of the plaintiff is not such as can be brushed aside on raising the plea of gift in favour of the Defendant.

The plaintiff has made serious allegations of waste and mismanagement and misappropriation of the property now exclusively in the hands of Defendant No.l, who is not only enjoying full residential facilities in the house, but is also collecting rents from the tenants of six shops annexed to the residential units. According to the contents of the application, the recoveries from these 6 shops are Rs.2,250 per month. In addition to this income, the rental value of the residential unit is also to be taken into consideration. In para. 5 of the Affidavit of plaintiff the residential value has been assessed to be as Rs.1,000 per month by the plaintiff.

I appoint Mr. Syed Abbas Zia, Advocate of this Court as Receiver of the property in suit to take all the past accounts and after serving notice on the tenants, collect the rents of the shops. The Receiver should also submit a report regarding the fair rental value of the residential house now exclusively occupied by the Defendant No.l. As this is a case of the minor filed as a pauper, the payment of fee should be held in abeyance till some recoveries are made from the property. The papers should be immediately sent to the Receiver and preliminary report should be filed within 15 days.

It is regretted that the counsel for the plaintiff remains absent today and this order has been passed in his absence. Anxiety for the hearing of this application was shown by the Advocate of the plaintiff in the earlier hearing and was appreciated by the Court as is evident from orders dated 15‑10‑1986 and 5‑11‑1986. Advocate for the plaintiff should have been present, but after perusal of affidavit of the parties and looking to the urgency of the case of the minor, I have passed this order in absence of the Advocate for the plaintiff, because no adverse orders .are made against the interest of the Defendants.

M . Y . H . / A‑67 / K Petition allowed.

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