OLLUR BANK LTD Vs. LITTLE FLOWER BANK LTD

JUDGEMENT

(1.) The counter petitioner in the court below, the Ollur Bank Ltd., Ollur, is the petitioner in both these revision petitions. The plaintiff, the Little Flower Bank Ltd., Ollur, is a creditor of one Antony who is dead. The suit was instituted on behalf of the creditors of Antony for administering his estate. After the death of Antony his heirs alienated some of his properties in favour of the Ollur Bank Ltd., for amounts due to that Bank. Those properties were not included in the plaint schedule. Neither was the Ollur Bank made a defendant. After preliminary decree was passed in the case the plaintiff moved the court below, by C.M.P. Nos. 1126 and 1127 of 1951 for impleading the Ollur Bank as an additional party to the suit and for including the properties alienated in favour of that Bank among the assets of Antony. It was alleged that the alienation was a fraudulent preference and that it was therefore invalid. The Ollur Bank opposed these petitions. The main objection was that the alienation in favour of the Bank could not be impeached in a suit brought for administering the estate of the deceased and that the remedy, if any, of a creditor of the deceased was to institute a separate suit for setting aside the alienation. It was also contended that the petition was belated. The Court below held that the question of the validity of the alienation of the properties of Antony by his heirs could be gone into in the administration suit. Since there was some delay in making the applications the plaintiff was ordered to pay Rs. 25 as costs.

(2.) It was argued on behalf of the revision petitioner that in a suit for administering the estate of a deceased person the plaintiff is not entitled to call in question alienations effected in respect of his properties and that such alienations have to be set aside by means of separate suits brought for the purpose. The argument is that the function of the Court administering an estate is only to administer the estate as it is. Learned counsel relied on the rulings in Abkyan Sin v. Yeo Ah Gwan (AIR 1937 Rang. 497), Zamani Begam v. Fazal Ul Rehman 1943 Lah. 241 and Shafi Ul Nisa v. Fazal Ul Nisa (1950 East Punjab 276). I do not think that these decisions will apply to the facts of this case. In 1937 Rangoon 497 the suit was brought by the heirs of a deceased person for administering his estate. It was really a suit for account. It was held that in such a suit the title of persons who claimed properties adversely to the estate could not be gone into and that the proper means of recovering a property belonging to the estate that had been wrongfully alienated was a regular suit brought for the purpose. The present suit is of an enquiry different nature. This is a suit brought on behalf of the creditors of the deceased for the purpose of collecting and conserving his assets so that they may be available for distribution among them in satisfaction of their claims. In 1943 Lahore 241 the alienations sought to be impeached in the administration suit were those of the deceased person himself. It was held in that case that although it was open to the court to determine in the suit whether certain alienations were or were not in fact made by the deceased the court could not in such a suit determine the validity of alienations made by him. In this suit the alienation that is impeached is not that of the deceased person but of his heirs. In the third case, viz., 1950 East Punjab 276 Kapur, J. observed:

(3.) It was next argued on behalf of the revision petitioner that since a preliminary decree has been passed in the case the court has no jurisdiction to implead additional party to the suit at this stage and to include additional properties in the plaint schedule. O.20, R.13 CPC provides that 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. Appendix D, Form No. 17 is the form in which a preliminary decree in an administration suit should be drawn up. According to that form there should be provision in the preliminary decree for an inquiry as to what immovable property the deceased was seized of or was entitled to at the time of his death. (Vide Paragraph 10). It is clear from this that it is after the passing of the preliminary decree that the court should enquire into the question as to what were the assets the deceased person was entitled to at the time of his death. It is for the purpose of this enquiry that the plaintiff wants the alienee to be impleaded as a party to the suit. It cannot therefore be said that the court had no jurisdiction to implead the revision petitioner as a party to the suit after the passing of the preliminary decree. There is therefore no force in this contention also.