LAWS(GJH)-1972-2-10

BAI JEBUNNISA Vs. GULAMNABI HAKIMBHAI

Decided On February 11, 1972
BAI JEBUNNISA D/O HAKIMBHAI ABDULLABHAI Appellant
V/S
GULAMNABI HAKIMBHAI Respondents

JUDGEMENT

(1.) Plaintiffs administration suit for administration of the property of the deceased Hakimbhai (father of the plaintiffs) having been dismissed by the lower appellate court as incompetent by reversing the trial Courts preliminary decree the plaintiffs-daughters have filed this appeal. Hakimbhai Abdullabhai had first married Mariam who died in about 1928. He married the other wife Halimabibi who was divorced in 1945. Through the first wife the deceased had 2 sons Gulamnabi defendant No. 1 Alimohmed defendant No. 2 and Ajijabai defendant No. 4. Through Halimabai he had one son Nuruddin defendant No. 3 and two daughters plaintiff No. 1 and plaintiff No. 2. Hakimbhai died on May 26 1958 In this administration suit the plaintiffs had alleged that in the life time of the deceased there were so called two partitions affected at Ex. No. 117 dated January 5 1949 and Ex. 118 dated November 27 1957 which were illegal and inoperative and could not affect the plaintiffs title. It was the case of the plaintiffs that Mohammedan Law never recognised any such joint family where there would be interest by birth. Therefore the partition deed Ex. 117 which was effected by the deceased for himself and as guardian of the minor son Nuruddin defendant No. 3 with the two major sons defendant No. 1 and defendant No. 2 was illegal and inoperative. The first document was a registered document while the second document was an unregistered document whereby the deceased distributed his share between the three sons. In that document the deceased acted as a guardian of the minor Nuruddin defendant No. 3. Under the latter deed the daughters were given some share in mango trees. As the deceased's estate was required to be administered properly by collecting all his assets the present suit was filed claiming also a relief that the aforesaid two deeds Ex. 117 and 118 were illegal and that if any surplus property was left after administration of the estate of the deceased it should be distributed between all these heirs in accordance with their shares. The trial Court held the suit to be competent. The trial Court also held that the aforesaid deeds were illegal and inoperative so as to affect plaintiffs share. The trial Court further held that so far as the shop was concerned and the mango trees which were purchased by defendant No. 2 Alimohmed by Ex. Nos. 238 and 130 they were his exclusive property. Therefore excluding these properties which were held to be of Alimohmed defendant No. 2 the administration suit was decreed and a preliminary decree was ordered to be drawn up. The trial Court had determined the share of the parties and had given consequential directions. The appellate Court however held that the suit was incompetent and that the court could not go into the question as to the validity of these two deeds Ex. Nos. 117 and 118. Therefore without determining any issue on merit the plaintiffs suit was dismissed. Therefore the lower appellate Court refused to go into the question raised by defendant No. 2 as to how far defendant No. 1 was liable to the extent of properties which were admittedly in his possession. Even the cross objections of the plaintiffs were accordingly dismissed. That is why the plaintiffs have come in this appeal.

(2.) The legal position so far as the administration suit is concerned is now well-settled. Where the suit is with the primary object of having administration of the estate of the deceased it is open to the plaintiff seeking administration to claim ancillary relief by way of an incident of administration that certain alienations were illegal and inoperative and did not affect the estate of the deceased. There can never be any administration unless the court has determined the estate of the deceased. Therefore question arises as between the parties themselves the nature of the primary relief of administration is not affected. It is only where the primary object is not the administration suit but the relief for a declaration that the alienations made by the deceased are invalid and such a relief is not between the same parties but against a stranger that such a relief being the main relief cannot be joined is such a suit and administration being not the main purpose the suit would not be competent. In Benode Behari Bose v. Nistarini Dassi I.L.R. 33 Cal. 180 Their Lordships of the Privy Council at p. 191 in terms laid down that where the primary object of the suit was the administration of the estate of a deceased person the administration suit was competent even where ancillary relief was asked to set aside deeds obtained by the fraud of the executor. Their Lordships also held that for the due administration of thee estate the court had powers to set aside leases of land outside the territorial limits of its jurisdiction those leases having been made as an incident of the same fraud. In Motibhai v. Nathabhai A.I.K. 1921 Bom. 187 the Division Bench consisting of Macleod C. J. and Shah J. in terms held that if in the course of an inquiry as to the assets belonging to the estate of a deceased person any assets in possession of persons who are parties to the suit are claimed as forming part of the assets of the estate of the deceased the person appointed by the court as representing the estate of the deceased to take such steps as may be necessary for the proper administration of the estate can decide whether such assets belonged to the deceased or not. But he cannot decide such a question if the persons in whose possession the properties are not parties to the suit. The learned Chief Justice pertinently made these observations at p. 187 that There is no reason why the court should not decide as between the parties to the suit whether those assets belonged to the deceased or not. If that is not done the only result would be that another suit would have to be filed in which the contesting parties would be the same and issues would be i the same which have already been raised in this suit. In Mahomedally Adamji v. Abdul Hussain A.I.R. 1924 Bom. 313 the Division Bench consisting of Shah Ag. C J. and Crump J. in terms considered this question in the light of the ratio laid down by Their Lordships of the Privy Council in Benode Behari Bose's case. At p. 314 Shah Ag. C. J. pointed out that it appeared from the form of decree in an administration suit given in Seton on Decrees Vol. II p. 1412 (7th Edn.) and also in Schedule I Appendix D of the Code of Civil Procedure that among the inquiries contemplated in the course of the administration the inquiry as to what immovable property the deceased was seized of or entitled to at the time of his death was included. It was further pointed that the question was not whether the suit in respect of this property so far it related to this property was a suit for land or not but whether such an inquiry was appropriate in an administration suit. This question was really an incident of the administration suit as per the settled legal position laid down by Their Lordships of the Privy Council; so the question as to title of the property could be appropriately considered in an administration suit. That is why at p. 316 the ratio was laid down that the court in administering the estate of the deceased in this suit has power to inquire as to whether the particular immovable property belonged to the deceased at the time of his death. Crump J. at p. 317 also laid down that it would follow almost of necessity that the question as to title of the property must be determined in an administration suit. In was impossible for the court to administer the estate without deciding what the estate was and until the question of title had been settled the court did not know as to what property its orders were to operate. When that second question was decided it would be for the court to consider in that manner the administration should be effected. That was a stage which was not yet reached and as to which such direction as might be necessary would have to be given by the court after the question of title was determined. To hold otherwise would lead to absurdity; for it would be a necessary conclusion that though the court could entertain administration suit as regards property outside the territorial jurisdiction it could not in that suit decide whether that property belonged to the estate or not. Crump J. treated the question as concluded on the aforesaid Privy Council decision. In fact if we turn to Order 2 Rule 5 of the Civil Procedure Code it enacts as under :-No claim by or against an executor administrator or heir as such shall be joined with claims by or against him personally unless the last mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor administrator or heir or are such as he was entitled to or liable for jointly with the deceased person whom he represents. Therefore claims by or against an administrator executor or heir which have reference to the estate in respect of which the plaintiff seeks administration can always be joined in that suit It is only when the title question or the question about the validity about alienations arise against a stranger that Order 2 Rule 5 would not permit such a joinder of the claims. Therefore the aforesaid settled legal position is borne out by the provisions of Order 2 Rule 5 that so far as the heirs executor or administrator are concerned. In the same administration suit all claims arising against such an executor administrator or heir which have reference to the same estate can always be joined. Therefore such a joinder between these co-heirs would not affect the primary nature of the suit because the question would be an incident of the administration. As between the co-heirs unless the estate is first determined no administration can ever be granted. This was the view taken by Raju J. in Asmalbai v. Esmailji V G. L. R. 678 as to the effect of Order 2 Rule 5 and the learned Judge had rightly held that in the administration suit such a prayer for determining the validity of the alienations could surely be gone into. At p. 685 the learned Judge also rightly relied upon the pertinent observations in Maganlal v. Kanchan Lal 38 Bom. L. R. 754 where the Division Bench of Broomfield and Tyabji JJ. had in terms held at p. 758 that even where in an administration suit there was a prayer that the will made by the deceased was null and void the suit was one for administration inspite of the fact that the final decree might award possession of immovable properties. The same view was re-iterated in Suryanarayan v. Anasuyamma A. I. R. 1963 A.P. 298.

(3.) Mr. Bhatt however vehemently relied on the decision by Mukherjee and S. K. Ghose JJ. in Shiv Prasad Singh v. Prayagkumari Debee I. L. R. 61 Cal. 711 at p. 724. Their Lordships explained the nature of an administration suit whose object was management of the estate of a deceased person who had left no executor. In such a suit the whole administration and settlement of the estate was assumed by the court; the suit in its essence was one for an account and for application of the estate of the deceased for the satisfaction of the dues of all the creditors and for the benefit of all others who were entitled and the court marshaled the assets and made such a decree. The administration consisted generally speaking in the payment of the funeral expenses of the deceased in the payment of debts and legacies and in the collection realization preservation and distribution of the assets. Order 20 Rule 13 and the relevant forms in the Schedule dealing with the preliminary decree in an administration suit were referred to. On the facts of the case at p. 726 the learned Judges held that the suit before them was not an administration suit because it was for wrongful withholding of possession by the defendant of immovable and movable properties. Therefore the claim was against a stranger and therefore the primary object was not held to be one of administration. Mr. Bhatt next relied upon the decision in Shafi-ul-Nisa v. Fazal-ul-Nisa A. I. R. 1950 E P. 276 which does not lay down any different proposition. It also holds that if the main object of a suit was to administer the estate and if the court in the suit had to decide as to the existence or otherwise of an alienation an administration suit would lie but where the main object of the suit was to have an alienation alleged to be made by the deceased set aside or to obtain possession of property illegally withheld by one of the heirs an administration suit was not a proper remedy. This decision could hardly help Mr. Bhatt in view of the aforesaid settled legal position which is to be considered in the context of Order 2 Rule 5 which would show that such a claim so far as co-heirs are concerned would be only an incident of administration. Therefore this line of authority which Mr. Bhatt pursued could hardly help him in view of the express provision in Order 2 Rule 5 which itself would show that as between the co heirs this is only an incident of administration. Therefore the primary object of the suit being one of administration for determining the title of the deceased to certain properties which are said to have been wrongfully alienated is to be decided as between the parties themselves. Then the question arises between these parties the suit must be held to be competent. Therefore the lower appellate Court was wrong in dismissing the suit on this short ground.