NAZARALI KAZAMALI Vs. FAZLANBIBI

JUDGEMENT

(1.) THESE two appeals arise out of the original Special Jurisdiction Civil Suit No. 52 of 1965 of the Court of the 2nd Joint Civil Judge (Senior Division) at Baroda, for administration of the estate of deceased Kazamali Mustafamiya who died intestate leaving extensive immovable properties and leaving behind him the plaintiff daughter and the parties to the suit as his heirs. First Appeal No. 283 of 1968 is filed by original defendants Nos. 1 and 5 of the said suit and is directed against the decision of the learned Joint Civil Judge (Senior Division) at Baroda, in Special Jurisdiction Civil Suit No. 52 of 1965 given on 31 -8 -1967, whereby the learned Civil Judge has passed a preliminary decree as in an administration suit and directed that accounts be taken and enquiries be made in relation to estate left by deceased Kazamali Mustafaali save the immovable properties comprised in Kazamali's gift -deeds Exs. 125 and 126. Second Appeal No. 242 of 1971 is directed against the decision of the learned 2nd Extra Assistant Judge, Baroda, given on 29 -1 -1971, in the appeal which was filed by original defendants Nos. 1 and 5 against the decision of the learned Civil Judge (Senior Division) at Baroda in Special Jurisdiction Civil Suit No. 52 of 1965 in which appeal original plaintiff had filed cross -objections, the learned Judge having dismissed the appeal and allowed the cross -objections.

(2.) THE two appellants in each of these two appeals were respectively the contesting original defendants Nos. 1 and 5 of that suit. It was an administration suit filed by the present respondent No. 1 of both the appeals named one Fazlanbibi as plaintiff for the administration of the estate of her father one Kazamali Mustafamiya, a Sunni Mohomedan, who has died intestate sometime in September -October 1942 leaving behind him inter alia extensive immovable properties consisting of houses and house -site lands and about 70 pieces of agricultural lands bearing different survey numbers and situated in village Gothada of Taluka Savli in District Baroda. The said deceased had four brothers, viz., Jafarali, Anumiya, Bakarali and Imamali who were all separate from him. Jafarali has a son Inayatali whose daughter is married to defendant No. 5. Kazamali left behind him his widow named Nanibibi. Of this marriage, Kazamali had a son named Nazarali who is defendant No. 1 in the suit and three daughters named Fazlanbibi, Amirbibi and Hamidabibi, of whom Fazlanbibi is the plaintiff of the suit. Nazarali has two wives named Badranibibi and Madina. Amirbibi, who has died on 1 -10 -1943, after the death of Kazamali was married to one Arabsab, who is defendant No. 7 of the suit and has left two children, a son named Pyarasaheb and a daughter named Fatmabibi who are respectively defendants Nos. 2 and 3 of the suit. Hamidabibi, who has Indisputably predeceased her father Kazamali was married to one Haiderali who is defendant No. 6 of the suit and, of this marriage she has left a son named Hasanali who is defendant No. 4 of the suit. Nazarali has a son Gulamhussain, born of his marriage with Madina, who is defendant No. 5 of the suit. Defendants Nos. 2 and 4 have married the daughters of defendant No. 1 Nazarali, by his first wife Badranbibi.

(3.) THE budget for the year 1943 -44 shows that provision for the total expenditure of Rs. 1507 -5 -8 was made. After Nanibibi got the estate released from the management of the 'Palyapalak', Nanibibi also managed the estate for the benefit of the family of Kazamali. Defendant No. 1 continued to be a lunatic and, therefore, Nanibibi as the guardian mother and as the widow of deceased Kazamali looked after the estate and applied the income of the estate for the benefit of the family of Kazamali. Nanibibi died on 27 -11 -1961. Till then there was no dispute regarding the management of the estate of Kazamali and about the provision for the maintenance and other expenses of the members of the family of Kazamali. Soon after the death of Nanibibi, defendant No. 5, Gulamhussain, son of lunatic Nazarali, took over the management of the estate. It appears that Inayatali Jafarali, father -in -law of defendant No. 5 Gulamhusain and brother of deceased Kazamali tried to intermeddle with the estate. As a result, plaintiff Fazlanbibi orally asked defendant No. 5 for rendition of the accounts of the estate left by deceased Kazamali and for its distribution amongst Kazamali's heirs, but to no avail. Plaintiff Fazlanbibi d/o. deceased Kazamali then filed Civil Suit No. 189 of 1963 in the Court of the Civil Judge (Junior Division), Savli, on 1 -10 -1963, for rendition of accounts and administration of the estate of deceased Kazamali and for the allotment of her share in the estate. It was described as an administration suit in title cause. The suit was valued at Rs. 100/ - for the purposes of Court -fees as provided by Section 6 (iv) (i) of the Bombay Court Fees Act, 1959 (Bombay Act No. XXXVI of 1959) as applied to Gujarat. She, however, valued the suit under the Suits Valuation Act and for the pleader's fees at Rs. 1,00,000/ -stating it to be the market value of the houses and the lands described in Schedules 'A' and 'B' to the plaint.