ABDUL HUSSEIN ADAMJI MASALAVALLA Vs. MAHOMEDALLY ADAMJI MASALAVALLA

JUDGEMENT

(1.) We think that the Judge was right in holding that the suit being an administration suit could go on even although it appeared that there were immoveable properties, alleged to belong to the estate, outside the jurisdiction, as in our opinion an administration suit is not a suit for land. It is only when the reference commences before the Commissioner on the accounts being tiled that it can be ascertained what are the contentions of the parties and whether the accounts filed together with the objections and surcharges show that there are properties either inside or outside the jurisdiction belonging to the estate. When claims to such properties are raised before the Commissioner, then it is a matter for him to decide what action to take, and even if he is of opinion that he has jurisdiction to decide questions of title to immovable property, it will be open to the parties to ask him to make a reference for the opinion of the Court, when the ally Court will be in a position to decide how the disputed question of title should be tried. But it certainly does appear that the first declaration in the decree should not have been inserted us it is not in consonance with the judgment. From the declaration now appearing in the decree that the Court had jurisdiction to administer the said Kurla property, it would appear that the Court had already decided that the question to whom the Kurla property belonged should be dealt with in this suit. But that, as have pointed out, is a question which falls to be decided hereafter. That an administration suit is not a suit for land seems to us to be obvious from the difficulties which might arise if the opposite contention should prevail. If an administration suit is a suit for land, because it is alleged that part of the estate consists of land, leave would have to be obtained when part of the land was outside the jurisdiction, but if all the land mentioned in the plaint appeared to be outside the jurisdiction, such laud could not be dealt with in the suit, although afterwards it was proved that part of it was within the jurisdiction. A similar difficulty arises in thin very suit, because all the properties mentioned in the particulars to the plaint were outside the jurisdiction and no leave could have been granted. Now one party alleges that a property not mentioned in the proceedings which is within the jurisdiction belongs to the estate; and if the suit must be treated as a suit for land, then leave ought to have been obtained before the suit was filed, and once the suit is filed without obtaining leave, if leave is necessary, the defect can not be remedied.

(2.) The order, therefore, which we make on the appeal is that the decree be amended by striking out the first declaration.

(3.) Costs of the appeal to be costs in the suit.