NANDLAL CHUNILAL Vs. GOPILAL MANILAL

JUDGEMENT

(1.) This suit was filed for the administration of the estate of Vrijvalabhdas Dwarkadas deceased in accordance with his will, dated 12 May 1888, by his daughter Somi. She died during the pendency of the suit and is now represented by her minor son Nandlal. The Subordinate Judge dismissed the suit holding that it was not maintainable in its present form on various grounds. The Joint Judge has in first appeal confirmed the decree on the same grounds as well as on the ground of limitation. I cannot agree with them.

(2.) I fail to see how the suit is bad in form. Somi is a residuary legatee under the will of the deceased. The contending defendant Dhiraj, widow of the deceased and step-mother of Somi, is admittedly in possession of the bulk of the property of the deceased in accordance with the will. She was appointed trustee of the property by the Court in 1892. during Somi's minority and has continued in possession since, claiming partly in her own right to maintenance and partly as the heiress of her deceased daughter Jethi who was joint residuary legatee under the will with Somi. She is for all practical purposes in the position of an administration. Section 213 of the Civil Procedure Code expressly provides for an administration suit under such circumstances and the plaint in this case is almost in the same form as the second one at No. 107 Schedule IV of the Civil Procedure Code.

(3.) It has been urged that the plaintiff should have filed a suit for possession. The main ground for this contention would appear from the Subordinate Judge's judgment to be that she would have had to pay larger Court-fees if she had done so. But I do not see why a plaintiff should be driven to file a suit in a particular form simply in order to make him pay larger fees when the law explicitly leaves it open to him to file it in a less expensive form. There has been no improper attempt on the plaintiffs part to evade payment. Her allegation that she can not state what property she will be entitled to unless accounts are taken, seems to be quite correct, The will does not mention the value of the ornaments left by the deceased. The plaintiff alleges them to be worth over 5,600 rupees. Defendant Dhiraj asserts that ornaments out of these worth over 1,800 rupees are her own Stridhan and that ornaments worth nearly 3,000 rupees out of the residue have been properly disposed of by her. The plaintiff denies both these assertions and unless accounts are taken it will not be possible to determine the extent of plaintiff's share. The case of Bai Amba V/s. Pranjivandas (1894) I.L.R. 19 Bom. 198 shows that plaints in administration suits should be treated as plaints for taking accounts and stamped under Section 7, Clause IV (b) of the Courts Fees Act and the present plaint has been stamped accordingly. The plaintiff has offered in her plaint to pay additional fees if a larger amount than that at which she has valued her claim is found due to her and Section 11 of the Court Tees Act will prevent execution of the decree until such additional fees are paid.