AHMED ABDULLA BEZAD Vs. MAHOMED SHAIKH ESSA

JUDGEMENT

(1.) This is a creditor's administration suit. The heirs had already instituted an administration suit, the progress of which had been, and still is, impeded by an appeal upon some interlocutory matter. But when the present plaintiff sent in his claim, he was informed that there was already an administration suit pending, and desired to wait upon its course. This he refused to do, and within a few days filed this suit. The only question of importance I have to decide is, in these circumstances, what is the proper procedure ? The defendants here are the heirs, and plaintiffs and defendants respectively in the first administration suit. They do not seriously dispute this plain-tiff's claim, while they do not admit it. As to that the evidence led before me seems conclusive, and we may take it that this plaintiff has a just claim. But the defendants contend that he ought not to be allowed to obtain an administration decree, and have the subsequent conduct of the proceedings.

(2.) In England where there are several creditors administration suits, it appears to be the rule that no matter who gets the first decree, the conduct of the proceedings is entrusted to the first plaintiff in order of priority. Here, however, the competition is not between rival creditors, but between creditors on the one hand and heirs on the other. There is some force in Mr. Desai's contention, that it might be hard on creditors to postpone them to disputes between heirs, for while the interest of creditors is to be paid, that of heirs is to avoid payment. And I am referred to a judgment of Kekewich J. in in re Ainsworth; Cockroft V/s. Sanderson [1895] W.N. 153 where the learned Judge held that heirs could not come in on a creditor's administration suit, but must wait till its effect was spent, when it should be stayed, and they might file a fresh suit of their own. But as far as I can gather from the short report of that case in the Weekly Notes, there was no heir's administration suit in existence, while here the heirs were the first in the field. That seems to me a material distinction. And while I am not insensible of the distinction which likewise may be drawn between the common cases, upon which the English rule I have stated is founded and this case, I still think that on general principles it may be safely extended and applied here. Looking to the object aimed at by this special procedure, I think that object can best be attained by entrusting the carriage of the suit to those who have the strongest interest to conduct it cheaply and expeditiously. These are the heirs. And where it is a question of consolidation, or deciding between the rival claims of creditors and heirs, to carry on proceedings in administration, or between allowing more than one such proceeding to go on simultaneously, or to leave the carriage in a single pair of hands, policy and principle combine I think in favour of directing those persons who are most likely to spare the estate, to have the control of the suit. Half a dozen separate plaintiffs all with administration decrees and backed by half a dozen attorneys, would soon bleed the richest estate to death. And that is precisely what an administration suit was invented to prevent.

(3.) For these reasons I think the right course here is to give the; plaintiff an administration decree, but to direct at the same time that the_carriage of the suit should be entrusted to the heirs, here Mr. Jinnah's clients, plaintiffs in the first suit. The plaintiff has leave to apply should he have any just cause to complain of a want of fairness or diligence on the part of the plaintiffs who now have the carriage of this suit, in satisfying his, and the other creditors claims. All costs out of the estate.