1. This suit was filed for the administration of the estate of Vrijvalabhdas Dwarkadas deceased in accordance with his will, dated 12th 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. Pranjivandas I L R (1894) 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.
4. It has also been argued that plaintiff should not have filed a suit for administration because her right to the share of her deceased step-sister Jethi is very doubtful and because the estate cannot be divided in the life-time of Dhiraj accordingly to the construction put upon the will by the lower Courts. Supposing the opinions of the lower Courts on these points to be correct, I fail to see why that should make the suit bad in form. It is just questions of this kind that have to be tried in administration suits. Even if the estate is indivisible during Dhiraj's life-time the plaintiff is entitled to have accounts taken of its administration in the past and have directions issued for its right administration in the future, so that when it eventually passes to him he may suffer no undue loss. In this connection I would also state that I do not accept the opinions of the lower Courts as to the present indivisibility of the estate as final. The question will have to be decided after remand after giving due opportunity to both parties to produce evidence. If after making due provision out of the estate for the maintenance of Bais Kashi and Dhiraj there is a surplus, I see nothing in the will which would make that surplus indivisible at present. Dhiraj has herself offered to divide the estate and give her share to Somi in her notice of 25th March 1901 (Exhibit 45). That shows how the parties themselves understood the will before ' they came into Court.
5. I now come to the question of limitation. Articles 88 and 89 of Schedule II of the Limitation Act applied by the Joint Judge seem to me inapplicable. This is neither a suit by a factor, nor by a principal against his agent. The Limitation Act does not explicitly provide a period of limitation for an administration suit. In England the principle is that 'actions for the administration of the estates of deceased persons can only be instituted by persons whose claims to recover are not barred by any statute of limitation.' (See Snell's Principles of Equity, 14th edition, page 2G7). I should think the same principle applicable in India. In the present case Somi's right to recover her share of her father's estate was not time-barred when she instituted this suit. If she had filed a suit for that share it would have fallen under Article 123 of Schedule II of the Limitation Act, i. e., it would have had to be filed within 12 years after her share became deliverable. Defendant Dhiraj's own contention is that it has not even yet become deliverable and will not be so till after her death. At the earliest it became deliverable when Somi attained majority. According to the Joint Judge she attained majority in 1895 and this suit was instituted in 1902. If a shorter period of limitation had been applicable it would have been necessary to consider the effect of Dhiraj's notice of 25th March 1901 (Exhibit 45), for it is clearly an acknowledgment of right signed by her within the meaning of Section 19 of the Limitation Act.
6. I would reverse the decrees of the lower Courts and remand the case for re-trial on the merits in the light of the above remarks.
Lawrence Jenkins, C.J.
7. I agree with the decree proposed by Mr. Justice Khareghat.
8. In the face of the second defendant's contention that the estate is not yet distributable, it cannot in my opinion be successfully contended by her at this stage that the suit is barred by limitation.
9. Before the rights of the parties can be determined, it will be necessary among other things to ascertain of what particulars the estate of the testator consisted at the time of his death, whether the second defendant has disposed of any and what part of the estate, whether such disposal was justifiable, of what does the estate now consist and how much of the estate should be set aside to meet the claim for maintenance under the will.
10. There may be other points that will also require adjudication before the rights can be determined and I only mention those which appear to me to be in any case necessary.
11. Costs hitherto incurred including costs of this appeal will be costs in the suit.