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Khatija Vs. Shekh Adam Husenally Vasi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 23 of 1914
Judge
Reported inAIR1915Bom59; (1915)17BOMLR574
AppellantKhatija
RespondentShekh Adam Husenally Vasi
Excerpt:
.....accounts of the estate of a deceased and for its administration by the court, was valued at rs. 130 for purposes of court fees and at rs. 3,000,000 for purposes of jurisdiction and pleaders' fees. the lower court being of opinion that the suit was not an administration suit but was one in which the plaintiff claimed her share in the property, demanded court fees on rs. 67,968-12-0, the value of her share. the suit having been rejected for non-payment of the stamp-duty, the plaintiff appealed :-;that, having regard to the statements made in the plaint, the suit was an administration suit; and that it should be treated as a suit for account, the plaintiff being at liberty to value it at rs. 130 or any other sum under section 7, clause iv, (f) of the court fees act, 1870. - - deficiency..........and claims and liabilities there are, and whose and of what nature the claims and interests in the firm's property there are at present, and what amount of property may be found on taking the accounts of the business. similarly, as it is necessary to examine the accounts from the books of the firm, in order to know all this definitely, the value of this claim cannot be ascertained. for this and other reasons i am obliged to file this suit for taking accounts and for getting the estate administered.'5. there being then no apparent ground for distrusting the statements in that paragraph, the dictum of the learned district judge that this is not an administration suit cannot be supported. according to the provisions of the court fees act, if the plaintiff succeeds in showing upon the.....
Judgment:

Basil Scott, C.J.

1. In this suit the plaintiff, a Mahomedan female, prays that accounts may be taken of the properties and business of the deceased Tyebally Sheikh Adam and his firm, and their claims and liabilities may be ascertained, and an order may be passed for its administration by the Court, and the claims of the claimants to the said estate and effects according to Mahomedan law applicable to the Ismaili Daoodi Shiah Sect and according to the custom of the said Daoodi Bohora community may be ascertained, proper direction may be given for that purpose and her share according to the claim that may be ascertained may be separated from the said properties and handed over to her; and that an order may be passed for the appointment of a receiver for the management of the properties and business of the deceased Tyebally Sheikh Adam and his firm pending this suit.

2. The suit was valued at Rs. 130 for purposes of Court fees. In the 39th paragraph of the plaint she says that 'although it is not possible to fix the exact value of the property of the firm of Tyebally Sheikh Adam or of his any other property, according to my belief it must come to Rs. 3,000,000. For the purpose of the jurisdiction of the Court the claim has, therefore, been valued at Rs. 3,000,000'.

3. It is argued on behalf of the defendants that the suit has not been properly valued for the purpose of Court fees, and that the plaint should, therefore, be rejected. That contention has found favour with the lower Courts in Surat. The learned District Judge from whom this appeal is preferred says that 'the appellant has treated her suit as an administration suit. It is not an administration suit. This is clear from the plaint. She claims her share in the property. The value of her share is Rs. 67,968-12-0, and stamp-duty should be paid on this amount. Deficiency to be made good within ten days'. As the stamp-duty was not paid the appeal to the District Court was rejected.

4. It is not disputed that the plaintiff's ancestor under whom she claims carried on business, and that the firm started by him known as Tyebally Sheikh Adam is still continuing. It is, however, disputed by the defendants that any of the immoveable properties in which it is suggested that plaintiff claims a share belonged to the firm of Tyebally Sheikh Adam or to Tyebally himself, and it is suggested to us in argument by the respondents' pleader that their contention will be that all immoveable properties to which the plaintiff is supposed to lay claim belonged to a firm named Abdul Kadar Hasanally, and that she has no interest in the same. The statement is of value in this appeal, because there is always the possibility that in suits of this nature the plaintiff is professing ignorance as to specific properties where she has certain knowledge and could specify definite properties in which she is entitled to a share of a definite value. But in view of the position taken up by the defendants there is ground for supposing that the statement in paragraph 34 of the plaint represents the true position as far as the plaintiff is concerned. In that paragraph she says : 'Since the accounts of the said estate and effects and of the business have not been made up, and many of the heirs of Tyebally Sheikh Adam have died leaving heirs behind them, and several out of them have been removed from the property of the firm, I have no means of knowing whether they have come to any understanding with the manager of the said firm. For that reason also, I have no means of knowing who the claimants are, who can at present legally get their shares, and which of the heirs now desire to put forward their claims, and what property and claims and liabilities there are, and whose and of what nature the claims and interests in the firm's property there are at present, and what amount of property may be found on taking the accounts of the business. Similarly, as it is necessary to examine the accounts from the books of the firm, in order to know all this definitely, the value of this claim cannot be ascertained. For this and other reasons I am obliged to file this suit for taking accounts and for getting the estate administered.'

5. There being then no apparent ground for distrusting the statements in that paragraph, the dictum of the learned District Judge that this is not an administration suit cannot be supported. According to the provisions of the Court Fees Act, if the plaintiff succeeds in showing upon the accounts that she is entitled to a share in the property and assets of Tyeballi Sheikh Adam, she will not be able to obtain execution of any decree that may be passed in her favour by reason of the provisions of Section 11 of the Court Fees Act until the difference between Rs. 130 and the fee which would have been payable had the suit comprised the whole of the amount decreed has been paid to the proper Officer. That being so, there does not appear to be any reason why this should not be treated as a suit for account and for the share which may be found due to the plaintiff upon taking of such account, and if it is a suit for an account falling under Section 7, Clause (iv)(f) of the Court Fees Act, the plaintiff is at liberty to value it at Rs. 130 or any other sum she pleases.

6. For these reasons we are unable to accept the decision of the learned District Judge. We set aside the rejection of the plaint and direct that it be taken on the file, and the plaintiff be allowed to proceed with the suit. The plaintiff must have from the defendants her costs in the three Courts referable to the question of Court fee.


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