1. The 4th defendant is the appellant, the suit was instituted for administration and far taking of accounts of the movable and immovable properties and assets of late Kasireddi Somanna, the father of the plaintiff and the 1st defendant. The 2nd defendant is the husband of the 1st defendant, and the 3rd defendant is a tenant of some of the properties involved in the suit. The 4th defendant is the brother of late Somanna and the 5th defendant is the maternal grand father of both the plaintiff and the 1st defendant. The main question that arises for consideration in the appeal is whether in a suit for administration of the estate of late Somanna, the 4th defendant, who claims title to items 5 and 7 (1) of A Schedule and item 3 of B Schedule by reason of a family settlement with the plaintiff and the 1st defendant, is a proper party to the suit and whether the Court below was justified in granting a decree for recovery of possession of those items.
2. The plaintiff stated in paragraphs 10 and 11 of the plaint that the mediation that was held on 13-10-1948 was not valid and binding and that the properties in the possession of the 4th defendant form part of the estate of late Somanna and were liable to be administered. The 4th defendant contended in paragraph 6 of the written statement that the plaintiff had no cause of action against film and that the suit was not maintainable. During the pendency of the suit, a compromise was entered into between the two sisters, the plaintiff and the 1st defendant. The only issues that were tried were issues 11 and 15, The Subordinate Judge held that in the suit for administration it was open to the plaintiff to seek recovery of possession from the 4th defendant who was in unlawful possession of those properties. On issue 15, he held that the 4th defendant had not established that there was a family arrangement which was binding on the plaintiff and the 1st defendant. In the result, he directed delivery of possession to the plaintiff. So far as mesne profits were concerned, he relegated the parties to file an application under Order XX, Rule 12, C. P. C. The 4th defendant has consequently preferred the appeal.
3. Order 20, Rule 13, C. P. C. deals with administration suits, it provides that the Court shall first pass a preliminary decree directing accounts and inquiries. In Appendix D, Form No. 17 prescribes the form of the preliminary decree in administration suit. Paragraph 10 of the form of decree is the relevant paragraph. It provides that an inquiry as to what immovable property the deceased was seized of or entitled to at the time of his death should he held. In Maliamedally Adamji v. Abdul Hussain, (1LR fl8 Bom 331 : (AIR 1924 Bom 313]), reference is made to Seton on Decrees, Vol. II, Page 1412 (7th Edition) as to the form of decree in an administration suit. The learned Judges pointed out that among the inquiries contemplated in the course of the administration, the inquiry as 1o what immovable property the deceased was seized of or entitled to at the time of his death is included, it is therefore clear to my mind that In a suit for administration, the Court has to necessarily ascertain what properties belonged to the deceased at the time of his death. As the 4th defendant claims title to items 5 and 7 (I) of Schedule ft and item 3 of B Schedule, the Court is entitled to ascertain whether the 4th defendant was in lawful possession of those properties.
4. The decision of the Privy Council in Benode Behari Bose v. Nistarini Dassi, ILR 33 Cal 180 throws considerable light on the question arising for decision in the instant case. Lord Davey, delivering the judgment of the Privy Council, held that for the due administration of the estate, it was necessary to set aside the leases of land effected by the executor. The relevant observations are as follows :
'The High Court of Calcutta, in its Ordinary Jurisdiction had a right to Order administration of this estate, and as ancillary to such an Order, to set aside deeds obtained by the fraud of the executor.'
It was pointed out that the decree based on the award as also the lease deeds were liable to be set aside. This decision was considered by Venkatasubba Rao, J. in Amir Bi v. Abdul Rahim, AIR 1928 Mad 760. Following the view of the Bombay High Court in ILR 48 Bom 331 : (AIR 1924 Bom 313), the learned Judge summed up as follows :
'The learned Judges point out that in an administration suit a complete enquiry necessarily implies determination of title to immovable property and the Court is bound to decide questions as to ownership of such property - whether situate within or outside jurisdiction as an incident of the administration of the estate.'
The decision of the Bombay Mish Court in Motibhai Shankerbhai v. Nathabhai Naranbhai, ILR 45 Bom 1053 : (AIR 1921 Bom 187) is to the same effect. Macleod, C. J. pointed out at page 1055 (of ILR Bom) : (at p. 187 of AIR) that there is no reason why the Court should not decide as between the parties to the suit whether those assets belonged to the estate of the deceased or not. It was rightly held that if that was not done, the only result would be that another suit would have to be filed in which the contesting parties would be the same and the issues would be the same as have already been raised in that suit. The decisions referred to supra were followed by the Nagpur High Court in Goswami Rameshpuri V. Madhukar, AIR 1953 Nag 276.
5. A contrary view was taken in Shivaprasad v. Prayag kumari Debee, AIR 1935 Cal 39, Ah Kyan Sin v. Vec Ah Gwan, AIR 1937 Rang 497 and Shafi-ul-Nisa v. Fazal-ul-Nisa, AIR 1950 EP 276. Those decisions were sought to be distinguished by the Judges of the Nagpur High Court on ground which do not appeal to me. I am inclined to follow the decision of the Privy Council and the decision of the Single Judge ot the Madras High Court in preference to the decisions taking a contrary view, I hold that as an ancillary to the administration of the estate, the Court is entitled to decide whether the family arrangement pleaded by the 4th defendant is valid or not.
6. On the question of fact as to whether there was a family settlement or not, the Court below has considered the question in paragraphs 14 to 22 of the Judgment. The case of the 4th defendant is that his brother Somanna was liable to account for a sum of Rs. 4000/- and that after his death, the properties claimed by him were put in his possession by the plaintiff and the 1st defendant. The plaintiff had filed O. S. No. 365 of 1949 for the enforcement of the family arrangement. The 4th defendant was a party thereto. He did not plead that his brother Somanna was liable to account to him for a sum of Rs. 4,000/-. The learned Subordinate Judge was therefore justified in rejecting the oral evidence adduced on behalf of the defendants as being an after-thought. The learned Subordinate Judge rightly pointed out that the partition could not have taken place in May 1944 as alleged by the 4th defendant as Somanna had made a gift of the properties In favour of his daughter, the 1st defendant, under Exhibit A-1 dated 18-3-1944. The oral evidence was very carefully discussed by the learned Subordinate Judge and I see no reason to differ from him on the appreciation of that evidence. I accept the evidence of P. W. 5 and hold that the family arrangement as spoken to by the 4th defendant as D. W. 1 is not true. I confirm the finding of the Subordinate Judge on this point.
7. Sri K. Vorthatarama Raju, the learned advocate forthe plaintiff, filed C. M. P. No. 8568 of 1960 out of abundant caution for amending the plaint by including a prayerfor recovery of possession of the properties from the 4thdefendant. This application is vehemently opposed by SriBalakrishna Rao. He contends that the suit for administration ought not to be converted into a suit for recovery ofpossession. There is no doubt that the suit is not barredby limitation as on the date of the filing of the amendmentapplication.
In Gopala Rao v. Kitamma, AIR 1055 Andh 138, I pointed out the scope and effect of Order 6, Rule 17, C. P. C. I only reiterate my view that Courts of law should bear in mind the sacred duty of doing justice between the parties in accordance with the provisions of the Code of Civil Procedure and that they do not exist for the purpose of punishing the parties. The Privy Council pointed out in Ma Shme Mya v. Maung Mo Hnaung, ILR 48 Cal 832 : (AIR 1922 PC 249), that the rules of procedure are nothing but provisions intended to secure the proper administration of justice and that full powers of amendment must be enjoyed and should always be liberally exercised to serve that purpose. Reliance was placed by Sri K. Venkataiama Raju on Jiban Krishna Das v. Jitendra Math Das, (1949) 1 Mad LJ 628: (AIR 1949 FC 64), in support of his contention that the amendment of the plaint should be Ordered. That decision is a converse case. The suit for partition was converted into a suit for administration. I am inclined to allow the amendment. As I have held that the suit as framed is maintainable it is unnecessary to call upon the respondent to pay the additional court-fee and amend the plaint.
8. In the result the appeal fails and is dismissed with costs of the respondent.