M.U. Shah, J.
1. These two appeals wise out of the original Special Jurisdiction Civil Suit No. 52 of 1965 of the Court of the 2nd Joint Civil Judge (Senior Division) at Baroda, for administration of the estate of deceased Kazamali Mustafamiya who died intestate leaving extensive immovable properties and leaving behind him the plaintiff daughter and the parties to the suit as his heirs. First Appeal No, 283 of 1968 is filed by original defendants Nos. 1 and 5 of the said suit and is directed against the decision of the learned Joint Civil Judge (Senior Division) at Baroda, in Special jurisdiction Civil Suit No. 52, of 1965 given on 31-8-1967 whereby the learned Civil Judge, has passed a preliminary decree as in an administration suit and directed that accounts be taken and enquiries be made in relation to estate left by deceased Kazamali Mustafaali save the immovable properties comprised in Kazamali's gift-deeds Exs.125 and 126. Second Appeal No. 242 of 1971 is directed against the decision of the learned 2nd Extra assistant Judge, baroda, given on 29-1-1974 in the appeal which was filed by original defendants Nos. 1 and 5 against decision of the learned Civil Judge (Senior Division) at Baroda In Special Jurisdiction Civil Suit No. 52 of 1965 in which appeal original plaintiff had filed cross-objections, the learned Judge having dismissed the appeal and allowed the cross-objections.
2. The two appellants in each of these two appeals were respectively the contesting original defendants Nos. 1and 5 of that suit. It was an administration suit filed by the present respondent No. 1 both the appeals named one Fazlanbibi as plaintiff for, the administration of the estate of her father one Kazamali Mustafamiya, a Sunni Mohomedan, who has died intestate sometime in September-October 1942 leaving behind him inter alia extensive unmovable properties consisting of houses and house-site lands and about 70 pieces of agricultural lands bearing different survey numbers and situated in village Gothada of Taluka Savli in District Baroda. The said deceased had four brothers, viz., Jafarali, Anumiya, Bakarali and Imamali Who were all separated from him. Jafarali has a son Inayatali whose daughter is married to defendant No. 5. Kazamali left behind him his widow named Nanibibi. Of this marriage, Kazamali had a son named Nazarali who is defendant No. 1 in the suit and three daughters named Fazlanbibi, Amirbibi and Hamidabibi, of whom Fazlanbibi is the plaintiff of the suit. Nazarali has two wives named Badranibibi and Madina. Amirbibi, who has died on 1-10-1943 after the death of Kazamali was married to one Arabsab, who is defendant No. 7 of the suit and has left two children, a son named pyarasaheb and a daughter named Fatmabibi who are respectively defendants Nos. 2 and 3 of, the suit. Hamidabibi, who has indisputably predeceased her father Kazamali was married: to one Haiderali who is defendant No. 6 of the suit and, of this marriage she has left a son named Hasanali who is defendant No. 4 of the suit Nazarali has a son Gulamhussain, born of his marriage with Madina, who is defendant No. 5 of the suit. Defendants Nos. 2 and 4 have married the daughters of defendant No 1 Nazarali by his first wife Badranibibi. Defendant No. 5 is married to the daughter of Inayatali Jafarali. Indisputably defendant No. 1 has become insane since sometime in the year 1938. Deceased Kazamali' 's estate comprised, of houses and house-site lands, more particularly described in schedule 'A' to the plaint and about 70 pieces of agricultural lands, more particularly described in Schedule 'B' to the plaint and which in aggregate admeasured 73 Acres - 34 Gunthas. Shortly after the death of Kazamali, there was some intermeddling with the estate of deceased Kazamali as the only male member of the family, namely, Kazamali's son Nazarali was a lunatic and. therefore, the estate of Kazamali was taken over under the Guardians and Wards Act as applicable to the then Baroda State in which the estate was comprised by the 'Palyapalak', meaning manager of the ward, the ward being the lunatic, defendant No. I Nazarali. The property remained in the management of the manager until it was got released by Kazamali's widow Nanibibi on February 18, 1951. During the management of the estate of Kazamali by the 'palyapalak', the income of the estate was used for the benefit of the heirs of the deceased Kazamali and for the purpose. a regular budget was being prepared by the 'palyapalak' as provided under the Baroda State Rules. One such budget Ex. 84 for the year 1943-44 has been produced which refers to as the 'Gharana' meaning family of the 'Palya'. Nazarali, meaning ward Nazarali, who is defendant No. 1 and who was a lunatic at the time. The budget which was marked as 91/1 and appears at page 198 of the record of the suit in the trial Court has been by some mistake not exhibited, although the Rojnama of the relevant date 17-12-66 at page 22 shows that the whole budget was produced; but instead an extract relating to only items 6 and 7 of the budget has been produced. With the consent of the learned advocates of the parties, we appropriately take mark 91/1 which is also shown as Ex. 91/1 in the record as Ex. 84/A. The budget shows that provision was being made every year for the maintenance of the family of the deceased which included Nanibibi (widow of Kazamali), defendant No. 1 (son of Kazamali) and the daughters of Kazamali. Provision was also made for the medical and other expenses, as also for the maintenance and repairs of the residential house, celebration of holidays, payment of salaries to the servant referred to as an agent, for payment of some decretal dues and for some other expenses. The budget for the year 1943-44 shows that provision for the total expenditure of Rs.1507-5-8 was made. After Nanibibi got the estate released from the management of the 'palyapalak' Nanibibi also managed the estate for the benefit of the family of Kazamali. Defendant No. 1 continued to be a lunatic and, therefore, Nanibibi as the guardian mother and as the widow of deceased Kazamali looked after the estate and applied the income of the estate for the benefit of the family of Kazamali. Nanibibi died on 27-11-1 961. Till then there was no dispute regarding the management of the estate of Kazamali and about the provision for the maintenance and other expenses of the members of the family of Kazamali. Soon after the death of Nanibibi, defendant No. 5, Gulamhussain, son of lunatic Nazarali, took over the management of the estate. It appears that Inayatali Jafarali, father-in-law of defendant No. 5 Gulamhussain and brother of deceased Kazamali tried to intermeddle with the estate. As a result, plaintiff Fazlanbibi orally asked defendant No. 5 for rendition of the accounts of the estate left by deceased Kazamali and for its distribution amongst Kazamali's heirs, but to no avail. plaintiff Fazlanbibi d/o. deceased Kazamali then filed Civil Suit No. 189 of 1963 in the Court of the Civil Judge (Junior Division), Savli, on 1-10-1963 for rendition of accounts and administration of the estate of deceased Kazamali and for the allotment of her share in the estate. It was described as an administration suit in title cause. The suit was valued at Rs. 106/- for the purposes of Court-fees as provided by Section 6(iv)(i) of the Bombay Court Fees Act, 1959 (Bombay Act No. XXXVI of 1959) as applied to Gujarat She, however, valued the suit under the Suits Valuation Act and for the pleader's fees at Rs. 1,00,000/- stating it to be the market value of the houses and the lands described in Schedules 'A' and 'B' to the plaint.
3 to 9. x x x x .
10. Now, the next of the kin of a deceased person who has died intestate can file a suit for administration where it is necessary to take an account of the estate of the deceased and such a suit can be filed against a party who is in possession and management of the property of the deceased. The mere fact that such party refutes the claim of the plaintiff does not alter the nature of the suit which is to be determined from the allegations in the plaint. Whether those allegations are substantiated or not will be a question to be decided in the case itself. It would be necessary in such a case to ascertain what the estate of the deceased was, what debt had to be paid and it would be only after the collection of the outstandings and other assets and payment of debts etc., that the plaintiff's share would be capable of ascertainment. Such a suit can be for an account of the administration of the estate of the deceased dying intestate. The plaint allegations in the instant case show that the suit as framed is one for the administration of the estate left by deceased Kazamali as an independent owner and as a person in exclusive possession of the suit property, more particularly described in Schedules 'A' and 'B' to the plaint. The suit is filed by the daughter of the deceased and the plaint allegation is that the property of the deceased was first managed by 'Palyapalak' and then by Nanibibi, widow of the deceased and the income of the estate was being used till the death of Nanibibi in November, 1961, for the benefit of the heirs of the deceased and thereafter, defendant No. 5, Gulamhussain as the male adult of the family of the deceased defendant No. 1 being a declared lunatic, is intermeddling with the estate. Main purpose of the suit is not to determine as to who is the rightful heir of the deceased. The suit is in substance one for administration of the estate of the deceased. In such a suit for administration, the accounts have necessarily to be taken. In such a suit, the funeral expenses and the death-bed charges of the deceased have to be ascertained and met; the debts of the deceased, if any, which are pay the estate have to be paid and the outstandings collected and after taking account of the estate left by the deceased and thus determining the estate that then remains available for distribution amongst the heirs and the persons who are entitled to come in for distribution, the residue of the estate will have to be distributed amongst them in accordance with the personal law applicable to the parties. It may be that, in such a suit, the immovable properties may come to be awarded and possession of such immovable properties may have to be decreed in favour of one or the other heirs. But, that would be distribution of the residue of the estate amongst the heirs and that is what is contemplated in the very scheme of the administration suit. The pleas in the written-statement or the orders that May have to be passed in the final decision of the suit on merits are not to be considered for the purpose of determining the, frame and nature of the suit. Even if in a final decree that may be passed in an administration suit, possession of immovable property is to be awarded, the character of the suit will remain as that of an administration suit.
11. Again, in case of the administration of the estate of a deceased Mahomedan, as is the case here, the estate of a deceased Mahomedan is to be applied successively in payment of (1) his funeral expenses and death-bed charges; (2) expenses of obtaining probate, letters of administration, or succession certificate; (3) wages due for service rendered to the deceased within three months next preceding his death by any labourer, artisan or domestic servant, (4) other debts of the deceased according to their respective priorities (if any); and (5) legacies not exceeding one-third of what remains after all the above payments have been made. The residue is to be distributed among the heirs of the deceased according to the law of the sect to which he belonged at the time of his death, and the heir has a right of contribution against his co-heirs, if by the action of the judgment-creditor under a decree under Section 52 of the Civil procedure Code against all the heirs, he was left with less than his proper share of the net estate of the deceased (Vide Sir Dinsha Mulla's principles of Mahomedan Law, Seventeenth Edition, paragraph 39, at page 29). The order set forth above is in accordance with the provisions of the Indian Succession Act, 1925, Secs, 320, 323 and Section 325. As laid down in paragraph 40 of Mulla's principles of Mahomedan Law, the executor or administrator, as the case may be, of a deceased Mahomedan, is, under the provisions of the Indian Succession Act, 1925, Section 211, his legal representative for all purposes, and all the property of the deceased vests in him as such. The estate vests in the executor, though no probate has been obtained by him. Subject to the provisions contained in paragraphs 39 and 40 of Mulla's principles of Mahomedan Law, the whole estate of a deceased Mahomedan if he has died intestate, or so much of it as has not been disposed of by will, if he has left a will, devolves on his heirs at the moment of his death and the devolution is not suspended by reason merely of debts being due from the deceased. The heirs succeed to the estate as tenants in common in specific shares. Under the Mahomedan Law, the distribution of the residue amongst the successors of the deceased person is a duty attached to the estate notwithstanding that it vests in the heirs at the time of the death of the propositus, and as the distribution of the residue forms part of the administration of the estate, it clearly falls within the province of an administration suit (Vide Sheikh Mahbub Aha v. Razia Begum, AIR 1950 Lah 12). As observed by the Federal Court in Jiban Krishna Das v. Jitendra Nath Das, at p. 67, 'Ascertainment of residue after completion of administration is certainly a prerequisite to a claim for partition but the material facts were all set out in the plaint and there is nothing in law which stands in the way of combining prayers for administration and partition in one and the same suit.' Thus the scope of an administration suit clearly is one to collect the assets of the deceased to pay off the debts and other legal charges, to take account of the income and expenses of the estate, and to find out what is the residue of the estate available for distribution amongst the heirs of the deceased and in what shares and distribute the same amongst the heirs of the deceased. It is only after the accounts are taken that the proper administration of the estate can be made and this is more so in the case of a deceased Mahomedan. It is implicit in an administration suit that accounts have to be taken. Such a suit is for an account of the property of the deceased and for its due administration under the decree of the Court. As an heir of the deceased, the plaintiff herein has thus a right to demand that the deceased's estate should be duly administered, that it should be cleared of debts and that she should be given possession of her share therein.
12. Mr. N. R. Oza has strenuously contended that, in the instant case, the question of title to the several properties which were the subject-matter of the gift-deeds Exs. 125 and 126, made by the deceased in favour of defendant No. 1 and the title to the other properties left by the deceased were questions which had to be investigated and such questions of title cannot fall within the purview of an administration suit. In Mr. Oza's submission, in the instant case, defendants Nos. 1 and 5 had contended in their contesting written statement Ex. 18 in paragraphs 10, 11 and 28 that the properties referred to in the relevant paragraphs which are included in the properties listed in the Schedules 'A' and 'B' to the plaint did not form part of the estate of the deceased and, there-fore, the question of investigation of the title to the several immovable properties in question did arise in the case and this did not fall within the purview of an administration suit. It may here be recalled that in V- paragraph 10 of the written statement Ex. 18, the contesting defendants have alleged that the stated 16 survey numbers were, acquired by defendant No. 1 by 'Khed Hak' (right of a tenant) as defendant No. 5 had paid purchase price to the Government and obtained the right, and as such, his father defendant No. 1 Nazarali had become the owner thereof by virtue of the operation of the provisions in Ss. 32, 32H, 32K and 32M (1) of the Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay Act No. LXVII of 1948) and the question of ownership in respect of those survey numbers was concluded and cannot be gone into in the administration suit. It has been contended in paragraph 12 of the said written-statement that the title to the properties covered by gift-deeds Exs. 125 and 12f was in question in the suit. In paragraph 28 of the written statement, some houses shown in Schedule 'A' to the plaint were stated to have been gifted by Kazamali by aforesaid gift-deeds. In paragraphs 11 and 28, gifts to defendant No. 1 Nazarali's second wife Madina of lands comprised in stated 15 survey numbers and house No. 1 and house-sites bearing Nos. 130 and 130/1 by Kazamali and by way of Mahr (dower) at the time of her marriage with defendant No. 1 are set up Now, it is true that these contentions are raised in the written statement. But, the pleas in the written statement cannot be allowed to decide the nature of the suit. The orders that may have to be passed in the final decision bf the suit on merits cannot also be decisive in the matter. If it were so, in every administration suit, a defendant would raise a plea covering a question of title or some other complicated question and can urge that the suit, as framed, is not competent. This would defeat the very purpose of an administration suit and would lead to avoidable multiplicity of judicial proceedings between the same parties, a situation which cannot be allowed to arise in such a suit, the main purpose of the suit being not to determine as to who is the rightful heir of the deceased, but to administer the estate of the deceased, if for the purpose, the questions of title have incidentally to be gone into, that would certainly be within the purview of an administration action. The question as to title of the property can be appropriately considered in an administration suit. That would not alter the nature and character of the suit. This is also indicated by the procedure prescribed in Order 20, Rule 13 of the Code of Civil procedure and by Forms of Decrees Nos. 17 and 20 in Appendix-D of the First Schedule of the Code which are illustrative forms though not exhaustive. A similar question had come up for consideration before the Bombay High Court in Motibhai Shankerbhai patel v. Nathabhai Naranbhai, (1921) ILR 45 Bom 1053: - (AIR 1921 Born 187). It was an administration suit for the administration of the estate of the deceased Manorbhai against the defendant who, it was alleged, had taken possession of the whole of the property of the deceased together with the documents, papers and account-books relating thereto. A preliminary decree was passed directing the account to be taken of the estate of the deceased. An administrator was appointed to take evidence and to report as to the nature of the properties and the rights of the parties thereto. The administrator filed the report. Objections were raised by the parties to the report, the defendant contending that the Court had no jurisdiction to deal with certain properties in his possession on the ground that the properties did not belong to the estate of the deceased. The Subordinate Judge upheld the contention and refused to direct an inquiry regarding the said properties. On an application being made to the High Court, the Division Bench consisting of Sir Norman Macleod, Kt., Chief Justice, and Mr. Justice Shah set aside the order an taking the view that 'the Court should have, directed an enquiry with regard to the objections raised by the defendant to the administrator's report, is the assets were in the possession of the defendant, and there was no reason why the Court should not decide between the parties to the suit whether those assets belonged to the estate of the deceased or not. It was observed, 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 the suit. It was observed that it was certainly desirable and in the interests of justice that the trial Court should be directed to continue the inquiry with, regard to the objections raised by the defendant to the administrator's report. The same question again came up for consideration before another Division Bench of the Bombay High Court in Mahomedally Adamji Masalavalla v. Abdul Husain Adamji Masalavalla, AIR 1924 Bom 313 before Shah, Ag. C. J. and Crump, J., in an administration suit filed on the original side of the High Court of Bombay. The suit was for administration of the estate of one Adamji Massalavala filed by the two sons and a daughter of the deceased Adamji against the two other sons and another daughter of the deceased. On behalf of the defendant No. 1, an objection was taken that as the properties of the deceased included a house situate at Kurla, the court had no jurisdiction to entertain the suit in absence of leave at it was really a suit for land with in the meaning of clause 12 of the Letters patent. That objection was overruled and a preliminary decree was pass ed which contained a declaration that the Court had Jurisdiction to administer the said Kurla property. From that preliminary decree, the defendant No. 1 preferred an appeal to the High Court Abdul Husain v, Mahomedally, AIR 1922 Bom 443 in which it was held that it was not a suit for land and the Court had jurisdiction to proceed with the suit. It was, however, held that any declaration as to the Court having jurisdiction to administer the Kurla property was premature at that stage. The matter then went to the Commissioner who made some hearing and made a special report to the Court and directed the first defendant to bring it before the Court to try the question of title to the said immovable property at Kurla. It is material for the present purpose to note that defendant No. 1's case before the Commissioner was that the property was given over to him by his father in the year 1906 by way of gift and that at the death of Adamji, it did not, form part of his estate. The Commissioner made his special report and the matter was brought before the Court and the learned Judge decided that the court had no jurisdiction to entertain a suit, with reference to the land outside the original Civil Jurisdiction of the Court as no leave under Clause 12, of the letters patent was asked for. This is how the matter came, again in appeal before the Bombay High court which took the View that it had the jurisdiction. We may say that we are not in the instant case directly concerned with the question jurisdiction of the Court in this case. But, in that appeal, the question as regards scope of the inquiry to be made by the Commissioner in an administration suit and as to whether the title to the property can be gone into were clearly questions in issue before the Bombay High court Such is also the case before us. It may be recalled that the contesting defendants Nos. 1 and 5, have contended that the properties described in gift-deeds Exs. 125 and 126 were gifted by deceased Kazamali, during his lifetime to defendant No. 1 Nazarali and some properties by way of 'Mahr' were given to Nazarali's wife Madina and were, therefore, not available for distribution and such questions of title cannot be gone into in the administration suit. The decision in the Bombay case to which we are referring is directly on the point which we are concerned. In this case and supports the view which we are inclined to take. It was observed in the Bombay case that it appeared from the form of the decree in an administration suit given in Seton on Decrees, Vol. IL page 1412 (7th - Edition) and also in the Schedule I, Appendix-D, of the Code of Civil procedure, that among the inquiries contemplated in the course of the administration the inquiry as to what immovable property the deceased was seized of or entitled to, at the time of his death is included. The decision in ILR 45 Bom 1053 = (AIR 1921.Bom 187) (supra) where it was held that the question as to title of the property can be appropriately considered in an administration suit was referred with approval. Shah. Ag. C. J., then observed that on the whole therefore, he did not feel any doubt that the Court in administering the estate of the deceased has power to inquire as to whether the particular immovable projected belonged to the deceased at the time of his death. He further observed that as it was a question relating to the title to immovable property, it was common ground that if the question can be determined in the suit, it ought to be determined by the Court and not by the Commissioner. As regards the determination of the title of the property situate in Kurla outside the High Court's territorial jurisdiction, he observed that such determination was at least as convenient as if not more convenient then, having it determined by the court at Thana. The question of title was thus gone into in that administration suit. In the concurring judgment Crump, J, has observed at p. 317:
'Now if an administration suit as regards property situated, outside the jurisdiction can be entertained by this Court, it appears to me to follow almost of necessity that the question as to title of the property must be determined. It is impossible for the Court to administer the estate without deciding what the estate is and until the question of title has been settled the Court do not know as to on what property its orders are to operate. When that second question is decided, it will be for the Court to consider in what manner the administration should be effected. That is a stage which we have not yet reached and as to which such directions as may be necessary will have to be given by the Court after the question of title is determined. To hold otherwise, would in my opinion, lead to absurdity; for it would be a necessary conclusion that though the Court can entertain an administration suit as regards property outside the territorial jurisdiction, It cannot, in that suit, decide whether that property belongs to the estate or not. I know of no authority which forces me to, that conclusion, and none has been cited. It appears to me clear that the decision of the privy Council in Benode Behari Bose v. Nistarini Dasi, (1905) 32 Ind App 193 (pC) is an authority in a contrary sense'
In that privy Council case, it has been observed at p. 201:
'The primary object of the suit was the administration of the estate of a deceased person resident within the jurisdiction, the principal executor being also resident there and the actual administration going an there 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 ser aside deeds obtained by the fraud of the executor: to set aside a decree of the Court of the 24 Pergunnahs making a fraudulent award an order of the Court and to set aside leases of land outside the territorial limits of their jurisdiction which had been made as an incident of the same fraud.'
13. It thus appears to us to be clear that in an administration suit, deeds obtained by fraud of the executor can be investigated as ancillary to an order of administration of the estate. The same is true of the deeds obtained by any of the heirs of the deceased and also from the deceased. The question will have necessarily to be gone into in an administration suit as it would be impossible for the court to administer the estate without deciding what the estate is. For that basic purpose, the question of title has necessarily to be gone into-as the Court does not otherwise know on what property its orders are to operate. It is implicit in a suit for administration of the estate of a deceased that an inquiry be directed as to the title to the properties which might be raised by the defendants. An administration suit cannot be permitted to be defeated by the pleas taken by the defendants in the written statement and merely because a question of title is raised, the plaintiff should not be driven to another suit. This will lead to multiplicity of judicial proceedings which is ordinarily to be avoided. In our opinion, the inquiries contemplated in the course of the administration of an estate include the question as to what property the deceased was seized of or entitled to at the time of his death. In an administration, suit, a complete inquiry is to be made and this necessarily implies determination of title to immovable property and the Court is bound to decide questions as to ownership of such property, which is the subject-matter of an administration suit.
14. The same view is taken by the Madras High Court in Mt Amir Bi v Abdul Rahim Sahib AIR 1928 Mad 760 wherein Venkatasubba Rao, J., (as he then was) has considered the scope of an administration suit. He has observed at p. 761:
'xxxx One of the reliefs claimed, no doubt, is that the property should ultimately be partitioned but that does not make the suit a partition suit. Administration means management of the deceased's estate. The Court is requested to assume its management, to take upon itself the functions of an executor or administrator and administer the estate. The administration of a deceased's estate consists of collection and preservation of assets, payment of debts and legacies, acts in respect of adverse claims to assets, dealings with creditors or legatees and distribution finally among the heirs or next-of-kin. These are the functions of an administrator and the object of an administration suit is to have the estate administered under a, decree of Court; in other words, the Court itself assumes the function of an administrator and administrates the estate'.
15. The learned Judge has further observed:
'......... partition may be an incident, but is not a necessary incident, of the administration of a deceased person's estate.'
He has observed that he failed to see how such a suit was not an Administration, suit. The parties were not agreed as to the extent of value of the property; they were not agreed as to the persons entitled to share, nor were they agreed even in regard to the debts payable; vide their contentions about Mahr. On each of the matters, the, parties desired an enquiry and it was in an administration suit that such an enquiry can properly be made. It was further observed 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 Madras view clearly supports the view which we are inclined to take. In our opinion, Mr. N. R. Oza is not right when he contends that the transactions made subsequent to the death of the deceased whose estate is sought to be administered can only be gone into and not the transactions which took place earlier. That would defeat the very scope and the purpose of an administration suit.
16. The decision of the East punjab High Court in Mt. Shafi-ul-Nisa v. Mt. Fazal-ul-Nisa, AIR 1950 (East) Punj 276, which was sought to be relied upon by Mr. N. R. Oza in support of his view which he sought to canvass before us lays down what is the nature of an administration, suit and considers the question as to whether the alienations can be Set aside in such a suit. It has been observed at 277:
'....... in an administration suit, where a man dies intestate the Court takes upon itself the function of an executor or an administrator and administers the estate of the deceased, but it is the estate of the deceased which is to be administered and, therefore, if the deceased leaves no estate either because he never had it or because he had transferred the whole of his property to somebody else, there is no estate which the Court can administer. The suit in its essence is one for account and for application of the estate of the deceased for the satisfaction of the debts of all the creditors, and for the benefit of all others who are entitled and the Court marshals the as sets and makes such a decree.'
The privy Council (sic) (Calcutta ?) case of Shivaprasad Singh v. pravag Kumari : AIR1935Cal39 was referred to. Reliance was placed on the observations made in the privy Council (sic) (Calcutta?) case and also of those in Benode Behari Bose v. Nistarini Dassi, (1905) 32 Ind App 193 (PC) (supra). The East punjab High Court then observed that
'A careful study of the cases shows that if the main object of a suit is to administer the estate, and if the Court, in the suit, has to decide as to the existence or otherwise of an alienation, an administration suit will lie, but where the main object of the suit is to have an alienation, alleged to be made by the deceased, set aside or to obtain possession of property illegally withheld by one of the heirs, an administration suit is not a proper remedy'.
The decision thus lays down that, in order to find out whether the suit for administration as instituted is maintainable, the Court must necessarily consider what is the main object of the suit. If the main object is to set aside the alienation, then the administration suit would not be competent. But, where the main object is to administer the estate and if in such a suit the Court has to decide as to its existence or otherwise, an administration suit will lie. Having regard to this ratio of the decision, it is difficult to see how Mr. Oza can press this decision in service to canvass his view. The case before us is the one in which the main object is to administer the estate of deceased Kazamali and in deciding what are the assets available for distribution, the accounts will have to be taken and the inquiry as to the existence of the property has to be made. The East punjab decision cannot, therefore, assist Mr. N. R. Oza, Mr. N. R. Oza also sought to rely upon a decision of the single Judge of the Lahore High Court in Chand Narain v. Ghasi Ram, AIR 1940 Lah 179. It takes the same view as the one taken by East Punjab High Court. It has been observed therein that if the main purpose of a suit is to determine as to who is the rightful heir of the deceased, such a suit is not an administration suit. The Lahore view does not thus carry the matter any further. Reliance was placed by Mr.N. R. Oza on a Calcutta decision in Shivaprasad Singh v. prayagkumari Debee, AIR 1935 Cal 39. It was a suit for the recovery of an impartible estate and other properties which the defendant was alleged to be in wrongful possession of. Having regard to this fact, the Division Bench of the Calcutta High Court took the view that it was not an administration suit, although accounts may have to be ordered on the basis of the liability of, an executor de son tort. The Calcutta view is on the same lines as the East Punjab view and can be distinguished having regard to the facts of the case and can have no applicability in the case before us.
17. Mr. Oza tried to rely upon the decision of our learned brother Mr. Justice Raju who, sitting as a single Judge of this High Court, has in Bai Rafixa d/o Hussain Zina v. Kalubhai Hasambhai, ILR (1964) 5 Guj 284, considered the question of the maintainability of the suit filed as an administration suit. It was a suit in which the plaintiffs prayed for -partition of certain immovable properties and the determination of controversial questions relating to immovable property: the plaintiffs did not pray for administration of any movable property left by the deceased, and the plaintiffs prayed for administration of the estate of deceased Jivabhai and for an injunction restraining the defendants Nos. 7 to 9 from executing their decrees and getting the properties sold in the darkhast filed by them. The plaintiffs in the case were daughters of grand sons of Jivabhai and were not his next of kin, and they had no interest in the property of the deceased at the time of his death. The suit was filed about 50 or 60 years after the death of Jivabhai whose estate was sought to be administered. The defendant No. 6 was not an heir of the deceased and defendants Nos. 7 to 10 were not at all related to the deceased and they had no interest in the property of the deceased at the time of his death. It appears that it was on the facts of the case and having regard to the main object of the suit which was for partition of immovable properties and which was a suit brought not by the next of the kin of the deceased but by daughters of the grand sons of Jivabhai - the deceased - that Raju, J., took the view that it was not an administration suit. He has clearly observed that the 'suit for partition of immovable properties is not an administration suit'. There can be no dispute about this proposition. But, there is a clear distinction between a suit for partition and a suit for an administration of estate. The decision cannot, therefore, be treated as an authority for the proposition sought to be canvassed by Mr. N. R. Oza that an administration suit which incidentally involves a question of partition of immovable properties is not maintainable. Again, we find that none of the Bombay decisions which we have referred to above were brought to the notice of the learned Judge. The decision proceeded only on the consideration of the provision of Order 20, Rule 13 of the Civil procedure Code and the relevant model forms of decrees - preliminary and final - and on some of the paragraphs from Halsbury's Laws of England which, with utmost respect, are strictly not relevant considerations in an administration suit brought in an Indian Court where the administration suit is decided on the pleadings of the parties and on the evidence on record and where the provisions contained in Order 20, Rule 13 of the C. P. Code which are merely procedural do not lay down the substantive law as we shall presently consider.
18. Mr. N. R. Oza tried to seek some assistance from Order 55, Rules 3 and 4 printed in the Annual practice, 1959, which were in force prior to the 1962 amendments and contended that the said rules were analogous to Order 20, Rule 13 of the Code of Civil procedure, 1908, which was partly substantive law and partly procedural law and a self-contained provision and, therefore the suit as instituted in the instant case is not competent as an administration suit. Now, Order 55 deals with special provisions as to the Chancery Division in England. Rule 1 deals with transaction of business in Chambers of the Judges of the Chancery Division. Rule 2 deals with business to be disposed of in Chambers. Rules 3 and 4 which have been revoked by R. S. C. (Revision) 1962 which rules were formerly in the second part of Order 55 under the heading 'Foreclosure and Redemption, Trusts' have been now placed in Order 85 under the heading 'Administration and Similar Actions' to be found in The Annual practice, 1965, by Jacob, Adams, Neave and McGuffie, Vol. I, page 1995. It appears that the Order 85 deals with actions for the administration of the estate of a deceased person, for the execution of a trust, for the determination of any question in the course of administration or in connection with a trust and cognate matters. It replaces Rules 3, 4, 10 and 10-A of Order 55. The Order emphasises that the lists of questions and orders set out therein are not intended to be comprehensive. The originating summons has now a life of its own under Order 5, Rule 1 and it can be used for any appropriate purpose. Unless the plaintiff's claim is based on an allegation of fraud, an originating summons will always be the correct document for initiating proceedings with regard to the domestic affairs of an estate or trust (O. 84, Rule 41. If, however, the proceedings relate to a breach of trust or wilful default on the part of a trustee which can be specified with some precision and there is likely to be a substantial dispute of fact, the proceedings should be commenced by writ. Order 85 discourages an application for an administration Order. Nevertheless, it will often be found desirable to take a full administrative order so that the Court is ready to deal with any situation which may emerge in the course of proceeding relating to the estate of a deceased person or a trust. An administration order enures for the protection of the general body of creditors as well as beneficiaries. (Vide The Annual practice, 1965, p. 1995). The operation of Order 85 is not confined to questions affecting only the trustees and beneficiaries of an estate or trust. Besides expressly providing for claims by creditors, it is appropriate also to questions between beneficiaries under a will and other persons, or between beneficiaries and persons claiming adversely to a deed of which construction is sought. Order 85, Rule 2 (2) provides that 'Without prejudice to the generality of paragraph (1) an action may be brought for the determination of any of the following questions: (a) any question arising in the administration of the estate of a deceased person or in the execution of a trust; x x x x'. The scope of the action is thus widened. Again, it appears that original Order 55, Rule 3 (now repealed) dealt with the question of determination of certain matters without administration. Rules 3 and 4 of Order 55 which are now repealed were to be invoked on an originating summons. The Rules provided a procedure by which the administration actions were to commence. The proceedings in the Chancery Court commenced by a special mode of procedure by originating summons, motion or petition as authorized by statutes or rules. proceedings also commenced by writ. The difficulty or importance of the question involved was no reason for refusing to deal with it on originating summons, but in matters of special difficulty, or where questions of Large amounts were involved, the Court usually looked with indulgence on proceedings commenced by writ. proceedings commenced by writ were in Court, and there were usually pleadings. proceedings commenced by originating summons were in chambers, without pleadings in the ordinary sense of the word, for an originating summons was itself a pleading, An originating summons may be adjourned into Court, but such an adjournment was merely a continuation of the hearing in chambers (Vide Williams on Executors and Administrators, 14th Edition, Vol 2, para. 1913). Thus, it appears that the procedure which was earlier prescribed for commencing the administration actions was one by originating summons which would be broadly akin to our summary procedure. In such a proceeding, complicated questions could not be gone into but in proceedings which would be commenced by writ, there would be pleadings and complicated questions could be gone into. The administration actions which are taken in Indian Courts are particularly akin to proceedings taken by writ in the Chancery Division except in the original side of the Chartered High Courts where a procedure similar to one operating in Chancery Divisions may also be available. Rules 3 and 4 cannot thus be considered for the present purpose as assisting Mr. N. R. Oza's contention in this behalf.
19. Coming to Mr. N. R. Oza's contention that Order 20 Rule 13 of the Code of Civil procedure is partly substantive and partly procedural law and thus indicates the limited scope of an administration suit, we must say that it has no merit. Order 20, Rule 13 finds its place in a particular scheme of the Civil Procedure Code. It is placed under Order 20 which provides as to how the judgments and decrees are to be pronounced in different cases and what are to be the contents of various decrees and is merely -procedural in character as we shall presently examine. The power to entertain an administration suit is given by Section 9 of the Code. Cognizance of administration suits is not barred either expressly or impliedly. Rule 13 provides merely a procedure for drawing up a decree in administration suit. Sub-rule (1) provides: 'Where a suit is for an account of any property and for its due administration under the decree of the Court, the Court shall, before passing the final decree pass a preliminary decree ordering such accounts and inquiries to be taken and made, and giving such other directions as it thinks fit.' Sub-rule (1) thus merely lays down a procedure which is to be followed in passing a preliminary decree in an administration suit where accounts of the property are to be taken for the due administration of the estate. The preliminary decree is to be pass before the final decree is passed and some inquiry is contemplated before passing a final decree in such a suit. Sub-rule (2) 1 provides: 'In the administration by the Court of the property of any deceased person, if such property proves to be insufficient for the payment in full of his debts and liabilities, the same rules shall be observed as to the respective rights of secured and unsecured creditors and as to debts and liabilities provable, and as to the valuation of annuities and future and contingent liabilities respectively, as may be in force for the time being, within the local limits of the Court in which the administration suit is pending with respect to the estates of persons adjudged or declared insolvent; and all persons who in any such case would be entitled to b. e paid out of such property, may come in under the preliminary decree, and make such claims against the same as they may respectively be entitled to by virtue of this Code.' Sub-rule (2) thus provides the procedure to be followed in the case where in an administration of the property by the Court, the property proves to be insufficient for the payment of debts and liabilities of the deceased etc. it is clearly a procedural law. It cannot be said to lay down the substantive law. As observed by a Division Bench of the Lahore High Court in AIR 1950 Lah 12, at p, 16:
'The power to entertain an administration suit is given not by Order 20, Rule 13, but by Section 9 of the Code, which provides that 'the Courts shall (subject to the provisions herein contained) have jurisdiction to try, all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred' and if a suit for the administration of an estate is not barred expressly or impliedly by any provision of law, it must be entertained. It would appear that an administration suit need not necessarily relate to the estate of a deceased person. This conclusion may be drawn from the language of sub-rule (1) of Rule 13 of Order 20, which speaks of a suit for an account of any property and for its due administration under the decree of the Court' without any reference to a deceased person, and the force of this language is brought out specifically in sub-rule (2) which makes a special provision for 'the administration by the Court of the property of any deceased person.' It has been further observed by the Lahore High Court at p. 16 of the report:
'It thus seems that the distribution of the residue among the successors of a deceased person is a duty attached to the estate notwithstanding that it vests in the heirs at the time of the death of the propositus, and as the distribution of the residue forms part of the administration of an estate, it clearly falls within the province of an administration suit. Even the Divine Book, under which the Sirajiyyah relies, insists on administration before the heritage ever devolves on the heirs. x x x x Thus, the theory that the property of a deceased Muslim vests in his heirs immediately after his death is considerably tempered by the injunction that the heir is entitled only to the residue after the payment of debts and legacies and necessarily involves the administration of the estate, such administration is implied in the very words of the holy Quran and of authentic texts, like the Sirajiyyah.' We are in respectful agreement with the aforesaid Lahore view. In our opinion, Order 20, Rule 13 provides merely a procedure. The forms of pleadings to be found in Appendix-A to the Code in Forms 41, 42, 43 are mere model forms and not statutory forms as was sought to be contended by Mr. Oza. A reference to Order 6, Rule 3 shows that the forms in Appendix 'A' are to be used when applicable, and when they are not applicable, the forms of the like character, as nearly as may be shall be used for all pleadings. The forms of the decrees to be found in the First Schedule in Appendix-D of the Code, form of preliminary decree being No. 17 and form of final decree being No. 18 are also model forms. It cannot be gainsaid that decree must conform to judgment. Order 48. Rule 3 provides that 'The forms given in the appendices with such variation as the circumstances of each case may require shall be used for the purposes therein mentioned.'
It is thus clear that the forms in the various appendices of the Civil Procedure Code are not statutory forms. Mr. Oza was thus not right when he tried to draw upon these forms and based a contention that the forms indicated the limited nature and scope of an administration suit.
20. In our considered opinion, therefore, the suit as framed is an administration suit and it is within the scope of the administration suit to go into the ancillary question of title to the property and also to distribute the property and for the purpose to partition the property, if necessary.
21 to 26. x x x x
27. This will take us to the last question that falls for our consideration in these appeals. The question raised is that the suit was originally instituted in the Court of the Civil Judge (Junior Division), Savli on 3-10-1963 and it was found to be not within the pecuniary jurisdiction of the Civil Court (Junior Division) and, therefore, the plaint was returned for presentation to the proper Court and ultimately it came to be presented in the Court of the Civil Judge (Senior Division) at Baroda on 19-6-1965 and, therefore, in a decree passed in that suit, the appeal would lie direct to the High Court and not to the District Court of Baroda. In Mr. Oza's submission, the plaintiff-respondent had in the plaint valued the suit for the purposes of Court-fees at Rs. 100/- under Section 6(iv)(i) of the Bombay Court Fees Act, 1959 (Bombay Act No. 36 of 1959) as a suit for accounts as stated in paragraph 5 of the plaint and had paid the fixed Court-fee of Rs. 20/-, but the plaintiff had valued the suit for the purpose of jurisdiction and pleader's fees at Rs. 1,00,000/- as stated in paragraph 6 of the plaint and, therefore, it is the valuation for the purpose of jurisdiction that would govern the jurisdiction of the Court for the purposes of appeal. Mr. Oza contended that the appeal would lie direct to the High Court and Civil First Appeal No. 348 of 1968 which was filed by the plaintiff against the part of the decree that was against her and as passed by the learned trial Judge and related to properties covered by gift-deeds Exs. 125 and 126 was summarily dismissed by the High Court on 26-6-1968 and, therefore, the question as regards the availability of the properties which were the subject matter of the two gift-deeds Exs, 125 and 126 which was decided in favour of the contesting defendants by the trial Court was concluded. Now, we must at once say that having regard to our findings aforesaid that the properties covered by the said two registered gift-deeds had been gifted away by Kazamali to Nazarali and are not available for administration and distribution in the suit, which confirms the finding on the point recorded by the trial Court, the question now becomes, one of an academic interest. However, as it has been raised and argued by the learned Advocates on both the sides, it is but proper that we should deal with it. One more important fact in this connection which requires to be noted is that the defendants Nos. 1 and 5 had filed Civil Appeal No. 495 of 1967 in the District Court at Baroda on 18-11-1967 and, in that appeal, the said defendants had valued the appeal at Rs. 100/- and filed the appeal on a Court-fee stamp of Rupees 20/- only as is provided in Section 6(iv)(i) of the Bombay Court-fees Act, 1959. It may be recalled that in the last paragraph of the memo of appeal of the said two defendants filed in the District Court, it has been stated that the valuation for the purpose of jurisdiction was put at Rs. 1,00,000/-, but the suit valuation is the same as the valuation of the Court-fees and the real valuation for jurisdiction was below Rs. 10,000/- and, therefore, the appeal before the District Court was competent. The plaintiff had filed cross-objections in this appeal on 12-1-1968. The learned 2nd Extra Assistant Judge, Baroda, who heard the appeal and the cross-objections has by his judgment and decree dated 29-1-1971 dismissed the appeal and allowed the cross-objections. The cross-objections of the plaintiff were directed against the finding of the learned trial Judge that the proper-ties covered by the two registered gift-deeds Exs. 125 and 126 were not the properties of the deceased and were not available for administration and distribution. The learned 2nd Extra Assistant Judge has accepted the cross-objections. As aforesaid, in our opinion, the gift-deeds were complete gift-deeds and, therefore, these are not the properties available for administration. The question that was now sought to be raised by Mr. Oza was that the appeal before the District Court that was filed by defendants Nos. 1 and 5 whom he represents was not competent and so also the cross-objections and, therefore, the decision of the District Judge must be considered as non est. This contention was urged by Mr. Oza with a view to raise a further contention that the appeal filed by the plaintiff before the High Court having been summarily dismissed, the plea as regards the validity of the finding of the learned trial Judge relating to the question of gift-deeds Exs. 125 and 126 was concluded. Now, the suit was instituted in the Court of the Civil Judge (Junior Division), Savli, which had the territorial jurisdiction to decide the, suit it is indisputable that if the valuation for the purpose of Court-fees were to govern the valuation for the purpose of jurisdiction also, the suit must be held to have been competent in the Savli Court and the appeal over the judgment and decree of the Savli Court would lie to the District Court at Baroda and not to the High Court and that the first appeals to the High Court direct were not competent and that appears to be the legal position which we shall presently examine. It is clear that the court-fees payable in the suit is to be computed under Chapter III of the Bombay Court Fees Act. Section 6 which falls under Chapter III makes a provision for the computation of fees in the suits of different categories. Section 6(iv)(i) makes a provision for computation of fees payable in a suit for accounts. It provides that the amount of fees payable under this Act in suits for accounts is according to the amount at which the relief sought is valued in the plaint or memorandum of appeal subject to the provisions of Section 8 and subject to the minimum fee of Rs. 20/-. Thus, the valuation for the purpose of Court-fees in a suit for accounts would ordinarily be on the amount at which the relief sought is valued in the plaint. The plaintiff has put this valuation at Rs. 100/and paid the minimum Court-fees stamps of Rs. 20/- on which the plaint was engrossed as appears from paragraph 5 of the plaint. It is common ground that the present suit for the purpose of payment of Court-fees is to be valued under Section 6(iv)(i) of the Act. A suit for an administration and one as it is framed is in essence a suit for accounts because, until the accounts are taken, it cannot be predicated with any reasonable amount of certainty as to what is the property available for distribution to the heirs. The administration of the estate requires that the accounts be taken, the assets and outstandings of the deceased be collected, debts be paid and the distribution then be made of the residue of the estate according to the personal law governing the parties. Section 8 of the Suits Valuation Act, 1887 (Act 7 of 1887) as amended by See. 7 of the Gujarat Act 31 of 1964, provides that 'where in suits other than those referred to in clause (d) of paragraph (iv), paragraphs (v), (vi), (vii) and clause (d) of paragraph (xi) in Section 6 of the Bombay Court-fees Act, 1959 (Bombay Act No. XXXVI of 1959), Court-fees are payable ad valorem under the Bombay Court-fees Act, 1959, the value as determinable for the computation of Court-fees and the value for purposes of jurisdiction shall be the same.' The suit as framed does not fall within the purview of the excluded category. The Court-fee payable is ad valorem under the Bombay Court-fees Act, 1959 and as aforesaid, Rs. 100/- is the Court-fee a which the suit is valued. It would follow that in such a case, the value as determinable for the computation of Court-fees, viz. Rs. 100/- will be the value for the purposes of jurisdiction. The valuation for the Court-fee shall be the valuation for jurisdiction. No doubt, the plaintiff has valued the suit for the purpose of jurisdiction at Rs.1,00,000/- but the valuation for the purpose of jurisdiction will not determine the forum in which the suit has to be filed. Indisputably, the value for the purpose of Court-fees and the value for the purpose of jurisdiction shall have to be the same. It is immaterial that the, plaintiff has valued the suit for the purpose of jurisdiction at a higher amount. The suit was perfectly competent as instituted in the Savli Court. It would not make any the difference that the plaint was then presented by the plaintiff in the Court of Civil Judge (Senior Division) at Baroda and was tried by the said Court. The appeal from the decision of the trial Court thus lay to the Court of the District Judge at Baroda and not to the High Court direct. It is interesting to note that the defendants Nos. 1 and 5 themselves had filed the appeal in the Dist. Court and there they had raised the contention that-the appeal was competent before the District Court. It was only by way of abundant caution that the said defendants have, filed the first appeal in this High Court. Once we hold that the appeal lay to the District Court and was competent, it would follow that the cross objections were perfectly competent. The decree passed by the learned 2nd Extra Assistant Judge, Baroda, would thus be the decree which must be considered to be one in this appeal for all purposes. The appeal competent before us is the second appeal. As aforesaid, this has now become a question of mere academic interest in view of our finding above. It would not make any difference that the final decree which may be passed might award possession of immovable property. The suit would nonetheless remain for administration of the estate of the deceased. Section 17 of the old Court-fees Act and Section 18 of the new Court-fees Act will not apply in such a case. In Krishnaji Hari Dhamdhere v. Gopal Narayan Dhamdhere, (1936) 38 Bom. LR 218 : (AIR 1936 Bom 166), in a suit for taking account of rent which is a suit under Sections 7(iv)(f) of the Court-fees Act, 1870, the plaintiff claimed a fixed sum, viz., Rs. 1,699-12-0. The plaintiff valued the suit for the purpose of Court-fees at Rs. 200/- and valued the claim for pleader's fees at Rs. 1,500/-. It was held that in such a suit, the plaintiff was at liberty to value the claim as he pleases and that the valuation for the purpose of Court-fees will determine the jurisdiction of the Court under Section 8 of the Suits Valuation Act. In Khatija v. Sheikh Adam Husenally Vasi, 17 Bom LR 574 : (AIR 1915 Bom 59), a Division Bench of the Bombay High Court has taken the view that plaintiff was at liberty to put her own valuation in the suit for accounts under Section 7(iv)(f) of the Court Fees Act (VII of 1870) in an administration suit and the valuation for the purpose of Court-fees would govern the forum. It was a suit which one Khatija had filed as an administration suit of the estate of one Tyeballi Sheikh Adam the deceased. She also prayed for ascertainment in the residue of the estate. The claim in the suit was valued at Rs. 130/- for Court-fees purposes and at Rs. 30,00,000/- for the purpose of jurisdiction. The suit was filed before the Subordinate Judge as an administration suit and was held to be maintainable. These decisions support the view which we are inclined to take that even if the valuation for the purpose of jurisdiction is placed at a higher sum, it would be the valuation for the purpose of Court-fees that would govern the jurisdiction under Section 8 of the Suits Valuation Act. The appeal before the learned District Judge and so also the cross-objections therein were, therefore, competent. The decision of the learned Civil Judge (Junior Division), Savli, that the suit was not competent in that Court and was triable by the Civil Judge (Senior Division) appears to have proceeded on an erroneous view taken that the suit was in essence one for partition. In our opinion, the suit is one for administration of the estate and if it is necessary in such a suit the partition of the property can be made. But, that would not alter the nature and character of the suit which remains one for administration of the estate of the deceased and which in its very nature is a suit for accounts. The question of want of jurisdiction in the Savli Court cannot be said to have been concluded simply because no appeal against that order had been filed on behalf of the plaintiff. The question was still open to be considered in the appeal, viz., in the appeal that was filed in the District Court which heard the appeal and the cross-objections and in those proceedings, the contesting defendants contended on the contrary that the valuation for the -purpose of Court-fees was proper. The, suit being governed by Section 8 of the Suits Valuation Act, the valuation for the purposes of jurisdiction would also be the same. The plaint as originally instituted was, therefore, validly instituted in the proper Court. But this does not make any the difference in the present case as it has now assumed an academic interest in view of our findings aforesaid in these proceedings.
28 to 31. x x x x
32. Order accordingly.