1. Plaintiff's administration suit for administrations of the property of the deceased Hakimbhai (father of the plaintiffs ) having been dismissed by the lower appellant Court as incompetent by reversing the trial Court's preliminary decree, the plaintiffs-daughters have filed this appeal. Hakimbhai Abdullabhai had first married Mariam, who did in about 1928. He married the other wife Halimabai, who was divorced in 1945. Though the first wife, the deceased had 2 sons, Gulamnabi, defendant No. 1, Alimohmed, defendant No. 2, and Ajijabai, defendant No. 4. Though Halimabai, he had one son, Nuruddin, defendant No. 3 and two daughters, plaintiff No. 1 and plaintiff No. 2. Hakimbhai died on May 26, 1958. In this administration suit, the plaintiff had alleged that, in the lifetime of the deceased, there were, so-called, to partitions effected, at Ex. No. 117, dated January 5, 1949, and Ex. 118, dated November 27, 1957, which were illegal and inoperative and could not affect the plaintiffs' title. It was the case of the plaintiff's that Mahomedan Law never recognised nay such joint family, where there would be interested by birth. Therefore, the partition deed, Ex. 117, which was effected by the deceased for himself and as guardian of the minor son Nuruddin, defendant No. 3, with the two major sons, defendant No. 1 and defendant No. 2, was illegal and inoperative. The first document was a registered document, while the second document was an unregistered document, whereby the deceased distributed his share between the three sons. In that document, the deceased acted as a guardian of the minor Nuruddin, defendant No. 3. Under the latter deed, the daughter were given some share in mango trees. As the deceased's estate was required to be administered properly by collecting all his assets, the present suit was filed claiming also a relief that the aforesaid two deeds, Exs. 117 and 118, were illegal and that, if any surplus property was left after administration of the estate of the deceased, it should be distributed between all these heirs in accordance with their shares. The trial Court held the suit to be competent. The trial Court also held that the aforesaid deeds were illegal and inoperative so as to affect plaintiffs' share. The trial Court further held that so far as the shop was concerned and the mango trees, which were purchased by defendant No. 2, Alimohmed by Exs. Nos. 238 and 130, they were his exclusive property. Therefore, excluding these properties, which were held to be of Alimohmed, defendant No. 2, the administration suit was decree and a preliminary decree was ordered to be drawn up. The trial Court had determined the share of the parties and had given consequential directions. The appellant Court, however, held that the suit was incompetent and that the Court could not go into the question as to the validity of these two deeds, Exs. Nos. 117 and 118. Therefore, without determining any issue on merit, the plaintiff' suit was dismissed. Therefore, the lower appellant Court refused to go into the question raised by defendant No. 2 as to how far defendant No. 1 was liable to the extent of properties which were admittedly in his possession. Even the cross-object of the plaintiffs were, accordingly, dismissed,. That is why the plaintiffs have come in this appeal.
2. The legal position, so far as the administration suit is concerned, is now well settled. Where the suit is with the primary object of having administration of the estate of the deceased, it is open to the plaintiff, seeking administration, to claim ancillary relief, by way of an incident of administration,. that certain alienations were illegal and in operative and did not affect the estate of the deceased. There can never be any administration, unless the Court has determined the estate of the deceased. Therefore, as an incident of administration, if such an ancillary question arise as between the parties themselves, the nature of the primary relief on administration is not affected. It is only where the primary object is not the administration suit but the relief for a declaration that the alienations made by the deceased are invalid and such a relief is not between are invalid and such a relief is not between the same parties but against a stranger, that such a relief being the main relief cannot be joined in such a suit and administration being not the main purpose. the suit would not be competent. In Benode Behari Bose v. Nistarini Dasi, (1906) ILR 33 Cal 180 (PC). their Lordships of the Privy Council at p. 1919, in terms laid down that, where the primary object of the suit was the administration of the estate of a deceased person, the administration suit was competent, even where ancillary relief was asked to set aside deeds obtained by the fraud of the executor. Their Lordships also held that, for the due administration of the estate, the Court had power to set aside leases of land outside the territorial limits of its jurisdiction, those leases having been made as an incident of the same fraud. In Motibhai v. Nathabhai, AIR 1921 Bom 187, the Division Bench consisting of Macledo, C. J. and Shah, J. in terms, held that 'if in the course of an inquiry as to the assets belonging to the estate of a deceased person, any assets in possession of persons who are parties to the suit are claimed as forming party of the assets of the estate of the deceased, the person, appointed by the Court as representing the estate of the deceased to taken such steps as may be necessary fro the proper administration of the estate, can decide whether such assets belonged to the deceased or not. But he cannot decide such a question if the persons in whose possession the properties are, are not parties to the suit'. The leaned Chief Justice pertinently made these observations at p. 187 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'. If that is 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 which have already been raised in the suit'. In Mahomedally Adamji v. Abdul Hussain, AIR 1924 Bom 313 the Division Bench consisting of the Shah, Ag. C. J., and Crump. J., in terms considered this question in the light of the ratio laid down the by their Lord ships of the Privy Council in Benode Behari Bose's case, (1906) ILR 33 Cal 180 (PC). AT p. 314, Shah Ag. C. J., pointed out that it appeared form the form of decree in an administration suit given in Seton on Decrees, Vol. II p. 1412 (7th Edn.) and also in Schedule I, Appendix D, of the Code of Civil Procedure, in that among the inquiries contemplated in the course of the administration the inquiry as to what immovable property the deceased was seized of the or entitled to, at the time of his death was included. It was further pointed out that the question was not whether the suit in respect of this property so far it related to this property was a suit for land or not,. but whether such an inquiry was appropriate in an administration suit. This question was really an incident of the administration suit, as per the settled legal position laid down by their Lordship of the Privy Council; so the question as to title of the property could be appropriately considered in an administration suit. That is, why at p. 316, the ratio was laid down the 'the Court in administering the estate of the deceased in this suit has power to inquire as to whether the particular immovable property belonged to the deceased at the time of this death'. Crump, J., at p. 317, also laid down that it would follow almost of necessity that the question as to title of the property must be determined in an administration suit. It was impossible for the Court to administer the estate without deciding what the estate was, and until the question of title had been settle, the Court did not known as to what property its orders were to operate, When that second question was decided it would be for the Court to consider in what manner the administration should be effected. That was a stage which was not yet reached, and as to which such directions as might be necessary would have to be given by the Court after the question of title was determined. To hold otherwise, would lead to absurdity; for it would be a necessary conclusion that though the Court could entertain and administration suit as regards property outside the territorial jurisdiction, it could not, in that suit, decide whether that property belonged to the estate or not. Crump, J. treated the question as concluded on the aforesaid Privy Council decision. In fact, if we turn to Order 2, Rule 5 of the civil Procedure Code, it enacts as under :-- 'No claim by or against an executor, administration or heir, as such shall be joined with claims by or against him personally, unless the least mentioned clams are alleged to arise with reference to the estate in respect of which the plaintiff of defendant sues or is sued as executor, administrator or heir, or are such as he was entitled to, or liable for, jointly with the deceased person whom he represents'. Therefore, claims by or against an administrator, executor or heir, which have reference to the estate in respect of which the plaintiff seeks administration, can always be joined in that suit. It is only when the title question or the question about the validity about alienations arise against a stranger that Order 2, Rule 5 would not permit such a joinder of the claims. Therefore, the aforesaid settled legal positions is borne out by the provisions of Order 2, Rule 5 that so far as the heirs, executor or administrator are concerned. In the same administration suit, all claims arising against such an executor, administration or heir, which have reference to the same estate, can always be joined. Therefore, such a joinder between these co-heirs would not affect the primary nature of the suit, because the question would be an incident of the administration. As between the co-heirs, unless the estate is first determined, no administration can even be granted. This was the view taken by Raju, J. in Asmalbai v. Esmailju : AIR1964Guj174 as to the effect of Order 2, Rule 5 and the learned Judge had rightly held that in the administration suit, such a prayer for determining the validity of the alienations could surely be gone into. At p. 685, the learned Judge also rightly relied upon the pertinent observations in Maganlal v. Kanchanlal, 38, Bom LR 754 = (AIR 1936 Bom 353) where the Division Bench of Broomfield and Tyabji, JJ., had in terms held at p. 758 that even where in an administration suit there was a prayer that will made by the decease was null and vold, the suit was one for administration in spite of the fact that the final decree might award possession of immovable properties. The same view was reiterated in Suryanarayana v. Anasuyamma : AIR1963AP298 .
3. Mr. Bhatt, however, vehemently relied on the decision by Mukerji and S. K. Ghose JJ., is Shivprasad Singh v. Prayagkumari Debee : AIR1935Cal39 . At p. 724, their Lordships explained the nature of an administration suit whose object was management of the estate of a deceased person who had left no executor. In such a suit, the whole administration and settlement of the estate was assumed by the Court; the suit in its essence was one for an account and for application of the estate of the deceased for the satisfaction of the dues of all the creditors and for the benefit of all others who were entitled, and the court marshalled the assets and made such a decree. The administration consisted, generally speaking, in the payment of the funeral expenses of the deceased, in the payment of debts and legacies and the collection, realization, preservation and distribution of the assets. Order 20, Rule 13 and the relevant forms in the Schedule, dealing with the preliminary decree in an administration suit, were referred to. On the facts of the case, at p. 726, the learned Judges held that the suit before them was not an administration suit. because it was for the wrongly withholding of the possession by the defendant of immovable and movable properties. Therefore, the claim the against a stranger and, therefore, the primary object was not held to be one of administration. Mr. Bhatt next relied upon the decision in the Shafi-ul-Nisa v. Fazal-ul-Nisa, AIR 1950 EP 276, which does not lay down any different proposition. It also holds that if the main object of a suit was to administer the estate, and if the Court, in the suit, had to decide as to the existence or otherwise of the an alienation, an administration suit would, would lie, but where the main object of the suit was to have an alienation, alleged to be made by the deceased, set aside, or to obtain possession of the property illegally withheld by one of the heirs, an administration suit was not a proper remedy. This decision could hardly help Mr. Bhatt in view of the aforesaid settled legal position, which is to the considered in the context of Order 2, Rule 5, which would show that such a claim, so far as co-heirs are concerned, would be only an incident of administration. Therefore, this line of authority, which Mr. Bhatt pursued, could have hardly help him, in view of the express provision in Order 2, Rule 5 which itself would show that the as between the co-heirs, this is only an incident of administration,. Therefore, the primary object of the suit being one of administration for determining the title of deceased to certain properties, which are said to have been wrongfully alienates, is to be decided as between the parties themselves. When the question arises between these parties, the suit must be held to be competent. Therefore, the lower appellate Court was wrong in dismissing the suit short ground.
4. Mr. Bhatt had also attempted to argue that the question arose between strangers because defendant Nos. 1 and 2 were claiming their own title. Mr. Bhatt ignores the fact that the what Order 2, Rule 5 contemplates is that the question arises as between the co-heirs and has reference to the same estate. If the plaintiffs are able to show that these deeds, Exs. Nos. 117 and 118, are illegal and in operative, the said properties would always remain the estate of the deceased. Therefore, these co-heirs would be liable for dealing with the said estate and on the footing that this property was of the estate of the deceased. Therefore, the contention of Mr. Bhatt has no substance whatsoever.
5. As the lower appellate Court has not gone into any other question on merit, the appeal and the cross-objections have got to the remanded to the lower appellate Court for disposal, in a according with law, as expeditiously as possible.
6. In the suit, this appeal is allowed with costs. The appeal an the cross-objections are remanded to the lower appellants Court for expeditious disposal.
7. Appeal allowed.