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Mohmad Asgar Abdul Karim Vs. Abdul Basir Abdul and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1979)2GLR423
AppellantMohmad Asgar Abdul Karim
RespondentAbdul Basir Abdul and ors.
Cases ReferredIn Ganpatsinh Kalyansinh Thakore and Ors. v. Shantilal Kalyansinh Thakore
Excerpt:
- - these two prayers clearly show that the suit is for administration and not for partition......plaintiff has filed civil suit no. 226 of 1976 for the administration of the estate of deceased abdul rehman abdul who died on 25th february 1968 and for the determination of his share under the will executed by abdule rehman. the suit is pending. he valued the suit at rs. 200/- and paid on the plaint a court-fee of rs. 40/-. the valuation made by the plaintiff and the court-fee paid by him were challenged. the learned judge after hearing the parties came to the conclusion that the plaintiff was liable to pay court-fee on the value of his 1/3rd share. by the impugned order, therefore, he called upon the plaintiff to give details of the valuation of his 1/3rd share in the property of the deceased abdul rehman.2. it is that order which is challenged in this civil revision application.3......
Judgment:

S.H. Sheth, J.

1. In the Court of the Civil Judge (Junior Division) at Surat, the plaintiff has filed Civil Suit No. 226 of 1976 for the administration of the estate of deceased Abdul Rehman Abdul who died on 25th February 1968 and for the determination of his share under the will executed by Abdule Rehman. The suit is pending. He valued the suit at Rs. 200/- and paid on the plaint a Court-fee of Rs. 40/-. The valuation made by the plaintiff and the Court-fee paid by him were challenged. The learned Judge after hearing the parties came to the conclusion that the plaintiff was liable to pay Court-fee on the value of his 1/3rd share. By the impugned order, therefore, he called upon the plaintiff to give details of the valuation of his 1/3rd share in the property of the deceased Abdul Rehman.

2. It is that order which is challenged in this Civil Revision Application.

3. Mr. Shelat who appears on behalf of the plaintiff has argued that a suit for administration is nothing but a suit for accounts and that, therefore, the plaintiff was entitled under Section 6(iv)(i) of the Bombay Court-fees Act, 1959 to put his own valuation subject to the payment of a minimum Court-fee of Rs. 20/-. In support of his contention, he has cited before me a decision of the Division Bench of this Court in Taherbhai Fidaali Khambhati v. Abadin Fidaali Khambhati and Ors. 18 GLR 786. It has been held in that decision that there is a marked distinction between a partition suit and an administration suit. In an administration suit the estate of the deceased is collected, his debts are ascertained and collected and the shares of the parties who make claim to his estate are also ascertained. After payment of debts due by the deceased, whatever remains out of the estate is distributed amongst the heirs or persons entitled to it in proportion to the shares which they have. It has lastly been held that since that is the character of an administration suit for the purposes of Court-fees, it is a suit for accounts which can be valued under Section 6(iv)(i) of the Bombay Court-fees Act.

4. It has been argued by Mr. Kadri on behalf of the State that the plaintiff has based his claim on the will executed by Abdul Rehman under which he is entitled to 1/3rd share in the properties of deceased Abdul Rehman. Therefore, it has been argued by Mr. Kadri that this is not a suit for administration but that it is a suit for partition. Merely because the plaintiff has relied upon the will of Abdul Rehman, a suit which is otherwise an administration suit does not change its character and become a suit for partition. The prayers which the plaintiff has made are clear enough. There are many prayers in his plaint. The first two prayers read as follows:

(i) The movable and immovable property of the deceased may be ascertained and after deducting therefrom all funeral and such other expenses, the movable and immovable property of the deceased may be determined. Upon administration thereof, the plaintiff may be given his 1/3rd share.

(ii) Accounts of the administration of the estate of the deceased may be taken from defendant No. 1 and the plaintiff's share therein may be given to him.

These two prayers clearly show that the suit is for administration and not for partition.

5. It has been held by a Division Bench of Nagpur High Court in Goswami Rameshpuri Guru Maheshpuri and Anr. v. Madhukar and Ors. AIR 1953 Nagpur 276, that a suit to ascertain the estate to which the plaintiff is ultimately found entitled is a suit for administration of the estate and for accounts. It has also been held that merely because there is a will which is pleaded by the plaintiff, the character of the suit does not change. I agree to it.

6. Mr. Kadri has, however, stressed the expression 'subject to the provisions of Section 8' occurring in Section 6(iv)(i) of the Bombay Court-fees Act, 1959. According to him, the Court has jurisdiction to make an enquiry into such matter under Section 8 of the Bombay Court-fees Act, 1959. Section 8 indeed empowers the Court to hold an enquiry into the valuation of a suit.

7. In Ganpatsinh Kalyansinh Thakore and Ors. v. Shantilal Kalyansinh Thakore 6 G.L.R. 402, it has been held by this Court that in order to attract the provision of Section 8 of the Bombay Court-fees Act, 1959, to a suit for accounts, the Court must come to a definite finding on materials on record that the valuation has been wrongly put. A mere statement that the valuation has been wrongly put does not satisfy the requirement of Section 8 and does not confer the jurisdiction upon the Court to hold an enquiry unless the Court comes to the conclusion and bases its view on some standard which is available to the plaintiff and to the Court to value correctly the subject-mater of the suit and the relief prayed. This decision makes it clear that, in a suit for accounts, the power of making an enquiry which a Court has under Section 8 is confined to the allegations made in the plaint comes to the conclusion that the claim has not been property valued by the plaintiff, the Court has jurisdiction to revise it and require the plaintiff to pay the Court-fee on the correct valuation. It appears to me from that decision that Section 8 does not require the Court to enquire into what is required to be proved in the suit.

8. In the instant case, the Court is bound to ascertain the state of deceased Abdul Rehman and to administer it. When therefore, the Court tries the suit, the Court will record evidence and come to the conclusion as to what is the estate of the deceased, what falls to the share of the plaintiff and what its valuation is. Therefore, what is attempted to be done at the preliminary stage for the purpose of determining whether the plaintiff has paid adequate amount of Court-fees or not is really something which forms a part of the merits of the case. It is not proper to require the Court in a case of this type to make two enquiries: one for the purpose of Court-fees and another for the purpose of deciding the merits of the case and passing the decree. Since the suit for administration is, for the purposes of Court-fees, a suit for accounts, the plaintiff who has paid a nominal Court-fee of Rs. 40/- is bound to pay before the decree is drawn the balance of the Court-fees on the share found due to him from the estate of Abdul Rehman. Therefore, the State is not at all a loser. The only question is whether the plaintiff should pay now or after his share has been ascertained and preliminary decree has been passed. This case is supported by the decision in Ganpatsinh's case (supra) and I see no reason to depart from that decision. In my opinion, therefore, what the plaintiff has stated in the plaint is correct and he cannot be estate which would fall to his share upon the administration of the estate of deceased Abdul Rehman.

In that view of the matter, the impugned order cannot be sustained.

The civil revision application is, therefore, allowed, the impugned order is set aside and the trial Court is directed to proceed to decide the suit on merits. Rule is made absolute with no order as to costs.


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