G. Ramanujam, J.
1. The petitioner herein filed a suit for administration of the estate of his deceased father, K. Ahmed Sheriff Sahib consisting of Schedules A to P given in the plaint and for partition and separate possession of his 14/144th share in the said estate and for rendition of accounts by the first and 13th defendants in respect of his share from 7th January, 1967, the date of death of his father, to the date of the plaint and for future mesne profits. The petitioner also attacked as sham and nominal certain settlement deeds executed by his father in favour of the first defendant his second wife in respect of the properties covered by B, C, D, E, and I Schedules. He also claimed that the properties covered by Schedules G, H, K, and L, though had been purchased in the name of the first defendant, they were really purchased by his father, Ahmed Sheriff Sahib benami in her name for his benefit. He further attacked a decree for arrears of mahar obtained by the first defendant against his father as collusive and not binding on the estate. He also claimed that the jewels referred to in Schedules N, O, P, belonged to defendants 8 and 11 and his mother respectively and that the claim of defendant to the ownership of the same had no basis. He valued the suit at Rs. 4,41,164-00 under Sections 39 and 50 of the Madras Court-fees and Suits Valuation Act, 1955 and paid a Court-fee of Rs. 200 thereon. He also valued the relief of partition at Rs. 33,324-25 under Section 39(2) of the said Act and the relief of mesne profits at Rs. 1,000 under Section 44, and paid a Court-fee of Rs. 200 and Rs. 75.50 respectively in respect of those reliefs. Thus in all he had paid a Court-fee of Rs. 475.50.
2. On a check slip issued by the Court-fee Examiner the Court below, after hearing the objections of the petitioner, held that in respect of the properties i.e., Schedules B, C, D, E and I, covered by the settlement deeds executed by the deceased Ahmed Sheriff Sahib in favour of his second wife, the first defendant, he should have asked for cancellation of the settlement deed, that in respect of the properties covered by Schedules G, H, J, K, and L, he should have asked for a declaration that the purchase of those properties in the name of the first defendant was benami for the estate, that in respect of the mahar decree in O.S. No. 64 of 1962 against the father in favour of the first defendant, he should have asked for its setting aside and that in respect of the jewels in Schedule P and N, which is claimed by the petitioner as belonging to his mother and defendant 8 respectively he had to value under Section 25(b), and pay Court-fee accordingly.
3. The learned Counsel for the petitioner attacks the correctness of the order of the lower Court and contends that the suit being one for administration, it is not necessary for him to seek for cancellation of the settlement deed executed by his father in favour of the first defendant or for a declaration that the properties purchased and standing in the name of the first defendant belong to the estate or for setting aside the mahar decree obtained by the first defendant against the plaintiff's father. He also contends that the petitioner is not bound to pay the Court--fee under Section 25(b) in respect of the jewels set out in Schedules P and N.
4. The properties covered by B, C, D, E and I have been settled by the deceased father of the plaintiff in favour of the first defendant, his second wife, and the plaintiff wants the Court to treat those properties as properties belonging to the estate and to partition the same between the sharers. The lower Court has taken the view that unless the plaintiff seeks a cancellation of the settlement deed executed by his deceased father, it is not possible for the Court to treat the properties as forming part of the estate left by him. The learned Counsel for the petitioner refers to the decision in Ramaswami v. Rengachari : AIR1940Mad118 , and contends that once it is alleged in plaint that the properties even though alienated by the father continues to be in possession of the estate, the plaintiff is entitled to sue for partition ignoring the said alienation, which according to him was sham and nominal. The learned Counsel also relies on the decision in Revenna Basanna v. Adeppa (1951) 1 M.L.J. 289, where Balakrishna Ayyar, J., had held that in a suit for partition of the family properties some of which were alienated, but were in the possession of the family, the plaintiff need not seek to set aside the alienation and as such no separate Court--fee was payable as the properties were in the possession of the family and that it cannot be deemed that such possession was on behalf of the alienee. The learned Judge relied on the Full Bench decision in Ramaswami v. Rengachari : AIR1940Mad118 , for taking that view. Ramaswami v. Rengachari : AIR1940Mad118 , was a case in which certain alienations made by managing member of the family were attacked. By virtue of some alienations possession of the properties had been given to the alienees, and in respect of some others the plaintiff therein was eo nominee a party. In the third set of alienations though they were by the Manager of the family, it was alleged that the properties continued to be in possession of the family. In respect of the third set of alienations the Full Bench held that separate Court-fee was not payable and the relevant observations are as follows:
In such cases even if the plaint contains a prayer for a declaration or cancellation, there is good reason for holding it to be one for a purely identical, but unnecessary relief. As I have indicated there is no such prayer in the plaint and in the light of the principles explained there is no justification for implying them and then demanding a fee for it. Nor can I see any force in the argument that the position is altered by the joinder in the suit of the parties to the transactions who are interested in supporting them.... I am unable therefore to appreciate the argument that, by reason of his impleading the several creditors, the plaintiff must be deemed to have asked for declarations in respect of each of the transactions impugned and must pay a separate Court--fee as regards each one of them.
The above two decisions specifically proceed on the basis that though the properties have been alienated if they are alleged to be in the possession of the family, that is, if the plaintiff is alleged to be in joint possession of the alienated properties, no separate Court-fee need be paid for having the alienation cancelled or set aside. In re Thirupathiammal A.I.R. 1956 Mad. 179, was also-referred to on behalf of the petitioner. In that case Ramaswami, J., held that a plaintiff, suing for declaration of his title to certain lands and for possession and mesne profits on the ground that a sale deed executed by his son in favour of a third party was a fictitious transaction, need not pray for cancellation of the document for he not being a party to the above sale deed can ignore it and ask for the appropriate relief without seeking for cancellation. In that case the father claimed that alienation made by the son was invalid on the ground that himself and his son constituted a joint Hindu family of which he was the manager, that his son had no power to alienate the family properties and that on account of some misunderstandings between him and his son, his son has executed a nominal sale deed in favour of a third party. It is on those facts the Court held that the plaintiff need not ask for cancellation of the alleged sale deed executed by his son which was challenged as invalid.
5. In Bivi Ammal v. Mohammed Mohideen : AIR1951Mad522 Balakrishna Ayyar, J., dealt with a case where the plaintiff sought to avoid a release deed executed by her on the ground that it was a forged one or that it had been executed under undue influence and it has been held that the plaintiff in that case must pay, before she can get rid of the document, an appropriate Court-fee for its cancellation. Shafi-ul-Nisa v. Fazal-ul-Nisa A.I.R. 1950 P.&H.; 276, dealt with a suit for administration. In that case it was observed that though 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, 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. It was also held in that case that if the main object of the suit is to have an alienation 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. As in this case, there also the parties were Muslims and one of the heirs claimed exclusive possession of the property on the basis of an alienation made by the deceased whose estate had to be administered and the Court held that the validity of the alienation will not come properly within the purview of the administration suit.
6. On a due consideratjon of the matter, I am of the view that the decisions in Ramaswami v. Rengachari : AIR1940Mad118 , Revenna Basanna v. Adeppa (1956) 1 M.L.J. 289, and In re Thirupathiammal A.I.R. 1956 Mad. 179, will not help the petitioner. The facts in this case are clearly distinguishable. The alienations which are sought to be avoided [by the plaintiff (petitioner) are those made by his deceased father. The plaintiff who claims to succeed to his father as one of the heirs cannot ignore the alienations made by the father without actually seeking their cancellation. Further, the plaint does not proceed on the basis that the plaintiff is in joint possession of the alienated items along with the first defendant. But on the other hand the plaintiff specifically states in paragraph 28 of the plaint that the first defendant has been enjoying the mesne profits derived from the estate of his father and that she is liable to render true and proper accounts of the said mesne profits, and seeks a direction from the Court to defendants 1 and 13 to render a true and proper account of the mesne profits derived by them from the estate of his father and pay over to him his 147144th share in the same from 7th January, 1967. These plaint allegations make it clear that the properties alienated by the plaintiff's father in favour of the first defendant and those said to have been purchased by him benami in the name of the first defendant are being enjoyed by defendants 1 and 13, and that the plaintiff is suing as a person excluded from possession of those items. It is not possible to treat the possession of defendants 1 and 13 as constructive possession by the plaintiff in this case. The theory of constructive possession cannot be invoked as amongst Mohammadan heirs especially when one set of heirs assert their exclusive right over some of the items in dispute. The plaintiff cannot be said to have been in joint possession of any of the items covered by the Schedules B,C,D,E and I or Schedules, G.H.J.K. and L. It is well established that in an administration suit filed under Order 20, Rule 13, Civil Procedure Code, the Court takes upon itself the function of an executor or an administrator and administers the estate of the deceased. As it is the estate of the deceased which is to be administered, the Court has necessarily to marshal the assets belonging to the estate of the deceased. But it has no power to determine the validity of any alienation made by him and recover the properties so alienated. In Shivaprasad Singh v. Prayag Kumari I.L.R.(1934) Cal. 711, it has been held that:
A suit for the recovery of an impartible estate and other properties, which the defendant is alleged to be in wrongful possession of, is not an administration suit, although accounts may have to be ordered against the defendant on the basis of the liability of an executor de son tort.
No doubt, in Benode Behari Bose v. Nistarini Dassi (1906) I.L.R. 33 Cal. 180 (P.C.) : L.R. 32 IndAp 193 : 1906 15 M.L.J. 331 , their Lordships of the Privy Council held that Court had power to order administration of the estate, and as auxiliary to such order to set aside deeds obtained by the fraud of the executor. But that decision proceeds on the basis that a fraudulent transfer made by the executor can be set aside in an administration suit as such an alienation takes place after the death of the deceased and the estate of the deceased has to be determined as it existed at the time of his death. On the same reasoning Ollur Bank v. L.F. Bank A.I.R. 1954 Trav. Co. 399, held that where the alienation impugned is not that of the deceased, but of his heirs the Court can consider the validity of such an alienation in order to determine the estate of the deceased at the time of his death.
7. Having regard to the nature of an administration suit which is, in essence, one for an account and application of the estate, the Court may be entitled to decide as to the existence or otherwise of an alienation, but it cannot cancel or set aside an alienation made by the deceased and recover the properties so alienated in the course of the administration of the estate. It is therefore, not possible to accept the contention of the learned Counsel for the petitioner that in an administration suit the Court in the course of its marshalling the assets of the deceased has the duty to decide upon the validity or otherwise of an alienation made by the deceased. Having regard to the allegations in the plaint which specifically proceed on the basis that the properties which are covered by Schedules B, C, D, E, I and G, H, J, K and L, are possessed by defendants 1 and 13 right from the date of the death of the plaintiff's father, it is not possible to accept the petitioner's case that lie is in joint possession of those properties. I therefore uphold the order of the lower Court and hold that the plaintiff has to specifically ask for cancellation of the alienations made by his father. For the same reasons the plaintiff has to specifically seek for declaration that the properties purchased in the name of the first defendant were benami for the estate of his father, and for setting aside the mahar decree obtained by the first defendant against the father, and pay Court-fee therefor.
8. As regards the jewels covered by Schedule M.O. and P. the lower Court's view that in respect of N and P schedules the petitioner has to value the suit under Section 25(b) has also to be accepted. The allegations in the plaint as regards the jewels in N and P schedules are to the effect that they belonged to 8th defendant and the mother of the plaintiff respectively, the mother had gifted away to her children P schedule jewels even during her lifetime, that after his mother's death the said jewels continued to remain in the possession of his father, Ahmed Sheriff Sahib and that the first defendant took unlawful possession and custody of the said jewels. The plaintiff seeks for a direction to the first defendant to bring in the jewels in Schedule P into the estate of the deceased Ahmed Sheriff Sahib to be administered as per the wishes of his mother. The case of the plaintiff as regards the jewels in N and P schedules is that they did not belong to the estate of his father but that they belonged to the 8th defendant and his mother respectively and that they had been wrongfully retained by the first defendant. Having regard to the averments in the plaint the said jewels cannot be said to form part of the estate of the deceased to be administered them. The plaintiff has to establish his case that the jewels in Schedule P which are said to be in possession of the first defendant are his mother's jewels and that they are to be handed over to her daughters, defendants 3 to 12. As regards N schedule jewels he had to establish the 8th defendant's right to the same. Such a claim will be clearly outside the administration suit. Hence the petitioner has necessarily to pay Court-fee; under Section 25(b) in relation thereto.
9. In the result, the civil revision petition is dismissed ; but in the circumstances, no costs. The petitioner is however, granted two month's time for payment of Court--fee.