P L D 1949 Lahore 263 (PLP)

Schedule I, Appendix D, gives four forms in which a decree in an administration suit should be worded. These are Nos. 17 to

20. Form No. 17 relates to a preliminary decree in administration suits generally. Thus, in a suit by the next‑of‑kin, the preliminary decree will open with these words, It is ordered that the following accounts and inquiries be taken and made that is to say that an inquiry be made and account taken of what o; of what share, if any, the plaintiff is entitled to as next‑of‑kin, or one of the next‑of‑kin of the intestate." Form No. 18 relates to a final decree in an administration suit by a legatee, No. 19 to a preliminary decree in an administration suit by a legatee where an executor is held personally liable for the payment of legacies and No. 20 to a final decree in an administration suit by next‑of‑kin. It will thus be seen that the form of a final decree in a creditor's suit and in a suit by a legatee where an executor is held personally responsible for the payment of legacies has not been prescribed. Nor has the form of the plaii;t in a suit by the next‑of‑kin been prescribed. From these omissions It should be evident that the forms appearing in Appendix A and Appendix D of the First Schedule are not exhaustive. Abdur Rahman J., observed that sub‑clause (1) .of rule 13 it, Order XX, in so far as it merely required the Court to pass a preliminary decree ordering that such accounts and inquiries should lie taken and made and such other directions given as the Court thinks fit, provides no answer for the question as to what property, movable or immovable, admitted or contested, would be covered by the inquiry, and in respect of what matters would, accounts be taken ; nor was there anything to show whether an executor of the will can be ordered to submit accountant or to carry out the Court's directions even in respect of the estate or the portion of the estate which vests in him and which he is bound to administer in accordance with the provisions of the will. As regards sub‑clause (2) of rule 13, the questions which arose were whether, if the estate was sufficient to pay the debts of the deceased person, it would be necessary even then to ascertain the extent of the estate or to adjudicate upon the various contentions raised by the parties in regard to the validity of his alienations inter vivos or testamentary, or to settle the various disputes between persons who claim to be the deceased's heirs and the shares which ‑accrued to them on his death and to divide the pro perty eventually amongst those heirs. These questions were examined by Abdur Rahman, J. in the light of the forms of plaint and the forms of decrees given in Schedule I, and further doubts were expressed on the' point whether the Court would take upon itself the duty of ascertaining what the estate was when title to a portion of it was being disputed either on the ground that the deceased had never been its owner or he had alienated it during his lifetime, and whether the Court would take steps to recover the dis puted portion of the estate from those who are claiming adversely to it after adjudicating their claims on merits. Two other points; more important than these, which were raised by Abdur Rahman, J. related to the provisions of the Muhammadan Law and Succession Act. Firstly, the estate left by a Muslim comes to visit in his heirs immediately upon his death and is held by them in specified share. These heirs are tenants‑in‑common and are liable to pay the debts due by the deceased in proportion to the shares held by them. There is thus no estate belonging to the deceased after his death, so that the expression 'administration of an estate of the deceased' would be a misnamer for the simple reason that no such thing exists in the eye of law, and if it does exist, it would seem to follow that it cannot be administered. A suit for the administration of the estate of a deceased Muslim may not be competent at all. Secondly, under section 211 of the Succession Act, 1925, the ex ecutor or the administrator of the deceased person in his legal repre sentative for all purposes and the property of the deceased vests ill him as such. Further, under section 216 of the same Act, "after any grant of probate or letters of administration, no other than the person to whom the same may have been granted shall have power to sue or prosecute any suit, otherwise act as representative of the deceased, throughout the province in which the same may have been granted, until such probate or letters of administration has or have been recalled or revoked. It seems to me difficult to provide an answer for all these questions within the narrow compass of the present suit, though quite a number of these have been resolved by the learned judge himself in his examina tion of Form No. 17 in which the preliminary decree is to be worded.] According to this form (No 17) the objects of an administration surd would appear to be :‑ (a) ascertainment of debts due by the deceased (paragraph 1) ; (b) ascertainment of legacies directed by the testator to be paid out c>f the estate (paragraph 2) ; (c) payment of the deceased's funeral and testimony expenses paragraph 4) (d) an enquiry as to what movable property was left by the de ceased. and which had come to the hands of the defendant or any other person by his order or his use (paragraph 5) ; (e) an inquiry as to what .part of the movable property of the deceased was outstanding and undisposed of (paragraph 6) ; and (f) an inquiry and an account of what, if any, was the plaintiff entitled to as next‑of‑kin of the intestate (paragraph 3). It is unnecessary for our present purpose to examine other contingencies that may arise. So far as a suit by one of the next‑of‑kin is concerned. the form of the preliminary decree provides that an inquiry should be made into what the plaintiff was entitled to and an account of the property rendered with that end in view ; in which case it would be necessary for the Court to ascertain the' entire property which the deceased owned at the time of his death. But even if the form of the decree had been without this provision, it could not necessarily be inferred that such a provision could not be made. I have already pointed out that the forms given in Schedule I are not exhaustive, and to that argument I may add that since Order XX, rule 13 (1) empowers the Court when passing a preliminary decree, to order such accounts and inquiries to be taken and made and to give "such other directions as it thinks fit", the Court would be at liberty to pass a decree in accordance with the circumstances of each case. It seems to me, if I may say so with great respect, that it would be incorrect to rely too much on Order XX, rule 13 or the forms of plaints and decrees prescribed in the First Schedule of the Code of Civil Procedure for ascertaining the objects of an administration suit. Order XX, it will be noticed bears the title "Judgment and decree" and is devotee to the form in which judgments should be delivered and decree passed in particular cases. The forms, it has already been noticed, are not exhaustive, and rule 13 itself enables the Court to give any directions that it thinks fit. "Administration" means management and disposal of an estate, whether it be that of a deceased person or of any other person. The power to entertain an administration suit is given not by Order XX, 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 expecting 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 XX, 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". In order to show that the right to institute a suit for administration is distinct from the procedure prescribed icy the Code or by any other law for the trial of that snit, I can do no better than reproduce the open paragraph of Chapter VII in Wilson's Anglo‑Muhammadan Law (6th Edition), which has been brought up to 1928 by Mr. Abdullah Yusuf Ali. The Chapter is headed "Administration" and reads thus :‑ "This topic belongs partly to the substantive law of succession, and partly to the department of adjective or procedural law. Con sequently we might expect to find, as we do find in fact, that in British India it is partly regulated by Muhammadan Law, and partly by statutory enactments. The question, what becomes of a man's rights and obligations at the moment of his death is a question of substantive, and therefore, (for Muhammadans in British India) of Muhammadan Law. But such questions as, whose duty it is to give orders to the undertaker to whom should the creditors of the dead man send in their bills ? from whom will his debtors be safe in taking a receipt ? who is entitled to take immediate charge of the property ? and, above all, what may, and what may not, be done without the intervention of a public officer ? are questions of adjective law, the answers to which are not to be sought, in British India, from the Muhammadan Law sources, but from the Anglo‑Indian Codes or the practice of the Courts. Unfortunately, the ancient Muhammadan text writers could not foresee this curious dismemberment of their system by a non‑Muhammadan Legislature, and saw no special reason for drawing a sharp line between substantive and adjective law in their expositions". Above this note the author quotes a passage from the Sirajiyyah, according to which "there belong to the property of a deceased person four successive duties (to be performed by the magistrate) first, his funeral ceremony and burial without superfluity of expense, yet without deficiency ; next, the discharge of his just debts from the whole of his remaining effects ; then, the payment of his legacies out of a third of what remains after his debts are paid ; and lastly, the distribution of the residue among his successors, according to the Divine Book, to the Traditions, and to the Assent of the Learned". It thus seems that the distribution of the residue among the succes sors 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 upon which the Sirajiyyah relies insists on ad ministration before the heritage over devolves on the heirs. Thus, Chapter IV, Verse 11 is as follows:‑ "Allah enjoins you concerning your children ; the male shall have equal of the portion of two females. Then if there are more than two females, they shall have two‑thirds of what the deceased has left ; and if there is one, she can have the half But if he has brothers, then his mother shall have a sixth after the payment of a bequest which he may have lef t or a debt." In the twelfth verse the injunction for the payment of bequest of debt has been repeated no less than thrice :‑ "And you shall have half of what your wives leaves if they have no child but if they have a child then you shall have a fourth of what they leave after payment of any bequest they may have left or debt ; and they shall have the fourth of what you lease if you have no child but if you have a child, then they shall have the right what you leave after payment of a bequest you may have left or debt. And if a man or a woman leaves property to be inherited by either parents nor off‑spring and he or she has a brother or a sister then each of them two shall have the sixth, but if they are .re than that, they shall be share in the third after payment of v bequest, that may have been left or a debt. This is an ordinance m Allah and Allah is Knowing, Forbearing." Thus, the theory that the property of a deceased Muslim vests in his immediately after his death is considerably tempered by the function of that the heir is entitled only to the residue after the payment a legacy or debt, and since the payment of debts and legacies 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. While on his subject, I should like to quote a passage from the famous judgment of Mahmud, J. in Jafri Begum v. Amir Muhammad I L R 7 All. 822, which was referred to by the Privy Council in Muhammad Ali Khan v. Sadiq Ali Khan A I R 1938 P. C. 169 with apparent approval. That passage is as follows :‑ "Upon the death of a Muhammadan owner, his property immediately devolves upon his heirs in specific shares : and if there are any claims against the estate, and they are litigated, the matter passes into the region of procedure, and must be regulated according to the law which governs the action of the Court." In the Privy Council case cited above it seems to have been assumed that an administration suit in one form or the other was the only remedy in certain eventualities. In that case a Muhammadan widow of a Taluqdar in Oudh obtained a decree under section 52, Civil Procedure Code, for dower against all the heirs of the deceased including the Taluqdar succeeding the deceased. She realised the decretal amount only out of the partible or non‑Taluqdari estate in the hands of the heirs, who brought a suit against the existing Taluqdari for contribution, contend ing that as both the Taluqdari and the non‑Taluqdari properties were liable for the debt, the Taluqdari estate should be made to contribute according to its value. The findings in that suit are not relevant for the present purpose, but the following passage from the Privy Council judg ment throws considerable light on the nature of an administration suit :‑ "In the ordinary case of a Muslim whole property descended according to his personal law, it would be impossible to suggest that all heir was without remedy against his co‑heirs if by the action of the judgment creditor under such a decree he was left with less than his proper share of the net estate of the deceased. His right to contribution would be plain. As a beneficiary, he would have the right that the deceased's estate should be duly administered, that it should be cleared of debts and valid legacies and that he should be given possession of his share therein. For this purpose his suit could take various forms according to the circumstances of the case. It might be denominated an administra tion suit of a suit for partition or a suit for contribution, but the basis of his claim would be the same in each case, viz., the right to have due administration of the deceased's estate. The right might be enforced in a proper case by an application for the appointment of an administrator under section 218, Succession Act, 1925". It is thus clear that their Lordships assumed that the demand for the administration of a deceased's estate was one of the fundamental rights of an heir according to Muhammadan Law. Other authorities are not wanting Essafally Alibhai's case reported in I L R 45 Bom. 75, has, in fact, been taken for granted both in Wilson's Anglo‑Muhammadan Law and in Mulla's Principles of Muhammadan Law. In that case one Ghulam Hussain died in 1904 and one of his sons brought a suit in 1915 for an account and administration of his estate. The defendants con tended that the suit was not maintainable in the form in which it was brought. Repelling the contention, Macleod, C. J., observed :‑ "I cannot myself see why an administration suit in this case can not lie, considering that Ghulam Hussain died in 1904 ; that his estate has never been distributed ; and that his estate has never been administered. It is impossible for any one who could prove he was entitled to an interest in the estate to get that interest until the estate has been ascertained by proper administration. It is perfectly true that under the law there is no need on the death of a Muhammadan for Letters of Administration to be taken out to his estate, and the result, as I have often pointed out, is that frequently the heirs live in harmony after his death without distributing the estate. Some of them may die leaving their heirs, and it is only when disputes arise in the family that the trouble begins. The point is abundantly clear that if there is an estate it can be administered, and if a party who has an interest in that estate has asked the Court to administer that estate, even if he knows exactly what it consists of, he is entitled to come to Court and ask for a preliminary decree for the administration of that estate. He is not bound, even although he knows what the estate consists of to file a suit for partition. He may do so or he may not. *" It may be discovered when the suit is heard on the merits that Alibhai and Mariambu have no interest in Ghulam Hussain's estate. But that has nothing to do with the preliminary point which has been decided against the plaintiff. Heaton, J. concurring, made the following remarks :‑ "Ghulam Hussain died in 1904 leaving amongst other heirs his father and mother. They have since died, and their shares have passed to the plaintiff. He claims, therefore, that he is a sharer to the extent of one‑third in the estate of Ghulam Hussain, and I understand that what he claims is either to get one‑third of the estate of Ghulam Hussain as it was when he died, or else to get on‑third of the estate as it was when the suit was brought. Which of the two he really sues for and many other matters can only be determined by going into the case on its merits. Unfortunately, instead of doing this, the lower Courts dealt with the matter on a preliminary issue, and I am afraid they were somewhat influenc ed by the fact that an administration suit is a very cheap suit to bring. The court‑fees on such a suit or small, whereas the court fees on a partition suit vary with the value of the property to be partitioned. But it does not in the least matter to a judge whether a suit is a cheap suit or a dear suit. The plaintiff could bring his suit in any form which the law allows." In Mst. Amir Bi v. Abdul Rehim A I R 1928 Mad. 760 the widow of one Abdul Razaak, who died in 1920, brought administration suit pray ing that the extent of her late husband's property may be ascertained that his outstanding may be realised, that his estate may be administered, that her dower may be paid and that the residue divisible among his heirs may be divided according to their shares under the law. The defendants contended that this was in substance a suit for partition. The learned judge observed :‑ This, surely, is not a suit for partition, pure and simple. One of the reliefs claimed; no doubt, is that the property should ultimately 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, sets 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 administers the estate." (The learned judge then examines briefly the provisions. of Order XX, rule 13 and all the forms of plaints and decrees in Appendices A and D proceeding thus) :‑ "It is thus perfectly clear that it is open to a litigant in India claiming a share of a deceased's estate to file an administration suit. As a result of the administration by the Court, it may ultimately direct the residue of the property to be given over, either to the sole heir (where there is only one), or to be distributed among several heirs (where there are several). Thus, partition may be an incident, but is not a necessary incident, of the administration of a deceased person's estate. In this particular case, as there are several heirs, it has become necessary for the plaintiff to ask for a partition ; but this is a mere accident." For his conclusion the learned Judge relied on Essafally's case cited above and on Khatia v. Shakh Adam Hussenally I L R 39 Bum.

545. In the latter case the death of the deceased had taken place more than thirty‑five years previous to the suit. In Moideenna Rowthen v. Muhammad Kazim Rowthen 28 I C 895 one of the heirs had sued for the partition of his share and the other heirs contended in the first Court that a suit for partial partition did not lie. In appeal they gave up this contention and argued that the entire estate should have been partitioned. The learned Judges observed :‑ "In the case of Mussalmans what would be a partition suit, if the parties were Hindus, ought often to take the form of a suit for the administration of the estate of a deceased person. In the present case the suit would undoubtedly have been better framed, had it asked for administration". This means that apart from the plaintiff's right to seek his remedy in any form permitted by law, if the choice is between a partition suit and an .administration suit, the latter should be preferred. This, in fact, may be treated as a corollary from the Privy Council case Kazim Ali Khan v. Sadiq Ali Khan cited above, in which it was observed that a beneficiary of a deceased's estate could approach the Court in several ways, the basis of his claim being the same in each case, namely, the right to have due administration of the deceased's estate. In 411 C 579 Ma Shawa Thet v. Mahle Shin, the plaintiff sued for a third share of the estate of her deceased grandparents as against her aunt and uncle, who contended that they had paid a debt belonging to the plaintiff's father by an arrangement with the plaintiff who had agreed to part with the land on payment of a certain amount. The learned Judge observed that although the suit was not brought in the form of an administration suit, the trial Court should have treated it as such, and after due trial of the matter, involved, passed decrees on the lines of the model decrees in Appendix D. No s. 17 and 20, Civil Proce dure Code. The course suggested should be adopted in all cases where a claim is made for a share of inheritance, for in the interests of all parties further litigation arising out of distribution of the estate should be prevented. For the defendants reliance was placed on two rulings, one of which, namely, Tehida Bibi v. Zenab Bibi A I R 1942 Lah. 65, entirely irrelevant, while the other Chand Narain v. Ghasi Ram A I R 1940 Lah. 179, deals with a different set of facts. In the former case it was held that where one of the co‑heirs of a deceased Muhammadan in possession of the whole or part of estate sells property in his possession for discharging the debts of the deceased, such sale is not binding on the other co‑heirs or creditors of the deceased. In the other case it was held by Abdul Rashid, J. (as he then was) that where a suit is one between rival claimants to the estate of the deceased, each one claiming to be her sole heir, such a suit is not a suit for an account of any property and for its due administration under the decree of the Court. Hence, an adminis tration suit cannot be filed by one of the heirs to obtain possession of the property wrongfully withheld by another person claiming to be the heir. It will be observed that in the present case the plaintiff has in addition asked for an account of the property since August 1944 ; but even if this distinction did not exist, I must say with very great respect, in view of the abundance of authority on the opposite side, that if there is any estate to be administered in any form (excluding, of course, cases relating purely and obviously to rival claims), an administration suit would not only be competent, but often desirable. It will be observed that under section 218 of the Succession Act, 1925, "if the deceased has died intestate and was a Hindu, Muhammadan, Buddhist, Sikh or Jain or an exempted person administration of his estate may be granted to any person who, according to the rules for the distribution of the estate, applicable in the case of such deceased, would be entitled to the whole or any part of such deceased's estate." It follows that instead of instituting a suit for administration, any one of the heirs could have applied to the Court for the grant of Letters of Administration. Even, therefore, if the administration of the estate were incompetent under the Islamic law, it has been made permissible under Succession Act ; and since under section 5 (b) of the Punjab Laws Act, 1872, the rule of decision in question regarding succession shall be the Muhammadan Law in cases where the parties are Muhammadan "except in so far as such law has been altered or abolished by legislative enactment", the provisions of the Successions Act will prevail where they come in conflict with Muhammadan Law. And if the estate can be administered by the grant of Letters of Administration, there is no reason why it should not be capable of administration by the Court following a decree in an administration suit, I must, however, respect the warning issued by Wilson at the beginning of his Chapter on Succes sion, and point out that the Succession Act is merely an adjective law providing a procedure by which the substance of the Islamic law is brought into effect. Now I come to the difficulties envisaged by Abdur Rahman J. in his referring order in respect of the provisions of sections 211 and 216 of the Succession Act. According to the former the executor or adminis trator, as the case may be, of a deceased person is his legal representa tive for all purposes, and all the property of the deceased person vests in him "as such". The only means that the property of the deceased person vests in the administrator only in his capacity as administrator and that the beneficial interests still vests in the heirs. Although in the present case no executor or administrator has been appointed and there can be no difficulty in the way of an administration suit on this ground, I must point out that the provisions of section 211 do not bar the institution of an administration suit. All that the section says is that the administrator shall be the legal representative of the deceased person. Now, when a single heir sues the other heirs for the adminis tration of the deceased's property, he does not do so as a legal "repre sentative" of the, deceased, for he is not the only representative, in other words, he does not represent the estate. The administrator may be made a party to a suit just as conveniently as the executor is made a party in an administration suit by a pecuniary legatee. I have already observed that model Form No. 43 in Schedule I, Appendix A of the Code of Civil Procedure, contemplates that the executor will be a party to the suit. It is possible that section 211, being later in date, has pro Canto repealed model Form 43, but this is not clear, and this is a matter which should be decided when a administration suit is filed notwithstanding the appointment of an administrator under section 218 of the Succession Act. As regards section 216, it provides that after the grant of probate or Letter of Administration, "no other than the person to whom the same may have been granted shall have power to sue or prosecute any suit, or otherwise act as representative of the deceased until such probate or Letters of Administration has or have been recalled or revoked. Here again the question does not arise in the present suit, for no Letters of Administration have been granted, but even here all that has been provided is that were Letters of Administration have been granted, no person other than the grantee shall have power to use as representative of the deceased, and since "representative" can only mean "sole repre sentative", it will not debar a single heir, who does not profess to be the sole representative, to file an administration suit. I, therefore, hold that an administration suit lies in the present case and that the petition should be dismissed with costs. Cornelius, J.‑I agree and would like to add a few words of my own. The death of Sheikh Danishmand Suqrat, whose property is the subject matter of dispute, having taken place as far back as 1913, it is possible, and in my view preferable; to regard this suit not as a suit for adminis tration of the estate of Sheikh Danishmand Suqrat, but as a suit for administration of a quasi trust. The nature of this trust would appear to be that specified in section 90 of the Indian Trust Act, 1882, which reads as follows :‑ "Where a tenant for life, co‑owner. mortgage, or other qualified owner of any property, by availing himself of his position as such gains an advantage in derogation of the rights of the other persons interested in the property or where any such owner, as represent ing all persons interested in such property gains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained, but subject to repayment such persons of their due share of the expenses properly incurred, and to an indemnity by the same persons against liabilities properly con tracted in gaining such advantage." The allegations in this case are that Sheikh Danishmand died possessed of considerable property, movable and immovable, and that this property had been inherited by the plaintiff, her three brothers and a sister, mother. The management was in the hands of the male defendants, who had given the plaintiff her share of the income up to 1944, but had there after failed to pay her share, and she accordingly brought the present suit to obtain an account of estate and for administration thereof. As a reference to section 95 of the Trust Act will show any person holding property in accordance with, inter alia, section 90 of the Act, "must so far as may be, perform the same duties, and is a subject, so far as may be, to the same liabilities and disabilities, as if he were a trustee of the property for the person for whose benefit he holds it". Assuming without deciding that the male defendants held the property in dispute, in part at any rate for the benefit of other persons interested in that property including the plaintiff it would seem to follow that they are under an obligation to render accounts of the trust at the suit of the' beneficiaries. It may be urged that Order XX, rule 13, Civil Procedure Code does not speak of administration of trusts, but suits for adminis tration of trusts are very well known, and that such suits are contempla ted by the Civil Procedure Code of 1903, will appear clearly on a refer ence to Form No. 44 in Appendix A to the First Schedule of that Code;) which although headed, "Execution of Trusts" is a form of plaint seeking relief by way of administration, for, in the form, the relevant relief clause is worded as follows :‑ "He prays that the Court will take the accounts of the said trust, and also that the whole of the said trust estate may be adminis tered in the Court for the benefit of C. D., the defendant and all other persons who may be interested in such administration. * * * * " In this view of the matter the more difficult question as to whether or not the estate of a deceased Muslim is capable of administration under the existing adjudication law, does not arise for consideration. But if I am wrong in thinking that the present suit would be more aptly styled a suit for administration of a quasi‑trust than a suit for administration of the estate of a deceased Muslim, I am entirely in agreement with the view expressed and the argument adopted by my learned brother, that there is no bar under the personal law to administration of a deceased Muslim's estate under the provisions of the Indian Succession Act, and even less objection to such an estate being adminis tered by Civil Court under a decree made in an' administrative action. My learned brother has cited verses from the Holy Quran, which, in my humble opinion, clearly contemplate an actual division of the estate, an operation which, in a case in which dispute arises, must be carried on either directly by a Court or under the supervision of a Court, if in justice and the strong arm are not to prevail. The Holy Quran places great stress upon the payment of debts and legacies before the estate is divided among the heirs‑at‑will, it should be evident that in the normal case proper satisfaction of debts and legacies would require the intervention of a third party or of a person acting under legal sanctions such as an executor or an administrator, since the interests of the heirs -at‑will clearly be to appropriate the entire estate to themselves. In this view of the matter, the question whether or not the concept of representation of the deceased person or of the deceased person's estate is foreign to Muslim law is hardly relevant. It is true that in an administration action, the personal legal representative of the deceased is a proper and necessary party, but firstly it Sis not necessary that an administration action should be brought by a personal legal repre sentative (the Civil Procedure Code itself provides for such actions to be commenced by creditors or specific legatees be next‑of‑kin) secondly it is not necessary for the institution pr continuance of administration action that there should be a personal legal representative either of the deceased or of his estate in existence. On the point, owing mainly to the paucity of administration suits in Pakis" no authority has been cited before us, butt think it will not being of place to refer to the relevant rule in the IPales of the End; Supreme Court, which contain far more detailed provisions for administration actions than are to be found in our Civil Procedure G, In O. XVI of these Rules, Part V relates to "Administration in Execution of Trusts and rule 46 runs as follows: If any cause, matter; or other proceeding it shall appear to Court or a Judge that any deceased person who was interested, in the matter in question has no legal personal representative the Court or Judge may proceed in the absence of any person representing the estate of the deceased person, or may apps i some person to represent his estate for all the purposes of the cause* * * * ". If then the argument be that under Muslim Law, because the estate of the deceased vests upon his death in his heirs, it is not possible to conceive of any estate survival the death and consequently of any person representing estate, while it may be permissible to contend that the appointment of an administrator, or the grant of probate to an executor, in the capacity of the personal legal representative of the estate of the deceased person is not contemplated by Muslim Law, the argument would not avail to bar an administration suit one of the heirs at law or any legatee or creditor. For, as seen above, such a suit can very well proceed without any personal legal representative of the estate of the deceased person. In fact, the functions of an executor or an administrator performed by the Court in such actions and the absence personal legal representative of the estate which has to be administered does not in any way obstruct or embarrass the operations of the Court in the furtherance of the suit. I am not impressed by the argument that an administration suit barred merely because the plaintiff could have sued in some of, form. In the present case, it is said that the plaintiff should have sued for partition. Form No 42 of the forms of plaints in Appeal A to the First Schedule of the Civil Procedure Code relates to administration suit brought by a specific legatee, and Form No. 43 relates to a similar suit brought by a pecuniary legatee ; in each these cases a similar argument could be put forward, viz., that legatee bringing the suit should have specifically sought possession the particular property bequeathed to him. The plaint forms in the two cases furnish no indication that any relief is contemplated' any person other than the plaintiff and one of the decree forms, 19 in Appendix D of the same Schedule, will also show that in a suit it is open to the Court to grant individual relief to the plaintiff. Consequently, it appears to me that the mere fact of the possibility of the present plaintiff bringing a suit in a different form is no bar to her adopting the form of an administration suit as permitted by law and I would here respectfully adopt the reasoning of Mackleod, C. J. and Heaton, J. in the case of Essafally Alibhai, I L R 45 Bom 750, in the extracts quoted in the judgment of my learned brother. K. M. A. Petition dismissed