1996 PLP 1847 (CLC)

"After a review of all the authorities cited at the Bar. I am of the opinion that it was open to the Court to determine in an administration suit whether certain alienations were or were not in fact made by the deceased. It is, however, not open to the Court in an administration suit to determine the validity of any alienation made by him." The authorities reviewed are those reported in AIR 1940 Lahore 179, 61 Calcutta 711, 45 Bom. 1053, AIR 1936 Lahore 365, 48 Bombay 331 and 33 Calcutta

180. Out of those authorities, the question whether validity of alienation of a property by a deceased can be challenged in a suit for administration did not admittedly, arise in AIR 1940 Lahore 179, 45 Bom. 1053 and 48 Bom. 331; and, with all due respect to the learned Judge, the question did not really arise in any of the other authorities reviewed. As for the case reported in AIR 1936 Lahore 365 the facts were that Mst. Rehmat Sultan died on 6th April, 1924. An administration suit was instituted by her heirs against her husband Mohamed Din. Mohamed Din claimed one of the houses as his property. On the other hand, the plaintiffs contended that Mohamed Din was liable to pay Rs.700 as dower to the heirs of Mst. Rehmat Sultan. Mohamed Din did not admit the amount of dower. It was held that a disputed debt cannot be deemed to be an asset which has come in the hands of any person representing the estate and the finding of the District Judge that in an administration suit it is not open to the Court to direct the debtor to pay the debt due to the estate to the administrator or to the receiver was upheld; and, as to the house, it was held that in a case like that the party in possession of the assets of the deceased can be directed to hand the same over to the administrator. In other words, the question whether the house formed part of the estate of the deceased could be, and was determined in that suit. It may be noted that, with regard to the house, the plaintiff's case was that house was purchased by Mohamed Din with the money of Mst. Rehmat Sultan. In 61 Calcutta 711, it was averred in the plaint that the plaintiffs are the real heirs of their husband and they are entitled to recover the properties left by him; that the plaintiff No. l or at any rate one amongst them is entitled to succeed to the impartible estate; and that the defendant had no right or title to the properties left by the plaintiffs' husband but has obtained wrongful possession of them by exercising fraud, misrepresentation and undue influence and the reliefs claimed were declaration of title and recovery of possession from the defendant. It was held that the suit against the defendant was for wrongful withholding of possession of the properties and was not in the nature of an administration suit at all. No question of determination of validity of alienation in an administration suit, therefore, arose in that case. In 33 Calcutta 180=32 Indian Appeals 196, the plaintiff brought a suit for administration of the estate of her deceased husband. After the death of her husband she was induced to execute certain instruments by which she surrendered her rights under the will and she alleged in the suit that those instruments were obtained by fraud. The defendants disputed the jurisdiction of the High Court of Calcutta but the High_ Court and the Appellate Bench sustained the jurisdiction, set aside the series of deeds and decrees impugned, and granted administration. On appeal, their lordships of the Privy Council held: "On the question of jurisdiction their lordships consider the decision 'right. 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 on 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 set aside deeds obtained by the fraud of the executor." (Underlining is mine) In AIR 1950 (East) Punjab 276, the plaintiff brought a suit for administration alleging that deceased was, before his death, under the influence of the defendants; that he was suffering from 'Maraz‑ul‑Maut' and that all documents executed by him, including a deed of gift of the property in favour of the defendant, were invalid; and that the gift was not valid because it was made without the consent of the plaintiff. She pleaded that because of the invalidity of the deed of gift, she was entitled to have the estate of the deceased. administered. Relying on the decision in AIR 1943 Lahore 241, the learned Judges held:‑ .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 proper remedy." The passage quoted above shows quite clearly that the maintainability or otherwise of a suit filed for administration depends on the main object of the suit. In the present case, it was not even argued by Mr. Noorul Hassan that the main object of the suit is to question the validity of any gift. In PLD 1978 Lahore 391, the 'pith and substance' of the plaint was that since the donor was a limited owner, and had no authority to make the gift, the gift was invalid it was, therefore, held that the suit was not maintainable In 1982 CLC 976, there was a dispute about one of the properties which the defendant claimed had been gifted to her by the deceased and which had subsequently been sold by her. It was held:‑‑ "The scope of administration suit is limited. The question of title to a property claimed by any heir in his own independent right cannot be decided in these proceedings. The object of the suit is .to determine the estate of the deceased at the time of his death. Reference can be made to PLD 1962 SC 291, PLD‑ 1978 Lahore 391 and two unreported orders passed by Zafar Hussain Mirza, J. in Suit No.274/75. " and the disputed property was excluded from the preliminary decree passed in respect of other, undisputed, properties. The two reported judgments mentioned above have already been discussed hereinabove. As for the unreported order in Suit No.274/75, the plaintiff alleged therein that the deceased had left behind several properties. As to one of them, the defendant No. l claimed that it belonged exclusively to him, and, as to the other, the plaintiff's case was that it was owned by the deceased Benami in the name of his wife who purportedly gifted it to defendant No.7 when the deceased was seriously ill and in unconscious condition. The defendant sought to have these properties excluded from the suit. Before the issues were framed, the plaintiff made an application under Order 20, Rules 13, C.P.C., praying that preliminary decree be passed ordering the administration of the estate of the deceased under the decree of Court with specified steps towards ascertainment, preservation and final distribution thereof among the parties in accordance with their shares. Zafar Hussain Mirza, J. held, with regard to the property which the defendant No. l claimed to belong to him exclusively, that it was premature to pass a preliminary decree because the question whether defendant No. l was liable to account for partnership effects and income had still to be decided. The application was, therefore, dismissed and the office was directed to fix the suit for settlement of issues. It will, thus, be seen that the unreported order is not an authority for the proposition that question of title to property claimed by a defendant in his own right cannot be determined in a suit for administration. As for the other property i.e. the one which was alleged by the plaintiff to have been held by the deceased Benami in the name of defendant No‑7, the learned Judge held that it was beyond the scope of suit for administration and, in that connection, referred to the decision in AIR 1950 (East) Punjab

276. This, however, is contrary to AIR 1936 Lahore (supra) where similar dispute with regard to a house was entertained .in an administration suit. Mr. Noor Muhammad relied, apart from PLD 1962 SC 291, on the cases of Masireddi Suryanarayana v. Akula Anasuyamma (AIR 1963 Andhra Pradesh 298), Muhammad Bibi v. Abdul Ghani (PLD 1975 Karachi 979) and Mst. Ayesha Bai and another v. Mst. Shahida and 4 others (PLD 1981 Karachi 177). In AIR 1963 Andhra Pradesh 298, the plaintiff, in a suit for administration, alleged, inter alia, that the family settlement in relation to some of the properties of the deceased was not valid and that those properties which were in possession of the defendant No.4 formed part of the estate of the deceased and were liable to be administered; and it was held:‑‑ "

3. Order XX, rule 13, C.P.C. deals with administration suit. It provides that the Court shall first pass a preliminary decree directing accounts and inquiries. In Appendix 'D', Form No.17 prescribes the form of the preliminary decree in administration suit. Paragraph 10 of the Form of decree is the relevant paragraph. It provides that an enquiry as to what immovable property the deceased was seized of or entitled to at the time of his death should be held. In Muhammadally Adamji v. Abdul Hussain ILR 48 Bom.

331. AIR 1924 Bom. 313, reference is made to Seton on Decrees, Vol. II, page 1412 (7th Edition) as to the form of decree in an administration suit. The learned Judge pointed out 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. It is, therefore, clear to my mind that in a suit for administration, the Court has to necessarily ascertain what properties belonged to the deceased at the time of his death. As the 4th defendant claims title to items 5 and 7 (1) of Schedule A and item 3 of Schedule B, the Court is entitled to ascertain whether the 4th defendant was in lawful possession of those properties. " In so holding, the learned Judge relied on the decision of the Privy Council in 33 Calcutta 180 and in AIR 1928 Madras 760 in preference to the decision in AIR 1950 (East) Punjab 276 and other decisions and held:‑‑ "

5. A contrary view was taken in Shivaparasad v. Prayagkumari, Debee (AIR 1935 Cal. 39) Ali Kyan Sin v. Yeo Ali Gwan (AIR 1937 Rang. 497) and Shafi‑ul‑Nisa v. Fazal‑ul‑Nisa (AIR 1950 E Pb. 276). Those decisions were sought to be distinguished by the Judges of the Nagpur High Court on ground which do not appeal to me. It am inclined to follow the decision of the Privy Council and the decision of the Single Judges of the Madras High Court in preference to the decisions taking a contrary view. I hold that as an ancillary to the administration of the estate, the Court is entitled to decide whether the family arrangement pleaded by the 4th defendant is valid or not." In PLD‑1975 Karachi 979, the contention on behalf of the defendants that it is not open to this Court in an administration suit to question the validity of the alienations made by the deceased during his lifetime was rejected and it was observed that the Court has jurisdiction to decide whether a particular property belonged to the deceased or not and it would be impossible for the Court to administer the estate without deciding what that estate is. In PLD 1981 Karachi ‑177, the plaintiffs filed a suit for administration alleging that they and the defendant No.l were the only heirs of the deceased and that, after the death of the deceased, the defendants had taken over control, possession and management of all the properties and business of the deceased. The defendants Nos. l to 4 pleaded that the deceased did not leave any property; that the property claimed by the defendant No.5 belonged to him; and that the other properties belonged to one Muhammad Umer, a brother of the deceased, and not to the deceased. The defendant No.5, who had been joined as a party at his own request, alleged that one of the properties belonged to him and he had acquired the tenancy rights and obtained possession thereof from a third party prior to the death of the deceased. As for the properties alleged to be belonging to Muhammad Umer, it was held:‑‑ "It is also admitted in the written statements that Muhammad Umer was the real brother of deceased Haji Muhammad Ibrahim. The plea is not taken in the written statement that Muhammad Umer left behind any other heirs and, therefore, deceased Haji Muhammad Ibrahim as a brother, in the absence of any wife and children surviving Muhammad Umer, could have acquired the tenancy right or at least a share in both the properties .....In the present administration suit it can be decided whether the deceased had any tenancy rights and/or was the owner of articles in such premises. The defendants have not taken any clear position as to how they or any one of them acquired the properties left by Muhammad Umer." It may be noted that in the present case also the defendant No. l has not taken any position in the written statement as to how he acquired the ownership of the Hyderabad property. As for the property claimed by defendant No.5 in that case, it was observed that the plaintiffs had not shown whether that property at any time vested in the deceased and that the defendant No.5 on the other hand had filed documents to show that prima facie he was the owner thereof. The defendant No.5 was neither the heir of the deceased nor claimed to have acquired the property through will or otherwise from the deceased or through Muhammad Umer. In these circumstances it was held at page 183:‑‑ "If in the plaint the only property shown to have been left by the deceased had been property (claimed by defendant No‑5), the present suit would not have come within the compass of Order XX, rule 13, C.P.C. However, as I have already held that on account of the pleadings in this suit in relation to the other two parties this suit as an administration suit is maintainable, the issue whether property (claimed by defendant No.5) belonged to the deceased at the time of his death can also be decided in the present administration suit. I am of this view on account of two reasons. Firstly defendant No.5 himself applied to become a defendant in this suit and on his own application the Court joined him as defendant No.5. Secondly, all the parties who are interested in this property are before the Court and if at this stage it is decided that the question of ownership of this property ought not to be decided in these proceedings, the parties i.e. the plaintiff and defendant No.5, will get involved in another litigation. In view of the special circumstances and facts of this case and additionally to avoid multiplicity of proceedings, this question can also be decided in this suit. I may observe here that facts differ from case to case and the decision whether an administration suit is maintainable or not largely depends on the pleadings in a particular case. " In that case PLD 1981 Karachi 177, it was contended that if the property which is claimed by the plaintiff in an administration suit to have been left by the deceased was in possession of the defendants including heirs of the deceased and the defendants claimed the property to be their own, no administration suit was competent. The contention was rejected, firstly, because, according to the plaint, the deceased was in possession of the properties at the time of his death and, secondly, because a link between the properties and the deceased had been established and in the face of those pleadings the contention that, because the defendant claimed to be in possession of the properties alleged to have been left by the deceased, the suit was not maintainable, was not accepted. The counsel for the defendant in that case had relied on PLD 1962 SC

291. It was, in that connection, observed, at page 182:‑‑ "As regards the other passage at page 294 of the Supreme Court judgment on which reliance has been placed by learned counsel for the defendants, it may be observed that the plaintiffs in this case are not claiming possession from the defendants Nos.2 to 5 only. According to the plaint the three properties left by the deceased in which the two plaintiffs and defendant No.l as the only heir have their respective shares, and after the death of the deceased, defendant No.l, the daughter of the deceased, in collaboration with other defendants, has taken over possession of the same. " The view that it is open to the Court, in the course of administration of the estate of the deceased to decide whether any assets belonged to the deceased or not, is also supported by the judgment in Motibhai Shankarbhai Patel v. Nathabhai Narayanbhai Patel (45 Bom. 1053) and Mahmoedally Adamji Masala Valla and others v. Abdul Hussein Adamji Masalawalla and others (ILR 1948 Bom. 331). In 45 Bom. 1053, the defendants objected to the jurisdiction of the Court to deal with any properties in his possession which he claimed did not belong to the estate of the deceased. It was held:‑‑ "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 this suit." In 48 Born. 331, an objection was taken in a suit for administration that the Court had no jurisdiction to determine the question of title as the property was outside the ordinary jurisdiction of the High Court and no leave had been obtained. It was held that High Court can, in an administration suit, determine the question whether certain immovable properties situated outside _the territorial limits of its jurisdiction belonged to the deceased at the time of his death, even though leave under clause 12 of the Letters Patent was not obtained. The case of the defendant No. l in that case was that the property in dispute was given over to him by his father by way of gift and that the property did not form part of the estate of the deceased. Sir Lallubhai Shah, Act. C.J., held:‑‑ "On a consideration of the arguments on both sides I am satisfied that the Court has jurisdiction to determine in this suit whether the property belonged to the deceased Adamji or not. It appears from the form of the decree in an administration suit given in Seton on Decrees, Vol. II, 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 question to my mind is not now whether the suit in respect of this property so far as it relates to this property is a suit for land or not, but whether such an inquiry is appropriate in an administration suit. It must be taken how that an administration suit as such is not a suit for land within the meaning of clause

12. This question is really an incident of the administration suit. " His Lordship then cited the observation of the Privy Council in 33 Calcutta 180 to the effect that the High Court had a right to order administration of the estate, and, as ancillary to such an order, to set aside deeds obtained by the fraud of the executor. Crump, J. concurred with the decision of Sir Lallubhai Shah, Actg. C.J. and observed:‑‑ "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 does not know as to what property its orders are to operate. " A question similar to the one in the present case arose in the case of Nazarali Kazamali and others v. Fazlan Bibi and others (AIR 1975 Gujarat 81). The plaintiff in that case had filed a suit for administration of the estate of her deceased father. The defendants in their written statements took the plea that certain properties had been gifted by the deceased defendant No.l; and it was contended, on their behalf, that the question of title to those properties was not within the purview of the suit. The contention was not accepted and it was held:‑‑ "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 of 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." The learned Judges of Gujarat High Court discussed the decisions in ILR 45 Born. 1053, ILR 48 Bom. 331 and 32 Ind. Appeals 193=33 Cal. 180 and concluded, at page 87:‑‑ "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. " It was, therefore, held that the suit as framed was an administration suit and that it is within the scope of the administration suit to go into the ancillary question of title to the property. It would, thus, appear, both on principle and on authority, that in a suit for administration properly so‑called i.e. a suit the main or the real purpose of which is to have the estate of the deceased administered by the Court, this Court can for the purpose of achieving the object of such a suit, namely, collection and distribution of the estate, and as ancillary to order for administration, decide the question of title to any property; and the power of the Court to do so extends to determining the existence or validity of any alienation of the property not only by other persons after the death` of the deceased but also by the deceased during his lifetime. Mr. Noorul Hassan, it may be observed, conceded that a dispute as to factum of alienation can be inquired into but, relying on the cases reported in AIR 1943 Lahore 241 and AIR 1950 (East) Punjab 276, contended that validity of an alienation by the deceased cannot be inquired into in an administration suit. As against the decisions relied upon by Mr. Noorul Hassan, it has been held in several cases, discussed above, that question of title to a property can be decided in a suit the main or the real purpose of which is to have the estate of the deceased administered by Court. It is true that while the disputes in AIR 1943 Lahore and AIR 1950 (East) Punjab 276 related to alienations by the deceased, the disputes in the cases decided by Bombay and Andhra High Courts and Privy Council pertained to alienations make by other persons after the death of the deceased; but, in the first place, it was expressly held in the Lahore and the East Punjab cases that the suits there were not suits for administration because the main object thereof was to have the alienations set aside; and, secondly, the distinction in the two sets of decisions is without any real difference and does not affect the principle that the Court can, in proper suit for administration, decide, in order to achieve the object of such suit and as ancillary to its power to order administration, the question of what property belonged to the estate of the deceased and for that purpose determine the existence or validity of any alienation by the deceased. I have already indicated that the present suit, as framed, is a suit for administration properly so‑called. The question of title to the Hyderabad property is, therefore, in the circumstances of the case, within the scope of the suit and the suit, as regards that property, is maintainable. This application is, therefore, liable to be, and is, hereby, dismissed. The question whether or not the Hyderabad property forms part of the estate of the deceased or was gifted to defendant No. 1 will now be decided upon evidence of the parties as directed by order, dated the 28th February, 1990. A.A./G‑10/K Application dismissed.