P L D 1962 Supreme Court 291 (PLP)

B. Z. KAIKAUS, J.‑

This appeal arises out of a suit for admi nistration filed by Mst. Shadoo Bibi respondent for administration of the estate of her deceased father Syed Riaz Hussain Shah. Mst. Shadoo Bibi respondent impleaded nine persons as defendants to the suit. Defendant No. 1 was her own minor sister Mst. Bilqis Begum.; defendant No. 2 was Mst. Zainab who claimed to be the widow of the deceased ; defendants 3 to 8 were the off‑spring of Mst. Zainab ; and defendant No. 9 was the brother of the deceased who at the same time claimed to be entitled to the property of the deceased under a will from him. The plaintiff alleged in the plaint that the deceased was a Shia and that according to Shia Law she and her minor sister Bilqis Begum defendant No. 1 were the only persons entitled to inherit the estate of the deceased. As to defendant No. 2 Mst Zainab, the plaintiff alleged that she bad not In fact been married to the deceased and defendant 3 to 8 were not the children of the deceased. As to defendants No. 9 the plaintiff alleged that being a brother was not entitled under the Shia Law to any part of the estate of the deceased in the presence of the daughters and the will which he set up was not genuine. In the written statement filed on behalf of Mst. BilqIs Begum defendant No. 1 by a Court Guardian the allegations in the plaint were accepted and It was stated that the defendant had no objection to the decree prayed for being passed. Defendants 2 to 8 alleged that Mst. Zalnab was the widow of the deceased and defendants 3 to 8 were the children of the deceased. These defendants agreed with the plaintiff in repudiating the will set up by defendant No.

9. They agreed too that a decree for adminis tration of the estate of the deceased may be passed. Defendant No. 9 took the plea however that the suit was not maintainable in its present form. The Court framed the following preliminary Issue:‑-- "Whether the suit is maintainable in Its present form when the will has been challenged and the rights of the heirs are disputed? The trial Court found the issue in favour of the plaintiff. Against the order of the trial Court defendant No. 9 as well as defendants 2 to 8 filed separate revision applications to the High Court. The High Court agreed with the conclusion of the trial Court that the suit did lie in its present form and dismissed the revision petitions. Leave to appeal had been granted In this case for a consideration of the question whether this was a proper administration suit. The form of suit has been attacked in the Courts below on the ground that an administration suit can be filed only as against parties who are admittedly entitled to a share in the estate of the deceased and not against persons who accord ing to the plaintiff are not entitled to any such share and are only trespassers. In the absence of any specific provision In the procedural law the question as to the matters to be determined and the parties to be impleaded in a suit depends on the relief that is to be granted in that suit. With respect to an administration suit no such specific provision exists though the competence of such a suit is recognized in Order XX of the Civil Procedure Code and in the forms of plaints and decrees contained in Appendices to that Code. In a suit for administration the relief to be granted is that the estate of the deceased is to be administered under the decree of Court. This means that the Court will assume the functions of an administrator, it will realize the assets, will dis charge the debts and legacies, will take an account of the income of the property and will distribute the assets amongst those entitled to it. That this is the relief to be granted appears also from form 41 in Appendix A, Schedule I to the Civil Procedure Code wherein Is stated the form of the decree which is to be granted in C such suit. It is clear that for distributing the estate of the deceased among those entitled to it the Court has to find out who the persons entitled are and therefore it will be proper to join in the suit all those persons who claim to be so entitled. According to Order I, rule 10, of the Civil Procedure Code any persons whose presence is "necessary in order to enable the Court effectively and completely to adjudicate upon and settle all questions involved in the suit" may be added as a party to the suit. There should be no objection to a plaintiff joining in an administration suit all those who claim to be entitled to a share in the property of the deceased and whose claim he wants to be adjudicated upon. To refuse the plaintiff to implead such persons will lead to an almost intolerable situation. Suppose there are ten claimants to an estate of the deceased and the plaintiff who sues for adminis tration admits the claim of only one of them. If he is allowed to implead only the one whose claim he admits the decree passed In the administration suit distributing the estate may be nullified by one of the remaining claimants filing a suit and serving a dec laration that he is entitled to a share in the estate of the deceased. The heir who has already got a decree in the administration suit will, if he still desires distribution of the estate, have to file a second suit for administration impleading also the heir who has secured a declaration, but the decree in this second suit too may be nullified by another claimant filing a suit and getting a declara tion that he is entitled to a share in the estate of the deceased. It seems clear therefore that an acceptance of the contention of learned counsel for the appellant may lead to a hopeless multi plicity of suits. Great stress is laid by learned counsel on the fact that the plaintiff will by an administration suit be getting posses sion from persons who are in fact only trespassers and this is outside the scope of an administration suit. But the plaintiff will be getting possession only from persons who claim to be entitled to a share in the property of the deceased and who claim no Independent right in themselves. While an administration suit is not a remedy for getting possession from those who claim the property in their possession in their own right and adversely to the deceased there does not appear to be any valid objection to their dispossession if they claim only as heirs or under a will from the deceased and their claim is negatived. The question as to whether a person is entitled to a share in the property of the deceased is a fit subject of decision in an administration suit and In fact learned counsel for the appellant does not contend to the contrary, his plea being that a defendant in an administration suit can raise a question as to whether the plaintiff or another defendant is entitled to a share but that the plaintiff cannot raise such a plea as to a defendant. We see no good reason for this distinction. An argument was put forward before us which does not appear to have been put forward in the Courts below. It was urged that defendant No. 1 Bilqis Begum was only a nominal defendant In the suit and that the decree was being claimed only against defendants 2 to 9 and therefore we should regard this as a suit against defendants 2 to 9 only. Some authorities were cited before us in support of the contention that if the plaintiff claims to be a sole heir and contends that the defendants, though they claim as heirs of the deceased are in fact not his heirs, but in wrongful possession, a suit for administration does not lie. With this proposition we have no quarrel. The object of an administration suit is the distribution of assets between more than one person and if the defendants to a suit be only trespassers and the plaintiff is the person solely entitled there can be no administration suit by such a plaintiff against such defendants. But the suit before us is not of that kind. There are two persons who according to the plaintiff are entitled to a share in the assets of the deceased, that is, the plaintiff and defendant No.

1. The plaintiff wants a distribution of the estate of the deceased as between her and defendant No.

1. The other defendants have been joined because they are claimants to the property and before a decree is passed their rights are to be determined and negatived so as to prevent the decree from being nullified by a subsequent suit filed by any of them. It is impossible to contend that in this suit no decree is being claimed as against defendant No.

1. The prayer is for administration. The result will be a decree distributing the estate as between the plaintiff and defendant No. 1 even if the other defendants are not found to be entitled to any share. It was urged that defendant No. 1 was the real sister of the plaintiff and she had been joined collusively only to give the suit the colour of an administration suit. In the first place, we do not see what collusion in this context can mean when defendant No. 1 is a minor, but even on facts the allegations are without any substance. It was stated in the plaint that in order to get the benefit of the property which defendant No. 1 had and inherited from her father defendant No. 9 was keeping defendant No. I in his own house and intended to marry her illegally to his son. It is admitted before us now that defendant No. I has been married to the son of defendant No. 9 and she has already borne him a child. There is no force in this appeal which is dismissed without costs. A.H. Appeal dismissed.