1. ' KHILJI ARIF HUSSAIN, J.---On 8-12-2003, when the matter was listed for order in respect of the preliminary decree under Order XX, Rule 13, C.P.C. Same was adjourned to provide parties an opportunity to place on record documents relied upon and further to admit and deny the same. On 15-10-2004, preliminary decree was passed and Nazir was appointed as administrator for the purpose of ascertaining the estate of the deceased and distribution of its among the legal heirs of the deceased, i,e, plaintiffs and defendants Nos. 1 and 2. Pre-decree was prepared on 13-11-2004 in terms of the order dated 15-10-2004. The order of passing of the preliminary decree was impugned by the defendants by filing High Court Appeal No,250 of 2004, which was dismissed by a Division Bench of this Court vide order dated 7-12-2004. In compliance of the preliminary decree Nazir submitted his report dated 22-9-2005. Defendant filed objection to the said report.
2. ' Heard Mr. Moula Bux Bhatti, learned counsel for defendants Nos. 1 to 4 who filed the objections and Mr. Badar Alam, learned counsel for the plaintiffs.
3. ' Mr. Moula Bux Bhatti, learned counsel for defendants Nos. 1 to 4, argued that the Nazir has travelled beyond the order dated 15-10-2004, under which he was asked to ascertain the estate of the deceased only. Learned counsel argued that Nazir as an administrator in terms of the order dated 15-10-2004 has no authority to deal with the assets, which are not forming part of the estate of the deceased. The learned counsel first argued that only the immovable properties left by the deceased formed estate of deceased and do not include any movable properties i,e, bank account, car, certificate, cash, etc. Held by the deceased at time of his death. He argued that there is a difference between the estate and the assets and since the Nazir has been appointed as an administrator for the estate of the deceased, Nazir had to confine himself only to the extent of immovable properties owned by the deceased at the time of his death and cannot give findings in respect of the other properties, viz. Cash, car, certificates, etc. Held by the deceased.
4. ' I am afraid that contention of the learned counsel for the defendants has any force for more than one reasons. Vide order dated 15-10-2004, Nazir was appointed administrator in respect of the assets/properties left by the deceased at the time of his death which form part of his estate and all the legal heirs are entitled to their respective shares in it. It further appears from the said order that the learned Judge recorded the contentions of the learned counsel for the defendant that only the amount still lying in the respective bank accounts may be taken as part of the estate of the deceased, clearly establishes that Nazir was appointed as an administrator in respect of the assets left by the deceased including bank account, etc. The term "Estate" has been defined in Black's Law Dictionary (Sixth Edition) as under:- "The total property of whatever kind that is owned by a descendant prior to the distribution of that property in accordance with the terms of a will or, when there is no will, by the laws of inheritance in the state of domicile of the descendant. It means, ordinarily, the whole of the property owned by anyone, the realty as well as the personality. As used in connection with the administration of descendant's estates, term includes property of a descendant's 'trust or other person as such property exists from time to time during the administration, and hence may include probate assets as well as property passing by intestacy."
5. ' For the foregoing reasons the contention of the learned counsel for the defendants has no force.
6. ' Learned counsel for the defendant argued that property No,280- A, Rafah-e-Aam Society has been purchased by defendant No,1 from his own reserve fund and same does not form part of the estate of the deceased. It is further contended by Mr. Moula Bux Bhatti, learned counsel for the defendant, that the defendant had filed Suit No,121 of 2005, seeking declaration against the plaintiff that he is the sole owner of the said property. Learned counsel argued that whether property form part of the estate of the said deceased or not can only to be decided in the suit filed by the defendant and not in this suit. Mr. Moula Bux Bhatti, learned counsel for the defendant, further argued that Nazir, who was appointed as an administrator, failed to take into consideration evidence produced by the defendant in support of his contention that the property was purchased by defendant No,1 in the Benami name of the deceased and in fact he is the owner of the same.
7. I have taken into consideration arguments advanced by the learned Advocate for the parties. On 15th October, 2004 preliminary decree in respect of estate of the deceased was passed. The said order was challenged by defendant by filing High Court Appeal No,250 of 2004 which was dismissed by the learned Division Bench on 17th December, 2004 and accordingly preliminary decree passed attained finality and now cannot be questioned by the defendant. From the perusal of the preliminary decree as well as order passed by the learned Single Judge it appears that the property bearing No,280-A, Rafah-e-Aam Society has been shown as one of the properties left by the deceased and form part of the estate of the deceased. The said preliminary decree was upheld by the Division Bench vide order dated 17th December, 2004 passed in High Court Appeal No,250 of 2004 against which no appeal has been preferred before the Hon'ble Supreme Court. On this sole ground the defendant cannot now be allowed to question that H.No,280-A, Rfah-e-Aam Society does not form part of the estate of the deceased. Apart from above even otherwise from the order dated 15th October, 2004 it appears that the defendant conceded at the time of passing of the preliminary decree that immovable property in possession of the respective parties constitute the estate of the deceased. It is an admitted position that the property No,280-A, Rafah- e-Aam Society is one of the properties in possession of the respective parties and accordingly in view of admission of defendant himself before the Court at the time of passing of preliminary decree that the said property including other properties in possession of the respective parties constitute the estate of the deceased the defendant cannot now allow to turn round and question that the same is his exclusive property.
8. ' Now I will deal with the contention of the learned counsel for the defendant that question as to Benami transaction can be answered only in the separate suit and in administration suit such question cannot be entertained. In the case of Moti Bhai Shankarabhai Patel v. Natha Bhai, 45 Bombay 1053, the defendant objected to the jurisdiction of the Court to deal with any properties in his possession, which he claimed did not belong to the estate, it was held: "There is no reason that why the Court should not decide as between the parties to the suit whether their 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 the suit."
9. ' In the case of Muhammad Ali Adamjee Masalawala and others v. Abdul Haroon Masalawala ILR 1948 Bombay 331, it was held that: "On consideration of the arguments of both sides I am satisfied that the court has jurisdiction to determine in this suit whether the property belongs to the deceased Adamjee or not. From the administration of the Schedule 1 of the C.P.C. Amongst the inquiry contemplated in the course of the administration inquiry as to what immovable property the deceased was entitled at the time of his death is included. The question to my mind is not whether the suit in respect of this property so far as it relates to his property this property suit for land or where the said inquiry is appropriate in administrative suit it must be taken now that administration suit as such is not suit for land within the meaning of clause 12."
10. The defendant in his written statement though have taken the plea that property was purchased by the deceased from the fund provided by the defendant No,1 while serving abroad but at the same time at the time of passing the order for preliminary decree on 15th October, 2004 apparently he has given up said objection and stated that the property in possession of the respective parties constitute estate of the deceased.
11. ' The contention of the learned Advocate that the question whether the property constitutes part of estate of the deceased cannot be answered in administrative suit have no merit as 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, otherwise in every administrative suit defendant would raise a plea covering a question of title by some other complicated question and can urge that the suit, as framed is not competent, which would defeat very purpose of an administrative suit and would lead to avoidable multiplicity of judicial proceedings between the same party in situation cannot be allowed to raise in such suit. The question as to title of the property can be appropriately considered in an administrative suit and that would not alter the nature and character of the suit. This is also indicated by the procedure prescribed in Order XX, Rule 13, C.P.C. And by form of Decree Nos.17 and 20 in Appendix D of the First Schedule of the Code which are in illustrative forms though not exhaustive.
12. ' In the case of Asghar Ali v. Zohrabi and another 2000 M LD 122, it was held that: "preliminary decree for administration of assets of deceased, could not be withheld only on assertion that one of the properties left by deceased was purchased by one of the legal heirs (defendant) of deceased in name of his deceased mother from his own funds when said property stood in the name of deceased mother at time of her death."
13. ' The contentions of the learned advocate for the defendant are misconceived.
14. Nazir in his report considered all the evidence produced before him including objection of the defendant No,1 that the deceased was Benamidar of the property in question and defendant No,1 was the real owner of the same. It also appears from the Nazir report that the deceased had taken house building loan from time to time and deposited title deed of the property in question with the Bank where he had served and property form part of the estate left by the deceased.
15. ' For the foregoing reasons Nazir report dated 22-9-2005 is taken on record. Office is directed to prepare final decree in terms of Nazir's report. The defendant No,3 is liable to pay a sum of Rs,4,15,000 and defendant No,4 is liable to pay a sum of Rs,6,60,000 which amount should be adjusted against the share of the said defendants and if shares of the said defendants are less than the amount outstanding against them, then they are liable to pay balance amount which will be distributed among the other legal heirs of the deceased according to Mahomedan Law of Inheritance.