ORDER * G. H.Malik, J.- This is an application filed by defendant No. 1 praying that the property mentioned at Serial No. 6 in annexure ' A' to the plaint be deleted; and has been made in the following circumstances. ?
2. Muhammad Ghulam Qadir (the deceased) did intestate on the 6th October, 1970, leaving behind plaintiffs Nos. l and 3 to 5 (sons and daughters), plaintiff No. 2 (widow), defendants Nos. 1 to 10 and 13 (sons and daughters) as well as two sons, Inayat Kadir and Abdullah Kadir and Mst. Shahzadi Begum a widow, as his heirs. Inayat, Abdullah and Mst. Shahzadi Begum did subsequently. The heirs of Inayat are plaintiffs Nos. 7 and 8 and defendants Nos. 15 and I6. The \ heirs of Abdullah are plaintiffs Nos, 9, 10 and 11 and defendants Nos. 11. l2 and
14. The original plaintiff No. 4 and defendant No. 13 did during the pendency of the suit and their respective legal representatives have since been impieaded as panics to the suit. Thus, all the parties to the suit, except defendants Nos. 17 arid IX- against whom no relief has been claimed, are the heirs of the deceased.
3. The deceased is alleged to have left certain movable properties as well as immovable properties specified in Schedule 'A' to the plaint. It is alleged by the plaintiffs that major portion of those properties are in the possession of the defendants who have been exclusively managing them and receiving profits thereof and have not given the plaintiffs the true and full accounts of such profits.
The plaintiffs have, therefore, filed this suit for administration of the estate of the deceased.
4. The defendant No. 1 has alleged, in his written-statement, that the property mentioned at Serial No. 6 in the Schedule to the plaint, namely, cotton ginning factory and cotton ginning press with land, etc., situated at Hyderabad (hereinafter referred to as "the Hyderabad property"), is "solely owned by and has been in exclusive possession of defendant No. 1" and that it is claimed by him "in his on. Right as the owner thereof". All the remaining defendants, except defendants Nos. 7 and 8, have filed written statement supporting the plaintiffs. The defendant No. 7 supports the defendant No. 1 while the defendant No. 8 has not filed a written statement.
5. The plaintiffs made an application in the suit to restrain the defendant No. I from disposing of the Hyderabad property. That application was disposed of on the 3rd February, 1988, when it was observed that the controversy regarding that property can be decided after evidence is recorded and it was ordered, with the consent of the parties, that the property be sold and the proceeds deposited in Court "subject to the decision of the suit".
6. Consent issues filed by the parties were adopted on the 18th March, 198b, and one of the issues for trial is whether the Hyderabad property is a part of the estate of the deceased.
7. On the 16th October, 1989, early hearing of the suit was ordered and the plaintiffs were required to file affidavit in lieu of examination in chief; but, before the evidence could be recorded, the defendant No. 1 filed the present application on the 18th February, 1990. The case then came up in Court on the 28th February, 1990, for hearing of the application as well as evidence when, in view of the fact that there was no dispute among the parties except with regard to the Hyderabad property and the property mentioned at item (a) of para 9 of the written .Statement of defendant No. 1, preliminary decree for partition of those properties was passed with the proviso that, before taking any action with regard to the Hyderabad property, the present application (C.M.A. 338/90) will be decided first; and ihat- "In case it is decided in favour of defendant No. 1, then the property will be excluded from preliminary decree. Otherwise evidence will be led to determine as to whether the property belonged to the deceased propositions till the time of his death or it was gifted to defendant No.l."
8. It is clear from the above order that the question whether the Hyderabad property forms part of the estate of the deceased is not to be decided on this application but will be decided on evidence at the trial if the application fails; and ii is for this reason that neither of the learned counsel addressed any argument on that question and confined their arguments to the maintainability of the suit with regard to the Hyderabad property. The scope of the present application is, therefore, necessarily confined to the question of the maintainability of the suit with regard to the Hyderabad property in the light of the pleadings of the parties.
9 The prayer in the present application is that the Hyderabad property be "deleted/struck off from the list of Assets and properties/esiate of the deceased (late Mr.M.G.Kadir) as the same cannot be the subject-matter of the present suit."
10. Mr.Noorul Hassan, the learned counsel for the defendant No.l, submitted, firstly, that on the language of Order 20, Rule 13, C.P.C., a suit for administration lies only in respect of properties about which there is no dispute. There is, however, no warrant for the proposition in the language of rule 13 which does not by itself provide for filing of a suit for administration. It merely recognises such a suit and provides for a kind of decree to be passed therein.
11. It was then contended by the counsel that because the defendant No. 1 claims to be entitled to the Hyderabad property in his on. Right, that property cannot be the subject-matter of the present suit and, further, that validity of an alienation of a property by the deceased cannot be decided in a suit for administration. The question that arises, therefore, is- what, in the absence of any statutory provisions in that behalf, is the scope of a suit for administration and what matters may be determined in such a suit? The answer is provided by our Supreme C'ourt in the case of Syed Mehdi Hussain Shah V. Mst. Shadoo Bibi (PLD 1962 S.C291) wherein it was observed- * "In the absence of any specific provision in the procedural law the question as to the matters to be determined and parties to be impleaded in a suit depends on ?h' relief that is to be granted in that suit............ In a suit for administration tn^ . !Ief to be granted is that the estate of the deceased is to be administrated unuer the decree of Court. This means that the Court will assume the functions of an administrator, it will realise the assets, will discharge the debts and legacies, will take an account of the income of the property and will distribute the assets amongst those entitled to it." and it was held that for the purpose of 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.
12. The relief to be granted in a suit is the object or the purpose thereof and if,' in order to ^hieve the object or purpose of a suit for administration, viz to distribute the estate amongst persons entitled to it, it is necessary to find out who those persons are, then, by the same token, it would appear to be necessary to ascertain what the estate to be distributed is. This is also indicated by the form of preliminary decree provided by Form 17 in Appendix D to C.P.C., which requires that "for carrying out the object of the suit" an inquiry be made as to "what immovable property the deceased was seized of or entitled to at the time of his death.
13. What, then, is to be scope of such an inquiry to ascertain what immovable property the deceased was seized of or entitled to at the time of his death? And is the Court debarred from making such an inquiry merely because a defendant asserts simply that he claims a property in his on. Right? It is true that the scope of a suit for administration is limited and such a suit annot be converted into a suit for an altogether different purpose such as setting aside alienations by the deceased but,i on principle, there appears to be no reason why in a suit for administration properly so called, viz. a suit the main or the real object of which is to obtain administration of the estate of the deceased, the Court, should not determine the question of a party's claim to be entitled to a property in his on. Right and for that purpose determine the existence or validity of any alleged alienation by the deceased; for ultimately determination of such questions is nothing more than an inquiry as to what property the deceased was seized of or entitled to at the time of his death. If it were otherwise, any suit, even if its main or real purpose is to have the estate of the deceased administered, would be liable to be defeated merely by the defendant alleging that he is the owner of the property in question; and the result would be multiplicity of litigation.
14. Mr. Noorul Hassan. However, contended otherwise and, in support of his contention, cited the cases of Syed Mehdi Hussain Shah V. Mst. Shadoo Bibi (Supra), Chand Narain And Another V. Ghasi Ram (AIR 1940 LAHORE 241), Mst. Shafi-ul-nisa V. Mst. Fazal-ul-nisa (AIR 1950 (East) Punjab 276), Muhammad Sarwar And 2 Others V. Abdul Lateef And Another (PLD 1978 LAHORE 391) and Muhammad Yunus Qureshi And 5 Others V. Mrs. Feroz (Jurt-shi And 2 Others (1982 CLC 976).
15. In Syed Mehdi Hussain Shah's case the plaintiff had filed a suit for administration allowing that she and the defendant No. 1 were entitled to the estate of the deceased; that the defendant Nos. 2 to 8 who claimed to be heirs of the deceased were not such heirs; and that the will under which the defendant No. 9 claimed was not genuine. The form of the suit was attacked on the ground that an administration suit can only be filed as against parties who are admittedly entitled to a share in the estate of the deceased and not against persons who according to the plaintiff are not entitled to any such share and are only trespassers; and it was held dial for distribution of the estate among those entitled to it the Court had to find out who those persons are and therefore it is proper to join in the suit all those persons who claim to be so entitled, it was argued on behalf of defendant that the plaintiff will by an administration suit be getting possession from trespassers but that argument was repelled with the following observalion- "While 'an administration suit is* not a remedy for getting possession from those who claim the property in their possession in their on. 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."
Mr. Noorul Hassan laid particular emphasis on that observation to support his contention that an administration suit is not competent where a defendant claims .a properly in his on. Right. The observation, however, has to be read in the context of the argument, mentioned above, which was advanced in that case and of another observation made in that case. Viz. That 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. Thus read, the effect of the observation is that there can be,no administration suit for recovery of a property from a perspn who claims it in his on. Right but there appears to be no justification for reading more than that into it and to say that it lays done any rule that in a suit which, on the face of it, is a proper suit for administration the Court must stay its hands as soon as a defendant claims the property in his on.
Right. The suits referred to in the case are obviously not the suits the main op the real purpose of which is to obtain administration of the estate of the deceased but, in the garb of suits for administration, suits to obtain possession front trespassers or persons in wrongful occupation, In any event, the plaintiffs in the present suit are not claiming possession from defendant No. 1 alone.
The observation quoted above is, therefore, not apposite.
16. In AIR 1940 Lahore 179, the suit was between rival claimants to the estate of a deceased and each one claimed tu be the sole heir of the deceased. The main purpose of the suit was, thus, to determine who was the heir of the deceased; and it was held that the suit was not an administration suit.
17. The question for determination is AIR 1943 Lahore 241 was whether an administration suit was compete ;! In respect of four out of the five properties involved; and it was held that the suit was not competent because the object thereof was to obtain concellation of the transactions entered into by the deceased, it was observed- "If the plaint is read-as a whole, it is elear that the object of the present plaint is to obtain cancellation of the transactions entered into by means of various deeds by the deceased and his father in respect of houses Nos. 2 to 5. According to the plaint, the gifts and the sale in favour of defendants 5 and 6 have been brought about by the exercise of undue influence on Zaheer Din.
The allegation With respect to undue influence is. Made repeatedly in the plaint. It is stated that as a result of the undue influence, the gifts and sales made by the deceased were not binding on the plaintiffs. In its essence, therefore, the present suit is a suit for having certain alienations made by Zaheer Dm declared invalid and ineffectual against the rights of the plaintiffs. So far,as the factum of these alienations is concerned, the parties did not join issue." it will be seen that the character of the suit in that case was decided in the light of the averments in the plaint. Applying the same criterion to the present case, it is clear that the object is to obtain administration of the estate of the deceased and not to question any alienation by the deceased.
There is rot even a mention, in. The plaint, of any alienation by the deceased let alone the question of validity of any alienation; and the nature of the suit is not affected by the rather bare averments in the written statement of defendant No. 1 that he is the owner of the Hyderabad property. The case is, therefore, distinguishable, and is of no assistance to defendant No. 1.
18. Mr. Noorul Hassan referred to a passage occurring at page 243 of the report of the case, which is as follows- "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 1 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 7i I. 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 propertybv 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 questions did not really arise in any of the other authorities reviewed.
19. As for the case reported in AIR 1936 Lahore 365 the facts were that Mst. Rehmat Sultan did on 6th April, 1924. An administration suit was instituted by her heirs against her husband Muhammad Din.
Muhammad Din claimed one of the houses as his property. On the other hand, the plaintiffs contended that _ Muhammad Din was liable to pay Rs. 700 as dower to the heirs of Mst. Rehmat Sultan: Muhammad 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 jfo pay the debt tlue 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 plaintiffs' case was that house was purchased by Muhammad Din with the money of Mst. Rehmat Sultan^
20. 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. 1 or at any rate one amongst them is entitled to succeed o.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. '
21. 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)
22. In AIR 1950 (East) Punjab 276, the plaintiff brought a suit for administering alleging that deceased was, before his death, under the influence of the defendants; that he was suffering from '
Maraz-ul-Maitt' and that all documents executed by him, including a deed of gift of the property in favor 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 a 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.
23. . 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, therefor, held that the suit was not maintainable.
24. 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- "Thc scope of Administration suit is limited. The question of title to a property claimed by any heir in his on. 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 S.C. 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 the 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. 1 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 defendants sought to have these properties excluded from the suit. Before the issues were framed, the plaintiff made an application under Order 20, Rule 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 die property which the defendant No. 1 claimed to belong to him exclusively, that it was premature to pass a preliminary decree because the question whether defendant No. 1 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 *. Not an authority for the proposition that question of title to property, claimed by a defendant in his on.
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 Judg held that it was beyond the scope of suit for administration and, in that connection, referred to the decision in AIR 195.0 (East) Punjab 276. This, however, is contrary to AIR 1936 Lahore (supra) where similar dispute with regard to a house was entertained in tin administration suit.
25. Mr. Noor Muhammad relied, apart from PLD 1962 S.C. 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).
26. 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 the 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 Setor 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 Ah Kyan Sin v. Yeo Ah 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. I 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."
27. In PLD 1975 Karachi 979, the contention on behalf of the defendants that iris not open to this Court in an administration suit to question the validity of the alienations made by the deceased during his life time 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.
28. In PLD 1981 Karachi 177, the plaintiffs filed a suit for administration alleging that they and the defendant No. 1 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. 1 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 on. 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 nor 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 Muhammaid 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. Mias 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,J 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 ant of this view on account of two reasons.
Firstly defendant No. 5 himself applied to become a defendant in this suit and on his on.
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. s / K.L.R. c.c: circumstances and tacts 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." (underlining is mine)
2b. In that case (PLD 198l Karachi 177). It was contended that if the property which is claimed by the plaintiff in an administration suit to have been left by die deceased was in possession of the defendants including heirs of the deceased and die defendants claimed the property to be their on.. No administration suit was competent. The contention w'as rejected, firstly, because, according to the plaint, the deceased was in possession of the properties at the'' time of his death anti.
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 1%2 S.C. 291. Itw'as. In that connection, observed, at page 182.- "As regard the other passage at page 294 of the Supreme Court judgment on which reliance has been placed by learned counsel Ibr-thc defendants, it may be observed that the plaintiffs in this ease 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, 1 as the only heir have their respective shares, and after the death of the deceased, defendant No. 1. The daughter of the deceased, in collaboration w'the other defendants, has taken over possession of the same. "
30. 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 judgments in Motibhai Shankarbhai Patel \. Xaihahhai Narayanbhai Patel (45 Bomb. 1053) and Mahmbedally Adaniji Masala Valla and Others v. Abdul Hussain Adaniji Masalawalla And Olliers (ILR 1948 Bomb. 331). In 45 Bomb. 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 w'hy 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 parlies would be the same and the issues would be the same which have already been raised in this suit."
In 48 Bomb. 331, an objection was taken in a suit, for administration that the Court had no jurisdiction fo 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 l2 ol the Letters Pateni was not obtained. The cage of the defendant No. I in that case was ihat 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. Acting 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 properly 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.!, 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, now...................................... That an administration suit as such is not a suit of land within the meaning of clause l2. 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, Acting C.J. And observed- "It is impossible for the Court to administer the estate without deciding what that 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."
31. 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. 1; 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 wjio is the rightful heir of the deceased, but. To administer the estate oj 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 Hijgh Court, discussed the decisions in ILR 45 Bom. 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 fr6m 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 d6es 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.v 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 administratioh 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 administratioh suit to go into the ancillary question of title to the property. .
32. 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 onjy by other persons after the death of the deceased but also by the deceased during his life time. 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 aift Andhra High Courts and Privy Council pertained lo 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 a 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.
33. 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 l-'ebmary. 1990.