Mt. Amir Bi vs Abdul Rahim Sahib And Ors. on 21 March, 1928

Madras High Court
Mt. Amir Bi vs Abdul Rahim Sahib And Ors. on 21 March, 1928
Equivalent citations: 110 Ind Cas 276, (1928) 55 MLJ 266
Author: V Rao


Venkatasubba Rao, J.

1. A preliminary issue has been raised:

Has the Court jurisdiction to try the suit?

2. This involves a consideration of three points:

(1) Is this an administration suit?

(2) Is an administration suit a suit for land?

(3) If it is held that it is not, can the Court, in such a suit, where the land is wholly outside jurisdiction, decide questions of title to such land?

3. I shall first deal with the question : “Is this an administration suit?” Abdul Razaak Saheb, a Mahomedan, who was trading in Madras, died in 1920, leaving large assets consisting of moveables within the city and a few items of immoveable property wholly outside “this Court’s jurisdiction. In this suit, which his widow has brought, she asks that the extent of Abdul Razaak’s property may be ascertained, that his outstandings may be realised, that his estate may be administered, that her mahar may be paid and that the residue divisible among his heirs may be divided according to their shares under the law. These are, in short, the reliefs claimed in the plaint. Her children, as the heirs of their deceased father, have been impleaded as defendants 3 to 6. The plaintiff’s case is, that the children of Abdul Razaak by his first wife, who predeceased him, released, during his lifetime, their right to the estate and that they and their heirs are not therefore entitled to any share of the property left by him. The 7th defendant is Abdul Razaak’s son by his deceased first wife. At his death, Abdul Razaak left also a daughter by that wife, who died subsequently leaving defendants 8 to 17 as her heirs. Defendants 7 to 17 do not admit the plaintiff’s allegation that they are not entitled to a share in the estate.

4. With these observations, I shall now examine the plaint. In paragraph 6, the plaintiff says that her husband died leaving to his credit in the firm at Madras, of which he was a partner, a very large sum, about a lakh of rupees. In paragraph 11 she claims that mahar is payable to her and that it forms the first charge on the estate. In paragraph 12, she says that Abdul Razaak’s property is divisible only among herself and her children, namely, defendants 3 to 6. Paragraphs 13 to 15 deal with the effect of the release executed by the children of Abdul Razaak by his predeceased wife. The plaintiff claims that, should the Court find that the release is not binding upon them, they should be directed to restore to the estate, the benefits received by them under that release. I may here incidentally mention that they obtained under the release certain immoveable properties outside the jurisdiction of this Court. Having made these allegations the plaintiff prays:

(1) That it may be declared that defendants 7 to 17 are not the heirs of Abdul Razaak;

(2) That her mahar may be paid;

(3) That an account may be taken of the properties and assets left by Abdul Razaak and available for division;

(4) That his estate may be administered under the decree of Court;

(5) That if the Court should be of the opinion that the release is not binding on defendants 7 to 17, they should be directed to bring back the benefits received under the release; and

(6) That the estate may be divided among the rightful heirs according to their shares under the law.

5. It has been contended for the defence that this is not an administration suit. I find it very difficult to follow this argument. The plaint raises these various questions:

What were the properties left by the deceased Abdul Razaak?

Who are the parties entitled to his estate?

What is his property now available for division?

6. This, surely, is not a suit for partition, pure and simple. One of the reliefs claimed, no doubt, is that the property should ultimately be 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, acts 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.

7. Order 20, Rule 13, Civil Procedure Code, deals with administration suits. It says that the Court shall first pass a preliminary decree directing accounts and inquiries. It further provides that all persons with claims may come in under that decree and establish their rights. It postpones the making of the final decree till after these steps have been taken. Appendix A, Civil Procedure Code, gives the forms in regard to various types of administration suits (Forms 41 to 44). Similarly, Appendix D sets forth forms of decrees. Turning to Form No. 17, in a suit by the next-of-kin, an enquiry is made, and account taken, of what share, if any, the plaintiff is entitled to, as the next-of-kin of the interstate.

8. 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.

9. Mr. S. Doraiswamy Aiyar for the plaintiff has cited several cases which decide that such a suit is ah administration and not a partition suit. Khatija v. Shekh Adam Husenally (1915) I.L.R. 39 B. 545 is a suit of this description. It is noticeable that in that case the deceased died more than 35 years previous to the suit. There were no funeral charges, no legacies, no debts that had to be paid and no outstandings that had to be collected (see p. 547). The suit was for an account in respect of a Mahomedan’s estate and partition among his heirs. The learned Judges held that it was an administration and not a partition suit. Again in Essafally v. Abdeali (1920) I.L.R. 45 B. 7 the same view was taken. It was a suit filed in 1915 in respect of a Mahomedan who died in 1904. The Chief Justice makes the following observations:

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. That is no reason why, if he wishes to file an administration suit to get the estate administered in the proper way, he should not do so.

10. In this suit it cannot be urged that the plaintiff has adopted this form of plaint mala fide; for one has merely to glance at the written statement of the 7th defendant (one of the principal contesting defendants) to come to the conclusion that this is preeminently a case where the Court has to assume the management of the estate. He alleges that mahar was due to his own mother and those that are entitled to it are defendants 7 to 17 (paragraph 11); and not the plaintiff and her children (paragraph 16). He denies that the estate is liable to be divided in the shares mentioned in the plaint and asserts that it has to be divided in a different manner as set forth in paragraph 12 of his statement. He then goes to say – and this is very important – that if he is bound to restore to the estate the benefits received by him under the release referred to in the plaint, the plaintiff and her children are similarly bound to bring into the hotch-pot properties which he alleges they likewise received during the lifetime of Abdul Razaak.

11. I have referred to the written statement not because the question of jurisdiction is to be decided with reference to what the (7th) defendant says, but as it shows beyond doubt that the allegations made in the plaint have not been made merely to enable the plaintiff to adopt a particular form of action. I fail to see how such a suit is not an administration suit. The parties are not agreed as to the extent of value of the property; they are not agreed as to the persons entitled to share, nor are they agreed even in regard to the debts payable (vide their contentions about mahar). On each of these matters, the parties desire an enquiry and it is in an administration suit that such an enquiry can properly be made. For the defence Abdul Karim Sahib v. Badrudeen Sahib (1904) I.L.R. 28 M. 216 is relied on. It is said that a plaint with similar allegations was treated in that case as a plaint in a suit for partition and not a suit for administration. I need say no more than that the plaint before me is in some respects different from the plaint in that case, and that a decision on facts cannot be treated as settling a question of principle. I find it difficult, therefore, to accept that case as an authority for the very broad proposition that the heirs of a deceased Mahomedan can never file an administration suit. Indeed in Moideensa Rowtken v. Md. Kasim Rowthen (1915) 28 I.C. 895 Ayling and Tyabji, JJ., observe that the true position is quite the contrary:

In the case of Mussulmans, 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” (at page 896).

12. There is much force, if I may say so with respect, in this observation. In the case of persons governed by the Mitakshara, partition suits are not necessarily in respect of property of a deceased person. The status as such, of a member of a Hindu coparcenary, gives him certain rights in the property; and family partition is frequently unconnected with the death of any person. I have come to the conclusion that this is an administration suit and my decision on this point is, therefore, in favour of the plaintiff.

13. I shall next deal with the second question : Is an administration suit a suit for land? In numerous cases it has been held that it is not; and this proposition is not seriously disputed by Mr. A. Suryanarayanaiya for the defence. A suit for land does not lie on the Original Side of the High Court, if the land is wholly situated outside the city; if a part of the land is within the jurisdiction of the Court, it can entertain the suit if leave to sue has been previously obtained. See Clause 12 of the Letters Patent. It follows from this, that where the land is wholly situated beyond jurisdiction, the fact that leave to sue has been granted does not enable the Court to entertain the suit. In this case, as the whole of the land to which the suit relates is outside jurisdiction, the question becomes important : Is this a suit for land?

14. In Nistarini Dassi v. Nundo Lal Bose (1902) I.L.R. 30 C. 369 it was held that an administration suit is not a suit for land. The learned Judges, for holding they had jurisdiction, give two reasons. First, that an administration suit is not a suit for land; secondly, in that case, as the estate consisted of land partly in Calcutta and partly outside “the defect, if defect there were,” was cured by the leave to sue having been previously granted. This case went up to the Privy Council and the decision of the High Court was confirmed, Parmeswar Singh v. Emperor (1910) I.L.R. 38 C. 180 at 181 and their Lordships rest their decision on the sole ground that an administration suit is not a suit for land. Srinivasa Moorthy v. Venkata Varada Aiyangar (1906) I.L.R. 29 M. 239 : 16 M.L.J. 238 was an administration action. It comprised moveable property within the city and land and houses wholly outside the jurisdiction. It was not suggested in that case that the suit was a suit for land, and the case proceeded upon the footing that it was not such a suit. This case also went up to the Privy Council and the view of the High Court in regard to jurisdiction was upheld. The test that was applied at all stages of this case was : Where did the cause of action arise? and not where was the land situated? See also the judgment given at the foot-note to Srinivasa Moorthy v. Venkata Varada Aiyangar (1906) I.L.R. 29 M. 239 : 16 M.L.J. 238. If the suit was a suit for land, it was open to the defendant there to have it dismissed on that ground without being driven to rely (as he was) upon other supposed defects of jurisdiction which he alleged. In Abdul Hussein v. Mahomedally Adamji (1921) I.L.R. 46 B. 772 again, the immoveable properties were wholly outside the jurisdiction, but the Court held that it could entertain the suit as it was an administration suit. I am therefore of the opinion that the present suit is not a suit for land.

15. I shall now proceed to consider the third point. In an administration suit, where the land is wholly outside jurisdiction, can the Court decide questions of title to such land or any part thereof?. This point again is covered by clear authority. In Benode Behari Bose v. Nistarini Dassi (1905) L.R. 32 I.A. 163 : I.L.R. 33 C. 180 : 15 M.L.J. 331 to (P.C.) which I have referred, their Lordships of the Judicial Committee say that, as the primary object of the suit was the administration of the estate, the Court has jurisdiction to set aside, as ancillary to such a purpose, leases of land outside the territorial limits of the Court. In Srinivasa Moorthy v. Venkata Varada Aiyangar (1906) I.L.R. 29 M. 239 : 16 M.L.J. 238 to which also I have referred, it is noticeable that the Court passed a decree affecting immoveable property outside its territorial limits (see page 244), although I may state in this connection that it was contrary to the expectation of the Judges who decided Abdul Karim Sahib v. Badrudeen Sahib (1904) I.L.R. 28 M. 216. For, the learned Judges in the last-mentioned case referring to an earlier stage of the case reported in Srinivasa Moorthy v. Venkata Varada Aiyangar (1906) I.L.R. 29 M. 239 : 16 M.L.J. 238 observe:

Full relief could be given in the suit without having recourse to the land out of the jurisdiction. (28 M. 216 at 221.)

16. As I have pointed out, what subsequently happened was the very reverse of this and the Privy Council affirmed the decree of the Madras High Court Srinivasa Moorthy v. Venkata Varada Aiyangar (1911) I.L.R. 34 M. 257 : 38 I.A. 129 : 21 M.L.J. 669 (P.C.). Mahomed Ally Adamji v. Abdul Hussein (1923) I.L.R. 48 Bom. 331 is again a direct decision on the point. The learned Judges point out that in an administration suit a complete enquiry necessarily implies determination of title to immoveable property and the Court is bound to decide questions as to ownership of such property – whether situate within or outside jurisdiction – as an incident of the administration of the estate.

17. Apart from authority, I may refer by way of analogy, to cases, where the High Court has jurisdiction to try suits, part of the land, being within its local limits, provided leave to sue has been previously obtained. In such cases, does the Court refuse to try questions of title to land outside jurisdiction? The fact that some land is beyond jurisdiction is immaterial, and the Court having initial jurisdiction is deemed competent to try questions of title in regard to every parcel of land to which that suit relates. How can, on principle, any distinction be made, in this respect, between a case where land is partially outside and land wholly outside?

18. I have no hesitation, therefore, in holding that the Court can in this suit adjudicate upon title to property outside its jurisdiction.

19. It is said that the view I am taking will make it possible v for any administration suit being filed in the High Court. Not at all. The Court will not grant leave, unless a substantial portion of the cause of action has arisen within the jurisdiction. Supposing all the immoveable properties are outside jurisdiction and they represent the bulk of the estate, that may be a good ground for refusing leave; for, in determining what constitutes cause of action, one element is undoubtedly, where is the property (moveable or immoveable) situate? Take this very case where leave to sue was granted, part of the cause of action having arisen outside jurisdiction; if it had been wrongly granted, it was quite open to the defendants to apply for that leave being revoked. That is a remedy clearly open to a party if leave has been obtained by his opponent on insufficient grounds. I fail to see how the view I am taking can lead to hardship or inconvenience, apart from its being the view sanctioned by reason and authority.

20. I hold that I have jurisdiction to entertain the suit.

21. I fix the costs of this hearing at Rs. 250 which shall come out of the estate.

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