Johara Bivi vs Julaika Bivi and Others

V. Sethuraman, J.—The Civil Revision Petition has been filed by the plaintiff in O.S. No. 41 of 1974 in the Court of the Subordinate Judge

of Kumbakonam. The plaintiff has filed the suit for administration of the estate of the deceased S.M. Ameer Batcha Rowthar by providing far the

death-bed charges funeral and other expenses of the deceased, for the payment of her ""Iddat"" amount, for provision for the marriage expenses of

the 5th Defendant and for allotting 1/8th share in the remaining estate to her on a fair and equitable basis. The Court fee was paid as provided by

Section 39 read with Section 50 of the Court fees Act. The defendants contended that the Court fee paid was not proper, Issue No. 15 framed in

the case runs as follows:

Is the suit as framed for administration not maintainable and whether proper Court-fee not paid.

This issue was taken up for decision as a preliminary issue and the learned Subordinate Judge took the view that the payment of Court fee by the

petitioner in accordance with the provision of Section 39 read with Section 50 of the Tamil Nadu Court-fees and Suits Valuation Act XIV of 1955

was not proper and that the suit should have been filed as a suit for partition and the Court fee paid in accordance with the provisions of Section

37 of the Court-fees Act and that the other reliefs should have been valued in accordance with the provisions of Section 22 of the Court-fees Act.

It is this decision of the learned Subordinate Judge that has given rise to the present revision petition? filed by the Plaintiff Petitioner.

Notice has been given to the Government Pleader and his representative was heard.

Firstly, the nature of the suit filed in the present case has to be determined in order to find out whether Section 37 read with Section 22, or

Section 39 read with Section 50 of the Tamil Nadu Court-fees and Suits Valuation Act would apply to the case. The plaintiff is the widow of

Ameer Batcha Rowther who died on 25th January 1972. The plaintiff claimed 1/8th share in the net estate of the deceased, after making

provisions for the various items like funeral expenses ""Iddat"" etc. The suit was valued for the purpose of jurisdiction at Rs. 8,500 as the probable

value of the plaintiff''s share and a Court-fee of Rs. 100 was paid thereon u/s 39 read with Section 50 of the Act. The plaintiff undertook to pay

any additional Court-fee which may be leviable in respect of the decree to be passed in her favour at any time as the Court may order payment of

the same on ascertainment of the actual decree to be passed in suit. The prayer in the plaint runs as follows:

Plaintiff therefore most humbly prays for a decree : (1) for administration of the estate of the deceased S.M. Ameer Batcha, Rowther, by providing

for the death-bed charges of the deceased as may be ""allowed by this Honourable Court, for the funeral and other expenses or the deceased be

allowed by this Hon''ble Court for the payment of the ""Iddat"" amount to plaintiff as may be allowed by this Hon''ble Court, for securing a sum of

Rs. 2,000 in deposit with such Bank as may be decreed by this Honourable Court for the marriage of the 5th defendant, and for allotting 1/8th

share in the remaining estate of the deceased to the plaintiff on a fair and equitable division to be made by this Honourable Court.

There are also prayers for payment of costs and for such further orders as may be deemed just and necessary. Thus, in the light of these prayers

the question as to whether the present case comes within the of Scope Section 37 read with Section 22 or Section 39 read with Section 50 of the

Tamil Nadu Court-fees and Suits. Valuation. Act, has to be decided.

Section 39(i) is the material provision and it states that in a suit for the administration of an estate, fee shall be levied on the plaint at the rates

specified in Section 50, Section 50 provides that in a suit not otherwise provided for, fee shall be payable at certain graded rates depending on the

forum and value.

As far as the suit filed before the Sub-Court is concerned, the Court fee payable would depend upon the valuation being below Rs. 5,000 or

between Rs. 5 000 and Rs. 10,000 or in excess of Rs. 10,000. Section 37 also provides for almost similar fee depending on the value of the

property If there were no other complication by reference to the serveral provisions to be made out of the estate, there could really be no

controversy as the fixed Court fee payable u/s 37 or Section 39, as the case may be was the same. With reference to this aspect as to whether it is

a suit for administration or partition, there is a decision reported in Mt. Amir Bi Vs. Abdul Rahim Sahib and Others, . That is a case where the

widow of a deceased Mahomedan prayed that the extent of property of the deceased may be ascertained, that his outstanding 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

respective shares under the law. The question for consideration was whether the said suit was an administration suit or a suit for partition.

Venkatasubba Rao, J., referred to an earlier bench decision of this Court in Moideensa Rowther v. Md. Asim Rowther ILR (1915) All. 177 :

(1915) 28 I.C. 896 wherein the following passage occurs.

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.

Following this decision, the learned Judge held that, in the said case, the suit could be valued only as an administration suit. The learned Judge

pointed out the distinction that would obtain between the cases of the heirs of a Mahomedan filing a suit and the members of a Hindu joint family

filing a suit for partition. It was pointed out that the status of a member of a Hindu coparcenary gave him certain rights in the property and that the

family partition was frequently unconnected with the death of any person and that in the case of persons governed by the Mitakshara, partition suits

were not necessarily in respect of property of a deceased person but in the case of Mahomedans the position was considered to be different and

therefore, the suit was treated as an administration suit.

There was an earlier decision in Abdul Karim Sahib v. Badruddin Sahib ILR (1905) Mad. 216 in which it was held that the suit which was

under consideration should be treated as a partition suit and not a suit for administration. The learned Judge (Venkatasubba Rao, J.) stated that the

said decision could not be treated as settling a question of principle. It was pointed out that the said decision could not be taken as an authority for

the broad proposition that the heirs of a deceased Mahomedan could never file an administration suit.

The Bombay High Court in Essajally Alibhai v. Abdeali Gulam Hussain and Ors. ILR (1921) 45 Bom. 75 had to deal with the case of a

Mohamedan who died leaving several heirs including his own parents. The parents died and their shares passed to their son who was the plaintiff in

the said case. The plaintiff filed the suit for an account and administration of the estate of his deceased brother. The suit was dismissed on the

ground that an administration suit did not lie and that the only suit that could lie was for partition. On appeal, the Bombay High Court held that the

plaintiff had an interest in the estate of his deceased brother, that he was entitled to ask for a preliminary decree for the administration of the estate

and that he was not bound to file a suit for partition.

In Mahbub Alam v. Razia Begum and Ors. AIR 1950 Lah. 12 it was pointed out by a Bench of that Court that under the Mahomedan law the

distribution of the residue among the successors of a deceased person was a duty attached to the estate notwithstanding that it vested in the heirs at

the time of the death of the propositus. Following the decision in Moideensa Rowther v. Md. Kasim Rowthan (1915) 28 I.C. 896 : ILR (1915)

All. 177 it was held that in the case of Mahomedans between a partition suit and an administration suit, the latter should be preferred. The same

position emerges also from a Bench decision of the Gujarat High Court in Nazarali Kazamali and Others Vs. Fazlanbibi and Others, . The scope of

an administration suit was pointed out in that case thus:

The scope of an administration suit clearly is one of collect the assets of the deceased to pay off the debts and other legal charges, to take account

of the income and expenses of the estate, and to find out what is the residue of the estate available for distribution amongst the heirs of the

deceased and in what shares and distribute the same amongst the heirs of the deceased. It is only after the accounts are taken that the proper

administration of the estate can be made and this is more so in the case of a deceased Mahomedan. Principles of Mahomedan Law by Mulla (7th

Edn.) paras, 39 and 40.

Thus, the several decisions to which reference has been made above go to show that in the case of Mahomedans, the proper remedy would be

a suit for administration especially in cases where the residue of the property has to be ascertained and the share of the plaintiff has to be allotted.

That is the position here. The residue has to be ascertained after making the provisions prayed for.

The Court below has followed a decision of this Court in Nambikkai Mary Ammal Vs. Prakasa Mary and Others, . That was a decision in a

suit filed by persons professing the Christian religion. It has already been seen that as far as Mohamedans are concerned, the Courts have taken

the view that a suit for administration is more appropriate than a suit for a mere partition. Therefore, the principle laid down in this decision viz.,

Nambikkai Mary Ammal Vs. Prakasa Mary and Others, cannot be applied to the facts of the case here Further that was a case where the plaintiff

bad been given a property with a direction that she should pay certain others a part value of the same on a particular date. The plaintiff filed the suit

to work out her rights and ascertain the money payable to the others. It was held that it was not a suit for partition but a suit for carrying out the

directions of the settlor and the Court-fee would have to be paid u/s 39 of the Madras Court-Fees Act by all parties concerned. It is not clear how

this decision supports the proposition that has commended itself to the Court below. If at all, this decision would support only the case of the

plaintiff. It is, however, unnecessary to go into this aspect in view of the peculiar nature of the character of a suit in the case of Mahomedan heirs.

I consider that the Court fee paid is proper and that it h not necessary to value the reliefs u/s 37 read with Section 22 of the Tamil Nadu

Court-Fees and Suits Valuation Act.

The result is that this civil revision petition is allowed. No costs. As the suit has been pending for a long time the Court below will take

expeditious steps to dispose of the same within a period of four months from the date of the receipt of the records.