Mt. Shafi-ul-Nisa vs Mt. Fazal-ul-Nisa

Kapur, J.—This is a defendant''s appeal against the judgment and decree passed by the Subordinate Judge First Class, Delhi, decreeing the plaintiff''s suit for administration of the estate of one Ch. Inam Illahi deceased. On 25th July 1940, Ch. Inam Illahi made a registered deed of gift in favour of his daughter, Mt. Shafi-ul-Nisa and gave possession to her. This document was registered at the residence of the executant on the same day. On 3rd August 1940, Ch. Inam Illahi died, and the death certificate Ex. P-1, printed at page 35 of the printed paper book shows that he died of consumption-duration of illness being three months.

On 2nd January 1942, the plaintiff, Mt. Fazal-ul-Nisa, who is a sister of the deceased brought a suit for administration alleging that Ch. Inam Illahi died possessed of property described in Sch. ''A'', and that before his death he was under the influence of defendants his daughter and wife; that he was suffering from Maraz-ul-Maut (death disease) and that for about fifteen days before his death he was unconscious, and there one, all documents executed by him, including the deed of gift, Ex, P-1 mentioned above, were invalid, and as the gift was without the consent of the plaintiff who is one of the heirs, it was not valid. She also pleaded that she was entitled, because of the invalidity of the deed of gift, to have the estate administered and after payment of debts, to have the property divided amongst the heirs according to Mohammadan law. She prayed for the following reliefs:

(a) The deed of gift Ex. P-1 be declared invalid ''and null and void'';

(b) a decree for administration of movable and immovable property left by the deceased; and

(c) the debts due by the deceased and his funeral expenses be paid and the remaining property divided amongst the heirs according to Muhammadan law.

In reply the defendants pleaded that the deceased did not leave any property at the time of the death because during his lifetime he while in proper senses, gifted away the entire property to his daughter by means of a gift deed with the consent of his sister, the plaintiff, and his wife Mt. Amat-Ullah-Jan, and the donee was put in possession; that Ch. Inam Illahi was not suffering from Maraz-ul-Maut; that he was in his full senses up to the time of death and that the deed of gift was lawfully completed and registered. The allegation of undue influence by the defendants was denied and it was pleaded that the deed of gift was valid. In the additional pleas it was pleaded that the suit could not proceed as an administration suit because Ch. Inam Illahi did not leave any debt or property, and that the plaintiff could not have, her light of succession, determined in a suit of this kind. It was, further, stated that the plaintiff was really asking for partition of the property by means of this suit which the law did not allow her to do, and several other pleas were raised which are not necessary for the purpose of this appeal. The learned trial Judge raised certain preliminary issues of which the most important one is : "(3) Whether a suit for administration is competent on the present allegations of the plaintiff ?"

On 12th May 1943, the learned Judge decided the preliminary issue and on issue No. 3 he held that the suit could proceed. He then framed five other issues which were :

(1) Whether the present suit is barred under O. 2, R. 2, Civil P. C. ?

(2) Is the present suit barred by estoppel, waiver or acquiescence ?

(3) Whether Inam Elahi deceased was suffering from Maraz-ul-Maut at the time of the execution of the deed of gift in question and if so to what effect ?

(4) Whether the execution of the said deed was obtained by undue influence, and if so to what effect ?

(5) To what relief is plaintiff entitled ?

On the first two issues he found against the defendants. On issue No. 3, he found after examining the evidence which was led by the parties, that the deceased was suffering from Maraz-ul-Maut at the time of the execution of the deed of gift, and on issue No. 4 his finding was that the execution of deed of gift was obtained by undue influence. As a result of this finding he decreed the plaintiff''s suit with costs and passed a preliminary decree. Against this decree, the defendant Mt. Shafi-ul-Nisa has come up in appeal to this Court.

The first question which has been debated before us is whether the administration suit would lie in the present case. The argument of the learned counsel was that the plaintiff could not in law bring a suit for administration when his real object was to have the alienation set aside. He also submitted that it is not open to the Court, in an administration suit, to determine the validity of an alienation made although if the question to be decided was whether an alienation was or was not made, the matter could be decided in an administration suit. In my opinion, the contentions of the learned counsel are well founded.

Order 20, Rule 13, Civil P. C., runs as follows :

Where a suit is for an account of any property and for its due administration under the decree of the Court, the Court shall, before passing the final decree, pass a preliminary decree ordering such accounts and inquiries as it thinks.

Therefore, in an administration suit, where a man dies intestate the Court takes upon itself the function of an executor or an administrator and administers the estate of the deceased, but it is the estate of the deceased which is to be administered and, therefore, if the deceased leaves no estate either because he never had it or because he had transferred the whole of his property to somebody else, there is no estate which the Court can administer. The suit in its essence is one for account and for application of the estate of the deceased for the satisfaction of the debts of all the creditors, and for the benefit of all others who are entitled and the Court marshals the assets and makes such a decree. See Shivaprasad Singh Vs. Prayagkumari Debee and Others, . In AIR 1940 179 (Lahore) it was held :

An administration suit cannot be filed by one of the heirs to obtain possession of the property wrongfully withheld by another person claiming to be the heir.

In AIR 1943 241 (Lahore) where the facts were somewhat similar to the one in the present case and in that the deceased had executed certain documents which were alleged by the plaintiff to be illegal and fictitious, because they were executed under undue influence and at a time when the deceased was suffering from Maraz-ul-Maut, and the suit brought was an administration suit, it was held by a Division Bench of the Lahore High Court :

That it is open to the Court in an administration suit to determine whether certain alienations were or were not in fact made by the deceased, but the Court could not determine the validity of any alienation made by him.

The Lahore Court has relied on Shivaprasad Singh Vs. Prayagkumari Debee and Others, where it was held :

A suit for the recovery of an impartible estate and other properties, which the defendant is alleged to be in wrongful possession of, is not an "administration suit, although accounts may have to be ordered against the defendant on the basis of the liability of an executor de son tort.

Relying on a judgment of their Lordships of the Privy Council, the learned counsel for the respondent submitted that in such a suit it could be determined, in order to ascertain the estate to be administered by the Court, the validity or otherwise of an alienation as also the right of possession by a co-heir. Their Lordships of the Privy Council in Benode Behari Bose v. Nistarini Dassi, 33 Cal. 180 : (32 I. A. 193 P. C. ) held that Court had power to order administration of the estate, and as auxiliary to such order to set aside deeds obtained by the fraud of the executor. No doubt a fraudulent transfer made by the executor can be set aside in an administration suit as such an alienation takes place after the death of the deceased and the estate of the deceased has to be determined as it existed at the time of his death. Second case that he relied on was Maganlal Chunilal Choksi Vs. Kanchanlal Manchharam, ), were in an administration suit one of the prayers made was that the will made by the deceased should be declared null and void. In the first place there is no decision on the point whether in a case of this kind an administration suit is a proper remedy. It being a case where the sole question to be decided was about the court-fee and the jurisdictional value, and secondly question of wills stands, on a different footing, at any rate, this case is no authority for the proposition which Mr. Khosla submitted, that is, that it is open to the Court to set aside an alienation in a suit for administration.

A careful study of the cases shows that 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.

In the result, therefore, I must hold that the suit was incompetent, and the learned Judge was in error in giving the relief that he did in the suit.

The appeal is, therefore, allowed and the suit dismissed with costs throughout.

Harnam Singh, J.

I agree that the appeal should be allowed and the suit dismissed with costs throughout.