Nandlal Chunilal vs Gopilal Manilal

Khareghat, J.—This suit was filed for the administration of the estate of Vrijvalabhdas Dwarkadas deceased in accordance with his will,

dated 12th May 1888, by his daughter Somi. She died during the pendency of the suit and is now represented by her minor son Nandlal. The

Subordinate Judge dismissed the suit holding that it was not maintainable in its present form on various grounds. The Joint Judge has in first appeal

confirmed the decree on the same grounds as well as on the ground of limitation. I cannot agree with them.

I fail to see how the suit is bad in form. Somi is a residuary legatee under the will of the deceased. The contending defendant Dhiraj, widow of

the deceased and step-mother of Somi, is admittedly in possession of the bulk of the property of the deceased in accordance with the will. She

was appointed trustee of the property by the Court in 1892. during Somi''s minority and has continued in possession since, claiming partly in her

own right to maintenance and partly as the heiress of her deceased daughter Jethi who was joint residuary legatee under the will with Somi. She is

for all practical purposes in the position of an administration. Section 213 of the CPC expressly provides for an administration suit under such

circumstances and the plaint in this case is almost in the same form as the second one at No. 107 Schedule IV of the Civil Procedure Code.

It has been urged that the plaintiff should have filed a suit for possession. The main ground for this contention would appear from the

Subordinate Judge''s judgment to be that she would have had to pay larger Court-fees if she had done so. But I do not see why a plaintiff should

be driven to file a suit in a particular form simply in order to make him pay larger fees when the law explicitly leaves it open to him to file it in a less

expensive form. There has been no improper attempt on the plaintiffs part to evade payment. Her allegation that she can not state what property

she will be entitled to unless accounts are taken, seems to be quite correct, The will does not mention the value of the ornaments left by the

deceased. The plaintiff alleges them to be worth over 5,600 rupees. Defendant Dhiraj asserts that ornaments out of these worth over 1,800 rupees

are her own Stridhan and that ornaments worth nearly 3,000 rupees out of the residue have been properly disposed of by her. The plaintiff denies

both these assertions and unless accounts are taken it will not be possible to determine the extent of plaintiff''s share. The case of Bai Amba v.

Pranjivandas I L R (1894) 19 Bom. 198 shows that plaints in administration suits should be treated as plaints for taking accounts and stamped u/s

7, Clause IV (b) of the Courts Fees Act and the present plaint has been stamped accordingly. The plaintiff has offered in her plaint to pay

additional fees if a larger amount than that at which she has valued her claim is found due to her and Section 11 of the Court Tees Act will prevent

execution of the decree until such additional fees are paid.

It has also been argued that plaintiff should not have filed a suit for administration because her right to the share of her deceased step-sister Jethi

is very doubtful and because the estate cannot be divided in the life-time of Dhiraj accordingly to the construction put upon the will by the lower

Courts. Supposing the opinions of the lower Courts on these points to be correct, I fail to see why that should make the suit bad in form. It is just

questions of this kind that have to be tried in administration suits. Even if the estate is indivisible during Dhiraj''s life-time the plaintiff is entitled to

have accounts taken of its administration in the past and have directions issued for its right administration in the future, so that when it eventually

passes to him he may suffer no undue loss. In this connection I would also state that I do not accept the opinions of the lower Courts as to the

present indivisibility of the estate as final. The question will have to be decided after remand after giving due opportunity to both parties to produce

evidence. If after making due provision out of the estate for the maintenance of Bais Kashi and Dhiraj there is a surplus, I see nothing in the will

which would make that surplus indivisible at present. Dhiraj has herself offered to divide the estate and give her share to Somi in her notice of 25th

March 1901 (Exhibit 45). That shows how the parties themselves understood the will before "" they came into Court.

I now come to the question of limitation. Articles 88 and 89 of Schedule II of the Limitation Act applied by the Joint Judge seem to me

inapplicable. This is neither a suit by a factor, nor by a principal against his agent. The Limitation Act does not explicitly provide a period of

limitation for an administration suit. In England the principle is that ""actions for the administration of the estates of deceased persons can only be

instituted by persons whose claims to recover are not barred by any statute of limitation."" (See Snell''s Principles of Equity, 14th edition, page

2G7). I should think the same principle applicable in India. In the present case Somi''s right to recover her share of her father''s estate was not

time-barred when she instituted this suit. If she had filed a suit for that share it would have fallen under Article 123 of Schedule II of the Limitation

Act, i. e., it would have had to be filed within 12 years after her share became deliverable. Defendant Dhiraj''s own contention is that it has not

even yet become deliverable and will not be so till after her death. At the earliest it became deliverable when Somi attained majority. According to

the Joint Judge she attained majority in 1895 and this suit was instituted in 1902. If a shorter period of limitation had been applicable it would have

been necessary to consider the effect of Dhiraj''s notice of 25th March 1901 (Exhibit 45), for it is clearly an acknowledgment of right signed by her

within the meaning of Section 19 of the Limitation Act.

I would reverse the decrees of the lower Courts and remand the case for re-trial on the merits in the light of the above remarks.

Lawrence Jenkins, C.J.

I agree with the decree proposed by Mr. Justice Khareghat.

In the face of the second defendant''s contention that the estate is not yet distributable, it cannot in my opinion be successfully contended by her

at this stage that the suit is barred by limitation.

Before the rights of the parties can be determined, it will be necessary among other things to ascertain of what particulars the estate of the

testator consisted at the time of his death, whether the second defendant has disposed of any and what part of the estate, whether such disposal

was justifiable, of what does the estate now consist and how much of the estate should be set aside to meet the claim for maintenance under the

will.

There may be other points that will also require adjudication before the rights can be determined and I only mention those which appear to me

to be in any case necessary.

Costs hitherto incurred including costs of this appeal will be costs in the suit.