Gujarat High Court
Ismail Abdul Rahim Deceased vs Rukaiyabibi Wd/O. Gulam on 4 April, 2013
Author: C.L. Soni
Bench: C.L. Soni
ISMAIL ABDUL RAHIM DECEASED THROUGH HIS HEIRSV/SRUKAIYABIBI WD/O.GULAM MOHMAD ABDUL RAHIM DECD.THRO' HEIRS C/SA/79/1989 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL NO. 79 of 1989 With CIVIL APPLICATION NO.1003 OF 2013 With CIVIL APPLICATION NO.1012 OF 2013 With MISC. CIVIL APPLICATION (STAMP) NO.161 OF 2013 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
No 2 To be referred to the Reporter or not ?
Yes 3 Whether their Lordships wish to see the fair copy of the judgment ?
No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
No 5 Whether it is to be circulated to the civil judge ?
No =========================================================== ISMAIL ABDUL RAHIM DECEASED THROUGH HIS HEIRS AND 3 Versus RUKAIYABIBI WD/O. GULAM MOHMAD ABDUL RAHIM DECD. THRO HEIRS & 8 =========================================================== Appearance in Second Appeal No.79 of 1989:
MRS KETTY A MEHTA for the Appellants DELETED FOR THE Respondent Nos.3.5-3.6, 5 MR BA SURTI for Respondent No.8 MS VASUBEN P SHAH for Respondent Nos.1-2 NOTICE SERVED for Respondent No.4 Appearance in CA Nos.1003 & 1012/2013 and MCA (Stamp)No.161/2013:
MR BA SURTI for the Applicant ================================================================ CORAM:
HONOURABLE MR.JUSTICE C.L. SONI Date : 04/04/2013 CAV JUDGMENT
1. This appeal under Section 100 of the Code of Civil Procedure is at the instance of the original plaintiff who filed Regular Civil Suit No.175 of 1976 for administration of the properties of deceased Gulam Mohmad Abdul Rahim.
2. Pending this appeal, plaintiff has passed away and his heirs have been brought on record. Similarly, most of the defendants have also passed away and their heirs have been brought on record.
3. Case of the plaintiff is that Gulam Mohmad Abdul Rahim died on 9.10.1972 leaving the properties described in Schedule-A and B, which were his self acquired properties. He was since Sunni Muslim, the plaintiff and the defendants are his heirs as per Muslim Shariat (Mohammedan Law). Defendant No.1 is the widow of deceased Gulam Mohmad Abdul Rahim and defendant No.2 was his mother who died on 29.11.1972 and rest of the defendants are his sisters. It appears that the plaint was subsequently amended and the plaintiff has averred that in the land bearing Survey Nos.447 and 530, the plaintiff has share therein and in the share of Mohmad Hussain Abdul Rahim, the plaintiff has right and interest involved. It is further case of the plaintiff that in the movable properties described in Schedule-B left by deceased Gulam Mohmad Abdul Rahim, after death of the mother of the plaintiff, the plaintiff and defendant Nos.2 to 5 have equal share.
4. Plaintiff further averred that deceased Gulam Mohmad Abdul Rahim and defendant No.1 had been residing in plaintiff s house and the plaintiff was looking after deceased Gulam Mohmad Abdul Rahim and had also incurred expenses for after-death ceremony of deceased Gulam Mohmad Abdul Rahim. It is further case of the plaintiff that defendant No.1 had started selling some movable properties and thereby causing damage to the interest of the plaintiff and defendant Nos.2 to 5 and she was taking entire crop from the agricultural lands described in Schedule-A. It is further case of the plaintiff that defendant No.1 refused to recognize the right of plaintiff in the property of deceased Gulam Mohmad Abdul Rahim and therefore, the suit is filed for administration of the properties of deceased Gulam Mohmad Abdul Rahim.
5. The suit was resisted by defendant No.1 by filing written statement at Exh.27, inter alia stating that before deceased Gulam Mohmad Abdul Rahim died, he had gifted his properties to his maternal nephew-
Abdul Hamid Ibrahim Bharuchi. It is stated that Abdul Hamid Ibrahim Bharuchi is son of her sister and was residing with deceased Gulam Mohmad Abdul Rahim for last 13 to 14 years as deceased Gulam Mohmad Abdul Rahim had no issue. It is stated that deceased Gulam Mohmad Abdul Rahim had handed over possession of his all immovable properties with consent of defendant No.1 to Abdul Hamid Ibrahim Bharuchi six months before his death and Abdul Hamid Ibrahim Bharuchi then resided with defendant No.1 and looked after her. It is further stated that deceased Gulam Mohmad Abdul Rahim left all immovable properties in the ownership and in possession of Abdul Hamid Ibrahim Bharuchi. It is also stated that all movable properties, including gold ornaments, did not come in the hands of defendant No.1 nor such property had gone to Abdul Hamid Ibrahim Bharuchi. It is also stated that one brother of deceased Gulam Mohmad Abdul Rahim, named Abdul Kadar, had been staying separately from the beginning and the plaintiff had been doing his business independently and all expenses for after-death ceremony of deceased were incurred by Abdul Hamid Ibrahim Bharuchi. It is further stated that immovable properties mentioned in Schedule-A were agricultural lands and Abdul Hamid Ibrahim paid installments for the said lands to the tenancy authority and thus the plaintiff has got no right or interest in the suit property and thus is not entitled for partition of the suit property as deceased Gulam Mohmad Abdul Rahim has not left any property after his death. It appears that defendant No.1 filed further written statement against the amended plaint on 4.3.1983 and denied deceased Gulam Mohmad Abdul Rahim having died on 9.10.1972 and also denied that deceased Gulam Mohmad Abdul Rahim had left properties described in Schedule-A and B. It is also denied that plaintiff and other defendants are heirs of deceased Gulam Mohmad Abdul Rahim. It is further stated in the written statement that the plaintiff had 1/6th share in the land bearing Survey No.447 and equal share in Survey No.530 and except that, plaintiff has got no share in any of the properties of deceased Gulam Mohmad Abdul Rahim. In this written statement, it is further stated that the properties described in Schedule-A were given by deceased Gulam Mohmad Abdul Rahim by way of gift to his maternal nephew namely Abdul Hamid Ibrahim Bharuchi and the said properties are in possession of Abdul Hamid Ibrahim Bharuchi. Abdul Hamid Ibrahim Bharuchi was given tenancy right and the Government had made him owner of the said properties. Abdul Hamid Ibrahim Bharuchi had paid installments for the said properties. In the alternative, it is stated that installments of the land since paid by defendant No.1, defendant No.1 became owner of the lands.
6. In the suit, learned Trial Judge passed order for drawing preliminary decree and appointed Court Commissioner to take accounts of the properties described in Schedule-A and B and to report as to whether the properties are administered for 12/56 share of the plaintiff and defendant No.2 and 1/4th share for defendant No.1 and 9.84 share for defendant Nos.3 to 5. Commissioner was further directed to decide the income from the properties till the same are administered and also ordered to give Rs.150/- for maintenance of defendant No.1.
7. Defendant No.1- widow of deceased Gulam Mohmad Abdul Rahim filed Regular Civil Appeal No.207 of 1984 before the first Appellate Court. First Appellate Court came to the conclusion that the properties were self acquired properties of deceased Gulam Mohmad Abdul Rahim except shop No.260. Learned Appellate Judge further recorded that there was no ancestral property with deceased Gulam Mohmad Abdul Rahim and since all the suit properties were self acquired properties of deceased Gulam Mohmad Abdul Rahim and since deceased Gulam Mohmad Abdul Rahim gifted all properties to his maternal nephew Abdul Hamid Ibrahim Bharuchi before his death, Abdul Hamid Ibrahim Bharuchi was in possession of the suit properties as owner. Learned Appellate Judge further recorded that since Abdul Hamid Ibrahim Bharuchi is a necessary party and not joined in the suit, no effective decree could be passed for the suit properties, which were in possession of Abdul Hamid Ibrahim Bharuchi. Learned Appellate Judge also recorded that revenue receipts clearly show that deceased Gulam Mohmad Abdul Rahim had paid installments to the tenancy authorities and thereafter, his widow Rukaiyabibi- defendant No.1 paid installments and thereafter Abdul Hamid Ibrahim Bharuchi paid installments in the name of deceased Gulam Mohmad Abdul Rahim. Learned Appellate Judge also further considered the evidence of the plaintiff and recorded that the plaintiff admitted that Mamlatdar gave certificate to his brother- deceased Gulam Mohmad Abdul Rahim and installments were paid by Abdul Hamid Ibrahim Bharuchi. Learned Appellate Judge further recorded that plaintiff admitted that he has not paid any installment. Learned Appellate Judge further recorded that for shop No.260, deceased Gulam Mohmad Abdul Rahim was paying rent and the plaintiff had never inquired as to whether deceased Gulam Mohmad Abdul Rahim had gifted the suit properties or not. Learned Appellate Judge also considered the evidence of defendant No.1 and found that the suit properties were gifted to Abdul Hamid Ibrahim Bharuchi by deceased Gulam Mohmad Abdul Rahim during his lifetime. It is further recorded that one of the properties was ancestral property. Since other properties were self acquired properties of deceased Gulam Mohmad Abdul Rahim and since deceased Gulam Mohmad Abdul Rahim gifted to Abdul Hamid Ibrahim Bharuchi, in absence of Abdul Hamid Ibrahim Bharuchi as party, no decree for administration of the property of deceased Gulam Mohmad Abdul Rahim could be granted. On such conclusion, learned Appellate Judge ultimately allowed the appeal and quashed and set aside the judgment and decree passed by learned Trial Judge and dismissed the suit of the plaintiff.
8. This appeal was admitted by order dated 31.3.1989 on the following substantial questions of law:-
(1) Whether the finding of the first Appellate Court that gift in favour of Abdul Hamid was proved is perverse and not in accordance with law ?
(2) If so, whether the plaintiff is entitled to administration and accounts ?
9. It appears that pending the appeal, one application was moved by the appellant, being Civil Application No.553 of 1989, seeking injunction against original defendant No.1- Rukaiyabibi, widow of Gulam Mohmad Abdul Rahim, restraining her from transferring the suit properties by herself or through Abdul Hamid Ibrahim Bharuchi who was joined as opponent No.6 in the said application. However, Abdul Hamid Ibrahim Bharuchi was never made as party in the proceedings before the Courts below or in the present appeal before this Court. Said Abdul Hamid Ibrahim Bharuchi has filed Civil Application No.1003 of 2013 to vacate the interim relief granted in Civil Application No.553 of 1989 and to hold that any judgment or order passed in the present appeal may not be binding to him.
10. Since nobody has appeared for the defendants in the main appeal, this Court heard learned advocate Mrs. Ketty Mehta for the appellants.
11. Learned advocate Mrs. Mehta submitted that the suit was filed for administration of the properties of deceased Gulam Mohmad Abdul Rahim by the plaintiff as his next-on-kin and in such administration suit, no other person except other next-of-kins of deceased were necessary parties. She submitted that in the suit for administration, inquiry contemplated is limited for deciding the share of next of kin of deceased whose properties are required to be administered and for taking an account of movable properties of deceased to meet with funeral and testamentary expenses etc. She submitted that any person having independent claim to the properties of deceased is not a necessary party in the suit for administration. She submitted that such person can always file independent suit to establish his or her title and interest in the property of deceased. Mrs. Mehta has further submitted that learned Trial Judge committed no error in passing preliminary decree for ascertaining the shares of next of kin of deceased through Court Commissioner which was the only requirement for passing preliminary decree in an administration suit. Mrs. Mehta submitted that once preliminary decree was passed in such administration suit, defendant No.1 was not entitled to file appeal before the first Appellate Court to represent the case of Abdul Hamid Ibrahim Bharuchi on the ground that Abdul Hamid Ibrahim Bharuchi had become owner of the property by virtue of oral gift and that he was necessary party. Mrs. Mehta submitted that defendant No.1 was at the best entitled to have her share in the suit for administration and she could not be said to be aggrieved by preliminary decree passed in the administration suit. Mrs. Mehta further submitted that Appellate Court has seriously erred in deciding the rights and title of third party not connected with the administration suit in the appeal at the instance of defendant No.1. Mrs. Mehta has submitted that Appellate Court also committed serious error in holding that in absence of Abdul Hamid Ibrahim Bharuchi, no effective decree could have been passed by the Trial Court. Mrs. Mehta submitted that even otherwise, the finding of the first Appellate Court that the gift in favour of Abdul Hamid Ibrahim Bharuchi was proved is perverse and not in accordance with law. She submitted that documentary evidence on record clearly establish that the plaintiff was a joint tenant with deceased Gulam Mohmad Abdul Rahim in respect of the agricultural land comprised the suit property and therefore, he was equally entitled to such agricultural land under the Tenancy Law and in respect of such agricultural land, no gift could have been made by deceased Gulam Mohmad Abdul Rahim in favour of Abdul Hamid Ibrahim Bharuchi. She submitted that the documents on record also further establish that till the death of deceased Gulam Mohmad Abdul Rahim, he was never conferred ownership rights under the provisions of the Tenancy Law in respect of the above such agricultural properties and therefore, he was otherwise also not entitled to pass on a title by way of a gift in favour of Abdul Hamid Ibrahim Bharuchi. Mrs. Mehta thus submitted that the first Appellate Court has misconstrued and misread the documentary as also oral evidence available on record and has committed serious error in holding that Abdul Hamid Ibrahim Bharuchi has become owner of the suit properties under the oral gift stated to be executed in his favour by deceased Gulam Mohmad Abdul Rahim. She thus urged to allow the appeal and set aside the judgment and decree passed by the first Appellate Court and to restore the judgment and decree of the Trial Court.
12. Learned advocate Mrs. Mehta relied on following judgments in support of her arguments:-
(1) In the case of M. Abdul Razack Vs. S. Mohammad Shah reported in AIR 1962 MADRAS 346;
(2) In the case of Kasturi Vs. Iyyamperumal and others reported in (2005)6 SCC 733;
(3) In the case of Mumbai International Airport Pvt. Ltd. Vs. Regency Convention Centre and Hotels Pvt. Ltd. and Others reported in 2010(3) GLH 281;
(4) In the case of State of Assam Vs. Union of India and Ors. etc. reported in 2011(3) GLH 287.
13. Learned advocate Mr. Surti appearing for the applicant in Civil Application No.1003 of 2013 has tendered written submissions. But, for the purpose of deciding the Second Appeal, the same could not be considered as the applicant is not a party respondent in the Second Appeal. Mr. Surti, therefore, urged to hold and observe that judgment and order passed in the Second Appeal, if adverse to the applicant, may not be binding to the applicant.
14. Having heard learned advocate for the appellants and having perused the judgments of the Courts below with record and proceedings of the case, it appears that the plaintiff, who is real brother of deceased Gulam Mohmad Abdul Rahim, filed suit for administration of the properties left by deceased Gulam Mohmad Abdul Rahim. Defendant No.1 was widow of deceased Gulam Mohmad Abdul Rahim. There is no dispute about the fact that deceased Gulam Mohammad Abdul Rahim died without any issue. Other defendants are next-of-kins of deceased Gulam Mohmad Abdul Rahim. The properties left by deceased Gulam Mohmad Abdul Rahim comprised of agricultural land and movable properties. Defendant No.1 opposed the suit on the ground that since her deceased husband had no issue, the deceased had gifted his properties in favour of Abdul Hamid Ibrahim Bharuchi, who was son of her sister and during lifetime of the deceased, possession of the suit properties was given to Abdul Hamid Ibrahim Bharuchi and since by virtue of such gift, Abdul Hamid Ibrahim Bharuchi has become owner of the properties of deceased Gulam Mohmad Abdul Rahim, relief for administration of the properties of deceased Gulam Mohmad Abdul Rahim cannot be granted. She also raised objection against maintainability of the suit on the ground of non-joinder of Abdul Hamid Ibrahim Bharuchi, who was alleged to be necessary party.
15. On appreciation of the evidence, learned Trial Judge recorded findings that Abdul Hamid Ibrahim Bharuchi had never resided with deceased Gulam Mohmad Abdul Rahim during his lifetime and he came to reside with defendant No.1 after deceased Gulam Mohmad Abdul Rahim died. Learned Trial Judge also found that Abdul Hamid Ibrahim Bharuchi has not become owner of the suit properties on the basis of alleged gift. Learned Trial Judge also found that the suit properties were of joint family and the properties were not established to be self acquired properties of deceased Gulam Mohmad Abdul Rahim. Learned Trial Judge thus found that the plaintiff was entitled to administration of the properties of deceased Gulam Mohmad Abdul Rahim and thus passed preliminary decree and appointed Commissioner to take accounts of the properties of deceased Gulam Mohmad Abdul Rahim and to make report about the administration of the suit properties as per the shares of the parties in the properties of deceased Gulam Mohmad Abdul Rahim.
At this stage, reference to a decision of this Court in the case of Nazarali Kazamali and others Vs. Fazlanbibi and others reported in AIR 1975 GUJARAT 81, is required to be made. Hon ble Division Bench has held and observed in paragraph Nos.10,11,13 and 19, as under:-
10.
Now, the next of the kin of a deceased person who has died intestate can file a suit for administration where it is necessary to take an account of the estate of the deceased and such a suit can be filed against a party who is in possession and management of the property of the deceased. The mere fact that such party refutes the claim of the plaintiff does not alter the nature of the suit which is to be determined from the allegations in the plaint. Whether those allegations are substantiated or not will be a question to be decided in the case itself. It would be necessary in such a case to ascertain what the estate of the deceased was, what debt had to be paid and it would be only after the collection of the out standings and other assets and payment of debts etc., that the plaintiff's share would be capable of ascertainment. Such a suit can be for an account of the administration of the estate of the deceased dying intestate. The plaint allegations in the instant case show that the suit as framed is one for the administration of the estate left by deceased Kazamali as an independent owner and as a person in exclusive possession of the suit property, more particularly described in Schedules 'A' and 'B' to the plaint. The suit is filed by the daughter of the deceased and the plaint allegation is that the property of the deceased was first managed by 'Palyapalak' and then by Nanibibi, widow of the deceased and the income of the estate was being used till the death of Nanibibi in November, 1961, for the benefit of the heirs of the deceased and thereafter, defendant No. 5, Gulamhussain as the male adult of the family of the deceased, defendant No. 1 being a declared lunatic, is intermeddling with the estate. Main purpose of the suit is not to determine as to who is the rightful heir of the deceased. The suit is in substance one for administration of the estate of the deceased. In such a suit for administration, the accounts have necessarily to be taken. In such a suit, the funeral expenses and the death-bed charges of the deceased have to be ascertained and met; the debts of the deceased, if any, which are payable from the estate have to be paid and the outstandings collected and after taking account of the estate left by the deceased and thus determining the estate that then remains available for distribution amongst the heirs and the persons who are entitled to come in for distribution, the residue of the estate will have to be distributed amongst them in accordance with the personal law applicable to the parties. It may be that, in such a suit, the immovable properties may come to be awarded and possession of such immovable properties may have to be decreed in favour of one or the other heirs. But, that would be distribution of the residue of the estate amongst the heirs and that is what is contemplated in the very scheme of the administration suit. The pleas in the written-statement or the orders that may have to be passed in the final decision of the suit on merits are not to be considered for the purpose of determining the frame and nature of the suit. Even if in a final decree that may be passed in an administration suit, possession of immovable property is to be awarded, the character of the suit will remain as that of an administration suit.
11. Again, in case of the administration of the estate of a deceased Mahomedan, as is the case here, the estate of a deceased Mahomedan is to be applied successively in payment of (1) his funeral expenses and death-bed charges; (2) expenses of obtaining probate, letters of administration, or succession certificate; (3) wages due for service rendered to the deceased within three months next preceding his death by any labourer, artisan or domestic servant; (4) other debts of the deceased according to their respective priorities (if any); and (5) legacies not exceeding one-third of what remains after all the above payments have been made. The residue is to be distributed among the heirs of the deceased according to the law of the sect to which he belonged at the time of his death, and the heir has a right of contribution against his co-heirs, if by the action of the judgment-creditor under a decree under Section 52 of the Civil Procedure Code against all the heirs, he was left with less than his proper share of the net estate of the deceased (Vide Sir Dinsha Mulla's Principles of Mahomedan Law, Seventeenth Edition, paragraph 39, at page 29). The order set forth above is in accordance with the provisions of the Indian Succession Act, 1925, Secs. 320, 323 and Section 325. As laid down in paragraph 40 of Mulla's Principles of Mahomedan Law, the executor or administrator, as the case may be, of a deceased Mahomedan, is, under the provisions of the Indian Succession Act, 1925, Sec. 211, his legal representative for all purposes, and all the property of the deceased vests in him as such. The estate vests in the executor, though no probate has been obtained by him. Subject to the provisions contained in paragraphs 39 and 40 of Mulla's Principles of Mahomedan Law, the whole estate of a deceased Mahomedan if he has died intestate, or so much of it as has not been disposed of by will, if he has left a will, devolves on his heirs at the moment of his death, and the devolution is not suspended by reason merely of debts being due from the deceased. The heirs succeed to the estate as tenants-in-common in specific shares. Under the Mahomedan Law, the distribution of the residue amongst the successors of the deceased person is a duty attached to the estate notwithstanding that it vests in the heirs at the time of the death of the propositus, and as the distribution of the residue forms part of the administration of the estate, it clearly falls within the province of an administration suit (Vide Sheikh Mahbub Aha v. Razia Begum, AIR 1950 Lah 12). As observed by the Federal Court in Jiban Krishna Das v. Jitendra Nath Das, AIR 1949 FC 64 at p. 67, "Ascertainment of residue after completion of administration is certainly a prerequisite to a claim for partition but the material facts were all set out in the plaint and there is nothing in law which stands in the way of combining prayers for administration and partition in one and the same suit." Thus the scope of an administration suit clearly is one to 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. It is implicit in an administration suit that accounts have to be taken. Such a suit is for an account of the property of the deceased and for its due administration under the decree of the Court. As an heir of the deceased, the plaintiff herein has thus a right to demand that the deceased's estate should be duly administered, that it should be cleared of debts and that she should be given possession of her share therein.
13. 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 from 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 does 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. 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 administration 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.
19. Coming to Mr. N. R. Oza's contention that Order 20, Rule 13 of the Code of Civil Procedure is partly substantive and partly procedural law and thus indicates the limited scope of an administration suit, we must say that it has no merit. Order 20, Rule 13 finds its place in a particular scheme of the Civil Procedure Code. It is placed under Order 20 which provides as to how the judgments and decrees are to be pronounced in different cases and what are to be the contents of various decrees and is merely procedural in character as we shall presently examine. The power to entertain an administration suit is given by Section 9 of the Code. Cognizance of administration suits is not barred either expressly or impliedly. Rule 13 provides merely a procedure for drawing up a decree in administration suit. Sub-rule (1) provides: "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 to be taken and made, and giving such other directions as it thinks fit." Sub-rule (1) thus merely lays down a procedure which is to be followed in passing a preliminary decree in an administration suit where accounts of the property are to be taken for the due administration of the estate. The preliminary decree is to be passed before the final decree is passed and some inquiry is contemplated before passing a final decree in such a suit. Sub-rule (2) provides: "In the administration by the Court of the property of any deceased person, if such property proves to be insufficient for the payment in full of his debts and liabilities, the same rules shall be observed as to the respective rights of secured and unsecured creditors and as to debts and liabilities provable, and as to the valuation of annuities and future and contingent liabilities respectively, as may be in force for the time being, within the local limits of the Court in which the administration suit is pending with respect to the estates of persons adjudged or declared insolvent; and all persons who in any such case would be entitled to be paid out of such property, may come in under the preliminary decree, and make such claims against the same as they may respectively be entitled to by virtue of this Code." Sub-rule (2) thus provides the procedure to be followed in the case where in an administration of the property by the Court, the property proves to be insufficient for the payment of debts and liabilities of the deceased etc. It is clearly a procedural law. It cannot be said to lay down the substantive law. As observed by a Division Bench of the Lahore High Court in AIR 1950 Lah 12, at p. 16:
"The power to entertain an administration suit is given not by Order 20, Rule 13, but by Section 9 of the Code, which provides that "the Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred", and if a suit for the administration of an estate is not barred expressly or impliedly by any provision, of law, it must be entertained. It would appear that an administration suit need not necessarily relate to the estate of a deceased person. This conclusion may be drawn from the language of sub-rule (1) of Rule 13 of Order 20, which speaks of a suit for an account of any property and for its due administration under the decree of the Court" without any reference to a deceased person, and the force of this language is brought out specifically in sub-rule (2) which makes a special provision for "the administration by the Court of the property of any deceased person."
It has been further observed by the Lahore High Court at p. 16 of the report:
"It thus seems that the distribution of the residue among the successors of a deceased person is a duty attached to the estate notwithstanding that it vests in the heirs at the time of the death of the propositus, and as the distribution of the residue forms part of the administration, of an estate, it clearly falls within the province of an administration suit. Even the Divine Book under which the Sirajiyyah relies insists on administration before the heritage ever devolves on the heirs. x x x x Thus, the theory that the property of a deceased Muslim vests in his heirs immediately after his death is considerably tempered by the injunction that the heir is entitled only to the residue after the payment of debts and legacies and necessarily involves the administration of the estate, such administration is implied in the very words of the holy Quran and of authentic texts like the Sirajiyyah."
We are in respectful agreement with the aforesaid Lahore view. In our opinion, Order 20, Rule 13 provides merely a procedure. The forms of pleadings to be found in Appendix-A to the Code in Forms 41, 42, 43 are mere model forms and not statutory forms as was sought to be contended by Mr. Oza. A reference to Order 6, Rule 3 shows that the forms in Appendix 'A' are to be used when applicable, and when they are not applicable, the forms of the like character, as nearly as may be, shall be used for all pleadings. The forms of the decrees to be found in the First Schedule in Appendix-D of the Code, form of preliminary decree being No. 17 and form of final decree being No. 18 are also model forms. It cannot be gainsaid that decree must conform to judgment. Order 48, Rule 3 provides that "The forms given in the appendices, with such variation as the circumstances of each case may require, shall be used for the purposes therein mentioned."
It is thus clear that the forms in the various appendices of the Civil Procedure Code are not statutory forms. Mr. Oza was thus not right when he tried to draw upon these forms and based a contention that the forms indicated the limited nature and scope of an administration suit.
17. In the case of M. Abdul Razack (supra), relied on by Mrs. Mehta, Madras High Court has held that in administration suit, a person claiming adverse title to estate of the deceased would be neither a necessary party nor a proper party. It may be that in certain cases, plaintiff can implead such a person claiming adverse title in a suit for partition or even administration suit, but where the plaintiff does not want him to be impleaded, it will only be embarrassing the trial of the suit if every adverse claimant to the estate were to be allowed to come in as defendant to get his claim adjudicated. A third party can institute his own suit for the protection of such right as may have in the property.
18. In the case of Kasturi (supra), relied on by Mrs. Mehta, Hon ble Supreme Court has held that in the suit for specific performance of contract, parties claiming independent title and possession adverse to the title of vendor and not on the basis of contract, are not proper parties. Third party or stranger to the contract cannot be added in such suit. However, the ratio of this decision cannot be applied to the facts of the case.
19. In the case of Mumbai International Airport Pvt. Ltd. (supra), relied on by Mrs. Mehta, Hon ble supreme Court has held and observed that the general Rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the person against whom he wishes to litigate and cannot be compelled to sue person against whom he does not seek any relief. However, this general rule is subject to the provisions of Order 1 Rule 10 of CPC.
The Court may add as a party any person who is found to be necessary or a proper party.
20. In the case of State of Assam (supra), relied on by Mrs. Mehta, Hon ble Supreme Court has observed in para 14, as under:-
14. We respectfully agree with the observations made by this Court in Udit Narain s case (supra) and adopt the same. We may add that the law is now well settled that a necessary party is one without whom, no order can be made effectively and a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision of the question involved in the proceeding.
21. The principle of law emerging from the above decisions is that the plaintiff can certain join a third party in administration suit where it is necessary to take accounts of the estate of the deceased from third party, who is in possession of such estate and if such third party is joined at the instance of the plaintiff, title to the estate could be gone into in such suit. But, simply because issue of title is to be decided for the purpose of taking accounts of the estate of deceased, nature of the suit shall not be changed and could still be tried and decided as administration suit. However, if the plaintiff challenges alienation of the estate of deceased as heir of the deceased, then suit would not remain as suit for administration of the estate of deceased. In the administration suit, when administration of the shares of next of kin in respect of the properties of deceased is the only object, effective decree could be passed in presence of all next of kin of deceased and presence of third party claiming any independent right in the suit property is not at all necessary. Therefore, the plaintiff s suit for administration without joining Abdul Hamid Ibrahim Bharuchi was certainly maintainable and effective decree could be passed by the Court for ultimate purpose of the administration of the estate of deceased. The purpose behind passing the preliminary decree is to ascertain the remainder of the estate of deceased for distribution amongst his heirs. Defendant No.1, being widow, was one of next-of- kins of deceased Gulam Mohmad Abdul Rahim. Whatever share she was entitled, she was to get it on administration of the properties of deceased. And therefore, she could neither have represented the case of third party claiming title or interest in the properties of deceased in the suit and for such purpose, she could not have filed appeal against the preliminary decree passed for administration of the properties of the deceased.
22. In view of the above, Trial Court as also the first Appellate Court both could not have gone into the dispute as regards the title and interest of third party- Abdul Hamid Ibrahim Bharuchi in the suit for administration for the properties of deceased. Therefore, in my view, both the Courts below have committed serious error in deciding the issue as regards validity or otherwise of the gift alleged to have been made by deceased Gulam Mohmad Abdul Rahim in favour of Abdul Hamid Ibrahim Bharuchi as also the issue about ownership and possession of Abdul Hamid Ibrahim Bharuchi in respect of the suit properties. Therefore, the judgment and decree of the Courts below deciding the rights, title and interest of Abdul Hamid Ibrahim Bharuchi in the suit properties are required to be quashed and set aside.
23. For the reasons stated above, the appeal is required to be allowed. Accordingly, it is allowed. The judgment and decree passed by the Courts below deciding the right, title and interest of third party- Abdul Hamid Ibrahim Bharuchi in respect of the properties of deceased Gulam Mohamad Abdul Rahim are hereby quashed and set aside. Suit for administration filed by the plaintiff is allowed and the Trial Court is directed to draw preliminary decree in accordance with law and to take further action thereon till the final decree is drawn.
24. However, it is made clear that the applicant of Civil Application No.1003 of 2013 is not affected by this judgment as the applicant was neither a party before the Courts below nor before this Court.
25. Record and proceedings to be sent back forthwith.
ORDER IN CIVIL APPLICATION NOS. 1003 OF 2013 AND 1012 OF 2013 AND MISC. CIVIL APPLICATION (STAMP) NO.161 OF 2013 :
In view of the judgment passed in the main appeal, no orders are required to be passed on the Civil Applications and the Misc. Civil Application and the same stand disposed of.
Sd/-
(C.L. SONI, J.) omkar Page 19 of 19