U. K. Appu v. Uma Devi Rajan — 1973 DIGILAW 287 (KER)

ORDER : V. Balakrishna Eradi, J. One Sri. V.K. Sankunni who was a prominent industrialist and business man of Calicut died on the 11th June, 1961, leaving behind him two daughters who were then aged only 19 years and 11 years respectively and considerable properties and assets. O.S No. 101 of 1967 on the file of the Sub Court, Calicut is a suit instituted by the younger child of the deceased Sankunni praying that the court should be pleased to administer the estate of the deceased after ascertaining the movable and immovable properties left by him and also the liabilities, if any, to be discharged and effect a division and distribution of the residual assets as between the plaintiff and her sister, the first defendant, and award to the plaintiff her share. The 2nd defendant in the suit is the younger brother of the deceased Sankunni and defendants 3 to 6 are his wife and children. Defendants 7 to 9 are close relations of the 2nd defendant. It is alleged in the plaint that taking advantage of the fact that at the time of the demise of Sri. Sankunni the plaintiff was only a minor and the 1st defendant, had only just then attained majority, was away in England with husband, the 2nd defendant entered upon the management of the estate the deceased and took possession of large amounts of liquid cash which had been kept in the residence of Sankunni and also all the other movable and immovable properties left by the deceased. According to the plaint thereafter the 2nd defendant was throughout in management and he was dealing with the properties purporting to act as a de facto guardian of the plaintiff and agent, of the 1st defendant. The plaintiff's case is that in the course of such intermeddling with the estate, the 2nd defendant has effected certain unauthorised alienations and wrongly appropriated to himself substantial amounts belonging to the estate for which he is Accountable; in law to the legal heirs of the deceased, namely the plaintiff and the 1st defendant. The plaintiff's case is that in the course of such intermeddling with the estate, the 2nd defendant has effected certain unauthorised alienations and wrongly appropriated to himself substantial amounts belonging to the estate for which he is Accountable; in law to the legal heirs of the deceased, namely the plaintiff and the 1st defendant. The plaintiff has stated that because of the deliberate attitude adopted by the 2nd defendant of withholding from her even the details regarding the properties and assets left by her deceased father, the plaintiff is compelled to seek the aid of the court to ascertain the movable and immovable properties belonging to the estate of deceased Sankunni including the businesses and plantations situated in the three States of Kerala, Mysore and Tamil Nadu. The plaintiff has prayed that the 2nd defendant who was in de facto management posing himself as the guardian of the plaintiff and as the authorised representative of the 1st defendant, should be made liable to render to the court satisfactory account relating to in management of the estate which is sought to be administered in the suit and to bring in all amounts that may be found to be in his possession as belonging to the estate consequent on accounts being taken. The plaintiff has also challenged certain transfers which had been made by the 2nd defendant in favour of defendants 7, 9 and 10 etc. and prayed that those transactions should be ignored while ascertaining the estate available for administration. One of the contentions raised by the defendants in the written statements filed by them in the suit related to the sufficiency of the court fee paid on the plaint and this formed the subject-matter of issue No. 57. The said issue was decided as a preliminary issue by the court below and a finding has been recorded thereon by the learned Subordinate Judge on the 20th July, 1971, holding that the plaintiff is entitled to maintain the action as an administration suit on payment of the fixed court fee of Rs. 200 u/s 39(1) read with Section 50 of the Kerala Court-Fees and suits Valuation Act, 1959 (hereinafter referred to as the Act). In so holding the learned Subordinate Judge rejected the contention advanced on behalf of the contesting defendants Nos. 200 u/s 39(1) read with Section 50 of the Kerala Court-Fees and suits Valuation Act, 1959 (hereinafter referred to as the Act). In so holding the learned Subordinate Judge rejected the contention advanced on behalf of the contesting defendants Nos. 2 onwards that the suit is in truth and substance one for partition, ingeniously attempted to be disguised as one for administration of an estate, and that the plaintiff should be made liable to pay advalorem court fee on the market value of her share u/s 37(1) of the Act. However, although the court below found that the suit is one for administration and need be valued for the purposes of court fee and jurisdiction only on the said basis, it held that certain of the reliefs asked for by the plaintiff which are covered by the averments contained in paragraphs 13, 17 and 18 of the plaint are not nutters ancillary to the main relief of administration and they are, therefore, outside the scope of administration suit. In this view, the learned Subordinate Judge held that in respect of the aforesaid matters and also a prayer for injunction contained in paragraph 52 and 53 of the plaint the plaintiff has to pay separate court fee treating them as distinct reliefs. Accordingly, the court below held that the court fee paid by the plaintiff is not sufficient and the plaintiff has been directed to file a statement showing the exact amounts which she seeks to realise from the 2nd defendant on account of the claims put forward by her in paragraphs 13,17 and 18 of the plaint and pay ad valorem court fee on those amounts. Besides the above, the plaintiff has also been directed by the lower court to value the suit separately regarding the relief of injunction asked for in paras 52 and 53 of the plaint and pay the requisite court fee thereon as per the relevant provisions of the Act. Liberty has, however, been given to the plaintiff by the order of the lower court to relinquish any one or more of the claims in respect of which she has been, called upon to pay the additional court fee in case she wishes to give up those claims in the present suit by filing a statement to the said effect. Liberty has, however, been given to the plaintiff by the order of the lower court to relinquish any one or more of the claims in respect of which she has been, called upon to pay the additional court fee in case she wishes to give up those claims in the present suit by filing a statement to the said effect. It is against the said decision rendered by the court below on the preliminary issue relating to the court fee that these civil revision petitions have been filed. 2. C.R.P. No. 925 of 1971 has been filed by the 2nd defendant, his contention being that the lower court has erred in holding that the plaintiff is not liable to pay ad valorem court fee on the market value of the half share sought to be recovered by her by treating the suit as one really for partition and not one for administration of the estate. 3. C.R.P. No. 1166 of 1971 has been filed by the 7th defendant and the contentions taken by him are identical with those raised by the 2nd defendant in C.R.P. No. 925 of 1971. 4. In C.R.P. No. 1051 of 1971 the plaintiff is the revision petitioner and she has questioned the legality and correctness of the decision of the court below in so far as it has directed her to pay additional court fee in respect of the claims covered by paragraphs 13, 17 and 18 of the plaint and also in respect of the relief of injunction asked for in paragraphs 52 and 53 of the plaint. 5. I shall first deal with the revision petitions filed by the 2nd defendant and the 7th defendant, namely C.R.P. Nos 925 and 1166 of 1971. In these two revision petitions the defendants are seeking to question before this court the correctness of an order passed by the court below in so far as it has held that the court fee paid by the plaintiff in respect of the main relief asked for in the suit namely, the administration of the estate of the deceased Sankkuni, is adequate and that the plaintiff is not liable to pay ad valorem court fee treating the suit as one for partition. Since the suit has been instituted in the court of the Subordinate Judge there is no scope for the defendants to contend that the said court will have no jurisdiction to try the suit in case the suit is valued in the manner contended for by them. In such circumstances it is not open to the defendants to challenge u/s 115, C.P.C the decision rendered by the court below in the plaintiff favour on the question of court fee payable on the plaint. See Sri Ratnavaramaraja Vs. Smt. Vimla, AIR 1961 SC 1299 . C.R.P. Nos. 925 and 1166 of 1971 are liable to fail on this sole ground and they are accordingly dismissed with costs. 6. Coming now to C.R.P. No. 1051 of 1971 filed by the plaintiff it is in regard to four matters that the court below has directed the plaintiff to pay additional court fee treating them as reliefs not ancillary to main relief of administration prayed for in the suit. The case of the plaintiff revision petitioner is that all the four matters referred to above are purely ancillary to the relief of administration prayed for by her in the suit and that the court below has acted illegally in treating them as distinct subjects and directing the plaintiff to pay ad valorem court fee separate in respect of each of them. It is, therefore, necessary to examine whether the view taken by the court below in respect of each of the said matter is in accordance with law. 7. The first of the four matters referred to by the Subordinate Judge relates to the claim put forward by the plaintiff in paragraph 13 of the plaint. The plaintiff has averred in that paragraph that at the time of the death of Sri. Sankunni there were rosewood trees worth about Rs. 15 to 18 lakhs in a coffee estate owned by him in Pollibetta, Coorg known as Whaddon Estate and that sanction had been applied for by Sri. Sankunni. before his death to the concerned authorities to cut and remove those tree. It is further stated in that paragraph that on the basis of the said application sanction was granted by the authorities a day after Sri. Sankunnis death and that the 2nd defendant has cut and sold almost all the good rosewood trees in the estate by making use of the said permit. It is further stated in that paragraph that on the basis of the said application sanction was granted by the authorities a day after Sri. Sankunnis death and that the 2nd defendant has cut and sold almost all the good rosewood trees in the estate by making use of the said permit. It is submitted by the learned advocate appearing for the revision petitioner that these facts have been stated by the plaintiff in paragraph 13 of the plaint only by way of enumeration of the assets left by the deceased Sankunni in respect of which an account has to be taken by the court in course of the administration of the estate and as one of the matters in respect of which the 2nd defendant, who was in de facto management, should be called upon to render account through court. 8. In a suit for administration of the estate of the deceased the court is really being requested to assume its management, to take upon itself functions of an executor or administrator and to administer the estate. The administration of the estate consists of the collection and preservation of assets left by the deceased, payment of debts and legacies, the taking of proper action in respect of adverse claims and after settlement of the claims of creditors and legatees, if any, the final distribution of the residue amongst the heirs or the next of kin. Hence, one of the basic and essential functions of the court in an administration suit is to enquire and determine what properties and assets the deceased was seized of or entitled to at the time of his death and to take all necessary steps for their realisation from the hands of any Accountable party impleaded as a defendant in the suit, in case it be found that he is in possession of assets belonging to the estate. In my view, the averments in paragraph 13 of the plaint do not amount to anything more than a submission to the court that one of the assets left by the deceased consisted of valuable rosewood trees standing in a property known as Whaddon Estate, that the plaintiff understands that the 2nd defendant has sold those trees and converted the said assets into money and that the court should take an account of the said assets as part of the estate left by the deceased. 9. 9. The plaintiff in this case was a minor even at the time when she instituted the suit. It is beyond doubt that, in general law, a person who had been exercising control over the estate of a minor is Accountable for his management of the estate and for the funds which have passed into his hands. See Suyamprakasam, alias Meenatchisundaram, by his Next Friend and Mother Valli Ammal Achi Vs. Murugesa Pillai, AIR 1925 Mad 17. Even apart from the factum of minority of the plaintiff it is within the scope of an administration suit to investigate into the dealings of an intermeddler with the estate left by the deceased. In Coote v. Whittington, L.R. 14 Eq. 262, it was held that when a person possessed himself of the assets of an intestate, without having administered, a bill for account of the specific assets would lie against him as executor de son tort. This principle was held to be applicable to an administration suit by the Calcutta High Court in an early decision reported in Baij Nath Singh alias Baiju Singh and Others Vs. Amir Dulhin alias Mohamdi Jan, (1894) ILR (Cal) 311, where the learned Judges treated the suit by a creditor of a deceased Mohammedan as one in the nature of, an administration suit and held that one of the heirs of the deceased who had assumed exclusive possession and management was bound to account for the assets that had come into her hands and is liable to pay the creditors to the full extent of such assets and not merely to the extent of her fractional share of the liability. In the present case, the case put forward by the plaintiff is that the 2nd defendant has intermeddled with the estate and was in defacto management of all the properties and assets left by the deceased and that he should therefore be called upon to account for all such assets since they have to be realised and administered by the court. Such being the circumstances, it cannot be said that the relief asked for by the plaintiff in paragraph 13 of the plaint is not directly connected with the relief of administration of the estate of the deceased. 10. Such being the circumstances, it cannot be said that the relief asked for by the plaintiff in paragraph 13 of the plaint is not directly connected with the relief of administration of the estate of the deceased. 10. I do not find it possible to agree with the view expressed by the learned Subordinate Judge that in paragraph 13 of the plaint the plaintiff has put forward a claim for compensation for damages arising out of a tortious act committed by the 2nd defendant and that hence the said relief has nothing to do with the administration, of the estate of deceased Sankunni. Even according to the averments in the plaint, deceased Sankunni himself had applied for permission from the concerned authorities to cut and remove the trees and because the permit was obtained only subsequent to his death the 2nd defendant made use of the same and cut and sold the trees. The ordinary method of enjoyment of a forest land is by the sale of timber trees and if a person in management of an estate cuts and sells mature rosewood trees there is no tortious element involved in the same and it only amounts to a conversion of the timber growth into liquid cash represented by its sale price. The Subordinate Judge was, therefore, manifestly in error in thinking that the plaintiff's prayer that in the course of the administration action the 2nd defendant should be called upon to account for the value of the rosewood trees which formed part of the assets of the estate at the time of the death of the deceased is a distinct matter unconnected with the administration of the estate. I have no hesitation to hold that the direction given by the court below that the plaintiff should specify the exact amount claimed by her on account of the value of the rosewood trees referred to in paragraph 13 of the plaint and pay ad valorem court fee on the said amount is uncalled for and illegal 11. The observations made by me while dealing with the subject-matter of paragraph 13 of the plaint are fully applicable in respect of the claim put forward in the plaint paragraphs 17 and 18 also. In paragraph 17 the plaintiff has averred that the property described as item No. 1 of Schedule C was purchased by the late Sri. The observations made by me while dealing with the subject-matter of paragraph 13 of the plaint are fully applicable in respect of the claim put forward in the plaint paragraphs 17 and 18 also. In paragraph 17 the plaintiff has averred that the property described as item No. 1 of Schedule C was purchased by the late Sri. Sankunni in 1959 and it formed part of the assets belonging to the deceased at the time of his death but the 2nd defendant who had assumed management of the estate of the deceased had purported to sell the property to the 17th defendant without any authority. It is further stated by the plaintiff that the said property was subsequently acquired by the Government and proceedings for determination of the compensation payable by the State are pending before the Additional Sub Judge, Kozhikode in L.A.O.P. Nos. 135,138 and 162 of 1965. After setting out those facts the plaintiff has submitted in paragraph 17 that the 2nd defendant is not entitled to any portion of the compensation money and that the compensation amount payable by the Government as also sale consideration already received by the 2nd defendant from the 17th defendant should be treated as part of the estate of the deceased for which the 2nd defendant is Accountable in the administration action in his capacity as de facto manager. 12. Likewise, in paragraph 18 of the plaint the plaintiff has averred that item No. 2 of the C schedule also belonged to Sri. Sankunni at the time of his death but it was subsequently transferred by the 2nd defendant to the 18th defendant without any legal authority and that the said sale is void and the property is liable to be treated as an asset belonging to the estate of the deceased. Another plea put forward by the plaintiff in paragraph 18 is that item No. 3 of the plaint C Schedule, which originally belonged to Sri. Sankunni, had been sold to defendants Nos. 19 and 20 by deceased Sankunni but the full consideration had not been received and an amount, of Rs. 8,000/- remained due from the vendees as unpaid consideration at the time of Sri. Sankunni's death. Sankunni, had been sold to defendants Nos. 19 and 20 by deceased Sankunni but the full consideration had not been received and an amount, of Rs. 8,000/- remained due from the vendees as unpaid consideration at the time of Sri. Sankunni's death. The plaintiff has averred that the said amount, which constituted an asset of the deceased, was subsequently collected by the 2nd defendant from the vendees and that he must, therefore, be called upon to account for the same in the course of the administration of the estate by the court. 13. It is perfectly open to the plaintiff in an administration suit to pray to the court that as a part of the enquiry for ascertaining the nature, extent and identity of the properties which belonged to the deceased at the time of his death and realising the assets forming part of the estate, the court should inquire also into the validity of any transactions or dealings effected in respect of those properties by the person who was in de facto management thereof either as executor de son tort or even as an intermeddler. The decision of the judicial committee of the Privy Council in 9 CWN 961 (Privy Council) , is clear authority for this position. The same principle has also been laid down in Mt. Amir Bi Vs. Abdul Rahim Sahib and Others, 110 Ind. Cas. 276, Mahomedally Adamji Masalavalla Vs. Abdul Hussein Adamji Masalavalla, AIR 1924 Bom 313, and Masireddi Suryanarayana Vs. Akula Anasuyamma, AIR 1963 AP 298 . In the light of the above discussion it must follow that the view expressed by the Subordinate Judge that an investigation into the validity of the transactions of transfer which the 2nd defendant has purported to effect in respect of the properties left by the deceased is outside the scope of administration suit is based on a misconception of the law and cannot be sustained The case put forward by the plaintiff in paragraphs 17 and 18 and the reliefs prayed for therein are only ancillary to the relief of administration since one of the basic questions to be decided by the court is what are the properties and assets left by the deceased and available for administration by the court as forming part of his estate and there cannot be a complete adjudication of the suit without an investigation of the said question. It must accordingly follow that the action of the lower court in calling upon the plaintiff to pay court fee in respect of the matters covered by the paragraphs 17 and 18 of the plaint treating them as distinct reliefs after furnishing separate valuations in respect of them is illegal and without jurisdiction. 14. Yet. another matter in respect of which also the plaintiff has been called upon by the court below to pay additional court fee is the relief of injunction prayed for in paragraphs 52 and 53 of the plaint. A scrutiny of the averments contained in paragraphs 52 and 53 of the plaint discloses that what the plaintiff has requested therein is only that pending disposal of the suit the court should be pleased to grant the plaintiff an interin relief of temporary injunction in respect of certain matters and that she is making a separate application for the said relief. The court below appears to have proceeded on a totally mistaken assumption that in the aforesaid two paragraphs of the plaint the plaintiff has prayed for a decree of permanent injunction against the defendants. It is needless to state that any request for the grant of an interim relief of temporary injunction, even if incorporated in plaint, is not liable to be treated as a prayer for a distinct relief in the suit and made the subject-matter of separate valuation and payment of court fee. The direction given by the lower court that the plaintiff should separately value the relief of injunction asked for in paragraphs 52 and 53 of the plaint and pay additional court fee thereon as in a suit for injunction is patently erroneous and illegal and it will accordingly stand set aside. In the result, C.R.P. No. 1051 of 1971 is allowed and the finding of the court below in so far as it holds that the court fee paid on the plaint is not sufficient will stand set aside. The consequential directions issued to the plaintiff by the lower court for amending the valuation of the suit and for payment of additional court fee will stand vacated. The court below will treat the plaint as properly valued and stamped and proceed to dispose of the other issue arising in the suit on that basis. The parties will bear their respective costs in this revision petition.