Johara Bivi v. Julaika Bivi and others — 1979 DIGILAW 7 (MAD)

Order.- 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 for 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 l/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 provisions 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. 2. Notice has been given to the Government Pleader and his representative was heard. 3 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 SO 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 l/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. The plaintiff is the widow of Ameer Batcha Rowther who died on 25th January 1972. The plaintiff claimed l/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 under section 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 of 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 l/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 5O of the Tamil Nadu Court-fees and Suits Valuation Act, has to be decided. 4. Section 39 (i) is the material provision and it states that in a suit for the adminsiration 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. 5. Section 39 (i) is the material provision and it states that in a suit for the adminsiration 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. 5. As far as the suit filed before the Sub-Clourt 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 provissons to be made out of the estate, there could really be no controversy as the fixed Court fee payable under section 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, then is a decision reported in Mt Amir Bi v. Abdul Rahim Sahib and others1 . 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 Rowther2wherein 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. 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 par tition 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. 6. There was an earlier decision in Abdul Karirn Sahib v. Badmddin Sahib3 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. 7. The Bombay High Court in Essafally Alibhai v. Abdeali Gulam Hussain and others4 bad 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 He 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. 8. 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. 8. In Mahbub Alam v, Razia Begum and others5 it was pointed out by a Bench of that Court that under the Mahomedan law the distribut tion 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,6it was held that in the case of Mahomedans between a parttion 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 v. Fazianbibi and others.1 The scope of an administration suit was pointed out in that case 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. Principles of Mahomedan Law by Mulla (7th Edn.) paras. 39 and 40”. 9. 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 his to be allotted. That is the position here. The residue has to be ascertained after making the provisions prayed for. 10. The Court below has followed a decision of this Court in Nambikkai Maty Ammal v. Prakasa Mary and others.2 That was a decision in a suit filed by persons professing the Christian religion. That is the position here. The residue has to be ascertained after making the provisions prayed for. 10. The Court below has followed a decision of this Court in Nambikkai Maty Ammal v. Prakasa Mary and others.2 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, Numbikkai Maty Ammal v. Prakasa Mary and others2 connot 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 under section 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 Mahomed an heirs. 11. I consider that the Court fee paid is proper and that it is not necessary to value the reliefs under section 37 read with section 22 of the Tamil Nadu Court-Fees and Suits Valuation Act. 12. 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.