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TMI Blog2006 (2) TMI 727X X X X Extracts X X X X X X X X Extracts X X X X ..... ter. Defendant No. 4 is the husband of defendant No. 3 and defendant No. 5 is the son of defendant Nos. 3 and 4. 3. By this Chamber Summons the plaintiff seeks to add six respondents to the Chamber Summons as defendant Nos. 7 to 12. The plaintiff also seeks by the Chamber Summons to challenge the alienation in respect essentially of two properties, one to respondent No. 1 and the other to respondent Nos. 2 to 6. Respondent No. 1, Prolific Consultancy Services (Mumbai) Private Limited is a closely held company in which defendant Nos. 3, 4 and 5 are the only shareholders. Respondent Nos. 2 to 6 are members of the Khandelwal family who are not related to the parties to the suit. 4. It was suggested by the learned Counsel appearing on behalf of the defendants and the respondents that the plaintiff had admitted that the impugned documents/transactions had been executed/entered into during the life time of the deceased. That however, is an incorrect presumption The proposed amendments, read as a whole, clearly indicate that the plaintiff does not admit the execution of the said documents. For instance in paragraph 8-B itself the plaintiff has stated that the agreements were allegedly ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo of the alienations were made in favour of the defendants by the deceased about a month before his death while the third alienation was made in favour of Mt. Zamani Begam, defendant 5, about ten years before the death of her husband and the donor was not the husband but the husband's father. For the reasons given above, I am of the opinion that it is not open to the Court to make an inquiry with respect to houses Nos. 2 to 5 in the present administration suit. 8. The judgment is of no assistance to the respondents. I have with respect differed from the view taken for reasons I shall give later. In any event in the facts of this case the judgment is in any event not only of no assistance to the respondents but against them. For even in this case, it has been held that it is always open to the Court to determine in an administration suit whether certain alienations were or were not in fact made by the deceased. This very question arises in the present case as well. I have earlier observed that the plaintiff has not admitted the execution of the documents pertaining to the transactions with respondent Nos. 2 to 6. This is clear from a reading of the pleading as a whole. The plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons with respondent Nos. 2 to 6 pertain to an alleged development agreement dated 5.2.2003 purportedly entered into between the deceased mother as the owner thereof, defendant No. 3 as a confirming party thereto and respondent Nos. 2 to 6 i.e. the proposed defendant Nos. 8 to 12. Reliance is also placed by the defendants on a power of attorney purportedly executed by the deceased mother in favour of respondent Nos. 2 to 6. Firstly it is important to note that, as aforesaid, the plaintiff has not admitted the execution of these documents. Moreover in respect of the transactions with respondent No. 1, various contentions have been urged regarding the manner and circumstances in which the deceased mother allegedly signed the documents including the power of attorney. Allegations and contentions have also been made in that regard regarding alleged collusion between defendant Nos. 3 to 5 and the advantage allegedly taken by them by reason of their proximity to the deceased parents. Similar allegations have been made and contentions raised in respect of the alleged transaction with respondent Nos. 2 to 6 and the documents allegedly executed in regard thereto viz. the alleged gift deed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to affect the residuary estate to which she was entitled to the same be set-aside and cancelled. The plaintiff also sought the usual orders for account and administration of the estate. One of the questions that arose was whether the Calcutta High Court had the right to order administration of the estate in respect of the properties outside its jurisdiction. Holding that it did the Privy Council also held as under :- The primary object of the suit was the administration of the estate of a deceased person resident within the jurisdiction, the principal executor being also resident there and the actual administration going on there. The High Court of Calcutta, in its ordinary jurisdiction, had right to order administration of this estate, and, as ancillary to such an order, to set aside deeds obtained by the fraud of the executor. Nor does the circumstance that a decree had been granted by the Court of the 24 Pergunnahs making a fraudulent award an order of Court protect that decree from the jurisdiction of the Calcutta Court when redressing that fraud. In like manner, their Lordships consider the Calcutta Court entitled, for the due administration of the estate, to set aside leases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased. The Division Bench held that the administrator no doubt could not have decided whether the assets belonged to the deceased or not as against the persons who are not parties to the suit. As the defendants however were parties to the suit the Division Bench held as under :- In this case the assets are in the possession of the defendant. There is no reason why the Court should not decide as between the parties to the suit whether those assets belonged to the estate of the deceased or not. If that is not done, the only result would be that another suit would have to be filed in which the contesting parties would be the same and the issues would be the same which have already been raised in this suit. It seems to me, therefore, that this is a case in which a preliminary decree has been passed but the carrying out of that preliminary decree has been obstructed by the defendant's contention, and that the Court has taken a wrong view in acceding to that contention, 19. Similarly in the case before me I find no reason why the Court in this suit should not decide whether the assets belonged to the estate of the deceased or not. To refuse the amendment would result in a rather protr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... II, page 1412 (7th Edition) and also in the Section 1, Appendix D, of the Code of Civil Procedure, that among the inquiries contemplated in the course of the administration the inquiry as to what immovable property the deceased was seized of or entitled to, at the time of his death is included. The question to my mind is not now whether the suit in respect of this property so far it relates to this property is a suit for land or not, but whether such an inquiry is appropriate in an administration suit. (emphasis supplied) The Division Bench thereafter referred to the judgment of the Privy Council and in respect thereof held as under :- The effect of these observations is sought to be got over by the consideration, that in that case, in fact, leave was obtained under Clause 12, and that the leave was obtainable because a part of the property was situate at Calcutta, and, secondly, it was really a question of fraud, and that could properly be dealt with as between the parties by the High Court at Calcutta. It is quite true that the judgment of the Court of Appeal at Calcutta in that case proceeded upon two grounds ; one of which was that leave in fact was obtained. That ground, howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the circumstances of each case. It may be more convenient in a given case to have it determined in a suit filed in the Court in whose jurisdiction the property is situated by the receiver in the administration suit or by any of the parties. In the present case property is situate at Kurla, and having regard to the circumstances of this case the determination of the question by this Court is at least as convenient as, if not more convenient than, having it determined by the Court at Thane. 24. The same caveat will apply generally as well. In a given case the Court may well decline to exercise its discretion to permit a challenge to transactions in the administration suit leaving the parties to adopt other remedies in accordance with law. In a case where the challenge to the title or right of a third party is based on allegations also against the persons such as heirs, executors, beneficiaries and trustees who are responsible for or parties to such transactions and who are also parties to the administration suit, the Court would more readily permit the challenge to such transactions in the administration suit itself. In such cases, a finding as to the conduct of such person and the c ..... 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