Mookerjee and Cuming, JJ.:— We are invited in this Rule to set aside an interlocutory order in an administration suit instituted by a creditor. The order in question calls upon the plaintiff to amend his plaint in the manner following, namely, to ascertain all the creditors of his debtor and the sums payable to them, to alter the valuation of the claim by the addition of the amount so ascertained, to the amount due to himself, and to pay court-fees ad valorem on the amended valuation. The plaint recites that the first defendant, Amarnath Bose, on the 4th April 1911 borrowed from the plaintiff a sum of Rs. 1,030 on a promissory note repayable on demand with interest at 18 per cent, per annum, that he has neither paid the principal nor the interest, and that on the 23rd September 1911, he executed a trust deed in favour of the second defendant, the Maharaja of Cossimbazar, whereby he transferred all his immoveable properties to the Trustee with direction to pay up all his creditors inclusive of the plaintiff. The plaint further recites that the Trustee has taken possession of the trust properties, but has not paid the plaintiff his dues, and so far as the plaintiff can ascertain, the Trustee has not paid up the other creditors of the first defendant. The plaintiff, accordingly, prays that the estate may be administered, that an account may be taken of the trust properties and their income, that a receiver may be appointed for the purpose, that the creditors may be ascertained by issue of public notice, and that their debts may be determined and paid. The plaintiff also asks for leave to conduct the suit on behalf of all the creditors with liberty to the other creditors to join as co-plaintiffs, should they so desire. The plaintiff alleges that the sum due to him on the date of the commencement of the suit was Rs. 1,540, and that the sums payable to the other creditors would exceed Rs. 5,000. He valued the suit for purposes of jurisdiction at Rs. 6,540, but paid court-fees on his own claim only, viz., Rs. 105 on a valuation of Rs. 1,540. He paid an additional sum of Rs. 10, apparently on the ground that the claim for administration could not be estimated at a money value within the meaning of Sched. II, Art. 17(vi) of the Court Fees Act, 1870. This suit was instituted on the 3rd April, 1914, and after it had advanced considerably, it came up for hearing on the 6th April, 1916, when a preliminary objection was taken on the question of court-fee's payable on the plaint. It may be stated that the first defendant, the debtor, had died meanwhile, and his infant heirs had been brought on the record on the 29th March, 1915. The Subordinate Judge took up the question of court-fees and made the order we are now called upon to revise. The question raised is one of first impression, and we have had the advantage of arguments not only on behalf of the plaintiff and the trustee defendant but also by the Senior Government Pleader who appeared on behalf of the Secretary of State as a question of the Revenues of the Crown was concerned.
It is plain that the Court Fees Act, 1870, does not in express terms provide for an administration suit. We must consequently consider the nature of an administration suit, which is explained in standard treatises on Equity Pleading and Chancery Practice. Lord Redesdale (Pleadings in Chancery, page 167) points out that, as early as 1766, in Corry v. Trist, some of a number of creditors, parties to a trust deed for payment of debts, were permitted to sue, on behalf of themselves and the other creditors named in the deed, for execution of the trust, although one of those creditors could not in that case have sued for a single demand without bringing the other creditors before the Court: Worraker v. Pryer(1). This seems to have been permitted purely to save expense and delay; if a great number of creditors, thus specially provided for by a deed of trust, were to be made plaintiffs, the suit would be liable to the hazard of frequent abatements; and if many were made defendants, the same inconvenience might happen and additional expense would unavoidably be incurred. Reference may, in this connection, be made to the decisions in Routh v. Kinder(2), Boddy v. Kent(3), Weld v. Bonham(4), Douglas v. Horsfall(5), Handford v. Storie(6), Peacock v. Monk(7), Newton v. The Earl of Egmont(8), Atherton v. Worth(9), Richardson v. Hastings(10), Smart v. Bradstock(11) and Powell v. Wright(12). Reference may also be made to an instructive exposition given by, Story in his work on Equity Pleadings (sections 99-103(a) and 216-218), where it is pointed out that the suit must be framed as on, behalf of all the creditors, as otherwise accounts may have to be taken de novo in separate suits by different claimants: Leigh v. Thomas(13). The suit is in essence for an account and application of the estate of the debtor for the satisfaction of the dues of all the creditors; the whole administration and settlement of the estate are assumed by the Court, the assets are marshalled, and the decree is made for the benefit of all the creditors. [See Civil Procedure Code, 1908, Order XX, rule 13, App. A. 41; App. D. 17-20; Good v. Blewitt, Adair v. New River Co. and Cockburn v. Thompson]. Creditors other than the plaintiff may come in under the decree and prove their debts and obtain satisfaction of their demands, equally with the plaintiff in the suit, and under such circumstances, they are treated as parties to the suit. If they decline so to come in, they will be excluded from the benefit of the decree, and yet they will, from necessity, be considered as bound by the acts done under the authority of the Court. [Hallett v. Hallett where Chancellor Walworth expounds the whole doctrine with great clearness.] But although such is the nature of the suit, it is well settled that where one creditor sues on behalf of himself and the others for administration of the estate of the debtor, the defendant may, at any time before judgment, have the action dismissed on payment of the plaintiff's debt and all the costs of the action: Pemberton v. Topham, Holden v. Kynaston and Manton v. Roe; and chis principle was recently applied in the case of Athalur Malakondiah v. Lahshminarasimhalu Chetty. An administration suit by a creditor is, consequently, an action for an account within, the meaning of section 7(iv)(f) of the Court Fees Act, and this was the view adopted in Khatija…Plaintiff v. Adam Husenally Vasi…Defendant .. In such a suit, the plaintiff is entitled to place his own valuation on the relief claimed: Ma Ma v. Ma Hmon. In the present instance, he value the relief at Rs. 1,540, and that valuation is neither arbitrary nor fictitious. We are not able to appreciate on what principle the plaintiff can be called upon to ascertain in advance all the creditors of his debtor and their dues, and value the suit accordingly. That in essence is the fundamental point for determination in the suit itself, and it is inconceivable how it can be decided by the plaintiff before trial. We do not feel pressed by the argument of the Senior Government Pleader that if the plaintiff is allowed to value the suit according to the relief he seeks, the Revenues of the Crown will suffer, because the other creditors of the debtor will obtain relief without payment of court-fees. There need, not, in our opinion, be room for such apprehension.
When, after the preliminary decree has been made and creditors have been invited to establish their claims, if any, against the debtor, each creditor, who puts forward a claim not already transformed into a judgment debt, may well be required to pay court-fees ad valorem on his application, as if it were a plaint in a suit for the recovery of the sum he claims. Such a procedure can be sustained on the analogy of section 11 of the Court Fees Act. The only real difficulty in connection with the matter is the question of jurisdiction. If the suit is, as we think it must be, treated as a suit for “account,” within the meaning of section 7(iv)(f) of the Court Fees Act, the valuation for purposes of jurisdiction must be identical, under section 8 of the Suits Valuation Act, with the valuation for purposes of court-fees. It is thus conceivable that the suit so valued on the basis of the claim of the plaintiff, may be instituted in the Court of the lowest grade of pecuniary jurisdiction, and a claim may thereafter be preferred by a creditor who could, in respect of his claim, institute a suit only in a Court of higher grade. The remedy in such a case would be the transfer of the suit at that stage from the Court of lowest grade to the Court competent to try a claim of enhanced value. This course was in fact adopted in a somewhat similar case: see the decision in Bhupendra Kumar Chakravarty v. Purna Chandra Bose. The view we take thus obviously avoids all anomaly and at the same time removes all hardship. In the case before us, there is in reality no difficulty, actual or potential. Since the institution of the suit, several creditors of the first defendant have put forward claims of a value such as can be tried only by subordinate Judges. The suit is, therefore, properly triable by a subordinate Judge, and as the aggregate value of the claims already put forward exceeds ten thousand rupees, the appeal against the decree will lie, not to the District Judge but to this Court. We may here point out that the claimants who subsequently appeared, should not have been formally joined as plaintiffs, specially as some of them are said to have all ready obtained decrees on their claims, unless, indeed, it was alleged and proved that their interests would be in serious jeopardy if the plaintiff had the conduct of the proceedings: Vassonji Tricumji & Co. v. Esmailbhai Shivji. The proper course would have been to allow them an opportunity to prove their claims and to participate in the distribution of the assets of the estate. Our conclusion is that it was not obligatory upon the plaintiff to pay court-fees on a higher valuation, than the amount claimed by him, and that the plaint is not open to objection on the ground that it is insufficiently stamped.
The result is that this Rule is made absolute and the Order of the Court below discharged. The records will be returned to the Subordinate Judge so that he may proceed with the trial of the suit on the merits on as early a date as practicable. The petitioner will have his costs of this Rule from the estate of his debtor in the hand of the Trustee-defendant.
O.M
Rule absolute.