In a suit for administration of an estate, the Court has the jurisdiction to decide questions of title to immovable property as an incident of the administration of the estate.

( 1 ) THE 4th defendant is the appellant, the suit was instituted for administration and far taking of accounts of the movable and immovable properties and assets of late Kasireddi Somanna, the father of the plaintiff and the 1st defendant. The 2nd defendant is the husband of the 1st defendant, and the 3rd defendant is a tenant of some of the properties involved in the suit. The 4th defendant is the brother of late Somanna and the 5th defendant is the maternal grand father of both the plaintiff and the 1st defendant. The main question that arises for consideration in the appeal is whether in a suit for administration of the estate of late Somanna, the 4th defendant, who claims title to items 5 and 7 (1) of A Schedule and item 3 of B Schedule by reason of a family settlement with the plaintiff and the 1st defendant, is a proper party to the suit and whether the Court below was justified in granting a decree for recovery of possession of those items.

( 2 ) THE plaintiff stated in paragraphs 10 and 11 of the plaint that the mediation that was held on 13-10-1948 was not valid and binding and that the properties in the possession of the 4th defendant form part of the estate of late Somanna and were liable to be administered. The 4th defendant contended in paragraph 6 of the written statement that the plaintiff had no cause of action against film and that the suit was not maintainable. During the pendency of the suit, a compromise was entered into between the two sisters, the plaintiff and the 1st defendant. The only issues that were tried were issues 11 and 15, The Subordinate Judge held that in the suit for administration it was open to the plaintiff to seek recovery of possession from the 4th defendant who was in unlawful possession of those properties. On issue 15, he held that the 4th defendant had not established that there was a family arrangement which was binding on the plaintiff and the 1st defendant. In the result, he directed delivery of possession to the plaintiff. So far as mesne profits were concerned, he relegated the parties to file an application under Order XX, Rule 12, C. P. C. The 4th defendant has consequently preferred the appeal.

( 3 ) ORDER 20, Rule 13, C. P. C. deals with administration suits, it provides that the Court shall first pass a preliminary decree directing accounts and inquiries. In Appendix D, Form No. 17 prescribes the form of the preliminary decree in administration suit. Paragraph 10 of the form of decree is the relevant paragraph. It provides that an inquiry as to what immovable property the deceased was seized of or entitled to at the time of his death should he held. In Maliamedally Adamji v. Abdul Hussain, (1lr fl8 Bom 331 : (AIR 1924 Bom 313]), reference is made to Seton on Decrees, Vol. II, Page 1412 (7th Edition) as to the form of decree in an administration suit. The learned Judges pointed out that among the inquiries contemplated in the course of the administration, the inquiry as 1o what immovable property the deceased was seized of or entitled to at the time of his death is included, it is therefore clear to my mind that In a suit for administration, the Court has to necessarily ascertain what properties belonged to the deceased at the time of his death. As the 4th defendant claims title to items 5 and 7 (I) of Schedule ft and item 3 of B Schedule, the Court is entitled to ascertain whether the 4th defendant was in lawful possession of those properties.

( 4 ) THE decision of the Privy Council in Benode Behari Bose v. Nistarini Dassi, 33 ILR (CAL) 180 throws considerable light on the question arising for decision in the instant case. Lord Davey, delivering the judgment of the Privy Council, held that for the due administration of the estate, it was necessary to set aside the leases of land effected by the executor. The relevant observations are as follows : "the High Court of Calcutta, in its Ordinary Jurisdiction had a right to Order administration of this estate,