A suit for administration of estate and allotment of legacy is premature if the administration of the estate under the Will is not yet complete.

JUDGMENT :- This first miscellaneous appeal arises out of a judgment and order of remand passed by the 14th Additional District Judge, Alipore, South-24 Paraganas, Calcutta. A very interesting and important question of law is germane for the purpose of due consideration by this Court.

2. A suit has been instituted by the respondent/plaintiff in the Court of first instance for the purpose of administration, accounts and various other consequential relief in connection thereto. The reliefs as prayed in the suit are as follows :

(a) For due administration of the estate of the deceased fully described in the Schedule A and B to the plaint;

(b) For allotment of the A Schedule property in the share of the plaintiff as a legatee under the 1st Will and Testament of the deceased, Smt. Bijali Prova Basu and in respect of which probate has been obtained by the defendant, granted by the Ld. 3rd Court of the Addl. District Judge, at Alipore in O.S. No. 2 of 1977;

(c) For accounting in respect of the income and expenditure of the estate of the deceased, in the hand of the defendant, as an executor and also as administrator pendente lite;

(d) For a decree for Rs. 5,000/- which the plaintiff assessee for the present for accounting and for a further decree which might be found to be due to the plaintiff, after final accounting, if necessary, by appointment of an advocate commissioner, on payment of the additional amount of the Court fees;

(e) For a decree for permanent/mandatory injunction requiring the defendant to allow the plaintiff to take separate electric connection and instal a meter in his name in the proportion in the occupation of the plaintiff;

(f) For permanent injunction restraining the defendant from disturbing plaintiffs peaceful possession user and enjoyment;

(g) For appointment of Receiver;

(h) For injunction restraining the defendant from dealing with the suit properties in any way whatsoever and/or from making any additions and alterations;

(i) For all costs;

(j) For any relief or reliefs the plaintiff is entitled to under law and equity.

3. The appellant being the sole defendant therein took out an application under Order 7, Rule 11 of the Code of Civil Procedure for dismissal of the suit upon being served with the summons and copy of the plaint. The suit was dismissed on contest. The First Appellate Court set aside the order and sent the matter back on remand for fresh decision according to law. The ground for setting aside the order of dismissal of the suit is that since all the questions regarding administration of the properties of the deceased is covered by the Will, whether the administration has been completed by the executor or not or assent has been given or not can only be considered after having evidence on behalf of the parties. The First Appellate Court is of the opinion that the Learned Court of first instance was not justified in rejecting the plaint under Order 7, Rule 11 of the Code of Civil Procedure. It was further held by the First Appellate Court that the Learned Court-below (Court of first instance) instead of rejecting the plaint would have called for the defendant to file a written statement and after considering the evidences as will be adduced by the parties should have disposed of the suit on merit.

4. Before me, Mr. Jayanta Kumar Mitra, Learned Senior Counsel ably assisted by Mr. Malay Kumar Ghose. Learned Counsel appearing for the appellant and Mr. Asish Bagchi, Learned Counsel ably assisted by Mr. Amal Krishna Saha Learned Counsel appearing for the respondent extensively argued the matters on the point. However, before going into their arguments let me test the valuable parts of the plaint which is the root cause for making such application under Order 7, Rule 11 of the Code of Civil Procedure. The important part being paragraph 7 and part of paragraph 8 are set out hereunder :

"7. That inspire of the grant of probate by the Ld. Court in favour of the defendant and/or taking out of the probate by t