( 1 ) * * * *

( 2 ) SO far as the contention No. 2 and contention No. 1 are concer- ned we are of the opinion that they are wellfounded. The learned Civil Judge has not at all appreciated the nature of the suit. Having regard to the frame of the suit the averments made therein and the reliefs prayed it is clear that the suit was a suit for administration of the estate of deceased Fidaali. The learned Civil Judge has treated the said suit as if it was a partition suit and the plaintiff was held liable to pay court-fees not only on the shares which he claimed in the partition but also on the reliefs of cancellation of the gift deed. In the first instance there is a clear and a marked distinction between a partition suit and an administra- tion suit. In an administration suit it is always claimed that the estate of the deceased may be collected from wherever it is that the debts due by the deceased be ascertained and the outstanding dues to the decea- sed may also be ascertained and collected and the parties entitled to a share in the estate after payment of the debts be ascertained with their respective shares and that eventually whatever remains out of the estate after payment of the debts due by the deceased might be distributed among the heirs or persons entitled thereto in proportion to the shares that they might have a right to (vide KADIR HUSSIAN ROWTHER V. JAMILA BI A. I. R. 1943 MAD. 242 AND SABASTIAN ANTONIO TEXEIRA AND ORS. V. RODOLF MINQUEL TEXEIRA AND ORS. A. I. R. 1962 BOM. 4 ). The administration suit for the pur- pose of court-fees is classified as suit for accounts. A Division Bench of the Bombay High Court in MAGANLAL CHUNILAL CHOKSHI V. KANCHANLAL MANCHHARAM (1936) 38 BOM. L. R. 754 has held that the suit with which it was concerned was one for administration inspite of the fact that the final decree might award possession of immovable properties and that the suit was properly valued for the purposes of Court- fees under sec. 7 (iv) (f) of the Court-fees Act 1870 It further held that the other relief claimed in the suit before it which was an administration suit resolved itself into taking of accounts and was only incidental to the chief item of relief viz. administration of the estate and that sec. 17 of the Court-fees Act 1870 did not apply.

( 3 ) IN AHMEDBHAI KADABHAI V. BADRIDDIN A. I. R. 1946 BOMBAY 356 the Single Judge of the Bombay High Court held that an administration suit is a suit for accounts governed by sec. 7 (iv) (f) of the Court-fees Act 1870 In view of this legal position therefore the plaintiff had to affix Court-fees on his present administration suit as if it was a suit for accounts under sec. 6 (iv) (i) of the Bombay Court-fees Act. He had therefore to affix Court-fees according to the amount on which the reliefs sought as valued in the plaint.

( 4 ) THIS takes us to the first contention of Mr. Kaji learned Advocate for the appellant-plaintiff that the decree which has been granted by the learned Civil Judge was as if the suit was merely a partition suit. It appears that the learned Civil Judge has completely overlooked the nature of the suit which as we have stated above a suit for the administration of the estate of the deceased Fidaali. Having regard to the frame of the suit and the averments made and the reliefs prayed for therein the suit of the plaintiff is in effect and substance an administration suit and a preliminary decree which is to be passed in such a suit is in form No. 17 of Appen- dix-D of the Civil Procedure Code. It is really surprising how the learned Civil Judge overlooked this elementary aspect of the question. We there- fore hold that the decree should be in the form No. 17 of Appendix-D of the Civil Procedure Code and we direct that a decree be drawn in Form No. 17 in the present administration suit filed by the plaintiff in his capacity as a creditor as well as heir. We also direct that though the plaintiff has claimed 14/88th as his share in the estat