In an administration suit, the court can consider the validity of alienations made by the heirs of the deceased and include the alienee as a proper party to the suit.

1. The counter-petitioner in the court below, the Ollur Bank Ltd., Ollur, is the petitioner in both these revision petitions. The plaintiff, the Little Flower Bank Ltd., Ollur, is a creditor of one Antony who is dead. The suit was instituted on behalf of the creditors of Antony for administering his estate. After the death of Antony his heirs alienated some of his properties in favour of the Ollur Bank Ltd., for amounts due to that Bank. Those properties were not included in the plaint schedule. Neither was the Ollur Bank made a defendant. After preliminary decree was passed in the case the plaintiff moved the court below, by C.M.P. Nos. 1126 and 1127 of 1951 for impleading the Ollur Bank as an additional party to the suit and for including the properties alienated in favour of that Bank among the assets of Antony. It was alleged that the alienation was a fraudulent preference and that it was therefore invalid. The Ollur Bank opposed these petitions. The main objection was that the alienation in favour of the Bank could not be impeached in a suit brought for administering the estate of the deceased and that the remedy, if any, of a creditor of the deceased was to institute a separate suit for setting aside the alienation. It was also contended that the petition was belated. The Court below held that the question of the validity of the alienation of the properties of Antony by his heirs could be gone into in the administration suit. Since there was some delay in making the applications the plaintiff was ordered to pay Rs. 25 as costs.

2. It was argued on behalf of the revision petitioner that in a suit for administering the estate of a deceased person the plaintiff is not entitled to call in question alienations effected in respect of his properties and that such alienations have to be set aside by means of separate suits brought for the purpose. The argument is that the function of the Court administering an estate is only to administer the estate as it is. Learned counsel relied on the rulings in Abkyan Sin v. Yeo Ah Gwan (AIR 1937 Rang. 497), Zamani Begam v. Fazal-Ul-Rehman 1943 Lah. 241 and Shafi-Ul-Nisa v. Fazal-Ul-Nisa (1950 East Punjab 276). I do not think that these decisions will apply to the facts of this case. In 1937 Rangoon 497 the suit was brought by the heirs of a deceased person for administering his estate. It was really a suit for

account. It was held that in such a suit the title of persons who claimed properties adversely to the estate could not be gone into and that the proper means of recovering a property belonging to the estate that had been wrongfully alienated was a regular suit brought for the purpose. The present suit is of an enquiry different nature. This is a suit brought on behalf of the creditors of the deceased for the purpose of collecting and conserving his assets so that they may be available for distribution among them in satisfaction of their claims. In 1943 Lahore 241 the alienations sought to be impeached in the administration suit were those of the deceased person himself. It was held in that case that although it was open to the court to determine in the suit whether certain alienations were or were not in fact made by the deceased the court could not in such a suit determine the validity of alienations made by him. In this suit the alienation that is impeached is not that of the deceased person but of his heirs. In the third case, viz., 1950 East Punjab 276 Kapur, J. observed:

"In an administration suit where a man dies intestate the Court takes upon itself the function of an executor or an administrator and administers the estate of the deceased, but it is the estate of the deceased which is to be administered and, therefore, if the deceased leaves no estate either because he never had it or because he has transferred the whole of his property to somebody else, there is no estate which the court can administer. The suit in its essence is one for account and for application