PRATIVA BOSE versus KUMAR RUPENDRA DEB RAIKAT & ORS.

RAGHUBAR DAYAL J.-This Appeal, by special leave, is directed against the judgment of the High Court of Calcutta, and rises in the following circumstances.

p. 84

Raja Prasanna Deb Rajkot, the Raja of the impartible estate known as 'the Baikunthapur Raj Estate', died intestate on December 4, 1946, leaving considerable properties, immovable and movable. Ashrumati, the widow, claiming as the sole heir, took possession of the property, except the southern block of the palace at Jalpaiguri and a small quantity of land attached to the palace. On October 31, 1947, she got mutation of her name over the property despite applications for mutation by three other persons. Kumar Rupendra Narayan instituted a title suit, Suit No. 40 of 1947, in the Court of the Subordinate Judge; Jalpaiguri, on August 7, 1947, against Ashrumati and other claimants for the declaration of his title as the sole heir of and successor to his father Raja Prasanna Deb Raikat and for the recovery of possession of the estate left by the Raja. According to him, the Raja left three sons Kumar Ruprendra Deb Rajkot and his younger brothers Kumar Shiba Prasad Deb and Kumar Deba Prasad Deb, a daughter Prativa Bose and two widows Ashrumati, mother of Prativa Bose and Renchi Devi, mother of the three sons. The suit was transferred to the High Court under cl. 13 of the Letters Patent, 1865, and was numbered as Extraordinary Suit No. 2 of 1948. Two other title suits No. 2347 of 1950 and 3619 of 1951 were also filed in the High Court in its Original Civil Jurisdiction by Guru Charan Deb and Jitendra Deb. In July 1952, applications for the appointment of a receiver and injunction order were rejected by the High Court. On Ashrumati' s death on J anuary 5, 1954, Prativa Bose was substituted in her place in these suits.

p. 84

On March 31, 1954, Kumar Rupel)dra Deb applied to the District Judge of Jalpaiguri, praying that good and sufficient security be taken from Prativa Bose under the provisions of s. IV of the Bengal Wills & Intestacy Regulation V of 1799, hereinafter called the Regulation. This app1ication was opposed on grounds that it was presented ai ter the expiry of the period of limitation, that the provisions of s. IV or the Regulation did not apply to a case where a single heir had been left by the deceased, that the application was barred by the principle of waiver and that the District Judge had no jurisdiction to entertain it as the suit was at the time pending in the High Court. The District Judge held that the application was barred by time in view of the provisions of Art. 181 of the I Schedule to the Indian Limitation Act and that the provisions of s. IV of the Regulation applied only to cases where the deceased had left several heirs and therefore dismissed the application.

p. 85

Kumar Rupendra Deb went in revision to the High Court. The High Court found in his favour on both the questions regarding limitation and regarding the applicability of the provisions of s. IV of the Regulation to the facts of the case, and accordingly, allowed the revision application and ordered that the District Judge should ex<crcise his special jurisdiction under s. IV of the Regular.on and take sufficient security from the opposite party viz., Prativa Bose. It is against this order that this appeal has been presented by Prativa Bose after obtaining special leave from this Court.

p. 85

Learned counsel for the appellant has urged the following points:

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1. Section III and not s. IV of the Regulation applies to the facts of the case.

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2. The application for the taking of security from the party in possession is made in the suit and, consequently it is the Court where the suit is pending which has the jurisdiction to entertain that application.

p. 85

3. The application is barred by the principles analogous to res judicata on the ground that the High Court has already gone into the question of the interim protection of the estate.

p. 85

4. If such an application be considered to be an inde-

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J 1 . " pendent application and not an application in the suit, it is barred by limitation under the provisions of Art. 181 of the First Schedule to the Limitation Act.

p. 86

5. The Regulation is impliedly repealed by the provisions of the Code of Civil Procedure and the Indian Succession Act, 1925.

p. 86

6. The High Court had no jurisdiction to enterain a revision against the order of the District Judge rejecting the application praying for the demand of security from Ashrumati Devi and therefore could not interfere with that order.

p. 86

Before dealing with these points, we would like to refer to the relevant provisions of the Regulation. Its sections III and IV, as they stood originally, are set out below:

p. 86

"III. In case of a Hindoo, Mussulman, or other person subject to the jurisdiction of the Zillah or City Courts, dying intestate, but leaving a son or other heir, who by the laws· of the country may be entitled to succeed to the whole •'state of the deceased such heir, if of age and competent to take the possession and management of the estate, or if under age or incompetent, and not under the superintendence of the Court of Wards, his guardian, or nearest of kin, who by special appointment or by the law and usage of the country may be authorised to act for him, is not required to apply to the Courts of justice for permission to take possession of the estate of the deceased as far as the same can be done without violence ; and the courts of justice are restricted from interference in such cases, except a regular complaint be preferred, when they are to proceed thereupon according to the general Regulations.

p. 86

IV. If there be more heirs than one to the estate of a person dying intestate, and they can agree amongst themselves in the appointment of a common manager, they are at liberty to take possession, and the courts of justice are restricted from interference, without a regular complaint, as in the case of a single heir ; but if the right of succession to the estate be disputed between several claimants, one or more of whom may have taken possession, the judge, on a regular suit being preferred by the party out of possession, shall take good and sufficient security from the party or parties in possession for his or their compliance with the judgment that may be passed in the suit ; or in default of such security being given within a reasonable period, may give possession, until the suit may be determined, to the other claimant or claimants who may be able to give such security, declaring at the same time, that such possession is not in any degree to affect the right of property at issue between the parties, but to be considered merely as an administration to the estate for the benefit of the heirs, who may, on investigation, be found entitled to succeed thereto."

pp. 86–87

Certain portions of s. III were repealed by Act XL of 1858 and Act XVI of 1874 in matters which do not affect the qtiestion before us. In 1903, the expression 'when they are to proceed thereupon according to the general Regulations' was repealed. This does not make much difference as thereafter the complaint was to be proceeded with according to the procedure laid down in the Code of Civil Procedure for the trial of suits.

p. 87

Ashrumati claims title to the estate as the sole heir of the deceased Raja. Kumar Rupendra Narayan, the plaintiff in the title suit, also claims title to the property as the sole heir of the Raja. Each other claimant to the title, claims as sole heir. In the circumstances, the contention for the appellant is that it is s. III which is applicable to the facts of this case and not s. IV. There is no dispute that the former deals with a case where a single . heir is entitled to succeed to the whole estate of the deceased and the latter deals with a case when there be more heirs than one to the estate of the person dying intestate. It is the later part of s. IV which provides for the judge, on a regular suit being preferred by the party out of possession, to take security from the party or parties in possession of the estate. The real contention therefore is that the Judge can exercise this power only when there be more heirs than one to the estate and there be a dispute about the right of succession and that this provision cannot apply to the case falling under s. III where the dispute, if any, is be'Ween the rival claimants to the entire property on the ground that each of them is entitled to the entire estate as. the sole heir. The High Court considered the contention aud did not accept it, as it did not see any good reason why the legislating authority should have made any distinction between cases of disputes arising where a person had· died intestate leaving a single heir and where the person died intestate leaving,several heirs, as the words used in the two sections did not indicate any such intention, as ss. III and IV (first part) do not contemplate cases of dispute about succession and as the fact that the provision about taking of security appears in the later part of s. IV, was no reason to limit the applicability of that provision to what had gone before in that very section. In support of the last_ view, reliance was placed on the observations of Mellish L. J., in Cohen v. S.E. Railway.(').

pp. 87–88

To appreciate the contention for the appellant, it is necessary to consider the entire object of making the Regulation. The title of the Regulation states :

p. 88

"A Regulation to limit the interference of the Zillah and City Courts of Dewanny Adawlut in the execution of wills and administration to the estates of

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persons dying intestate." The reason for limiting such interference is given in s. I which indicates that the Regulation was passed to remove doubts which were entertained with respect to the extent up to which and the manner in which the judges of the Zillah and City Courts of Dewanny Adawlut in the provinces of Bengal, Behar, Orissa and Benares, were authorised to i'nterfere in cases where the inhabitants of those provinces had left wills at their decease and appointed executors to carry the same into effect or who died intestate leaving an estate, real or personal, and also to apply to those cases as far as possible the principle prescribed in section XV of Regulation IV of 1793 to the effect that in suits regarding succession and inheritance the Mahomedan laws with respect to Mahomendans and the Hindoo laws with regard to Hindoos be the general rules for the guidance of the judges. It appears therefore that prior to the passing of this regulation, these Courts (1877) 2 E D. 253, 260. did interfere with such cases and it was to limit and define those powers of interference that the Regulation was passed. The Regulation, therefore, should be construed strictly a~ a piece of restrictive legislation.

pp. 88–89

It also appears necessary to have an idea of what sort of interference was being made by these Courts. We have not been referred to anything in particular in this connection. Section II provides that executors appointed under the will of the deceased can take charge of the estate and proceed in the execution of their trust without any application to the judge of the Dewanny Adawlut or' any other officer of Government for his sanction. This gives some idea about the part used to be played by executive officers in this regard. Some rcf~rence to the procedure adopted in the time of the Indian rulers for investing the successor of a landholder is found in Mr. Shore's Minute on the rights of zamindars and talookdars, recorded in the proceedings of Government in the Revenue Department dated April 2, 1788, printed at p. 228 of Elementary Analysis of the Laws and Regulations (enacted by the Governor-General in Council)' by Harington, Volume III. The actual procedure on investing the landholder is given in appendix No. 9 to this note, printed at p. 275 of the same volume. An extract from the first paragraph quoted below, indicates that the heir of the deceased zamindar had to get the permission of the State authorities before assuming the management of the affairs of the zamindary :

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'Upon the demise of a zamindar, his heir or heiress transmitted an account of the event, in a petition to the dewan of the soobah, and the roy-royan ; or if landholders of the first rank, to the soobahdar himself ; with letters to all the principal men of the court, soliciting their protection. To an heir, or heiress who paid a large revenue to the state, the soobahdar returned answers of condolence ; accompanied with an honorary dress to the former ; and with a present of shawls to the latter. Letters to a similar purport were transmitted by the dewan and the roy-royan. After performing the funeral rites of the deceased, the heir, if of age, was presented to the soobahdar by the de-

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wan and the roy-royan; and after receiving the beetcl 7-2 S C lndia/64 leaf, and an honorary qress, was permitted to assume the management of the affairs of his zamindary."

pp. 89–90

Harington described the zamindar to be a landholder. of a peculiar description, not definable by any single term and said that he was allowed to succeed to the zamindary by inheritance and yet, in general, required to take out a renewal of his title from the sovereign or his representative on payment of a peshkush, or fine of investiture to the emperor, and a nuzranah or present to his pn:>vincial delegate, the Nazim. This is said in the remarks submitt~d by him to Lord Cornwallis in 1799 on Mr. Law's plan of settlement, and has been quoted at p. 400.

p. 90

At p. 287 is given the form of the munchalka which the heir accepted by the State had to execute.. Appendix 10 at p. 289 gives a sanad which used to be issued to the zamindar. These various steps appear to be taken in the Mughal period in view of the theory that the sovereign ruler was the sole virtual proprietor of the soil.

p. 90

It might have been that when the East India Company got sovereignty over these provinces or parts thereof, heirs of zamindars and possibly of other men of property, might have approached courts as well either for obtaining such permission or for interference with the person who had taken possession on the basis of such permission from some officer of the company. Regulation V of 1799 was passed to provide that the Courts were not to interfere in these matters on considerations of general adminstrative convenience, but could interfere only judicially when they were moved for adjudicating the title of the disputants to succession to the estate.

p. 90

Section II, as already mted, provided for the executors to take charge of the estate of the deceased who had left a will and thereby appointed executors to carry it into effect and further provided :

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"and the courts of justice are prohibited to interfere in such cases, except on a regular complaint against the executors for a breach of trust or otherwise. when they are to take cognizance of such complaint in common with all others of a civil nature, under the general rule contained in Section VIII, of Regulation III, 1793 and proceed thereupon according to the Regulatioru, taking the opiillon of their law officers upon any legal exception to the executors, as well as upon the provision to be made for the administration of the estate in the event of the appointed executor being set aside, and generally upon all points of law that may occur; with respect to which the judge is to be guided by the law of the parties as expounded by his law officers, subject to any modifications enacted by the Governor-General in Council, in the form prescribed by Regulation XLI, 1793."

pp. 90–91

Similarly, s. III provided that when the deceased died intestate, leaving a son or other heir, who by the laws of the country be entitled to succeed to the whole estate of the deceased, such heir, if of age and competent to take the possession and management of the estate, was not required to apply to the courts of justice for permission, and could take possession without obtaining the permission from the Courts of justice, if it could be done without violence. It enjoined upon the courts of justice not to interfere in such cases except when a regular complaint be preferred and then too they were to proceed according to the general Regulations till 1903. Thereafter the proceedings were governed by the Civil Procedure Code. This meant that the person who claimed to be so entitled, could take possession without obtaining any permission, if he could ·do so without violence and that his rival claimant, if any, had to move the courts by means of a regular complaint and that it was then that the courts of justice would consider the dispute between the person who had taken possession and the other claimants. It laid down the entire procedure which the courts of justice were to follow in dealing with the disputes between claimants, each claiming succession to the entire estate. It is a complete code of procedure in that regard.

p. 91

Similarly, s. IV is a complete code with respect to the case in which the deceased died intestate and left more heirs than one. If those heirs agreed amongst themselves in the appointment of a common manager,_ that is to say, agreed to the common management of the estate which remained undivided and to one person managing the entire estate, they were at liberty, in view of the first part of the sectioo, to take possession of the estate and the courts of justice were prohibited from any interference without a regular complaint as in the case of a single heir.

pp. 91–92

The provisions of Regulation XI of 1793 also throw some light with respect to the provisions of the first part of s. IV of Regulation V of 1799. This Regulation was made for removing certain restrictions on the operation of Hindu and Mahomadan Law with reference to inheritance of landed property subject to the payment of revenue to Government. Section II provides that if any zamindar, independent talukdar or other actual proprietor of land shall die without a will or without having declared by a writing or verbally to whom and in what manner his or her landed property is to devolv€ after his or her demise, and shall leave two or more heirs, who, by the Mahomadan or Hindu law may be respectively entitled to succeed to a portion of the landed property of the deceased, such persons shall succeed to the shares to which they may be so entitled. The Regulation does not deal with the case of a deceased dying intestate leaving a single heir as there was nothing to provide with respect to the extent of the estate he is to succeed. He succeeded to the entire estate. Section III provides that in the cases referred to in s. II, the several persons succeeding to the estate would be at liberty, if they so preferred, to hold the property as a joint undivided estate and that if some or all of them desired to have separate possession of their respective shares, a division of the estate was to be made m the maner laid down m Regulation XXV of 1793, and that if there be more than two sharers and any two or more of them be demous of holding their shares as a joint undivided estate, they would be permitted to get their shares united. Thus, it would be seen that this section covers the case of persons who would like to have their shares continue as a joint undivided estate and also of those who would like to have their shares separate. Section IV then provides that in the case of those who would like to hold the property as a joint undivided estate, a manager for their joint estate was to be appointed under the rules contained in ss. XXIII to XXVI of Regulalation VIII of 1793. Thus the provisions for a common manager of persons holding their estate as a joint undivided estate is made in this Regulation XI of 1793. The first part of s. IV of Regulation V of 1799 is in consonance with this provision as it provides that if the heirs who are more than one, in principle agree to have a common manager, they require no permission for taking possession of the property.

pp. 92–93

When a complaint is made by any one of the heirs or persons claiming to be heirs on account of the disagreement among them to act unitedly through a common manager, the Court has to deal with the dispute according to the general Regulations prescribing the procedure to be followed by Courts, just as the Courts had to do in the case coming under s. III, when the deceased had left a single heir. In addition to the procedure so provided under the general Regulations, one special provision was further made for the Courts to follow when the Court was moved for settling the disputes between several claimants to the estate and that special procedure is that on a regular suit being preferred, the Court is to take good and sufficient security from the party in possession for his complying with the judgment that be passed in the suit.

p. 93

It may appear rather extraordinary that on the mere institution of a regular suit, the court should invariably call upon the defendant in possession of the property to furnish sufficient security for his complying with the eventual judgment in the suit. It might have been necessary in those days, as we find that it was considered necessary then for the defendant to furnish security for his appearance in court if he did not accompany the officer serving the summons for his appearing in person before the court. Section V of Regulation IV of 1793 provided that the Court was to issue a summons to the defendent requiring him either to accompany the officer deputed to serve the summons to appear in person before the Court or to deliver to such officer gcxXl and sufficient security to appear and answer upon complaint on the day appointed either in person or by vakil. Order XXXVIII of the present Code of Civil Procedure provides for demanding security for appearance in court and for the purpose of securing compliance with the judgment in certain specified circumstances only.

p. 93

Sections III and IV, thus cover the entire possibilities about the heirs of the deceased. The former deals when there be only one heir and the latter when there be more heirs than one. The reason for the special provision in the second part of s. IV and for a distinction being made in the procedure to be followed in the two cases, lies in the fact that when there be more heirs than one and they are not in agreement about common management of the entire estate, they are not permitted by the provisions of s. IV to take possession of the estate singly or by some of them jointly. An agreement about all the claimants being heirs and about their respective shares, in the absence of an agreement about common management, does not entitle them to take possession of the estate. In case of di5ilgreement about common management, the original procedure, whatever it might have been under the law prevalent prior to the passing of this Regulation, applied. They had to take permission, be it of some executive officer or of the court of justice. For such cases, this Regulation V of 1799 made no provision. It is only when such a dispute between the various claimants is brought before the court that it gets seized of the matter and, on a regular suit being preferred, the first step it had to take suo motu was to take good and sufficient security from the party in possession who had obviously taken possession in defiance of the provisions of the first part of s. IV. On the other hand, in the case of the deceased leaving a single . heir, s. III permits the heir to take possession of the estate peacefully and he takes possession lawfully. Any rival claimant, challenging his title to the · property has therefore to establish his case in the court of law according to the procedure laid down. The reason for the special provision in the latter pait of s. IV is therefore that one or more claimants to the estate take possession not in accordance with law but against the provision of law. It would have been unreasonable for the legislature to provide in s. III that the person claiming to be the single heir of the deceased, dying intestate, and taking possession of the estate in accordance with the provisions of that section, be called upon to furnish security and in case of default to run the risk of making over possession to another dairnarit disputing his title to the entire estate. It would be equally unreasonable if the second part of s. IV be so construed as to make the peaceful possession of a person claiming title to the entire estate as a single heir in jeopardy merely because another person disputes his right.

pp. 94–95

We make it clear here that the word 'complaint' used in tliis Regulation really refers to what we at present call a plaint in a civil suit. Regulation III of 1793 defined the jurisdiction of courts of Dewanny Adawlut established in the zillahs and the cities specified in s. II of that Regulation for the trial of civil suits in the first instance. This is clear from s. I. Section III provides that each zillah and city court was to be superintended by one judge alone. These courts were empowered by s. VIII

p. 95

take cognizance of all suits and complaints respecting, inter alia, the succession or right to real or personal property. Section XVIII prohibits t11ese courts from taking cognizance of any matter of a criminal nature except proceedings for contempt and perjuries committed in court. Section XIV uses the word 'complaint' with reference to one whom we now call a 'plaintiff'. These provisions indicate that 'complaint' in the Regulations refers to a plaint and not to what we now call a complaint in a criminal case. This is further made clear by the provisions of s. 2 of Regulation IV of 1793 which deals with the procedure to be followed in regard to the receipt, trial and decision of suits or complaints cognizable in the courts of Dewanny Adawlut established in the various zillahs. Section II provides that no complaint is to be received but from the plaintiff nor any answer to a complaint but from a defendant or their respective vakils duly empowered.

p. 95

We are therefore of opinion that each of the sections II, III and IV of Regulation V of 1799 is a complete code for dealing with different · situations. Section II deals with the case when the deceased dies leaving a will under which an executor is appointed to manage the property. Section III deals with the case when the deceased dies intestate leaving a single heir and s. IV to cases when the deceased dies intestate leaving more than one heir.

p. 95

This view finds support from the fact that when extending the provisions of this Regulation to other Provinces. all the three sections viz., II, III and IV have not been invariably extended. Only ss. IV, V, VI and_ VII and not ss. II and III were extended to the Central Provinces by the Central Provinces Laws Act XX of 1876.

pp. 95–96

It is not correct as observed by the High Court, that s. III and first part of s. IV of the Regulation do not cover the cases where each of several persons claims to be the single heir and where out of several persons some claim to be the heirs while some others also claim to be the heirs. These sections contemplate those cases when they provide for the interference of courts on complaints by other persons against the person in possession. Such complaints can be only when they are by such claimants to the estate or part of it whose claims are not accepted by the others claiming title to the estate. The effect of the expression 'as in the case of a single heir' at the end of the first part of s. IV is that the restriction on the interference of a court of justice in the case where the deceased leaves more heirs than one extends upto the same stage as has been described in s. III which deals with the case of a single heir, that is to say, the interference is restricted up to the stage a complaint is filed and that the interference subsequent to it would be that in accordance with the procedure laid down in the General Regulations. This expression cannot be interpreted to make the second part of s. IV operative in the case coming under s. III.

p. 96

The observations of Mellish L.J., in Cohen v. S.E. Railway(') are not of much help in order to conshue the scope of the second part of s. IV in regard to its applicability to cases coming under s. III. Those observations were made in a different context about the provisions of the Acts there under consideration. These observations are :

p. 96

"Then the next question is whether 31 and 32 Viet. C. 119, s. 16, includes that provision of the Railway and Canal Traffic Act, so as to apply it not only to the carriage by railway, but to carriage by steamer. It seems to me that this is a still plainer question, except for the doubt thrown upon it by the Irish case. But the words are so clear that there can be no doubt about it : 'The provisions of the Railway and Canal (1877) 2 E D 253. Traffic Act, 1854, so far as the mne are applicable, shall extend to the steam vessels and to the traffic carried on thereby'. Those words in their plain natural meaning incorporate s. 7 .as well as every other section of the Act. Then why should it be excepted? The only reason is that this clause is not contained in a separate section by itself, but is contained at the end of section 16 ; and therefore it is said that it is to be confined to the subject matter to which the previous parts of section 16 relate. I am not aware that there is any such rule of construction of an Act of Parliament. If some absurdity or inconvenience followed from holding it to apply to the whole Act, it might be reasonable to confine the incorporation to clauses relating to some particular subjectmatter, but if there is no inconvenience from holding that the incorporation includes section 7 as well as the

pp. 96–97

other sections, we ought to hold that it does." The expressions to be construed in that case were not as a proviso or exception to what had gone before but formed an independent enactment. They were not separately numbered as a section. In s. IV of the Regulation, the second part commences with the word 'but' and thereby indicating that it is by way of an exception to what is enacted in the first part-and that it is open to the courts to interfere in the manner prescribed in the second part where the deceased had left more heirs than one to the estate.

p. 97

Section XIX of Regulation XL of 1793 enacted for forming into a regular code all regulations, provided that one part of a regulation has to be construed by another so that the whole might stand. This provision simply means that the provisions of a Regulation should be so construed that they be harmonized in case there be some apparent inconsistency between the different provisions of the Regulation. This implies that in . the absence of such necessity for harmonizing the provisions of different provisions of the Regulation, each provision has to be taken as complete by itself and to mean what it states. This directly goes against the applicability of the observations of Mellish L.J. in Cohen'J Cag( to the con- 1877) 2 E. a. D. 253, 260.

p. 97

struction of the second part of s. IV with respect to its applicability to s. III. We do not find the provisions of s. III and s. IV to be inconsistent in any manner and to necessitate their being construed together. In fact, we have already indicated that there had been good reason for providing a special procedure in addition to the procedure to be followed in the trial of suits on regular complaints in cases in which the deceased died intestate and left more than one heir.

p. 98

We are therefore of opinion that the second part of s. IV does not apply to the case where the deceased dies intestate leaving only one heir entitled to succeed to the entire estate, a case which is covered by s. III of this Regulation.

p. 98

In this view of the matter, it is not necessary to decide the other contentions raised in this case. We, therefore allow the appeal, set aside the order of the Court below and dismiss the application of the respondents presented to the District Judge under s. IV of Regulation V of 1799. We order that the respondents will pay the costs of the appellant throughout.

p. 98

Before parting with the case we would like to draw attention of Government to these provisions which appear to be somewhat out of date and which need to be repealed. Ample power is to be found in the Indian Succession Act and the Code of Civil Procedure to safeguard such rights and there is hardly any need for a provision which was passed to remove certain doubts created by the Regulation of 1793.

p. 98

ORDER OF· COURT

p. 98

In view of the opinion of the majority the appeal is allowed with costs throughout.

p. 98

Appeal allowed.

p. 98