TMI Blog1963 (5) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... hi was a lady belonging to the Lepcha tribe and the respondent Rupendra alleged that the Raja had married her according to the Gandharba form. The suit was contested by Rani Asrumati and the agnatic relations who denied that there had been any marriage between the Raja and the mother of the respondent Rupendra. The suit was transferred to the High Court at Calcutta by an order made on April 12, 1949 under clause 13 of its Letters Patent. The respondent Rupendra made an application to the High Court in that suit for appointment of a receiver but it was dismissed on July 29, 1952. There was an appeal from this order but the records do not show that it succeeded. It appears that two agnatic relations, namely, Kumar Guru Charan and Kumar Jitendra filed suits in the High Court at Calcutta each claiming title to the estate as the sloe heir of the deceased Raja. All these suits are still pending. 3. On January 5, 1954, Rani Asrumati died thereupon the appellant Prativa Bose took possession of the estate claiming title to it. Since than she has been and still is in possession. 4. On March 31, 1954, the respondent Rupendra filed an application under s. 4 of the Bengal Regulation V of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdian 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 Court 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 Court of Justice are restricted from interference in such cases, except a regular complaint be preferred. S. 4 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make an order : see The Oriental Bank Corporation v. J. A. Charriol I.L.R(1886) Cal. 652 and Sohan v. Khalak Singh I.L.R. (1891) all. 78. The present case cannot, therefore, be decided on the aground that the application by the respondent Rupendra had been made beyond the time prescribed by Art. 181. 8. It also seems to us that Art. 181 of the Limitation Act is inapplicable to the present case for another reason. We will now assume that s. 4 of the Regulation requires an application to the Judge before the order mentioned in it can be made. Now Art. 181 deals with applications for which no period of limitation is provided either in the Limitation Act or s. 48 of the Code of Civil Procedure. The preponderating view adopted by the High Court in regard to this article and its corresponding provision in the earlier Limitation Act of 1877 is that applications mentioned in them are applications under the Code of Civil Procedure only. The reason for this view is that as the article is in general terms, it must be constructed ejusdem generis and so construed it must be application only to applications under the Code for all the other articles in the Act providing periods of limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been in existence before the Civil Procedure Codes had been enacted. We therefore, think that even if s. 4 of the Regulation required an application, Art. 181 of the Limitation Act would not apply to such application. 11. The next question is whether the order could only be made by the court where the suit mentioned in s. 4 of the Regulation was pending. The High Court at Calcutta held in Kumar Punyendra Narayan Deb v. Kumar Bhairabendra Narayan Deb 50 C.W.N. 776 that the order could be made by a District Judge even though the suit mentioned was not pending before him. We think that this is the correct view. All that s. 4 says is that the Judge on a regular suit being preferred .......... shall take good and sufficient security . There is nothing to show that the Judge referred to is the Judge before whom the suit is pending though no doubt there will be no power to make an order requiring security under the section before the suit mentioned in it has been filed. Form the summary of the Regulation that we have earlier given we are included to think that the judge referred to is the Judge of the Zila Court whose powers of interference in the administration of the estate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded, the appellant cannot be called upon to furnish security. 13. We are unable to accept this contention. We find no reason why the Regulation should have provided differently for cases of a single heir and cases of more than one heir and we do not think it did so. It is no doubt true that s. 4 commences with the words if there be more heirs that one and provides that in such a case the heirs, if they agree, can take possession and Courts are not to interfere except upon a complaint being preferred. It is not clear what the complaint contemplated is. It may be said that that complaint is not one arising out of a dispute between the heirs, for this part of the section directs the Courts not to interfere except upon a complaint, when the heirs are agreed among themselves; if the heirs are agreed, then the complaint is not likely to be out of a dispute between them. However this may be, the section goes on to say after a semi-colon, but if the right of succession to the estate be disputed between several claimants and one or more take possession and the party out of possession files a suit, then the Court shall call upon the party in possession to furnish security. It seems t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sole heir. It was contended that as this section does not provide for demanding of security when one of the disputing claimants has peacefully got possession and the other or others have filed a suit, s. 4 cannot be applied to this case for the purpose of demanding security. Assuming that the interpretation put upon s. 3 is right, as to which we do not think it necessary to express any view, we are unable to see why if s. 4 also deals with a case of a dispute between several persons each claiming to be the sole heir - which if what we have said before is right, it does - its operation should be excluded in a case covered by s. 3. Of course, if on its own words it can be said that s. 4 does not apply to the case of a person leaving a single heir, no further question arises. On the other hand, if it applies to such a case then there is no reason to say that it does not so apply simply because s. 3 also applies to such a case. We find to difficulty in applying both the sections to the case of a single heir. If there is no dispute, s. 4 has no operation in so far as demand of security is concerned. If there is dispute, the Courts can interfere under s. 3 on a complaint being filed and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by learned counsel for the appellant. We have not been able to accept any of them. The question however whether it is obligatory upon the District Judge in a case to which s. 4 applies to take security from the party in possession, has caused us some anxiety. The High Court thought that it was and so did the trial Court. Having given the matter our best thought we are inclined to take the opposite view. We think the section leaves it to the District Judge to ask for security if in all the circumstances of the case he thinks that that is the proper order to make. He has a discretion in the matter and is not obliged as soon as a case comes under the section, to demand the security. 18. No doubt the section says the Judge .......... shall take .... security. Prima facie the words appear to impose an obligatory duty on the Judge. But the context may indicate a different intention : see State of U. P. v. Manbodhan Lal Srivastava (1958)IILLJ273SC . We think the context in the present case does so. It certainly does seem to us very strange that a person in possession of property claiming to be an heir should be required by a stature to give security simply because some other person c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property for its care and management until the suit mentioned in s. 4 is determined. Quite clearly the power which is given to the Judge in the second and third stages is a discretionary power. The words used are in one case may and in the other is authorised , both of which confer a discretionary power. It cannot be said that these words notwithstanding their form impose an obligatory duty for they confer power to protect the right of a party. We say this because the section does not proceed on the basis that the party out of possession has any right but only on the basis of the existence of a dispute no matter however unmeritorious. It seems that if the power that the Judge has in the second and third stages, is only discretionary it can hardly be that the power given to him in the first stage is obligatory. It could not be that the section obliged the Judge to take security from the claimant in possession, while if he did not furnish the security it was optional for the Judge to put the rival claimant in possession or to appoint an administrator to take possession. It seems to us that since the power exercisable in the second and third stages is a discretionary power, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 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 Rupendra Deb Rajkot and his younger brothers Kumar Shiba Prasad Deb and Kumar Deba Prasad Deb, a daughter Prativa Bose and Renchi Devi, mother of Prativa Bose and Renchi Devi, mother of the three sons. The suit was transferred to the High Court under clause 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 January 5, 1954, Prativa Bose was substituted in her place in these suits. 26. On March 31, 1954, Kumar Rupendra Deb applied to the District Judge of Jalpaiguri, praying that good and sufficient security be taken from Prativa Bose under the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of the District Judge rejecting the application praying for the demand of security from Ashrumati Devi and therefore could not interfere with that order. 29. 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 : 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 estate 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uit 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 between 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 and 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 Sections 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 ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings 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, indicated 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 : '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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs 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. 39. 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in the manner laid down in Regulation XXV of 1793, and that if there be more than two sharers and any two or more of them be desirous 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 Sections XXIII to XXVI of Regulation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irs 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 disagreement 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 posse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 46. 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. 47. 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 Sections IV, V, VI and VII and not Sections II and III were extended to the Central Provinces by the Central Provinces Laws Act XX of 1876. 48. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... struction 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 subject-matter, but if there is no inconvenience from holding that the incorporation includes section 7 as well as the other sections, we ought to hold that it does. 50. 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. 51. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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