# MALLAPPA BASAPPA DESAI v. MALLAPPA VEERABHADRAPPA DESAI AND OTHERS

- **Citation:** [1965] 1 S.C.R. 168
- **Court:** Supreme Court of India
- **Decided:** 1964-08-28
- **Case number:** Civil Appeal No. 553 of 1963
- **Bench:** P. B. GAJt~DRAGADKAR, J. c. SHAH, N. R.Ajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mallappa-basappa-desai-v-mallappa-veerabhadrappa-desai-and-others-3335
- **Pages:** 7

## Headnote

Bombay R•gulation (8 of 1827). '· ?-Requirement as to possession
by one of the £-l::.i11;i~J11s-Relevartt date.
Where the District Court appoints an administrator to the ·Cstate of a
deceased person under rule 9 of the Bombay Regulation Vlll ot 1827, on
the ground that 1hc right of succession is disputed between two or more
clairn:ints no!lc 01' vvhom h:?s taken possession of the propcny. \\·hat the
court has to con~idcr i!; whether any of the claimants was in posse\fiion of
the propcrl;t at the d;1tc of the c:1mmcncemcnt of the proceedings under the
Regulation.
Th~ proc1.:cJings n1;:y con1mencc either on an application made
by one of the c!~imants or may be s1artcd suo nzotu by the Judge.
In
either case. the r~le":.int point of tin1c by reference to which the requirement as to r0s-scso;ion has 10 l)e judged is the date of the commencement
of the p:oceeJing• aod '10t the date on which the order is pa<"d J 1730-F].
C1v1L APl'ELLATE Ju1t1smcnoN: Civil Appeal No. 553 of
1963.
Ap!Jeal b; 'pecial leave from the judgment and order dated
February 27. 1963, of the Mysore High Court in Criminal Revision
Pc:ition No. 476 of 1962.
S. C. Agarwal, R. K. Garg, D. P. Singh, M. K. Ramamurthi,
A. Shankar Alm and M. Veerappa, for the appellants Nos. I, 3
and 4.
Lily Thomas, K. Rajendra Chaudhuri and K. R. Chaudhuri.
for respondents .Nos. 1 to 5.

## Text

MALLAPPA BASAPPA DESAI
v.
MALLAPPA VEERABHADRAPPA DESAI AND OTHERS
August 28, 1964
(P. B. GAJt~DRAGADKAR, C.J., J. c. SHAH AND N. R.AJAGOPALA
AYYANGAR JJ.)
Bombay R•gulation (8 of 1827). '· ?-Requirement as to possession
by one of the £-l::.i11;i~J11s-Relevartt date.
Where the District Court appoints an administrator to the ·Cstate of a
deceased person under rule 9 of the Bombay Regulation Vlll ot 1827, on
the ground that 1hc right of succession is disputed between two or more
clairn:ints no!lc 01' vvhom h:?s taken possession of the propcny. \\·hat the
court has to con~idcr i!; whether any of the claimants was in posse\fiion of
the propcrl;t at the d;1tc of the c:1mmcncemcnt of the proceedings under the
Regulation.
Th~ proc1.:cJings n1;:y con1mencc either on an application made
by one of the c!~imants or may be s1artcd suo nzotu by the Judge.
In
either case. the r~le":.int point of tin1c by reference to which the requirement as to r0s-scso;ion has 10 l)e judged is the date of the commencement
of the p:oceeJing• aod '10t the date on which the order is pa<"d J 1730-F].
C1v1L APl'ELLATE Ju1t1smcnoN: Civil Appeal No. 553 of
1963.
Ap!Jeal b; 'pecial leave from the judgment and order dated
February 27. 1963, of the Mysore High Court in Criminal Revision
Pc:ition No. 476 of 1962.
S. C. Agarwal, R. K. Garg, D. P. Singh, M. K. Ramamurthi,
A. Shankar Alm and M. Veerappa, for the appellants Nos. I, 3
and 4.
Lily Thomas, K. Rajendra Chaudhuri and K. R. Chaudhuri.
for respondents .Nos. 1 to 5.
The Judgment of the Court was delivered by
Gajendragadkar
C. J.
The
short question which
this
appeal raises for our decision is in relation to the construction of
rule 9 of Bombay Regulation VIII of 1827.
Purporting to act
under the said Rule the le1med Additional District Judge at Bijapur has ordered that the Dy. Commissioner of Bijapur District be
appo'ntcd the Jdrninistrator for the management of the estate of
deceased Kashibai Sangappa Gadigappa Desai who died on the
1st January. 1958.
Accordin~ ro this direction. the Adminimator has to manage the estate of the qid descascd Kashibai includin~ the scheduled property, both movable and immovable, until
the right of succession is determined by a competent court of law.
•
168
A
B
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D
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G
H
A
B
c
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D
E
G
H
M. B. DESAI v. M. v. DESAI (Gajendragadkar c. J.)
169
The- appellant Mallappa Basappa Desai challenged the propriety
and the validity of this order by moving the Mysore High Court
in its revisional jurisdiction under section 115 of the Code of Civil
Procedure. The High Court was, however, satisfied that there was
no ground to interfere with the order passed by the learned
Additional District Judge. Against this decision the appellant has
come to this Court by special leave; and on his behalf, Mr.
Pathak has urged that the impugned order is not justified by the
terms of r. 9.
That i• how the only question wliich we have to
decide in th_e present case is about the construction of r. 9.
It appears that Sangappa Gadigappa Desai was the last male
holder of the Desgat properties with which the present proceedings are concerned. These properties are extensive and yield substantial income.
On his death. his widow Kashibai came intp
possession of the said properties.
The appellant alleges that in
1929 the Coilector of the district held that the appellant's father
wa5 the nearest male reversioner to the estate left by Sangappa
Desai.
ln 1943, the appellant's father died. In 1946 again an
enquiry was held and it is alleged by the appellant that he was
found to be the eldest male member of the eldest branch of the
family and as such was entitled to succeed to the Desgat and other
properties left by Sangappa. Even so, Kashibai continued to be
in uninterrupted and exclusive possession of the properties until
she died on the !st January, 1958. On the 7th January, 1958,
the appellant filed an application before the Mamlatdar praying
that his name should be entered in the Record of Rights in respect
of lands of the Jainapur Desgat estate. This application led to
several other applicat:ons by different persons who claimed to be
entitled to succeed to the estate. These respective applicants are
the. six respondents to the present appeal.
Respondent
No. I
filed Application No. I of 1958 under s. 192 of the Indian Succession Act, 1925, on the 8th January, 1958.
On the same day,
respondent No. 1 applied for the appointment of a Commissioner
and an ex parte order was passed appointing Mr. Managoli as the
Commissioner.
The Commissioner made an inventory and. the
ex parte order passed appointing him as such Commissioner wai>
later confirmed.
On the 9th January, 1958, respondent No. 2
filed Application No .. 2 under Bombay Regulation VIII of 1827.
On the 5th Febrnary, 1958. respondents 3 & 4 filed Application
No. 4/ 1958 under rules 9 & 10 of the said Regulation. On the
6th February 1958. respondent No. 2 filed Application No. 5/
1958 under s. 192 of the Indian Succession Act.
On th'e 10th
February, 1958, respondent No. 6 filed a similar application No.
6/ 1958 under Regulation VIII of 1827 .· That is how these five
170
SUPREME COURT REPORTS
(1965] I s.c.R.
applications raised a common question about the succes.sion to A
the estate of whicl\. Kashibai was in possession as the widow of
her deceased husband Sangappa Desai.
It appears that on the application made by the appellant for
mutation of his name in the Record of Rights the Teh.sildar made
an order on the 27th February, I 958 directing that the appellant's
!l
name should be shown as superior holder in respect of the lands
forming part of the Desgat estate. That order was challenged by
respondents I to 4 by appeals preferred before the Assistant
Commissioner of Bijapur. Their appeals were, however, dismissed and the Tehsildar's order was confirmed on the 17th May, 1958.
The said respondents th~n moved the Mysore Revenue Appellate
C
Tribunal in its revisional jurisdiction.
The Appellate Tribunal
allowed the revision applications by its order dated 5th December,
1958 and directed that the names of the respondent.< should be
entered as superior holders along with the appellant. The appellant then moved the Mysore High Court under Art. 227 of the
Co11Stitution and his application was allowed, the order passed by
D
the Appellate Tribunal was set aside and that of the Assistant
Commissioner was confirmed. This decision was pronounced on
the 7th December, 1959.
On the 18th January, 1960, the Additional District
Judge
who heard the several applications made before him by responE
dents 1 to 6. came to the conclusion that a case had been made
our for the appointment of an Administrator to the property in
·question under r. 9 of the Regulation and accordingly, he made
the order which is the subject-matter of the present apoeal. The
appellant challenged this order before the Mysore High Court,
but his attempt failed.
That is how he has come to this Court in
appeal.
Before dealing with the question of the construction of rule
F
9, it is necessary to set out the facts found by the learned Additional District Judge in the present proceedings.
He has found
that there is a dispute as to the succession to the estate left by the
G
deceased Kashibai; in fact, several persons have applied setting
forth their respective claims to succeed to the said estate. He has
also found that there is no person amongst the parties before him
who can be said to have taken possession of the estate. In other
words, according to the learned Judge, a dispute exists in regard
to the estate between two or more claimants and none of them has
I I
taken possession of the estate. It was urged before him on behalf
of the appellant that a substantial part of the immovable property
M. B. DESAI v. M. v. DESAI ( Gajendragadkar c. J.)
17 I
A consisting of agricultural lands was in his possession, and reliance
was placed in that behalf on the rent notes executed by the tenants
who were cultivating the said lands. The learned Judge held that
these ·documents had come into existence subsequent to the commencement of the proceedings before him, and so, they did not
help the appellant.
He also seems to have taken the view that
B
these rent notes would be affected by Lis pendens. · In regard to
the movables, it is not disputed that the said movable property
was in the custody of the Court. A Commissioner had been
appointed. to make inventory of the· said properties and after the
inventory had been made, they were taken into the possession of
the Court.
On these findings, the learned Judge held that r. 9
C
applied, and so, he appointed an Administrator and authorised
him to take charge of the properties in question.
When this order was challenged by the appellant before the
High Court under s. 115, C.P.C., the High Court held that the
question as to whether the appellant was in possession, was a
D question of fact and the finding recorded by the learned Addjtional
District Judge could not be challenged under the said section.
The High Court agreed with the appellant's contention that the
learned Additional District Judge may be in error in taking the
view that the rent notes executed in favour of the appellant after
the commencement of the present proceedings were affected by
E
lis pendens; that, however, according to the High Court, did not
affect the position that the appellant was not in possession of the
said properties at the date of the commencement of the proceedings.
As we have ·already indicated, the mutation in favour of
the appellant by the revenue authorities and the rent notes taken
by him from the tenants who are in possession of the agricultural
F lands were all subsequent to the commencement of the present
proceedings, and ·both the Courts below have held that
the
relevant date by reference to which the question about the possession of the parties has to be decided, is the date of the commencement of the proceedings; and it is this view the correctness of
which is challenged by Mr. Pathak before us.
G
Bombay Regulation VIII of 1827 provides for the
formal
recognition of heirs, executors and administrators, and for the
appointment of administrators and managers of property by the
courts.
The preamble to the Regulation indicates that it was
thought in general desirable that the heirs, executors or legal
administrators of persons deceased should, unless the right is disH
puted, be allowed to assume the management or sue for the recovery. of property belonging to the estate, without the interfer-.
ence of courts of justice.
Yet, it was realised that in some cases
li :!
Sl:PREME COURT REPORTS
[1%5] I S.C.R.
such heirs, executors or administrators should obtain a certificate
of hcirship, executorship, or adrninistratorship, from the Zila Court;
the preamble further shows that where it appeared that there was
no person on the spot entitled or willing to take charge of the property or the deceJsed person, or when the right of succession is
cJisputcJ bc:ween two or more claimants, none of whom has taken
posscssi•Jn it is e;scmial that the Zila Court should appoint
an
Administrator for the management of the estate. It is in the light of
this policy ;nentioncd in the preamble to the Regulation that Rules
were framed.
Rule I authorised the legal hei.r, executor, or legal
".cJministrator to assume the management, or sue for the recovery,
A
B
of the property ii! confonnity with the law or u>age applical.Jle to the
C
disposal of the said property, without making any previous application to the court to be formally recognised.
Rule 2, however,
contemplated that if an heir, e.xecutor or administrator wan!ed to
obtain recognition, he could move the court in that behalf, and
rules 3 to 6 provide for the manner in which an application for
recognition ~hould be dealt with.
That takes us to r. 9 with
which we are directly concerned in the present appeal.
D
H ulc 9 reads thus :
"Whenever there is no person on the spot entitled and willing to take charge of the property of a person d~d,
where the right of succession is disputed between two
or more claimants. none of whom has taken pos5ession. or where the heirs arc incompetent to
the
management of th~ir affairs from infancy, insanity or
other disqualification. and have no near
relations
entitl~d and willing to take charge on their behalf,
E
the Judge, within whose jurisdiction such property
F
is. may uppoint :tn administrator for the management
thereof, until the lawful heir. executor or administr:itor appears, or the right of succession is
determined, or the disqualification of the heir is removed,
as the case may be. when the Judge on being satisfied
of the facts. shall dir~ct the administrator in charge
G
to deliver over the propeny to such person, with a
full account of all receipts and disbursements during
the period of his administration."
In the present case, the relevant clause is 'where the right of succession is disputed between ti\") or more claimants. none or whom
hns taken pos·'CSsion'.
It is common ground that the right of sueH
ce>sion is disputed hctwecn the claimants who have moved the
Additional District Judge.
The point of dispute between
the
•
M. B. DESAI v. M. v. DESAI (Gaiendragadkar c. /.)
173
A parties is whether any of the claimants has taken possession. The
appellant contends that at the date when the admipistrator was
appointed by tpe Additional District Judge he was in possession,
and so, the requirement that none of the claimants should be in
possession before an administrator.can be appointed is not satisfied.
The argument is that the relevant date by reference to which the
B question of possession should be determined 'is, in the context, the
date of the order, and if that lie so, the appellant was in possession
of the bulk of the properties and the appointment of an administrator ,was, therefore, not justified. · It is also urged in support of
this plea that the fact that the. rent notes were executed in favour
of the appellant after the commencement of the present proceedc ings cannot obviously. introduce considerations of lis pendens,
and what the Court has to consider is just the bare question as to
whether any of the claimants is in possession of the property or
not, and the answer to this question should be in favour of the
. appellant because he produced before the Court rent notes exeD cuted by the tenants who were cultivating the lands in question.
This argument is not well-founded.
What the Court has to
consider in dealing with the question of possession is: was any
of the claimants in possession of the properties succession
to
which is in dispute at the date of the commencement of the proceedings under this Regulation ?
The. proceedings may
comE mence either on an application made by one of the claimants, or
may be started suo motu by the Judge; in either case, the relevant
point of time by reference to which the requirement as to pos"ession has to be judged is the date of the commencement of the
proceedings. It may be that one of the claimants may have obtained possession soon after the death of the last holder, and before
F
the proceedings commenced under the Regulation, he would be
able to show that he ;was in possession; but if no one was in
possession at the date when the proceedings commenced,
the
requirement of the relevant clause of r. 9 is satisfied, because
possession obtained after the commencement of the proceedings
would not make any difference. If the appellant's construction
G i5 accepted, it would lead to anomalous results. Take a case
where none of the claimants is in possession at the date when the
District Judge makes his order, and that when the matter is taken
to the High Court under section 115, some one or the other of
the claimants manages to secure possession. On the appellant's
construction, the High Court would have to set aside the order
H
appointing the administrator, because at the date when the High
Court is passing the order one of the claimants has secured possession.
Besides, the basic idea underlying the provisions of r. 9
LISup./64-12
174
SUPRl!ME COURT REPORTS
[ 1965] I S.C.R.
is .o provide for a smooth, peaceful and legal devolution of the A
csh:te on the rightful owner; and so, in cases where there is a dispute as to title amongst different persons and none of these persons has been able to secure possession soon after the succession
opened, r. 9 stepS in and provides for the appointment of an
administrator.
The appointment of the administrator does not
prejudice tbe claim of any person who has set up a title to sueB
cession. The only result of the appointment of the administrator
is that the property is taken under the charge of an administrator
and is managed by him pending the final decision of the quei;tion
c1 succession to the estate by a court of competent jurisdiction.
Therefore, we are satisfied that the Courts below were right in
holding that since the appellant was not in possession at the date C
when the present proceedings commenced and obviously tbero is
a dispute as to the title .between two or more claimants, the mate.-
rial requirement of r. 9 is satisfied and that justifies the appointment of an administrator.
We have already seen that r. 2 contemplates that an executor,
D
heir or administrator may apply for formal recognition as a
measure of safety and subsequent Rules provide for the manner
iD which such an application should be dealt with. If the applicalion succeeds, a certificate is issued. If the application fails,
the certificate is refused.
But rule 8 specifically provides that
the refusal of a certificate by tho Judge shall not finally d!ltermino
E
the rights of the person whose application is refused, but it shall
still be competent to him to institute a suit for the purpose of
establishing his claim.
Rules 8 and 9 both make it clear that
the decision recorded by the Court under the provi~ions of tho
relevant Rules is a summary decision and it does not purport
to bar the jurisdiction of the civil courts by which questions of F
title would be finally determined. That being so, .it seems clear
that under the relevant clause of r. 9, the date· of possession must
be the date before the proceedings commenced.
In the result, the appeal fails and is dismissed with cost~.
Appeal dismissed.