# Prativa Bose v. Kumar Rupendra Deb Raikat & Others

- **Citation:** [1964] 4 S.C.R. 69
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Case number:** Civil Appeal No. 539 of 1960
- **Bench:** S. K. Das, A. K. Sarkar, M. Hidayatullah, Raghubar Dayal, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/prativa-bose-v-kumar-rupendra-deb-raikat-others-3183
- **Pages:** 30

## Headnote

Succession to Estate-Prof>rietor dying intestate leaving a single
heir-Dispute between
several
claimants-Suit by person out of
possession-Application for taking of security from person in possession-Power of District Judge-Bengal
Wills and Intestacy
Regulation V of 1799 ss. 3, 4.
The respondent had brought a suit in the court of the Subordinate Judge, Jalpaiguri for declaration of his title as the sole
heir and successor to his father's impartible estate, which was taken
possession of by his step-mother. That suit was on transfer pending in the High Court.
Two other title suits were also pending
in the High
Court in which certain agnates were claiming as
successors.
The respondent moved an application before the District Judge, Jalpaiguri for the taking of security from the appellant
under s. IV of the Bengal Wills and Intestacy Regulation V of
1799.
The District Judge held that the
application was barred
under Art. 181 of the Indian Limitation Act and that s. IV of the
Regulation had no
application since it applied only
where the
deceased had left several heirs and not one. . The High · Court
found in favour of the respondent on both the points and directed
the District Judge to take security under s. IV.
Section IV of the
Regulation is as follows~
"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."
He/J (Per Hidayatullah, Dayal and Ayyangar JJ.) that the
1963
May, JO.
1963
Prativa Bose
v.
Kumar
Rupendra Deb
Raikat &
Others.
70
SUPREME COURT REPORTS
£1964]
Regulation was a piece of restrictive legislation and its provisions
should be strictly construed.
Each of the ss. II, III and IV of the Regulation, properly read
and construed, was a complete code by itself and dealt with the
different situations.
Section II applied when the deceased died
leaving a will and naming an executor to manage the property, s. III
applied when the deceased died intestate leaving a single heir and
s. IV applied when the deceased died intestate leaving more than
one heir.
The provisions of ss. 111 and IV were in no way inconsistent and it was not necessary to construe them together.
Cohen v. S. E. Railway, (1877) 2 E. & D. 253, held inapplicable.
The second part of s. IV which provided for taking of security
did not apply to a case such as the present where the deceased
died intestate leaving only one heir entitled to the entire .estate.
It fell within the ambit of s. III of the Regulation.
,
Since the courts have now ample powers under the Indian
Succession Act, 1925, and the Code of Civil Procedure, these pro-.
visions of the Regulation are out of date and should be repealed.
Per S. K. Das and Sarkar J).-Section IV of the Regulation
does not require an application for taking security and the court
can act suo motu. Art. 181 is confined to applications under the
Code of Civil Procedure and it can have no application to the
present application as it is

## Text

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4 S.C.R.
SUPREME COURT REPORTS
69
PRA TIVA BOSE
I!.
KUMAR RUPENDRA DEB RAIKAT & ORS.
(S. K. DAS, A. K. SARKAR, M. HIDAYATULLAH, RAGHUBAR
DAYAL AND N. RAJAGOPALA AYYANGAR JJ.)
Succession to Estate-Prof>rietor dying intestate leaving a single
heir-Dispute between
several
claimants-Suit by person out of
possession-Application for taking of security from person in possession-Power of District Judge-Bengal
Wills and Intestacy
Regulation V of 1799 ss. 3, 4.
The respondent had brought a suit in the court of the Subordinate Judge, Jalpaiguri for declaration of his title as the sole
heir and successor to his father's impartible estate, which was taken
possession of by his step-mother. That suit was on transfer pending in the High Court.
Two other title suits were also pending
in the High
Court in which certain agnates were claiming as
successors.
The respondent moved an application before the District Judge, Jalpaiguri for the taking of security from the appellant
under s. IV of the Bengal Wills and Intestacy Regulation V of
1799.
The District Judge held that the
application was barred
under Art. 181 of the Indian Limitation Act and that s. IV of the
Regulation had no
application since it applied only
where the
deceased had left several heirs and not one. . The High · Court
found in favour of the respondent on both the points and directed
the District Judge to take security under s. IV.
Section IV of the
Regulation is as follows~
"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."
He/J (Per Hidayatullah, Dayal and Ayyangar JJ.) that the
1963
May, JO.
1963
Prativa Bose
v.
Kumar
Rupendra Deb
Raikat &
Others.
70
SUPREME COURT REPORTS
£1964]
Regulation was a piece of restrictive legislation and its provisions
should be strictly construed.
Each of the ss. II, III and IV of the Regulation, properly read
and construed, was a complete code by itself and dealt with the
different situations.
Section II applied when the deceased died
leaving a will and naming an executor to manage the property, s. III
applied when the deceased died intestate leaving a single heir and
s. IV applied when the deceased died intestate leaving more than
one heir.
The provisions of ss. 111 and IV were in no way inconsistent and it was not necessary to construe them together.
Cohen v. S. E. Railway, (1877) 2 E. & D. 253, held inapplicable.
The second part of s. IV which provided for taking of security
did not apply to a case such as the present where the deceased
died intestate leaving only one heir entitled to the entire .estate.
It fell within the ambit of s. III of the Regulation.
,
Since the courts have now ample powers under the Indian
Succession Act, 1925, and the Code of Civil Procedure, these pro-.
visions of the Regulation are out of date and should be repealed.
Per S. K. Das and Sarkar J).-Section IV of the Regulation
does not require an application for taking security and the court
can act suo motu. Art. 181 is confined to applications under the
Code of Civil Procedure and it can have no application to the
present application as it is under s. IV of the Regulation and not
under the Code.
An application is not under the Code because
the procedure there laid down has to be followed.
Sha Mulchand & Co. Ltd. v. Jawahar Mills, Ltd. [ 1953] S.C.R.
351, applied.
·
The Court of the District Judge is the proper forum where
the application under s. IV can be made.
In the --absence of an
order under s. 23 of the Bengal, Agra and Assam Civil Courts
Act, 1887, the order contemplated by s. IV can be made only, by a
District Judge and it is not necessary that the suit mentioned in
the section n1ust be pending before him.
Kumar Punyendra Dev v. Kumar Bhairnbendra Deb. (1946)
50 C. W. N. 776, approved.
There is no reason why the Resolution should provide differently for cases of a single heir and cases of more than one heir
and it does not do so.
The words "if the right of succession to
the estate is disputed between several claimants" in s. IV includes
a case where a person dies leaving a single heir and several persons
r
(
dispute each claiming to be that heir.
k
There is no rule that if the two parts of a sentence are separated by a
semi-colon they cannot deal .with two different states
of affairs and that the latter part must be controlled by the former.
-
4 S.C.R.
SUPREME COURT REPORTS
71
Neither does the word "but" between the two parts lead to that
1963
conclusion.
The word 'heirs' in the second part of s. IV n1ust include one
heir.
Section IV of the Regulation, therefore, applied to the case
and the appellant could be called upon to furnish security.
It was not correct to say that s.
IV of the
Regulation was
impliedly repealed by ss. 192 to 195 of the Succession Act, 1925.
The I Iigh Court had jurisdiction in revision to set aside the
order of the
District
Judge since he had failed to
exercise his
jurisdiction on a n1isinterpretation of the
statute and
erroneous
view of limitation.
Joy Chand Lal Babu v. Kamalaksha Choudhury.
(1949) 76
I. A. 131, applied.
But the power to take the security under s. IV of the Regulation is a discretionary power vested in the District Judge and the
High Court was in error in directing him to do so.
CIVIL APPELLATE JuRISDICTION : Civil Appeal No. 539 of
1960.
Appeal by special leave from the judgment and order
dated June 6, 1956, of the Calcutta High Court in Civil
Rule No. 499 of 1955.
C. K. Daphtary, Solicitor-General of India, B. Sen,
S. N. M ukerji and P. K. Bose, for the appellant.
K. B. Bagchi and Sukumar Chose, for the respondents.
May 10, 1%3. The Judgment of M. Hidayatullah, Raghubar
Dayal and N. Rajagopala Ayyangar JJ., was delivered by
Raghubar Dayal J.
The separate opinion of S. K. Das
r
and A. K. Sarkar JJ., was delivered by A. K., Sarkar J.
SARKAR J. Raja Prosanna Deb Raikat, the proprietor of the Baikunthapur Raj Estate, in the district of Jalpaiguri in West Bengal, died intestate on December 4, 1946.
The Raja left behind him a widow, Rani Asrumati Debi,
now deceased and the appellant Prativa Bose, the daughter
by her. Rani Asrumati took possession of the estate on
the Raja's death.
On August 7, 1947, the respondent Rupendra instituted
a suit in the Court of the Subordinate Judge of Jalpaiguri,
against Rani Asrumati and certain other agnatic relations
of the Raja for a decl~tion that as the Raja's eldest son
Prativa Bos~
v.
Kumar
Rupendra Deb
Raikat &
Others.
Sarkar /.
1963
Prativa Bose'
v.
Kumar
Rupendra Deb
Raikat &
Others.
_sa,.kar f.
72
SUPREME COURT REPORTS
[1964]
by. another wife Rani Renchi, he was the sole lawful heir
and entitled to the exclusive possession of the estate which
was an impartible estate and governed by the rule of primogeniture, and for possession and other consequential
reliefs. Rani Renchi 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 cl. 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
sole heir of the deceased Raja. All these suits are still
pending.
On January 5, 1954, Rani Asrumati died and thereupon
the appellent Prativa Bose took possession of the estate
claiming title to it. Since then she has been and still is
.
.
m possession.
On March 31, 1954, the respondent Rupendra filed
an application under s. 4 of the Bengal Regulation V of
1799 in the Court of the District Judge of Jalpaiguri for
an order calling upon the appellant Prativa Bose to furnish
security for compliance with the judgment that may be
passed in the suit filed by him. The learned District
Judge dismissed the application on two grounds. He first
held that s. 4 of the Regulation did not apply to a case
where a person died intestate leaving a single heir and the
dispute was between several persons claiming to be that
heir. Then he held that the application by the respondent
Rupendra was barred under Art. 181 of the First Schedule
to the Limitation Act.
The Respondent Rupendra moved the High Court
at Calcutta in revision against the order of the learned
District Judge. The High Court disagreed with" the learned
District Judge on both the points and set aside his order
(
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4 S.C.R.
SUPREME COURT REPORTS
73
and directed him to "exercise his special jurisdiction under
s. 4 of the Regulation and take sufficient security from the
opposite party Prativa Bose." The present appeal is by
Prativa Bose agaimt the order of the High Court.
The object of the Bengal Regulation V of 1799 appears
to have been "to limit the intcrierence of the Zila ..... .
Courts of Diwani Adalat in the execution of wills and
admi;iistration to the estate or pe"ons dying intestate."
The first section is in the nature of a preamble, and so far
as relevant, sets out the object of the Regulation as earlier
stated.
Section 2 deals with the case of the death of a
person leaving a will and appointing an executor where
the heir of the deceased is not a disqualified landholder
subject to the superintendence of the Court of Wards. It
states that the executor is to take charge of the estate
without any application to the Judge of the Diwani Ada lat
or any other officer of the Government and it prohibits
the courts of justice from interfering in such cases except
l)n a regular complaint against the executor. Sections 3,
4 and 5 (the last so far as material only) are in the·se
terms:
S. 3 In case of a Hindu, Mussalman or other person
subject to the jurisdiction of the Zila Courts dying
iutestate, but leaving a son or other heir, who, by the
laws of the country, may be entitled to succeed to the
wl10le 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.
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
fi-2 S. C. India/64
1963
Prativa Bose
v.
Kumar
Rupendra Deb
Raikat &
Others.
Sarkar /.
1963
_,_
Prativa Bose
v.
Kumar
Rupendra Deb
Raikl1' 60thers.
Sarkar /.
74
. '
SUPREME COURT REPORTS
; ''-.
•
I
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=~ ' , " j 'I . . :
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.
S. 5 In the event of none of the claimants of the
estate of a person dying intestate being able to give the
security required by the preceding section, and in all
cases wherein there may be no person authorised and
willing to take charge of the landed estate of a person
deceased, the Judge within whose
jurisdiction such
estate may be situated (or in which the deceased may
have resided, or the principal part of the estate may
lie, in the event of its being situated within· two or
more jurisdiction) is authorised to appoint an administrator for the due care and management of such
estate, .................... .
Section 6 provides for taking of security from the
administrator appointed under s. 5 and for granting of
allowance to him. Section 7 states that the Judges of the
Zila Court on receiving information that any person within
their respective jurisdiction has died intestate leaving personal property of which there is no claimant are to adpot
measures for the temporary care of the property as mentioned in the section. Section 8, which is the last section
of the Regulation, provides that nothing in the Regulation
is to limit or alter the jurisdiction of the Court of Wards
in certain matters.
~· Sen appearing for the appellant canvassed a numbe1
-
?'
'
4 S.C.It.
SUPREME COURT REPORTS
75
'
''
of points including the two which were decided in favour of
his client by the trial Court. We shall first take up the
question of limitation. It does not seem to us that the
question really arises. Article 181 of the Limitation Act,
1908, prescribes the time within which certain applications
can be made. Section 4, however, does not require any
application before an order calling upon a person to furnish
security can be made under it. The section does not mention any application and it seems to us that it was intended
that the Court should act suo motu. Indeed the Regulation no where requires an application for making any of the
orders for which it provides. Article 181 would have no
operation where no application is required to enable a
court to make an order: see Tlze Oriental Bank Corporation v. f. A. Clzarrio/(1) and Solzan v. Klzalak Singh(').
The present case cannot, therefore, be decided on the
ground that the application by the respondent Rupendra
had been made beyond the time prescribed by Art. 181.
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 pre-ponderating view adopted by the High Courts 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 construed ejusdem generis
and so construed it must be applicable only to applications
under the Code for all the other articles in the Act providing periods of limitation for applications deal with application under the Code. It is however said that the Act was
amended in 1948 and now there are two articles, namely,
Arts. 158 and 178 which deal with applications under the
Arbitration Act and hence, since the amendment, it cannot
be said that all other articles in the Act deal with applications under the Code. It is, therefore, contended that Art.
( 1) (1886) I.LR. 12 Cal. 642, 650.
(2 ) (1891) I.LR. 13 All. 78.
1963
Prativa Bose
v.
Kumar
llupendra Deb
Raikat &
Others.
'
1963
Prativa Bose
v.
Kumar
Rupendra Deb
Raikat &
Others.
Sarkat f.
76
SUPREME COURT REPORTS
[1964]
181 can no more be construed ejusdem generis and confined to applications under the Code.
We are unable to accept this contention and tliink
that the view expressed by Das J., in Sha Mulchand &
Co. Ltd. v. Jawa!tar Mills Ltd. (') puts the matter correctly.
The learned Judge said, "It does not appear to us quite
convincing, without further argument, tl1at
the mere
amendment of articles 158 and 178 can ipso facto alter the
meaning which, as a result of a long series of judicial
decisions of the differept High Courts in India, came to be
attached to the language used in article 181. This long
catena of decisions may well be said to have, as it were,
added the words 'under tile Code' in the first column of
that article. If tllose words had actually been used articles
158 and 178 certainly would not have affected tile meaning
of that article. If, however, as a result of judicial construction, those words have come to be read into tile first
column as if those words actually occurred therein, we are
not of opinion, as at present advised, that tile subsequent
amendment of articles 158 and 178 must necessarily and
automatically have the effect of altering the long acquired
meaning of article 181 on tile sole and simple ground that
after the amendment the reason on which the old construction was founded is no longer available." We respectfully
agree with these observations and feel no doubt that even
now Art. 181 has to be read as confined to applications
under the Code.
It was then said that the application which the respondent Rupendra made was under the Code because in view
of s. 141 of the Code the procedure prescribed by the Code
has to be followed in dealing with an application made
under s. 4 of the Regulation. This is obviously fallacious.
The question is not whether the procedure for an applicauon is that prescribed by the Code but whether the application was under Code. The application by the respondent
Rupendra was not under the Code in any sense. The
Regulation 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.
( 1) [1953] S.C.R. 351, 371.
(
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•
4 S.C.R.
SUPREME COURT REPORTS
77
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() 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 savs is that "the Judge on a regular suit king
preferred .......... shal\ take good and sullicient security".
There is nothing to show that the "Judge" referred to is
the Judge before whom the suit is pen,ling though no
doubt there will be no power to make an order requiring
security under the section before the suit mentioned in it
h:is been filed. From the summary of the Regulation that
we have earlier given we are inclined 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 a deceased person are intended to be restrictetl by the Regulation. The Zila Courts have no doubt
been long abolished. Their place was taken up by
Courts of
District
Judges
constituted
by the Bengal
Civil Courts Act, 1871, section 12 of which provided that
"the present Judges of the Zillah Courts, Additional Judges,
Subordinate Judges and Munsifs shall be deemed to have
been duly appointed to the office the duties of which they
have respectively discharged and shall be the first District
Judges, Additional Judges, Subordinate Judges and Munsifs
named under this Act." The Act of 1871 was replaced in
its turn by the Bengal, Agra and Assam Civil Courts Act,
1887 which provided that "All Courts constituted, appointments ........ made ...... under the Bengal Civil Courts
Act, 1871 or any enactment thereby repealed .... shall be
deemed to have been respectively constituted, made,. .....
under this Act." It would appear, therefore, that the words
"Judge" and "Zila Courts" in the Regulation have now to
be understood as referring respectively to District Judges
au.cl District Courts appointed and constimted under the
Act of 1887. Section 23 of the Act of 1887 provides that
the High Court may by order authorise any Subordinate
Judge to take cognizance of a proceeding under the Bengal
( 1 ) (1946)
50 C.W.N. 776.
1963
Prativa Bose
v.
Kumar
J?.upendra Deb
Raikat &
Others.
Sarkar f.
1963
Pratt'v11 Bose
v.
Kumar
Rupendra Deb
Rtdfr../IJ "-
.
Others.
Sark_ar f.
~.·r1:. ~ .. '.;·'.
. ,, . _,..
~_ . .,..f ;_ t: -"
78
SUPllEME COURT REPORTS
'
·~' •
j
Regulation V of 1799. It would thus appear that :i Subordinate Judge woold have jurisdiction to take cognizance
of proceedings under Regulation V
of_
1799 only if the
High Court conferred sμch jurisdiction on him by an order
made for the purpose and no Subordinate Judge would
have such jurisdiction without such order even though the
suit might be yending before him. It is, therefore, clear
that in the absence of an order under s. 23 of the Act of
1887, the order contemplated by s. 4 of the Regulation can
be made only by a District Judge. It cannot hence be said
that the District Judge of Jalpaiguri had no jurisdiction
to act under s. 4 of the Regulation in the present case at all.
We turn now to the question concerning the correct
interpretation of s. 4 of the Regulation. It is said on behalf
of the appellant that s. 4 applies to a case where "there be
more heirs than one". In such a case only the Court has
the power to demand security. A case like the present,
where a person dies leaving a single heir is governed by
s. 3 only and as that section does not provide for any security being demanded, the appellant cannot be called upon
to furnish security.
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
than one" and provides that in such a case the heirs, if
they agree, can take possession and Courts are not tt>
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 posses.ion
files a suit, then. the Court shall call upon the party in
possession to furnish security. It seems to us that the words
"if the right of succession to the estate be disputed between
•
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4 s:c.R.
;'(
'./ '.
• 'i.
·.
·~ •
;r\v
'T }t'
·'
SUPREME OOURT REPORTS
,,
79
sev~ clailIWJ.tS'', u.k.en by tharudve£, clearly include
a case where a person dies leaving a single heir and several
personi dispute each claiming to be that heir. This seems
to us to be beyond :ill dispute. That being so, it would
follow that in such a case also, the Court may demand
security from the party in possession. The learned District
Judge thought that as the opening words of the section
dealt with a case of more heirs than one, the words "the
right of succession to the estate be disputed between several
claimants" which are separated from the opening words
by a semi-colon must be read as governed by the opening
words, and therefore, as confined to a dispute between
several claimants in a case where there are more than one
heir. We are not aware of any rule which says that two
parts of a sentence separated by a semi-colon cannot deal
with two different states of affairs. We find no justification
in such a case for refusing to give to the words used their
plain meaning and to read them as controlled by the
preceding words because they are separated by a semicolon. Neither do we think that the word "but" after the
semi-colon shows that what follows it must contemplate
the case dcilt by the words preceding it. We think that
word "but" was used to distinguish between two cases, in
one of which the Omrt was directed not to interfere and
in the other to interfere in one way, namely, by demanding
a security. The use of the word "but" does not lead to
the conclusion that the cases so distinguished must otherwi.e be the same. The word may be appropriately used
to indicate that in one set of facts the Cour:t is not to
interfere without a complaint and in another it may do so.
The learned District Judge also thought that the use of
the word "heirs" in plural in the expression "for the benefit
of the heirs who may on investigation be found entitled to
succeed" occurring at the end of the section showed that
security could be demanded only where a person had died
kaving two or more heirs. We think the learned District
Judge was clearly wrong in this. As the High Court
pointed out, the plural must include a singular.
It was also said that s. 3 deals with a case where a
person dies leaving a single heir and covers the dispute
between several persons each claiming to be the sole heir.
It was contended that as this section does not provide for
1'63
Prativa BQs~
v.
Kumar
Rupendra Deb
Raikat &
Others.
Sarkar /.
1963
Prativa Bost·
v.
Kurnar
Rupendra Deb
Raikat _&
· Others.
Sarkar /.
SUPREME COURT REPORTS
[19641
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 no 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 they can also demand security when one is
in possession and the other or others are out of possession
and have filed a suit or suits. We agree with the High
Court that s. 4 applied to this case and the appellant could
be called upon to furnish security. We have some doubt
if s. 3 is intended to apply to the case of several persons
each claiming to be the single heir of an intestate but we
have assumed it to apply to such a case.
Then it was said that ss. 192-195 of the Succession Act,
1925 impliedly repeaied s. 4 of the Regulation. These
sections of the Succession Act no doubt deal with a summary decision of a· disputed right to possession on succession.
But they are not identical with s. 4 of Regulation. Section
4 does not apply unless there is a suit. The provisions of
the Succession Act apply when there is no suit. Under
the later Act a party in possession may he dispossessed if
the Judge thinks he has no right while under the Regulation he cannot be dispossessed if he furnishes the security
required of him. There are other differences between the
two. They are further in no sense in conflict with each
other. We do not think, therefore, that the later Act can
be said to have repealed the earlier impliedly.
Lastly it is said that the High Court should not have
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•
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-
-·
4.S.C.R.
SUPREME COURT REPORTS
81
interfered in revision as the trial Court had neither exceeded nor refused to exercise its jurisdiction. It seems to us
that this contention is ill founded.
It is beyond dispute
that "if the erroneous decision results in the subordinate
court exercising a juridiction not vested in it by law or
failing to exercise a jurisdiction so vested, a case for revision
arises": fay
Chand
Lal Babu
v. Kamalaksha
Chaudhury(' ). This principle fully applies to the present case.
The trial Court erroneously held-that is erroneously in the
view of the High Court a view with which we agree-that
properly interpreted s. 4 did not apply to the present case,
and also that the application by respondent Rupendra was
barred by limitation and on these grounds refused to exer-
~ise jurisdiction under s. 4 of the Regulation. The High
Court was, therefore, fully justified in setting aside the
order of the learned District Judge in exercise of its rev1sional jurisdiction.
We have now dealt with all the objections to the applicability of s. 4 of the Regulation to the present case raised
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. Vve think the section leaves it to the District Jndge
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.
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('). 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 statute to give security
simply because some other person claims to be entitled to
( 1) (1949)
76
I.A. 131.
(') I 1958] S.C.R. 533.
1963
Prativa Bose
v.
Kumar
Rupendra Deb
Rtdkat &
Others.
Sarkar /.
Prativa lJfJse
v.
Kum•r
Ruproilra Deb
Raikat &
Others.
Sarkar /.
82
,,,
"'·T.~1':'.·.
, .'1··r~-
.. _._,.~tf' .... :-r.
SUPREME COUl.T ltEPOl.TS
. .- . . J
[~
•
'
'
t
.
t
.....
it as the hcir, no matter whether or not tli.e latter's claim
has the slightest foundation. An intention lading to such
a situation should not be =ily ascribed to a legi_,laturc. It
docs not seem to us that such could have been the intention of the present statute. There are several considerations, apart from the absurdity of the situation, which lead
us to that view.
The first consideration which we wish to notice ii>
the fact which we have earlier noticed, that under the
section, the Judge is to call for security suo
motu.
Of course, the Judge cannot call for security unless the
facts entitling him to do so exist. It is obvious that in
most cases the Judge would have no knowledge of these
facts. He would thus be unable to act suo matu in a very
large number of cases. It seems to us that it could not
have been intended to cast an obligatory duty on the Judge
when in a large number of cases it would be impossible
for him to discharge that duty for want of knowledge of
the necessary facts.
Next, we wish to point out that the whole object of the
Regulation is .to restrict the interference of Courts in the
matter of succession. Section 4 in so far as it enables a Court
to demand security is an instance where the restriction. i.t
relaxed and a Court is permitted to interfere in the manner
provided, that is, by demanding security from the party in
possession as an heir. There can be no doubt that the
interference by the Court which the Regulation was intended to restrict was discretionary with the Court. It would
seem to follow that the interference whicb s. 4 permitted should also be discretionary.
Then we wish to observe that· ss. 4 and 5 read together
lay down three successive stages in connection with the
demand of security. In the first stage s. 4 provides that the
Judge shall take security from the party in possession
of property. That section also provides that if that party
fails to give the security, the Judge may give possession of
the property to the other claimant or claimants who m&y
be able to give such security. This is the .'!Ccond stage. The
third stage is provided for in s. 5. That stage is where none·
of the claimants to the property, that is, neither the one
in possession nor those out of possession, is able to give
the security.
In such a case the Judge is authorised,
(
)
)
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'i S.C.R.
SUPREME COURT REPORTS
83
to ~p~int an administrator of 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, the power exercisable in the first stage
must also be of the same nature.
In our view, therefore, the High Court was in error
in directing the District Judge to "take sufficient security
from the opposite party Prativa Bose", the appellant before
us.
We think the proper course would be to send the
case back to the District Judge to decide in his discretion
whether he com~ders it a fit case for calling upon the
appellant to furnish security and if he thinks it is, to take
the security. It was contended on behalf of the appellant
that in view of the order of the High Court refusing tl:te
application of the respondent Rupendra for the appointment
of a receiver, the District Judge cannot in the exercise of
his discretion call upon the appellant to furnish security.
We do nCJt think that the decision in the application
for the receiver concludes the matter finally, for that decision proceeds on findings which were in their nature only
prima facie. The learned District Judge in deciding whether to demand security or not will no doubt give due
consideration tlo everything properly placed before him
including the findings in the application for appointment
1963
?rativa Bose
...
Kumar
Rupendra Deb
Raikat &
Others.
Sarkar /.
84
SUPREME COURT REPORTS
[19641
1963
of receiver and make his own order after such considePrativa Bost!
v.
Kumar
Rupendra Deb
Raikat &·
Others.
Sarkar /.
Raghubar
Dayal/.
ration.
We, therefore, direct that the case be sent back to
the District Judge of Jalpaiguri to decide whether
he
would in the circumstances of this case call upon the
appellant to furnish security and make an order accordiingly. The costs in this matter in all the Courts so far
incurred and to be incurred before the District Judge under
this order, will be costs in the suit.
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.
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.
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)
4 S.C.R.
SUPREME COURT REPORTS
85
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.