May, JO v. Kumar

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 1963 Prativa Bose v. Kumar Rupendra Deb Raikat & Others. Sarkar /. 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 appoint ment 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 - ' ' ,. , 74 . ' 1963 _,_ Prativa Bose v. Kumar Rupendra Deb Raikl1' 6- 0thers. Sarkar /. SUPREME COURT REPORTS ' , " j 'I . . : ; ''-. =~ • 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 the suit; or, ·in default of such. security being given within a reason able period, may give possession, until the suit may be determined, to the other claimant or claim ants who may be able to give such security, de claring 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 admini strator 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 per sonal property of which there is no claimant are to adpot measures for the temporary care of the property as men tioned 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 1963 Prativa Bose v. Kumar llupendra Deb Raikat & Others. '' 75 SUPREME COURT REPORTS 4 S.C.It. ' 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 men tion any application and it seems to us that it was intended that the Court should act suo motu. Indeed the Regula tion no where requires an application for making any of the orders for which it provides. Article 181 would have no operation where no application required to enable a see Tlze Oriental Bank Corpo court to make an order: ration 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 men tioned in them are applications under the Code of Civil Pro cedure 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 provid ing periods of limitation for applications deal with applica tion 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 applica tions 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 Rupendra Deb Raikat & Others. Sarkat f. 76 SUPREME COURT REPORTS [1964] 181 can no more be construed ejusdem generis and con fined to applications under the Code. tl1at 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, 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 If, however, as a result of judicial con of that article. struction, 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 construc tion 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 respon dent 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 applica uon is that prescribed by the Code but whether the applica tion 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 Proce dure 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 appli cation. ( 1 ) [1953] S.C.R. 351, 371. ( - - 1963 Prativa Bose v. Kumar J?.upendra Deb Raikat & Others. Sarkar f. 4 S.C.R. SUPREME COURT REPORTS 77 the administration of intended 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 estate of a deceased person are to be res trictetl by the Regulation. The Zila Courts have no doubt taken up by been long abolished. Their place was 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, appoint- ments ........ 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 Pratt'v11 Bose v. Kumar Rupendra Deb Rtdfr../IJ "- Others. . Sark_ar f. 78 ~.·r1:. ~ .. '.;·'. . ,, . _,.. SUPllEME COURT REPORTS ~_ . .,..f ;_ t: -" ' ·~' • j Regulation V of 1799. It would thus appear that :i Sub ordinate Judge woold have jurisdiction to take cognizance of_ 1799 only if the of proceedings under Regulation V 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 secu rity 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 diffe rently 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 It may be not clear what the complaint contemplated is. 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 dis pute 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 .,_ f 4 s:c.R. ; ' ( ·' SUPREME OOURT REPORTS 'T }t' ;r\v './ '. ·~ • 'i. • ·. ,, 79 1'63 Prativa BQs~ v. Kumar Rupendra Deb Raikat & Others. Sarkar /. • 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 to a dispute between words, and therefore, as confined 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 semi colon. 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 other wi.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 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 1963 Prativa Bost· v. Kurnar Rupendra Deb Raikat _& · Others. Sarkar /. SUPREME COURT REPORTS [19641 demanding the disputing of security when one of 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 If there is in so far as demand of security is concerned. ·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 sum mary 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 Regula tion 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 - • 1963 Prativa Bose v. Kumar Rupendra Deb Rtdkat & Others. Sarkar /.

4.S.C.R. SUPREME COURT REPORTS 81 interfered in revision as the trial Court had neither exceed ed 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 Chau dhury(' ). 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 rev1- sional jurisdiction. We have now dealt with all the objections to the appli cability 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. the words appear No doubt the section says "the Judge .......... shall take .... security." Prima 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 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. - - - -· Prativa lJfJse v. Kum•r Ruproilra Deb Raikat & Others. Sarkar /. ( 82 .. _._,.~tf' .... :-r. ,,, "'·T.~1':'.·. , .'1··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 inten tion of the present statute. There are several considera tions, 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 to call for security suo motu. section, the Judge 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 It seems to us that it could not large number of cases. 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 intend It would ed to restrict was discretionary with the Court. interference whicb seem to follow s. 4 per mitted 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 In such a case the Judge is authorised, the security. 1963 ... ?rativa Bose Kumar Rupendra Deb Raikat & Others. Sarkar /. ) ) - '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 deter mined. 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 It seems to us that since administrator to take possession. 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 deci sion proceeds on findings which were in their nature only prima facie. The learned District Judge in deciding whe ther 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 Prativa Bost! v. Kumar Rupendra Deb Raikat &· Others. Sarkar /. Raghubar Dayal/. 84 SUPREME COURT REPORTS [19641 of receiver and make his own order after such conside- 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 accord iingly. 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 Cal cutta, and rises in the following circumstances. Raja Prasanna Deb Rajkot, the Raja of the impartible estate known as 'the Baikunthapur Raj Estate', died in testate on December 4, 1946, leaving considerable proper ties, 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 Oc tober 31, 1947, she got mutation of her name over the pro perty despite applications for mutation by three other per sons. 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, mo ther 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 In July 1952, applications for the Deb and Jitendra Deb. appointment of a receiver and injunction order were re jected by the High Court. On Ashrumati' s death on J a nuary 5, 1954, Prativa Bose was substituted in her place in these suits. • • 1963 Prativa Bose v. Ku1nar Rupendra Deb Raikat & Others. Raghubar Dayal f. 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 Regu lation V of 1799, hereinafter called the Regulation. This app1ication was opposed on grounds that it was present ed 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 enter tain 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 there fore dismissed the application. Kumar Rupendra Deb went in revision to the High Court. The High Court found in his favour on both the the appli questions regarding limitation and regarding cability of the provisions of s. IV of the Regulation to the revision facts of the case, and accordingly, allowed should application and ordered that the District Judge ex<crcise his special jurisdiction under s. IV of the Regu lar.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. Learned counsel for the appellant has urged the fol lowing points:

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

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

#3. The application is barred by the principles analo gous to res judicata on the ground that the High Court has already gone into the question of the inte rim protection of the estate.

#4. If such an application be considered to be an inde- - ) 1963 Prativa Bose v. Kum•r Rupendra Deb Raikat & Others. Raghubsr Dayal f. { • t • t J 1 .f . SUPREME COURT REPORTS [1964] . " 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. • ·; I ' l

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

#6. The High Court had no jurisdiction to enterain a revision against the order of the District Judge re the demand of jecting the application praying for security from Ashrumati Devi and therefore could not interfere with that order. Before dealing with these points, we would like to Its sec refer to the relevant provisions of the Regulation. tions III and IV, as they stood originally, are set out be low: "III. In case of a Hindoo, Mussulman, or other per son 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 heir, if of age and competent to take the possession and management of the estate, or if under age or in competent, 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 permis sion 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. 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 . . r . . . . 1963 Prativa Base v. Ku mu Rupendra Deb Raikat & Others. - 4 S.C.lt SUPitEME COURT R.EPOltTS 87 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 rea sonable 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 de gree to affect the right of property at issue between the parties, but to be considered merely as an admi nistration to the estate for the benefit of the heirs, who may, on investigation, be found entitled to suc ceed thereto." Certain portions of s. III were repealed by Act XL of 1858 and Act XVI of 1874 in matters which do not In 1903, the expression affect the qtiestion before us. '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 pro ceeded with according to the procedure laid down in the Code of Civil Procedure for the trial of suits. 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 con tention for the appellant is that it is s. III which is appli cable 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 de ceased 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 posses sion, to take security from the party or parties in posses sion 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 ap ply to the case falling under s. III where the dispute, if any, is be'Ween the rival claimants to the entire property .1963 ·Prativa Bose v. Kumar Rupendra Deb Raikat & Others. Raghuba1· Dayal /. 88 SUPREME COURT. REPORTS [1964] 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 ap plicability 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.('). To appreciate the contention for the appellant, it is necessary to consider the entire object of making the Re gulation. The title of the Regulation states : "A Regulation to limit the interference of the Zil lah and City Courts of Dewanny Adawlut in the exe cution of wills and administration the estates of persons dying intestate." The reason for limiting such interference is given in s. I which indicates that the Regulation was passed to re move 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 au thorised 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 in testate leaving an estate, real or personal, and also to ap ply to those cases as far as possible the principle prescri bed 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 ( 1) (1877) 2 E & D. 253, 260. 1963 Prativa Bose v. Kumar Rupendra Deb Raikat & Others. Raghubar Dayal/. ) 4 S.C.R. SUPREME COURT REPORTS 89 did interfere with such cases and it was to limit and de fine those powers of interference that the Regulation was passed. The Regulation, therefore, should be construed strictly a~ a piece of restrictive legislation. 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 con nection. Section II provides that executors appointed un der 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 the proceedings of Government in the Revenue Depart ment dated April 2, 1788, printed at p. 228 of Elemen tary Analysis of the Laws and Regulations (enacted by the Governor-General in Council)' by Harington, Vo lume III. The actual procedure on investing holder is given in appendix No. 9 to this note, printed at p. 275 of the same volume. An extract from the first para graph quoted below, indicates that the heir of the decea sed zamindar had to get the permission of the State au thorities 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 him self ; 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 re turned 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 wan and the roy-royan; and after receiving the beetcl 7-2 S C lndia/64 • 1963 . ! Prativa Bose v. Kumar Rupendra Deb Raikat & Others. Raghubar Dayal/. 90 SUPREME COURT REPORTS [1%4] leaf, and an honorary qress, was permitted to assume the management of the affairs of his zamindary." 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 zamin dary by inheritance and yet, in general, required to take out a renewal of his title from the sovereign or his repre sentative on payment of a peshkush, or fine of investiture to the emperor, and a nuzranah or present to his pn:>vin cial delegate, the Nazim. This is said in the remarks sub- mitt~d by him to Lord Cornwallis in 1799 on Mr. Law's plan of settlement, and has been quoted at p. 400. 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. It might have been that when the East India Com pany got sovereignty over these provinces or parts thereof, heirs of zamindars and possibly of other men of pro perty, might have approached courts as well either for ob taining such permission or for interference with the per son who had taken possession on the basis of such per mission from some officer of the company. Regulation V of 1799 was passed to provide that the Courts were not to in terfere in these matters on considerations of general ad minstrative convenience, but could interfere only judicially when they were moved for adjudicating the title of the disputants to succession to the estate. Section II, as already mted, provided for the execu tors 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 : "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 com mon with all others of a civil nature, under the gene ral rule contained in Section VIII, of Regulation III, 1793 and proceed thereupon according to the Regula tioru, taking the opiillon of their law officers upon • - ' - 1963 Prativa Bose v. Kumar Rupendra Deb Raikat & Others. Raghuhar Dayal f. - .. • 4 S.C.R. SUPREME COURT REPORTS 91 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 be ing set aside, and generally upon all points of 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 enact ed by the Governor-General in Council, in the form prescribed by Regulation XLI, 1793." 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 permis sion from the Courts of justice, if it could be done without violence. 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 pro ceedings 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 the person justice would consider the dispute between who had taken possession and the other claimants. It laid down the entire procedure which the courts of justice 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. It enjoined upon the courts of justice not Similarly, s. IV is a complete code with respect to the case in which the deceased died intestate and left more If those heirs agreed amongst themselves heirs than one. 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 en tire estate, they were at liberty, in view of the first part of the sectioo, to take possession of the estate and interference courts of justice were prohibited from any 1963 Prativa Bose v. Kumar Rupendra Deb Raikat & Others. ilitghubar D•yal /. 92 SUPREME COURT REPORTS [1964] without a regular complaint as in the case of a single heir. 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 inheri tance of landed property subject to the payment of reve nue 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 declar ed 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 de ceased, 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 refer red to in s. II, the several persons succeeding to the estate would be at liberty, if they so preferred, to hold the pro if some perty as a joint undivided estate and or all of them desired to have separate possession of their respective shares, a division of the estate was to laid down m Regulation be made m there be more XXV of 1793, and them be de two sharers and any two or more of mous of holding joint undivided estate, they would be permitted to get their shares uni ted. 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 mana ger for their joint estate was to be appointed under the rules contained in ss. XXIII to XXVI of Regula lation VIII of 1793. Thus the provisions for a common manager of persons holding their estate as a joint undivi- their shares as a the maner ( < - 1963 Prativa Bose v. Kumar Rup<ndra D<b Raikat & Others. Raghubar Dayal /. ) - 4 S.C.R. SUPREME COURT REPORTS 93 ded 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 mana ger, they require no permission for taking possession of the property. When a complaint is made by any one of the heirs or persons claiming to be heirs on account of the dis agreement among them to act unitedly through a com mon manager, the Court has to deal with the dispute ac cording to the general Regulations prescribing the proce dure 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 provi ded 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. 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 It might have been neces eventual judgment in the suit. that it was considered sary in those days, as we find necessary then for the defendant to furnish security for his appearance in court if he did not accompany the offi cer serving the summons for his appearing in person be fore the court. Section V of Regulation IV of 1793 provi ded that the Court was to issue a summons to the defen dent requiring him either to accompany the officer depu ted 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 provi des for demanding security for appearance in court and for the purpose of securing compliance with the judgment in certain specified circumstances only. 1963 Prativa Bose y. Kumar Rupendra Deb Raikat & Others. Raghubar Dayal /. ( 94 SUPREME COURT REPORTS [1%4] 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 pro vision in the second part of s. IV and for a distinction be ing made in the procedure to be followed in the two cases, lies in the fact that when there be more heirs than one and common they are not in agreement about 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 manage ment, 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, ap plied. 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 mat ter 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 de ceased leaving a single . heir, s. III permits the heir to take possession of the estate peacefully and he possession 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 claim take possession not in accordance ants to 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 decea sed, 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 disput- lawfully. Any the estate 1%3 Prativa Bose v. Kumar Rupendra Deb Raikat & Others. Raghubar Daytd f. - 4 S.C.R. SUPREME COURT REPORTS 95 It would be equally un ing his title to the entire estate. reasonable 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. 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 Regula tion 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 tD take cognizance of all suits and complaints respect ing, inter alia, the succession or right to real or personal property. Section XVIII prohibits t11ese courts from tak ing 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 'plaintiff'. These provi to one whom we now call a the Regulations re 'complaint' in fers to a plaint and not to what we now call a com plaint in a criminal case. This is further made clear 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 establish ed in the various zillahs. Section II provides that no com plaint is to be received but from the plaintiff nor any ans wer to a complaint but from a defendant or their respec tive vakils duly empowered. indicate 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 in testate leaving a single heir and s. IV to cases when the de ceased dies intestate leaving more than one heir. This view finds support from the fact that when to other extending the provisions of this Regulation 1963 Prativa Bose v: Kumar Rupendra Deb Raikat & Others. Raghubar Dayal/. i -- 96 SUPllEME COURT REPORTS [1964] 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 Pro vinces by the Central Provinces Laws Act XX of 1876. 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 sin gle 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 pro vide 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 de ceased 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 res tricted 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. The observations of Mellish L.J., in Cohen v. S.E. Railway(') are not of much help in order to cons hue the scope of the second part of s. IV in regard to its applicability to cases coming under s. III. Those ob servations were made in a different context about the provisions of the Acts there under consideration. These observations are : "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, ex cept 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 ( 1) (1877) 2 E & D 253. 1963 Prativa Bote v. Kumar Rupendra Deb Raikat & Others. Raghubar Dayal f. 4 S.C.R. SUPREME COURT REPORTS 97 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 na tural 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 I am not aware that there is any such rule of construction of If some absurdity or inconve an Act of Parliament. nience followed from holding it to apply to the whole Act, it might be reasonable to confine the incorpora 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." relate. 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 sepa rately numbered as a section. In s. IV of the Regu lation, 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. Section XIX of Regulation XL of 1793 enacted 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 differ ent 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( 1 ) to the con- ( 1877) 2 E. a. D. 253, 260. ) ( 1 , i 1963 Prat£va Bose v. Kumar Rupendra Deb Raikat & Others. Raghubar Dayal/. 98 SUPREME COURT REPORTS [1964] struction of the second part of s. IV with respect to its applicability to s. III. We do not find the provi sions of s. III and s. IV to be inconsistent in any man In ner and to necessitate their being construed together. 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. 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 Re gulation. 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 ap pellant throughout. Before parting with the case we would like to draw at tention of Government to these provisions which appear to be somewhat out of date and which need to be repeal ed. 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 Regula tion of 1793. ORDER OF· COURT In view of the opinion of the majority the appeal is allowed with costs throughout. Appeal allowed. y