Prativa Bose V. Kumar Rupendra Deb
Raikat & Ors  INSC 147 (10 May 1963)
10/05/1963 SARKAR, A.K.
DAYAL, RAGHUBAR AYYANGAR, N. RAJAGOPALA
CITATION: 1965 AIR 540 1964 SCR (4) 69
Succession to Estate-Proprietor 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." Held
(Per Hidayatullah, Dayal and Ayyangar JJ.) that the 70 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
Deb leaving a will and naming an executor to manage the property, S.111 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.
III and IV were in no way inconsistent and it was not necessary to construe
Cohen v. S. E. Railway, (1877) 2 E. & D.
253, held in applicable.
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
provisions of the Regulation are out of date and should be repealed.
Per S. K. Das and Sarkar JJ -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.  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 must be pending before him.
Kumar Punyendra Dev v. Kumar Bhairabend -a
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 dispute each claiming to be that
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.
71 Neither does the word "but"
between the two parts lead to that conclusion.
The word 'heirs' in the second part of s. IV
must 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,
The High Court had Jurisdiction in revision
to set aside the order of the District Judge since he had failed to exercise
his jurisdiction on a misinterpretation of the statute and erroneous view of
Joy Chand Lal Babu v. Kamalaksha Choudhury.
(1949) 76 I. A.
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
C. K. Daphtary, Solicitor-General of India,
B. Sen, S. N. Mukherji and P. K. Bose, for the appellant.
K. B. Bagchji and Sukumar Ghose, for the
respondents. May 10, 1963. 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 and A. K. Sarkar JJ., was delivered by A. K. Sarkar J.
SARKAR J. Raja Prosanna Deb Raikat, the
proprietor of the Baikundiapur 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
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, Raj for a declaration
that as the Raja is eldest son 72 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
On January 5, 1954, Rani Asrumati died and
thereupon the appellant Prativa Bose took possession of the estate claiming
title to it. Since then she has been and still is in 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 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 against the order of the High Court.
The object of the Bengal Regulation V of 1799
appears to have been "to limit the interference of the Zila......
Courts of Diwani Adalat in the execution of
wills and administration to the estate of persons dying intestate." The
first section is in the nature or 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 Adalat
or any other officer of the Government and it prohibits the courts of Justice
from interfering in such cases except on a regular complaint against the
executor. Sections 3, 4 and 5 (the last so far as material only) are in these
S. 3 In case of a Hindu, Mussalman or other
person subject to the jurisdiction of the Zila Courts dying intestate, but
leaving a son or other heir, who, by the laws of the country, may be entitled
to succeed to the whole estate of the deceased, such heir, if of age and
competent tO take the possession and management of the estate, or, if under age
or incompetent and not under the superintendence or 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 6-2 S. C.
India/64 74 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 suchsecurity being
given within a reasonable 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,, 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 adopt 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.
Mr. Sen appearing for the appellant canvassed
a number 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, 19.08, 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 The Oriental Bank Corporation v. J. A. Charriol(1)
and Sohan v. Khalak Singh (2 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
preponderating 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 licence, 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.L.R. 12 Cal. 642, 650. (2)
(1891) I.L.R. 13 All. 78.
76 181 can no more be construed ejusdem
-generis and confined to applications under the Code.
We are unable to accept this contention and
think that the view expressed by Das J., in She Mulchand & C, o. Ltd. V.
Jawahar Mills Ltd (1) puts the matter
correctly. The learned judge said, "It does not appear to us quite
convincing without further argument, that the mere amendment of articles 158
and 178 can ipso facto alter the meaning which, as a result of a Ion, series of
Judicial decisions of the different High Courts in India, came to be attached
to the language used in article 181. This long catenation of decisions may well
be said to have, ,is it were. added the words 'under the Code' in the first
column of that article.
If those words had actually been used
articles 158 and 178 certainly would not have affected the meaning of that
article. If, however, as a result of 'Judicial construction, those words have
come to be read into the first column as if those words actually occurred
therein, we are not of opinion, as at present advised, that the subsequent
amendment of -articles 158 and 178 must necessarily and automatically have the
effect of altering the long acquired meaning of article 181 on the 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 is 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 application 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
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)  S.C.R. 351, 371.
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
Narain Deb v. Kumar Bharabendra Narayan Deb(1) that the order could be made by
a District Judge even though the suit mentioned was not pending before him. We
think that this is the correct view. All that s. 4 says is that "the Judge
on a regular suit being preferred shall take good and sufficient security"
There nothing to show that the "Judge" referred to is the judge
before whom the suit is pending though no doubt there will be no power to make
an order requiring security under the section before the suit mentioned in it
has been filed. 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 restricted 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 and District Courts appointed and constituted 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 (1946) 50 C.W.N. 776.
78 Regulation v of 1799. It would thus appear
'that a Subordinate judge would have jurisdiction to take cognizance of
proceedings under Regulation V of 1799 only if the High Court conferred such
jurisdiction on him by an order made for the purpose and no Subordinate judge
world have such jurisdiction without such order even though the suit might be
pending 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 to interfere except upon a complaint
being preferred. It is not clear what the complaint contemplated is. It may be
said 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 go on to say after a semi-colon, "but if
the right of succession to the estate be disputed between several
claimants" and one or more take possession and the party out of possession
files a suit, then the Court shall call upon the party in possession to furnish
It seems to us that the words "if the
right of succession to the estate be disputed between 79 serval
claimants", taken 'by themselves, clearly include a case where a person
dies leaving a single heir and several -persons dispute each claiming to be
that heir. This s to us to be beyond all 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 arc more than one heir. We are not aware of any
rule which says that two parts of a sentence separated by semicolon cannot deal
wit) 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 dealt by the words preceding it. We think that word
"but" was used to distinguish between two cases, in one of which the
Court 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 otherwise be the
same. The word may be appropriately used to indicate that in one set of acts
the Court is not to interfere without a complaint and The another it may do so.
The learned District judge also though 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 leaving 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 80 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., is 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 ill, 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 ire out of Possession and have
filled 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 issued it to apply
to such a case.
Then it was said that ss. 192-195 of the
Succession Act, 1925 impliedly repeated s. 4 of the Regulation. These sections
of the Succession Act no doubt 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 doesn't 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 be
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 repeated the earlier impliedly.
Lastly it is said that the High Court should
not have 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 jurisdiction not vested in it by law or
failing to exercise a jurisdiction so vested, a case for revision arises":
Joy Chand Cal Babel v. Kamalaksha Chaudhury(1). 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 agreethat 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 exercise
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 revisional 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. We think the section leaves it to the District Judge to ask for security
if in all the circumstances of the case he thinks that 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 imply because some other person
claims to be entitled to (1) (1949) 76 I.A. 131.
(2)  S.C.R. 533.
82 it as the heir, no matter whether or not
the latters claim has the slightest foundation. An intention leading to such a
situation should not be easily ascribed to a legislature.
It does 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 is 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 motu 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 die restriction is 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
which 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 may be able to give such
security. This is the second 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 83 to appoint an administrator of the
property for its care and management until the suit mentioned in s. 4 is
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 lie 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 considers 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 the 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 not 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 faci. The
learned District Judge in deciding he there to demand security or not will no
doubt give due consideration to everything properly placed before him including
the findings in the application for appointment 84 of receiver and make his own
order after such consideration.
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 accordingly. 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 mutationby 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 Rajkat and for the recovery of possession of the
estate left by the Raja. According to him, the Raja left three sons Kumar
Rupendra Deb Rajkot and his younger brothers Kumar Shiba Prasad Deb and Kumar
Deba Prasad Deb, a daughter Prativa Bose and 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 January 5, 1954, Prativa Bose was
substituted in her place in these suits.
85 On March 31, 1954, Kumar Rupendra Deb
applied 'to the District Judge of jalpaiguri, praying that good and sufficient
security be taken from Prativa Bose under the provisions of s. IV of the Bengal
Wills & Intestacy Regulation V of 1799, hereinafter called the Regulation.
This application was opposed on grounds that it was presented after the expiry
of the period of limitation, that the provisions of s. IV of the Regulation did
not apply to a case where a single heir had been left by the deceased, that the
application was barred by the principle of waiver and that the District judge
had no jurisdiction to entertain it as the suit was at the time pending in the
High Court. The District judge held that the application was barred by time in
view of the provisions of Art. 181 of the Schedule to.
the Indian Limitation Act and that the
provisions of s. IV of the Regulation applied only to cases where the deceased
had left several heirs and therefore dismissed the application.
Kumar Rupendra Deb went in revision to the
The High Court found in his favour on both
the -questions regarding limitation and regarding the applicability of the
provisions of s. IV of the Regulation to the facts of the case, and
accordingly, allowed the revision application and ordered that the District
Judge should exercise his special jurisdiction under s. IV of the Regulation
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 following 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, consequently it is the
Court where the suit is pending which has the jurisdiction to entertain that
3. The application is barred by the
principles analogous to res judicata on the ground that the High Court has
already gone into the question of the interim protection of the estate.'
4. If such an application be considered to be
an inde86 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
5.The Regulation is impliedly repealed by the
provisions of the Code of Civil Procedure and the Indian Succession Act, 1925.
6.The High Court had no jurisdiction to
entertain a revision against the order of the District Judge rejecting the
application praying for the demand of security from Ashrumati Devi and
therefore could not interfere with that order.
Before dealing with these points, we would
like to refer to the relevant provisions of the Regulation. Its sections III
and IV, as they stood originally, are set out below "Ill. In case of a
Hindoo, Mussulman, or other person subject to the Jurisdiction of the Zillah or
City Courts, dying intestate, but leaving a son or other heir, who by the laws
of the country may be entitled to succeed to the whole estate of the deceased
such heir, if of age and competent to take tile possession and management of
the estate, or if under age or incompetent, and not under the superintendence
of the Court of Wards, its guardian, or nearest of kin, who by special appointment
or by the law and usage of the country may be authorised to act for him, is not
required to apply to the Courts of justice for permission to take possession of
the estate of the deceased as far as the same can be done without violence ;
and the courts of 'Justice are restricted from interference in such cases,
except a regular complaint be preferred, when they are to proceed thereupon
according to the general Regulations.
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 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 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." Certain portions of
s. III were repealed by Act XL ,of 1858 and Act XVI of 1874 in matters which do
not affect the question before us. In 1903, the expression ' when they are to proceed
thereupon according to the general Regulations' was repealed. This does not
make much difference as thereafter the complaint was to be proceeded with
according to the procedure laid down in the Code of Civil Procedure for the
trial of suits.
Aslirumati claims title to the estate as the
sole heir of the deceased Raja. Kumar Rupendra Narayan, the plaintiff in the
title suit, also claims title to the property as the sole heir of the Raja.
Each other claimant to the title, claims as sole heir. In the circumstances,
the contention for the appellant is that it is s. III which is applicable to
the facts of this case and not s. IV.There is no dispute that the former deals
with a case where a single heir is entitled to succeed to the whole estate of
the deceased and the latter deals with a case when there be more heirs than one
to the estate of the person dying intestate. It is the later part of s. IV
which provides for the judge, on a regular suit being preferred by the party
out of possession, to take security from the party or parties in possession of
the estate. The real contention therefore is that the judge can exercise this
power only when there be more heirs than one to the estate and there be a
dispute about the right of succession and that this provision cannot apply to
the case falling under s. III where the dispute, if any, is between the rival
claimants to the entire property 88 on the ground that each of them is entitled
to the entire estate as the sole heir. The High Court considered the contention
and did not accept it, as it did not see any good reason why the legislating
authority should have made any distinction between cases of disputes arising
where a person had died intestate leaving a single heir and where the person
died intestate leaving several heirs, as the words used in the two sections did
not indicate any such intention, as ss. III and IV (first part) do not
contemplate cases of dispute about succession and as the fact that the
provision about taking of security 'appears in the later part of s. IV, was no
reason to limit the applicability of that provision to what had gone before in
that very section. In support of the last view, reliance was placed on the
observations of Mellish L. J., in Cohen v. S.E. Railway.(').
To appreciate the contention for the
appellant, it is necessary to consider the entire object of making the Regulation.
The title of the Regulation states :
"A Regulation to limit the interference
of the Zillah and City Courts of Dewanny Adawlut in the execution of wills and
administration to the estates of persons dying intestate." The reason for
limiting such interference is given in s. 1 which indicates that the Regulation
was passed to remove doubts which were entertained,with respect to the extent
up to which and the manner in which the judges of the Zillah and City Courts of
Dewanny Adawlut in the provinces of Bengal, Behar, Orissa and Benares, were
authorised to interfere in cases where the inhabitants of those provinces had
left wills at their decease and appointed executors. to carry the same into
effect or who died intestate leaving an estate, real or personal, and also to
-apply to those cases as far as possible the principle prescribed in section XV
of Regulation IV of 1793 to the effect that in suits regarding succession and
inheritance the Mahomedan laws with respect to Mahomendans and the Hindoo laws
with regard to Hindoos be the general rules for the guidance of the judges. It
appears therefore that prior to the passing of this regulation, these Courts (1877)
2 E & D. 253, 260.
89 did interfere with such cases and it was
to limit and define those powers of interference that the Regulation was
The Regulation, therefore, should be
construed strictly as 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 connection.
Section 11 provides that executors appointed
under the will of the deceased can take charge of the estate and proceed in the
execution of their trust without any application to the judge of the Dewanny
Adalat 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 reference to the procedure adopted in
the time of the Indian rulers for investing the successor of a landholder is
found in Mr. Shore's Minute on the rights of zamindars and talookdars, recorded
in the proceedings of Government in the Revenue Department dated April 2, 1788,
printed at p. 228 of Elemetitary Analysis of the Laws and Regulations (enacted
by the Governor-General in Council)' by Harington, Volume 111.
The actual procedure on investing the
landholder is given in appendix No. 9 to this note, printed at p. 275 of the
same volume. An extract from the first paragraph quoted below, indicates that
the heir of the deceased zamindar had to get the permission of the State
authorities before assuming the management of the affairs of the zamindary :
Upon the demise of a zamindar, his heir or
heiress transmitted an account of the event, in a petition to the dewan of the
soobah, and the roy-royan ; or if landholders of the first rank, to the
soobahdar himself ; with letters to all the principal men of the court,
soliciting their protection. To an heir, or heiress who paid a large revenue to
the state, the soobahdar returned answers of condolence accompanied with an
honorary dress to the former and with a present of shawls to the latter.
Letters to a similar purport were transmitted by the dewan and the roy-royan.
After performing the funeral rites of the
deceased, the heir, if of age, was presented to the soobahdar by the dewan and
the royroyan; and after receiving the beetel 7-2 S C India/64 90 leaf, and an
honorary dress, 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 zamindary by inheritance and yet, in general,
required to take out a renewal of his title from the sovereign or his representative
on payment of a peshkush, or fine of investiture to the emperor, and a nuzranah
or present to his provincial delegates the Nazim. This is said in the remarks
submitted by him to Lord Comwallis 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 sand 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
Company got sovereignty over these provinces or parts thereof, heirs of
zamindars and possibly of other men of property, might have approached courts
as well either for obtaining such permission or for interference with the
person who had taken possession on the basis of such permission from some
officer of the company. Regulation V of 1799 was passed to provide that the
Courts were not to interfere in these matters on considerations of general
administrative convenience, but could interfere only judicially when they were
moved for adjudicating the title of the disputants to succession to the estate.
Section 11, as already stated, provided for
the executors to take charge of the estate of the deceased who had left a wilt
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 common with all others of a civil nature, under the general
rule contained in Section VIII, of Regulation 111, 1793 and proceed thereupon
according to the Regulations, taking the opinion of their law officers upon 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
being set aside, and generally upon all points of law that may occur; with
respect to which the judge is to be guided by the law of the parties as
expounded by Ms law officers, subject to any modifications enacted 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 permission from the Courts of justice, if it could be done
without violence. It enjoined upon the courts of justice not to interfere in
such cases except when a regular complaint be preferred and then too they were
to proceed according to the general Regulations till 1903. 'Thereafter the
proceedings were governed by the Civil Procedure Code. This meant that the
person who claimed to be so entitled, could take possession without obtaining a
any permission, if he could do so without violence and that his rival claimant,
if any, had to move the courts by means of a regular complaint and that it was
then that the courts of justice would consider the dispute between the person
who had taken possession and the other claimants. It laid down the entire
procedure which the courts of Justice were to follow in dealing with the
disputes between claimants, each claiming succession to the entire estate. It
is a complete code of procedure in that regard.
Similarly, s. IV is a complete code with
respect to the case in which the deceased died intestate and left more heirs
than one. If those heirs agreed amongst themselves in the appointment of a
common manager, that is to say, agreed to the common management of the estate
which remained undivided and to one person managing the entire estate, they
were at liberty, in view of the first part of the section, to take possession
of the estate and the courts of justice were prohibited from any interference
92 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
inheritance of landed property subject to the payment of revenue to Government.
Section 11 provides that if any zamindar,
independent talukdar or other actual proprietor of land shall die without a
will or without having declared by a writing or verbally to whom and in what
manner his or her landed property is to devolve after his or her demise, and
shall leave two or more heirs, who, by the Mahomadan or Hindu law may be
respectively entitled to succeed to a portion of the landed property of the
deceased, such persons shall succeed to the shares to which they may be so
entitled. The Regulation does not deal with the case of a deceased dying
intestate leaving a single heir as there was nothing to provide with respect to
the extent of the estate he is to succeed. He succeeded to the entire estate.
Section III provides that in the cases referred to in s. 11, the several
persons succeeding to the estate would be at liberty, if they so preferred, to
hold the property as a joint undivided estate and that if some or all of them
desired to have separate possession of their respective shares, a division of
the estate was to be made in the maner laid down in Regulation XXV of 1793, and
that if there be more than two sharers and any two or more of them be desirous
of holding their shares as a joint undivided estate, they would be permitted to
get their shares united. Thus, it would be seen that this section covers the
case of persons who would like to have their shares continue as a joint
undivided estate and also of those who would like to have their shares
separate. Section IV then provides that in the case of those who would like to
hold the property as a joint undivided estate, a manager for their joint estate
was to be appointed under the rules contained in ss. XXIII to XXVI of
Regulation VIII of 1793. Thus the provisions for a common manager of persons
holding their estate as a joint undivi93 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 manager, 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 disagreement among them
to act united through a common manager, the Court has to deal with the dispute
according to the general Regulations prescribing the procedure to be followed
by Courts, just as the Courts had to do in the case coming under s. 111, when
the deceased had left a single heir. In addition to the procedure so provided
under the general Regulations, one special provision was further made for the
Courts to follow when the Court was moved for settling the disputes between
several claimants to the estate and that special procedure is that on a regular
suit being preferred, the Court is to take good and sufficient security from
the party in possession for his complying with the judgment that be passed in
It may appear rather extraordinary that on
the mere institution of a regular suit, the court should invariably call upon
the defendant in possession of the property to furnish sufficient security for
his complying with the eventual judgment in the suit. It might have been
necessary in those days, as we find that it was considered necessary then for
the defendant to furnish security for his appearance in court if he did not
accompany the officer serving the summons for his appearing in person before
the court. Section V of Regulation IV of 1793 provided that the Court was to
issue a summons to the defendent requiring him either to accompany the officer
deputed to serve the summons to appear in person before the Court or to deliver
to such officer good and sufficient security to appear and answer upon
complaint on the day appointed either in person or by vakil. Order XXXVIII of
the present Code of Civil Procedure provides for demanding security for
appearance in court and for the purpose of securing compliance with the
judgment in certain specified circumstances only.
94 Sections III and IV, thus cover the entire
possibilities about the heirs of the deceased. The former deals when there be
only one heir and the latter when there be more heirs than one. The reason for
the special provision in the second part of s. IV and for a distinction being
made in the procedure to be followed in the two cases, lies in the fact that
when there be more heirs than one and they are not in agreement about common
management of the entire estate, they are not permitted by the provisions of s.
IV to take possession of the estate singly or by some of them jointly.
An agreement about it all the claimants being
heirs and about their respective shares, in the absence of an agreement about
common management, does not entitle them to take possession of the estate. In
case of disagreement about common management, the original procedure, whatever
it might have been under the law prevalent prior to the passing of this
Regulation, applied. They had to take permission, be it of some executive
officer or of the court of justice.
For such cases, this Regulation V of 1799
made no provision.
It is only when such a dispute between the
various claimants is brought before the court that it gets seized of the matter
and, on a regular suit being preferred, the first step it had to take suo motu
was to take good and sufficient security from the party in possession who had
obviously taken possession in defiance of the provisions of the first part of
s. IV. On the other hand, in the case of the deceased leaving a single heir, s.
III permits the heir to take possession of the estate peacefully and he takes
possession lawfully. Any rival claimant, challenging his title to the property
has therefore to establish his case in the court of law according to the
procedure laid down. The reason for the special provision in the latter part of
s. IV is therefore that one or more claimants to the estate take possession not
in accordance with law but against the provision of law. It would have been
unreasonable for the legislature to provide in s. III that the person claiming
to be the single heir of the deceased, dying intestate, and taking possession
of the estate in accordance with the provisions of that section, be called upon
to furnish security and in case of default to run the risk of making over
possession to another claimant disput95 ing his title to the entire estate. It
would be equally unreasonable if the second part of s. IV be so construed as to
make the peaceful possession of a person claiming title to the entire estate as
a single heir in jeopardy merely because another person disputes his right.
We make it clear here that the word
'complaint' used in this Regulation really refers to what we at present call a
plaint in a civil suit. Regulation III of 1793 defined the jurisdiction of
courts of Dewanny Adawlut established in the zillahs and the cities specified
in s. II of that Regulation for the trial of civil suits in the first instance.
This is clear from s. 1. Section III provides that each zillah and city court
was to be superintended by one judge alone.
These courts were empowered by s. VIII to
take cognizance of all suits and complaint respecting, Inter alia, the
succession or right to real or personal property. Section XVIIIprohibits these
courts from taking cognizance of any matter of a criminal nature except
proceedings for contempt and perjuries committed in court. Section XIV uses the
word 'complaint' with reference to one whom we now call a 'plaintiff'. These
provisions indicate that 'complaint' in the Regulations refers to a plaint and
not to what we now call a complaint in a criminal case. This is further made
clear by the provisions of s. 2 of Regulation IV of 1793 which deals with the
procedure to be followed in regard to the receipt, trial and decision of suits
or complaints cognizable in the courts of Dewanny Adawlut established in the
various zillahs. Section II provides that no complaint is to be received but
from the plaintiff nor any answer to a complaint but from a defendant or their
respective vakils duly empowered.
We arc therefore of opinion that each of the
sections 11, III and IV of Regulation V of 1799 is a complete code for dealing
with different situations. Section 11 deals with the case when the deceased
dies leaving a will under which an executor is appointed to manage the
property. Section III deals with the case when the deceased dies intestate
leaving a single heir and s. IV to cases when the deceased dies intestate
leaving more than one heir.
This view finds support from the fact that
when extending the provisions of this Regulation to other 96 Provinces all the
three sections viz., II, 111 and IV have not been invariably extended. Only ss.
IV, V, VI and VII and not ss. 11 and III were extended to the Central Provinces
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 single heir and where out
of several persons some claim to be the heirs while some others also claim to
be the heirs. These sections contemplate those cases when they provide for the
interference of courts on complaints by other persons against the person in
possession. Such complaints can be only when they are by such claimants to the
estate or part of it whose claims are not accepted by the others claiming title
to the estate. The effect of the expression 'as in the case of a single heir'
at the end of the first part of s. IV is -that the restriction on the
interference of a court of justice in the case where the deceased leaves more
heirs than one extends upto the same stage as has been described in s. III
which deals with the case of a single heir, that is to say, the interference is
restricted up to the stage a complaint is filed and that the interference
subsequent to it would be that in accordance with the procedure laid down in
the General Regulations. This expression cannot be interpreted to make the
second part of s. IV operative in the case coming under s. 111.
The observations of Mellish L.J., in Cohen v.
S.E. Railway(1) are not of much help in order to construe the scope of the
second part of s. IV in regard to its applicability to cases coming under s.
111. Those observations 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 Vict. C. 119, s. 16, includes that provision of the Railway and Canal
Traffic Act, so as to apply it not only to the carriage by railway, but to
carriage by steamer. It seems to me that this is a still plainer question,
except for the doubt thrown upon it by the Irish case. But the words are so
clear that there can be no doubt -.about it : 'The provisions of the Railway
and Canal (1877) 2 E & D 253.
97 Traffic Act, 1854, so far as the same are
applicable, shall extend to the steam vessels and to the traffic carried on
thereby'. Those words in their plain natural meaning incorporate s. 7 as well
as every other section of the Act. Then why should it be excepted? The only
reason is that this clause is not contained in a separate section by itself,
but is contained at the end of section 16 ; and therefore it is said that it is
to be confined to the subject matter to which the previous parts of section 16
relate. I am not aware that there is any such rule of construction of an Act of
Parliament. If some absurdity or inconvenience followed from holding it to
apply to the whole Act, it might be reasonable to confine the incorporation to
clauses relating to some particular subjectmatter, but if there is no
inconvenience from holding that the incorporation includes section 7 as well as
the other sections, we ought to hold that it does." The expressions to be
construed in that case were not as a proviso or exception to what had gone
before but formed an independent enactment. They were not separately numbered
as a section. In s. IV of the Regulation, the second part commences with the
word 'but' and thereby indicating that it is by way of an exception to what is
enacted in the first part-and that it is open to the courts to interfere in the
manner prescribed in the second part where the deceased had left more heirs
than one to the estate.
Section XIX of Regulation XL of 1793 enacted
for forming into a regular code all regulations, provided that one part of a
regulation has to be construed by another so that the whole might stand. This
provision simply means that the provisions of a Regulation should be so
construed that they be harmonized in case there be some apparent inconsistency
between the different provisions of the Regulation. This implies that in the
absence of such necessity for harmonizing the provisions of different
provisions of the Regulation, each provision has to be taken as complete by
itself and to mean what it states. This directly goes against the applicability
of the observations of Mellish L.
J. in Cohen's Case(1) to the con(1) (1877) 2
E. & D. 253, 260.
98 struction of the second part of s. IV with
respect to its applicability to s. 111. We do not find the provisions of s. III
and s. IV to be inconsistent in any manner and to necessitate their being
construed together. In fact, we have already indicated that there had been good
reason for providing a special procedure in addition to the procedure to be
followed in the trial of suits on regular complaints in cases in which the
deceased died intestate and left more than one heir.
We are therefore of opinion that the second
part of s. IV does not apply to the case where the deceased dies intestate
leaving only one heir entitled to succeed to the entire estate, a case which is
covered by s. III of this Regulation.
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
Before parting with the case we would like to
draw attention of Government to these provisions which appear to be somewhat
out of date and which need to be repealed. Ample power is to be found in the Indian
Succession Act and the Code of Civil Procedure to safeguard such rights and
there is hardly any need for a provision which was passed to remove certain
doubts created by the Regulation of 1793.
ORDER OF COURT In view of the opinion of the
majority the appeal is allowed with costs throughout.