Prativa Bose v. Kumar Rupendra Deb Raikat & Ors.

Raghubar Dayal J. The separate opinion of S. K. Das r and A. K. Sarkar JJ., was delivered by A. K., Sarkar J.

SARKAR J. Raja Prosanna Deb Raikat, the proprie-Sarkar tor of the Baikunthapur Raj Estate, in the district of Jalpai-guri in West Bengal, died intestate on December 4, 1946.

The Raja left behind him a widow, Rani Asrumati Debi, now deceased and the appellant Prativa Bose, the daughter by her. Rani Asrumati took possession of the estate on the Raja's death.

On August 7, 1947, the respondent Rupendra instituted a suit in the Court of the Subordinate Judge of Jalpaiguri, against Rani Asrumati and certain other agnatic relations of the Raja for a decl~tion that as the Raja's eldest son 1963 by. another wife Rani Renchi, he was the sole lawful heir

and entitled to the exclusive possession of the estate which Prativa Bose' was an impartible estate and governed by the rule of pri-

v.

Kumar mogeniture, and for possession and other consequential Rupendra Deb reliefs. Rani Renchi was a lady belonging to the Lepcha

Raikat & tribe and the respondent Rupendra alleged that the Raja Others. had married her according to the Gandharba form. The

f. suit was contested by Rani Asrumati and the agnatic rela-_sa,.kar tions 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 succe-eded. It appears that two agnatic relations, namely, Kumar Guru Charan and Kumar Jitendra filed suits in the High Court at Calcutta each claiming title to the estate as the sole heir of the deceased Raja. All these suits are still pending.

On January 5, 1954, Rani Asrumati died and thereupon the appellent Prativa Bose took possession of the estate claiming . title . to it. Since then she has been and still is m possession.

On March 31, 1954, the respondent Rupendra filed an application under s. 4 of the Bengal Regulation V of 1799 in the Court of the District Judge of Jalpaiguri for an order calling upon the appellant Prativa Bose to furnish security for compliance with the judgment that may be passed in the suit filed by him. The learned District Judge dismissed the application on two grounds. He first held that s. 4 of the Regulation did not apply to a case where a person died intestate leaving a single heir and the dispute was between several persons claiming to be that heir. Then he held that the application by the respondent Rupendra was barred under Art. 181 of the First Schedule to the Limitation Act.

The Respondent Rupendra moved the High Court at Calcutta in revision against the order of the learned District Judge. The High Court disagreed with" the learned District Judge on both the points and set aside his order and directed him to "exercise his special jurisdiction under 1963 s. 4 of the Regulation and take sufficient security from the opposite party Prativa Bose." The present appeal is by Prativa Bose v. Prativa Bose agaimt the order of the High Court. Kumar

The object of the Bengal Regulation V of 1799 appears Rupendra Deb to have been "to limit the intcrierence of the Zila ..... . Raikat Courts of Diwani Adalat in the execution of wills and Others. admi;iistration to the estate or pe"ons dying intestate."

The first section is in the nature of a preamble, and so far Sarkar /. 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

. ; ''-. • I - =~ j 'I . . :

1963 _,_ regular complaint, as in the case of a single heir; but if the· right of· succession · to the estate be disputed Prativa Bose between several claimants, one or more of whom may

v.

Kumar have taken possession, the Judge, on a regular suit Rupendra Deb being preferred by the party out of possession; shall

Raikl1' 6-take good and sufficient security from the party or 0thers. parties in possession for his or their compliance with

/. the judgment that may be passed in the suit; or, ·in Sarkar 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 of points including the two which were decided in favour of 1963 his client by the trial Court. We shall first take up the question of limitation. It does not seem to us that the Prativa Bose v. question really arises. Article 181 of the Limitation Act, Kumar 1908, prescribes the time within which certain applications llupendra Deb can be made. Section 4, however, does not require any Raikat application before an order calling upon a person to furnish Others. 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 is required to enable a court to make an order: see Tlze Oriental Bank Corpo-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 181 can no more be construed ejusdem generis and con-

fined to applications under the Code.

Prativa Bose We are unable to accept this contention and tliink

v. that the view expressed by Das J., in Kumar Sha Mulchand & Rupendra Deb Co. Ltd. v. Jawa!tar Mills Ltd. (') puts the matter correctly.

Raikat & The learned Judge said, "It does not appear to us quite Others. convincing, without further argument, tl1at the mere

f. amendment of articles 158 and 178 can ipso facto alter the Sarkat meaning which, as a result of a long series of judicial

decisions of the differept High Courts in India, came to be attached to the language used in article 181. This long catena of decisions may well be said to have, as it were, added the words 'under tile Code' in the first column of that article. If tllose words had actually been used articles 158 and 178 certainly would not have affected tile meaning of that article. If, however, as a result of judicial con-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.

The next question is whether the order could only be 1963 made by the court where the suit mentioned in s. 4 of the Regulation was pending. The High Court at Calcutta held Prativa Bose v. in Kumar Punyendra Narayan Deb v. Kumar Bhairabendra Kumar Narayan Deb() that the order could be made by a District J?.upendra Deb Judge even though the suit mentioned was not pending Raikat before him. We think that this is the correct view. All Others. that s. 4 savs is that "the Judge on a regular suit king f. preferred .......... shal\ take good and sullicient security". Sarkar There is nothing to show that the "Judge" referred to is the Judge before whom the suit is pen,ling though no doubt there will be no power to make an order requiring security under the section before the suit mentioned in it h:is been filed. From the summary of the Regulation that we have earlier given we are inclined to think that the Judge referred to is the Judge of the Zila Court whose powers of interference in the administration of the estate of a deceased person are intended to be res-trictetl 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, 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.

.. '.;·'. . ,, . _,.. . .,..f ;_ t: -"

78 SUPllEME COURT REPORTS 1963 Regulation V of 1799. It would thus appear ' ·~' • that j Sub- :i ordinate Judge woold have jurisdiction to take cognizance Pratt'v11 Bose of proceedings under Regulation V of_ 1799 only if the

v.

Kumar High Court conferred sµch jurisdiction on him by an order Rupendra Deb made for the purpose and no Subordinate Judge would

Rtdfr../IJ "- . have such jurisdiction without such order even though the Others. suit might be yending before him. It is, therefore, clear

f. that in the absence of an order under s. 23 of the Act of Sark_ar 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 not clear what the complaint contemplated is. It may be said that that complaint is not one arising out of a dispute between the heirs, for this part of the section directs the Courts not to interfere except upon a complaint, when the heirs are agreed among themselves ; if the heirs are agreed, then the complaint is not likely to be out of_ a 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 ;'( './ '. • 'i. ·. ·~ • ;r\v 'T }t' ·'

4 s:c.R. SUPREME OOURT REPORTS 79

sev~ clailIWJ.tS'', u.k.en by tharudve£, clearly include 1'63 a case where a person dies leaving a single heir and several personi dispute each claiming to be that heir. This seems Prativa BQs~ to us to be beyond :ill dispute. That being so, it would v. Kumar follow that in such a case also, the Court may demand Rupendra Deb security from the party in possession. The learned District Raikat Judge thought that as the opening words of the section Others. dealt with a case of more heirs than one, the words "the right of succession to the estate be disputed between several Sarkar claimants" which are separated from the opening words by a semi-colon must be read as governed by the opening words, and therefore, as confined to a dispute between several claimants in a case where there are more than one heir. We are not aware of any rule which says that two parts of a sentence separated by a semi-colon cannot deal with two different states of affairs. We find no justification in such a case for refusing to give to the words used their plain meaning and to read them as controlled by the preceding words because they are separated by a 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 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 1963 demanding of security when one of the disputing

claimants has peacefully got possession and the other or Prativa Bost· others have filed a suit, s. 4 cannot be applied to this. case

v.

Kurnar for the purpose of demanding security. Assuming that the Rupendra Deb interpretation put upon s. 3 is right, as to which we do not

Raikat _& think it necessary to express any view, we are unable to

Others. 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 Sarkar /. what we have said before is right, it does - its operation

should be excluded in a case covered by s. 3. Of course, if on its own words it can be said that s. 4 does not apply to the case of a person leaving a single heir, no further question arises. On the other hand, if it applies to such a case then there is no reason to say that it does not so apply simply because s. 3 also applies to such a case. We find no difficulty in applying both the sections to the case of a single heir. If there is no dispute, s. 4 has no operation in so far as demand of security is concerned. If there is ·dispute, the Courts can interfere under s. 3 on a complaint being filed and they can also demand security when one is in possession and the other or others are out of possession and have filed a suit or suits. We agree with the High Court that s. 4 applied to this case and the appellant could be called upon to furnish security. We have some doubt if s. 3 is intended to apply to the case of several persons each claiming to be the single heir of an intestate but we have assumed it to apply to such a case.

Then it was said that ss. 192-195 of the Succession Act, 1925 impliedly repeaied s. 4 of the Regulation. These sections of the Succession Act no doubt deal with a 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 interfered in revision as the trial Court had neither exceed-1963 ed nor refused to exercise its jurisdiction. It seems to us that this contention is ill founded. It is beyond dispute Prativa Bose v. that "if the erroneous decision results in the subordinate Kumar court exercising a juridiction not vested in it by law or Rupendra Deb failing to exercise a jurisdiction so vested, a case for revision Rtdkat arises": fay Chand Lal Babu v. Kamalaksha Chau-Others. dhury(' ). This principle fully applies to the present case.

The trial Court erroneously held-that is erroneously in the Sarkar /. 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.

No doubt the section says "the Judge .......... shall take .... security." Prima facie the words appear to impose an obligatory duty on the Judge. But the context may indicate a different intention: see State of U.P. v.

Manbodhan Lal Srivastava('). We think the context in the present case does so. It certainly does seem to us very strange that a person in possession of property claiming to be an heir should be required by a statute to give security simply because some other person claims to be entitled to ,,, "'·T.~1':'.·. , .'1··r~- .. _._,.~tf' .... :-r. . .- . . J 82 SUPREME COUl.T ltEPOl.TS [~ • ' ' 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 Prativa lJfJse a situation should not be =ily ascribed to a legi_,laturc. It

v.

Kum•r docs not seem to us that such could have been the inten-Ruproilra Deb tion of the present statute. There are several considera-

Raikat & tions, apart from the absurdity of the situation, which lead Others. us to that view.

The first consideration which we wish to notice ii> Sarkar /. the fact which we have earlier noticed, that under the

section, the Judge is to call for security suo motu. Of course, the Judge cannot call for security unless the facts entitling him to do so exist. It is obvious that in most cases the Judge would have no knowledge of these facts. He would thus be unable to act suo matu in a very large number of cases. It seems to us that it could not have been intended to cast an obligatory duty on the Judge when in a large number of cases it would be impossible for him to discharge that duty for want of knowledge of the necessary facts.

Next, we wish to point out that the whole object of the Regulation is .to restrict the interference of Courts in the matter of succession. Section 4 in so far as it enables a Court to demand security is an instance where the restriction. i.t relaxed and a Court is permitted to interfere in the manner provided, that is, by demanding security from the party in possession as an heir. There can be no doubt that the interference by the Court which the Regulation was intend-ed to restrict was discretionary with the Court. It would seem to follow that the interference whicb 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 the security. In such a case the Judge is authorised, to ~p~int an administrator of the property for its care 1963 and management until the suit mentioned in s. 4 is deter-mined. Quite clearly the power which is given to the Judge ?rativa ... Bose in the second and third stages is a discretionary power. Kumar The words used are in one case "may" and in the other Rupendra Deb "is authorised", both of which confer a discretionary power. Raikat It cannot be said that these words notwithstanding their Others. form impose an obligatory duty for they confer power to protect the right of a party. We say this because the Sarkar /. section does not proceed on the basis that the party out of possession has any right but only on the basis of the existence of a dispute no matter however unmeritorious.

It seems that if the power that the Judge has in the second and third stages, is only discretionary it can hardly be that the power given to him in the first stage is obligatory.

It could not be that the section obliged the Judge to take security from the claimant in possession, while if he did not furnish the security it was optional for the Judge to put the rival claimant in possession or to appoint an administrator to take possession. It seems to us that since the power exercisable in the second and third stages is a discretionary power, the power exercisable in the first stage must also be of the same nature.

In our view, therefore, the High Court was in error in directing the District Judge to "take sufficient security from the opposite party Prativa Bose", the appellant before us. We think the proper course would be to send the case back to the District Judge to decide in his discretion whether he com~ders it a fit case for calling upon the appellant to furnish security and if he thinks it is, to take the security. It was contended on behalf of the appellant that in view of the order of the High Court refusing tl:te application of the respondent Rupendra for the appointment of a receiver, the District Judge cannot in the exercise of his discretion call upon the appellant to furnish security.

We do nCJt think that the decision in the application for the receiver concludes the matter finally, for that 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 of receiver and make his own order after such conside-

ration.

Prativa Bost! We, therefore, direct that the case be sent back to

v.

Kumar the District Judge of Jalpaiguri to decide whether he Rupendra Deb would in the circumstances of this case call upon the

Raikat &· appellant to furnish security and make an order accord-

Others. iingly. The costs in this matter in all the Courts so far

incurred and to be incurred before the District Judge under Sarkar /. this order, will be costs in the suit.

Raghubar RAGHUBAR DAYAL J.-This Appeal, by special leave, is Dayal/. 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 Deb and Jitendra Deb. In July 1952, applications for the 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.

On March 31, 1954, Kumar Rupel)dra Deb applied 1963 to the District Judge of Jalpaiguri, praying that good and sufficient security be taken from Prativa Bose under the Prativa Bose provisions of s. IV of the Bengal Wills Intestacy Regu-v. & Ku1nar lation V of 1799, hereinafter called the Regulation. This Rupendra Deb app1ication was opposed on grounds that it was present-Raikat ed ai ter the expiry of the period of limitation, that the Others. provisions of s. IV or the Regulation did not apply to a case where a single heir had been left by the deceased, Raghubar Dayal f. 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 questions regarding limitation and regarding the appli-cability 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 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:

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

¶2The 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.

¶3The 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.

¶4If such an application be considered to be an inde- • t J 1 .f . • I ' l ·; . 1963 pendent application and not an application in the suit, it is barred by limitation under the provisions of Art. Prativa Bose 181 of the First Schedule to the Limitation Act.

v. 5.

Kum•r The Regulation is impliedly repealed by the provi-Rupendra Deb sions of the Code of Civil Procedure and the Indian

Raikat & Succession Act, 1925.

Others. 6. The High Court had no jurisdiction to enterain a revision against the order of the District Judge re-Raghubsr jecting the application praying for the demand of Dayal f.

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 sec-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 such 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 t 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 . . .

4 S.C.lt SUPitEME COURT R.EPOltTS 87

suit being preferred by the party out of possession, 1963 shall take good and sufficient security from the party or parties in possession for his or their compliance Prativa Base v. with the judgment that may be passed in the suit ; or Ku mu in default of such security being given within a rea-Rupendra Deb sonable period, may give possession, until the suit may Raikat be determined, to the other claimant or claimants Others. 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 affect the qtiestion 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 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

88 SUPREME COURT. REPORTS [1964]

.1963 on the ground that each of them is entitled to the entire

estate as. the sole heir. The High Court considered the ·Prativa Bose contention aud did not accept it, as it did not see any

v.

Kumar good reason why the legislating authority should have Rupendra Deb made any distinction between cases of disputes arising

Raikat & where a person had· died intestate leaving a single heir Others. and where the person died intestate leaving,several heirs,

as the words used in the two sections did not indicate Raghuba1· any such intention, as ss. III and IV (first part) do not Dayal /.

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 to 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 did interfere with such cases and it was to limit and de-1963 fine those powers of interference that the Regulation was passed. The Regulation, therefore, should be construed Prativa Bose v. strictly a~ a piece of restrictive legislation. Kumar

It also appears necessary to have an idea of what sort Rupendra Deb of interference was being made by these Courts. We have Raikat & not been referred to anything in particular in this con-Others. nection. Section II provides that executors appointed un-der the will of the deceased can take charge of the estate Raghubar Dayal/. 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 in 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 the land-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 leaf, and an honorary qress, was permitted to assume the management of the affairs of his zamindary." Prativa Bose Harington described the zamindar to be a landholder.

v. . !

Kumar of a peculiar description, not definable by any single term Rupendra Deb and said that he was allowed to succeed to the zamin-

Raikat & dary by inheritance and yet, in general, required to take Others. out a renewal of his title from the sovereign or his repre-

sentative on payment of a peshkush, or fine of investiture Raghubar to the emperor, and a nuzranah or present to his pn:>vin-

Dayal/.

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

any legal exception to the executors, as well as upon 1963 the provision to be made for the administration of the estate in the event of the appointed executor be-Prativa Bose v. ing set aside, and generally upon all points of law Kumar that may occur; with respect to which the judge is Rupendra Deb to be guided by the law of the parties as expounded Raikat by his law officers, subject to any modifications enact-Others. ed by the Governor-General in Council, in the form prescribed by Regulation XLI, 1793." Raghuhar Dayal f. 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. 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 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 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 en-tire estate, they were at liberty, in view of the first part of the sectioo, to take possession of the estate and the courts of justice were prohibited from any interference 1963 without a regular complaint as in the case of a single

heir.

Prativa Bose The provisions of Regulation XI of 1793 also throw

v.

Kumar some light with respect to the provisions of the first part Rupendra Deb of s. IV of Regulation V of 1799. This Regulation was

Raikat & made for removing certain restrictions on the operation Others. of Hindu and Mahomadan Law with reference to inheri-

tance of landed property subject to the payment of reve-ilitghubar nue to Government. Section II provides that if any

D•yal /.

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-perty 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 m the maner laid down m Regulation XXV of 1793, and that if there be more than two sharers and any two or more of them be de-mous of holding their shares as a 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-ded estate is made in this Regulation XI of 1793. The 1963 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 Prativa Bose v. more than one, in principle agree to have a common mana-Kumar ger, they require no permission for taking possession of Rup<ndra D<b the property. Raikat

When a complaint is made by any one of the heirs or Others. persons claiming to be heirs on account of the dis-agreement among them to act unitedly through a com-Raghubar Dayal 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 the eventual judgment in the suit. It might have been neces-sary 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 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 Sections III and IV, thus cover the entire possibilities

about the heirs of the deceased. The former deals when Prativa Bose there be only one heir and the latter when there be

y.

Kumar more heirs than one. The reason for the special pro-Rupendra Deb vision in the second part of s. IV and for a distinction be-

Raikat & ing made in the procedure to be followed in the two cases,

Others. lies in the fact that when there be more heirs than Raghubar one and they are not in agreement about common

Dayal /. 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 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 pait of s. IV is therefore that one or more claim-ants 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 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-ing his title to the entire estate. It would be equally un-1%3 reasonable if the second part of s. IV be so construed as to make the peaceful possession of a person claiming title Prativa Bose v. to the entire estate as a single heir in jeopardy merely Kumar because another person disputes his right. Rupendra Deb

We make it clear here that the word 'complaint' used Raikat in tliis Regulation really refers to what we at present call Others. a plaint in a civil suit. Regulation III of 1793 defined the jurisdiction of courts of Dewanny Adawlut established in Raghubar Daytd f. 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 to one whom we now call a 'plaintiff'. These provi-sions indicate that 'complaint' in the Regulations re-fers to a plaint and not to what we now call a com-plaint 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 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.

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 extending the provisions of this Regulation to other

96 SUPllEME COURT REPORTS [1964] 1963 Provinces. all the three sections viz., II, III and IV have

not been invariably extended. Only ss. IV, V, VI and_ VII Prativa Bose and not ss. II and III were extended to the Central Pro-

v:

Kumar vinces by the Central Provinces Laws Act XX of 1876. Rupendra Deb It is not correct as observed by the High Court, that

Raikat & s. III and first part of s. IV of the Regulation do not cover

Others. the cases where each of several persons claims to be the sin-

gle heir and where out of several persons some claim to be Raghubar the heirs while some others also claim to be the heirs.

Dayal/.

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 i 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

Traffic Act, 1854, so far as the mne are applicable, 1963 shall extend to the steam vessels and to the traffic carried on thereby'. Those words in their plain na-Prativa Bote v. tural meaning incorporate s. 7 .as well as every other Kumar section of the Act. Then why should it be excepted? Rupendra Deb The only reason is that this clause is not contained in Raikat & a separate section by itself, but is contained at the Others. end of section 16 ; and therefore it is said that it is Raghubar to be confined to the subject matter to which the Dayal f. 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 inconve-nience followed from holding it to apply to the whole Act, it might be reasonable to confine the incorpora-tion 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."

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 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 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 i observations of Mellish L.J. in Cohen'J Cag( 1) to the con-

( 1) ( 1877) 2 E. a. D. 253, 260.

1963 struction of the second part of s. IV with respect to

its applicability to s. III. We do not find the provi-Prat£va Bose sions of s. III and s. IV to be inconsistent in any man-

v.

Kumar ner and to necessitate their being construed together. In Rupendra Deb fact, we have already indicated that there had been good

Raikat & reason for providing a special procedure in addition to the Others. procedure to be followed in the trial of suits on regular

complaints in cases in which the deceased died intestate Raghubar and left more than one heir.

Dayal/.

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. y

ORDER OF· COURT

In view of the opinion of the majority the appeal is allowed with costs throughout.

Appeal allowed.