LexPRATIVA BOSE versus KUMAR RUPENDRA DEB RAIKAT & ORS.
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4 S.C.R. SUPREME COURT REPORTS 69 PRA TIVA BOSE I!. KUMAR RUPENDRA DEB RAIKAT & ORS. (S. K. DAS, A. K. SARKAR, M. HIDAYATULLAH, RAGHUBAR DAYAL AND N. RAJAGOPALA AYYANGAR JJ.) Succession to Estate-Prof>rietor dying intestate leaving a single heir-Dispute between several claimants-Suit by person out of possession-Application for taking of security from person in pos- session-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 Sub- ordinate 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 pend- ing 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 Dis- trict 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 inter- ference, 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 admini- stration to the estate for the benefit of the heirs who may on investigation be found entitled to succeed thereto." He/J (Per Hidayatullah, Dayal and Ayyangar JJ.) that the 1963 May, JO. 1963 Prativa Bose v. Kumar Rupendra Deb Raikat & Others. 70 SUPREME COURT REPORTS £1964] Regulation was a piece of restrictive legislation and its provisions should be strictly construed. Each of the ss. II, III and IV of the Regulation, properly read and construed, was a complete code by itself and dealt with the different situations. Section II applied when the deceased died leaving a will and naming an executor to manage the property, s. III applied when the deceased died intestate leaving a single heir and s. IV applied when the deceased died intestate leaving more than one heir. The provisions of ss. 111 and IV were in no way incon- sistent and it was not necessary to construe them together. Cohen v. S. E. Railway, (1877) 2 E. & D. 253, held inapplic- able. The second part of s. IV which provided for taking of security did not apply to a case such as the present where the deceased died intestate leaving only one heir entitled to the entire .estate. It fell within the ambit of s. III of the Regulation. , Since the courts have now ample powers under the Indian Succession Act, 1925, and the Code of Civil Procedure, these pro-. visions of the Regulation are out of date and should be repealed. Per S. K. Das and Sarkar J).-Section IV of the Regulation does not require an application for taking security and the court can act suo motu. Art. 181 is confined to applications under the Code of Civil Procedure and it can have no application to the present application as it is under s. IV of the Regulation and not under the Code. An application is not under the Code because the procedure there laid down has to be followed. Sha Mulchand & Co. Ltd. v. Jawahar Mills, Ltd. [ 1953] S.C.R. 3
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