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Vikram Singh Vs. Krishna Singh Judev and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 436 of 1978
Judge
Reported inAIR1979MP145; 1979MPLJ181
ActsSuccession Act, 1925 - Sections 192, 193 and 194
AppellantVikram Singh
RespondentKrishna Singh Judev and ors.
Appellant AdvocateB.D. Gupta, Adv.
Respondent AdvocateR.C. Shukla, Adv.
DispositionRevision allowed
Cases Referred(Kunhi Lakshmi v. Mrs. R. Rugmani
Excerpt:
.....that the aforesaid three things co-exist is a condition precedent for ordering issuance of summons to the party complained of. section 194 of the act by using the words 'but not otherwise' enacts a legislative injunction against the court not to issue summons to the other party without being satisfied on the ground specified in section 193 of the act. recording of satisfaction is a sine qua non for getting jurisdiction to summon the party complained of. accordingly, if a court acts without complying with the requirements of statute and passes an order without recording satisfaction as contemplated by section 194 of the act, it will be deemed that he is acting contrary to the provisions of law and as such, any order passed for summoning party complained of, that order will be..........the provisions of section 193 of the act inasmuch as it does not disclose any satisfaction of the learned judge as to his belief that sufficient ground exists for believing that the party in possession of taking forcible means for seizing possession had no lawful title. therefore, the im-pungned order is without jurisdiction. shri r. c. shukla, appears on the authority of shri r. s. bajpai, counsel for the impugned order placing reliance on the ratio of the case reported in (kunhi lakshmi v. mrs. r. rugmani), air 1960 ker 47.4. after having heard the learned counsel for the parties, i am of the opinion that the revision deserves to be allowed,5. part vii of the act deals with protection of property of deceased. sections 192, 193 and 194 are placed in the aforesaid part.6. section 192(1).....
Judgment:
ORDER

H.G. Mishra, J.

1. This is revision directed against an order dated 5-4-1978 whereby the learned A. D. J. has directed issuance of notice to the applicant of an application submitted by non-applicants under Section 192 of the Indian Succession Act, 1925 (hereinafter referred to as the Act), for protection of property of the deceased Shri Raja Balbhadra Singh Judev, ex-Ruler of the erstwhile Datia State.

2. Facts essential for the present purposes are as under :--

(i) After demise of Raja Balbhadra Singh Judev on 28-3-1978, non-applicants Nos. 1 to 5 submitted an application under Section 192 of the Act. This application was filed on 4-4-1978.

(ii) Thereafter the learned A. D. J. made an inquiry as contemplated by Section 193 of the Act and examined Laxmesh-war Singh, non-applicant No. 4 herein, and thereafter ordered issuance of summons to the applicants under Section 194 of the Act. Aggrieved by this order the present revision has been filed.

3. Shri B. D. Gupta, learned counsel for the applicant contends that the impugned order is contrary to the provisions of Section 193 of the Act inasmuch as it does not disclose any satisfaction of the learned Judge as to his belief that sufficient ground exists for believing that the party in possession of taking forcible means for seizing possession had no lawful title. Therefore, the im-pungned order is without jurisdiction. Shri R. C. Shukla, appears on the authority of Shri R. S. Bajpai, counsel for the impugned order placing reliance on the ratio of the case reported in (Kunhi Lakshmi v. Mrs. R. Rugmani), AIR 1960 Ker 47.

4. After having heard the learned counsel for the parties, I am of the opinion that the revision deserves to be allowed,

5. Part VII of the Act deals with protection of property of deceased. Sections 192, 193 and 194 are placed in the aforesaid part.

6. Section 192(1) of the Act provides that :--

'(1). If any person dies leaving property, movable or immovable, any person claiming a right by succession thereto or to any portion thereof, may make application to the District Judge, of the district where any part of the property is found or situate for relief either after actual possession has been taken by another person or when forcible means of seizing possession are apprehended'.

7. Section 193 of the Act provides mode of inquiry before issuance of summons to the non-applicants. It runs as under :--

'193. Inquiry made by Judge -- The District Judge to whom such application is made shall, in the first place, examine the applicant on oath and may make such further inquiry, if any, as he thinks necessary as to whether there is sufficient ground for believing that the party in possession or taking forcible means for seizing possession has no lawful title, and, that the applicant or the person on whose behalf he applies is really entitled and is likely to be materially prejudiced if left to the ordinary remedy of a suit, and that the application is made bona fide.'

Section 193 has been enacted for the purpose of necessitating inquiry into the existence of sufficient grounds for believing (1) that the person in possession or taking forcible means of seizing possession has no lawful title and (2) that the applicant or the person on whose behalf he applies is really entitled and is likely to be materially prejudiced if left to the ordinary remedy of a suit and (3) that the application is bona fide. The Court has to be satisfied that 'there is sufficient ground for believing as aforesaid'. It is only when the District Judge is so satisfied but not otherwise that he can summon a party-complained of and give notice of vacant or disturbed possession by publication. This is what has been enjoined on him by Section 194 of the Act which runs as under :--

'194. Procedure -- If the District Judge is satisfied that there is sufficient ground for believing as aforesaid but not otherwise, he shall summon the party complained of and give notice of vacant or disturbed possession by publication and, after the expiration of a reasonable time, shall determine summarily the right to possession (subject to a suit as hereinafter provided) and shall deliver possession accordingly :

Provided that the Judge shall have the power to appoint an officer who shall take an inventory of effects and seal or otherwise secure the same, upon being applied to for the purpose, without delay, whether he shall have concluded the enquiry necessary for summoning the party complained of or not',

8. From perusal of Sections 192, 193 and 194 of the Act, the following propositions of law emerge:--

(1) The remedy enacted by Section 192 is of an extraordinary character.

(2) The power vested therein is to be exercised only when after inquiry the learned Judge finds that there are sufficient grounds for believing.

(a) Party in possession or taking forcible means for seizing possession has no lawful title, and

(b) that the applicant or person on whose behalf he applies is really entitled and is likely to be materially prejudiced if left to the ordinary remedy of a suit, and

(3) The application is bona fide.

9. The satisfaction contemplated by law is to be in regard to existence of sufficient grounds for believing that the aforesaid three things co-exist.

10. Recording of the satisfaction on the existence of sufficient grounds for believing that the aforesaid three things co-exist is a condition precedent for ordering issuance of summons to the party complained of. Use of the words 'but not otherwise' is of great significance. Section 194 of the Act by using the words 'but not otherwise' enacts a legislative injunction against the court not to issue summons to the other party without being satisfied on the ground specified in Section 193 of the Act. It is not as a matter of routine that summons can be ordered to be issued. It is at this point that the special procedure enacted by Section 194 of the Act governing such matters differs from a procedure of ordinary suits. Recording of satisfaction is a sine qua non for getting jurisdiction to summon the party complained of.

11. Consequently, in cases where the learned Judge without recording satisfaction as contemplated by Section 194 read with Section 193 of the Act orders issuance of summons, it will be acting contrary to the provisions of law enacted by Section 194 of the Act.

12. The Succession Act, 1925 is a special law and in Section 194, it enacts a special procedure for matters originated by application under Section 192 of the Act. Accordingly, if a court acts without complying with the requirements of statute and passes an order without recording satisfaction as contemplated by Section 194 of the Act, it will be deemed that he is acting contrary to the provisions of law and as such, any order passed for summoning party complained of, that order will be without jurisdiction,

13. In the instant case, the impugned order does not record requisite satisfaction. It simply states the factum of submission of the application under Section 192 of the Act and the factum of examination of one of the applicants Laxmeshwar Singh and proceeds to order issuance of summons to the applicants herein. Thus the impugned order is passed in flagrant violation of the law contained in Section 194 of the Act.

14. This brings me to the another aspect of the case, whether the satisfaction contemplated by the aforesaid provision is 'subjective' or objective and whether the satisfaction should be reflected in the order issuing summons or not.

Satisfaction contemplated by Section 194 of the Act is objective. It has to be in subject of the aforesaid three grounds enacted in Section 193 of the Act. This is clear from these words which occur in Section 194 :--

'If the District Judge is satisfied that there is sufficient ground for believing as aforesaid.'

By use of the words 'as aforesaid' the legislative intent is made clear and is referable to the three grounds mentioned in Section 193 of the Act. Therefore, when a court proceeds to issue summons, recording of requisite satisfaction must precede the order of issuance of summons. The argument that it will be deemed that the District Judge, was not satisfied has to be entertained to be rejected.

15. Reliance on the ratio of the case of Kunhi Lakshmi alias Leela Amma and others (Supra) is not available to Shri Shukla in the present case because in that case the learned District Judge had prior to ordering issuance of summons recorded his satisfaction to the effect that there were sufficient grounds to believe circumstances set out in the petition consistent with the provisions of Section 193 of the Act. In the present case, no such satisfaction has been recorded by the learned Judge. This makes the whole world of difference and makes the ratio of the case of Kunhi Lakshmi (Supra) inapplicable to the present situation.

16. In this view of the matter, the revision deserves to be allowed and is hereby allowed and the impugned order is set aside. Now it is for the learned Judge in seisin of the case to proceed in accordance with the provisions of law and examine whether sufficient ground for such belief as is contemplated by Section 193 read with Section 194 of the Act exists or not and thereafter act according to the law. In view of the fact that it was obligation of the court to have complied with the requirements of law in regard to the matter of requisite satisfaction which the learned A. D. J. has failed to discharge. I leave parties to bear their own costs as incurred.


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