1. This appeal and revision arise out of an interlocutory order dated 20-8-1963 passed by the Subordinate Judge of Berhampur, under Section 12 of the Guardians and Wards Act. The aggrieved party was not quite sure as to whether an appeal or revision lay and hence he took the precaution of filing a revision as well as an appeal. They are both disposed of in this judgment.
2. One L. Pappayya died some time in 1932 leaving some properties and heirs as described in the genealogical tree given below :--
Papayya(died in 1932)
married Dalamma (died in 1962)
| | | | |
Mahaluxmi Chandramma Kanthamma Narada Bharath Gangamma-chandr-
(dead) (dead) (dead) Ready ayya(died)
| | (Objector) |
Narayanaswami Kumari Dalayya died 6-5-1963
| | |
Minor Minor Minor
The appellant petitioner Narada Bharata Reddy was first married to Kanthamma and after her death, to Chandramma. After the death of Chandramma, he has married Gangamma who had a son named Dalayya through her first husband Chandrayya. The respondent opposite party is none else but the maternal grand-father of the three minor children of Salayya. He filed an application for being appointed guardian of the properties of the minor, children of Salayya, alleging that the properties belonged to Dalayya and that after his death on 6-5-1963 they came into the possession of his two widows, (mothers of the minors). There was also a prayer for appointment of an interim receiver for the management of the minors' properties pending the disposal of the guardianship application. This prayer was obviously made in pursuance of Sub-section (1) of Section 12 of the Guardians and Wards Act.
It was strenuously opposed by the appellant petitioner Bharata Reddy who urged that the properties did not belong to Dalayya, that they were all along in his possession as the husband of Gangamma and that, consequently the Court had no jurisdiction to pass any interim order which would have the effect of dispossessing him from the properties. This matter was heard at some length by the learned Subordinate Judge before whom both parties filed certain documents in support of their rival claims, as to who was in actual possession of the properties. The learned Subordinate Judge held that there was prima facie evidence to show not only title but also possession of the disputed properties remained with the minors and hence he appointed a Receiver,
3. Dalayya's claim in the properties is itself based on his alleged adoption by his grand-father Dalamma sometimes in 1932 after the death of her husband Papayya. This adoption is challenged by the appellant. Mr. Mohapatra on his behalf contended that there is a genuine dispute regarding the validity and factum of adoption and that the Court exercising its functions under the Guardians and Wards Act had no jurisdiction to dispossess a third party and that proper order was to direct the guardian to file a civil suit for recovery of the possession of the manor's properties.
4. I may now refer to the provisions of Section 12(1) of the Guardians and Wards Act. That sub-section reads as follows :
'12(1) The Court may direct that the person if any, having the custody of the minors shall produce him or cause him to be produced at such place and time and before such person as it appoints and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper.'
It is clear from the language of this sub-section that the court has jurisdiction to pass interim orders for the protection of the properties of the minor. It is true that Clause (b) of Sub-section (3) of the section says that the Court has no jurisdiction to dispossess 'otherwise than by due course of law' any person in possession of any of the properties of a minor. According to Mr. Mohapatra on the materials on record the court ought to have held that the disputed properties were in the possession of the appellant and consequently he should not have appointed a Receiver with a direction to take possession of the properties on behalf of the minors.
5. Before discussing the decisions cited by counsel for both sides I may approach this question by a mere construction of the provisions of the Act. It is true that, in terms Sub-section (1) of Section 12 would apply only for the purpose of protecting the 'properties of the minor' and when this sub-section is read with Clause (b) of Sub-section (3) of Section 12, it may be further held that if the properties of the minor are found to be in the possession of any other person he should not be dispossessed 'except by due course of law'. But the further question that arises is whether in any guardianship proceeding the court has initial jurisdiction to decide prima facie whether the disputed property is the property of the minor and whether he is in possession of the same so as to enable it to issue interim orders for the appointment of a Receiver. Mr. Mohapatra put forward the extreme contention to the effect that the Court has not got even the initial jurisdiction and that as soon as a third party comes forward with an objection, claiming title and possession over the properties, the Guardianship court should not pass any interim orders for the protection of the property but may merely appoint a guardian for the properties of the minor without specifying the same, leaving it to him to file Civil suit to recover possession on behalf of the minor.
(6) In my opinion, this extreme contention- is not warranted by the language of the section and it will go against the well known principles governing the jurisdiction of Courts. As early as 1881 Lord Esher in Queen v. Commrs. for Special Purposes (1881) 21 QBD 313 at p. 319 laid down the following proposition :
'When an inferior court or tribunal or body which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body. It may, in effect, say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether the state of facts exists, and if they exercise the jurisdiction without its existence what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may entrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as jurisdiction, on finding that it does exist to proceed further or do something more. When the legislature are establishing such a tribunal or body with limited jurisdiction they also have to consider whatever jurisdiction they give them, whether there shall be any appeal from their decision otherwise there will be none. 'In the second of these two cases I have mentioned, it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave the jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were,given jurisdiction so to decide, without any appeal being given, there is no appeal from exercise of their jurisdiction.'
The present case will come within the first class of cases referred to in the aforesaid passage. The Legislature conferred power on the Guardianship Court by Sub-section (1) of Section 12 of the Guardians and Wards Act, to pass orders for interim protection of minor's property. For exercising this jurisdiction the Court has to decide initially whether the disputed property is the property of the minor, but as pointed out by Lord Esher it is not for that Court to 'conclusively decide' the question and its decision that it is the property of the minor will not operate as res judicata and may be set aside by a Court of competent jurisdiction. But to say that the Guardianship Court has no jurisdiction even to decide initially and summarily that the disputed property is the property of the minor would render the provisions o Section 12(1) infructuous in most eases. Because it will then be quite easy for any person to come further with a mere pretence of a claim, or a wholly unfounded claim that he is the owner and is in possession of the properties and thereby oust the jurisdiction of the Guardianship Court to protect the property of the minor and thus drive the guardian to costly and protracted civil litigation. In such instances as pointed out by Lord Esher, the initial jurisdiction of the Court to decide summarily, but not conclusively, the existence of certain state of facts on the strength of which it gets jurisdiction to decide certain other questions, must be recognised.
7. The aforesaid observations of Lord Esher have been followed in innumerable decisions of the Indian High Courts, see Province of Bombay v. Khushaldas S. Advani, AIR 1950 S C 222 (264), Ebrahim Aboobakar v. Custodian General of Evacuee Property, New Delhi, AIR 1952 S C 319 (322). Even in Gurappa Shivgenappa v. Tayawa Shidappa, AIR 1916 Bom 202 (2) on which Mr. Mohapatra relied it was recognised that though an elaborate enquiry is not required in a guardianship proceeding under Section 7, a summary enquiry followed by an order for the welfare of the minor was necessary. Similarly in Munni Devi v. Bimla Devi, ILR (1950) All 264 it was pointed out that if prima facie it was found that the property belonged to the minor the Court would be justified in passing orders for the interim protection of the property under Section 12(1) of the Guardians and Wards Act. The learned Judges rejected the extreme contention put forward in that case in the following terms :
'We are not prepared to hold that Section 12(1) of the Act would come into operation only when there be no dispute about property with respect to whose proper custody, orders are sought. We consider that such an interpretation would defeat the object of the Act. It is only when there is a dispute about the property that there is a danger of one party or the other damaging that property. In the case of admitted property, the person in possession will always be bound to account for it and would ordinarily have no objection, to any order with respect to the management of the property.'
I may also refer in this connection to Ram Narain v. Mt. Goura, AIR 1927 Oudh 68.
8. Mr. Mohapatra relied on several decisions where it was held that once it is proved or admitted that the property is in the possession of a third party, the guardianship Court has no jurisdiction to dispossess that party in a summary proceeding under the Guardians and Wards Act and that the proper course was to direct the guardian to file a civil suit for recovery of possession of such property. But if these cases are carefully scrutinised, it will be noticed that, in all of them, there was a clear finding or an admission that the property was in the possession of a third party. Under such circumstances, Clause (B) of Sub-section (3) of Section 12 will come into operation and that party can be dispossessed only by due course of law, i.e., by regular civil suit. Thus in Harbans Singh v. Rajinder Kuar, AIR 1925 All 277 it was not challenged that the property was in the actual possession of a 3rd party. But even in respect of this possession it was recognised that the guardianship Court had jurisdiction to hold a summary enquiry. But the learned Judges merely said that in such a summary enquiry the trust previously created cannot be set aside so as to bind the trustees for all time to come and compel them to hand over the property immediately. In Chandrika Rai v. Shrikant Rai, AIR 1929 All 597 (1) it was found that the third party was in actual possession as a trespasser and he could therefore be evicted only by a regular civil suit. In Sheosajan Singh v. Gokul Singh, AIR 1949 Nag 130 it was observed that the guardianship court though having control over the ward and over the guardians, had no control over third party who has entered on the properties of the ward whether rightly or wrongly. In Rajagopal Mudaliar v. Official Trustee High Court, Madras, AIR 1952 Mad 79 also possession was found with a third party. Daman Singh v. Maktul Kaur, AIR 1955 Punj 137 was also a case of admitted possession remaining with a third party.
9. The legal position therefore appears to be as follows:
For the purpose of exercising jurisdiction under Section 12(1) of the Guardians and Wards Act, the Court has initial jurisdiction to decide in a summary enquiry whether the disputed property is the property of the minor and whether it is in the possession of the minor or a third party. It is true that this decision is not conclusive, nor will it operate as res judicata even though it may be decided in the presence of the third party.
10. The next question for consideration is whether in this summary proceeding the learned lower court was justified in saying that title and possession were prima facie with the minors. The minors' title is undoubtedly dependent on the adoption of their father Dalayya by his maternal grandmother Dalamma sometime in 1932. Though the adoption has been challenged by the other side there are documents of unimpeachable genuineness (made at the time when the question was never in controversy) which are sufficient for establishing adoption in a summary enquiry. Papayya was the Village Karnam of Kamrigaon and when he died in 1932 the question of appointing a successor to him arose. The report of the then Deputy Tahsildar D/- 24-3-1932 shows that Papayya's widows namely Dalamma and her co-wife, adopted Dalayya and also executed a deed though it was not registered. On the basis of his report the Sub-Collector by his order R. Dis-No. 220 D/- 1-4-1932, appointed Dalayya (the adopted son of Papayya) as Karnam of the village but as he was then a minor he approved the appointment of the appellant Narada Bharat Reddy as Deputy to the registered Karnam. The statement of Dalamma admitting the adoption and similarly, the statement of the appellant agreeing to work as Deputy Karnam of the village were also filed. It is true that the appellant while agreeing to be the Dy. Karanam had not expressly admitted that Dalayya was adopted as son to Papayya but the statement of Dalayya's grandfather Dalamma, coupled with the fact that the appellant agreed to be the Dy. Karanam, knowing that the registered Karnam of the village was the minor Dalayya, would, show that he was impliedly admitting the adoption because Dalayya's right to succeed as Karnam, depended on his establishing before the Revenue authorities that he was the adopted son of his maternal grand-father. At that time Dalayya was a minor boy aged only 2 years and from the report of the Deputy Tahasildar and the order-sheet of the sub-collector it appears that none raised any dispute about his adoption. These documents are, I think, sufficient for the lower court to hold that Dalayya had title to the properties and after his death his minor children have prima facie title to the same.
11. Coming to the question of possession there could be no doubt that Solayya was in possession till his death on 6-5-63. There are a series of rent receipts to show that during his life time he was paying rent, the only rent receipt in the name of the appellant being of the year 1945-46 does not disprove Dalayya's possession because at that time he was a minor and the appellant was admittedly working as Deputy Karnam. In the Settlemant record of rights of 1951 also Dalayya's name was recorded and he was shown as the son of Papayya.
12. The next controversial question, however, is about possession after the death of Dalayya on 6-5-63, The application for guardianship was filed on 22-6-63 within one month and 16 days of Dalayya's death. In that application it was stated on behalf of the minors that the appellant made it impossible for them and their mothers to live in Dalayya's family dwelling house and that they were compelled to shift to village Bhabanpur to stay with their maternal grand-father on or about 6-6-53. Mr. Mohapatra contended, on the basis of this admission, that after Dallaya's death at any rate, the appellant came into actual possession of all their properties and that prima facie possession must therefore be held to be with him. I am however unable to accept this argument. It may be that minors and their mothers were constrained to leave the family dwelling house in Kamagaon due to the machinations of the appellant but the interval between the date of Dalayya's death and the date on which the guardianship application was filed was short and no agricultural operations could possibly have been done or other acts of possession exercised during that period. Hence it cannot be said that the minors were actually dispossessed of their property though there is undoubtedly evidence of scramble for possession. As soon as guardianship application was filed, a Pleader Commissioner was appointed to prepare an inventory but he was unable to do anything and consequently on 5-7-1963 the Court passed an order appointing one Sri H.C. Patnaik as an interim receiver with a direction to lease out the properties in the current year by public auction. The petitioner obtained stay of this order from court on 10-3-1963 in M.A. No. 84 of 1963 but that stay order was also vacated on 9-12-63. In the absence of any other material on record it must be held that the ad interim receiver was in possession of the properties and exercised acts of possession for the year 1963-64. There is also clear evidence to show that the ad interim receiver is in possession of the properties by leasing them out for the year 1964-65. In fact when he leased out the properties to one of the bidders, the rival claimant came up with a Civil Revision to this Court (C.R. 100/64) which was dismissed summarily. This shows prima facie at any rate that the Receiver is exercising acts of possession.
13. Thus the materials on record show prima facie that the minors were never dispossessed of the properties by the petitioner prior to filing the guardianship application on 22-6-1963. There was apprehension of dispossession by the appellant after the death of Dalayya on 6-5-1963 as the minors were compelled to leave their ancestral house on 6-5-1963. They immediately sought the protection of the guardianship court and obtained a direction for appointment of an interim receiver with a further direction that he should take charge of the properties. All that could be reasonably inferred is that during the short interval from 6-5-1963 to 22-6-1963 there was a struggle for possession by the appellant--but before he could succeed in dispossessing the minors, the guardianship court had intervened, appointed a receiver and taken possession of the properties.
14. For these reasons I maintain the order of the Lower Court and dismiss both the appeal and revision with costs. There will be one consolidated hearing fee of Rs. 100/-.
15. I agree.