1. The short point that arises for consideration in this Civil Revision Petition is as to whether the order dated 16-2-1959, passed by the! learned District Judge of Kozhikode summoning the respondents, under Section 194 of is Act (Act XXXIX of 1925) is one passed within his jurisdiction.
2. Original Petition No. 9 of 1959 on the file of the learned District Judge, was filed by the first respondent before us under Part VII of the Indian Succession Act (Central Act) XXXIX of 1955. The petition is a fairly extensive one, and it sets out in extenso the circumstances under which the said application has been filed. The first respondent herein claiming to be the widow of the late Parakkat Krishna Menon, who died on 11-9-1.958, filed the application for possession of the estate of her deceased husband in the ground that she was his sole heir under the Hindu Succession Act. Certain other reliefs were also prayed for by her.
It is stated that the first respondent was married to deceased Krishna Menon in or about 1948 and was living with him in a bungalow, called Puthi-yapura, situated in a large garden, known as Po-other Illom, Feroke, Calicut. Respondents 1 to 3 in Original Petition No. 9 of 3959 are the sisters of the late Krishna Menon and respondents 4 to 7 are the children of the first respondent therein, respondents 8 and 9 are the children of the second respondent therein and respondents 10 and 11 are the children of the 3rd respondent therein. Respondents 12 and 13 in the original petition were the husbands respectively of the first and second respondents therein.
3. According to the petitioner in the lower court, her husband was one of the wealthiest industrialists of Malabar running the Makbar Tile Works, the Malabar Plywood Works, Radha Corporation and Crown Cinema Halls, and apart from these he also owned very large immovable properties and also shares, securities, costlv jewels, furniture and cash. Krishna Menon was the karnavan and manager of a marumakkathayam thavazhi tanvad consisting of himself, his sisters and their children. On 11-8-1957 a partition was effected as between them.
It is alleged that at the time of the partition, the deceased Krishna Menon and his sisters and their children had divided all the movables and smmovnbles belonging to the thavazhi and some items of immovables alone were kept in common, in view of the inconvenience in enjoying them Separately. It is further alleged that since the partition in 1957, the decensed Krishna Menon was in sole possession of the Pootheri Illam garden as also of the house therein, Krishna Menon was in sole possession of all the seven buildings in the Poothert Illam commound and be also used to keen cash and valuables both in his Puthiva Pura Bungalow and also in the safes in the houses where his parents and paternal uncle Madhavan Nair were living.
4. On or about 12-8-1.958, Krishna Menon who was comparatively young, had a stroke and had to he taken to Madras for medical treatment. In spite of best medical aid given to him, he died on 11-9-1958. The dead body was brought to Fe-roke for cremation and the petitioner, in the original petition, who was full of grief and shock, was taken by her parents to their residence at Palghat.
5. It is further stated by the petitioner that under the Hindu Succession Act she is the sole successor to the estate of her late husband. Her husband had given her no idea about any will having been executed by him. In Paragraph 18 of the application some correspondence that passed between the husband and the 1st respondent in the lower court and the petitioner therein are referred to. Ultimately, the petitioner, in the lower Court, began to suspect the conduct of her husband's sisters, their husbands and their children and came to know that they were setting up exclusive title to the properties of her husband under a will.
She alleged that the will relied upon by them must be a fabrication. She published, in the issue dated 12-11-1958 of the Mathmbhumi claiming to he the sole successor to the estate of her late husband. This was met by a counter-publication on 16-11-1958 by the respondents 1 to 11 in the lower court in the same paper to the effect that they were entitled to the properties of the late Mr, Krishna Menon under a will dated 30-8-1952.
6. The petitioner challenges the genuineness as also the legality and validity of the alleged will dated 30-8-1952. According to her, her husband, who was accustomed to a life in the western style, would not have executed a will in Malayalam and in the manner alleged by his sisters. She also alleged that even if the will is true, respondents 1 to it in the original petition would not be entitled to all the prooerties left by Krishna Menon. She alleges that the respondents 1 to 11 have fraudulently taken possession of all the necessary account books and documents pertaining to the estate.
7. The properties owned by Krishna Menon in his own right apart from the properties obtained by him in partition, have been described by the applicant in the schedules to her petition.
8. In paragraph 25 of her petition, it Is stated that she is the sole heir and successor of the de-ceased Krishna Menon and is the person entitled under law to ownership and possession thereof. It is also alleged that respondents 1 to 11 to the original petition, with the active connivance and instigation of respondents 12 and 13 therein, have taken fraudulent possession of the entire estate of Krishna Menon without any lawful title. It is also titated that the three safes in Puthiya Pura and Vadakkoram contained- much cash and valuables. In the safe at Puthiya Pura, it is also stated that the deceased had kept two diamond rings, one presented by her father at the time of the wedding and the other purchased bv the late Krishna Menon and he had also kept a chain of 4 diamond studs and a pair of diamond rings presented to the late Krishna Menon by his mother-in-law.
9. In paragraph 26 it is stated that the deceased was insured for very large amounts in several insurance companies and had current accounts in several banks and also a Savings Rank account in the Post Office. Anart from these investments he had also shares and securities of considerable value. The life insurance policies, shaves, securities, bank mass books and account books were either in the Office building in Pootheri Illam or in the office of the deceased in the Mulabar Tile Works. The applicant stated 'Tlesnondents 1 to 13 have taken illegal possession of the same and appear to be determined to keep the petitioner out of the deceased's estate to which she is lawfully entitled.
10. Later on the applicant stated that in the guise or attempting to effect a settlement of the dispute between the parties, the respondents 1 to if in the Original Petition have also executed powers of attorney in favour of respondents 12 and 13 therein, in respect of the entire estate of the deceased Krishna Menon. She also alleged that any further delay in approaching the Courb is likely to cause irreparable damage and injury to her interests. In law she is the only person entitled to the estate of the deceased and respondents 1 to 11 have absolutely no lawful title and respondents 12 and 13 have not even a shadow of claim. Several valuable articles like silver tumblers, silver dining set, costly furniture, safes, almirahs and jewellery described in the schedules have been taken unlawful possession of by respondents 1 to 13.
11. In paragraph 29 of her application, the applicant stated that from the conduct of respondents 1 to 13 in the Original Petition, she has every reason to apprehend that if an immediate inventory is not taken or a curator is not appointed to take (immediate possession of the properties mentioned in the schedules, there is every danger of those respondents causing disappearance of several movables, account books and other valuable properties and also 'there was the danger of immense waste being caused to the immovable properties. The remedy of an administrative suit, it is stated, is not likely to be as effective as an application under, the Succession Act since without an inventory of all the valuables, account books and other documents most of the valuable articles will be lost to the petitioner. On these grounds the petitioner prayed for :
'A. An immediate order directing an inventory to be made of all the valuables and other articles and account books in all the seven buildings in the Pootheri Illom described above and in the offices of the Malabar The Works and Plywood Works, Feroke, by a Commissioner with powers to break open the locks, if necessary, and to requisition police help;
B. To appoint a Curator to take immediate possession of all the properties of the deceased described in the schedules hereto with powers to collect the income, rent and other dues to the Estate and file suits and other legal proceedings, defend such proceedings and otherwise manage the same till the disposal of the petition;
C. To direct that the petitioner shall be put in possession of the estate of the deceased;
D. To direct further that the respondents shall pay the costs of this petition to the petitioner; and
E. To grant such other reliefs as may be appropriate in the circumstances of the case'.
12. The learned Judge examined the petitioner before him on oath' and recorded her evidence. She has stated that the facts mentioned in the petition are correct and she is the petitioner mentioned therein. She claims to be the sole successor, and heir to the estate of her husband, the late Krishna Menon. After mentioning about his illness and his being given treatment in Madras, she mentions about his death on 11-9-1958. She also speaks, to a partition in 1957 evidenced by Ext. AI between her husband and his sisters end their children.
She also speaks to her husband being in possession of the seven buildings in Pootheri Illom when he left for treatment for Madras. The keys of the Godrej safes and the buildings which were in the exclusive possession of Krishna Menon were left with the first respondent in the lower Court. She 1960 Kerala D.F./4 subsequently mentions about her being taken to Coimbatore by her parents after her husband's death and also to the letters written by her to the first respondent in the lower Court to send some of her articles. And she further deposed that apart from some of the articles sent by them, she did not get the other articles. She has also spoken to the keys and also to the other articles which Krishna Menon had left in the possession of the respondents in the Original Petition.
The account books, pass books etc. are stated to be kept in the Malabar Tile Works and Malabar Plywood Works, Feroke. She also asserts that all the articles in the Pootheri Illom belonged to her husband exclusively and after his death they belong to her as his heir. The attempt made by the respondent's therein to collect the rents and profits from the estate of the deceased arc also referred to and it is further stated that if an inventory is not ordered to be taken immediately, those items will disappear soon and the petitioner will suffer irreparable loss and damages. She prayed for the appoint-ment of a commissioner immediately to take an in ventory, if necessary with police assistance.
13. After taking the application filed by the widow of Krishna Menon under Part VII of the Indian Succession Act to file, and after recording her evidence on oath, the learned Judge passed the order on 16-2-1959, which is being attacked in the Civil Revision Petition in this Court. After setting out briefly the right claimed by the petitioner regarding the movable and immovable properties of the late Sri Krishna Menon, the learned Judge mentions about the applicant being examined as P.W, 1.
He also refers to the statement made by P.W. P on oath that respondents 1 to 11 in the Original Petition, who are the sisters and the sisters' children of Krishna Menon, as also respondents 12 and 131 who are husbands of respondents 1 and 2 respectively before the lower Court, have taken unlawful possession of those properties without any manner of title thereto. The learned Judge further proceeds to say that he made the requisite enquiry under Section 193 of the Indian Succession Act and that he is satisfied that there are sufficient grounds for believing the circumstances set up in the petition consistent with the provisions of Sec. 193 of the Act and observes :
'I am further satisfied from the evidence that the party in possession has no lawful title'.
14. The learned judge also felt that in the interests of the estate it was absolutely necessary for the appointment of a commissioner to take an inventory of all the movables and other articles kept in the seven houses known as Pootheri Illom as prayed for in paragraph A of the petition. In this view the learned Judge appointed two advocates, Shri P. Radhakrishna Menon and Shri P. K. Narayanan Nair, as commissioners to take an inventory of the articles and account books as prayed for in prayer A of the Original Petition. The learned Judge also gave directions that if there was any resistance on the part of the respondents before him, the commissioners were to requisition police aid with the permission of the Court. The commissioners were directed to submit the inventory on or before 2-3-1959. The learned Judge also states:
'The petition will be further inquired into after the appearance of the respondent in response to the summons to be issued to them' and further observes :'The notice of this petition will be issued to the respondents ........ The petition will stand posted to that date for return of the summons'
The reference to the date is 2-3-1959 already referred to.
15. Respondents 1 fo 11 in the lower Court, have instead of appearing before the lower Court in response to the summons and placing their objections before that Court have rushed up to this Court with this petition filed under Section 115 of the Code of Civil Erocedure as also under Article 227 of the Constitution.
16. Though even at the earliest stage we in-dicated that we are most reluctant to interfere with an order, which is purely interim in character, and more especially when the petitioners before us have an opportunity of placing their contentions before the lower Court, Mr. Kuttikrishna Menon, the learned counsel for the petitioners, strenuously contended that the present order of the learned District Judge is ex facie illegal and one passed without jurisdiction and that as such he is not only entitled but bound to challenge that order, even at this preliminary stage.
The learned counsel also contended that if his clients appear before the learned District Judge in response to the summons issued by that Court, his clients may be precluded from challenging that the present order, issuing a summons, is one without jurisdiction. Mr, Kuttikrishna Menon also contended that in issuing the summons under Section 194 of the Indian Succession Act, 1925 the learned Judge has not given any indication that the conditions mentioned in Section 193 have in any way been considered by him or that he has been satisfied about the existence of these conditions.
17. On the other hand, Mr. M. K. Nambiar, learned counsel appearing for the petitioner in the lower Court, has supported the order of the learned District Judge. The learned counsel has taken us through the various allegations made by the petitioner in her petition before the lower Court. The learned Counsel also contended that the order of the. learned District Judge clearly shows that he had, prior to the issue of summons under Section 194, felt satisfied about the conditions mentioned in Section 193.
18. Both the learned counsel also advanced some arguments as to the respective rights o Krishna Menon and Ms sisters and their children under the partition document, Ext. Al, as also the will. Mr. Kuttikrishna Menon also contended that it was not open to the learned Judge to ignore the will which, even according to the applicant before him, was being relied upon by the sisters of Krishna Menon and their children. On the other hand. Mr. M. K. Nambiar attacked the will on the ground that it must be a fabrication and in the alternative the learned counsel also contended that even assuming the will to be genuine it does not cover the entire estate of Mr. Krishna Menon. As the whole matter is still in the preliminary stage, we do not think it either neccssarv or desirable to consider any of those points at this stage, because all these aspects will have to be considered by the learned judge, when the respondents before him appear and place their objections in response to the summons issued to them, Therefore, in this view we refrain from making any further reference to those contentions.
19. In order to find out whether the order of the lower, court, issuing summons, is one within his jurisdiction or not, it is desirable to refer to the relevant provisions of the Indian Succession Act, 1925. Section 192(1) reads:
'Section 192(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'.
Sections 193 and 194 are as follows :
'193. 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 faking 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'.
'194. 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 inquiry necessary for summoning the party complained of or not.' Section 195 gives power to the court to appoint one or more Curators in the circumstances mentioned therein. It is not necessary for the purpose of this C.R.P. to consider that section. The only relevant sections for the present purpose, are Sections 192, 193 and 194 extracted above.
20. It will be seen that under Section 192, provision is made for a party claiming a right of sue-cession to 'the properties of a deceased to make an application to the District Judge either after actual possession has been taken by another person or when forcible means of seizing possession are apprehended. Under Section 193, 'the court has to be satisfied that there are sufficient grounds for believing (a) that the party in possession has no lawful title, (b) that the applicant is really entitled, (c) that the applicant is likely to be materially prejudiced if left to the ordinary remedy of suit and (d) that the application is made bona fide.
21. Section 194 is to the effect that if the learned Judge is satisfied about the existence of the conditions in Section 193 and nob otherwise, he shall summon the party complained of and give notice of vacant or disturbed possession by publication etc., and it also provides that after the expiration of a reasonable time, the District Judge shall determine summarily the right to possession, subject to a suit as provided later, and shall deliver possession accordingly. The proviso to Section 194 also gives power to the District Judge to appoint an officer to take an inventory of effects and seal or otherwise also secure the same, on application made for the purpose and that power he has got whether he has concluded the inquiry necessary for summoning party complained of or not.
As stated earlier, according fo Mr. Kuttikrishna Menon the four conditions necessary and prescribed under Section 193 for the learned Judge to issue a summons under Section 194, are not present in this case. According to the learned counsel, his clients cannot -be said to have no lawful title and it cannot also be stated that the applicant is really entitled. Further, according to the learned counsel, the learned! Judge has not also considered the other tWo circumstances, namely, whether the party applying under Section 192 is likely to be materially prejudiced if left to the ordinary remedy of a suit as also the question whether the application is made bona fide.
22. After hearing the learned counsel on both sides, we are not satisfied that the attack made upon this order by Mr. Kuttikrishna Menon, learned counsel for the petitioners before us, is in any way justified. The applicant before the lower court has set out in full the various circumstances leading up to the filing of the application under Section 192 of the Indian Succession Act. She has referred to her exclusive title to the assets of her husband, the late Mr. Krishna Menon. She has also referred to the publication in Mathrubhumi made by her about her being exclusively entitled to the properties of the late Krishna Menon as also the counter-claim made by the present petitioners before us about their being entitled to the properties of the deceased Krishna Menon under a will dated 30-8-1952.
In paragraph 25 of her petition, the petitioner in the Original Petition has stated that she is the sole heir and successor of her deceased husband and is the person entitled in law to ownership and possession of all his assete. It is also categorically alleged that the present petitioners before us, at the evil instigation and the active connivance of respondents 12 and 13 in the lower court, have taken fraudulent possession of the entire estate of the deceased Krishna Menon without any lawful title. Then the existence of very valuable jewellery and other articles in the buildings are mentioned by her. It is further stated that respondents 1 to 13 in the lower court have taken illegal possession of all these articles. Reference also is made to the power of attorney executed by the present petitioner in favour of respondents 12 and 13 in the lower court in respect of the entire estate of the deceased Krishna Menon.
23. In paragraph 25 it is also stated that the applicant in the lower court, has every reason to apprehend that if an immediate inventory is not taken or a Curator is not appointed to take immediate possession of all the properties mentioned in the schedule, there is every danger of the respondents causing disappearance ol several valuable articles. It is also specifically stated that the remedy of an administrative suit is not likely to be as effective, as an application under the Succession Act, since without an immediate inventory of all the valuables, account books, and other articles most of the valuable articles will be lost to her.
24. The learned Judge, though he has no very exhaustively mentioned all these, must certain-lv have had before him, when passing the order dated 16-2-1959, the case as stated by the petitioner before him in the original petition. He has adverted to her evidence to the effect that respondents 1 to 113 before him have taken unlawful possession of those properties without any legal right or title. Under Section 193 a duty is cast upon the learned Judge to examine the applicant on oath in the first place.
That he has done in this case by examining the applicant as P.W. 1. Any further inquiry need be done only if the learned Judge thinks it necessary., Obviously in this case the learned Judge must have thought it unnecessary to make any further inquiry. The learned Judge further says ''I am satisfied that there is sufficient ground to believe the circumstances set out in the petition consistent with the provisions of Section 193 of the Act. I am further satisfied from the evidence, that the party in possession has no lawful title.'
This statement clearly shows that the learned Judge has considered that the necessary conditions mentioned under Section 193, which are essential for the issue of summons under Section 194 existing in this case and the learned Judge appears to have been satisfied, at that stage, with the statements made in the application, taken along with the evidence of P.W. 1. When the learned Judge refers to the circumstances set Out in the petition as being consistent with the provisions of Section 193 of the Act, no other inference is possible except thai the learned Judge really had in mind the various conditions mentioned in Section 193.
We do not propose at this stage to discuss more the case of the petitioner or of the defence that the respondents before the learned Judge may have in respect of these matters because, in our opinion, the order of the learned Judge is one passed within his jurisdiction and it cannot be stated that the learned Judge has in any way acted in contravention of Section 193 of the Act,
25. Mr. Kuttikrishna Menon, the 'learned, counsel for the petitioners, before us as mentioned earlier, apprehends that if the preliminary order is not challenged at this stage and his clients appear in response to the summons issued, his clients would be debarred from raising the contention that the present order is one passed without jurisdiction. We are not satisfied that this apprehension of the learned counsel is in any way justified. Certainly there is no provision in the Act which will give room for such an apprehension. The learned counsel relief upon an old decision reported in Jusoda Koonwar v, Baboo Gouree Byjanath Pershad, 6 Suth WR (Misc.) 53.
The learned Judges had to deal with the Curators' Act, Act 19 of 1941. This decision was relied upon by Mr. Kuttikrishna Menon to show that if the party appears in response to the summons ho cannot challenge the order issuing the summons. On perusing the said decision, we do not find that the learned Judges have laid down any such proposition. On the other hand, the observations of the learned Judges clearly show that they did not decide such a point. The relevant observation is to the following effect:
'Whether., if the objection had been taken in time and the Judge overruling it, had proceeded to determine the right to possession, this court could have set aside the order as made without jurisdiction, it is not necessary to decide in this case. I express no opinion on the point'.
In fact the learned Judges were also of the view that the taking of any further evidence or the amount of such evidence to be taken at that! stage are matters wholly within the discretion, of the judge so long as he came by strong reason for believing the allegations which the applicant had to make.
25a. The learned counsel Mr. Kuttikrishna Menon also relied upon certain decisions of the Madras, Bombay, and Patna High Courts to the effect that the provisions of the Indian Succession Act, 1925, or; the corresponding provisions in the older enactments, should be strictly observed by the court before summoning a party and also before declaring the right to possession. The decisions cited by the learned counsel are Abdulla v. Mirthur, ]912 Mad WN 1164, Papamma v. The Collector of Godavari. ILR 12 Mad 341, Kothandarama Reddy v. Jagathambal Ammal, AIR 1923 Mad 229(1), Ma-harnmadbhai Peerbhai v. Bai Havabai, AIR 1924 Bom 507 and Krishnadevanand v. Kapildeo, AIR 1942 Pat 251.
In these decisions, one or other of the requirements of the statute was not complied with by the court. But the question for decision before us is as to whether the learned Judge has considered and satisfied himself about the relevant matters prescribed by Section 193, before he issued summons to the petitioners herein, to appeac under Section 194 of the Indian Succession Act. that is all what the decisions relied upon by the learned counsel and referred to earlier lay down. On a perusal of the various statements made in the petition and also the reasons given by the learned Judge in his order, we fire of opinion, that the learned Judge has satisfied himself about the existence of the conditions mentioned in Section 193.
26. Mr. M. K. Nambiar, learned counsel for the 1st respondent before us, also invited our attention to certain decisions to the effect that this court will not interfere with such orders either under Section 115 of the Code of Civil Procedure or under Article 227 of the Constitution. As we are satisfied on the merits that the order passed by the lower court is within its jurisdiction, we do not think it necessary to advert to those decisions.
27. Once we do not accept the contention, of Mr. Kuttikrishna Menon that the order now complained of is one passed without jurisdiction, it follows that the respondents to the original petition are at liberty to place all their objections before the learned Judge to the summons issued to them In fact the learned Judge himself has stated in his order that the petition will be further inquired into after the appearance of the respondents in the original petition in, response to the summons to be issued to those parties. It is open to the respondents in the O. P. to satisfy the lower court that the position taken up by the applicant is not sound in law or on the facts.
28. The only point that we have now decided is that the order dated 16-2-1959 is one passed within the jurisdiction of 'the learned District Judge. As stated earlier, it is open to the respondents in the Original Petition to contest the application on all points. The order directing an inventory is also one passed within the jurisdiction of the District Judge.
29. The Civil Revision Petition fails and is dismissed with costs of the first respondent before us.
30. Mr. V. K. K. Menon, learned counsel for respondents 12 and 13 in the Original Petition, has stated that his clients also must have an opportunity of placing their objections before the learned District Judge as being interested in the properties in schedules H and I. In fact, no special directions are necessary from us, because respondents 12 and 131 in the lower court are parties to O. P. No. 9 of 1959 and notice has been directed to be issued to them also by the learned District Judge. It is open to them also to contest the proceedings on all aspects.
31. But Mr. V, K. K. Menon. has drawn our attention to the fact that the inventory ordered by the lower court works a great hardship in respect of the Malabar Tile Works and the Maiabar Plywood Works. Mr. M. K. Nambiar, learned counsel appearing for the first respondent here has also very fairly agreed that the inventory now ordered by the learned District Judge in respect of the Tile Works and the Plywood Works referred to in schedules (H) and (I) of the original petition may he restricted to the account books and documents. We accordingly direct that the order of inventory, so far as these two items are concerned, will be now restricted only to the inventory of the account books and documents in these two premises.
32. The learned District Judge will give anexpeditious disposal to Original Petition No. 9 of1959.