Arnold White, C.J.
1. This is a petition under Section 622 of the Code of Civil Procedure, praying the High Court to revise the order of the District Judge of Tanjore made under Act XIX of 1841 appointing a curator of the properties of the Zemindari of Sillathur pending the determination of a summary enquiry into the right to possession of the properties.
2. On 11th September 1900 one Muthukrishna Pannikondar presented a petition in the District Court under Act XIX of 1841 alleging that he was entitled to succeed as heir to the properties of the deceased Zemindar of Sillathur, that one Krishnasawmi Pannikondar had taken wrongful possession thereof, and asking the Court to inquire into the right of possession of the said Zemindari properties and deliver possession thereof to the petitioner, and in the meanwhile to appoint a curator to make an inventory of the said properties and take charge of the same.
3. The Judge made no inquiry into the facts alleged in the petition.
4. On September 21 the Judge made an order calling on the Collector under Section 8 of the Act for a report.
5. The Collector's report was duly furnished.
6. On 6th November the Judge made the order which we are now asked to revise.
7. The material sections of the Act are Sections 1, 3, 4, 8 and 14.
8. The Advocate-General contended, on behalf of Krishnasawmi Pannikondar, that the District Court, in making the order of 6th November, had exercised a jurisdiction not vested in it by law, or had acted in the exercise of its jurisdiction illegally or with material irregularity, inasmuch as the conditions precedent prescribed by the Act of 1841 to the exercise of jurisdiction under that enactment had not been fulfilled.
9. The application to the Judge was by petition which was verified in the usual form, but it cannot be said--in fact it was not contended by Sir A. Bhashyam Iyengar who appeared to support the order of the District Court--that the mere perusal of the petition amounted to an inquiry by the solemn declaration of the complainant within the meaning of Section 3 of the Act ; but, it was urged, first, that when the Judge called for a report under Section 8 of the Act, the requirements of Section 3 might be dispensed with, and, secondly, that, even if Section 3 applies when the report of the Collector is called for, the word 'shall' in that section is directory and not mandatory and that a compliance with the requirements of Section 3 is not a condition precedent to the exercise of jurisdiction under the Act.
10. No doubt the case of Papamma v. The Collector of Godavari I.L.R. 12 M. 341 which was strongly relied upon by the Advocate-General, is distinguishable from the present case. In the first, place, the verified petition in Papamma v. The Collector of Godavari, did not contain averments which, if true, would satisfy the requirements of the Act. In the present case it seems to me that, if the reading of the petition could be regarded as an inquiry by the solemn declaration of the complainant, the averments of the petition would satisfy the requirements of the Act. In the second place, in the case of Papamma v. The Collector of Godavari, there was no report by the Collector and consequently the effect of Section 8 of the Act had not to be considered. The point which we have to consider is whether the order appointing the curator is a valid order. With regard to this I am prepared to accept the reasoning and the conclusion of this Court in the case referred to. In dealing with this point their Lordships say--
As regards the omission to comply with the procedure prescribed by Section 3, it is certainly a material error of procedure having a bearing on the interim order which we are asked to revise. It is not denied that the Judge has, under the Act, general jurisdiction over the property of the deceased proprietor. Nor is there any doubt that Sections 3 and 4 impose an obligation on the Judge to satisfy himself by some inquiry before citing the party complained against, that there are strong reasons for believing that the party in possession has no lawful title and that the party suing is likely to be materially prejudiced if left to a regular suit. The scheme of the Act is that the finding of the Judge on the two points mentioned in Section 3 is a condition precedent to the Act being put in force ; for, Section 4 enacts that in case the Judge is satisfied of the existence of such strong ground of belief but not otherwise, ho shall cite the party complained of. No witnesses were apparently examined nor documents produced in this case before the Judge made his order. Though the application is verified, neither the Collector nor any one acquainted with material facts was examined, nor does the application embody any information in regard to the claim set up by the petitioner when she refused to allow the Collector to take possession or in regard to the grounds on which that claim was considered untenable. As the inquiry directed by Section 3 ought to be held prior to the citation of the petitioner, the party applying under the Act was be und to show, and if he did not, it was incumbent upon the Judge to call upon him to show in the language of Section 3, strong reasons for the belief that the party in possession had no lawful title and that the minor was likely to be materially prejudiced if the Court of Wards was left to the ordinary remedy of a regular suit. It is no doubt in the Judge's discretion to call (for witnesses or documents if the solemn declaration of the complainant affords sufficient information and enables him to form an opinion as directed by Section 3. The omission to follow the procedure has in this case deprived the petitioner of the protection to which she was entitled under the Act before the could be cited. J n this sense the irregularity was material.
11. And again with reference to Section 5: 'It will thus be observed that the conditions subject to which a curator is to be appointed are (1) that there must be an application and an examination as aforesaid (that is to say as directed in Section 3), (2) that the Judge must be in a position to nay upon such application and examination that danger is to be apprehended of misappropriation or waste of the property before the summary suit can be determined, and (3) that the delay in obtaining security from the party in possession or its insufficiency is likely to expose the party out of possession to considerable risk. On referring to the Collector's application we find no averment showing that any of these conditions existed, and when the Judge made his order he had no other evidence before him. We must come to the conclusion that at the time the order before us was made, the Judge overlooked the conditions subject to which alone he was authorized to appoint a curator.'
12. As regards Sir V. Bhashyam Aiyangar's first contention, viz., that when Section 8 applies the requirements prescribed by Section 3 may be dispensed with it involves, first, the reading into Section 3 and Section 5 some such words as 'subject to the provisions of Section 8,' secondly, the construction of Section 8 so as to extract from that section an implied authority to the Judge to exercise the summary powers conferred by the Act on the report of the Collector, if he thinks fit to do so. It is true that under Section 8 if the Judge is not prepared to act in conformity with the report of the Collector, he must state his reasons to the High Court, and may be directed by the High Court to proceed conformably with the report, but it does not follow that, because he may be directed to proceed conformably with the report, he is entitled to proceed upon the report and the report only.
13. The Act no doubt presents some difficulties of construction, but it seems to me to have been the intention of the Legislature that the Judge should himself exercise a judicial discretion before making use of the summary powers conferred by the Act. If we were to give effect to Sir V. Bhashyam Iyengar's contention, the necessity for the 'exercise of a judicial discretion in cases to which Section 8 applies would be done away with altogether, or, at any rate, the supposed exercise of a judicial discretion would, in practice, become a mere form, since the Judge would be nothing more than the mouth-piece of the Collector.
14. With regard to the second ground upon which it has been sought to support the order, viz., that the word 'shall' in Section 3 is merely directory, there are no doubt numerous authorities to show that, in matters of procedure, mandatory words may be construed as directory ; but these1 authorities have no application to a case when an enactment which creates a special jurisdiction provides that certain things should be done before that jurisdiction is exercised.
15. The principle applicable to cases of this sort was laid down by the Privy Council in Nusserwanjee v. Meer Mynoodeen 6 M.I.A. 134. In that case their Lordships say: 'The present question turns upon this principle, that wherever jurisdiction is given to a Court by an Act of Parliament), or by a Regulation in India (which has the same effect as an Act of Parliament), and such jurisdiction is only given upon certain specified terms contained in the Regulation itself, it is a universal principle that these terms must be complied with, in order to create and raise the jurisdiction, for if they be not complied with, the jurisdiction does not arise.'
16. It seems to me that the order of the District Judge was made without jurisdiction. If not made without jurisdiction, I think the Judge acted in the exercise of his jurisdiction with material irregularity. I think the order ought to be set aside.
Subrahmania Aiyar, J.
17. One Muthukrishna Pannikondar presented under Act XIX of 1841 to the District Judge of Tanjore an application, dated 11th September 1900, to the following effect:
Viziaraghunadha Krishnasami Pannikondar, Zemindar of Sillathur, having died on the 15th March 1900, unmarried and intestate, the petitioner as his nearest surviving sapinda, was entitled to succeed to the estate ; as the deceased had been adopted into the Sillathoor family, Krishnaswamy Paunikondar, his natural father the counter-petitioner, had no right whatever to the estate of the deceased ; the counter-petitioner, however, subsequent to the death of the Zemindar, fabricated a will purporting to have been executed by the Zemindar and to bequeath the Zemindari to the counter-petitioner, and under that pretended claim took wrongful possession of the whole of the moveable property left by the deceased and some of the zeinindari lands and was attempting to take possession of the remainder; some of the moveables so wrongfully taken had been secreted, some others sold and attempts were being made to secrete the rest; before the petitioner could institute a regular suit for the recovery of the property, all the moveable property was likely to disappear and the petitioner would not be able to recover either their value or the mesne profits of the landed estate which the counter-petitioner may receive in the meanwhile ; the petitioner prayed for possession of the estate and the immediate appointment of a curator.
18. The District Judge on the 29th September called upon the Collector of the district under Section 8 of the Act to submit a report on the case. The Collector sent his report on the 17th October and recommended that action be taken under the Act. Thereupon, the District Judge directed on the 30th October that the counter-petitioner be cited and fixed 30th November as the day for enquiry ; meanwhile in conformity with the opinion of the Collector he appointed on the 6th November the person recommended by the Collector as curator to take possession of the estate.
19. The question raised before us is whether the District Judge's order appointing the curator is valid? In arguing against its validity, the learned Advocate-General on behalf of the counter-petitioner contended, inter alia, that the petitioner not having been examined on oath as required by Section 3, the order was made without jurisdiction, and in support of that contention he laid great stress on the words 'shall in the first place enquire by the solemn declaration of the complainant' in Section 3. Sir V. Bhashyam Aiyangar, on the other hand, urged for the petitioner that the provision that the complainant should be examined is only directory, and that in a case like the present be which Section 8 applies, the District Judge without any reference to Section 3, may appoint a curator solely on the report of the Collector, if he and the Collector agree in the matter.
20. In order to determine the force of those respective contentions, we must carefully examine the provisions of the Act. No doubt the Art being intended to apply to extraordinary cases ought not to be put in force unless strong grounds are shown to exist and consequently its provisions which form as it were the condition precedent for putting the Act in force must be strictly followed. Now Section 1 says that any person claiming a right by succession to the property, moveable or immoveable, of a deceased person may apply for relief to the District Judge. Section 3 says that the Judge on receipt of the application shall enquire whether the conditions laid down in that section for taking-action under the Act exist. Section 4 says that unless the Judge finds strong grounds for believing that those conditions exist, he shall not cite the party complained of. Section 5 lays down what further condition is necessary for the appointment of a curator. Having thus laid down in these sections what the Judge has to do when an application under Section 1 is made to him, the Legislature goes on to provide in Section 8 for the case whore the estate to which the dispute relates consists wholly or partly of land paying revenue to Government. Now, the fact that the Legislature having said what the Judge's procedure ought to be on an application in respect of moveable or immoveable, property generally of a deceased person proceeds now to consider only one portion of immoveable property, that is land paying revenue to Government, and to prescribe the Judge's procedure with reference thereto, is itself significant. It looks as though the Act prescribes a special procedure in respect of such land different from the Judge's ordinary procedure. This is confirmed when we look to the language of Section 8. That section says that when the land pays revenue to Government, the Judge shall, in all matters regarding the propriety of citation, of appointment of curator, etc., demand a report from the Collector and the Collector is required to furnish the same. It is evident from this that, whereas in the case of property other than land paying revenue to Government, the Judge must, in order to determine whether a party is to be cited or a curator is to be appointed, satisfy himself by an enquiry under Section 3, in the case of land paying revenue to Government for the determination of the propriety of citing the party or appointing a curator,, the Judge need not make any enquiry but may make the Collector's report the basis of his action. The Collector's report is not considered to be supplemental to an enquiry under Section 3, but is treated as the finding by a specified authority. There is nothing surprising in such a course, and, indeed, good reasons may be suggested for it. The Collector is responsible for the due collection of public revenue, and it is he who should guard against default in the punctual payment of revenue being made in consequence of disputes between rival claimants in a case of disputed succession. Besides, the fact that if the Judge is not prepared to act in conformity with the Collector's report, the difference between the Judge and the Collector must be settled by a higher tribunal, i.e., the said Dewani Adaulut, seems also to point to the conclusion that it is not essential that the District Judge should make enquiry under Section 3. It follows, therefore, that in a case like the present to which Section 8 applies, the demand for the report and action thereunder are independent of the enquiry under Section 3; though in a case of urgency when the Judge may proceed in the first instance without a report the provisions of Section 3 would have to be followed by him.
21. In this view, which is sufficient to dispose of the case, it perhaps becomes unnecessary to consider the effect of the words 'shall in the first place enquire by the solemn declaration of the complainant '' in Section 3. However, as the Advocate-General, as stated before, laid great stress upon them, I proceed to notice it. Obviously the words 'in the first place'' do not lay down that the very first step to be taken by the District Judge proceeding under the Act is the examination on oath of the complainant, and that until such examination takes place nothing whatsoever could be done by the Judge in the matter of the application. Suppose, for instance, that on the day the petition was posted for enquiry under Section 3 the petitioner was unable to attend in consequence of illness but his witnesses were present. Could not the Judge at once record the evidence and examine the petitioner on a subsequent day? If the Judge adopted that course, should the evidence of those witnesses be considered to have been illegally recorded and therefore be discarded from consideration? The words 'in the first place' in Section 3 have reference to the enquiry whether there are sufficient grounds for interference which should precede the citation of the party complained of, but not to the relative sequence of steps to be taken in the conduct of the enquiry. The meaning of Sections 8 and 4 taken together is that a citation shall not, as in ordinary suits, issue with reference to the allegation in the petition or the plaint itself, but that an enquiry shall be made as to the truth of the allegations and the bona fide character of the application before the Judge decides to cite the party complained of. In other words, such party should be cited only after the Judge is satisfied in regard to the said points as a result of an enquiry made by him, the enquiry being regular and forma], evidence oral and documentary being received and the former being taken on oath. I am, therefore, unable to accept the learned Advocate-General's contention under consideration.
22. I should only add that the case reported in I.L.R. 12 M. 341 is distinguishable from the present, for there, not only did the petition not contain the requisite allegations, but there was also no enquiry under Section 3 and no report by the Collector under Section 8.
23. in my judgment, the revision petition fails and I would dismiss it with costs.
24. [Owing to the difference of opinion between their Lordships, this petition was referred to Mr. Justice Shepherd under the provisions of Section 575 of the Code of Civil Procedure.]
25. His Lordship Mr. Justice Shephard delivered the following
26. The matter of this petition having been referred to me under Section 575 of the Code of Civil Procedure, I have to decide whether or not in my judgment the prayer of the petition should be allowed. The question was argued before me on lines which do not seem wholly to accord with those on which it was discussed by the learned Judges who referred the matter. Before them two contentions only appear to have been made. On the one hand it was argued that the Act of 1841 created a special jurisdiction and that, accordingly, the principle enunciated in Nusserwanjee Pestonjee v. Meer Mynoodeen Khan Wullud Meer Sudrooden Khan Bahadoor 6 M.I.A. 134 should be applied. On the other hand it was argued that the procedure proscribed in Section 3 of the Act was intended by itself to be sufficient, and that the report of the Collector was in the cases to which the section applies to be regarded as a substitute for the evidence directed to be taken in other cases.
27. In regard to the former contention the question really turns on the meaning of the term 'jurisdiction' and assistance in answering it is afforded by the judgment in Dale's case. There one point taken was that the coercive process of the Court of Arches could not properly be called in aid to give effect to a judgment under the Public Worship Regulation Act, because the jurisdiction conferred by that Act was a new jurisdiction. James, L.J., in dealing with this point observed that since the Court of Arches always had jurisdiction to deal with the matter in hand and the person in question and the mode of bringing the matter into Court and of dealing with it were not matters of jurisdiction but matter of procedure, there was no now jurisdiction created 6 Q.B.D. 451. Other Lords Justices used similar language. I think the same considerations apply to the present case arising under the Act of 1841. No now jurisdiction was given either in respect of person or property, but power in regard to matters already within the jurisdiction of an existing Court was given to that Court to deal with those matters in a new manner. The Act of 1841 no more created a new jurisdiction than did Section 15 of Act XIV of 1859 in regard to suits to recover possession of immovoable property wrongfully taken. Nusserranjee's case is altogether a different one. There the Regulation, while requiring the reference to arbitration to comply with certain conditions gave the force of a decree to the award thereupon made by the arbitrator, and the point decided was that an award made under a reference which did not comply with those conditions could not be regarded as a decree. It might be that the award was good in itself, but it was not good as an award under the Regulation, because the conditions precedent to the making of such an award had never been fulfilled It is clear that apart from the Regulation the arbitrator could have no power to make an award which should be equivalent to a decree. For those reasons I am unable to agree with the opinion of the learned Chief Justice in so far as it is founded in Nusserwanjee's case. L do not think it can be said that the District Judge acted without jurisdiction by reason of his omission to comply with the terms of Section 3 of the Act.
28. But I am equally unable to accede to extreme contention made on behalf of the respondent. I do not think that Section 8 can be road as containing an alternative statement of the course to be pursued in the cases therein mentioned so that the Judge can properly dispense with the examination of witnesses and act upon the report of the Collector only. There are no such words as might be expected to be found in Sections 3 and 5 if it had been intended that Section 8 should be road in that way and not as directing that an additional precaution should be taken in certain cases. The language of the section, moreover, shows that the examination of witnesses was contemplated even in cases of land paying revenue to Government, because the section authoresses the Judge in cases of urgency to proceed without such report and that must mean that he should proceed upon evidence taken in the ordinary way.
29. Holding that Section 3 does apply to cases in which Section 8 is applicable, it remains for mo to consider whether the District Judge in disregarding Section 3, acted illegally or with material irregularity in the exorcise of his jurisdiction within the meaning of Section 622 of the Code of Civil Procedure.
30. If the direction of the Act had been complied with, there would have been an examination of the complainant and possibly of his witnesses and documents, the Judge would have satisfied himself that there were strong' reasons for behooving that the party in possession had no lawful title, that the applicant was really entitled and was likely to be prejudiced if loft to the ordinary remedy and that the application was made bona fide, and that before appointing a curator he would have satisfied himself as to the matters mentioned in Section 5, and further he would have demanded a report from the Collector, in which re port the Collector would have recorded his opinion 'regarding' the propriety of citing the party in possession, of appointing a curator and of nominating individuals to that appointment.' . In the present case the complaint made is that there was no examination of witnesses, that there is no such report as is required, and that whatever belief the Judge may have entertained, he has not recorded any finding as to the matters in respect of which he had to be satisfied. Although it mast be admitted that the report is carelessly drawn up and that the order of the Judge is defective in not reciting that he was satisfied as to the need for the appointment of a curator, I do not think these defects would by themselves justify me in interfering with the order under the provisions of Section 622 of the Code of Civil Procedure. I think it must be inferred that the Judge was satisfied as to the two points mentioned in Section 5 and treating the report as evidence. I can hardly say that there is absolutely no evidence to justify such a conclusion. But the omission to take evidence under Section 3 stands I think on a different footing. If the section is imperative, if the examination was prescribed as an essential step in the proceedings, then it is clear that the omission was a material irregularity. It is said that at most the section is directory and that it is by the report and not by the other evidence that the Judge was intended to be guided--the report it was argued might be regarded as a verdict which might prevail even against the opinion of the Judge. In my opinion this argument is open to the objection that it reduces the Judge to the position of a mere instrument, whereas the Act, as I read it, clearly intends that he should exercise a judicial discretion. The Act as well in the preamble as in the operative part is emphatic in requiring the Judge to be satisfied by strong proof of the necessity for taking action. It is not correct to say that by Section 8 he is required to take any action in contradiction of his own opinion ; he is only required to send the report up to the superior Court, so that that Court may decide whether or not the satisfactory proof has been furnished. Meanwhile the order of the Judge must prevail. If, in spite of the report, he does not consider the proof satisfactory, the possession remains undisturbed ; if, in spite of the report, he is so satisfied and accordingly appoints a curator, that appointment must hold good until the superior Court has decided to the contrary.
31. It is impossible, therefore, to say that the examination of witnesses is a mere formality or that the evidence when taken is of no material value. In the circumstances of the present case it may be that the evidence would have had no material effect, but when it is once shown that it might be otherwise and that the Judge might not be justified in acting on the evidence alone, I think it may well be inferred that the direction to take evidence was intended to be an imperative direction. And it is somewhat difficult to see what stronger language the Legislature could have used to indicate that intention. It is possible that, notwithstanding Section2, a hard case might arise owing to inability of the complainant to appear, but 1 do not think that such a bare possibility ought to influence a Court in the construction of the Statute.
32. The conclusion at which I arrive is that while the Judge was acting within his jurisdiction he acted with material irregularity. His order or must, therefore, be set aside.
33. The respondent must pay the costs.