Skip to content


Punyendra Narayan Deb Vs. Bhairabendra Narayan Deb - Court Judgment

LegalCrystal Citation
SubjectCivil;Family
CourtKolkata
Decided On
Reported inAIR1947Cal124
AppellantPunyendra Narayan Deb
RespondentBhairabendra Narayan Deb
Excerpt:
- .....rejecting an application of the petitioner for security from opposite party 1 under section 4, bengal wills-and intestacy regulation (bengal regulation v [5] of 1799). the petitioner is the plaintiff in a suit filed by him in the court of the first subordinate judge of 24 parganas, being title suit no. 42 of 1940, for a declaration of title to the properties appertaining to what is known as bijni rai estate as the heir of late raja jogendra narayan bhup, and he has prayed for a further declaration that the bijni succession act under which the opposite party 1 has been made the successor to raja jogendra narayan bhup is illegal and ultra vires and that the decisions in certain previous suits which held the act to be a valid piece of legislation were not binding upon him and did not.....
Judgment:

B.K. Mukherjea, J.

1. This Rule is directed against an order, dated 25-8-1945, made by the Subordinate Judge, First Court of 24 Parganas, rejecting an application of the petitioner for security from opposite party 1 under Section 4, Bengal Wills-and Intestacy Regulation (Bengal Regulation V [5] of 1799). The petitioner is the plaintiff in a suit filed by him in the Court of the First Subordinate Judge of 24 Parganas, being title Suit No. 42 of 1940, for a declaration of title to the properties appertaining to what is known as Bijni Rai Estate as the heir of late Raja Jogendra Narayan Bhup, and he has prayed for a further declaration that the Bijni Succession Act under which the opposite party 1 has been made the successor to Raja Jogendra Narayan Bhup is illegal and ultra vires and that the decisions in certain previous suits which held the Act to be a valid piece of legislation were not binding upon him and did not affect his rights. The suit is still pending and an application made by the petitioner for the appointment of a Receiver to the estate during the continuance of the suit has not been disposed of as yet.

2. On 18-11-1944, the petitioner filed an application supported by an affidavit, under Section 4, Bengal Wills and Intestacy Regulation, 1799, praying for a direction upon the opposite party 1 to furnish security for due compliance with the judgment that may be passed in the suit. This application was rejected by the Court below by its order, dated 25-8-1915. The learned Subordinate Judge has not said anything as regards the merits of the application, and he has rejected it solely on the ground that he has no jurisdiction to make an order under Section 4, Bengal Wills and Intestacy Regulation, 1799. It is the propriety of this order that has been challenged in this Rule.

3. Now, the Bengal Wills and Intestacy Regulation was passed in 1799, and its object, as the first section shows, was to limit the interference by the Judges of the Zilla Courts and City Courts of the Diwani Adalat in cases where the inhabitants of the Province had left wills at their decease and appointed executors to carry the same into effect or died intestate leaving properties either real or personal. Section 2 lays down that in all cases where a Hindu, Mussalman or other person dies leaving a will by which, an executor or executors have been appointed, the latter will proceed to carry out the terms of the will without any application to the Judge of the Diwani Adalat, and the Courts of Justice are prohibited from interfering in such cases except on a regular complaint being made against the executor or executors alleging a breach of trust. Section 3 declares that in case of a person dying intestate, but leaving a son or other heir, the latter, if of age, and not disqualified, would be competent to take possession of the estate without any application to a Court and the Courts of Justice are likewise restricted from interference in such cases, unless a regular complaint is preferred.

4. Section 4 deals with cases where there are more heirs than one to the estate of a person dying intestate. If the heirs can agree among3t themselves in their appointment of a common manager they are at liberty to take possession, and the Courts of Justice cannot interfere without any regular complaint; 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; in default of such security being given, possession may be given over to the other side on his furnishing security till the suit is decided. Section 5 then provides that in the event of none of the claimants being able to furnish security, the Judge within whose jurisdiction the estate or the principal part of the estate may be situated, or in which the deceased may have resided, is authorised to appoint an administrator for the due care and management of such estate. Section 6 lays down that security should be taken from such administrators and they would be paid allowances. Section 7 deals with cases of persons dying intestate leaving personal properties to which there is no claimant.

5. At the time when the Bengal Wills and Intestacy Regulation, 1799, was enacted, there were in this province four classes of civil Courts or Diwani Adalats. There was, in the first place, the Sadar Diwani Adalut which was a Court of appeal and superintendence only. Secondly, there were four provincial Courts of appeal and circuit in each of the Divisions of Calcutta, Dacca, Murshidabad and Patna. Thirdly, there were 23 Zila Courts and 3 City Courts each presided over by a single Judge. Lastly, there were the native Commissioners for the trial of civil suits, chosen from amongst the principal proprietors of land, farmers, talukdars, etc. Vide C.D. Field's Introduction to Bengal Regulations p. 143 onwards. Of these Courts, the four provincial Courts of appeal were abolished in 1833 and the City Courts ceased to exist soon after. The Sadar Diwani Adalat was abolished from 1862 upon the establishment of the present High Court under the provisions of 24 and 25 Victoria, chap 104, Section 88. Judges of Zila Courts, in course of time, came to be known as District Judges, and the place of native Commissioners was taken by Sadar Amins and Munsifs.

6. The Bengal Wills and Intestacy Regulation, 1799, as said above, was passed with the object of preventing Judges of Zila and City Courts from interfering with the estate of persons dying intestate or leaving wills. The Judges of City Courts have long ceased to exist, and at the present moment, only the Judges of Zila Courts come within the purview of the Regulation. We agree with Mr. Gupta that at the present time the Judges of the Zila Courts would mean and refer to the District Judges who are the principal civil Courts of the Districts, and the expression does not include the Courts of Subordinate Judges and Munsifs. The Courts of Subordinate Judges or Munsifs were admittedly not in existence at the time when the Regulation was enacted. Mr. Mitra argued that the Judge refer, red to in Section 4, Bengal Wills and Intestacy Regulation, 1799, means the Judge who is trying the suit, and as in the present case, the suit is being tried by the Subordinate Judge, he would have jurisdiction to demand security under the section. We do not think that this contention is sound. In order that the Judge may demand security under Section 4 of the Regulation, it is not necessary that the suit should be pending before him. It is enough that there is dispute amongst several claimants relating to the inheritance to the estate of a deceased person,-one or more of whom have taken possession of the property of the estate and others have filed a suit. The jurisdiction exercised by a Judge under the Bengal Wills and Intestacy Regulation, 1799, is more of administrative than judicial character, and the object of this Regulation is to make provisions by which, on one hand, over zealous interference by Courts with the administration of the estate of a deceased person could be prevented and on the other hand, the property left by the deceased could be effectively preserved pending final decision on the rights of the contesting parties.

7. Section 5, Bengal Wills and Intestacy Regulation, 1799, lays down that in cases where none of the parties are willing or able to furnish security, the Judge within whose jurisdiction, the deceased may have lived or the estate or a major portion of it may be situated would appoint an administrator. Presumably, the order for Security under Section 4 of the Regulation would have to be passed by the same Judge and no other Court. It is therefore not necessary that the suit must be pending before that Court. Whatever doubts might have existed on this point are, in our opinion, set at rest by Section 23, Bengal, Agra and Assam Civil Courts Act (12 [XII] of 1887). Under Section 23 of this Act,

The High Court may, by general or special order, authorise any Subordinate Judge or Munsif to take cognizance of, or any District Judge to transfer to a Subordinate Judge or Munsif under his administrative control, any of the proceedings next hereinafter mentioned.

8. The proceedings inter alia are : '(a) proceedings under the Bengal Wills and Intestacy Regulation 1799....' It is clear, therefore, that express authority by the High Court is necessary in order to enable the Subordinate Judge or a Munsif to take cognizance of a proceeding under the Bengal Wills and Intestacy Regulation, 1799. The District Judges do not require to be authorised as they derive their authority as Judges of Zila Courts under the Regulation itself. They require authority only to enable them to transfer such proceedings to a Court of a Subordinate Judge or a Munsif. We are unable to agree with Mr. Mitra that the proceedings referred to in Section 23, Bengal, Agra and Assam Civil Courts Act, refer only to proceedings under Section 7 of the Regulation. It is conceded that no authority has been conferred upon the Subordinate Judge of Alipur to take cognizance of any proceeding under the Bengal Wills and Intestacy Regulation, 1799. The result, therefore, is that the view taken by the Court below is right. This Rule is discharged with costs. Hearing fee three gold mohurs.

Sharpe, J.

I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //