1. This application is for revision of an order of the Dist. J. 24-'Parganas, summarily dismissing an application under Section 192, Succession Act.
2. One Ramchiz died intestate on 22-12-1948, leaving certain movable & immovable properties. The petitioner before us Sm. Tapeswari claims to be the sole heir of Ramchiz, being his sister, & thus entitled to succeed to his estate under Act II (2) of 1929. She alleged that the properties left by Ramchiz were in the possession of one Sukharajia, who had been Ramchiz's concubine & was not legally entitled to any part of the properties & that there was risk that by the time the petitioner could obtain letters of administration, the properties, or a greater portion of it would be wasted. She therefore made an application under Section 192, Succession Act.
3. On such an application being made, the Dist. J. had to proceed in accordance with the provisions of Section 193, Succession Act. According to this section the Dist. J. has first to examine the applicant on oath & thereafter has to make such further enquiry if any as he thinks necessary as to whether there was sufficient ground for believing that the party in possession, or taking forcible means for seizing possession, has no lawful title, & that the applicant, or the person on whose behalf he applies, is really entitled & is likely to be materially prejudiced if left to the ordinary remedy of a suit, & that the application is made 'bona fide'. Under Section 194 of the Act, if the Dist. J. is satisfied on these points, namely, that the application is 'bona fide,' that the applicant is really entitled, that the other party has no lawful title & also that the applicant is likely to be materially prejudiced if left to the ordinary remedy of a suit, he shall summon the party concerned against whom the complaint has been made & give notice of vacant or disturbed possession by publication & do certain other things with which we are not concerned.
4. It is true that the decision as to whether further enquiry should be made or not is in the discretion of the Dist. J., but this discretion has to be exercised judicially. In the present case the petitioner was examined on oath & that ordinarily should have satisfied the learned Dist. J. that she was really entitled to the properties in question. This should also 'prima facie' have satisfied him that Sukharajia was a concubine. It was certainly open to the Dist. J. not to accept the statement as sufficient, & to proceed to make further enquiry to ascertain the truth of the matter. He did not, however, make any enquiry, but at the same time refused to take any action on the ground apparently that the petitioner was living with the deceased for three years only, whereas the opposite party had been living with the deceased for 10 years. This is entirely beside the point. The question is not how long either of the party has been living with the deceased, but who is legally entitled to the property. That question will have to be finally determined in a regular suit, but the provisions of Sections 192, 193, 194 & 195 are designed to make interim arrangements till the decision is made by suit.
5. If there was anything before the Dist. J. which would justify his doubting the petitioner's case, that Sukharajia was a concubine, be would have been right in refusing to take any action. We do not, however, find on the record anything which would justify such doubting. It is needless to say that the fact that a man had been living with a woman for 10 years is no ground for thinking that she cannot be a concubine.
6. In these circumstances, we are of opinion that the learned Dist. J. has acted with material irregularity in summarily dismissing this application under Section 192, Succession Act without following the procedure as provided in law.
7. We accordingly set aside this order of dismissal & remand this case to the learned Dist. J. for decision in accordance with law after following the procedure laid down in Sections 193 and 194, Succession Act.
8. The Rule is made absolute, but there will be no order as to costs.
9. We make no order on the prayer for injunction.