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Bhabatarini Debi Vs. Profulla Kumar Mukerjee and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1933Cal17,140Ind.Cas.376
AppellantBhabatarini Debi
RespondentProfulla Kumar Mukerjee and ors.
Cases ReferredBhugwandeen Dobey v. Myna Baee
Excerpt:
- .....rule was issued, have been set out in very great detail in the elaborate judgment recorded by the learned district judge, and have been placed before us with great lucidity and clearness by mr. a.n. chaudhuri, the learned counsel for the petitioner. on the facts of the case, it has to be determined whether there has been any illegal exercise of jurisdiction by the court, as it is sought to be made out, in the matter of the order passed by the court. it is well settled that in order to meet the requirements of section 192 it was necessary for the court to consider whether the objector to the grant of the application had any title and whether the claimant was really entitled to the property: see phul chand lal v. kismish koer [1910] 6 i.c. 630 and sato koer v. gopal sahu [1907] 34 cal.....
Judgment:

1. This Rule is directed against an order passed by the learned District Judge of Birbhum, on an application made by the petitioner Bhabatarini Debi under Section 192, Succession Act, 1925, in regard to certain moveable properties left by her mother Kiran Sasi Debi and claiming a right by succession to the same, as the heir. The petitioner's case was that she was the only heir of her mother and as such, was entitled to the possession of the properties left by her. The application under Section 192 was opposed by opposite party Profulla Kumar Mukerjee, who claimed the properties as belonging to his two deceased wives, the sisters of the petitioner, who had predeceased their mother Kiran Sasi Debi, as also to his children by the two wives. The facts of the case giving rise to the application to this Court on which this rule was issued, have been set out in very great detail in the elaborate judgment recorded by the learned District Judge, and have been placed before us with great lucidity and clearness by Mr. A.N. Chaudhuri, the learned Counsel for the petitioner. On the facts of the case, it has to be determined Whether there has been any illegal exercise of jurisdiction by the Court, as it is sought to be made out, in the matter of the order passed by the Court. It is well settled that in order to meet the requirements of Section 192 it was necessary for the Court to consider whether the objector to the grant of the application had any title and whether the claimant was really entitled to the property: see Phul Chand Lal v. Kismish Koer [1910] 6 I.C. 630 and Sato Koer v. Gopal Sahu [1907] 34 Cal 1929. The statutory provisions themselves bearing upon the subject, speak of a person 'claiming a right by succession' (Section 192) of the party in possession having 'no lawful title,' and of a person 'really entitled' (Section 193), of the summary determination of 'the right to possession' (Section 194), and of 'the death of the proprietor whose property is claimed by right of succession' Section 205.

2. In view of the position as indicated above there can be no doubt that the learned Judge in the Court below directed himself rightly in stating in his judgment that he was 'to decide the right of possession' of the properties which were the subject-matter of the claim made by the petitioner before him and that the Court was required to decide as to who amongst the rival claimants had a preferential claim. The learned Judge has given a decision upon the materials before him, keeping in view the scope of the inquiry, which was of a summary nature, and has held that the claim made by Profulla Kumar Mukerji in respect of some items of the moveables in dispute, was a preferential one: that he had a preferential right to claim them, and has given direction that those items of moveables should go to the possession of Profulla Kumar Mukerji, The order as made by the District Judge is one which cannot, and should not be interfered with by this Court in its revisional jurisdiction, unless it could be made out that there was no jurisdiction in the Court or that such jurisdiction was illegally exercised. In the view we have expressed above there was jurisdiction in the Court and that jurisdiction has been rightly and properly exercised. The remedy still open to the petitioner is the one expressly provided by Section 208, Succession Act; and nothing contained in the judgment of the learned District Judge in the case before us, shall be an impediment to the petitioner to the establishment of her title, if any, under the law to the properties, the possession of which has been ordered to be delivered to Profulla Kumar Mukerji, by a regular suit.

3. Reliance has been placed on behalf of the petitioner on the observations of their Lordships of the Judicial Committee of the Privy Council in the case of Bhugwandeen Dobey v. Myna Baee [1868] 11 MIA 487 that a Judge had, in a case of the present nature, no jurisdiction to determine questions of title, and could only deal with the right to possession. It is only necessary to state that the obvious meaning of the observation so made was that there could be no final decision so far as the question of title was concerned in a summary proceeding by the Judge, in which the scope of inquiry was restricted to the right of possession subject to a regular suit in which the question of title as between rival claimants was to be finally decided. The observations mentioned above can therefore lend no support to the case of the petitioner before us, as the learned District Judge has strictly complied with the provisions of the law and has decided nothing beyond right to possession, as between the claimants, to the moveable properties, in respect of which the application was made by the petitioner under Section 192, Succession Act. A point has been made before us that in view of the provisions contained in Order 32, Rule 6, Civil P.C. the order for delivery of possession of moveables to Profulla Kumar Mukerji, without demanding any security from him was illegal. The special provisions of the Succession Act, 1925, under which the District Judge exercised jurisdiction in the case before us, contains no provision for demanding security from the person to whom property is ordered to be delivered under Section 194, and no question of demanding any security appears to have been raised before the District Judge, when the proceedings were pending before him. We are not prepared to hold that the substantive provisions of the law as contained in Section 194, Succession Act, could in any way be controlled by Order 32, Rule 6, Civil P.C., relating to the receipt of property by a guardian under a decree or order in favour of a minor. In our opinion the application of the provision in the Code of Civil Procedure, might, in cases, defeat the object of the statutory provision as contained in Section 194, Succession Act.

4. Some minor matters of detail such as the delivery of keys, etc., were brought to our notice, during the course of argument of the case before us on behalf of the petitioner. It is not possible for us to deal with such matters; it will be open to the parties concerned to apply to the District Judge for necessary directions if any further direction is really necessary in the matter of delivery of possession of properties, in pursuance of his order. In the result, the order of the learned District Judge passed on 27th January 1932, is affirmed, and this rule is discharged with costs. The hearing fee in the rule is assessed at 3 gold mohurs.

5. Let the record be sent down as early as possible.


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