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Phul Chand Lal and ors. Vs. Kishmish Koer - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in6Ind.Cas.630
AppellantPhul Chand Lal and ors.
RespondentKishmish Koer
Cases ReferredMandil Koer v. Phul Chand
Excerpt:
succession property protection act (xix of 1841), preamble and section 3 et seq. - scope of enquiry by judge--civil procedure code (act xiv of 1882), section 622. - .....in this connection are shortly these: the estate belonged to one kunt das. he died leaving a widow musammat mandil koer. this lady adopted one jaggarnath das. after this adoption, the petitioner before us brought a suit for a declaratory relief upon the ground that they were the next takers of the inheritance after the death of the widow mandil koer and that the adoption made by her was illegal. juggarnath das died during the pendency of the suit and was substituted in his place by his widow musammat kishmish koer. his suit seems to have been decreed both by the zillah court and by the high court in appeal; mandil koer v. phul chand 2 c.w.n. 154, it being held, as we are informed, that 'the adoption was not legal or authorized, and that the petitioners were the reversionary heirs.....
Judgment:

1. The subject-matter of this Rule is an order made by the District Judge of Patna purporting to be an order under Act XIX of 1841. By this order, the District Judge declined to take any action upon the petition presented to him by the petitioners under the said Act, upon the ground that the claim of right made by the opposite party, Musammat Kishmish Koer, seemed to him to be bona fide.

2. The facts which it is necessary to mention in this connection are shortly these: The estate belonged to one Kunt Das. He died leaving a widow Musammat Mandil Koer. This lady adopted one Jaggarnath Das. After this adoption, the petitioner before us brought a suit for a declaratory relief upon the ground that they were the next takers of the inheritance after the death of the widow Mandil Koer and that the adoption made by her was illegal. Juggarnath Das died during the pendency of the suit and was substituted in his place by his widow Musammat Kishmish Koer. His suit seems to have been decreed both by the Zillah Court and by the High Court in appeal; Mandil Koer v. Phul Chand 2 C.W.N. 154, it being held, as we are informed, that 'the adoption was not legal or authorized, and that the petitioners were the reversionary heirs to the estate left by Kunt Das. The decree of the High Court affirming that of the Zillah Court has, however, been appealed against to the Privy Council; and the matter is. now pending before the Judicial Committee. In the meantime Musammat Mandil Koer, the widow of Kunt Das died on the 29th May of the present year. Thereupon, a petition was presented by the reversionary heirs, the petitioners before this Court, under Act XIX of 1841, in which they stated the previous history of the litigation, with this exception, however, that the matter of the appeal to the Privy Council was not mentioned, and also that Musammat Mandil Koer had died leaving properties both movable and immovable, and a large amount of cash, and that Musammat Kishmish Koer, the widow of Juggarnath Das with the help of her father, Lal Baboo, was trying to remove the movable properties left by Kunt Das and his widow Musammat Mandil Koer, and praying that an inventory might be made, and that the nazir of the Court directed to take temporary charge of the properties belonging to the estate. This application was made on the 2nd June. On the same date, the learned District Judge, after reciting what the nature of the application was, made the following order:'Put up on Monday for arguments.' On the 4th June, which was Monday, an affidavit was put in on behalf of the petitioners and on the same date it would appear, that a vakalutnama was. presented on behalf of the widow of Juggarnath Das, Kishmish Koer. Later on, on the same date, argument was heard and order reserved; and on the 5th June, the District Judge made the following order:'After hearing the arguments of the parties, I do not think this is a case partaking action under Act XIX of 1841. The preamble of the Act shows that it is to be used only when pretended claims of right by gift or succession are put forward. In this case the claim of right made by the opposite party, Musammat Kishmish, seems bona fide. The parties may, therefore, be left to the ordinary remedies in the Civil Court.'

3. It is against this order that an application was made to us, and upon which application the Rule was issued, calling upon the opposite party, Musammat Kishmish Koer, to show cause why the said order of the District Judge should not be set aside and he directed to investigate the matter as provided by Act XIX of 1841.

4. It will be observed that Section 3 of the Act contemplates some enquiry being made by the District Judge as to the case set up by a petitioner, and he has to satisfy himself upon two points, first, that the opposite party has no lawful title; and, secondly, that the applicant is really entitled and is likely to be materially prejudiced if left to the ordinary remedy of a regular suit and that the application is made bona fide. It does not appear that the learaed District Judge made the enquiries as contemplated by Section 3. It does not appear that the opposite party was called upon to show cause, nor was the case of the opposite party properly laid before him, though it does appear from the proceedings that the learned Judge had before him a certain pleader who appeared on behalf of the opposite party. It is perhaps upon hearing this pleader that the learned Judge thought that the claim made by, Musammat Kishmish Koer was bona fide. It seems to us however, that this is not a sufficient finding in order to entitle the District Judge to say-that no action should be taken under the provisions of Act XIX of 1841. As already pointed out, the District Judge had to be satisfied that the opposite party had 'no lawful title.' We need hardly say that the title put forward by a party may be bona fide, yet he may not have a lawful title to the particular property claimed. No doubt, as the learned Judge points out in his order the preamble of the Act speaks about pretended claims of right by gift or succession, and that it is in the case of such claims that action should be taken under Act XIX of 1841; but the words in the preamble must be read by the light of Section 3, and the following sections of the Act. Section 3 speaks of a person having no lawful title; and what we think the learned Judge had to enquire and satisfy himself about, was whether the opposite party had no lawful title to the property for the protection of which application was made to him, and also as to the title of petitioners, and whether, if no action be taken under Act XIX of 1841, it would materially prejudice them; and also whether their application was bona fide. We think that the learned Judge has not followed the procedure which is indicated by Act XIX of 1841, and the conclusion, he has arrived at, does not satisfy the requirements of the Act ; and that in the exercise of the jurisdiction vested in him by the Act, he has acted illegally and with material irregularity.

5. For these reasons we think his order, as it stands, cannot be supported, and that it should, therefore, be set aside, and the matter remitted to him for a proper investigation under Act XIX of 1841.

6. The record will be sent back to the lower Court without delay.


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