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Gopi Krishna Rai Vs. Raj Krishna Rai - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in6Ind.Cas.259
AppellantGopi Krishna Rai
RespondentRaj Krishna Rai
Cases ReferredSee Phool Chand v. Krishmish Koer
Excerpt:
succession (property protection) act (xix of 1841), section 3 - scope of the act joint possession of property left by deceased--applicability of act--preamble of statute--interpretation--enacting clause--discretion of judge--affidavit of applicant. - .....upon his death disputes broke out between? his widow and sons, as to the possession of the estate left by him. on the 12th june 1909, raj krishna made an application under act xix of 1841, alleging that his four brothers and his mother, who were inimically disposed towards him, were endeavouring to deprive him of his rightful share in the properties. he prayed for a summary investigation under the act, and for the, appointment of a curator. this application was opposed by the widow and the other sons. they denied the allegation of the petitioner and contended that the provisions of the act had no application, inasmuch as the four brothers of the petitioner were entitled to at least four-fifths share of the properties. the district judge thereupon considered the preliminary.....
Judgment:

1. We are called upon in this Rule to determine the true scope of Act XIX of 1841, which was passed for the protection of movable and immovable properties against wrongful possession in cases of succession. The circumstances, which have led to the present litigation, are not the subject of controversy amongst the parties. One Jiban Kumar Boy, a wealthy Hindu, governed by the Dayabhaga Law, and possessed of an estate of considerable value, consisting of both movable and immovable properties, died on the 6th January 1909. He left a widow, Ananga Manjari Dasi and five sons by her, Raj Krishna, Gropi Krishna, Krishna Padu, Radha Krishna and Haripadu. Immediately, upon his death disputes broke out between? his widow and sons, as to the possession of the estate left by him. On the 12th June 1909, Raj Krishna made an application under Act XIX of 1841, alleging that his four brothers and his mother, who were inimically disposed towards him, were endeavouring to deprive him of his rightful share in the properties. He prayed for a summary investigation under the Act, and for the, appointment of a curator. This application was opposed by the widow and the other sons. They denied the allegation of the petitioner and contended that the provisions of the Act had no application, inasmuch as the four brothers of the petitioner were entitled to at least four-fifths share of the properties. The District Judge thereupon considered the preliminary objection, which was sought to be supported upon three grounds, namely, first, that the first paragraph of the preamble, to Act XIX of 1841 shows that the provisions of the Act are not applicable to the facts of t he case, secondly, that the provision of Section 8 of the Act had not been strictly followed; and, thirdly, that the Act ought not to be applied, as the petitioner was not likely to be materially prejudiced, if left to his ordinary remedy by a regular suit. The District Judge overruled these contentions, and held that sufficient grounds had been made out to entitle him to take cognizance of the case under the Act; he, therefore, called upon the parties to produce evidence in support of their respective allegations. We are now invited by the widow and the four sons to discharge this order, on the ground that the Court had no jurisdiction to deal with the application under Act XIX of 1841, first, because the Act has no application to cases of joint possession of property left by a deceased person; and, secondly, because an order under Section 4 cannot be made, till the elements mentioned in Section 3 had been established, and the allegations of the petitioner in his application were not sufficient to show that the jurisdiction created by the Act could be exercised in the present case. The validity of these contentions must be determined upon an interpretation of the provisions of the Act.

2. Section 1 of Act XIX of 1841 provides that whenever a person dies, leaving property movable or immovable, it shall be lawful for any person claiming a light of succession thereto, or to any portion thereof, to make an application to the Judge of the Court of the District where any part of the property is found or situate, for relief, either after actual possession has been taken by another person, or when forcible means of seizing possession are apprehended. It is manifest from the language used by the Legislature that an application may be made under the Act, even when the applicant claims a right by succession to a portion only of the property left by the deceased. This appears sufficient to cover a case in which, as here, the claim relates to an undivided share of the estate left by the deceased. We may take a concrete illustration: if the original owner leaves two sons A and B, and A seizes the entire estate left by his father, it is competent for B to apply under the Act, though he claims only one-half share of the estate in other words, the Act is not limited in its application to cases, where the dispute arises between two persons, each of whom claims title by succession to the entire estate. It has been argued, however, by the learned Vakil for the petitioner, that the provisions of Section 1 are controlled by the preamble to the Act, and No. application is maintainable, when the dispute relates to a share of the property left by the deceased. In our opinion, there is no solid foundation for this contention. In the first place, it is not necessary to put upon the preamble the restricted construction suggested by the petitioners; and in the second place, even if the preamble be taken to contemplate one particular contingency, it ought not to be allowed to restrict the plain meaning of Section 1. The preamble recites the mischief for a removal of which the Act was intended, and states that inconvenience had been experienced when persons have died possessed of movable and immovable property, and the same has been taken upon pretended claim of right by gift or succession, and the parties affected have been driven to regular suits, vexatiously protracted, for the enforcement of their just rights. It has been suggested by the learned Vakil for the petitioners that this clearly contemplates cases where the whole of the movable and immovable property left by the deceased has been taken upon a pretended claim of right by gift or succession. This, no doubt, is a possible construction of the language used by the Legislature; bat the other interpretation, namely, that the preamble covers cases where the property has been seized in whole or in part, is by no means inadmissible. In fact, to return to the concrete case taken above, if A seizes the whole of the estate left by his father to the exclusion of his brother B, in so far as a half share is concerned there is no dispute that the possession is lawful; it is only in respect o of the other fact that it can be suggested, that A has taken it upon a pretended claim of right by gift or succession. It is fairly clear, therefore, that a restricted interpretation need not be put upon the preamble. It is manifest, however, that even if the preamble were construed in the manner suggested by the petitioners, so as to cover only cases where upon the death of the original owner, the whole of his estate is unlawfully seized in-assertion of a pretended claim, it cannot possibly restrict the plain meaning of the first section of the Act. It is well settled that the preamble to a statute can neither expand nor control the scope and application of the enacting clause, when the latter is clear and explicit; but if the language of the body of the Act is obscure or ambiguous, the preamble may be consulted as an aid in determining the reason of the law and the object of the Legislature and thus arriving at the true construction of the terms employed. It cannot be disputed that where the words of the enacting Clause are more broad and comprehensive than the words of the preamble, the general words in the body of the statute, if free from ambiguity, are not to be restrained or narrowed down by particular or less comprehensive recitals in the preamble. Copeman v. Gallant 1 P. Wins 314. As stated in Dwaris on Statutes (Potters Edition 109), the preamble of a statute is no more than a recital of some inconvenience, which by no means excludes any others for which a remedy is given by the enacting part of the statute. King v. Pierce 3 M. & S. 62 at p. 66, Copland v. Davies L.R. 5 H.L. 358 : 21 W.R. 1; Fellowes v. Clay 4 Q.B. 313 at p. 349. This principle has been repeatedly applied in the construction of Indian Statutes Nga Hoona v. Queen 7 M.I.A. 72 : 4 W.R. (P.C.) 109; Chinna Aiyar v. Mahomed Fukruddin Saib 2 M.H.C.R. 322; Queen-Empress v. Inderjit 11 A. 262 and Vithu v. Govinda 22 B. 231 at p. 32. We must consequently hold, upon an interpretation of the first section of the Act, that an application may be maintained when it is alleged by a person who claims a share in the estate left by the deceased, that that share has been seized by other persons in assertion of a pretended claim of right by gift or succession.

3. The second ground, upon which the order of the Court; below is challenged, relates to the conditions which must be satisfied before the Judge fen entertain an application under the Act, and the means by which he should ascertain whether these conditions have been satisfied. Section 3 of the Act provides that the Judge to whom such an application has been made shall, in the first place, enquire, by the solemn declaration of the complainant and by witnesses and documents, at his discretion, whether there are strong reasons for believing that the party in possession, or taking forcible, means for seizing possession, has no lawful title, and 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. The fourth section then provides that the Judge shall be satisfied of the existence of such strong ground of belief, before he issues notice upon the party against whom the complaint is made. It has been argued before us that the Court below ought not to have acted Upon the affidavit filed by the petitioner but should have examined the petitioner himself on oath or solemn affirmation; and in support of this proposition, reliance has been placed upon the cases of Jusoda Koonwar v. Baboo Gouree Byinath Pershad 6 W.B. Mis. 53 : 1 Ind. Jurist N.S. 365 and Sat Koer v. Gopal Sahu 34 C. 929 : 12 C.W.N. 65. No doubt, in these cases, it was ruled that before a Court can assume jurisdiction to proceed under Act XIX of 1841, it must be found that the provisions of the law have been strictly complied with; but we are unable to hold that the Judge in the case before us has proceeded in un irregular manner. In the exercise of his judicial discretion, he was entitled to act upon the affidavit of the applicant, and we are not satisfied that the opposite party has any legitimate grievance, because the Judge has only called upon them to produce their evidence. He has taken steps preliminary to action upon the application; and the circumstance, in oar opinion, amply justify the order which he has made. It is an elementary rule of law that when the jurisdiction of a Court can be exercised under certain specified circumstances, if the exercise of such jurisdiction is invoked on the allegation that, all the elements necessary to make the law operative are present, and if this is denied, it is not only competent to the Court but it is its duty to investigate whether all the elements essential to create jurisdiction do, as a matter of fact, exist. Now, in the preliminary stage contemplated by Section 3 of Act XIX of 1841, the Judge has merely to satisfy himself upon the declaration of the complainant and also upon the examination of witnesses and documents, if he deems necessary, whether there are strong reasons for the belief that the application is bona fide and that judicial action ought to be taken. This merely implies that an application made0 under the Act ought not to be granted as a matter of course, but that the Court should proceed with caution and satisfy itself that there are sufficient grounds in support of a prima facie case See Phool Chand v. Krishmish Koer (Unreported) Rule 1448 of 1900. If the Judge is satisfied that there are such prima fact grounds, he cites the party against whom the complaint has been made, so that he may determine summarily the right to possession. We are unable to hold that the procedure followed by the District Judge in the present case is in any way irregular, or has caused any prejudice or hardship to the petitioners.

4. The result, therefore, is that this Rule must be discharged with costs. We assess the hearing fee at five gold mohurs.


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