1. This Rule was obtained on the opposite party to show cause why a certain order, passed by the learned Judge of Hooghly, under the provisions of Act XIX of 1841, should not be set aside on the ground that under the law it does not appear that he had jurisdiction to pass the order or that the requirements of the law necessary to pass the order do not appear to have been properly complied with. It appears that one Tinkori Dasi died at Benares after a short illness. Before her death, she left her house at Bhadreswar and went with the members of the family to which the present opposite party belongs to Benares. There she died. An application was made by the opposite party claiming to be related to the lady as relatives of her husband for proceedings to be taken by the District Judge under Act XIX of 1341. The Act was passed more than 70 years ago and it is not clear why, in the circumstances, the opposite party did not in the first instance adopt the ordinary course open to them under the law. They claimed as heirs of the husband of the deceased to be entitled to all the properties left by her and specially they claimed to be entitled to two boxes of ornaments which were left by her in her house. They claimed these boxes on the ground that before her death, she made over the keys of the boxes to them. The application was directed against the present petitioner who appears to be a relation of the spiritual guide of the lady and who appears to have lived with her for the last 16 or 20 years. This, petitioner claimed title to the immoveable property left by the lady under a deed of gift and also claimed title to the moveable property which was in these boxes and in the house in which, in fact, those persons were living. The learned Judge proceeded to dispose of the case under the provisions of Act XIX of 1841 and, having tried the case more or less as a regular suit, delivered a long judgment in which he came to the conclusion that the title was with the opposite party, who were the petitioners before him and passed an order directing the properties to be made over to them. The other side, who was in possession of the property at the time of the death of the deceased, has come to this Court and has obtained the present Rule the terms of which have already been mentioned.
2. The question which we have to decide in this case is whether or not there were circumstances sufficient to justify the lower Court in acting under the provisions of this old Act passed no less than 70 years before, which has very seldom been used, instead of leaving the parties to follow the ordinary course and bring a regular suit to prove their title to the property. In two similar cases the same question came before this Court, one disposed of in 1900 Phul Chand Lal v. Kishmish Koer 6 Ind. Cas. 630 : 11 C.L.J. 521 and other disposed of in 1907 Sato Koer v. Gopal Sahu 34 C. 929 : 12 C.W.N. 65. In these cases, it was pointed out that it was necessary, before action could be taken under Act XIX of 1841, that the provisions of Section 3 of that Act should be strictly fulfilled and that in order to fulfil the provisions of that section, it was necessary to consider, first, whether the opposite party had no title; secondly, whether the person claiming was really entitled to the property and, thirdly, whether the person making the. application was likely to be materially prejudiced if left to the ordinary remedy by a regular suit. In the present case it has not been shown to us nor does it appear to be declared on the judgment of the lower Court that the opposite party in this Rule, who were the applicants under the provisions of Act XIX of 1841, would have been materially prejudiced if left to the ordinary remedy of a regular suit. It would have been open to the Court, in which they brought their suit, at their instance to give directions for the proper custody and protection of the property during the disposal of the suit and certainly it was very desirable that in a case like the present, the matter should be hied out in the regular way and not disposed of by summary' proceedings under this old Act. The other points with regard to which the Court should be satisfied are that the person in possession of the properly had no lawful title and that the claimant was really entitled to the property. In the present case, the person in possession set up a title which, if proved, would be a lawful title and she at the same time alleged that the opposite party had no, title as the property in dispute was property which had come to the deceased from her own father. In these circumstances, it is impossible to say that the title set up by the petitioner was not a bona fide title or was not one which ought not to be considered and determined in a regular suit, Certainly, in the present case the conditions required by Section 3, which are necessary to give the Court jurisdiction to act under Act XIX of 1841, do not appear to as to have been complied with. Following, therefore, the principles laid down; by this Court in the two cases to which we have referred, namely, the cases of Phul Chand Lal v. Kishmish Koer 6 Ind. Cas. 630 : 11 C.L.J. 521 and Sato Koer v. Gopal Sahu 34 C. 929 : 12 C.W.N. 65, we direct that the Rule be made absolute, that the judgment and order of the lower Court be set aside and that the parties be referred to the Civil Court in order to prove in a regular suit their respective title to the property. The Court before which the application will be made by plaint or otherwise will, no doubt, take the steps necessary for the protection of the property pending the disposal of the suit. The result, therefore, is that the Rule is made absolute with costs three gold mohurs.