28 August 1964
Supreme Court


Case number: Appeal (civil) 553 of 1963






DATE OF JUDGMENT: 28/08/1964


CITATION:  1965 AIR  658            1965 SCR  (1) 168

ACT: Bombay  Regulation  (8  of 1827),  r.  9-Requirement  as  to possession by one of the claimants-Relevant date.

HEADNOTE: Where  the District Court appoints an administrator  to  the estate  of  a  deceased person under rule 9  of  the  Bombay Regulation  VIII  of 1827, on the ground that the  right  of succession is disputed between two or more claimants none of whom  has taken possession of the property, what  the  court has  to  consider  is whether any of the  claimants  was  in possession of the property at the date of the,  commencement of  the proceedings under the Regulation.   The  proceedings may  commence  either on an application made by one  of  the claimants  or  may  be started suo motu by  the  Judge.   In either  case,  the relevant point of time  by  reference  to which  the requirement as to possession has to be judged  is the date of the commencement of the proceedings and not  the date on which the order is passed. [173D-F.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 553 of 1963. Appeal,  by special leave from the judgment and order  dated February  27,  1963, of the Mysore High  Court  in  Criminal Revision Petition No. 476 of 1962. S.C. Agarwal, R. K. Garg, D. P. Singh, M. K. Ramamurthi,  A. Shankar Alva and M. Veerappa, for the appellants Nos. 1, 3 and  4. Lily Thomas, K. Rajendra Chaudhuri and K. R. Chaudhuri,  for respondents Nos.  1 to 5. The Judgment of the Court was delivered by Gajendragadkar  C. J. The short question which  this  appeal raises  for our decision is in relation to the  construction of rule 9 of Bombay Regulation VIII of 1827.  Purporting  to act  under  the said Rule the  learned  Additional  District Judge  at Bijapur has ordered that the Dy.  Commissioner  of Bijapur  District  be appointed the  administrator  for  the management  of  the  estate of  deceased  Kashibai  Sangappa Gadigappa   Desai  who  died  on  the  1st  January,   1958.



According to this direction, the Administrator has to manage the  estate  of  the said deceased  Kashibai  including  the scheduled  property, both movable and immovable,  until  the right  of succession is determined by a competent  court  of law. 169 The   appellant  Mallappa  Basappa  Desai   challenged   the propriety  and  the  validity of this order  by  moving  the Mysore  High  Court  in its  revisional  jurisdiction  under section 115 of the Code of Civil Procedure.  The High  Court was,  however,  satisfied  that  there  was  no  ground   to interfere  with the order passed by the  learned  Additional District  Judge.   Against this decision the  appellant  has come to this Court by special leave; and on his behalf,  Mr. Pathak has urged that the impugned order is not justified by the  terms of r. 9. That is how the only question  which  we have to decide in the present case is about the construction of r. 9. It  appears that Sangappa Gadigappa Desai was the last  male holder  of  the  Desgat properties with  which  the  present proceedings are concerned.  ’These properties are  extensive and  yield  substantial  income.  On his  death.  his  widow Kashibai  came into possession of the said properties.   The appellant alleges that in 1929 the Collector of the district held  that  the  appellant’s father  was  the  nearest  male reversioner to the estate left by Sargappa Desai.  In  1943, the  appellant’s father died.  In 1946 again an enquiry  was held and it is alleged by the appellant that he was found to be the eldest male member of the eldest branch of the family and as such was entitled to succeed to the Desgat and  other properties left by Sangappa.  Even so, Kashibai continued to be   in  uninterrupted  and  exclusive  possession  of   the properties until she died on the 1st January, 1958.  On  the 7th January, 1958, the appellant filed an application before the Mamlatdar praying that his name should be entered in the Record of Rights in respect of- lands of the Jainapur Desgat estate.  This application led to several other  applications by  different persons who claimed to be entitled to  succeed to  the  estate.  These respective applicants  are  the  six respondents  to the present appeal.. Respondent No. 1  filed Application No. 1 of 1958 under s. 192 of the Indian Succes- siion Act, 1925, on the 8th January, 1958.  On the same day, respondent   No.  1  applied  for  the  appointment   of   a Commissioner and an ex parte order was passed appointing Mr. Managoli  as  the Commissioner.  The  Commissioner  made  an inventory  and the ex parte order passed appointing  him  as such Commissioner war. later confirmed.  On the 9th January, 1958, respondent No. 2 filed Application No. 2 under  Bombay Regulation  VIII  of  1827.   On  the  5th  February,  1958, respondents 3 & 4 filed Application No. 4/1958 under rules 9 &  10  of the said Regulation.  On the 6th  February  1.958, respondent  No. 2 filed Application No. 511958 under s.  192 of  the Indian Succession Act.  On the 10th February,  1958, respondent  No.  6 filed a similar  application  No.  6/1958 under Regulation VIII of 1827.  That is how these five 170 applications  raised a common question about the  succession to  the  estate of which Kashibai was in possession  as  the widow of her deceased husband Sangappa Desai. It appears that on the application made by the appellant for mutation  of his name in the Record of Rights the  Tehsildar made an order on the 27th February, 1958 directing that  the appellants  name  should  be shown  as  superior  holder  in respect  of  the lands forming part of  the  Desgat  estate. That  order was challenged by respondents 1 to 4 by  appeals



preferred  before  the Assistant  Commissioner  of  Bijapur. Their  appeals were, however, dismissed and the  Tehsildar’s order  was  confirmed  on  the 17th  May,  1958.   The  said respondents then moved the Mysore Revenue Appellate Tribunal in  its  revisional jurisdiction.   The  Appellate  Tribunal allowed  the  revision applications by its order  dated  5th December,   1958  and  directed  that  the  names   of   the respondents  should ’be ,entered as superior  holders  along with  the  appellant.  The appellant then moved  the  Mysore High  Court  under  Art. 227 of  the  Constitution  and  his application  was allowed, the order passed by the  Appellate Tribunal   was   set  aside  and  that  of   the   Assistant Commissioner was confirmed.  This decision was pronounced on the 7th December, 1959. On the 18th January, 1960, the Additional District Judge who heard  the several applications made before him  by  respon- dents  1 to 6, came to the conclusion that a case  had  been made  out  for the appointment of an  Administrator  to  the property  in  question  under r. 9  of  the  Regulation  and accordingly,  he made the order which is the  subject-matter of the present appeal.  The appellant challenged this  order before the Mysore High Court, but his attempt failed.   That is how he has come to this Court in appeal. Before dealing with the question of the construction of rule 9, it is necessary to set out the facts found by the learned Additional  District Judge in the present  proceedings.   He has  found that there is a dispute as to the  succession  to the  estate left by the deceased Kashibai; in fact,  several persons have applied setting forth their respective,  claims to succeed to the said estate.  He has also found that there is no person amongst the parties before him who can be  said to  have  taken possession of the estate.  In  other  words, according  to the learned Judge, a dispute exists in  regard to the estate between two or more claimants and none of them has taken possession of the estate.  It was urged before him on  behalf ,of the appellant that a substantial part of  the immovable property 171 consisting of agricultural lands was in his possession,  and reliance  was  placed  in  that behalf  on  the  rent  notes executed by the tenants who were cultivating the said lands. The  learned Judge held that these documents had  come  into existence subsequent to the commencement of the  proceedings before  him,  and so, they did not help the  appellant.   He also  seems  to have taken the view that  these  rent  notes would  be  affected  by  lis  pendens.   In  regard  to  the movables, it is not disputed that the said movable  property was  in the custody of the Court.  A Commissioner  had  been appointed to make inventory of the said properties and after the  inventory  had  been made, they  were  taken  into  the possession  of  the Court.  On these findings,  the  learned Judge  held  that  r. 9 applied, and  so,  he  appointed  an Administrator  and  authorised  him to take  charge  of  the properties in question. When  this order was challenged by the appellant before  the High  Court under s. 115, C.P.C., the High Court  held  that the question as to whether the appellant was in  possession, was  a  question  of fact and the finding  recorded  by  the learned  Additional District Judge could not  be  challenged under  the  said section.  The High Court  agreed  with  the appellant’s contention that the learned Additional  District Judge may be in error in taking the view that the rent notes executed  in favour of the appellant after the  encoment  of the present proceedings were affected by lis pendens,  that, however,  according  to the High Court, did not  affect  the



position  that  the appellant was not in possession  of  the said  properties  at  the date of the  commencement  of  the proceedings.  As we have already indicated, the mutation  in favour  of the appellant by the revenue authorities and  the rent  notes  taken  by  him from  the  tenants  who  are  in possession of the agricultural lands were all subsequent  to the  commencement of the -present proceedings, and both  the Courts  below have held that the relevant date by  reference to  which the question about the possession of  the  parties has  to be decided, is the date of the commencement  of  the proceedings; and it is this view the correctness of which is challenged by Mr. Pathak before us. Bombay  Regulation  VIII  of 1827 provides  for  the  formal recognition of heirs, executors and administrators, and  for the  appointment of administrators and managers of  property by  the  courts.  The preamble to the  Regulation  indicates that  it  was thought in general desirable that  the  heirs, executors  or  legal  administrators  of  persons   deceased should,  unless the right is disputed, be allowed to  assume the management or sue for the recovery of property belonging to  the  estate,  without  the  interference  of  courts  of justice.  Yet, it was realised that in some cases 172 such  heirs,  executors or administrators  should  obtain  a certificate  of  heirship,  executorship,  or  administrator ship,  from the Zila Court; the preamble further shows  that where  it  appeared  that there was no person  on  the  spot entitled  or willing to take charge of the property  of  the deceased person, or when the right of succession is disputed between  two  or  more claimants, none  of  whom  has  taken possession  it  is  essential that the  Zila  Co-art  should appoint  an Administrator for the management of the  estate. It is in the light of this policy mentioned in the  preamble to the Regulation that Rules were framed.  Rule 1 authorised the  legal heir, executor, or legal administrator to  assume the management, or sue for the recovery, of the property  in conformity with the law or usage applicable to the  disposal of  the  said property, without making any  previous  appli- cation  to  the court to be formally  recognised.   Rule  2, however,   contemplated  that  if  an  heir,   executor   or administrator  wanted to obtain recognition, he  could  move the  court in that behalf, and rules 3 to 6 provide for  the manner  in  which an application for recognition  should  be dealt  with.   That  takes  us to r. 9  with  which  we  are directly concerned in the present appeal.               Rule 9 reads thus :               "Whenever  there  is  no person  on  the  spot               entitled  and  willing to take charge  of  the               property of a person deceased, where the right               of succession is disputed between two or  more               claimants, none of whom has taken  possession,               or  where  the heirs are  incompetent  to  the               management  of  their  affairs  from  infancy,               insanity  or other disqualification, and  have               no near relations entitled and willing to take               charge  on  their behalf,  the  Judge,  within               whose  jurisdiction  such  property  is,   may               appoint  an administrator for  the  management               thereof,  until the lawful heir,  executor  or               administrator   appears,  or  the   right   of               succession     is    determined,    or     the               disqualification  of the heir is  removed,  as               the  case  may  be, when the  Judge  on  being               satisfied  of  the  facts,  shall  direct  the               administrator  in charge to deliver  over  the



             property  to such person, with a full  account               of  all receipts and disbursements during  the               period of his administration." In the present case, the relevant clause is where the  right of  succession  is disputed between two or  more  claimants, none  of  whom has taken possession’.  It is  common  ground that  the  right  of  succession  is  disputed  between  the claimants who have moved the Additional District Judge.  The point of dispute between the 173 parties   is  whether  any  of  the  claimants   has   taken possession.   The appellant contends that at the  date  when the  administrator was appointed by the Additional  District Judge  he  was in possession, and so, the  requirement  that none  of  the claimants should be in  possession  before  an administrator  can  be  appointed  is  not  satisfied.   The argument is that the relevant date by reference to which the question  of  possession  should be determined  is,  in  the context,  the  date  of the order, and if that  be  so,  the appellant  was in possession of the bulk of  the  properties and the appointment of an administrator was, therefore,  not justified.   It is also urged in support of this  plea  that the fact that the rent notes were executed in favour of  the appellant after the commencement of the present  proceedings cannot  obviously introduce considerations of  lis  pendens, and what the Court has to consider is just the bare question as  to whether any of the claimants is in possession of  the property  or not, and the answer to this question should  be in  favour of the appellant because he produced  before  the Court   rent  notes  executed  by  the  tenants   who   were cultivating the lands in question.  This  argument is not well-founded. What the Court  has to  consider in dealing with the question of possession  is: was  any  of the claimants in possession of  the  properties succession  to  which  is  in dispute at  the  date  of  the commencement of the proceedings under this Regulation ?  The proceedings  may commence either on an application  made  by one  of  the claimants, or may be started suo  motu  by  the Judge;  in  either  case,  the relevant  point  of  time  by reference  to which the requirement as to possession has  to be   judged  is  the  date  of  the  commencement   of   the proceedings.  It may be that one of the claimants  may  have obtained possession soon after the death of the last holder, and  before the proceedings commenced under the  Regulation, he  would be able to show that he was in possession; but  if no  one was in possession at the date when  the  proceedings commenced, the requirement of the relevant clause of r. 9 is satisfied,    because   possession   obtained   after    the commencement   of  the  proceedings  would  not   make   any difference. If the appellant’s construction is accepted,  it would  lead to anomalous results. Take a case where none  of the claimants is in possession at the date when the District Judge makes his order, and that when the matter is taken  to the  High Court under section 115, some one or the other  of the   claimants  manages  to  secure  possession.   On   the appellant’s  construction, the High Court would have to  set aside the order appointing the administrator, because at the date  when  the High Court is passing the order one  of  the claimants  has secured possession. Besides, the  basic  idea underlying the provisions of r. 9 LISup./64-12 174 is to provide for a smooth, peaceful and legal devolution of the  estate  on the rightful owner; and so, in  cases  where there is a dispute as to title amongst different persons and



none  of  these persons has been able to  secure  possession soon after the succession opened, r. 9 steps in and provides for the appointment of an administrator.  The appointment of the  administrator  does  not prejudice, the  claim  of  any person  who  has  set up a title to  succession.   The  only result  of the appointment of the administrator is that  the property  is taken under the charge of an administrator  and is managed by him pending the final decision of the question of  succession  to  the  estate  by  a  court  of  competent jurisdiction.  Therefore, we are satisfied that  the  Courts below were right in holding that since the appellant was not in  possession  at  the date when  the  present  proceedings commenced  and obviously there is a dispute as to the  title between  two or more claimants, the material requirement  of r.  9 is satisfied and that justifies the appointment of  an administrator. We  have  already  seen  that  r.  2  contemplates  that  an executor,  heir,  or  administrator  may  apply  for  formal recognition  as  a measure of safety  and  subsequent  Rules provide  for the manner in which such an application  should be  dealt with.  If the application succeeds, a  certificate is  issued.   If the application fails, the  certificate  is refused.  But rule 8 specifically provides that the  refusal of  a certificate by the Judge shall not  finally  determine the  rights of the person whose application is refused,  but it  shall still be competent to him to institute a suit  for the  purpose of establishing his claim.  Rules 8 and 9  both make it clear that the decision recorded by the Court  under the  provisions of the relevant Rules is a summary  decision and it does not purport to bar the jurisdiction of the civil courts  by  which  questions  of  title  would  be   finally determined.   That being so, it seems clear that  under  the relevant clause of r. 9, the date of possession must be  the date before the proceedings commenced.      In  the result, the appeal fails and is dismissed  with costs. Appeal dismissed. 175