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PETITIONER: PRATIVA BOSE

       Vs.

RESPONDENT: KUMAR RUPENDRA DEB RAIKAT & ORS.

DATE OF JUDGMENT: 10/05/1963

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. DAS, S.K. HIDAYATULLAH, M. DAYAL, RAGHUBAR AYYANGAR, N. RAJAGOPALA

CITATION:  1965 AIR  540            1964 SCR  (4)  69

ACT: Succession  to Estate-Proprietor dying intestate  leaving  a single heir-Dispute between several claimants-Suit by person out  of possession-Application for taking of  security  from person  in possession-Power of District  Judge-Bengal  Wills and Intestacy Regulation V of 1799 ss. 3, 4.

HEADNOTE: The  respondent had brought a suit in the court of the  Sub- ordinate  judge, Jalpaiguri for declaration of his title  as the  sole  heir  and successor to  his  father’s  impartible estate,  which was taken possession of by  his  step-mother. That  suit was on transfer pending in the High  Court.   Two other  title  suits were also pending in the High  Court  in which  certain  agnates were claiming  as  successors.   The respondent  moved an application before the District  Judge, Jalpaiguri  for  the taking of security from  the  appellant under  s. IV of the Bengal Wills and Intestacy Regulation  V of  1799.  The District Judge held that the application  was barred under Art. 181 of the Indian Limitation Act and  that s. IV of the Regulation had no application since it  applied only where the deceased had left several heirs and not  one. The High Court found in favour of the respondent on both the points  and  directed the District Judge  to  take  security under s. IV.  Section IV of the Regulation is as follows,               "If there be more heirs than one to the estate               of  a  person dying intestate,  and  they  can               agree amongst themselves in the appointment of               a common manager, they are at liberty to  take               possession,  and  the Courts  of  justice  are               restricted   from  interference,   without   a               regular complaint, as in the case of a  single               heir;  but if the right of succession  to  the               estate be disputed between several  claimants,               one or more of whom may have taken possession,               the  Judge, on a regular suit being  preferred               by  the  party out of possession,  shall  take               good and sufficient security from the party or               parties   in  possession  for  his  or   their

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             compliance  with  the  judgment  that  may  be               passed  in  the suit; or, in default  of  such               security  being  given  within  a   reasonable               period,  may give possession, until  the  suit               may  be determined, to the other  claimant  or               claimants  who  may  be  able  to  give   such               security, declaring at the same time that such               possession is not in any degree to affect  the               right   of  property  at  issue  between   the               parties;  but  to be considered merely  as  an               administration  to the estate for the  benefit               of the heirs who may on investigation be found               entitled to succeed thereto." Held (Per Hidayatullah, Dayal and Ayyangar JJ.) that the 70 Regulation  was a piece of restrictive legislation  and  its provisions should be strictly construed. Each of the ss.  II, III and IV of the Regulation,  properly read and construed, was a complete code by itself and  dealt with the different situations.  Section II applied when  the deceased  died Deb leaving a will and naming an executor  to manage  the property, S.111 applied when the  deceased  died intestate  leaving a single heir and s. IV applied when  the deceased  died  intestate leaving more than one  heir.   The provisions  of ss.  III and IV were in no  way  inconsistent and it was not necessary to construe them together. Cohen v. S. E. Railway, (1877) 2 E. & D. 253, held inapplic- able. The  second  part  of s. IV which  provided  for  taking  of security  did not apply to a case such as the present  where the  deceased died intestate leaving only one heir  entitled to the entire estate.  It fell within the ambit of s. III of the Regulation. Since  the  courts have now ample powers  under  the  Indian Succession Act, 1925, and the Code of Civil Procedure, these provisions  of the Regulation are out of date and should  be repealed. Per  S. K. Das and Sarkar JJ -Section IV of  the  Regulation does not require an application for taking security and  the court   can  act  suo  motu.   Art.  181  is   confined   to applications  under the Code of Civil Procedure and  it  can have  no  application to the present application  as  it  is under  s. IV of the Regulation and not under the  Code.   An application  is  not under the Code  because  the  procedure there laid down has to be followed. Sha Mulchand & Co. Ltd. v. Jawahar Mills, Ltd. [1953] S.C.R. 351, applied. The  Court of the District judge is the proper  forum  where the application under s. IV can be made.  In the absence  of an  order  under s. 23 of the Bengal, Agra and  Assam  Civil Courts  Act,  1887, the order contemplated by s. IV  can  be made  only by a District Judge and it is not necessary  that the  suit  mentioned in the section must be  pending  before him. Kumar Punyendra Dev v. Kumar Bhairabend -a Deb. (1946) 50 C. W. N. 776, approved. There is no reason why the Resolution should provide differ- ently for cases of a single heir and cases of more than  one heir  and  it does not do so.  The words "if  the  right  of succession  to  the  estate  is  disputed  between   several claimants"  in  s. IV includes a case where  a  person  dies leaving  a  single  heir and several  persons  dispute  each claiming to be that heir. separated  by  a  semi-colon  they  cannot  deal  with   two different  states of affairs and that the latter part’  must

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be controlled by the former. 71 Neither  does the word "but" between the two parts  lead  to that conclusion. The  word ’heirs’ in the second part of s. IV  must  include one heir. Section IV of the Regulation, therefore, applied to the case and the appellant could be called upon to furnish security. It  was not correct to say that s. IV of the Regulation  was impliedly repealed by ss. 192 to 195 of the Succession  Act, 1925. The High Court had Jurisdiction in revision to set aside the order of the District Judge since he had failed to  exercise his  jurisdiction on a misinterpretation of the statute  and erroneous view of limitation. Joy Chand Lal Babu v. Kamalaksha Choudhury. (1949) 76 I.   A. 131, applied. But  the  power  to take the security under  s.  IV  of  the Regulation  is a discretionary power vested in the  District Judge and the High Court was in error in directing him to do so.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 539 of 1960. Appeal  by special leave from the judgment and  order  dated June  6, 1956, of the Calcutta High Court in Civil Rule  No. 499 of 1955. C.   K. Daphtary, Solicitor-General of India, B. Sen, S.   N. Mukherji and P. K. Bose, for the appellant. K.   B. Bagchji and Sukumar Ghose, for the respondents.  May 10,  1963.  The Judgment of M. Hidayatullah, Raghubar  Dayal and  N. Rajagopala Ayyangar JJ., was delivered  by  Raghubar Dayal J. The separate opinion of S. K. Das and A. K.  Sarkar JJ., was delivered by A. K. Sarkar J. SARKAR  J. Raja Prosanna Deb Raikat, the proprietor  of  the Baikundiapur  Raj Estate, in the district of  jalpaiguri  in West  Bengal, died intestate on December 4, 1946.  The  Raja left  behind him a widow, Rani Asrumati Debi,  now  deceased and  the appellant Prativa Bose, the daughter by her.   Rani Asrumati took possession of the estate on the Raja’s death. On August 7, 1947, the respondent Rupendra instituted a suit in the Court of the Subordinate Judge of jalpaiguri, against Rani  Asrumati and certain other agnatic relations  of  the, Raj  for a declaration that as the Raja is eldest son 72 by another wife Rani Renchi, he was the sole lawful heir and entitled to the exclusive possession of the estate which was an  impartible  estate  and governed by  the  rule  of  pri- mogeniture,  and  for  possession  and  other  consequential reliefs.   Rani  Renchi was a lady belonging to  the  Lepcha tribe and the respondent Rupendra alleged that the Raja  had married  her according to the Gandharba form.  The suit  was contested  by  Rani Asrumati and the agnatic  relations  who denied that there had been any marriage between the Raja and the  mother  of  the  respondent  Rupendra.   The  suit  was transferred  to the High Court at Calcutta by an order  made on  April 12, 1949 under cl. 13 of its Letters Patent.   The respondent Rupendra made an application to the High Court in that suit for appointment of a receiver but it was dismissed on  July 29, 1952.  There was an appeal from this order  but the records do not show that it succeeded.  It appears  that two  agnatic relations, namely, Kumar Guru Charan and  Kumar Jitendra  filed  suits in the High Court  at  Calcutta  each

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claiming  title  to  the  estate as the  sole  heir  of  the deceased Raja.  All these suits are still pending. On  January  5, 1954, Rani Asrumati died and  thereupon  the appellant  Prativa  Bose  took  possession  of  the   estate claiming title to it.  Since then she has been and still is in possession. On  March  31,  1954,  the  respondent  Rupendra  filed   an application  under s. 4 of the Bengal Regulation V of.  1799 in  the  Court of the District Judge of  jalpaiguri  for  an order  calling  upon the appellant Prativa Bose  to  furnish security for compliance with the judgment that may be passed in  the  suit  filed by him.   The  learned  District  judge dismissed  the  application on two grounds.  He  first  held that s. 4 of the Regulation did not apply to a case where  a person died intestate leaving a single heir and the  dispute was between several persons claiming to be that heir.   Then he held that the application by the respondent Rupendra  was barred  under  Art.  181  of  the  First  Schedule  to   the Limitation Act. The Respondent Rupendra moved the High Court at Calcutta  in revision  against the order of the learned  District  judge. The High Court disagreed with the learned District Judge  on both the points and set aside his order 73 and directed him to "exercise his special Jurisdiction under s. 4 of the Regulation and take sufficient security from the opposite  party  Prativa  Bose." The present  appeal  is  by Prativa Bose against the order of the High Court. The  object  of the Bengal Regulation V of 1799  appears  to have  been  "to  limit the interference  of  the  Zila...... Courts  of  Diwani  Adalat in the  execution  of  wills  and administration  to the estate of persons  dying  intestate." The first section is in the nature or a preamble, and so far as relevant,sets out the object of the Regulation as earlier stated.   Section  2 deals with the case of the death  of  a person  leaving a will and appointing an executor where  the heir  of  the  deceased is  not  a  disqualified  landholder subject  to the superintendence of the Court of  Wards.   It states  that  the executor is to take charge of  the  estate without any application to the Judge of the Diwani Adalat or any  other  officer of the Government and it  prohibits  the courts of Justice from interfering in such cases except on a regular complaint against the executor.  Sections 3, 4 and 5 (the last so far as material only) are in these terms :               S.    3 In case of a Hindu, Mussalman or other               person subject to the jurisdiction of the Zila               Courts  dying intestate, but leaving a son  or               other  heir, who, by the laws of the  country,               may be entitled to succeed to the whole estate               of  the  deceased, such heir, if  of  age  and               competent   tO   take   the   possession   and               management of the estate, or, if under age  or               incompetent and not under the  superintendence               or the Court of Wards, his guardian or nearest               of -kin who, by special appointment or by  the               law   and  usage  of  the  country,   may   be               authorised to act for him, is not required  to               apply to the Courts of justice for  permission               to  take  possession  of  the  estate  of  the               deceased  as  far  as the  same  can  be  done               without  violence; and the Courts  of  justice               are  restricted  from  interference  in   such               cases,   except   a   regular   complaint   be               preferred.               S.    4 If there be more heirs than one to the

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             estate  of a person dying intestate, and  they               can   agree   amongst   themselves   in    the               appointment  of a common manager, they are  at               liberty to take possession, and the Courts  of               justice  are  restricted  from   interference,               without a 6-2 S. C. India/64               74               regular  complaint,  as,  in the  case  of  a,               single heir; but If the right of succession to               the   estate  be  disputed   between   several               claimants, one or more of whom may have  taken               possession, the judge, on a regular suit being               preferred  by  the party out  of  possession’.               shall  take good and sufficient security  from               the party or parties in possession for his  or               their compliance with the judgment that may be               passed  in the suit; or, in default  of  such-               security  being  given  within  a   reasonable               period,  may give possession, until, the  suit               may  be, determined, to the other claimant  or               claim  ants  Who  may be  able  to  give  such               security,,  declaring  at the same  time  that               such possession is not in any degree to affect               the  right  of property at issue  between  the               parties  ; but to be considered merely  as  an               administration  to the estate for the  benefit               of the heirs who may on investigation be found               entitled to succeed thereto.               S.    5 In the event of none. of the claimants               of  the  estate of a  person  dying  intestate               being  able to give the security  required  by               the  preceding  section,  and  in  all   cases               wherein there may be no person authorised  and               willing to take charge of the landed estate of               a  person  deceased, the  Judge  within  whose               Jurisdiction  such estate may be situated  (or               in which the deceased may have resided, or the               principal  part of the estate may lie, in  the               event of its being situated within two or more               jurisdiction  is  authorised  to  appoint   an               administrator for the due care and  management               of such estate......................" Section   6  provides  for  taking  of  security  from   the administrator  appointed  under  s. 5 and  for  granting  of allowance  to him.  Section 7 states that the judges of  the Zila  Court on receiving information that any person  within their  respective  Jurisdiction has died  intestate  leaving personal property of which there is no claimant are to adopt measures for the temporary care of the property as mentioned in the section.  Section 8, which is the last section of the Regulation,  provides that nothing in the Regulation  is  to limit or alter the Jurisdiction of the Court of Wards in certain matters. Mr. Sen appearing for the appellant canvassed a number 75 of points including the two which were decided in favour  of his  client by the trial Court.  We shall first take up  the question  of  limitation.  It does not seem to us  that  the question really arises.  Article 181 of the Limitation  Act, 19.08, prescribes the time within which certain applications can  be  made.   Section 4, however, does  not  require  any application before an order calling upon a person to furnish security can be made under it.  The section does not mention any application and it seems to us that it was intended that the  Court  should act suo motu.  Indeed the  Regulation  no

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where  requires an application for making any of the  orders for which it provides.  Article 181 would have no :operation where  no application is required to enable a court to  make an  order:  see  The  Oriental Bank  Corporation  v.  J.  A. Charriol(1)  and Sohan v. Khalak Singh (2 The  present  case cannot,  therefore,  be  decided  on  the  ground  that  the application by the respondent Rupendra had been made  beyond the time prescribed by Art. 181. It  also seems to us that Art. 181 of the Limitation Act  is inapplicable  to  the present case for another  reason.   We will  now  assume that s. 4 of the  Regulation  requires  an application  to the Judge before the order mentioned  in  it can  be  made.  Now Art. 181 deals  with  "applications  for which  no  period of limitation is provided" either  in  the Limitation Act or s. 48 of the Code of Civil Procedure.  The preponderating view adopted by the High Courts in regard  to this article and its corresponding provision in the  earlier Limitation  Act  of 1877 is that applications  mentioned  in them  are  applications under the Code  of  Civil  Procedure only.  The reason for this view is that as the article is in general  terms, it must be construed ejusdem generis and  so construed  it must be applicable only to applications  under the  Code  for all the other articles in the  Act  providing periods of limitation for applications deal with application under the Code.  It is however said that the Act was amended in  1948 and now there are two articles, namely,  Arts.  158 and  178 which deal with applications under the  Arbitration Act and licence, since the amendment, it cannot be said that all  other articles in the Act deal with applications  under the Code.  It is, therefore, contended that Art. (1)  (1886) I.L.R. 12 Cal. 642, 650.  (2) (1891)  I.L.R.  13 All. 78. 76 181  can no more be construed ejusdem -generis and  confined to applications under the Code. We  are unable to accept this contention and think that  the view  expressed by Das J., in She Mulchand & C, o. Ltd.   V. Jawahar  Mills  Ltd  (1) puts  the  matter  correctly.   The learned  judge  said,  "It  does  not  appear  to  us  quite convincing without further argument, that the mere amendment of  articles  158 and 178 can ipso facto alter  the  meaning which, as a result of a Ion, series of Judicial decisions of the  different High Courts in India, came to be attached  to the  language used in article 181.  This long catenation  of decisions  may well be said to have, ,is it were. added  the words ’under the Code’ in the first column of that  article. If  those words had actually been used articles 158 and  178 certainly  would  not  have affected  the  meaning  of  that article.   If,  however,  as  a  result  of  ’Judicial  con- struction,  those words have come to be read into the  first column  as if those words actually occurred therein, we  are not  of opinion, as at present advised, that the  subsequent amendment  of  -articles 158 and 178  must  necessarily  and automatically have the effect of altering the long  acquired meaning  of article 181 on the sole and simple  ground  that after the amendment the reason on which the old construction was  founded is no longer available." We respectfully  agree with these observations and feel no doubt that even now Art. 181  has  to be read is confined to applications  under  the Code. It  was then said that the application which the  respondent Rupendra  made was under the Code because in view of s.  141 of  the Code the procedure prescribed by the Code has to  be followed  in dealing with an application made under s. 4  of the Regulation.  This is obviously fallacious.  The question

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is  not  whether the procedure for an  application  is  that prescribed by the Code but whether the application was under Code.   The application by the respondent Rupendra  was  not under  the  Code in any sense.  The Regulation had  been  in existence before the Civil Procedure Codes had been enacted. We,  therefore,  think that even if s. 4 of  the  Regulation required  an  application, Art. 181 of  the  Limitation  Act would not apply to such application. (1)  [1953] S.C.R. 351, 371. 77 The next question is whether the order could only be made by the court where the suit mentioned in s. 4 of the Regulation was  pending.   The  High Court at Calcutta  held  in  Kumar Punyendra  Narain  Deb v. Kumar Bharabendra  Narayan  Deb(1) that the order could be made by a District Judge even though the  suit  mentioned was not pending before him.   We  think that this is the correct view.  All that s. 4     says    is that "the Judge on a regular suit being preferred shall take good and sufficient security" There nothing to show that the "Judge"  referred  to is the judge before whom the  suit  is pending  though no doubt there will be no power to  make  an order  requiring security under the section before the  suit mentioned  in  it has been filed.  From the summary  of  the Regulation  that  we have earlier given we are  inclined  to think  that the judge referred to is the Judge of  the  Zila Court whose powers of interference in the administration  of the  estate  of a deceased person are intended  to  be  res- tricted  by the Regulation.  The Zila Courts have  no  doubt been long abolished.  Their place was taken up by Courts  of District Judges constituted by the Bengal Civil Courts  Act, 1871, section 12 of which provided that "the present  judges of the Zillah Courts, Additional Judges, Subordinate  Judges and  Munsifs shall be deemed to have been duly appointed  to the  office  the  duties of  which  they  have  respectively discharged   and  shall  be  the  first   District   Judges, Additional  Judges,  Subordinate Judges  and  Munsifs  named under this Act." The Act of 1871 was replaced in its turn by the  Bengal,  Agra and Assam Civil Courts  Act,  1887  which provided that "All Courts constituted, appointments    made under  the  Bengal Civil Courts Act, 1871 or  any  enactment thereby   repealed....   shall  be  deemed  to   have   been respectively  constituted,  made under this Act."  It  would appear, therefore, that the words "Judge" and "Zila  Courts" in  the  Regulation have now to be understood  as  referring respectively   to  District  Judges  and   District   Courts appointed and constituted under the Act of 1887.  Section 23 of the Act of 1887 provides that the High Court may by order authorise  any  Subordinate judge to take  cognizance  of  a proceeding under the Bengal (1946) 50 C.W.N. 776. 78 Regulation  v  of 1799.  It would thus appear ’that  a  Sub- ordinate judge would have jurisdiction to take cognizance of proceedings  under  Regulation V of 1799 only if  the   High Court  conferred such jurisdiction on him by an  order  made for  the  purpose and no Subordinate judge world  have  such jurisdiction  without such order even though the suit  might be pending before him.  It is, therefore, clear that in  the absence  of  an order under s. 23 of the Act  of  1887,  the order  contemplated  by s. 4 of the Regulation can  be  made only by a District Judge.  It cannot hence be said that  the District  Judge  of Jalpaiguri had no  Jurisdiction  to  act under s. 4 of the Regulation in the present case at all.   We  turn  now  to  the  question  concerning  the  correct interpretation  of  s. 4 of the Regulation.  It is  said  on

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behalf  of the appellant that s. 4 applies to a  case  where "there  be  more heirs than one".  In such a case  only  the Court  has  the power to demand security.  A case  like  the present,  where  a  person dies leaving  a  single  heir  is governed  by s. 3 only and as that section does not  provide for  any  security being demanded, the appellant  cannot  be called upon to furnish security.  We are unable to accept this contention.  We find no reason why  the  Regulation should have  provided  differently  for cases  of a single heir and cases of more than one heir  and we  do not think it did so.  It is no doubt true that  s.  4 commences  with the words "if there be more heirs than  one" and  provides that in such a case the heirs, if they  agree, can  take possession and Courts are not to interfere  except upon a complaint being preferred.  It is not clear what  the complaint contemplated is.  It may be said that complaint is not one arising out of a dispute between the heirs, for this part  of  the section directs the Courts  not  to  interfere except  upon  a complaint, when the heirs are  agreed  among themselves ; if the heirs are agreed, then the complaint  is not  likely  to be out of a dispute between  them.   However this  may be, the section go on to say after  a  semi-colon, "but  if the right of succession to the estate  be  disputed between  several claimants" and one or more take  possession and the party out of possession files a suit, then the Court shall call upon the party in possession to furnish security. It seems to us that the words "if the right of succession to the estate be disputed between 79 serval  claimants", taken ’by themselves, clearly include  a case  where a person dies leaving a single heir and  several -persons  dispute each claiming to be that heir.  This s  to us  to  be  beyond all dispute.  That  being  so,  it  would ’follow  that  in  such a case also, the  Court  may  demand security from the party in possession.  The learned District Judge thought that as the opening words of the section dealt with a case of more heirs than one, the words "the right  of succession  to  the  estate  be  disputed  between   several claimants"  which are separated from the opening words by  a semi-colon  must be read as governed by the  opening  words, and  therefore,  as confined to a  dispute  between  several claimants in a case where there arc more than one heir.   We are  not  aware of any rule which says that two parts  of  a sentence  separated  by   semicolon  cannot  deal  wit)  two different  states of affairs.  We find no  justification  in such  a  case for refusing to give to the words  used  their plain  meaning  and  to  read  them  as  controlled  by  the preceding  words because they are separated by a  semicolon. Neither do we think that the word "but" after the semi-colon shows  that what follows it must contemplate the case  dealt by  the  words preceding it.  We think that word  "but"  was used  to distinguish between two cases, in one of which  the Court  was  directed not to interfere and in  the  other  to interfere in one way, namely, by demanding a security.   The use  of the word "but" does not lead to the conclusion  that the cases so distinguished must otherwise be the same.   The word  may be appropriately used to indicate that in one  set of  acts the Court is not to interfere without  a  complaint and  The another it may do so.  The learned  District  judge also  though that the use of. the word "heirs" in plural  in the.  expression  "for the benefit of the heirs who  may  on investigation be found entitled to succeed" occurring at the end  of the section showed that security could  be  demanded only where a person had died leaving two or more heirs.   We think, the learned District judge was clearly wrong in this.

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As  the  High Court pointed out, the plural must  include  a singular. It was also said that s. 3 deals with a case where a  person dies  leaving a single heir and covers the  dispute  between several  persons each claiming to be the sole heir.  It  was contended that as this section does not provide for 80 demanding  of security when one of the  disputing  claimants has  peacefully got possession and the other or others  have filed  a suit, s. 4 cannot be applied to this case  for  the purpose   of   demanding  security.    Assuming   that   the interpretation  put upon s. 3 is right., is to which  we  do not think it necessary to express any view, we are unable to see why if s. 4 also deals with a case of a dispute  between several  persons each claiming to be the sole heir Which  if what we have said before is right, it does -- its  operation should be excluded in a case covered by s. 3. of course,  if on  its own words it can be said that s.4 does not apply  to the  case  of  a person leaving a single  heir,  no  further question arises.  On the other hand, if it applies to such a case  then  there is no reason to say that it  does  not  so apply  simply because s.3 also applies to such a  case.   We find no difficulty in applying both the sections to the case of  a  single  heir.  If there is no dispute, s.  4  has  no operation  in so far as demand of security  ill,  concerned. If there is dispute, the Courts can Interfere under s. 3  on a  complaint being filed and they can also  demand  security when one is in possession and the other or others ire out of Possession  and have filled a suit or suits, We  agree  with the  High  Court  that s. 4 applied to  this  case  and  the appellant could be called upon to furnish security.  We have some  doubt  if s. 3, is intended to apply to  the  case  of several  persons each claiming, to be the single heir of  an intestate but we have issued it to apply to such a case. Then  it  was said that ss. 192-195 of the  Succession  Act, 1925  impliedly  repeated  s. 4 of  the  Regulation.   These sections  of the Succession Act no doubt Act no  doubt  deal with a summary decision of a disputed right to possession on Succession.   But  they  are  not identical  with  s.  4  of Regulation.  Section 4 doesn’t apply unless there is a suit. The provisions of the Succession Act apply when there is  no suit.   Under  the later Act a party in  possession  may  be dispossessed if the judge thinks he has no right while under the Regulation he cannot be dispossessed if he furnishes the security  required  of  him.  There  are  other  differences between  the two.  They are further in no sense in  conflict with each other.  We do not think, therefore, that the later Act can be said to have repeated the earlier impliedly. Lastly it is said that the High Court should not have 81 interfered  in  revision  as the  trial  Court  had  neither exceeded nor refused to exercise its Jurisdiction.  It seems to  us  that this contention is ill founded.  It  is  beyond dispute  that  "if  the erroneous decision  results  in  the subordinate court exercising a jurisdiction not vested in it by  law or failing to exercise a jurisdiction so  vested,  a case for revision arises": Joy Chand Cal Babel v. Kamalaksha Chaudhury(1).   This principle fully applies to the  present case.  ’the trial Court erroneously held-that is erroneously in  the view of the High Court a view with which  we  agree- that properly interpreted s. 4 did not apply to the  present case,  and also that the application by respondent  Rupendra was  barred  by limitation and on these grounds  refused  to exercise  jurisdiction  under s. 4 of the  Regulation.   The High Court was, therefore, fully justified in setting  aside

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the  order of the learned District Judge in exercise of  its revisional jurisdiction.   We  have now dealt with all the objections to  the  appli- cability  of  s.  4 of the Regulation to  the  present  case raised  by learned counsel for the appellant.  We  have  not been  able  to  accept any of them.   The  question  however whether  it is obligatory upon the District Judge in a  case to  which  s. 4 applies to take security from the  party  in possession,  has  caused us some anxiety.   The  High  Court thought  that  it was and so did the  trial  Court.   Having given  the matter our best thought we are inclined  to  take the  opposite view.  We think the section leaves it  to  the District   Judge  to  ask  for  security  if  in   all   the circumstances of the case he thinks that is the proper order to  make.   He  has a discretion in the matter  and  is  not obliged as soon as a case comes under the section, to demand the security.   No  doubt  the  section says  "the  judge..........  shall take.... security." Prima facie the words, appear to  impose an  obligatory  duty  on the Judge.   But  the  context  may indicate  a  different  intention:  see  State  of  U.P.  v. Manbodhan  Lal Srivastava(’).  We think the context  in  the present  case  does so.  It certainly does seem to  us  very strange that a person in possession of property claiming  to be an heir should be required by a statute to give  security imply because some other person claims to be entitled to (1) (1949) 76 I.A. 131. (2)  [1958] S.C.R. 533. 82 it as the heir, no matter whether or not the latters   claim has the slightest foundation.  An intention leading to  such a situation should not be easily ascribed to a  legislature. It does not seem to us that such could have been the  inten- tion of the present statute.  There -are several  considera- tions, apart from the absurdity of the situation, which lead us to that view.  The first consideration which we wish to notice is the fact which  we have earlier noticed, that under the section,  the judge  is  to call for security suo Motu..  Of  course,  the Judge  cannot call for security unless the  facts  entitling him  to do so exist.  It is obvious that in most  cases  the Judge would have no knowledge of these facts.  He would thus be  unable to act suo motu in a very large number of  cases. It seems to us that it could not have been intended to  cast an  obligatory duty on the Judge when in a large  number  of cases it would be impossible for him to discharge that  duty for want of knowledge of the necessary facts.  Next,  we  wish to point out that the whole object  of  the Regulation is to restrict the interference of Courts in  the matter  of succession.  Section 4 in so far as it enables  a Court   to  demand  security  is  an  instance   where   die restriction is relaxed and a Court is permitted to interfere in the manner provided, that is, by demanding security  from the  party in possession as an heir.  There can be no  doubt that the interference by the Court which the Regulation  was intended  to restrict was discretionary with the Court.   It would  seem to follow that the interference which s. 4  per- mitted should also be discretionary.  Then we wish to observe that ss. 4 and 5 read together  lay down  three successive stages in connection with the  demand of  security.   In the first stage s. 4  provides  that  the judge  shall take security from the party in  possession  of property.   That  section also provides that if  that  party fails to give the security, the judge may give possession of the  property to the other claimant or claimants who may  be

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able to give such security.  This is the second stage.   The third  stage  is provided for in s. 5. That stage  is  where none of the claimants to the property, that is, neither  the one  in possession nor those out of possession, is  able  to give the security.  In such a case the Judge is authorised 83 to appoint an administrator of the property for its care and management  until the suit mentioned in s. 4 is  determined. Quite  clearly the power which is given to the judge in  the second and third stages is a discretionary power.  The words used are in one case "may" and in the other "is  authorised" both  of which confer a discretionary power.  It  cannot  be said  that these words notwithstanding their form impose  an obligatory  duty for they confer power to protect the  right of  a  party.   We say this because  the  section  does  not proceed  on the basis that the party out of  possession  has any  right  but  only on the basis of  the  existence  of  a dispute no matter however unmeritorious.  It ’Seems that  if the power that the Judge has in the second and third stages, is only discretionary it can hardly be that the power  given to  him  in the first stage is obligatory. It could  not  be that the section obliged the judge to take security from the claimant  in  possession, while if lie did not  furnish  the security  it  was optional for the Judge to  put  the  rival claimant  in  possession or to appoint an  administrator  to take  possession.   It  seems to us  that  since  the  power exercisable   in   the  second  and  third   stages   is   a discretionary  power,  the power exercisable  in  the  first stage must also be of the same nature. In  our  view,  therefore, the High Court was  in  error  in directing  the District Judge to "take  sufficient  security from the opposite party Prativa Bose", the appellant  before us.  We  think the proper course would be to send  the  case back  to  the  District Judge to decide  in  his  discretion whether  he  considers it a fit case for  calling  upon  the appellant  to  furnish security and if he thinks it  is,  to take  the  security.   It was contended  on  behalf  of  the appellant  that  in  view of the order  of  the  High  Court refusing the application of the respondent Rupendra for  the appointment of a receiver, the District Judge cannot in  the exercise of his     discretion  call upon the  appellant  to furnish  security. We do not think that the decision in  the application for     the   receiver  concludes   the   matter finally,  for that decision proceeds on findings which  were in their nature only prima faci.  The learned District Judge in deciding he there to demand security or not will no doubt give due consideration to everything properly placed  before him   including   the  findings  in  the   application   for appointment 84 of receiver and make his own order after such conside- ration.   We,  therefore, direct that the case be sent back  to  the District  judge of jalpaiguri to decide whether he would  in the  circumstances of this case call upon the  appellant  to furnish  security and make an order accordingly.  The  costs in  this matter in all the Courts so far incurred and to  be incurred before the District Judge under this order, will be costs in the suit. RAGHUBAR  DAYAL  J.-This  Appeal,  by.  special  leave,   is directed against the judgment of the High Court of Calcutta, and rises in the following circumstances.  Raja Prasanna Deb Rajkot, the Raja of the impartible estate known  as ’the Baikunthapur Raj Estate’, died  intestate  on December 4, 1946, leaving considerable properties, immovable

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and  movable.   Ashrumati, the widow, claiming as  the  sole heir,  took possession of the property, except the  southern block  of the palace at jalpaiguri and a small  quantity  of land  attached to the palace.  On October 31, 1947, she  got mutation of her name over the property despite  applications for  mutation-  by  three  other  persons.   Kumar  Rupendra Narayan instituted a title suit, Suit No. 40 of 1947, in the Court  of the Subordinate Judge; Jalpaiguri, on  August  7,; 1947,   against  Ashrumati  and  other  claimants  for   the declaration  of his title as the sole heir of and  successor to his father Raja Prasanna Deb Rajkat and for the  recovery of possession of the estate left by the Raja.  According  to him, the Raja left three sons Kumar Rupendra Deb Rajkot  and his  younger brothers Kumar Shiba Prasad Deb and Kumar  Deba Prasad   Deb,  a  daughter  Prativa  Bose  and  two   widows Ashrumati, mother of Prativa Bose and Renchi Devi, mother of the three sons.  The suit was transferred to the High  Court under  cl. 13 of the Letters Patent, 1865, and was  numbered as Extraordinary Suit No. 2 of 1948.  Two other title  suits No.  2347  of 1950 and 3619 of 1951 were also filed  in  the High Court in its Original Civil jurisdiction by Guru Charan Deb  and  jitendra  Deb.  In  July  1952,  applications  for the .appointment of a receiver and injunction order were re- jected  by the High Court.  On Ashrumati’s death on  January 5, 1954, Prativa Bose was substituted in her place in  these suits. 85 On  March  31,  1954, Kumar Rupendra  Deb  applied  ’to  the District   Judge  of  jalpaiguri,  praying  that  good   and sufficient  security  be taken from Prativa Bose  under  the provisions  of s. IV of the Bengal Wills &  Intestacy  Regu- lation  V of 1799, hereinafter called the Regulation.   This application  was  opposed on grounds that it  was  presented after  the  expiry  of the period of  limitation,  that  the provisions  of  s. IV of the Regulation did not apply  to  a case where a single heir had been left by the deceased, that the  application was barred by the principle of  waiver  and that the District judge had no jurisdiction to entertain  it as the suit was at the time pending in the High Court.   The District judge held that the application was barred by  time in  view of the provisions of Art. 181 of the  Schedule  to. the  Indian Limitation Act and that the provisions of s.  IV of  the Regulation applied only to cases where the  deceased had   left  several  heirs  and  therefore   dismissed   the application.   Kumar  Rupendra  Deb went in revision to the  High  Court. The  High Court found in his favour on both  the  -questions regarding limitation and regarding the applicability of  the provisions  of s. IV of the Regulation to the facts  of  the case, and accordingly, allowed the revision application  and ordered that the District Judge should exercise his  special jurisdiction  under  s.  IV  of  the  Regulation  and   take sufficient  security  from the  opposite  party  viz.Prativa Bose.   It is against this order that this appeal  has  been presented by Prativa Bose after obtaining special leave from this Court.. Learned  counsel for the appellant has urged  the  following points:               1.    Section  III  and  not  s.  IV  of   the               Regulation applies to the facts of the case.               2.    The   application  for  the  taking   of               security from the party in possession is  made               in the suit and, consequently it is the  Court               where  the  suit  is  pending  which  has  the               jurisdiction to entertain that application.

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             3.    The   application  is  barred   by   the               principles  analogous to res judicata  on  the               ground  that the High Court has  already  gone               into the question of the interim protection of               the estate.’               4.    If such an application be considered  to               be an inde- 86               pendent application and not an application  in               the suit, it is barred by limitation under the               provisions  of Art. 181 of the First  Schedule               to the Limitation Act.               5.The Regulation is impliedly repealed by  the               provisions of the Code of Civil Procedure  and               the Indian Succession Act, 1925.               6.The  High  Court  had  no  jurisdiction   to               entertain a revision against the order of  the               District   Judge  rejecting  the   application               praying  for  the  demand  of  security   from               Ashrumati   Devi  and  therefore   could   not               interfere with that order. Before dealing with these points, we would like to refer  to the relevant provisions of the Regulation.  Its sections III and IV, as they stood originally, are set out below               "Ill.   In  case of a  Hindoo,  Mussulman,  or               other  person subject to the  Jurisdiction  of               the  Zillah or City Courts,  dying  intestate,               but  leaving a son or other heir, who  by  the               laws of the country may be entitled to succeed               to the whole estate of the deceased such heir,               if   of  age  and  competent  to   take   tile               possession and management of the estate, or if               under  age or incompetent, and not  under  the               superintendence  of  the Court of  Wards,  its               guardian,  or nearest of kin, who  by  special               appointment  or  by the law and usage  of  the               country  may be authorised to act for him,  is               not required to apply to the Courts of justice               for  permission  to  take  possession  of  the               estate of the deceased as far as the same  can               be  done without violence ; and the courts  of               ’Justice  are restricted from interference  in               such  cases,  except a  regular  complaint  be               preferred, when they are to proceed  thereupon               according to the general Regulations.               IV.If   there  be  more  heirs  than  one   to               the  estate of a person dying  intestate,  and               they  can  agree  amongst  themselves  in  the               appointment  of a common manager, they are  at               liberty to take possession, and the courts  of               justice  are  restricted  from   interference,               without a regular complaint, as in the case of               a single heir ; but if the right of succession               to  the  estate be  disputed  between  several               claimants, one or more of whom may have  taken               possession, the judge, on a regular               87               suit  being  preferred  by the  party  out  of               possession,  shall  take good  and  sufficient               security   from  the  party  or   parties   in               possession  for his or their  compliance  with               the judgment that may be passed in the suit or               in default of such security being given within               a  reasonable  period,  may  give  possession,               until the suit may be determined, to the other

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             claimant or claimants who may be able to  give               such  security,  declaring at the  same  time,               that  such possession is not in any degree  to               affect the right of property at issue  between               the parties, but to be considered merely as an               administration  to the estate for the  benefit               of  the heirs, who may, on  investigation,  be               found entitled to succeed thereto." Certain portions of s. III were repealed by Act XL ,of  1858 and  Act  XVI  of 1874 in matters which do  not  affect  the question before us.  In 1903, the expression ’ when they are to  proceed thereupon according to the general  Regulations’ was  repealed.   This  does  not  make  much  difference  as thereafter the complaint was to be proceeded with  according to  the procedure laid down in the Code of  Civil  Procedure for the trial of suits. Aslirumati  claims title to the estate as the sole  heir  of the deceased Raja.  Kumar Rupendra Narayan, the plaintiff in the  title  suit, also claims title to the property  as  the sole  heir of the Raja.  Each other claimant to  the  title, claims  as sole heir.  In the circumstances, the  contention for  the appellant is that it is s. III which is  applicable to the facts of this case and not s. IV.There is no  dispute that  the  former deals with a case where a single  heir  is entitled to succeed to the whole estate of the deceased  and the  latter deals with a case when there be more heirs  than one to the estate of the person dying intestate.  It is  the later  part  of  s. IV which provides for the  judge,  on  a regular suit being preferred by the party out of possession, to take security from the party or parties in possession  of the  estate.The real contention therefore is that the  judge can  exercise this power only when there be more heirs  than one to the estate and there be a dispute about the right  of succession and that this provision cannot apply to the  case falling  under s. III where the dispute, if any, is  between the rival claimants to the entire property 88 on  the ground that each of them is entitled to  the  entire estate  as  the sole heir.  The High  Court  considered  the contention and did not accept it, as it did not see any good reason  why the legislating authority should have  made  any distinction between cases of disputes arising where a person had  died  intestate  leaving a single heir  and  where  the person  died intestate leaving several heirs, as  the  words used  in  the  two  sections  did  not  indicate  any   such intention,   as  ss.   III  and  IV  (first  part)  do   not contemplate  cases  of dispute about succession and  as  the fact that the provision about taking of security ’appears in the  later  part of s. IV, was no reason to  limit  the  ap- plicability  of  that provision to what had gone  before  in that  very section.  In support of the last  view,  reliance was placed on the observations of Mellish L. J., in Cohen v. S.E. Railway.(’).  To  appreciate  the  contention for the  appellant,  it  is necessary  to consider the entire object of making  the  Re- gulation.  The title of the Regulation states :               "A Regulation to limit the interference of the               Zillah  and City Courts of Dewanny Adawlut  in               the  execution of wills and administration  to               the estates of persons dying intestate." The  reason for limiting such interference is given in s.  1 which  indicates  that the Regulation was passed  to  remove doubts which were entertained,with respect to the extent  up to  which and the manner in which the judges of  the  Zillah and  City  Courts  of Dewanny Adawlut in  the  provinces  of

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Bengal,  Behar,  Orissa  and  Benares,  were  authorised  to interfere in cases where the inhabitants of those  provinces had left wills at their decease and appointed executors.  to carry the same into effect or who died intestate leaving  an estate, real or personal, and also to -apply to those  cases as far as possible the principle prescribed in section XV of Regulation IV of 1793 to the effect that in suits  regarding succession  and inheritance the Mahomedan laws with  respect to Mahomendans and the Hindoo laws with regard to Hindoos be the  general  rules  for the guidance  of  the  judges.   It appears  therefore  that  prior  to  the  passing  of   this regulation, these Courts (1877) 2 E & D. 253, 260. 89 did interfere with such cases and it was to limit and define those powers of interference that the Regulation was passed. The Regulation, therefore, should be construed strictly as a piece of restrictive legislation. It  also appears necessary to have an idea of what  sort  of interference  was being made by these Courts.  We  have  not been referred to anything in particular in this  connection. Section 11 provides that executors appointed under the  will of the deceased can take charge of the estate and proceed in the execution of their trust without any application to  the judge  of  the  Dewanny  Adalat  or  any  other  officer  of Government for his sanction.  This gives some idea about the part used to be played by executive officers in this regard. Some  reference to the procedure adopted in the time of  the Indian rulers for investing the successor of a landholder is found  in Mr. Shore’s Minute on the rights of zamindars  and talookdars, recorded in the proceedings of Government in the Revenue Department dated April 2, 1788, printed at p. 228 of Elemetitary Analysis of the Laws and Regulations (enacted by the Governor-General in Council)’ by Harington, Volume  111. The actual procedure on investing the landholder is given in appendix  No. 9 to this note, printed at p. 275 of the  same volume.   An extract from the first paragraph quoted  below, indicates that the heir of the deceased zamindar had to  get the permission of the State authorities before assuming  the management of the affairs of the zamindary :               Upon  the  demise of a zamindar, his  heir  or               heiress  transmitted an account of the  event,               in a petition to the dewan of the soobah,  and               the roy-royan ; or if landholders of the first               rank, to the soobahdar himself ; with  letters               to  all  the  principal  men  of  the   court,               soliciting  their protection.  To an heir,  or               heiress who paid a large revenue to the state,               the  soobahdar returned answers of  condolence               accompanied  with  an honorary  dress  to  the               former  and  with a present of shawls  to  the               latter.   Letters  to a similar  purport  were               transmitted  by the dewan and  the  roy-royan.               After  performing  the funeral  rites  of  the               deceased,  the heir, if of age, was  presented               to  the  soobahdar by the dewan and  the  roy-               royan; and after receiving the beetel                 7-2 S C India/64               90               leaf, and an honorary dress, was permitted  to               assume  the management of the affairs  of  his               zamindary." Harington  described the zamindar to be a landholder.  of  a peculiar. description, not definable by any single term  and said  that  he was allowed to succeed to  the  zamindary  by inheritance  and  yet, in general, required to  take  out  a

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renewal  of  his  title from the  sovereign  or  his  repre- sentative  on payment of a peshkush, or fine of  investiture to the emperor, and a nuzranah or present to his  provincial delegates the Nazim.  This is said in the remarks  submitted by  him  to  Lord Comwallis in 1799 on  Mr.  Law’s  plan  of settlement, and has been quoted at p. 400. At p. 287 is given the form of the munchalka which the  heir accepted by the State had to execute.  Appendix 10 at p. 289 gives a sand which used to be issued to the zamindar.  These various  steps  appear to be taken in the Mughal  period  in view  of  the theory that the sovereign ruler was  the  sole virtual proprietor of the soil. It  might  have been that when the East  India  Company  got sovereignty over these provinces or parts thereof, heirs  of zamindars and possibly of other men of property, might  have approached   courts  as  well  either  for  obtaining   such permission or for interference with the person who had taken possession on the basis of such permission from some officer of the company.  Regulation V of 1799 was passed to  provide that  the Courts were not to interfere in these  matters  on considerations  of general administrative  convenience,  but could  interfere  only judicially when they were  moved  for adjudicating  the title of the disputants to  succession  to the estate. Section 11, as already stated, provided for the executors to take  charge  of the estate of the deceased who had  left  a wilt and thereby appointed executors to carry it into effect and further provided :               "and  the courts of justice are prohibited  to               interfere  in such cases except on  a  regular               complaint  against the executors for a  breach               of  trust or otherwise, when they are to  take               cognizance  of such complaint in  common  with               all others of a civil nature, under the  gene-               ral   rule  contained  in  Section  VIII,   of               Regulation  111,  1793 and  proceed  thereupon               according  to  the  Regulations,  taking   the               opinion of their law officers upon               91               any   legal  exception  to the  executors,  as               well as upon the provision to be made for  the               administration of the     estate in the  event               of the appointed executor being     set aside,               and generally upon all points of law that  may               occur;  with respect to which the judge is  to               be  guided  by  the  law  of  the  parties  as               expounded  by Ms law officers, subject to  any               modifications enacted by the  Governor-General               in   Council,  in  the  form   prescribed   by               Regulation XLI, 1793." Similarly,  s.  III  provided that when  the  deceased  died intestate,  leaving a son or other heir, who by the laws  of the  country be entitled to succeed to the whole  estate  of the deceased, such heir, if of age and competent to take the possession and management of the estate, was not required to apply  to  the courts of justice for permission,  and  could take  possession without obtaining the permission  from  the Courts of justice, if it could be done without violence.  It enjoined upon the courts of justice not to interfere in such cases except when a regular complaint be preferred and  then too   they  were  to  proceed  according  to   the   general Regulations  till  1903.  ’Thereafter the  proceedings  were governed  by the Civil Procedure Code.  This meant that  the person who claimed to be so entitled, could take  possession without  obtaining  a  any permission, if  he  could  do  so

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without violence and that his rival claimant, if any, had to move the courts by means of a regular complaint and that  it was  then  that  the courts of justice  would  consider  the dispute between the person who had taken possession and  the other  claimants.  It laid down the entire  procedure  which the  courts  of Justice were to follow in dealing  with  the disputes between claimants, each claiming succession to  the entire  estate.  It is a complete code of procedure in  that regard. Similarly, s. IV is a complete code with respect to the case in  which  the deceased died intestate and left  more  heirs than  one.  If those heirs agreed amongst themselves in  the appointment  of a common manager, that is to say, agreed  to the common management of the estate which remained undivided and  to one person managing the entire estate, they were  at liberty,  in view of the first part of the section, to  take possession  of  the estate and the courts  of  justice  were prohibited from any interference 92 without a regular complaint as in the case of a single heir. The  provisions  of Regulation XI of 1793  also  throw  some light with respect to the provisions of the first part of s. IV  of Regulation V of 1799.  This Regulation was  made  for removing certain restrictions on the operation of Hindu  and Mahomadan  Law  with  reference  to  inheritance  of  landed property  subject to the payment of revenue  to  Government. Section  11  provides  that  if  any  zamindar,  independent talukdar  or  other  actual proprietor  of  land  shall  die without  a will or without having declared by a  writing  or verbally  to  whom  and in what manner  his  or  her  landed property  is to devolve after his or her demise,  and  shall leave two or more heirs, who, by the Mahomadan or Hindu  law may be respectively entitled to succeed to a portion of  the landed property of the deceased, such persons shall  succeed to  the  shares  to  which they may  be  so  entitled.   The Regulation  does not deal with the case of a deceased  dying intestate  leaving  a single heir as there  was  nothing  to provide  with respect to the extent of the estate he  is  to succeed.   He succeeded to the entire estate.   Section  III provides that in the cases referred to in s. 11, the several persons  succeeding  to the estate would be at  liberty,  if they so preferred, to hold the property as a joint undivided estate  and  that  if some or all of them  desired  to  have separate  possession of their respective shares, a  division of  the  estate  was to be made in the maner  laid  down  in Regulation  XXV of 1793, and that if there be more than  two sharers  and any two or more of them be desirous of  holding their  shares  as a joint undivided estate,  they  would  be permitted  to  get their shares united.  Thus, it  would  be seen that this section covers the case of persons who  would like  to  have their shares continue as  a  joint  undivided estate and also of those who would like to have their shares separate.   Section  IV then provides that in  the  case  of those  who  would  like  to hold the  property  as  a  joint undivided estate, a manager for their joint estate was to be appointed under the rules contained in ss.  XXIII to XXVI of Regulation  VIII of 1793.  Thus the provisions for a  common manager of persons holding their estate as a joint undivi- 93 ded estate is made in this Regulation XI of 1793.  The first part of s. IV of Regulation V of 1799 is in consonance  with this provision as it provides that if the heirs who are more than one, in principle agree to have a common manager,  they require no permission for taking possession of the property. When a complaint is made by any one of the heirs or  persons

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claiming  to be heirs on account of the  disagreement  among them to act unitedly through a common manager, the Court has to   deal  with  the  dispute  according  to   the   general Regulations  prescribing  the procedure to  be  followed  by Courts,  just  as the Courts had to do in  the  case  coming under s. 111, when the deceased had left a single heir.   In addition  to  the procedure so provided  under  the  general Regulations, one special provision was further made for  the Courts  to follow when the Court was moved for settling  the disputes  between several claimants to the estate  and  that special procedure is that on a regular suit being preferred, the  Court is to take good and sufficient security from  the party in possession for his complying with the judgment that be passed in the suit. It  may  appear  rather  extraordinary  that  on  the   mere institution  of a regular suit, the court should  invariably call  upon  the defendant in possession of the  property  to furnish  sufficient  security  for his  complying  with  the eventual judgment in the suit.  It might have been necessary in  those days, as we find that it was considered  necessary then   for  the  defendant  to  furnish  security  for   his appearance  in  court if he did not  accompany  the  officer serving  the summons for his appearing in person before  the court.  Section V of Regulation IV of 1793 provided that the Court was to issue a summons to the defendent requiring  him either to accompany the officer deputed to serve the summons to  appear in person before the Court or to deliver to  such officer  good and sufficient security to appear  and  answer upon  complaint on the day appointed either in person or  by vakil.  Order XXXVIII of the present Code of Civil Procedure provides for demanding security for appearance in court  and for the purpose of securing compliance with the judgment  in certain specified circumstances only. 94 Sections  III  and IV, thus cover the  entire  possibilities about  the  heirs of the deceased.  The  former  deals  when there  be  only one heir and the latter when there  be  more heirs than one.  The reason for the special provision in the second part of s. IV and for a distinction being made in the procedure to be followed in the two cases, lies in the  fact that  when there be more heirs than one and they are not  in agreement about common management of the entire estate, they are  not  permitted  by  the provisions of  s.  IV  to  take possession of the estate singly or by some of them  jointly. An  agreement  about it all the claimants  being  heirs  and about  their  respective  shares,  in  the  absence  of   an agreement about common management, does not entitle them  to take  possession  of the estate.  In  case  of  disagreement about common management, the original procedure, whatever it might have been under the law prevalent prior to the passing of  this Regulation, applied.  They had to take  permission, be it of some executive officer or of the court of  justice. For such cases, this Regulation V of 1799 made no provision. It is only when such a dispute between the various claimants is brought before the court that it gets seized of the  mat- ter  and, on a regular suit being preferred, the first  step it  had  to take suo motu was to take  good  and  sufficient security  from  the party in possession  who  had  obviously taken possession in defiance of the provisions of the  first part  of s. IV.  On the other hand, in the case of  the  de- ceased  leaving  a single heir, s. III permits the  heir  to take  possession  of  the estate  peacefully  and  he  takes possession  lawfully.  Any rival claimant,  challenging  his title to the property has therefore to establish his case in the court of law according to the procedure laid down.   The

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reason for the special provision in the latter part of s. IV is  therefore that one or more claimants to the estate  take possession  not  in  accordance with  law  but  against  the provision  of law.  It would have been unreasonable for  the legislature to provide in s. III that the person claiming to be  the  single heir of the deceased, dying  intestate,  and taking  possession  of  the estate in  accordance  with  the provisions  of  that  section, be  called  upon  to  furnish security  and in case of default to run the risk  of  making over possession to another claimant disput- 95 ing his title to the entire estate.  It would be equally un- reasonable if the second part of s. IV be so construed as to make  the peaceful possession of a person claiming title  to the  entire  estate  as a single  heir  in  jeopardy  merely because another person disputes his right. We make it clear here that the word ’complaint’ used in this Regulation really refers to what we at present call a plaint in  a  civil  suit.   Regulation III  of  1793  defined  the jurisdiction of courts of Dewanny Adawlut established in the zillahs and the cities specified in s. II of that Regulation for the trial of civil suits in the first instance.  This is clear  from s. 1. Section III provides that each zillah  and city  court  was  to be superintended by  one  judge  alone. These courts were empowered by s. VIII to take cognizance of all  suits  and  complaint  respecting,   Inter  alia,   the succession  or right to real or personal property.   Section XVIII- prohibits these courts from taking cognizance of  any matter of a criminal nature except proceedings for  contempt and perjuries committed in court.  Section XIV uses the word ’complaint’  with  reference  to  one whom  we  now  call  a ’plaintiff’.  These provisions indicate that ’complaint’  in the  Regulations refers to a plaint and not to what  we  now call  a complaint in a criminal case.  This is further  made clear  by  the provisions of s. 2 of Regulation IV  of  1793 which  deals with the procedure to be followed in regard  to the  receipt,  trial  and decision of  suits  or  complaints cognizable  in the courts of Dewanny Adawlut established  in the various zillahs.  Section II provides that no  complaint is to be received but from the plaintiff nor any answer to a complaint  but from a defendant or their  respective  vakils duly empowered. We  arc therefore of opinion that each of the  sections  11, III  and IV of Regulation V of 1799 is a complete  code  for dealing  with different situations.  Section 11  deals  with the  case when the deceased dies leaving a will under  which an  executor is appointed to manage the  property.   Section III  deals  with the case when the deceased  dies  intestate leaving  a single heir and s. IV to cases when the  deceased dies intestate leaving more than one heir. This  view finds support from the fact that  when  extending the provisions of this Regulation to other 96 Provinces  all the three sections viz., II, 111 and IV  have not  been invariably extended.  Only ss.  IV, V, VI and  VII and  not  ss. 11 and III were extended to the  Central  Pro- vinces by the Central Provinces Laws Act XX of 1876. It is not correct as observed by the High Court, that s. III and  first part of s. IV of the Regulation do not cover  the cases where each of several persons claims to be the  single heir  and where out of several persons some claim to be  the heirs  while some others also claim to be the heirs.   These sections  contemplate those cases when they provide for  the interference  of  courts  on  complaints  by  other  persons against  the person in possession.  Such complaints  can  be

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only  when they are by such claimants to the estate or  part of  it whose claims are not accepted by the others  claiming title  to the estate.  The effect of the expression  ’as  in the  case of a single heir’ at the end of the first part  of s.  IV  is -that the restriction on the  interference  of  a court of justice in the case where the deceased leaves  more heirs  than  one  extends upto the same stage  as  has  been described  in s. III which deals with the case of  a  single heir,  that is to say, the interference is restricted up  to the  stage  a complaint is filed and that  the  interference subsequent  to  it  would be that  in  accordance  with  the procedure  laid  down  in  the  General  Regulations.   This expression cannot be interpreted to make the second part  of s. IV operative in the case coming under s. 111. The   observations  of  Mellish  L.J.,  in  Cohen  v.   S.E. Railway(1)  are  not of much help in order to  construe  the scope  of  the  second  part  of s.  IV  in  regard  to  its applicability  to  cases  coming under s.  111.   Those  ob- servations  were  made  in a  different  context  about  the provisions  of  the Acts there under  consideration.   These observations are :               "Then  the next question is whether 31 and  32               Vict.  C. 119, s. 16, includes that  provision               of the Railway and Canal Traffic Act, so as to               apply it not only to the carriage by  railway,               but  to carriage by steamer.  It seems  to  me               that this is a still plainer question,  except               for  the  doubt thrown upon it  by  the  Irish               case.   But the words are so clear that  there               can  be no doubt -.about it : ’The  provisions               of the Railway and Canal (1877) 2 E & D 253.               97               Traffic  Act,  1854, so far as  the  same  are               applicable, shall extend to the steam  vessels               and to the traffic carried on thereby’.  Those               words   in   their   plain   natural   meaning               incorporate  s.  7  as  well  as  every  other               section  of  the Act.  Then why should  it  be               excepted?  The only reason is that this clause               is  not  contained in a  separate  section  by               itself, but is contained at the end of section               16 ; and therefore it is said that it is to be               confined  to the subject matter to  which  the               previous parts of section 16 relate.  I am not               aware   that  there  is  any  such   rule   of               construction of an Act of Parliament.  If some               absurdity   or  inconvenience  followed   from               holding it to apply to the whole Act, it might               be reasonable to confine the incorporation  to               clauses  relating to some particular  subject-               matter, but if there is no inconvenience  from               holding   that  the   incorporation   includes               section  7 as well as the other  sections,  we               ought to hold that it does." The  expressions to be construed in that case were not as  a proviso  or exception to what had gone before but formed  an independent enactment.  They were not separately numbered as a  section.   In s. IV of the Regulation,  the  second  part commences with the word ’but’ and thereby indicating that it is  by way of an exception to what is enacted in  the  first part-and  that it is open to the courts to interfere in  the manner prescribed in the second part where the deceased  had left more heirs than one to the estate. Section  XIX  of Regulation XL of 1793 enacted  for  forming into a regular code all regulations, provided that one  part

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of  a regulation has to be construed by another so that  the whole  might  stand.  This provision simply means  that  the provisions of a Regulation should be so construed that  they be  harmonized in case there be some apparent  inconsistency between  the different provisions of the  Regulation.   This implies   that  in  the  absence  of  such   necessity   for harmonizing  the provisions of different provisions  of  the Regulation,  each provision has to be taken as  complete  by itself  and  to  mean what it states.   This  directly  goes against the applicability of the observations of Mellish  L. J. in Cohen’s Case(1) to the con- (1)  (1877) 2 E. & D. 253, 260. 98 struction  of the second part of s. IV with respect  to  its applicability  to s. 111.  We do not find the provisions  of s.  III  and s. IV to be inconsistent in any manner  and  to necessitate  their  being construed together.  In  fact,  we have  already indicated that there had been good reason  for providing  a special procedure in addition to the  procedure to  be followed in the trial of suits on regular  complaints in cases in which the deceased died intestate and left  more than one heir. We  are therefore of opinion that the second part of  s.  IV does not apply to the case where the deceased dies intestate leaving  only  one heir entitled to succeed  to  the  entire estate,  a  case  which  is  covered  by  s.  III  of   this Regulation. In  this view of the matter, it is not necessary  to  decide the  other contentions raised in this case.   We,  therefore allow the appeal, set aside the order of the Court below and dismiss the application of the respondents presented to  the District  judge  under s. IV of Regulation V  of  1799.   We order  that  the  respondents  will pay  the  costs  of  the appellant throughout. Before parting with the case we would like to draw attention of  Government  to  these  provisions  which  appear  to  be somewhat  out of date and which need to be  repealed.  Ample power  is to be found in the Indian Succession Act  and  the Code  of Civil Procedure to safeguard such rights and  there is  hardly  any  need for a provision which  was  passed  to remove certain doubts created by the Regulation of 1793.                        ORDER OF COURT In view of the opinion of the majority the appeal is allowed with costs throughout. Appeal allowed. 99