1963 (5) TMI 75 - SC - Indian Laws

Summary

Issues Involved:
1. Applicability of Section 3 or Section 4 of the Bengal Regulation V of 1799.
2. Jurisdiction of the District Judge to entertain the application.
3. Limitation period for the application under Section 4 of the Regulation.
4. Applicability of the principle of res judicata.
5. Implied repeal of the Regulation by subsequent legislation.
6. High Court's jurisdiction in revisional proceedings.
7. Discretionary power of the District Judge under Section 4 of the Regulation.

Issue-wise Detailed Analysis:

1. Applicability of Section 3 or Section 4 of the Bengal Regulation V of 1799:
The primary contention was whether Section 3 or Section 4 of the Regulation applied to the case. Section 3 deals with the situation where a person dies intestate leaving a single heir, while Section 4 addresses cases where there are multiple heirs. The court concluded that Section 4 applies to disputes between several claimants, even if each claimant asserts to be the sole heir. The court opined that the words "if the right of succession to the estate be disputed between several claimants" in Section 4 include cases where a single heir is claimed by multiple individuals. Therefore, Section 4 was deemed applicable.

2. Jurisdiction of the District Judge to Entertain the Application:
The court examined whether the District Judge had jurisdiction to entertain the application under Section 4 of the Regulation. It was held that the term "Judge" referred to the District Judge, even if the suit was not pending before him. The court noted that the Regulation intended to restrict interference by Zila Courts, now replaced by District Courts, and thus, the District Judge of Jalpaiguri had jurisdiction to act under Section 4.

3. Limitation Period for the Application under Section 4 of the Regulation:
The court addressed whether the application was barred by limitation under Article 181 of the Limitation Act, 1908. It was held that Section 4 of the Regulation does not require an application to be made, and the court could act suo motu. Consequently, Article 181, which prescribes a limitation period for applications, was deemed inapplicable.

4. Applicability of the Principle of Res Judicata:
The appellant argued that the application was barred by principles analogous to res judicata because the High Court had already rejected an application for the appointment of a receiver. The court dismissed this contention, stating that the decision on the receiver application was based on prima facie findings and did not preclude the District Judge from considering the security application under Section 4.

5. Implied Repeal of the Regulation by Subsequent Legislation:
The appellant contended that Sections 192-195 of the Indian Succession Act, 1925, impliedly repealed Section 4 of the Regulation. The court found that the provisions of the Succession Act and the Regulation were not identical and did not conflict with each other. Therefore, the Regulation was not impliedly repealed.

6. High Court's Jurisdiction in Revisional Proceedings:
The appellant argued that the High Court should not have interfered in revision as the trial court had neither exceeded nor refused to exercise its jurisdiction. The court held that the High Court was justified in setting aside the District Judge's order under its revisional jurisdiction since the trial court had erroneously interpreted Section 4 and the limitation issue.

7. Discretionary Power of the District Judge under Section 4 of the Regulation:
The court considered whether it was obligatory for the District Judge to demand security under Section 4. It concluded that the District Judge has discretionary power to demand security based on the circumstances of the case. The court remanded the case to the District Judge to exercise his discretion in deciding whether to call for security.

Conclusion:
The appeal was allowed, and the case was remanded to the District Judge of Jalpaiguri to decide, in his discretion, whether to demand security from the appellant. The costs incurred in all courts were to be costs in the suit. The court also suggested that the provisions of the Regulation might be outdated and recommended their repeal.