Supreme Court Allows Appeal by Possessor in Intestate Succession Dispute Over Impartible Estate. Bengal Wills and Intestacy Regulation V of 1799 Section 4 Does Not Apply to Single Heir Case, and High Court Erred in Directing District Judge to Take Security.

Civil appeal by special leave against a High Court revision order directing the District Judge to take security under Section 4 of Bengal Wills and Intestacy Regulation V of 1799 in a disputed succession to an impartible estate.

The appellant Prativa Bose sought to set aside the High Court order and restore the District Judge's dismissal of the respondent's application for security.

The respondent had filed a suit claiming sole heirship to the estate and sought security from the appellant in possession to ensure compliance with the judgment in the pending suit, but the District Judge dismissed it; the High Court reversed and directed security, prompting the appeal.

The District Judge dismissed the application on grounds that Section 4 did not apply and that it was barred by Article 181. The Calcutta High Court in revision set aside the dismissal and directed the District Judge to take sufficient security from Prativa Bose.

Whether Section 4 of the Bengal Wills and Intestacy Regulation V of 1799 applies to a case where the intestate left a single heir but several claimants each claim to be that heir. Whether an application under Section 4 of the Regulation is barred by Article 181 of the Indian Limitation Act. Whether the High Court had jurisdiction in revision to set aside the District Judge's order. Whether the High Court could direct the District Judge to take security under Section 4, given the discretionary nature of that power.

The appellant argued that Section 4 applied only to cases of more than one heir and not to a single heir with multiple claimants, and that the application was barred by limitation. The respondent contended that Section 4 covered disputes among several claimants even if only one heir existed, and Article 181 did not apply because the application was not under the Code of Civil Procedure. The respondent also submitted that the District Judge was the proper forum and that the High Court had revisional jurisdiction to correct the District Judge's failure to exercise jurisdiction.

The Supreme Court held that Bengal Wills and Intestacy Regulation V of 1799 is restrictive legislation and must be strictly construed. Section 3 covers cases where an intestate leaves a single heir, and Section 4 applies only where there is more than one heir. Thus, the security provision in Section 4 cannot be invoked when a person dies leaving a single heir, regardless of the number of claimants. Article 181 of the Limitation Act does not bar applications under the Regulation as it applies only to applications under the Code of Civil Procedure. The District Judge is the proper forum to entertain an application under Section 4, and the High Court has revisional jurisdiction under Section 115 CPC when the District Judge fails to exercise jurisdiction due to misinterpretation. However, the power to take security under Section 4 is discretionary, and the High Court erred in directing the District Judge to exercise that discretion in a particular way.

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 compliance with the judgment that may be passed in the suit Article 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. 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.

Raja Prosanna Deb Raikat died intestate on 1946-12-04. Rani Asrumati Debi took possession. On 1947-08-07, respondent Rupendra filed a suit in the Court of the Subordinate Judge, Jalpaiguri. The suit was transferred to the Calcutta High Court on 1949-04-12. Respondent's application for appointment of receiver was dismissed on 1952-07-29. Rani Asrumati died on 1954-01-05 and appellant Prativa Bose took possession. On 1954-03-31, respondent filed an application under Section 4 of the Bengal Wills and Intestacy Regulation V of 1799 before the District Judge, Jalpaiguri. The District Judge dismissed the application on grounds of Section 4 inapplicability and limitation under Article 181. The High Court at Calcutta in revision set aside the dismissal on 1956-06-06 and directed the District Judge to take security. Appellant Prativa Bose appealed to the Supreme Court by special leave.

• Bengal Wills and Intestacy Regulation V of 1799: Sections 2, 3, 4, 5, 6, 7
• Indian Limitation Act, 1908: Article 181
• Bengal, Agra and Assam Civil Courts Act, 1887: Section 23
• Indian Succession Act, 1925: Sections 192 to 195