MALLAPPA BASAPPA DESAI v. MALLAPPA VEERABHADRAPPA DESAI AND OTHERS
Citation: [1965] 1 S.C.R. 168; 1964 INSC 178
Court: Supreme Court of India
Bench: P.B. GAJENDRAGADKAR , J.C. SHAH, N. RAJAGOPALA AYYANGAR
Judgment date:
Case summary
1964 INSC 178. Supreme Court of India judgment dated 1964-08-28. MALLAPPA BASAPPA DESAI v. MALLAPPA VEERABHADRAPPA DESAI AND OTHERS. Read the judgment and...
Judgment text
170 SUPREME COURT REPORTS MALLAPPA BASAPPA DESAI v. MALLAPPA VEERABHADRAPPA DESAI AND OTHERS August 28, 1964 (P. B. GAJt~DRAGADKAR, C. J. , J. c. SHAH AND N. R. AJAGOPALA AYYANGAR JJ. ) Bombay R•gulation (8 of 1827). '· ? -Requirement as to possession by one of the £-l::. i11;i~J11s-Relevartt date. Where the District Court appoints an administrator to the ·Cstate of a deceased person under rule 9 of the Bombay Regulation Vlll ot 1827, on the ground that 1hc right of succession is disputed between two or more (. clairn:ints no! lc 01' vvhom h:? s taken possession of the propcny. \\·hat the court has to con~idcr i! ; whether any of the claimants was in posse\fiion of the propcrl;t at the d;1tc of the c:1mmcncemcnt of the proceedings under the Regulation. Th~ proc1. :cJings n1;:y con1mencc either on an application made by one of the c! ~imants or may be s1artcd suo nzotu by the Judge. In either case. the r~le":.
int point of tin1c by reference to which the requirement as to r0s-scso;ion has 10 l)e judged is the date of the commencement of the p:oceeJing• aod '10t the date on which the order is pa later confirmed. On the 9th January, 1958, respondent No. 2 filed Application No .. 2 under Bombay Regulation VIII of 1827. On the 5th Febrnary, 1958. respondents 3 & 4 filed Application No. 4/ 1958 under rules 9 & 10 of the said Regulation. On the 6th February 1958. respondent No. 2 filed Application No. 5/ 1958 under s. 192 of the Indian Succession Act. On th'e 10th February, 1958, respondent No. 6 filed a similar application No. 6/ 1958 under Regulation VIII of 1827 . · That is how these five (1965] I s. c. R. applications raised a common question about the succes. sion to the estate of whicl\. 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 Teh.
sildar made an order on the 27th February, I 958 directing that the appellant's ! l name should be shown as superior holder in respect of the lands forming part of the Desgat estate. That order was challenged by respondents I 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 th~n 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 respondent. age applical. Jle to the disposal of the said property, without making any previous application to the court to be formally recognised. Rule 2, however, contemplated that if an heir, e. xecutor or administrator wan!
ed 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 ~hould be dealt with. That takes us to r. 9 with which we are directly concerned in the present appeal. H ulc 9 reads thus : "Whenever there is no person on the spot entitled and willing to take charge of the property of a person d~d, where the right of succession is disputed between two or more claimants. none of whom has taken pos5es-sion. or where the heirs arc incompetent to the management of th~ir affairs from infancy, insanity or other disqualification. and have no near relations entitl~d and willing to take charge on their behalf, the Judge, within whose jurisdiction such property is. may uppoint :tn administrator for the management thereof, until the lawful heir. executor or adminis-tr:itor 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 dir~ct the administrator in charge to deliver over the propeny 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 ti\") or more claimants. none or whom hns taken pos·'CSsion'. It is common ground that the right of sue-ce>sion is disputed hctwecn the claimants who have moved the Additional District Judge. The point of dispute between the M. B. DESAI v. M. v. DESAI (Gaiendragadkar c. /. ) 173 parties is whether any of the claimants has taken possession. The appellant contends that at the date when the admipistrator was appointed by tpe 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 lie 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 pos"es-sion 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 i5 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 SUPRl! ME COURT REPORTS [1965] I S. C. R. is . o provide for a smooth, peaceful and legal devolution of the csh:te 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 tbe claim of any person who has set up a title to sue-cession. 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 quei;tion c1 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 tbero is a dispute as to the title . between two or more claimants, the mate. -rial 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 iD which such an application should be dealt with. If the appli-calion 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 tho Judge shall not finally d! ltermino 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 provi~ions of tho 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 cost~. Appeal dismissed.
Source: Supreme Court eSCR. Dataset: Dattam Labs, CC BY 4.0. Text extracted automatically; compare with the source PDF for layout and accuracy.