Musstt. Umatul Mehdi v. Musstt. Kulsoom — 1907 DIGILAW 214 (CAL)

JUDGMENT 1. The order which we are called upon to revise in the present rule was male by the Subordinate Judge of Patna under sec. 59 of the Bengal Land Registration Act of 1876 The circumstances under which the order in question was made are not in controversy before this Court and may be briefly outlined. One Nawab Sabdar Hossain Khan, a wealthy zemindar of Husnabad, in the District of Monghyr, died on the 7th August 1905. He left considerable landed properties in the Districts of Monghyr, Gya and Patna. The Petitioner who alleges that she was the daughter of the maternal uncle of Sabdar Hossain was married to him and the parties lived as husband and wife till the death of the former. Upon the death of her husband she took possession of his estates, the bulk of which was situated in the Districts of Monghyr and Gya. On the 15th November 1905, the present opposite party, Mussammat Kulsum, who claims to be the sister of the father of Sabdar Hossain, applied for registration of her name in the Collector-ate in respect of the properties situated in the District of Patna upon the allegation that as Sabdar Hossain was governed by the Shia law, the Petitioner, his childless widow, was not entitled to the estate and that she as sister of the father of the deceased had succeeded to the properties by right of inheritance. On the 9th January 1906, the widow, Umatool Mehdi, preferred objection on the ground "that she was entitled to the estate by right of inheritance as the daughter of the maternal uncle of Sabdar Hossain and that in any event she was entitled to retain possession of the properties till her dower which was alleged to have been fixed at a sum of 5 lacs of rupees and 35 gold mohurs, was satisfied out of the profits. The Deputy Collector heard the parties at considerable length and on the 17th February 1906 made an order of reference to the Civil Court under sec. 55 of the Land Registration Act. The widow applied to the superior revenue authorities but the Collector, the Commissioner and the Board of Revenue successively declined to interfere. The Deputy Collector heard the parties at considerable length and on the 17th February 1906 made an order of reference to the Civil Court under sec. 55 of the Land Registration Act. The widow applied to the superior revenue authorities but the Collector, the Commissioner and the Board of Revenue successively declined to interfere. The case was then taken up by the Subordinate Judge of Patna and he held what is described as a summary enquiry into the question of the right to possession in respect of the interest in the estate in dispute but which in substance is as full an investigation into the question of title and possession as can take place in a regular suit. The Subordinate Judge came to the conclusion upon the evidence that the widow was in possession of the properties by receipt of rent from the lessees; that she was not entitled to the estate by right of inheritance; that the dower-debt claimed by her did not entitle her to take or keep possession of the properties; that the legal possession in the disputed properties must be taken to be in Mussamat Kulsum and that consequently the objection of the widow must be disallowed and possession delivered to the rightful heiress. The widow now seeks to have this order discharged and upon her application the rule under consideration was issued. The learned counsel who appears in support of the rule has contended that the proceedings before the Subordinate Judge are vitiated by two defects, namely, first, that the Subordinate Judge had no jurisdiction to determine the matters in controversy as there was no valid reference to him by the Collector under sec. 55 of the Land Registration Act, and secondly, that the Subordinate Judge his acted illegally in the exercise of his jurisdiction, if he had any, and he ought to have held that not only the actual possession of the properties but also the right to retain possession of them till the satisfaction of the dower-debt, was in the Petitioner. 55 of the Land Registration Act, and secondly, that the Subordinate Judge his acted illegally in the exercise of his jurisdiction, if he had any, and he ought to have held that not only the actual possession of the properties but also the right to retain possession of them till the satisfaction of the dower-debt, was in the Petitioner. It has been argued on the other hand by the learned Advocate-General, first, that as the Subordinate Judge exercised a special statutory jurisdiction in aid and at the instance of the Revenue Courts, this Court has no jurisdiction to revise his orders and secondly, that the Subordinate Judge was correct in his conclusion that the widow had no right to retain possession, temporary or otherwise, of the disputed properties in satisfaction of her claim for dower. To determine which of these contentions ought to prevail, it is necessary to refer for a moment to the leading provisions of the Land Registration Act applicable to the matter before us. Sec. 42 provides that every person succeeding to the proprietary right in or management of estates shall apply to the Collector for registration of his name and the character and extent of his interest as such proprietor or manager. Sec. 48 provides for notice to possible objectors. Sec. 52 lays down the mode and scope of enquiry by the Collector It provides that he has to ascertain the truth of the alleged possession of, succession to or transfer of the estate or interest therein in respect of which, registration is sought. Before the Collector can order the name of the applicant to be registered as proprietor of the estate or of any interest therein, he must satisfy himself that the possession exists or that the alleged succession or transfer has taken place and that the applicant has acquired possession in accordance with such succession or transfer but not otherwise. This clearly contemplates two different classes of cases The determination of the question of possession alone is sufficient when the applicant claims to have assumed charge as joint proprietor on behalf of his co-sharers or as manager; in such a case, the Collector need satisfy himself only on the one point of the possession of the applicant. This clearly contemplates two different classes of cases The determination of the question of possession alone is sufficient when the applicant claims to have assumed charge as joint proprietor on behalf of his co-sharers or as manager; in such a case, the Collector need satisfy himself only on the one point of the possession of the applicant. When, however, the applicant claims to be proprietor by succession or transfer the Collector has to satisfy himself on two points, namely, that the succession or transfer has taken place and that the applicant is in possession accordingly. In this latter case, therefore, the applicant cannot succeed unless both the elements are established. If the succession or transfer is proved, but possession is found against the applicant, his name cannot be registered, or conversely, if possession alone is proved, but the succession or transfer is not established, that is if the possession proved is not attributable to the title set up, the application for registration must be refused. Sec. 55 next deals with cases of dispute as to possession, succession, or acquisition by transfer. This section provides that if there is a dispute as to the possession, succession, or acquisition by transfer by the applicant of the extent of interest in respect of which he has applied to be registered, the Collector must, in the first instance, try to satisfy himself, whether any person is in possession of the interest in dispute. If it is not proved to the satisfaction of the Collector that any person is in possession of the interest in dispute, the Collector may adopt one of two courses. He may either himself determine summarily the right to possession, deliver possession accordingly, and make the necessary entry in the register, or, if, in his opinion, the dispute is of a character which is properly determinable by a Civil Court, he shall refer the matter in dispute to the principal Civil Court of the district, for determination. It is obvious, therefore, that the first, duty of the Collector in the case of dispute is to determine whether any person is in possession of the disputed interest. If possession is found to be with any person, the Collector has no jurisdiction summarily to oust him. This is manifest from the alteration which was made in sec. 55 of the Land Registration Act by sec. 1 of Act V of 1878. Under sec. If possession is found to be with any person, the Collector has no jurisdiction summarily to oust him. This is manifest from the alteration which was made in sec. 55 of the Land Registration Act by sec. 1 of Act V of 1878. Under sec. 55 as it stood in Act VII of 1876 in its unamended form, the Collector was entitled to determine summarily the right to possession, if the possession of the applicant in accordance with his application was not proved to his satisfaction. Under such a provision of the law, it might be open to the Collector to determine summarily the right to possession and deliver possession accordingly, so as to oust the third person. In the present amended form of sec. 55, however, the Collector is entitled to determine summarily the right to possession or make reference to the Civil Court for the same purpose, only if no one is proved to be in possession of the interest in dispute. The essential prerequisite for a reference to the Civil Court by the Collector is therefore, an investigation by him into the question of possession and a conclusion that no body is proved to his satisfaction to be in possession. In the case before us, there was no such investigation by the Collector. The order of reference which he made shows on the face of it, that he did not direct his attention to the question, whether any person was in possession of the interest in dispute. It follows, therefore, that the reference was irregular and in contravention of the provisions of sec. 55. We may add that sec. 58 lays down the procedure when a reference has to be made under sec. 55 and one of the heads upon which the Collector has to furnish information to the Civil Court is "the circumstances of the case, as far as they are before the Court; and the reasons which have led him to make the reference." It is not enough for the Collector to repeat the language of sec. 55 and to say that in his opinion the dispute ought to be properly determined by a Civil Court. 2. He must state that it is not proved to his satisfaction that any person is in possession of the interest in dispute. 3. Sec. 59 next defines the procedure before the Civil Court on receipt of reference. 55 and to say that in his opinion the dispute ought to be properly determined by a Civil Court. 2. He must state that it is not proved to his satisfaction that any person is in possession of the interest in dispute. 3. Sec. 59 next defines the procedure before the Civil Court on receipt of reference. The Civil Court is to determine summarily the right to possession in respect of the interest in dispute, subject to a regular suit, and to deliver possession accordingly. Sec. 62 provides that the summary decision of the Court under sec. 59 shall have no other effect than that of settling the actual possession, but for such purposes, it shall be final and not subject to any appeal or order for review. 4. Upon a review of these provisions of the Land Registration Act, the following conclusion appears to us to be reasonably plain. When a person alleges that he has by succession, as in the present case, acquired an interest in an estate and is in possession of such interest, and on this basis, seeks registration of his name, if his claim is disputed by any other person who sets up a conflicting claim in respect of the same interest, the Collector must enter into the question of possession. If he finds that possession is with the applicant and that the title set up is also proved, he may enter his name in the register. If, however, it is not proved to his satisfaction that any person is in possession of the disputed interest, he may either determine summarily the right to possession and deliver possession accordingly or he may make a reference to the Civil Court which may determine summarily the right to possession and deliver possession accordingly. The learned Advocate-General contended that in sec. 55, the term 'possession' means ' lawful possession'; in other words, that if the title of a person is established, the possession under sec. 55 must be assumed to be in him in the eye of law, even though the actual possession may be with some one else. He further contended that it is not merely open to the Collector, but it is his duty to determine, in every case, the right to possession and to place the rightful owner in possession, so as to oust the person who is actually in occupation. He further contended that it is not merely open to the Collector, but it is his duty to determine, in every case, the right to possession and to place the rightful owner in possession, so as to oust the person who is actually in occupation. This contention, however, is contrary to the provisions of sec. 52 which as we have stated already, show clearly that the Collector must not only satisfy himself that the alleged succession or transfer has taken place but also that the applicant has acquired possession in accordance with such succession or transfer. If, as is contended by the learned Advocate General, whenever it is found that A has succeeded to the estate of B or has obtained it by a transfer, it follows, as a matter of law, that A has acquired possession thereof, it would be wholly unnecessary for the Legislature to provide in sec. 52, as it has done, that the Collector must satisfy himself as to both the elements, namely, succession or transfer and the acquisition of possession in accordance with such succession or transfer. Sec 52 shows plainly that unless both the elements are established, the Collector cannot order the name of the applicant to be registered. Reliance was, however, placed by the learned Advocate-General upon the case of Bushby v. Dixon 3 B. and C. 298; 27 R. R. 362 (1824), in which it was ruled by the Court of King's Bench that where a freehold land in the occupation of tenant for years passes by descent, the heir is immediately seised in fact, and this is not altered by the occupier paying rent by mistake to another. Mr. Justice Bayley stated that where there is no one in possession at the death of the ancestor, there must be an actual entry by the heir to give him the seisin in fact; but when there is a tenant, his possession becomes that of the heir, immediately on the death of the ancestor; the subsequent misconduct of the tenant in paying rent to another person or the mistake of the heir as to his right, cannot be to alter the nature of the seisin which he had before. This decision, founded on the ancient learning of the seisin, may be treated as good law and was in fact relied upon by Lord Selborne in Lyell v. Kennedy L. R. 14 App. Cas. This decision, founded on the ancient learning of the seisin, may be treated as good law and was in fact relied upon by Lord Selborne in Lyell v. Kennedy L. R. 14 App. Cas. 437 at p. 456(1889). But it has no application to the present case. It may be conceded that under the land Registration Act, a person who claims to have acquired an interest in an estate by succession or transfer and to be in possession by virtue of such title, is not entitled to be registered merely upon proof of possession He must show that his possession is not wrongful and is attributable to the title which he sets up. But it does not follow, conversely, that, if he proves his title merely, but not his possession, he is entitled to have his name registered. As a wrong-doer in possession is not entitled to claim registration, so the rightful owner, if out of possession, is not entitled to claim registration merely on the ground that the legal possession is in him. To hold otherwise, would be to ignore the clear distinction between possession and right to possession which is recognised in secs. 52 and 55. In the case before us, it has been found that the Petitioner, the widow, is in possession of the estate by receipt of rent from the lessees. It is not quite accurate to describe this as constructive possession In the case of zamindaries where the proprietor can be in possession only by receipt of rent, he is in actual possession of his interest, if he is in receipt of rent. The zemindar's possession of the right to collect rent from the tenants in occupation is actual possession of a tangible property, Sarbanandi Bose Mozumder v. Pransankar Rai Chawdhury I. L. R. 15 Cal 527(1888), Sib Narain Singh v. Brij Mohan Thukur I. L. R. 23 Cal. 80(1896). When a person has proprietary interest in land and as such is entitled to receive rent, he is in possession of his interest if he is in receipt of rent, while his tenant who is in actual occupation has possession which, in a sense, is the possession of the landlord or superior proprietor. [See the observation of Lord Davey in Secretary of State for India v. Krishnamoni Gupta 6 C. W. N. 617 at p. 62a 1 3. c. I. L. R. 29 Cal. [See the observation of Lord Davey in Secretary of State for India v. Krishnamoni Gupta 6 C. W. N. 617 at p. 62a 1 3. c. I. L. R. 29 Cal. 518(1902)] If, therefore, a proprietor finds that the rent receivable by him is intercepted by some other person, he is dispossessed of his interest in the land. He loses possession, because the only mode of enjoyment by which that possession can be held, ceases to be available by the act of the trespasser. If this principle be applied to the facts found by the Subordinate Judge in this case, what is the position? There can be no possible controversy that the widow is in possession of the proprietary interest in the disputed properties. The question, therefore, arises whether her possession is lawful It may be observed that she sets up what is prim facie a good title to possession She alleges that she is entitled to a large sum of money as dower According to her case, the amount is 5 lacs of rupees and 25 gold mohurs. According to the finding of the Subordinate Judge, it is at least Rs. 41,000 and one gold mohur. Whatever the precise amount may be, as to which a determination is not necessary for our present purposes, she contends that she is entitled to remain in possession till the dower debt has been satisfied. There is a considerable body of high authority in support of this view. [See the decisions of their Lordships of the Judicial Committee in Ameeroonnissa v. Mooradoonnissa 6 M. I. A. 211 (1855) and Musstt. Beebee Bachun v. Shk. Hamid Hossein 14 M. I. A 377: s. c. 10 B. L. R. 45 (1871)]. According to these cases, when a widow is in possession of the undistributed property of her deceased husband, having obtained such possession lawfully and without force or fraud, and her dower or any portion of it, is due and unpaid, she is entitled, as against the other heirs of her husband, to retain such possession until her dower-debt is paid. But she must account for all profits received by her, and she cannot, in her capacity as creditor, transfer, sell, or mortgage the property, so as to affect their shares. But she must account for all profits received by her, and she cannot, in her capacity as creditor, transfer, sell, or mortgage the property, so as to affect their shares. It may be conceded that there has been some divergence of judicial opinion upon this point, as is indicated by the decision of the learned Judges of the Allahabad High Court in Amanatunnissa v. Bashiranissa I. L R. 17 All. 77(1894) and Mohammad Karimullah Khan v. Amani Begam I. L R. 17 All. 93 (1895). There is no foundation, however, for any suggestion that the widow has taken possession of the estate by force or fraud Her possession is prim facie lawful. If, therefore, she is in fact in possession as found by the Subordinate Judge, if such possession was not obtained by force or fraud, if she came into possession peaceably, and if the possession can be attributed to a claim of title Prim facie well-founded in law, it is not easy to perceive upon what ostensible ground it can be suggested that she is not in such possession of the property, as the Revenue Courts will recognise for purposes of registration. It could never have been intended that either the Revenue Courts or the Civil Court on a reference by the Revenue Court, should enter into a minute examination of the authorities upon a difficult question of Mahomedan law, and while professing to decide summarily the right to possession, practically come to a decision upon the question of title, as elaborate and exhaustive as in a regular suit. We must consequently hold that the order of reference made by the Collector in this case was in itself irregular and that the Subordinate Judge upon the reference has exercised his jurisdiction illegally and with material irregularity when he found upon the facts that the widow is in possession of the disputed property, as proprietor, by receipt of rent, that she is entitled to a large sum of money from the estate of her husband on account of her dower and that she peaceably entered into possession upon the death of her husband and claims to hold possession not as a wrong-doer but upon an assertion of title which is prim facie supported by Judicial decisions of the highest authority, he ought not to have made an order the effect of which is to determine the question of title and to oust her from possession. 5. The only other point to which a reference is necessary is the question of this Court's power to revise the order of the Subordinate Judge. It was contended by the learned Advocate-General that the order in question is made in the exercise of a special statutory jurisdiction and is consequently not an order in a "case" in which this Court can exercise its revisional powers under sec. 622, C P. C. In our opinion there is no foundation for this contention. No doubt, the Civil Court acquires jurisdiction by vir ue of the reference made by the Revenue Court; but once the Civil Court has got seisin of the case, it exercises its powers as a Civil Court. It determines the question referred to it and delivers possession accordingly. It does not make report to the Revenue Court to enable the latter to pass the final orders. Its decision must be taken to be the decision of an ordinary Civil Court, to which it is competent for it to give effect. The mere fact that the exercise of its jurisdiction is initiated by a reference from the Revenue Court does not make the exercise of jurisdiction by it equivalent to an exercise of jurisdiction by the Revenue Court; nor can we legitimately attribute to the proceedings before it the character of a proceeding before a Revenue Court. This is borne out by the provisions of sec. 62 which expressly bars an appeal and a review. This is borne out by the provisions of sec. 62 which expressly bars an appeal and a review. Such a restriction would not have been necessary, unless the order of the Civil Court was one which without such bar would be appealable or open to review under the provisions of the Code of Civil Procedure. In this view of the matter, this Court has clearly jurisdiction to interfere either under sec. 622 of the CPC or under sec. 15 of the Charter Act. There can be no question therefore as to the competency of this Court to interfere in the exercise of its revisional powers. It was suggested, however, that as the Petitioner has her remedy by a regular suit, this Court ought not to interfere. No doubt the ordinary rule is that where an aggrieved party has other remedy available, this Court is unwilling to interfere, but it is unquestionable, that even if there be such remedy, this Court may interfere in exceptional cases [Debt Das v. Ejaz Husain I. L. R. 28 All. 72 (1905)] and upon the' facts of the present case, we are satisfied that the exercise of our revisional powers is justified. 6. The result, therefore, is that this rule must be made absolute; the order of the Subordinate Judge will be discharged and the Petitioner will be maintained in possession pending the decision of the question of title in controversy between the parties in a regular suit as contemplated by the Land Registration Act. We further direct the Subordinate Judge to certify accordingly to the Collector under sec. 63 of the Land Registration Act. The Petitioner is entitled to the costs of this rule. We assess the hearing fee at 10 gold mohurs.