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1987 DIGILAW 346 (CAL)

PRAYAG RAM BARUI v. RITESH KUMAR BARUI

1987-10-30

A.M.BHATTACHARJEE, AJIT KUMAR NAYAK

body1987
A. M. BHATTACHARJEE, J. ( 1 ) IN a proceeding initiated by the respondents by an application under Section 192, Succession Act for relief against wrongful possession of the properties alleged to be inherited by them the learned District Judge has, pending determination of that proceeding, appointed a Curator for a period of three months directing him to make an inventory of the properties, to take effective steps to protect the estate and to maintain. accounts of the business. The said order has been sought to be assailed before us by the appellants both by way of appeal as well as in revision. ( 2 ) PART VII of the Succession Act, containing Sections 192 to 210, is intended to provide for expeditious remedy to a person claiming any property, in whole or in part, by succession, against wrongful possession of such property and Section 209 categorically provides that the decision in a proceeding under this part VII "shall be final and shall not be subject to any appeal or review". The proceedings under part VII, are obviously summary proceedings and the only effect of these proceedings would be to settle the question as to who shall remain in actual possession of the properties pending decision of a competent Court as indicated in Section 208 and the orders in such proceedings being governed by Section 209 are not appealable. If no appeal would lie against the decision in the main proceeding under Section 192, then a fortiori no appeal can lie against an interlocutory order under Section 195 appointing a Curator during the pendency of such proceeding. ( 3 ) REALISING this position, Mr. Chakraborty, the learned Counsel for the appellants, has urged that the appellants having also filed a revisional application in the alternative, must be allowed to assail the impugned order by invoking our revisional jurisdiction. But notwithstanding all the strenuous arguments advanced by Mr. Chakraborty, we are afraid that the appellants have not been able to make out any case for our intervention in revision. ( 4 ) AS pointed out by the Privy Council in T. A. Bala Krishna Udayer (AIR 1917 Privy Council 71 at 74), and endorsed 'by the Supreme Court in Keshordeo Chamaria (AIR 1953 S. C. 23 at 27 ). ( 4 ) AS pointed out by the Privy Council in T. A. Bala Krishna Udayer (AIR 1917 Privy Council 71 at 74), and endorsed 'by the Supreme Court in Keshordeo Chamaria (AIR 1953 S. C. 23 at 27 ). Section 115 of the Code of Civil Procedure providing for revisional jurisdiction of the High Court "applies to jurisdiction alone, the irregular exercise or non-exercise of it or the illegal assumption of it" and "is not directed to conclusion of law or fact in which question of jurisdiction is not involved". Clauses (a) and (b) of Section 115 (1) of. the Code of Civil Procedure provide for the invocation of the revisional jurisdiction in a case where the subordinate Court has exercised a jurisdiction where there, is none or has failed to exercise jurisdiction where there is one. In the case at hand, the District Judge having jurisdiction to proceed under Section 192 read with Section 195 of the Succession Act and having passed the impugned order in the exercise of such jurisdiction this is not a case of illegal assumption or of non-exercise of jurisdiction within the meaning of Clauses (a) and (b) of Section 115 (1 ). Clause (c) of Section 115 (1), however, appears to be couched apparently in rather wide and indefinite language and provides that the High Court may also exercise revisional, jurisdiction when the subordinate court "appears to have acted in the exercise of its jurisdiction illegally or with material irregularity". But as pointed out by the Privy Council in N. S. Venkatagiri Ayyanger (AIR 1949 Privy Council 156 at 158), the expression "acted illegally" would mean to have acted "in breach of some provisions of Law", and the expression "with material irregularity" would mean "by committing some error of procedure in the course of trial which is material in that it may have affected the ultimate decisions'. These observations have been quoted with approval by the Supreme Court in Keshordeo Chamaria (supra, A. I. R. 1953 S. C. 23 at 28) and have also been fully relied on in a number of later decisions, e. g. , in M. S. Sethi (AIR 1972 S. C. 2379 at 2384), and in Sher Singh (AIR 1978 S. C. 1841 at 1344-45 ). As pointed out by us in Arundhati Nan vs. P. M. Daryanani (90 C. W. N. 1028 at 1030), whether one refers to one of the earliest decisions of this Court in Amir Hosan Khan of 1884 (I. L. R. 11 Calcutta 6 at 8) or to the later, Privy Council decision in T. A. Bala Krishna Udayer (supra) of 1917 or to the much later Privy Council decision in N. S. Venkatagiri Ayyangar (supra) of 1949, or Whether one refers to the Supreme Court decision in Keshordeo Chamaria (supra) of 1952 or to the much later decision in Vora Abbasbhai of 1963 (AIR 1964 S. C. 1341), or in Pandurang Dhandi of 1966 (AIR 1966 S. C. 153), or in D. K. F. Housing and Construction Co. of 1969 (AIR 1971 S. C. 2324) or to yet later decision of the Supreme Court in M. L. Sethi (Supra) of 1972 or in Sher Singh (Supra) of 1978, one will find the law to be the same and the position in law will appear to be firmly established that the mere fact that the decision is erroneous in fact or in law does not amount to illegal or irregular exercise of jurisdiction and that while exercising the revisional jurisdiction it is not competent for the High Court to correct errors of fact or Law, however, gross or manifest, unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. ( 5 ) MR. Chakraborty has, however, urged that the learned Judge must be held to have exercised his jurisdiction illegally and with material irregularity on several counts. Mr. Chakraborty has contended that a person can invoke Section 192 of the Succession Act only when he claims a right by succession to the property left by the deceased. But here the deceased Sunil, from and through whom the respondents claim as his widow and sons, was a Mitakshara coparcener and, therefore, even if he had any interest in the disputed properties as such a coparcener, that interest would devolve by survivorship and not by succession to attack the provisions of Section 192. The learned Judge, however, while directing appointment of Curator pending the determination of the proceeding under Section 192, has held that "it is also too early to hold that the parties are governed by the Mitakshara Branch of Bindu Law. The learned Judge, however, while directing appointment of Curator pending the determination of the proceeding under Section 192, has held that "it is also too early to hold that the parties are governed by the Mitakshara Branch of Bindu Law. " But even assuming, without deciding, that the parties were governed by the Mitakshara School and the deceased Sunil was a Mitakshara coparcener, he having admittedly died leaving a female heir, namely his widow, the respondent No. 3, the proviso to Section 6 of the Hindu Succession Act, 1956 would immediately come into operation whereunder if a deceased Mitakshara coparcener dies leaving a female heir, his interest in the Mitakshara coparcenery property shall devolve not by survivorship but by succession to attack the Section 192. ( 6 ) MR. Chakraborty has then urged that in order to be entitled to invoke Section 192, the person or persons must be the full owner of the properties in dispute and that the learned District Judge having found the appellants to have only "some Share" in the properties was wrong in invoking his jurisdiction under Section 192 read with Section 105. This argument cannot but be repelled in view of the clear words of Section 192 whereunder a person having right only "to any portion" of the property can also invoke that Section. ( 7 ) MR. Chakraborty, has next urged that, as would appear from Section 198 of the Succession Act, a proceeding under Section 192 can be initiated only against a person taking or attempting forcible possession of property who "has no lawful title" and if the respondents have been found by the learned District Judge to be co-sharers in respect of some of the properties in dispute, they can not be branded as persons who have "no lawful title". This argument must also, be over-ruled as in our view even co-sharers can have "no lawful title" to take forcible possession of the entire joint property and oust the' other co-sharers and the Division Bench decision of this Court in Gopi Krishna vs. Raj Krishna (12 Calcutta Law Journal 8), decided under the corresponding and analogous provisions of the preceding succession (Property Protection) Act, 1841, appears to us to be an authority on this point. ( 8 ) MR. ( 8 ) MR. Chakraborty has finally urged that the impugned order is bad and without jurisdiction as the learned Judge has not recorded his satisfaction as to the imperative necessity for appointing a Curator. We would reject this contention for more reasons than one. Firstly, the learned Judge has recorded his satisfaction in the impugned order. Secondly, the Section nowhere requires such express record. Thirdly, even if the Section so requires, mere non-recording of satisfaction in express terms would not vitiate an otherwise justified order. While the Full Bench decision of the Allahabad High Court in Lila vs. Mahange (A. I. R. 1931 Allahabad 632) appears to be a clear authority on this very question, reference may also be made to the decision of the Supreme Court in K. Venkataramiah vs. Seetharama Reddy (A. I. R. 1968 S. C. 1526 at 1529) where it has been held that though Rule 27 (2) of Order 41 of the Code of Civil Procedure in express terms requires the Court to make a record of the reasons for admitting additional evidence, mere failure to make such record would, by itself, be of no effect, if the reception of such evidence is otherwise justified. ( 9 ) WE are, therefore, satisfied that in the instant case there has been neither any non-exercise nor illegal exercise nor illegal assumption of jurisdiction by the learned Judge to warrant our intervention under Section 115 of the Code of Civil Procedure. But assuming that any such jurisdictional issue was involved, we are afraid that even then no revision would lie in view of the proviso to Section 115 (1), inserted by the Amendment Act of 1976. Section 115, as it stood before the amendment, has now been numbered as Sub-Section (1) and a new proviso has been, added thereto by the said Amendment Act providing inter alia that "the High Court shall not, under this Section, vary or reverse any order made. . . in the course of a suit or proceedings except where - the order, (a) if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or (b) if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made". Therefore, in view of proviso a revision against an interlocutory order must now satisfy the one or the other of the further two conditions contained in the proviso in addition to the one or the other of the three jurisdictional conditions laid down in Clauses (a), (b) and (c) of sub-section (1 ). Now, the impugned interlocutory order appointing of a Curator does not obviously satisfy the condition laid down in Clause (a) of the proviso because even if interlocutory order was made in favour of the appellants, that is, even if no Curator was appointed by that order, the same would not have finally disposed of the main proceeding under Section 192 which would have still required final determination. And the impugned order does not also satisfy the condition laid down in Clause (b) of the proviso, as such an interlocutory order appointing a Curator only for three months pending the final determination of the main proceeding under Section 192 with a direction to the Curator only to make inventory of the properties and to maintain accounts and to take steps for the protection of the estate, can neither cause any failure of justice nor any irreparable injury, even if the impugned proceeding under Section 192 finally terminates in favour of the appellants. This revision must, therefore, fail on this ground alone and even if it could raise any jurisdictional issue. ( 10 ) ONE word more before we conclude. The impugned order appointing a Curator for three months only has already spent its force on the expiry of three months. We do not say that under the law an order can not be assailed in revision if it has expired, even though it involves question of jurisdiction or has caused grave prejudice. But all that we say is that revisional intervention being discretionary, a revisional Court in declining to interfere may, inter alia, take note of the fact that the impugned order has already come to an end and we have also taken such note. ( 11 ) THE revision application must, therefore, fail and we dismiss the same accordingly. But all that we say is that revisional intervention being discretionary, a revisional Court in declining to interfere may, inter alia, take note of the fact that the impugned order has already come to an end and we have also taken such note. ( 11 ) THE revision application must, therefore, fail and we dismiss the same accordingly. The records, if any, to go down at once along with a copy of this order and the learned District Judge would proceed with the hearing of the main proceeding under Section 192 as expeditiously as possible in accordance with law being wholly influenced by any observation made by us hereinabove as to the merits of the case including any reference made by us in this judgment as to the parties being co-sharers or otherwise. The appellants/petitioners are to pay to the respondent opposite parties 20g. Ms. as costs of this proceeding. Ajit Kumar Nayak, J. I agree. Application dismissed. .