Prativa Bose vs Kumar Rupendra Deb Raikat and Ors

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 539 of 1960

Decision Date: 10 May, 1963

Coram: A.K. Sarkar, S.K. Das, M. Hidayatullah, Raghubar Dayal, N. Rajagopala Ayyangar

In this matter, the Supreme Court of India rendered a judgment on 10 May 1963 concerning the dispute between Prativa Bose and Kumar Rupendra Deb Raikat together with other respondents. The opinion was authored by Justice A K Sarkar and was delivered by a bench comprising Justices A K Sarkar, S K Das, M Hidayatullah, Raghubar Dayal and N Rajagopala Ayyangar. The parties were identified as petitioner Prativa Bose and respondent Kumar Rupendra Deb Raikat with additional respondents. The judgment was recorded on 10 May 1963 and the same bench composition was reiterated in the official report. The case citation appeared as 1965 AIR 540 and 1964 SCR (4) 69. The matter concerned an act relating to succession to an estate where a proprietor died intestate leaving a single heir, a dispute arose among several claimants, a suit was filed by a person who was out of possession, an application was made for securing the person in possession, and the question involved the power of a District Judge under the Bengal Wills and Intestacy Regulation V of 1799, particularly sections 3 and 4.

The factual background recorded that the respondent had instituted a suit in the court of the subordinate judge at Jalpaiguri seeking a declaration that he was the sole heir and successor to his father’s impartible estate, which had been occupied by his step‑mother. That suit was pending for transfer in the High Court. At the same time, two additional title suits were also pending in the High Court in which certain agnates claimed succession rights. The respondent subsequently filed an application before the District Judge of Jalpaiguri requesting that security be taken from the appellant under section IV of the Bengal Wills and Intestacy Regulation V of 1799. The District Judge ruled that the application was barred by Article 181 of the Indian Limitation Act and held that section IV of the Regulation did not apply because it was intended for cases where the deceased left more than one heir, not a single heir. The High Court, however, found in favor of the respondent on both points and directed the District Judge to take security pursuant to section IV. Section IV of the Regulation reads as follows: “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; or, in default of such security being given within a reasonable period, may give possession, until the suit may be determined, to the other claimant or claimants who may be able to give such security, declaring at the same time that such possession is not in any degree to affect the right of property at issue between the parties; but to be considered merely as an administration to the estate for the benefit of the heirs who may on investigation.”

The Court held, per Justices Hidayatullah, Dayal and Ayyangar, that the 70 Regulation was a piece of restrictive legislation and that its provisions must be strictly construed. Each of sections II, III and IV of the Regulation, when properly read and construed, formed a complete code in itself and dealt with different factual situations. Section II applied when the deceased died leaving a will and naming an executor to manage the property, section III applied when the deceased died intestate leaving a single heir, and section IV applied when the deceased died intestate leaving more than one heir. The court observed that the provisions of sections III and IV were not inconsistent and that it was unnecessary to read them together. The earlier authority Cohen v. S. E. Railway (1877) 2 E. & D. 253 was held to be inapplicable. The second part of section IV, which provided for the taking of security, did not apply to the present case because the deceased died intestate leaving only one heir entitled to the entire estate; that situation fell within the ambit of section III of the Regulation. Since the courts now possess ample powers under the Indian Succession Act, 1925 and the Code of Civil Procedure, the Court opined that the provisions of the Regulation were out of date and should be repealed.

Justices S. K. Das and Sarkar further held that section IV of the Regulation does not require a formal application for taking security and that the court may act suo motu. Article 181 was confined to applications under the Code of Civil Procedure and could not apply to the present application, which was made under section IV of the Regulation and not under the Code; consequently, the procedural requirements of the Code did not govern the matter. The decision in Sha Mulchand & Co. Ltd. v. Jawahar Mills, Ltd. [1953] S.C.R. 351 was applied. The Court of the District Judge was identified as the proper forum where an application under section IV could be made. In the absence of an order under section 23 of the Bengal, Agra and Assam Civil Courts Act, 1887, the order contemplated by section IV could be made only by a District Judge, and it was not necessary that the suit mentioned in the section be pending before him. The precedent Kumar Punyendra Dev v. Kumar Bhairabend‑a Deb. (1946) 50 C. W. N. 776 was approved. The Court found no reason for the Resolution to provide differently for cases of a single heir and cases of more than one heir, and it did not do so. The words “if the right of succession to the estate is disputed between several claimants” in section IV also covered a case where a person died leaving a single heir but several persons disputed each claiming to be that heir. The semi‑colon separating the two parts of the provision did not create two distinct states of affairs; the latter part must be controlled by the former, and the word “but” between the two parts did not lead to a different interpretation.

The Court concluded that the term “heirs” in the second part of section IV must be read to include a single heir, and therefore section IV of the Regulation was applicable to the present case, allowing the appellant to be required to furnish security. The Court held that it was incorrect to assert that section IV of the Regulation had been impliedly repealed by sections 192 to 195 of the Succession Act 1925. The High Court possessed jurisdiction in revision to set aside the order of the District Judge because the Judge had failed to exercise his jurisdiction due to a misinterpretation of the statute and an erroneous view of the limitation period, following the authority in Joy Chand Lal Babu v. Kamalaksha Choudhury (1949) 76 I.A. 131. However, the Court also observed that the power to demand security under section IV of the Regulation is a discretionary authority vested in the District Judge, and the High Court was in error when it directed the District Judge to compel the appellant to provide such security. The judgment concerned Civil Appeal No. 539 of 1960, filed by special leave against the judgment and order dated 6 June 1956 of the Calcutta High Court in Civil Rule No. 499 of 1955. Counsel for the appellant included the Solicitor‑General of India and other lawyers, while counsel for the respondents were also named. The judgment was delivered on 10 May 1963 by Justices M. Hidayatullah, Raghubar Dayal and N. Rajagopala Ayyangar, with a separate opinion of Justices S. K. Das and A. K. Sarkar delivered by Justice A. K. Sarkar. The facts were that Raja Prosanna Deb Raikat, proprietor of the Baikundiapur Raj Estate in Jalpaiguri, West Bengal, died intestate on 4 December 1946. He left a widow, Rani Asrumati Debi (now deceased), and a daughter, the appellant Prativa Bose, by that widow. Upon the Raja’s death, Rani Asrumati took possession of the estate. On 7 August 1947, the respondent Rupendra filed a suit before the Subordinate Judge of Jalpaiguri against Rani Asrumati and certain other agnatic relations, seeking a declaration that the Raja, being the eldest son by another wife, Rani Renchi, was the sole lawful heir entitled to exclusive possession of the impartible estate governed by primogeniture, and also seeking possession and related reliefs. Rupendra claimed that Rani Renchi, a member of the Lepcha tribe, had been married to the Raja in the Gandharba form. The suit was contested by Rani Asrumati and the agnatic relations, who denied any marriage between the Raja and the mother of Rupendra. The suit was transferred to the Calcutta High Court by an order dated 12 April 1949 under clause 13 of its Letters Patent. Rupendra applied to the High Court in that suit for the appointment of a receiver, but the application was dismissed on 29 July 1952. An appeal was filed against that dismissal, though the record does not show the result of that appeal.

The records indicate that no further proceeding was taken to enforce the claim of the agnatic relations. It appears that two such relatives, identified as Kumar Guru Charan and Kumar Jitendra, instituted separate suits in the Calcutta High Court, each asserting that they were the sole heir of the deceased Raja. All of these suits remain pending. On 5 January 1954 Rani Asrumati died, after which the appellant, Prativa Bose, entered into possession of the estate and has continued to occupy it ever since. Subsequently, on 31 March 1954 the respondent, Rupendra, filed an application under section 4 of the Bengal Regulation V of 1799 before the District Judge of Jalpaiguri, seeking an order that required the appellant to furnish security pending the judgment that might be rendered in the suit filed by him. The learned District Judge dismissed the application on two grounds. First, he held that section 4 of the Regulation was inapplicable where a person died intestate leaving a single heir and the controversy involved several individuals each claiming to be that heir. Second, he concluded that the respondent’s application was barred by Article 181 of the First Schedule to the Limitation Act. Dissatisfied, the respondent moved the Calcutta High Court in revision challenging the district judge’s order.

The High Court disagreed with the district judge on both points, set aside his order and directed him to “exercise his special jurisdiction under section 4 of the Regulation and take sufficient security from the opposite party, Prativa Bose.” The present appeal is lodged by Prativa Bose against that High Court order. The object of Bengal Regulation V of 1799 was to restrain the interference of the Zila Courts of Diwani Adalat in the execution of wills and the administration of intestate estates. The first section serves as a preamble, stating this objective. Section 2 deals with the situation where a person dies leaving a will and appoints an executor, provided the heir is not a disqualified land‑holder subject to the Court of Wards; it mandates that the executor take charge of the estate without any application to the Diwani Adalat or any other government officer and prohibits courts from interfering except on a regular complaint against the executor. Sections 3, 4 and 5 address intestate deaths. Section 3 provides that where a Hindu, Muslim or other person subject to Zila Court jurisdiction dies intestate but leaves a son or other heir who, by local law, is entitled to the whole estate, that heir, if of age and competent, may take possession without court permission, and the courts are barred from interference except on a regular complaint. Section 4 states that where more than one heir exists and they can mutually agree on a common manager, they may take possession without court interference, again subject only to a regular complaint; however, if the right of succession is disputed among several claimants, the procedure changes accordingly.

In the provision dealing with heirs who are of age and competent, the regulation stated that such an heir, or, if the heir is a minor or otherwise incompetent and not under the supervision of the Court of Wards, the heir’s guardian or nearest relative who is authorized by special appointment or by the customary law of the country, may take possession and manage the estate without having to apply to any court for permission, provided that the taking of possession can be accomplished without the use of force. The regulation also imposed a limitation on the courts of justice, preventing them from interfering in these matters unless a regular complaint was formally lodged against the person who had taken possession.

When the estate of a person who died intestate left more than one heir, the regulation allowed the heirs to agree among themselves on the appointment of a common manager and to take possession of the estate together. The courts of justice were likewise barred from interfering in such joint possession unless a regular complaint was presented, just as they were barred in the case of a single heir. However, if the right to succeed to the estate was contested by several claimants and one or more of those claimants had already taken possession, the judge, upon receiving a regular suit from the party who was out of possession, was required to obtain satisfactory security from the party or parties who were in possession. This security was to ensure that the parties in possession would comply with any judgment that might be passed in the suit. If the required security was not furnished within a reasonable time, the judge could transfer possession, for the duration of the suit, to the other claimant or claimants who were able to provide such security. In doing so, the judge had to declare that this temporary transfer of possession did not affect the underlying property right that was in dispute; rather, it was merely an administrative measure intended to protect the estate for the benefit of the heirs who might ultimately be found entitled to succeed to it.

The regulation further provided that if none of the claimants to the estate of a person who died intestate could furnish the security required under the preceding rule, and if there was no person authorized and willing to assume charge of the landed estate, the judge of the jurisdiction where the estate was situated, or where the deceased had resided, or where the principal part of the estate lay in cases involving more than one jurisdiction, was empowered to appoint an administrator to ensure proper care and management of the estate. Section six of the regulation dealt with the procedure for taking security from the administrator appointed under section five and for granting an allowance to that administrator. Section seven required judges of the Zila Court, upon receiving information that a person within their jurisdiction had died intestate leaving personal property with no identifiable claimant, to adopt the measures prescribed in that section for the temporary care of such property. Finally, section eight, which was the last section of the regulation, clarified that nothing contained in the regulation was intended to limit or alter the jurisdiction of the Court of Wards in the matters that fell within its established competence.

The last section of the Regulation stated that nothing contained in the Regulation was intended to limit or alter the jurisdiction of the Court of Wards in certain matters. Mr Sen, appearing for the appellant, presented a number of arguments, and among those he reiterated the two points that the trial court had decided in his client’s favour. The Court first examined the question of limitation. It found that the question of limitation did not truly arise in the present circumstances. Article 181 of the Limitation Act, 19 08, prescribed the time within which certain applications could be made. Section 4 of the Regulation, however, did not require any application before an order calling upon a person to furnish security could be made under it. The provision made no mention of an application and appeared to be intended to enable the Court to act suo motu. Indeed, the Regulation nowhere imposed a requirement of an application for making any of the orders that it authorised. Consequently, Article 181 would have no operation where no application was required to enable a court to make an order; see The Oriental Bank Corporation v J A Charriol (1) and Sohan v Khalak Singh (2). Accordingly, the present case could not be decided on the ground that the respondent Rupendra had filed his application beyond the period prescribed by Article 181. The Court also concluded that Article 181 was inapplicable to the present case for another reason. Assuming, for the sake of argument, that Section 4 of the Regulation required an application to the Judge before the order mentioned in it could be made, Article 181 dealt with “applications for which no period of limitation is provided” either in the Limitation Act itself or in Section 48 of the Code of Civil Procedure. The predominant view adopted by the High Courts with respect to this article and its corresponding provision in the earlier Limitation Act of 1877 was that the applications mentioned were applications under the Code of Civil Procedure only. The reason for this view was that, because the article used general terms, it must be construed ejusdem generis, meaning it should be applied only to Code applications, since all other articles in the Act that provided limitation periods dealt with applications under the Code. It was, however, pointed out that the Act had been amended in 1948 and that Articles 158 and 178 now dealt with applications under the Arbitration Act and licence matters; therefore it could no longer be said that every other article in the Act concerned only Code applications. On that basis, it was contended that Article 181 could no longer be construed ejusdem generis and confined to Code applications. The Court was unable to accept this contention and held that the view expressed by Das J. in She Mulchand & Co. Ltd. v. Jawahar Mills Ltd (1) correctly stated the law.

In this case the Court noted that the observations of the learned judge were correct. The judge had expressed that it was not convincing, without further argument, to say that the mere amendment of articles 158 and 178 could automatically alter the meaning that had become attached to article 181 by a long series of judicial decisions of the various High Courts in India. The Court explained that those decisions had effectively read the words “under the Code” into the first column of article 181 even though the words were not originally present in the statute. The Court observed that if those words had actually been written in the provision, the amendment of articles 158 and 178 would certainly not have affected the meaning of article 181. However, because the words were read into the provision by judicial construction, the Court was not persuaded that the later amendment of articles 158 and 178 must necessarily and automatically change the long‑established interpretation of article 181 merely because the original basis for that interpretation was no longer available. The Court agreed with those observations and affirmed that article 181 should continue to be read as applying only to applications made under the Code of Civil Procedure. It was then argued that the application filed by the respondent Rupendra was an application under the Code because, in view of section 141 of the Code, the procedure prescribed by the Code must be followed in dealing with an application made under section 4 of the Regulation. The Court found that argument to be fallacious. The real issue, the Court said, was not whether the procedural steps prescribed by the Code were followed but whether the application itself fell within the scope of the Code. The Court held that the application filed by Rupendra was not an application under the Code in any sense, because the Regulation had existed before the Civil Procedure Codes were enacted. Consequently, even if section 4 of the Regulation required an application, the limitation period provided by article 181 of the Limitation Act would not apply to that application. The next question concerned whether an order could be made only by the court where the suit mentioned in section 4 of the Regulation was pending. The High Court at Calcutta, in Kumar Punyendra Narain Deb v. Kumar Bharabendra Narayan Deb, had held that a District Judge could pass such an order even when the suit referred to was not pending before him. The Court endorsed that view. It explained that section 4 merely provides that “the Judge on a regular suit being preferred shall take good and sufficient security,” and there is nothing in the provision that requires the “Judge” to be the one before whom the suit is pending, although no order requiring security can be made before the suit mentioned in the section has been filed. From the earlier summary of the Regulation the Court concluded that we are

The Court observed that the reference to “Judge” in the Regulation was intended to designate the Judge of the Zila Court, whose authority to intervene in the administration of a deceased person’s estate was meant to be limited by that Regulation. The Court noted that Zila Courts had long been abolished and that their functions had been taken over by Courts of District Judges established under the Bengal Civil Courts Act of 1871. Section twelve of that Act provided that the then‑incumbent judges of the Zila Courts, along with Additional Judges, Subordinate Judges and Munsifs, were to be deemed duly appointed to the offices of the first District Judges, Additional Judges, Subordinate Judges and Munsifs created by the legislation. Subsequently, the Bengal, Agra and Assam Civil Courts Act of 1887 repealed the 1871 Act and declared that all courts and appointments made under the earlier Act were to be regarded as having been constituted under the 1887 Act. Accordingly, the Court concluded that the terms “Judge” and “Zila Courts” appearing in the Regulation should now be understood as referring, respectively, to District Judges and District Courts established under the 1887 Act. Section twenty‑three of the 1887 Act empowered the High Court, by order, to authorize any Subordinate Judge to take cognizance of a proceeding under Regulation V of 1799. The Court inferred that a Subordinate Judge possessed jurisdiction over matters governed by Regulation V of 1799 only when such jurisdiction had been expressly conferred by a High Court order; without that order, a Subordinate Judge could not act, even if a suit was pending before him. Therefore, in the absence of an order made under section twenty‑three of the 1887 Act, the order contemplated by section four of the Regulation could be issued only by a District Judge. As a result, the Court held that it could not be said that the District Judge of Jalpaiguri lacked jurisdiction to act under section four of the Regulation in the present case. The Court then addressed the proper interpretation of section four. It rejected the appellant’s argument that section four applied solely when there were “more heirs than one,” contending that the Court alone could demand security in such circumstances, and that a case involving a single heir fell under section three, which did not provide for any security requirement. The Court found no justification for the Regulation to differentiate between cases of a single heir and those involving multiple heirs, and concluded that the Regulation did not, in fact, make such a distinction.

The Court noted that section 4 began with the words “if there be more heirs than one” and that the provision allowed those heirs, when they were in agreement, to take possession of the estate without judicial interference except when a complaint was filed. The Court observed that the nature of the contemplated complaint was unclear. It suggested that the complaint was not likely to arise from a dispute among the heirs, because the subsection directed the courts not to interfere unless a complaint was presented while the heirs were already in agreement; a complaint in such circumstances would therefore not appear to stem from a disagreement between the heirs. The Court then turned to the language that followed the semicolon, which read: “but if the right of succession to the estate be disputed between several claimants” and provided that if one or more claimants took possession and a party who was out of possession instituted suit, the court must require the party in possession to furnish security. The Court held that the phrase “if the right of succession to the estate be disputed between several claimants”, when read alone, plainly covered a situation in which a deceased person left a single heir while several other persons claimed to be that heir. The Court considered this interpretation to be indisputable. Consequently, it concluded that even in such a scenario the court could order the party in possession to provide security. The learned District Judge, however, had reasoned that because the opening words of the section dealt with a case of “more heirs than one”, the subsequent clause after the semicolon – “the right of succession to the estate be disputed between several claimants” – must be read as being limited to disputes involving multiple heirs. The Court stated that it was unaware of any rule prohibiting two portions of a sentence separated by a semicolon from addressing two distinct factual situations. Accordingly, the Court found no justification for denying the plain meaning of the words or for constraining the latter clause by the earlier words merely because of the semicolon. Likewise, the Court rejected the view that the word “but” after the semicolon required the following provision to be confined to the case described by the preceding words. Rather, the Court explained that the word “but” was employed to distinguish two separate circumstances: one in which the court was instructed not to interfere, and another in which the court was authorised to intervene by demanding security. The presence of “but” did not imply that the two distinguished cases were otherwise identical; instead, it signaled that in one set of actions the court would not interfere without a complaint, while in the other set it could do so. The learned District Judge had also considered …

It was observed that the use of the word “heirs” in the plural form in the expression “for the benefit of the heirs who may on investigation be found entitled to succeed,” which appears at the conclusion of the provision, was interpreted by the learned District Judge to mean that a security could be demanded only when a deceased person left two or more heirs. The Court held that this interpretation was plainly erroneous. As the High Court correctly pointed out, a plural expression must also be capable of encompassing a singular situation. The Court further noted that section 3 of the Regulation is intended to cover a circumstance in which a person dies leaving a single heir and that the provision also addresses disputes among several persons each asserting that he or she is the sole heir. It was argued that because section 3 does not expressly provide for the demand of security where one of the disputing claimants has peacefully obtained possession while the other claimant or claimants have instituted a suit, section 4 could not be invoked for the purpose of demanding security in the present case.

The Court accepted, without expressing a definitive opinion, the view that the interpretation of section 3 advanced by the High Court was plausible. However, the Court could not accept the position that, if section 4 also deals with a dispute among multiple persons each claiming to be the sole heir, its operation must be excluded in a case already covered by section 3. The Court explained that, if the plain words of section 4 can be read to show that it does not apply where a person leaves only a single heir, then no further question arises. Conversely, if section 4 does apply to a scenario involving a single heir, there is no justification for denying its operation merely because section 3 also applies to the same situation. Accordingly, the Court found no difficulty in applying both sections where a single heir is involved. In the absence of any dispute, section 4 has no effect with respect to the demand for security. Where a dispute exists, the Courts are empowered to intervene under section 3 upon the filing of a complaint, and they may also demand security when one claimant is in possession and the other claimant or claimants are out of possession and have filed a suit or suits. The Court agreed with the High Court that section 4 was applicable to the present case and that the appellant could be required to furnish security. The Court expressed some doubt as to whether section 3 was meant to apply to a situation in which several persons each claim to be the single heir of an intestate, but nonetheless applied the provision to that scenario. The Court then addressed the contention that sections 192 to 195 of the Succession Act, 1925, implicitly reproduced the effect of section 4 of the Regulation. While acknowledging that those sections of the Succession Act deal with a summary determination of a disputed right to possession in succession matters, the Court emphasized that they are not identical to section 4 of the Regulation, principally because section 4 of the Regulation does not operate unless a suit has been filed, whereas the provisions of the Succession Act apply in the absence of a suit.

The Court explained that the provisions of the later Act apply only in circumstances where no suit is pending, whereas under the earlier Regulation a party who is already in possession cannot be removed simply because the judge believes he has no right, provided that the party furnishes the security that the Regulation requires. The Court observed that there are additional distinctions between the two statutes, and that these differences do not place the statutes in conflict with one another. Consequently, the Court concluded that the later Act cannot be said to have implicitly repeated the earlier Regulation. The Court then turned to the argument that the High Court should not have intervened in revision because the trial Court had neither exceeded nor refused to exercise its jurisdiction. The Court found this contention to be unfounded. It noted that it is well settled, citing Joy Chand Cal Babel v. Kamalaksha Chaudhury (1), that a case for revision arises when an erroneous decision causes a subordinate court either to exercise a jurisdiction not granted to it by law or to fail to exercise a jurisdiction that is vested in it. Applying that principle, the Court held that the trial Court had indeed erred by deciding, as the High Court also agreed, that a proper construction of section 4 of the Regulation excluded its application to the present facts, and by also holding that the application filed by respondent Rupendra was barred by limitation. On those grounds the trial Court had refused to exercise jurisdiction under section 4, and the High Court was therefore fully justified in setting aside the District Judge’s order in the exercise of its revisional jurisdiction. Having addressed all of the objections raised by counsel for the appellant concerning the applicability of section 4, the Court found none of them persuasive. Nevertheless, the Court expressed some hesitation about whether the District Judge is obligated to demand security from the party in possession in every case to which section 4 applies. While the High Court and the trial Court had held that such a duty was mandatory, the Court after careful consideration adopted the opposite view. It concluded that the statute merely gives the District Judge discretion to demand security when, after considering all circumstances, he deems it appropriate. Although the language of the section states that “the judge…shall take…security,” the Court observed that the surrounding context, as illustrated in State of U.P. v. Manbodhan Lal Srivastava (’), suggests a different intention. The Court found it anomalous to require a person who is in possession of property and claims heirship to furnish security merely because another individual asserts a claim, irrespective of the merit of that claim. The Court therefore determined that such an intention could not be ascribed to the legislature, and that the provision should be interpreted to allow judicial discretion rather than impose an absolute obligation.

In this case the Court observed that the statute should not compel an heir to furnish security merely because another person asserts a claim, even when that claim lacks any substantive basis. The Court held that it would be unreasonable to infer such a legislative intention, and it found no indication that the present law was meant to impose that burden. Several reasons, besides the manifest absurdity of the situation, supported this conclusion. Firstly, the Court noted that the provision itself directs the judge to call for security suo motu. However, a judge can issue such a requirement only when the factual circumstances that justify it are known to him. It is evident that in the majority of cases the judge will not possess the necessary knowledge of those facts, and therefore he would be unable to act suo motu in many instances. The Court therefore concluded that the legislature could not have intended to create a mandatory duty for the judge that, in a great number of cases, could not be performed due to lack of factual knowledge. Secondly, the Court pointed out that the overarching purpose of the Regulation is to limit judicial interference in succession matters. Section 4, to the extent that it permits a court to demand security, represents an exception to that limitation, allowing the court to interfere only by requiring security from the party who is in possession as an heir. This interference was clearly intended to be discretionary, and consequently the Court reasoned that the power granted under Section 4 should likewise be discretionary. The Court further explained that Sections 4 and 5, when read together, establish a three‑stage process concerning the demand for security. In the first stage, Section 4 states that the judge shall take security from the party in possession of the property. The same section also provides that if that party fails to furnish the security, the judge may, as a second stage, transfer possession of the property to the other claimant or claimants who are capable of providing such security. The third stage, contained in Section 5, applies when none of the claimants—neither the possessor nor the challengers—can provide the required security. In that situation, the judge is authorised to appoint an administrator to care for and manage the property until the suit described in Section 4 is finally determined. The Court emphasized that the powers exercised by the judge in the second and third stages are unmistakably discretionary, as the language used includes the terms “may” and “is authorised,” both of which convey discretion. Accordingly, the Court rejected any interpretation that those words, despite their form, impose an absolute duty on the judge.

The Court explained that the statutory provisions do not create a mandatory duty, since they merely grant a power to protect a party’s right. It was pointed out that the section operates not on the assumption that a party out of possession possesses any established right, but solely on the existence of a dispute, regardless of how weak that dispute may be. The Court reasoned that if the judge’s authority in the second and third stages is characterised as discretionary, it would be inconsistent to treat the authority in the first stage as compulsory. It could not be that the statute obliges the judge to obtain security from the party in possession, while simultaneously permitting the judge, if that party fails to provide security, to optionally place the rival claimant in possession or to appoint an administrator. Accordingly, because the powers in the second and third stages are discretionary, the power in the first stage must also be of a discretionary nature. In this view, the High Court erred when it directed the District Judge to “take sufficient security from the opposite party Prativa Bose,” the appellant in this matter. The proper approach, the Court held, was to remand the case to the District Judge so that he could, in his discretion, determine whether the circumstances warranted requiring the appellant to furnish security and, if so, to take that security. The appellant contended that, in view of the High Court’s order refusing the respondent Rupendra’s application for the appointment of a receiver, the District Judge could not, exercising discretion, demand security from the appellant. The Court disagreed, stating that the decision on the receiver application did not finally resolve the issue, as that decision was based only on findings that were prima faci. The learned District Judge, in deciding whether to demand security, would necessarily consider all material placed before him, including the findings from the receiver application, and would then issue an order after such consideration. Consequently, the Court directed that the matter be sent back to the District Judge of Jalpaiguri to decide, in the facts of this case, whether to call upon the appellant to furnish security and to make an appropriate order. The Court further ordered that all costs incurred in all courts up to this point, and any costs to be incurred before the District Judge under this remand, shall constitute costs in the suit. RAGHUBAR DAYAL J. – This appeal, by special leave, is directed against the judgment of the High Court of Calcutta and arises from the following facts. Raja Prasanna Deb Rajkot, the Raja of the impartible Baikunthapur Raj Estate, died intestate on 4 December 1946, leaving substantial movable and immovable property. Ashrumati, the widow, claimed to be the sole heir and took possession of the estate, except for the southern block.

In this case, the deceased Raja Prasanna Deb Rajkot died intestate on 4 December 1946, leaving a substantial estate that included the southern block of the palace at Jalpaiguri and a small parcel of land adjoining the palace. The widow, Ashrumati, claimed to be the sole heir and took possession of those portions of the estate. On 31 October 1947 she succeeded in obtaining a mutation of the property in her name, although three other persons had also applied for mutation. Subsequently, Kumar Rupendra Narayan filed a title suit, identified as Suit No. 40 of 1947, in the Court of the Subordinate Judge, Jalpaiguri, on 7 August 1947. The suit was brought against Ashrumati and other claimants and sought a declaration that Kumar Rupendra Narayan was the sole heir and successor of his father, Raja Prasanna Deb Rajkot, and also sought recovery of possession of the estate left by the Raja. According to the plaintiff, the Raja had left three sons—Kumar Rupendra Deb Rajkot, Kumar Shiba Prasad Deb, and Kumar Deba Prasad Deb—a daughter, Prativa Bose, and two widows, Ashrumati (the mother of Prativa Bose) and Renchi Devi (the mother of the three sons. The suit was transferred to the High Court under clause 13 of the Letters Patent, 1865, and was numbered as Extraordinary Suit No. 2 of 1948. Two additional title suits, numbered 2347 of 1950 and 3619 of 1951, were also filed in the High Court in its original civil jurisdiction by Guru Charan Deb and Jitendra Deb. In July 1952 the High Court rejected applications for the appointment of a receiver and for an injunction. Following Ashrumati’s death on 5 January 1954, Prativa Bose was substituted in her place in the pending suits. On 31 March 1954 Kumar Rupendra Deb filed an application before the District Judge of Jalpaiguri, requesting that good and sufficient security be taken from Prativa Bose under section IV of the Bengal Wills & Intestacy Regulation V of 1799 (hereinafter “the Regulation”). This application was contested on the grounds that it was filed after the limitation period had expired, that section IV of the Regulation did not apply where the deceased left a single heir, that the principle of waiver barred the relief, and that the District Judge lacked jurisdiction because the suit was pending before the High Court. The District Judge held that the application was time‑barred pursuant to article 181 of the First Schedule to the Indian Limitation Act and that section IV of the Regulation applied only where the deceased left several heirs; consequently, the application was dismissed. Kumar Rupendra Deb appealed by revision to the High Court. The High Court decided in his favour on both the limitation issue and the applicability of section IV of the Regulation to the facts, allowed the revision, and ordered that the District Judge shall exercise his special jurisdiction under section IV of the Regulation and require Prativa Bose to furnish sufficient security. The present appeal was filed by Prativa Bose against that High Court order.

After the appellant obtained special leave from this Court, counsel for the appellant presented several arguments for consideration. The first argument asserted that the provisions of Section III, rather than Section IV, of the Regulation were applicable to the facts of the present case. The second argument contended that the request for security from the party who was in possession of the estate was made within the pendency of the suit, and therefore the court that was hearing the suit alone possessed the jurisdiction to entertain such a request. The third argument relied on a principle analogous to res judicata, claiming that the High Court had already examined the issue of interim protection of the estate, and consequently the present application was barred by that principle. The fourth argument treated the present request as an independent application, distinct from the suit, and consequently argued that it was time‑barred under Article 181 of the First Schedule to the Limitation Act. The fifth argument advanced that the Regulation had been implicitly repealed by the provisions of the Code of Civil Procedure and the Indian Succession Act, 1925. Finally, the sixth argument maintained that the High Court lacked jurisdiction to entertain a revision against the order of the District Judge that had rejected the application seeking security from Ashrumati Devi, and therefore the High Court could not lawfully interfere with that order.

Before addressing the aforementioned contentions, the Court set out the relevant provisions of the Regulation, specifically Sections III and IV as they existed originally. Section III provided that in the case of a Hindu, Muslim, or any other person subject to the jurisdiction of the Zillah or City Courts who died intestate but left a son or other heir who, according to the laws of the country, might be entitled to the whole estate, such heir, if of age and competent to take possession and manage the estate, or if a minor or incompetent and not under the supervision of the Court of Wards, a guardian, or nearest kin authorized by special appointment or by law and custom, was not required to apply to the courts for permission to take possession of the deceased’s estate insofar as that could be done without violence; and the courts were restricted from interfering in such cases except when a regular complaint was filed, in which event the courts were to proceed according to the general Regulations. Section IV stated that where more than one heir existed to the estate of a person dying intestate and the heirs could mutually agree on a common manager, they were free to take possession, and the courts were likewise restricted from interference without a regular complaint, similar to the situation of a single heir; however, if the right of succession to the estate was disputed among several claimants, one or more of whom might have taken possession, the judge, upon a regular suit being filed by the party out of possession, was required to obtain good and sufficient security from the party or parties in possession.

In this matter, the Court explained that when a party or parties are in possession of an estate, they must furnish security for compliance with any judgment that may be issued in the suit. If such security is not provided within a reasonable time, the court may order that possession be transferred, pending determination of the suit, to another claimant or claimants who are able to furnish security. The transfer is to be made with a declaration that the temporary possession does not in any way affect the substantive property right that is in dispute. It is merely an administrative measure for the benefit of the heirs who, upon investigation, may be shown to be entitled to succeed to the estate. The Court further noted that certain portions of section III of the Regulation have been repealed by Act XL of 1858 and Act XVI of 1874. However, those repeals do not affect the issue that is before the Court. In 1903 the phrase ‘when they are to proceed thereupon according to the general Regulations’ was also repealed. That change merely directed that complaints thereafter be pursued according to the procedure laid down in the Code of Civil Procedure for trial of suits. The factual backdrop is that Aslirumati asserts that she is the sole heir of the deceased Raja and therefore claims title to the estate. The plaintiff, Kumar Rupendra Narayan, likewise claims to be the sole heir of the Raja and seeks title to the same property. Each additional claimant to the title also asserts that he or she is the sole heir. On these facts the appellant argued that the appropriate provision is section III rather than section IV of the Regulation. It is undisputed that section III deals with a situation in which a single heir is entitled to the whole estate of a deceased intestate. Section IV, by contrast, addresses the case where more than one heir exists. The latter part of section IV provides that, when a regular suit is filed by a party who is out of possession, the judge may require security. Such security must be furnished by the party or parties who are in possession of the estate. The appellant’s real contention was that this judicial power to demand security should arise only where there are multiple heirs and a dispute as to succession. The power should not apply to a case governed by section III where the dispute, if any, is between rival claimants. Each claimant asserts that he or she alone is entitled to the entire estate as sole heir. The High Court examined this contention and rejected it, observing that there is no persuasive reason for the legislature to draw a distinction between disputes that arise when an intestate leaves a single heir and those that arise when several heirs survive. The language of the two sections does not indicate such an intention, and the first parts of sections III and IV do not contemplate disputes concerning succession.

It was observed that the mere fact that the provision concerning the taking of security appears later in section IV does not justify restricting the application of that provision only to the matters that precede it in the same section. To support this view, the Court referred to the observations made by Mellish L. J. in the case of Cohen v. S.E. Railway. In order to understand the position of the appellant, the Court considered it necessary to examine the overall purpose for which the Regulation was enacted. The Regulation is titled “A Regulation to limit the interference of the Zillah and City Courts of Dewanny Adawlut in the execution of wills and administration to the estates of persons dying intestate.” The purpose of limiting such interference is set out in section 1, which explains that the Regulation was introduced to eliminate uncertainties regarding the extent and manner in which judges of the Zillah and City Courts of Dewanny Adawlut in the provinces of Bengal, Behar, Orissa and Benares were authorised to intervene in cases where the deceased had left a will and appointed executors, or where the deceased died intestate leaving a real or personal estate. Section 1 also directs that, insofar as possible, the principle contained in section XV of Regulation IV of 1793 should be applied, namely that in suits concerning succession and inheritance the general rules for the guidance of the judges should be the Mahomedan laws for Mahomedans and the Hindoo laws for Hindoos. The Court noted that, before the Regulation was promulgated, the courts mentioned in the citation (1877) 2 E & D 253, 260 had indeed interfered in such matters. Consequently, the Regulation was enacted expressly to limit and define the scope of that interference. Accordingly, the Court held that the Regulation must be interpreted strictly as a piece of restrictive legislation. The Court also found it necessary to ascertain the kind of interference that these courts were previously exercising, although no specific material on that point had been presented. Section 11 of the Regulation provides that executors appointed under a will may assume control of the estate and carry out the terms of the trust without seeking the sanction of the judge of the Dewanny Adalat or any other government officer. This provision illustrates the role that executive officers were intended to play in the administration of estates. The Court further referred to historical material concerning the procedure followed under Indian rule for investing the successor of a landholder. Such material is recorded in Mr. Shore’s Minute on the rights of zamindars and talookdars, which appears in the proceedings of the Government Revenue Department dated 2 April 1788 and is printed on page 228 of the “Elementary Analysis of the Laws and Regulations (enacted by the Governor‑General in Council)” compiled by Harington, Volume 111. The specific details of the investing procedure are set out in appendix No. 9 to that note, which is reproduced in the volume.

Page 275 of the same volume contains an extract that shows the heir of a deceased zamindar was required to obtain permission from State authorities before taking control of the zamindary. The extract states that, upon a zamindar’s death, the heir or heiress had to send a petition describing the event to the dewan of the subah and to the roy‑royan, or, in the case of first‑rank landholders, directly to the subahdar, together with letters to all the principal court officials asking for their protection. When an heir or heiress who paid a large revenue to the State made this petition, the subahdar replied with expressions of condolence, an honorary dress for the heir and a present of shawls for the heiress. Similar letters of condolence were also sent by the dewan and the roy‑royan. After the funeral rites were completed, if the heir was of age, the dewan and the roy‑royan presented the heir to the subahdar; the subahdar then gave the heir a beetle leaf and an honorary dress, and finally allowed the heir to assume management of the zamindary. Harington described the zamindar as a landholder of a peculiar description that could not be defined by a single term. He noted that the zamindar could succeed to his estate by inheritance, but generally had to obtain renewal of his title from the sovereign or the sovereign’s representative by paying a peshkush or investiture fine to the emperor and by presenting a nuzranah or gift to the provincial delegates known as the Nazim. Harington recorded these observations in remarks submitted to Lord Comwallis in 1799 on Mr Law’s plan of settlement, and they are quoted on page 400 of the volume. The same work gives, on page 287, the form of the “munchalka” that the heir was required to execute before the State, and on page 289 it reproduces the “sand” that was traditionally issued to a zamindar. These steps were characteristic of the Mughal period, reflecting the theory that the sovereign ruler was the ultimate virtual proprietor of the soil. It appears possible that when the East India Company acquired sovereignty over the relevant provinces, heirs of zamindars and possibly other property owners might have approached the courts either to obtain such permission or to challenge a person who had taken possession on the basis of permission granted by a Company officer.

Regulation V of 1799 was enacted to limit the role of the Courts in these matters. The regulation stipulated that the Courts were not to interfere with the administrative procedures for obtaining permission, except when a party moved the Court for a purely judicial determination of title in a dispute over succession to an estate. In such cases the Court could intervene only to adjudicate the competing claims. Section 11, as previously noted, authorized executors named in a deceased person’s will to take charge of that person’s estate, thereby allowing the executors to carry out the provisions of the will without requiring further sanction from a judicial officer.

The regulation further stipulated that courts of justice were expressly barred from intervening in matters concerning executors except when a formal complaint was lodged alleging a breach of trust or any other misconduct by the executors. In such instances, the courts were required to take cognizance of the complaint in the same manner as they would with any ordinary civil suit, following the general rule set out in Section VIII of Regulation 111 of 1793. The courts had to proceed in accordance with the applicable regulations and were obliged to obtain the opinion of their law officers on any legal exception that might apply to the executors, as well as on the arrangements for administering the estate should the appointed executor be removed. Moreover, the judges were to consider all points of law that could arise, guided by the law of the parties as explained by the law officers, and were subject to any modifications issued by the Governor‑General in Council in the form prescribed by Regulation XLI of 1793.

Section III of the same regulation dealt with the situation where a person died intestate leaving a single heir—such as a son or another relative—who, under the prevailing local law, was entitled to inherit the entire estate. The provision declared that an heir who was of full age and competent to manage the estate did not need to obtain permission from the courts in order to take possession, provided that the possession could be taken without the use of force. The courts were instructed not to interfere in such cases unless a regular complaint was filed, and even then they were to follow the general regulations that were in force until 1903, after which the Civil Procedure Code governed the proceedings. Consequently, an heir could lawfully assume control of the estate without any judicial sanction if he could do so peacefully, while any competing claimant was required to initiate a regular complaint before the courts to contest the possession. The regulation set out a complete procedural code for the courts to resolve disputes between claimants each asserting a right to the whole estate. Section IV extended a similar procedural scheme to cases where the intestate left multiple heirs. If those heirs mutually agreed to appoint a single manager to oversee the undivided estate, they were permitted to take possession collectively, and the courts were again prohibited from intervening unless a formal complaint was presented, following the same pattern as in the single‑heir scenario. The provisions of Regulation XI of 1793 were also applicable to these matters.

In this matter, the Court examined the provisions contained in the first part of section IV of Regulation V of 1799. That Regulation had been enacted to remove certain limitations on the operation of Hindu and Mahomadan law concerning the inheritance of landed property that was liable to revenue payment to the Government. Section 11 of the Regulation stipulated that where any zamindar, independent talukdar or other actual proprietor of land died without leaving a will and without having declared, either in writing or verbally, the manner in which his landed property should devolve after his death, and where such death produced two or more heirs who, by virtue of Hindu or Mahomadan law, might each be entitled to a portion of the deceased’s landed property, those heirs were to succeed to the respective shares to which they were legally entitled. The Regulation, however, did not contemplate a situation in which a deceased person died intestate leaving only a single heir, because in that scenario the heir would inherit the whole estate and there was no need to define any share‑allocation scheme. Section III further provided that in the circumstances described in section 11, the several persons succeeding to the estate were at liberty, if they so desired, to hold the property as a joint undivided estate. If any of the co‑heirs wished to obtain separate possession of their individual shares, the Regulation directed that a division of the estate should be carried out in accordance with the method laid down in Regulation XXV of 1793. Moreover, where more than two sharers existed and any two or more of them preferred to retain their interests as a joint undivided estate, they were permitted to unite their shares. Thus, section III catered both to co‑heirs who wished to keep the estate joint and to those who sought separate possession of their portions.

Section IV dealt with the case of co‑heirs who elected to hold the property as a joint undivided estate. It mandated that a manager for such a joint estate be appointed in accordance with the rules contained in sections XXIII to XXVI of Regulation VIII of 1793. Consequently, the provision for a common manager of persons holding a joint undivided estate originated in Regulation XI of 1793. The first part of section IV of Regulation V of 1799 was consistent with this earlier scheme, because it provided that when there were multiple heirs who, in principle, agreed to appoint a common manager, they required no further permission to take possession of the property. The Court noted that if a complaint was filed by any one of the heirs—or by a person claiming to be an heir—on the ground that there was a disagreement among the heirs regarding unified administration through a common manager, the Court was obliged to resolve the dispute according to the general Regulations that prescribed the applicable procedural steps.

In this matter, the Court observed that the procedure to be followed by the Courts in cases where the deceased left a single heir was the same as that prescribed under section one hundred eleven. In addition to the general Regulations, a special rule was created for cases where the Court was approached to settle disputes among several claimants to the estate. That special rule required that, once a regular suit was filed, the Court must obtain good and sufficient security from the party who was in possession of the property, to ensure his compliance with the judgment that would be rendered in the suit. The Court noted that it might appear extraordinary to demand such security merely on the institution of a regular suit, but it explained that in earlier times it was considered necessary for a defendant to provide security for his appearance if he failed to accompany the officer serving the summons. Section five of Regulation four of 1793 required the Court to issue a summons directing the defendant either to appear in person before the Court together with the officer serving the summons, or to deliver to that officer sufficient security for appearance and for answering the complaint, either personally or through counsel. Order thirty‑eight of the present Code of Civil Procedure provides for demanding security for appearance in court and for securing compliance with the judgment only in specified circumstances. Sections three and four of the Regulation therefore covered the whole range of possibilities concerning the heirs of the deceased. The former dealt with the situation where there was only one heir, while the latter dealt with the situation where there were more than one heir.

The Court explained that the special provision in the latter part of section four, and the distinction made between the procedures for the two cases, arose because when there are multiple heirs who do not agree on a common manager for the entire estate, the provisions of section four do not allow any of them to take possession of the estate either individually or jointly. An agreement among the claimants regarding their respective shares, without an agreement on common management, does not give them the right to possess the estate. In the absence of such agreement, the original procedure that existed before the enactment of this Regulation continued to apply, requiring the heirs to obtain permission from an executive officer or from a court of justice before taking possession. Regulation five of 1799 made no provision for such situations. The Court therefore held that only when a dispute among the various claimants is brought before the Court does the matter become seized by the Court, and on a regular suit being preferred, the first step the Court must take on its own initiative is to demand good and sufficient security from the party in possession, who has clearly taken possession in defiance of the provisions of the first part of section four.

In the situation where a regular suit was filed after the matter was seized, the authority concerned was required, on its own initiative, to obtain a satisfactory and adequate security from the party who had taken possession in clear violation of the first part of section IV. Conversely, when the deceased left only one heir, section III authorized that heir to occupy the estate peacefully and lawfully. Any other claimant who disputed the heir’s title was therefore obligated to prove his case before a civil court according to the established procedural rules. The special rule contained in the latter part of section IV existed because one or more claimants might occupy the estate contrary to law, thereby acting against the statutory provision. It would have been unreasonable for the legislature to impose on the single heir, as contemplated in section III, the requirement to furnish security and, upon default, risk being forced to surrender possession to another claimant who challenged his title to the whole estate. Likewise, it would have been unreasonable to interpret the second part of section IV so that the peaceful possession of a person who claimed the entire estate as a sole heir could be jeopardized merely because another individual disputed that claim. The Court clarified that the term “complaint” used in the Regulation was intended to mean what is presently called a plaint in a civil action. Regulation III of 1793 had delineated the jurisdiction of the Dewanny Adawlut courts established in the defined districts and cities, as specified in section II of that Regulation, for the trial of civil suits at first instance. Section I made it clear that each district and city court was to be overseen by a single judge. Sections VIII and XVIII empowered those courts to take cognizance of all suits and complaints concerning, among other matters, succession or rights to real or personal property, while expressly prohibiting them from addressing any criminal matters except contempt and perjury committed in court. Section XIV used the word “complaint” in reference to a party now described as a plaintiff. These provisions together indicated that “complaint” in the Regulation signified a civil plaint rather than a criminal complaint. This interpretation was reinforced by section 2 of Regulation IV of 1793, which prescribed the procedure for receiving, trying, and deciding suits or complaints within the jurisdiction of the Dewanny Adawlut courts across the various districts. Section II expressly stated that no complaint could be received except from the plaintiff.

The Court observed that an answer to a complaint could be filed only by a defendant or by the defendant’s duly authorised vakil. It then held that each of sections 11, III and IV of Regulation V of 1799 constituted a complete code for addressing distinct situations. Section 11, the Court explained, applied where the deceased left a will and an executor had been appointed to administer the estate. Section III, on the other hand, dealt with the situation in which the deceased died intestate and left a sole heir, while section IV covered cases where the deceased died intestate leaving more than one heir. The Court supported this interpretation by pointing out that when the provisions of the Regulation were extended to other provinces, the three sections—namely sections II, III and IV—were not uniformly extended. In fact, only sections IV, V, VI and VII, and not sections 11 and III, were incorporated into the Central Provinces by the Central Provinces Laws Act XX of 1876. The Court rejected the High Court’s view that section III and the first part of section IV failed to address scenarios in which several persons each claimed to be the single heir, or where among several claimants some asserted heirship while others also laid claim to the estate. According to the Court, those sections were intended to contemplate precisely such disputes, because they provide for the interference of the courts on complaints lodged by other persons against the individual presently in possession of the property. Such complaints, the Court clarified, could arise only from claimants whose assertions to the estate—or to a portion of it—were not accepted by the other claimants asserting title. The Court further explained that the phrase “as in the case of a single heir” that terminates the first part of section IV serves to extend the limitation on judicial interference in cases where the deceased leaves more than one heir up to the same point described in section III, which governs the single‑heir situation. In other words, the restriction on court interference ends at the stage when a complaint is filed, and any subsequent interference must follow the procedure laid down in the General Regulations. The Court held that this wording could not be read so as to render the second part of section IV operative in matters falling under section III. Moreover, the Court found that the observations of Mellish L.J. in Cohen v. S.E. Railway were of little assistance in construing the scope of the second part of section IV with respect to its applicability to cases governed by section III, because those observations were made in a different context concerning the provisions of the Acts under consideration. The cited remarks of Mellish L.J. concerned whether certain provisions of the Railway and Canal Traffic Act applied solely to railway carriage or also to carriage by steamer, a question unrelated to the present interpretation of the Regulation.

The Court observed that the issue before it was even clearer than before, although the Irish decision had introduced some uncertainty. The language of the statute was considered unmistakable: “The provisions of the Railway and Canal (1877) 2 E & D 253. Traffic Act, 1854, so far as the same are applicable, shall extend to the steam vessels and to the traffic carried on thereby.” In the Court’s view, those words, read in their ordinary and natural sense, embraced section 7 together with every other provision of the Act. The Court therefore asked why any exemption should be permitted. The only argument offered was that the clause was not set out as a separate section but was placed at the conclusion of section 16, and consequently it was said to be limited to the matters dealt with in the preceding portions of that section. The Court expressed that it was unaware of any rule of statutory construction that would support such a limitation. It noted that only if an absurdity or inconvenience resulted from interpreting the clause as applying to the whole Act would it be reasonable to restrict its operation to clauses dealing with a particular subject‑matter; but if no such inconvenience arose from a broader construction, the clause should be given its full effect, including section 7 and the other sections. The Court further explained that the expressions to be interpreted in that case were not presented as a proviso or exception to the earlier provisions, but formed an independent enactment and were not separately numbered as a section. In section IV of the Regulation, the second part begins with the word “but,” signalling an exception to the first part and indicating that courts could intervene as prescribed in the second part when the deceased left more than one heir. Section XIX of Regulation XL of 1793, which was enacted to consolidate all regulations into a regular code, required that one part of a regulation be interpreted in light of another so that the whole could stand. That provision simply means that where an apparent inconsistency exists between different provisions of the Regulation, they should be harmonised. The Court held that in the absence of such a necessity, each provision must be read as complete in itself and given the meaning expressed in its wording. Accordingly, the observations of Mellish L.J. in Cohen’s case could not be applied to the construction of the second part of section IV with respect to its applicability to section 111. The Court found no inconsistency between sections III and IV that would compel a joint construction, and therefore concluded that each should be applied according to its own terms.

The Court explained that a special procedure was introduced to supplement the ordinary procedure applicable to the trial of suits on regular complaints when the deceased died intestate and left more than one heir. The Court held that the second part of section IV of the Regulation did not apply to cases where the deceased died intestate but left only a single heir who was entitled to inherit the entire estate. Such a situation, the Court observed, fell within the scope of section III of the same Regulation as expressly provided therein. Because of that determination, the Court found it unnecessary to examine the remaining contentions that had been raised by the parties. Accordingly, the Court allowed the appeal, set aside the order of the lower court, and dismissed the application that the respondents had filed before the District Judge under section IV of Regulation V of 1799. The Court also directed that the respondents should pay all costs incurred by the appellant throughout the proceedings. Before concluding the case, the Court drew the Government’s attention to the fact that the provisions in question appeared outdated and therefore required repeal. The Court noted that the Indian Succession Act together with the Code of Civil Procedure already provided ample power to protect the relevant rights. The Court further observed that the old provision, which had been enacted to remove doubts created by the Regulation of 1793, was therefore largely unnecessary. In its final order, the Court recorded that, in accordance with the majority opinion, the appeal was allowed with costs awarded to the appellant, and it formally marked the appeal as allowed.