Mallappa Basappa Desai vs Mallappa Veerabhadrappa Desai

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 553 of 1963

Decision Date: 28 August 1964

Coram: P.B. Gajendragadkar, J.C. Shah, N. Rajagopala Ayyangar

In the matter titled Mallappa Basappa Desai versus Mallappa Veerabhadrappa Desai and others, the Supreme Court of India rendered its judgment on 28 August 1964. The decision was authored by Chief Justice P B Gajendragadkar, who was joined by Justice J C Shah and Justice N Rajagopala Ayyangar. The petitioner was Mallappa Basappa Desai, while the respondents comprised Mallappa Veerabhadrappa Desai together with additional parties. The judgment bears the citation 1965 AIR 658 and 1965 SCR (1) 168, and it concerns the Bombay Regulation of 1827, specifically rule 9, which deals with the requirement of possession by one of the claimants at the relevant date. The headnote of the judgment explains that when a district court appoints an administrator for a deceased person’s estate under rule 9 of the Bombay Regulation VIII of 1827, the court must determine whether any claimant was in possession of the property on the date the proceedings under the Regulation were commenced. The commencement may occur either through an application filed by a claimant or by action of the judge on his own motion. In either scenario, the date that governs the assessment of possession is the date the proceedings begin, not the date on which the administrative order is finally issued.

The case proceeded as a civil appeal numbered 553 of 1963, filed by special leave against the judgment and order dated 27 February 1963 delivered by the Mysore High Court in Criminal Revision Petition 476 of 1962. Counsel for the appellants included S C Agarwal, R K Garg, D P Singh, M K Ramamurthi, A Shankar Alva and M Veerappa, representing appellants numbered one, three and four. Counsel for the respondents comprised Lily Thomas, K Rajendra Chaudhuri and K R Chaudhuri, who represented respondents numbered one through five. The judgment of the Supreme Court was delivered by Chief Justice Gajendragadkar. The principal question that the appeal raised concerned the interpretation of rule 9 of Bombay Regulation VIII of 1827. Acting under that rule, the learned Additional District Judge at Bijapur had directed that the Deputy Commissioner of Bijapur District be appointed as administrator to manage the estate of the deceased Kashibai Sangappa Gadigappa Desai, who had died on 1 January 1958. The order required the administrator to oversee both movable and immovable scheduled property of the deceased until a competent court determined the right of succession. Mallappa Basappa Desai, the appellant, challenged the propriety and validity of this appointment by filing a revision before the Mysore High Court under section 115 of the Code of Civil Procedure. The High Court, however, held that there was no sufficient ground to set aside the Additional District Judge’s order, and the appellant consequently approached this Court seeking relief.

The petition was entertained by the Court on special leave, and counsel for the petitioner, Mr Pathak, contended that the order under review could not be sustained on the basis of the language of rule 9 of Bombay Regulation VIII of 1827. Consequently, the sole issue for determination in this proceeding was the proper construction of that rule. The factual backdrop disclosed that Sangappa Gadigappa Desai had been the last male proprietor of the Desgat estates which formed the subject of the present dispute. These estates were described as extensive and capable of generating significant income. Upon his death, his widow, Kashibai, succeeded to possession of the entire property. The petitioner asserted that in 1929 the district Collector had recorded that the petitioner’s father was the nearest male reversioner to the estate left by Sangappa Desai. The petitioner’s father subsequently died in 1943. A further inquiry conducted in 1946, according to the petitioner, identified him as the eldest male member of the senior branch of the family, thereby entitling him to succeed to the Desgat and other assets bequeathed by Sangappa. Notwithstanding these findings, Kashibai retained uninterrupted and exclusive possession of the estates until her death on 1 January 1958. Shortly thereafter, on 7 January 1958, the petitioner filed an application before the Mamlatdar requesting that his name be entered in the Record of Rights as owner of the lands comprising the Jainapur Desgat estate. That filing triggered a series of further applications by various claimants who asserted their own rights to succeed to the estate; these claimants constitute the six respondents who now appear before this Court.

Respondent No 1 lodged Application No 1 of 1958 under section 192 of the Indian Succession Act, 1925, on 8 January 1958, and on the same day applied for the appointment of a Commissioner, resulting in an ex‑parte order appointing Mr Managoli as Commissioner. The Commissioner subsequently prepared an inventory, and the initial ex‑parte order appointing him was later confirmed. Respondent No 2 filed Application No 2 on 9 January 1958 under Bombay Regulation VIII of 1827. On 5 February 1958, respondents 3 and 4 submitted Application No 4 of 1958 invoking rules 9 and 10 of the same Regulation. Respondent No 2 again filed Application No 5 of 1958 on 6 February 1958 under section 192 of the Indian Succession Act. Finally, respondent No 6 filed Application No 6 of 1958 on 10 February 1958, also under Regulation VIII of 1827. Collectively, these five applications raised an identical question concerning the succession to the estate that Kashibai, as the widow of Sangappa Desai, continued to possess. The petitioner’s request for mutation of his name in the Record of Rights prompted the Tehsildar, on 27 February 1958, to issue an order declaring the petitioner as the superior holder of the lands forming part of the Desgat estate. That order was subsequently contested by respondents 1 through 4.

In this case the respondents initially filed appeals before the Assistant Commissioner of Bijapur, but those appeals were dismissed and the order of the Tehsildar was affirmed on 17 May 1958. Consequently the respondents approached the Mysore Revenue Appellate Tribunal exercising its revisional jurisdiction. By an order dated 5 December 1958 the Tribunal allowed the revision applications and directed that the names of the respondents be entered as superior holders together with the appellant. The appellant then invoked article 227 of the Constitution and applied to the Mysore High Court; the High Court allowed the appellant’s application, set aside the Tribunal’s order and reinstated the order of the Assistant Commissioner. That decision was pronounced on 7 December 1959. Thereafter, on 18 January 1960, an Additional District Judge who had been hearing several applications filed by respondents 1 to 6 concluded that a case existed for appointing an administrator to the disputed property under rule 9 of the Regulation. Accordingly the judge issued an order appointing an administrator, and that order forms the subject‑matter of the present appeal. The appellant challenged the judge’s order before the Mysore High Court, but the challenge was unsuccessful, bringing the matter before the Supreme Court on appeal.

Before addressing the construction of rule 9, the Court set out the factual findings of the Additional District Judge. The judge observed that a dispute existed concerning the succession to the estate left by the deceased Kashibai, with several persons having filed applications asserting their respective claims to succeed to that estate. He further found that none of the parties before him could be said to have taken possession of the estate; in other words, the estate was the subject of a contested claim by two or more persons and no claimant had actual possession. On behalf of the appellant it was submitted that a substantial portion of the immovable property, consisting of agricultural lands, was in his possession, and the appellant relied on rent notes executed by tenants who were cultivating those lands. The judge held that those rent notes were created after the commencement of the proceedings, and therefore they could not support the appellant’s claim. He also expressed the view that the rent notes would be subject to the doctrine of lis pendens. Regarding the movable property, it was undisputed that the movables were in the custody of the Court; a Commissioner had been appointed to make an inventory and, after the inventory was completed, the movables were taken into Court possession. Based on these findings the judge concluded that rule 9 was applicable, appointed an administrator, and authorised the administrator to take charge of the disputed properties.

In this case, the appellant appealed against the order that had been passed by the learned Additional District Judge by invoking section 115 of the Code of Civil Procedure before the High Court. The High Court examined whether the issue of the appellant’s possession of the disputed property was a question of fact. It held that because the question related to factual possession, the finding recorded by the learned Additional District Judge could not be reviewed under section 115. The High Court also accepted the appellant’s submission that the learned Additional District Judge might have erred in concluding that the rent notes executed in favour of the appellant after the commencement of the present proceedings were barred by the doctrine of lis pendens. However, the High Court observed that this alleged error did not alter the overall conclusion that the appellant was not in possession of the properties at the date when the proceedings began.

It was further noted that the mutation in favour of the appellant effected by the revenue authorities and the rent notes obtained by the appellant from tenants who were actually cultivating the agricultural lands were both created after the commencement of the present proceedings. Both the learned Additional District Judge and the High Court had applied the principle that the decisive date for determining possession was the date on which the suit was instituted. The correctness of that approach was contested before this Court by counsel for the appellant, identified in the record as Mr Pathak.

The Court then turned to the statutory framework governing the administration of estates. Bombay Regulation VIII of 1827 dealt with the formal recognition of heirs, executors and administrators, and with the appointment by the courts of administrators and managers of property. The preamble of the Regulation expressed the general policy that, where the right of succession was not disputed, heirs, executors or legal administrators of a deceased person should be permitted to take charge of the estate or to sue for recovery of estate property without needing to involve the courts. Nevertheless, the preamble also recognised that in certain situations it was necessary for the heirs, executors or administrators to secure a certificate of heirship, executorship or administration from the Zila Court. It further explained that when there was no individual locally entitled or willing to assume charge of the deceased’s property, or when succession was contested among two or more claimants none of whom had taken possession, it became essential for the Zila Court to appoint an administrator to manage the estate.

In accordance with the policy articulated in the preamble, the Regulation framed a series of rules. Rule 1 empowered a legal heir, executor or administrator to assume management of the property or to institute suit for recovery of the property, in conformity with the law or usage applicable to the disposal of such property, without requiring any prior application to the court for formal recognition. Rule 2, by contrast, provided that if an heir, executor or administrator desired official recognition, he could move the court for such recognition. Rules 3 through 6 were then intended to prescribe the procedure by which an application for recognition should be dealt with.

Rule nine of the Regulation dealt with the situation in which no person was present who was either entitled or willing to take charge of the property of a deceased individual, when the right of succession was contested by two or more claimants, none of whom had taken possession, or when the heirs were unable to manage their affairs because of infancy, insanity or another disqualification, and when no close relative was available to act on their behalf. The rule empowered the Judge having jurisdiction over the property to appoint an administrator to manage the estate until such time as the lawful heir, executor or administrator appeared, until the succession dispute was finally resolved, or until the heir’s disqualification was removed, as appropriate. Once satisfied of the facts, the Judge was required to direct the appointed administrator to surrender the property to the rightful person, together with a complete account of all receipts and disbursements made during the period of administration.

In the matter before the Court, the clause of Rule nine that was relevant was the one stating that where the right of succession is disputed between two or more claimants and none of them has taken possession, an administrator may be appointed. Both parties agreed that the succession rights were indeed contested before the Additional District Judge. The core dispute, however, concerned whether any of the claimants had actually taken possession of the property. The appellant argued that at the moment the Additional District Judge appointed an administrator, the appellant already possessed the bulk of the properties. Accordingly, the appellant claimed that the statutory condition requiring that no claimant be in possession prior to the appointment of an administrator was not satisfied. The appellant further submitted that the rent notes obtained from tenants after the commencement of the proceedings should not give rise to a lis pendens issue, and that the sole question before the Court was whether any claimant was in possession, a question he believed should be answered in his favour because he produced rent notes signed by tenants cultivating the lands. The Court rejected this submission as unfounded. The Court held that the proper enquiry was whether any claimant was in possession of the disputed property at the date when the proceedings under the Regulation began, irrespective of later possession or subsequent rent arrangements.

The Court explained that a proceeding may be started either by a claimant’s application or suo motu by the Judge, and in both cases the date for assessing possession is the date the proceedings commenced. If a claimant had obtained possession shortly after the death of the last holder but before the commencement of the proceeding, he could demonstrate possession at that earlier time. However, when no claimant was in possession on the commencement date, the condition prescribed in rule nine is fulfilled because any possession acquired thereafter does not affect the requirement. Accepting the appellant’s interpretation would produce inconsistent outcomes, as illustrated by a hypothetical where none of the claimants possessed the property when the District Judge issued his order. If the dispute later reached the High Court under section 115 and a claimant then obtained possession, the appellant’s view would compel the High Court to set aside the administrator appointment. The reason is that, under that construction, possession existing after the commencement of the proceedings would negate the basis for the appointment. Rule nine, as embodied in LISup./64-12, is intended to ensure a smooth, peaceful and lawful transfer of the estate to its rightful owner. Consequently, when multiple persons dispute title and none can secure possession soon after succession opens, rule nine activates and authorises the appointment of an administrator. The appointment of an administrator does not prejudice any claimant’s asserted right of succession, but merely places the property under the administrator’s charge pending a final determination by a competent court. Accordingly, the Court affirmed that the lower courts were correct in finding that the appellant was not in possession at the commencement of the present proceedings. The Court also held that a genuine dispute existed among two or more claimants, thereby meeting the essential condition of rule nine and justifying the appointment of an administrator. The judgment further noted that rule two allows an executor, heir or administrator to apply for formal recognition as a safeguard, and the subsequent rules prescribe the procedure for such applications. If an application succeeds, a certificate is issued; if it fails, the certificate is refused. Nevertheless, rule eight expressly provides that a judge’s refusal to grant a certificate does not finally determine the applicant’s rights, and the applicant remains competent to institute a suit to assert his claim.

The Court observed that the appellant intended to institute a suit for the purpose of establishing his claim to the property in question. It further noted that both Rules 8 and 9 expressly state that a decision recorded by the Court under those Rules is a summary decision and that such a decision does not intend to deprive the civil courts of their jurisdiction to finally determine questions of title. Accordingly, the Court explained that the summary nature of the decision leaves the substantive title dispute to be decided by a civil suit, if one is filed. The Court then turned to the specific requirement of Rule 9 concerning the date of possession. It held that the relevant clause of Rule 9 mandates that the date of possession be fixed as the date preceding the commencement of the proceedings. In other words, for the purposes of applying Rule 9, possession must be shown to have existed before the suit or other proceedings were started. Having applied this principle, the Court concluded that the appellant’s appeal could not succeed. Consequently, the appeal was dismissed, and the appellant was ordered to bear the costs of the proceedings. The final order therefore dismissed the appeal with costs.