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Judgment
These revision petitions have been filed in respect of two orders of the Subordinate Judge of Mayavaram, dated 29th March, 1924 and 2nd
May, 1924. The proceedings before him were u/s 16, Clause 7 of Madras Regulation III of 1802, and the learned Judge by his first order directed
that affidavit evidence should be adduced and by his second order refused permission to the petitioner before us to cross-examine the deponents
to the affidavits.
The facts are shortly these. The Pandara Sannadhi of Dharmapuram Mutt died on or about the 28th October, 1923. The Sub-Magistrate having
jurisdiction over the locality, looked and sealed the rooms containing some moveables belonging to the Mutt and sent up a report to the Collector
of Tanjore and he directed the Sub-Magistrate to hand over the keys of the rooms to the Subordinate Judge of Mayavaram, who was requested
by the Collector to take proceedings under Regulation III of 1802. The present petitioner who is the Pandarasannadhi of Swargapuri Mutt put in a
petition on the 5th November, 1923 stating that as the late Pandarasannadhi died without appointing a successor he as the head of a dependant
Mutt was entitled to succeed. The respondent was a rival claimant who also filed a petition claiming that he was the rightful successor on the
ground that he was elected Pandarasannadhi of the Dharmapuram Mutt by the Thambirans of that Mutt. The petition of the petitioner was O. P.
No. 58 of 1923, and the petition of the respondent was O. P. No. 60 of 1923.
The learned Vakil for the petitioner has contended that his petition is in the nature of an original petition, and that the procedure applicable is that
applicable to suits and that therefore he is entitled to ask that evidence should be taken viva voce. The arguments turned on the question to some
extent, whether the proceeding was a regular petition or an interlocutory application, but on the view we take of the scope of the Regulation, we
are of the opinion that these questions do not arise.
The Regulation in question deals with rules of Civil Procedure and contains also various other provisions. In the early part of 19th century, this
measure was considered quite adequate, but later on, a more elaborate system was devised and practically the whole Regulation has been
repealed, its place being taken by the CPC and the Civil Courts Act. Curiously enough, a few sections have been left unrepealed, although we are
unable to discover any ground for the retention at any rate of a large portion of what has not been repealed.
Now, turning to the Regulation, we find that it contained 29 sections and that all of them have been repealed excepting Section 16, cls. 2 to 7.
Section 2 referred to the filing of a complaint, that word being the equivalent of a plaint, and procedure was laid down in the succeeding sections in
regard to trial of suits. Section 16, Clause 2, enacts that when a Hindu or a Mussalman dies leaving a will and appointing an executor, Courts of
Justice are not to interfere except upon a regular complaint Drought against his executors for a breach of trust or otherwise.
The third clause refers to the case of a Hindu or a Mussalman dying intestate but leaving an heir and the Courts are restricted from interference
in such cases except upon a regular complaint. The fourth clause enacts that if there are more heirs than one to a person dying intestate and there is
no disagreement, the Courts are not to interfere without a regular complaint. But, if there are disputes between the several claimants on a regular
suit being filed by the party out of possession, the Judge is required to take security from the party in possession and if the latter is unable to give
security, the Judge may give possession to the plaintiff himself on his giving security. But this act of the Judge is merely an act of administration for
the benefit of the heir who may eventually succeed in the suit. Then follows the fifth clause. The first part of which is merely a continuation of the
fourth clause. If neither party is able to give security, an Administrator is to be appointed for the management of the estate until the disposal of the
suit.
Pausing here for a moment, we fail to see of what use these provisions are at the present day. Nobody would think of resorting to them because
under the CPC parties can obtain interim orders in regard to protection of property which is the subject of a suit.
Now we come to part 2 of Clause (5). Where there is no person authorised and willing to take charge of the landed estate of a deceased
person, the Judge is authorised to appoint an Administrator for its management, until the legal heir to the estate or other person entitled, shall attend
and claim the same. If the Judge is satisfied that the claim is well-founded, the Administrator shall deliver over the property to him with an account
of the Administration. This is the effect of Clause (5), part 2, but we have seen that when there are several claimants, the Regulation specially
enacts in cls. 2, 3, 4, 5 and 7 that their rights are to be adjudicated on in a regular suit. But Clause 5, part 2 does not contemplate a suit and is it
intended that under that clause if there are several claimants the Court is to give a decision although there is no suit ? It seems to us that this
construction would be contrary to the scheme of the Regulation. What is meant by part 2, Clause 5, seems to be that if there is a single claimant the
Judge on being prima facie satisfied as to his title, is to direct the interim Administrator to transfer possession to him. It is not intended that if more
than one claimant appears the rights of the several claimants are to be decided without a suit. Under Clause 4 and 1st part of Clause 5, if one of
the rival claimants is in possession, the title to the estate can be decided only in a suit. But if neither party is in possession (2nd part of Clause 5
applies then) is there anything to suggest that the Court is to decide without there being a suit ?
We are not concerned with Clause 5, but with Clause 7. We have however construed the previous clause, because there can be no doubt that
the same interpretation in this respect must be placed both upon cls. 5 and 7.
Clause 7 enacts, that the Judge on receiving information that any person had died intestate leaving personal property and there is no claimant to
such property, shall adopt measures for its care and issue an advertisement "" requiring the heir of the deceased or any person entitled to receive
charge of his effects "" to attend and should any person attend and satisfy the Judge as to his title to the property, the same is to be delivered up to
him. Should no claim be preferred within 12 months, a report is to be transmitted to the Governor in Council. Clause 5, part 2 refers to real
property and Clause 7 refers to personal property. But the scope of both the clauses seems more or less identical. In our opinion Clause 7 (as
Clause 5, part 2 does) contemplates the case only of a single claimant and the words occurring in the clause such as "" heir of the deceased ""and
any person entitled "" also to a certain extent confirm our view.
The duty of a Judge, if more than one claimant appears before him, is to refer the parties to a regular suit. He has no jurisdiction, in our opinion,
to give any decision acting under this Regulation when more than one claimant appears and claims property under Clause 7 of Section 16.
As we have held that the Judge cannot decide the dispute at all, it is obvious we cannot direct him to take evidence viva voce or to permit the
petitioner to cross-examine the deponents to the affidavits.
The Civil Revision Petitions therefore fail and are dismissed, but in the circumstances without costs.