Judgment

SARKAR, J. (For himself and S. K. Das J.) :

Raja Prosanna Deb, Raikat, the proprietor of the Baikunthapur Raj Estate, in the district of Jalpaiguri in the West Bengal, died intestate,on December 4, 1946. The Raja left behind him a widow, Rani Asrunmati Debi, now deceased and the appellant Prativa Bose, the daughter by her Rani Asrunmati took possession of the estate on the Raja s death.

2. On August 7, 1947, the respondent Rupendra instituted a suit in the Court of the Subordinate Judge of Jalpaiguri, against Rani Asrunmati and certain other agnatic relations of the Raja for a declaration that as the Raja s eldest son by another wife Ram Ranchi, he was the sole lawful heir and entitled to the exclusive possession of the estate which was an impartible estate and governed, by at rule of primogeniture, and for possession and other consequential reliefs. Rani Ranchi was a lady belonging to the Lepcha tribe and the respondent Rupendra alleged that the Raja had married her according to the Gandharba form. The suit was contested by Rani Asrunmati and the agnatic relations who denied that there had been any marriage between the Raja and the mother of the respondent Rupendra. The suit was transferred to the High Court at Calcutta by an order made on April, 12, 1949 under Cl. 13 of its Ltters Patent. The respondent Rupendra made an application to the High Court in that suit for appointment of a receiver but it was dismissed on July 29, 1952. There was an appeal from this order but the records do not show that it succeeded. It appear that two agnatic relations, namely, Kumar Guru Charan and Kumar Jitendra filed suits in the High Court at Calcutta each claiming title to the estate as the sole heir of the deceased Raja. All these suits are still pending.

3. On January 5, 1954, Rani Asrunmati died and thereupon the appellant Prativa Bose took possession of the estate claiming title to it. Since then she has been and still is in possession.

4. On March 31, 1954, the respondent Rupendra filed an application under S.4,of the Bengal Regulation V of 1799 in the Court of the District Judge of Jalpaiguri for an order calling upon the appellant Prativa Bose to furnish security for compliance with the judg- ment that may be passed in the suit filed by him. The learned District Judge dismissed the application on two grounds. He first held that S. 4 of the Regulation did not apply to a case where a person died intestate leaving a single heir and the dispute was between several persons claiming to be that heir. Then he held that the application by the respondent Rupendra was barred under Art, 181 of the First Schedule to the Limitation Act.

5. The respondent Rupendra moved the High Court at Calcutta in revision against the order of the learned District Judge. The High Court disagreed with the learned District Judge on both the points and set aside his order and directed him to "exercise his special jurisdiction under S. 4 of the Regulation and take sufficient security from the opposite party Prativa Bose. " The present appeal is by Prativa Bose against the order of the High Court.

6. The object of the Bengal Regulation V of 1799 appears to have been "to limit the interference of the Zila..... Courts of Diwani Adalat in the execution of wills and administration to the estate of persons dying intestate." The first section is in the nature of a preamble, and so far as relevant, sets out the object of the Regulation as earlier stated. Section 2 deals with the case of the death of a person leaving a will and appointing an executor where the heir of the deceased is not a disqualified landholder subject to the superintendence of the court of wards. It states that the executor is to take charge of the estate without any application to the Judge of Diwani Adalat or any other officer of the Government and it prohibits the courts of Justice from interfering in such cases except on a regular complaint against the executor. Sections 3,4 and 5 (the last so far as