1. Dispute over succession to an estate — Appointment of administrator under Rule 9, Bombay Regulation VIII of 1827 — Question of possession of the estate. (Para 1 , 2 , 4 , 5 )
Back
Next 
1964 Supreme(SC) 202
SUPREME COURT OF INDIA
P.B. GAJENDRAGADKAR, C.J.I., J.C. SHAH AND N. RAJAGOPALA AYYANGAR, JJ.
Mallappa Basappa Desai, Appellant
Versus
Mallappa Virabhadrappa Desai and others, Respondents.
Civil Appeal No. 553 of 1963.
Advocates appeared
Mr. G.S. Pathak, Senior Advocate (Mr. B. Dutta, Advocate, M/s. O.C. Mathur, J. B. Dadachinji and Ravinder Narain, Advocates of M/s. J. B. Dadachanji and Co., with him), for Appellants; Mr. S. T. Desai Senior Advocate, (Mr. Naunit Lal, Advocate with him), for Respondents Nos. 1, 3 to 5; Mr. A. G. Ratnaparkhi, Advocate, for Respondent No. 2.
Advocates:
A.G.Ratnaparkhi, B.DUTTA, G.S.PATHAK, J.B.DADACHAN, NAUNIT LAL, O.C.MATHUR, Ravindra Narayan, S.T.DESAI
A.G.Ratnaparkhi, B.DUTTA, G.S.PATHAK, J.B.DADACHAN, NAUNIT LAL, O.C.MATHUR, Ravindra Narayan, S.T.DESAI
Under Rule 9 of Bombay Regulation VIII of 1827, the relevant date for determining whether any claimant has taken possession of a disputed estate is the date of the commencement of the proceedings, not the date of the final order.
Headnote:(A) Bombay Regulation VIII of 1827 - Rule 9 - Appointment of administrator - Dispute over succession - Requirement that none of the claimants has taken possession - The relevant point of time by reference to which the requirement as to possession has to be judged is the date of the commencement of the proceedings, whether started by an application of a claimant or suo motu by the Judge. Possession obtained after the commencement of the proceedings does not preclude the appointment of an administrator. (Para 10)
(B) Bombay Regulation VIII of 1827 - Rules 8 and 9 - Nature of proceedings - Decisions recorded by the Court under these Rules are summary in nature and do not purport to bar the jurisdiction of the civil courts for the final determination of questions of title. (Para 11)
Facts of the case:
Following the death of a property holder, multiple claimants disputed the right of succession to the estate. Several applications were filed before the court for the appointment of an administrator and for recognition of heirship. One claimant asserted that he was in possession of a substantial part of the immovable property, relying on revenue records and rent notes. However, it was found that these documents were obtained after the proceedings for the appointment of an administrator had already commenced. The lower court appointed an administrator to manage the estate until the right of succession was determined, a decision which was subsequently upheld by the High Court.
Findings of Court:
The court found that a dispute existed regarding the succession of the estate and that no claimant had taken possession of the property at the date the proceedings commenced. The evidence of possession produced by the appellant was subsequent to the commencement of the proceedings and therefore did not satisfy the requirement to prevent the appointment of an administrator.
Issues: Whether the relevant date for determining if any claimant has taken possession of the property, for the purpose of appointing an administrator under Rule 9 of Bombay Regulation VIII of 1827, is the date of the order or the date of the commencement of the proceedings.
Ratio Decidendi: The court ruled that the requirement that "none of the claimants has taken possession" must be determined as of the date the proceedings commenced. If no claimant was in possession at that time, the conditions for appointing an administrator are met. This interpretation prevents anomalous results where a party might secure possession during the pendency of the litigation to avoid the appointment of an administrator and aligns with the regulation's objective of ensuring a smooth, peaceful, and legal devolution of the estate. (Para 10)
Result: Appeal dismissed.
Judgement Key Points
Key Points: - Rule 9 provides for appointment of an administrator when no person on the spot is entitled and willing to take charge and when the right of succession is disputed between two or more claimants, none of whom has taken possession (!) . - The relevant date for possession is the date of commencement of the proceedings under the Regulation, not the date of the administrator’s order (!) (!) . - The appointment of an administrator is a summary measure aimed at peaceful devolution and does not bar later civil court actions to determine title; rights of claimants are not prejudiced by the appointment (!) (!) . - The higher courts upheld that if none of the claimants is in possession at the date of commencement, Rule 9 is satisfied and an administrator can be appointed (!) (!) . - The court clarified that rent notes or lis pendens arising after proceedings commence do not alter the possession assessment date for Rule 9 purposes (!) (!) . - The decision confirms that a certificate of recognition under Rules 2-8 is a summary determination and does not finalise title or preclude later civil suit (!) . - The appeal was dismissed, affirming the administrator’s appointment as valid under Rule 9 (!) .
How to interpret Rule 9 of Bombay Regulation VIII of 1827 to determine when an administrator may be appointed?
What is the date of possession to be considered for Rule 9 when there is a dispute over succession?
What is the effect of appointing an administrator on the rights of potential successors under Rule 8 and the broader civil court jurisdiction?
Legal Category Hierarchy
Table of Contents
2. Whether the relevant date for determining possession to preclude the appointment of an administrator is the date of the order or the date proceedings commenced. (Para 9 )
3. Rule 9 ensures smooth estate devolution; possession obtained after proceedings commence does not prevent the appointment of an administrator to manage the property. (Para 7 , 10 )
4. For appointing an administrator under Rule 9, Bombay Regulation VIII of 1827, possession must be determined as of the date the proceedings commenced. (Para 10 , 11 )
5. Appeal dismissed with costs. (Para 12 )
6. What is the relevant date for determining possession under Rule 9 of Bombay Regulation VIII of 1827?
The relevant point of time to judge whether any claimant has taken possession of the property is the date of the commencement of the proceedings, whether those proceedings were started by an application from a claimant or suo motu by the Judge. (Para 10 )
7. Does possession obtained after the commencement of proceedings under Rule 9 prevent the appointment of an administrator?
No. Possession obtained after the commencement of the proceedings does not make a difference, as the basic objective of Rule 9 is to provide for the smooth, peaceful, and legal devolution of the estate on the rightful owner. (Para 10 )
8. Does the appointment of an administrator under Rule 9 finally determine the right of succession to an estate?
No. Decisions recorded by the Court under Rule 9 are summary decisions and do not bar the jurisdiction of civil courts, which remain competent to finally determine questions of title and succession. (Para 11 )
Judgment
GAJENDRAGADKAR, C.J.I. :
The short question which this appeal raises for our decision is in relation to the construction of R.9 of Bombay Regulation VIII of 1827. Purporting to act under the said Rule the learned Additional District Judge at Bijapur has ordered that the Dy. Commissioner of Bijapur district be appointed the administrator for the management of the estate of deceased Kashibai Sangappa Gadigappa Desai who died on the, 1 st January, 1958. According to this direction, the Administrator has to manage the estate of the said deceased Kashibai including the scheduled property, both moveable and immovable, until the right of succession is determined by a competent court of law.The appellant Mallappa Basappa Desai challenged the propriety and the validity of this order by moving the Mysore High Court in its revisional jurisdiction under S. 115 of the Code of Civil Procedure. The High Court was, however, satisfied that there was no ground to interfere with the order passed by the learned Additional District Judge. Against this decision the appellant has come to this Court by special leave; and on his behalf Mr. Pathak has urged that the impugned order is not justified by the terms of R. 9. That is how the only question which we have to decide in the present case is about the construction of R. 9.
2. It appears that Sangappa Gadigappa Desai was the last male holder of the Desgat properties with which the present proceedings are concerned. These properties are extensive and yield substantial income. On his death, his widow Kashibai came into possession of the said properties. The appellant alleges that in 1929 the Collector of the district held that the appellant s father was the nearest male reversioner to the estate left by Sangappa Desai. In 1943, the appellant s father died. In 1946 again an enquiry was held and it is alleged by the appellant that he was found to be the eldest male member of the eldest branch of the family, and as such was entitled to succeed to the Desgat and other properties left by Sangapa. Even so, Kashibai continued to be in uninterrupted and exclusive possession of the properties until she died on the lst January, 1958. On the 7th January, 1958,the appellant, filed an application before the Mamlatdar praying that his name should be entered in the Record of Rights in respect of lands of the Jainaput Desgat estate. This application led several other applications by different persons who claimed to be entitled to succeed to the estate. These respective applicants are the six respondents to the present appeal. Respondent No. 1 filed Application No. 1 of 1958 under S. 192 of the Indian Succession Act, 1925, on the 8th January, 1958. On the same day, respondent No. 1 applied for the appointment of a Commissioner and an ex parte order was passed appointing Mr. Managoli as the Commissioner. The Commissioner made an inventory and the ex parte order passed appointing him as such Commissioner was later confirmed. On the 9th January, 1958, respondent No. 2 filed Application No. 2 under Bombay Regulation VIII of 1827. On the 5th February, 1958, respondents 3 and 4 filed Application No. 4/ 1958 under Rules 9 to 10 of the said Regulation. On the 6th February 1958, respondent No. 2 filed Application No. 5/1958 under S.192 of the Indian Succession Act. On the 10th February, 1958, respondent No. 6 filed a similar application No. 6/1958 under Regulation VIII of 1827. That is how these five applications raised a common question about the succession to the estate of which Kashibai was in possession as the widow of her deceased husband Sangappa Desai.
3. It appears that on the application made by the appellant for mutation of his name in the Record of Rights the Tehsildar made an order on the 27 February, 1958 directing that the appellant s name should be shown as superior holder in respect of the lands forming part of the Desgat estate. That order was challenged by respondents 1 to 4 by appeals referred before the
