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GAUHATI HIGH COURT
W. A. SHISHAK, J.
Lalbiakthangi -Appellant
Versus
H.Duna, Opposite party -Respondent
Civil Revision No. 4 of 1992
Decided On : 27-04-1994
ORDER 39 RULE 10 CPC - PROBATE - ORDER TO DEPOSIT COMPENSATION MONEY - NOT SUSTAINABLE - NO SUIT FILED - NO ADMISSION BY PARTY THAT MONEY HELD AS TRUSTEE - CONDITIONS OF RULE NOT SATISFIED.
Fact of the Case:
Petitioner challenged the order passed by the Magistrate 1st Class of the Additional Subordinate District Council Court, Aizawl, directing the petitioner to deposit Rs. 50,43,360/- or a security of the like amount into the Court until the disposal of the case within 15 days from the date of the order. The impugned order was passed under Order 39, Rule 10, C.P.C. The opposite party filed an application for probate of an alleged "will" dated 2nd August, 1964 purported to have been left by one Shri Thangvunga who died in 1964. The petitioner is the granddaughter of the deceased and the opposite party is her brother-in-law. The petitioner contended that the application for probate was not maintainable as the opposite party had no blood relationship with the deceased and that the application was filed after a lapse of 26 years from the date of death of the testator without any reason for the delay. The petitioner also contended that the land in question was allotted to the deceased by the erstwhile Mizo District Council and after his death, the land was possessed and developed by his daughter, the petitioner's mother. The Government of Mizoram issued a fresh Garden Pass in the name of the petitioner's mother and subsequently, land settlement certificates were issued in respect of the land in the names of the petitioner and three others. The petitioner also contended that the land was acquired by the Government for the use of BRTF and compensation was awarded in her name. The petitioner argued that the impugned order directing her to deposit the compensation money or security was not sustainable under Order 39, Rule 10, C.P.C. as no suit had been filed and the opposite party had not established a prima facie case.
Finding of the Court:
The court held that the impugned order passed under Order 39, Rule 10, C.P.C. was not sustainable as the conditions of the rule were not satisfied. The court observed that the subject matter of the suit was not money or some other thing capable of delivery and that the opposite party had not admitted that he held the money as a trustee for the petitioner or that it belonged or was due to the petitioner. The court also noted that the matter needed early disposal and directed the court below to dispose of the case at the earliest and at any rate not later than three months.
Issues: 1. Whether the impugned order passed under Order 39, Rule 10, C.P.C. was sustainable? 2. Whether the conditions of Order 39, Rule 10, C.P.C. were satisfied in the present case?
Ratio Decidendi: The court held that the impugned order was not sustainable as the conditions of Order 39, Rule 10, C.P.C. were not satisfied. The court observed that the subject matter of the suit was not money or some other thing capable of delivery and that the opposite party had not admitted that he held the money as a trustee for the petitioner or that it belonged or was due to the petitioner.
Final Decision: The court allowed the petition and set aside the impugned order. The court directed the court below to dispose of the case at the earliest and at any rate not later than three months.
ORDER:- In this Revision Petition, the petitioner impugns order dated 12-8-1992 passed by Smt. Marli Vankung, Magistrate 1st Class of the Additional Subordinate District Council Court, Aizawl in P. No. H.C. 188/91, directing the petitioner to deposit Rs. 50,43,360/- or a security of the like amount into the Court until the disposal of the case within 15 days from the date of the order. The impugned order was passed under Order 39, Rule 10, C.P.C.
2. Facts of the case as contended on behalf of the petitioner, in a nutshell, may be stated. The opposite party filed an application for probate of an alleged "will" dated 2nd August, 1964 purported to have been left by one Shri Thangvunga who died in 1964. Said Thangvunga was the maternal grandfather of the petitioner. The opposite party is the brother-in-law of the petitioner. It is contended that since the opposite party has no blood relationship with late Thangvunga, the application for probate filed by him is not maintainable. It is also contended that the said application was filed after a lapse of 26 years from the date of death of the testator of the said will and no reason whatsoever has been shown for the delay. The application for probate was contested by the petitioner questioning the maintainability of the application.
3. Shri Thangvunga was survived by his only daughter Smt. Chhanhimi who also died in the year 1988. The present petitioner is one of the daughters of said Chhanhimi.
4. Some time in 1958, late Thangvunga was given permit in respect of a plot of land at Zemabawk by the erstwhile Mizo District Council. The said pass/permit issued as stated was for the purpose of use of the land for a certain period.
5. After the death of Shri Thangvunga, his daughter Chhanhimi continued to possess and develop the said land. Considering the long and continuous possession of the land by the petitioner, by making steady development, the Government of Mizoram issued fresh Garden Pass No.93/76 over the said land to Smt. Chhanhimi. It is averred that Garden Pass No.93/76 was issued after cancelling pass No. 115/58 which was issued to late Thangvunga.
6. During the life time of smt. Chhanhimi the entire land covered by Garden Pass No. 93/76 was partitioned into 4 plots and settlements were made by the Government of Mizoram in respect of each plot by issuing land settlement certificates in 1986 in respect of 4 persons viz.,(1) Smt. Chhanhimi (daughter of late Thangvunga), (2) Smt. Lalbiakthangi (daughter of Smt. Chhanhimi), (3) Darthanpuii and (4) Betty Zairemmawii. After the death of Chhanhimi in 1988, the plot of land covered by land settlement certificate No. 2128/86 issued in the name of Chhanhimi was transferred to the petitioner. The petitioner also got land settlement certificate No. 2127/1986 in her personal name. It is contended that once land settlement certificates were duly issued by the competent authority, the lands in question became heritable and transferable. It is also further contended that sometime in 1988, the land of Chhanhimi covered by LSC No. 2128/86 was also mutated in the name of the petitioner after the death of her mother. The lands in question covered by land settlement certificates 2128-1986 and 2127/1986 were acquired for the use of BRTF sometime in 1990. It is averred that before acquisition was made, necessary enquiry as regards the ownership and rights over the said plots of land was made. Compensation was subsequently awarded in respect of the said lands in the name of the petitioner. It is, therefore, averred that the petitioner was legally entitled to receive the compensation money in respect of the two plots of land in question. It is also averred that the two other plots of land for which land settlement certificates were issued in respect of the other two persons vide LSC No. 2130/86 and 2129/86 were also acquired and compensation has also been duly paid. It is stated by the petitioner that the opposite party has not taken any grievance
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