Case: Mallappa Basappa Desai Vs. Mallappa Veerabhadrappa Desai And Others

infancy, insanity or other disqualification, and have no near relations entitled and willing to take charge on their behalf, the Judge, within whose jurisdiction such property is, may appoint an administrator for the management thereof, until the lawful heir, executor or administrator appears, or the right of succession is determined, or the disqualification of the heir is removed, as the case may be, when the Judge on being satisfied of the facts, shall direct the administrator in charge to deliver over the property to such person, with a full account of all receipts and disbursements during the period of his administration".9. In the present case, the relevant clause is where the right of succession is disputed between two or more claimants, none of whom has taken possession it is common ground that the right of succession is disputed between the claimants who have moved the Additional District Judge. The point of dispute between the parties is whether any of the claimants has taken possession. The appellant contends that at the date when the administrator was appointed by the Additional District Judge he was in possession, and so, the requirement that none of the claimants should be in possession before an Administrator can be appointed is not satisfied. The argument is that the relevant date by reference to which the question of possession should be determined is, in the context, the date of the order, and if that be so, the appellant was in possession of the bulk of the properties and the appointment of an administrator was, therefore not justified. It is also urged in support of this plea that the fact that the rent notes were executed in favour of the appellant after the commencement of the present proceedings cannot obviously introduce considerations of lis pendens, and what the Court has to consider is just the bare question as to whether any of the claimants is in possession of the property or not, and the answer to this question should be in favour of the appellant because he produced before the Court rent notes executed by the tenants who were cultivating the lands in question.10. This argument is not well founded. What the Court has to consider in dealing with the question of possession is: was any of the claimants in possession of the properties succession to which is in dispute at the date of the commencement of the proceedings under this Regulation? The proceedings may commence either on an application made by one of the claimants, or may be started suo motu by the Judge; in either case, 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. It may be that one of the claimants may have obtained possession soon after the death of the last holder, and before the proceedings commenced under the Regulation, he would be able to show that he was in possession; but if no one was in possession at the date when the proceedings commenced, the requirements of the relevant clause of R. 9 is satisfied, because possession obtained after the commencement of the proceedings would nor make any difference. If the appellants construction is accepted, it would lead to anomalous results. Take a case where none of the claimants is in possession at the date when the District Judge makes his order, and that when the matter is taken to the High Court under S. 115, some one or the other of the claimants manages to secure possession. on the appellants construction, the High Court would have to set aside the order appointing the administrator, because at the date when the High Court is passing the order one of the claimants has secured possession. Besides, the basic idea underlying the provisions of R. 9 is to provide for a smooth, peaceful and legal devolution of the estate on the rightful owner; and so, in cases where there is a dispute as to title amongst different persons and none of these persons has been able to secure possession soon after the succession opened, R. 9 steps in and provides for the appointment of an administrator. The appointment of the administrator does not prejudice the claim of any person who has set up a title to succession. The only result of the appointment of the administrator is that the property is taken under the charge of an administrator and is managed by him pending the final decision of the question of succession to the estate by a Court of competent jurisdiction. Therefore, we are satisfied that the Courts below were right in holding that since the appellant was not in possession at the date when the present proceedings commenced and obviously there is a dispute as to the title between two or more claimants, the material requirement of R. 9 is satisfied and that justifies the appointment of an administrator.11. We have already seen that R. 2 contemplates that an executor, heir or administrator may apply for formal recognition as a measure of safety and subsequent Rules provide for the manner in which such an application should be dealt with. If the application succeeds, a certificate is issued. If the application fails, the certificate is refused. But R. 8 specifically provides that the refusal of a certificate by the Judge shall not finally determine the rights of the person whose application is refused, but it shall be competent to him to institute a suit for the purpose of establishing his claim. Rule 8 and R. 9 both make it clear that the decision recorded by the Court under the provisions of the relevant Rules is a summary decision and it does not purport to bar the jurisdiction of the civil Courts by which questions of title would be finally determined. That being so, it seems clear that under the relevant clause of R. 9, the date of possession must be the date before the proceedings commenced.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The proceedings may commence either on an application made by one of the claimants, or may be started suo motu by the Judge; in either case, 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. It may be that one of the claimants may have obtained possession soon after the death of the last holder, and before the proceedings commenced under the Regulation, he would be able to show that he was in possession; but if no one was in possession at the date when the proceedings commenced, the requirements of the relevant clause of R. 9 is satisfied, because possession obtained after the commencement of the proceedings would nor make any difference. If the appellants construction is accepted, it would lead to anomalous results. Take a case where none of the claimants is in possession at the date when the District Judge makes his order, and that when the matter is taken to the High Court under S. 115, some one or the other of the claimants manages to secure possession. on the appellants construction, the High Court would have to set aside the order appointing the administrator, because at the date when the High Court is passing the order one of the claimants has secured possession. Besides, the basic idea underlying the provisions of R. 9 is to provide for a smooth, peaceful and legal devolution of the estate on the rightful owner; and so, in cases where there is a dispute as to title amongst different persons and none of these persons has been able to secure possession soon after the succession opened, R. 9 steps in and provides for the appointment of an administrator. The appointment of the administrator does not prejudice the claim of any person who has set up a title to succession. The only result of the appointment of the administrator is that the property is taken under the charge of an administrator and is managed by him pending the final decision of the question of succession to the estate by a Court of competent jurisdiction. Therefore, we are satisfied that the Courts below were right in holding that since the appellant was not in possession at the date when the present proceedings commenced and obviously there is a dispute as to the title between two or more claimants, the material requirement of R. 9 is satisfied and that justifies the appointment of an administrator.11. We have already seen that R. 2 contemplates that an executor, heir or administrator may apply for formal recognition as a measure of safety and subsequent Rules provide for the manner in which such an application should be dealt with. If the application succeeds, a certificate is issued. If the application fails, the certificate is refused. But R. 8 specifically provides that the refusal of a certificate by the Judge shall not finally determine the rights of the person whose application is refused, but it shall be competent to him to institute a suit for the purpose of establishing his claim. Rule 8 and R. 9 both make it clear that the decision recorded by the Court under the provisions of the relevant Rules is a summary decision and it does not purport to bar the jurisdiction of the civil Courts by which questions of title would be finally determined. That being so, it seems clear that under the relevant clause of R. 9, the date of possession must be the date before the proceedings commenced.