Gauhati High Court
Smt. Lalbiakthangi vs Shri H. Duna on 27 April, 1994
Equivalent citations: AIR1995GAU12, AIR 1995 GAUHATI 12, (1996) 2 CURCC 405 (1994) 2 GAU LR 211, (1994) 2 GAU LR 211
ORDER W.A. Shishak, J.
1. 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. Lalbiak-thangi (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. 2I30/86 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 against the other two persons in whose favour land settlement certificates were issued in respect of portions of land which had been covered by permit No. 115/1958. It is contended on behalf of the petitioner that in spite of the fact that so many changes took place between 1958 and 1988, the opposite party did not make any protest regarding the land for which 'will' is alleged to have been left by late Thangvunga. It was only in 1991 that the opposite party applied for grant of probate in respect of the land in question on the basis of will alleged to have been made by late Thangvunga. It is contended on behalf of the petitioner that in the said application for probate, alleged will of Shri Thangvunga did not specify any property nor was any inventory filed along with the application for probate. The said case is pending in the court of Magistrate, 1st Class, Additional Subordinate District Council Court at Aizawl. The order impugned herein dated 12-8-1992 was passed on a petition filed by the opposite party for giving direction to deposit compensation money into the court or to keep security etc.
7. As mentioned above, it is contended that the order directing the petitioner -to deposit compensation money or security into the court under Order 39, Rule 10, C.P.C. is not sustainable.
8. 1 have heard Mr. Sailo, learned counsel for the petitioner as well as Mr. K.P. Pathak, learned counsel for the opposite party. Mr. Sailo submits that the impugned order is not sustainable under Order 39, Rule 10, C.P.C. inasmuch as no suit as such has been filed as contemplated under Rule 10. It is also contended by Mr. Sailo that the opposite party has not agitated at any time regarding title of the land in question. At the same time since alleged will has not been probated, it is contended that the opposite party has not established any prima facie case at this stage. It is, therefore, submitted that the impugned order by which the petitioner has been directed to deposit compensation money or to keep security of the like amount is uncalled for. Mr. Sailo further contends that the opposite party has not assailed land settlement certificates issued in favour of four persons including the petitioner and the late mother of the petitioner. It is further contended that deposit of compensation money would not arise under the circumstances of the present case inasmuch as money is not directly at issue in the case now pending in the lower court. It is also further submited by Mr. Sailo for reasons known to the opposite party, no grievance has been taken against the other two persons in whose favour land settlement certificates were issued in respect of portions of land out of Garden Pass 93/ 76 which was issued after cancelling permit No. 115/58.
9. Admittedly the petitioner has some other sisters. In fact, the opposite party is the husband of the elder sister of the petitioner. In this context Mr. Pathak submits that the will of late Thangvunga was in the interest of all the children of his daughter viz., Chhanhimi. It is stated that the sisters are residing in Aizawl Town. It is therefore submitted that the case in the lower court could be decided without much delay. In this view, Mr. Sailo submits that instead of any such direction given to the petitioner to deposit compensation money, the entire case on probate should be decided on merit without imposing any condition. Mr. Sailo submits that in fact the petitioner is not having money in hand.
10. Mr. Pathak submits that the opposite party would file necessary title suit once he succeeds in getting the probate from the court below. Mr. Pathak further submits that there is no limitation prescribed under the provisions of law regarding institution of a case of probate. It appears such an issue need not be entered into by this Court while exercising power of revision. If such issue of delay is raised, it is for the court below to decide. According to Mr. Pathak, this court need not interfere with the direction given in the impugned order inasmuch as there is no jurisdictional error. It is also further submitted by Mr. Pathak that the direction is either to deposit Rs. 50,43,360/- or a security of the like amount. According to him, it is a reasonable order, because the direction is not for payment of the money to the opposite party. It is simply to be kept during the pendency of the case in the lower court. Mr. Pathak further submits that power of revision is to be exercised very sparingly and in exceptional circumstances only when the court is satisfied that the court below has failed to exercise power which is vested in it or exercised power which is not vested in it or that in the exercise of power, material irregularity has been committed. According to Mr. Pathak, no such ground has been taken in the revision petition.
11. In the facts and circumstances that I have narrated above and after hearing learned counsel of both sides, it appears to me that the scope of this court is indeed a limited one in the exercise of revisional jurisdiction. I would therefore examine whether the impugned order could have been passed under Order 39, Rule 10 of C.P.C. in the nature and circumstances of such a case. Order 39, Rule 10 may be reproduced:
"10. Deposit of money, etc. in Court.-
Where the subject-matter of a suit is money or some other thing capable of delivery, and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the Court may order the same to be deposited in Court or delivered to such last-named party, with or without security, subject to the further direction of the Court."
Rule 10 contemplates, deposit of money in the Court when the subject matter of the suit is money or some other thing capable of delivery. The second condition appears to be that the other party should admit that he holds such money or other thing as a trustee for another party. In other words, the provision contained under Order 39, Rule 10, C.P.C. shall be attracted when the subject matter of the suit is money or some other thing capable of delivery. It appears the further requirement is that it should be admitted by a party that the money or the thing which is the subject matter of the suit is held by it as a trustee for another party or it belongs or is due to another party. Unless these two conditions are satisfied, it appears no order in terms of R. 10 can be passed.
12. On 19-1-94 Mr. Pathak had made a prayer that the petitioner should be asked to furnish either Bank guarantee or land or building as security. After hearing Mr. Pathak for the opposite party and Mr. Sailo for the petitioner, the Court felt that the only alternative would be to hear the matter expeditiously. In view of the same reason recorded by this Court on 19-1-94, it appears the matter in the court below should also be decided expeditiously.
13. In the light of the facts stated in the foregoing paras, this petition is allowed. Impugned order dated 12-8-92 passed in P.No. H.C. 188/91 under Order 39, Rule 10, C.P.C. is set aside. In view of the fact that the matter needs early disposal and in view of the fact that the parties are in Aizawl, the Court below is directed to dispose of the case in question at the earliest and at any rate not later than three months w.e.f. 1st May, 1994.1 pass no order as to costs. Send down the records immediately.