BOMBAY HIGH COURT

ISHWAR SINGH S/O CHUNNU SINGH & ... VS. KRISHNABAI W/O CHUNNUSINGH &...

DATED : 12.12.1994

Summarised Judgement (Scroll for Complete Judgement)

Introduction :

Ishwarsingh Chunnusingh and five others submitted an application purporting to be under sections 192 and 195 of the Indian Succession Act on 4th March. 1987. Since Chunnusingh s/o Laxman Singh, owner of the property in dispute, died on 15-8-1986, the application was beyond the period of limitation of six months prescribed under section 205 of the Indian Succession Act, 1925. The learned 2nd Addl. District Judge, Nanded was pleased to reject an application for condonation of delay under section 5 of the Limitation Act filed by the applicant-revision petitioners - vide his order dated 15-6-1988, which is the subject matter of challenge in this Civil Revision Application.

Observation of Court :

It is true that the proceedings under chapter VII of the Indian Succession Act, 1925 are meant to meet an emergency but to assume that the emergency would last only for six months after the death of a person, would be to read something in the Statute which is not there. Had it been so, legislature would have provided that a curator will cease to be in-charge of the property after a particular period commencing from the death of the 'person, whose property is to be protected. Such a provision is not there in the Statute. An emergency can arise even after 6 months and till the relief is obtained by the party in a suit or other proceedings, resort can be had to Chapter VII.

Shri Godhamgaonkar, learned Counsel in this respect also cited the judgment of the Division Bench of this Court in Mahommed Bhai's case, (supra) and contended that it is not always necessary to appoint a curator and the Court can allow one of the parties to be in possession. This would be the matter to be considered by the learned Judge and it is not necessary to express any opinion about the factual aspect .of the case. The contention raised by Shri Godhamgaonkar that section 5 of the Limitation Act has no application to the proceedings under Chapter VII of the Indian Succession Act, 1925 will have to be rejected.

Judgement :

There is a delay of only 18 days and one of the petitioners has filed affidavit properly explaining it. I do not find any reason not to condone the delay for the reasons stated in the application: Therefore, the order impugned in the revision, passed by the IInd Additional District Judge, Nanded on 15-6-1988 is quashed. The delay is condoned. The learned Judge shall proceed to hear the parties on the question whether the jurisdiction under Chapter VII needs to be exercised in the light of the circumstances of the case. It is clarified that this Court has not expressed any opinion as to whether the curator needs to be appointed and the learned Judge has to decide the matter in the light of facts placed before him. Rule is made absolute in the above terms. There, shall be no order as to costs.

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BOMBAY HIGH COURT

ISHWARSINGH S/O CHUNNUSINGH & ... VS. KRISHNABAI W/O CHUNNUSINGH &...

DATED : 12.12.1994

Equivalent citations: 1995 (3) BomCR 156, (1995) 97 BOMLR 200

Author : N Chapalgaonker

Bench : N Chapalgaonker

JUDGMENT N.P. Chapalgaonker, J.

1. This Civil Revision Application raises an important question relating to law of limitation as to whether section 5 of the Limitation Act is applicable to a proceeding instituted under Chapter VII of the Indian Succession Act, 1925.

2. Ishwarsingh Chunnusingh and five others submitted an application purporting to be under sections 192 and 195 of the Indian Succession Act on 4th March. 1987. Since Chunnusingh s/o Laxman Singh, owner of the property in dispute, died on 15-8-1986, the application was beyond the period of limitation of six months prescribed under section 205 of the Indian Succession Act, 1925. The learned 2nd Addl. District Judge, Nanded was pleased to reject an application for condonation of delay under section 5 of the Limitation Act filed by the applicant-revision petitioners - vide his order dated 15-6-1988, which is the subject matter of challenge in this Civil Revision Application.

3. Shri Joydeep Chaterjee, learned Counsel appearing on behalf of the petitioners contended that the delay caused was that of only 18 days which was explained by assigning sufficient cause and the learned Judge should have condoned the same. Shri A.G. Godhamgaonkar, learned Counsel appearing on behalf of the respondents raised contention that section 5 of the Limitation Act will not apply to the proceedings under Chapter VII of the Indian Succession Act, 1925. The grounds on which the proposition professed by Shri Godhamgaonkar rests are firstly the language used in section 205 prescribing the special limitation and secondly the nature of the proceedings under Chapter VII. 

According to him, the use of the imperative word 'must' in section 205 indicates the exclusion of extension of limitation by application of provisions of sections 4 to 24 of Limitation Act, 1963. He further submits that Chapter VII of the Indian Succession Act provides for proceedings to meet an emergency. If there is an imminent danger to the property of deceased person, then only it can be protected by appointment of curator resorting to the provisions of Chapter VII. Therefore, the limitation is not a provision relating to the procedure but it has something to do with the substance.

4. He further contended that to hold that sections 4 to 24 of the Limitation Act are applicable to the proceedings under Chapter VII of the Indian Succession Act, 1925, would be to take away the right of the person in possession of the disputed property. They can be dispossessed only by way of filing, suit and not by a summary proceedings under Chapter VII. In support of his contention that the application of section 5 of the Limitation Act is excluded, Shri Godhamgaonkar relied on the judgment of the Supreme Court in Hukumdev Narain Yadav v. Lalit Narain Mishra, . He also cited judgment of this Court in the case of Mahommed Bhai Pir Bhai v. Hawabai, 1926 Bom.L.R. 145, to oppose prayer of appointment of curator.

5. The Limitation Act, 1963 made an important departure from the earlier law by provide in sub-section (2) of section 29 that whenever a limitation different from the period prescribed in the Limitation Act is provided for by any special or local law, provisions of sections 4 to 24 shall apply so far as and to the extent to which they are not expressly excluded by such special or local law. There cannot be any doubt that the Indian Succession Act, 1925 is a special law dealing with the proceedings for succession. It is true that exclusion of the application of sections 4 to 24 of the Limitation Act need not always be in specific and express words directing that these provisions will not apply. It would be sufficient-if by .the very scheme of the Act, these provisions stand excluded by necessary implication. Hukumdev Narayan Yadav's case, (cited supra), is a case at the point. 

In this case, Supreme Court considered the scheme of the Representation of People Act and noticed that section 86 of the Representation of People Act gives a peremptory command that the High Court shall dismiss an election petition which does not comply with the provisions of sections 81, 82 or 117, which include the provision as to the limitation and found that the period of limitation prescribed in section 81 would thus be mandatory, the non-compliance with which visits the penalty of dismissal of the petition and, therefore, was pleased to hold that the provisions of sections 4 to 24 have been excluded by necessary implication and,' therefore, are not applicable in view of the provisions of section 29(2) of the Limitation Act, 1963.

6. What factors would be sufficient to hold that the provisions of sections 4 to 24 of the Limitation Act are excluded by necessary implication cannot be rigidly stated. If the Act; read as a whole, excludes the extension of limitation under these provision of either by express words or by necessary implication, these provisions would not be applicable to that Act. The Representation of People Act, 1951 speaks of an imperative command given to the High Courts to dismiss the application if it is not within limitation and thus excludes application of section 5. I do not find any such command given to the Courts before whom the application under Chapter VII is to be presented that they shall dismiss the application if it does not comply with section 205. The .Indian Succession Act does not state consequences of failure to make an application within the prescribed time for appointment of curator. .

7. It is true that section 205 prescribes that application under this Chapter must be filed within six months. Mere use of the word 'must' or 'should' would not by itself speak of the legislative intendment of exclusion of section 5 of Limitation Act In the case of Mangiram and Ramprasad v. Municipal Corporation of Delhi, the Supreme Court considered the provisions of section 470(4) of Criminal Procedure Code, 1898 (identical with sub-section (5) of section 378 of 1973 Code). Though the section started with a mandate that no application shall be entertained after the expiry of six months, the Supreme Court was pleased to hold that this by itself is not sufficient to infer exclusion of application of section 5 by necessary implication.

8. It is true that the proceedings under chapter VII of the Indian Succession Act, 1925 are meant to meet an emergency but to assume that the emergency would last only for six months after the death of a person, would be to read something in the Statute which is not there. Had it been so, legislature would have provided that a curator will cease to be in-charge of the property after a particular period commencing from the death of the 'person, whose property is to be protected. Such a provision is not there in the Statute. An emergency can arise even after 6 months and till the relief is obtained by the party in a suit or other proceedings, resort can be had to Chapter VII.

9. Shri Godhamgaonkar, learned Counsel in this respect also cited the judgment of the Division Bench of this Court in Mahommed Bhai's case, (supra) and contended that it is not always necessary to appoint a curator and the Court can allow one of the parties to be in possession. This would be the matter to be considered by the learned Judge and it is not necessary to express any opinion about the factual aspect .of the case. The contention raised by Shri Godhamgaonkar that section 5 of the Limitation Act has no application to the proceedings under Chapter VII of the Indian Succession Act, 1925 will have to be rejected.

10. There is a delay of only 18 days and one of the petitioners has filed affidavit properly explaining it. I do not find any reason not to condone the delay for the reasons stated in the application: Therefore, the order impugned in the revision, passed by the IInd Additional District Judge, Nanded on 15-6-1988 is quashed. The delay is condoned. The learned Judge shall proceed to hear the parties on the question whether the jurisdiction under Chapter VII needs to be exercised in the light of the circumstances of the case. It is clarified that this Court has not expressed any opinion as to whether the curator needs to be appointed and the learned Judge has to decide the matter in the light of facts placed before him.

11. Rule is made absolute in the above terms. There, shall be no order as to costs.