MAGDELENE REGO Vs. P. F. REGO

JUDGEMENT

(1.) NIYOGI , A.J.C. 1. This is an appeal from an order passed by the District Judge, Jubbulpore, under Section 269, Succession Act, prohibiting the Chief Accounts Officer of the G. I. P. Ry. Administration, Bombay, from paying the share of the Provident Fund to the appellant. The appellant is the wife of one F. I. Rego, who was an employee of the G. I. P. Ry. He had nominated the applicant, his wife, as his nominee in respect of his one-half Provident Fund, his brothers being nominees in respect of the other half, F. I. Rego met a violent death on 20th August 1932 and the appellant Mrs. Rego was committed to the Sessions on a charge of murdering him. She has since been adjudged guilty of the offence. Mrs. Rego made an application on 30th August 1932 for letters of administration but that application was dismissed for want of prosecution on 28th September 1932. It was in the course of these proceedings that on 14th September 1932 an application was made by the respondent, P. F. Rego, under Section 269, Succession Act, for issuing a prohibitory order to the Chief Accounts Officer of the G. I. P. Ry., Bombay. An ex parte order was passed on 14th September 1932 subject to any objection by the applicant. The appellant moved the District Judge, Jubbulpore, for withdrawal of the order on 20th September 1932, but the application was rejected by the District Judge.

(2.) IT is urged that the District Judge had no jurisdiction to pass prohibitory order for the reasons that the property, namely the Provident Fund, lay outside the Province, that the deceased Rego was an Indian Christian who had died intestate and therefore Section 269 has no applicability, that the share of the Provident Fund vested in the appellant and is no longer part of the deceased's assets, that the order of injunction could only issue to the parties and not to the stranger and that in any case the appellant's application for letters of administration having been dismissed the order passed by the learned District Judge should be vacated. The first question is whether the property which consisted of the Provident Fund at Bombay could be protected by the District Judge, under Section 269, Succession Act. Section 269 runs as follows: Until probate is granted of the will of a deceased person, or an administrator of his estate is constituted, the District Judge, within whoso jurisdiction any part of the property of the deceased person is situate, is authorized and required to interfere for the protection of such property at the instance of any person claiming to be interested therein and in all other cases where the Judge considers that the property incurs any risk of loss or damage; and for that purpose, if he thinks fit, to appoint an officer to take and keep possession of the property.

(3.) NO doubt if the deceased Rego was an Indian Christian as defined in Section 2(d), Indian Succession Act, and had died intestate the District Judge's jurisdiction would have been ousted under Sub-section 2, Section 269. Whether he was an Indian (i.e., a native of India of unmixed Asiatic descent as defined in Section 2(d) of the Act,) Christian or not, is an issue of fact which ought to have been raised in the lower Court. The District Judge's jurisdiction was not challenged on this ground in the lower Court. Moreover it appears from the contents of the order-sheet against 28th September 1932 that the deceased Rego had left a will in which case Sub-section 2, Section 269 would not come into operation. The appellant not having raised any contention on these lines in the lower Court it is too late to press this contention in appeal.