SAKHARAM LAXMAN MAHAJAN Vs. VINAYAK NARAYAN DATAR

JUDGEMENT

(1.) THE facts of this case are sufficiently clear from the application itself as well as from the order, dated 12th October 1926, of the District Judge, Nagpur. In that order, the application made by the present applicant to be put in possession of the property in dispute, or to appoint a curator to take the said property in his charge, has been dismissed.

(2.) WITH some reluctance, I have come to the conclusion that this is not a case in which this Court should or could interfere in the peculiar circumstances thereof. The application in question, dated 30th October 1924, was made under Act 19 of 1841 and must now fee held to fall under Part 7 of Act 39 of 1925 (Indian Succession Act). Rightly or wrongly, on 20th March 1925 the parties to the proceedings agreed that the case should pend until the connected probate proceedings were completed. On the 28th August 1926 an order was passed in the, probate proceedings, under which the will relied on by the non-applicants was found to be proved. Thereupon, the present applicant moved the District Judge to continue proceedings under Act 39 of 1925. The District Judge, however, in view of the delay which had occurred and relying, in particular, on the 'remarks of Stanyon, A.J.C., in Khaja Kutubuddin v. Khaja Faizuddin [1903] 2 N.L.R. 72 as to the nature of proceedings under Act 19 of 1811, held that the exceptional provisions in question should not be enforced in the circumstances of this case and passed order accordingly. The District Judge also pointed out that the probate proceedings order did not amount to a judgment in rem within the "meaning of Section 41 of the Indian Evidence Act, and he further pointed out that the present applicant had it in his power all through to file a regular suit with regard to the property in suit and had instead chosen to remain quiescent until after the order in the probate proceedings had been passed, when he once more desired to proceed with the application under Act 19 of 1841.

(3.) IT is now urged on behalf of the applicant that much time will be lost before a suit can be filed and decided, that in the meantime, the non-applicants, or some of them are making away with or are likely to make away with, the property in dispute in whole or in part, and that it is necessary in the interests of justice that a Receiver should be appointed. On the other hand, on behalf of the non-applicants it is urged that even now the order in the probate proceedings is under consideration on appeal in this Court and that there has been no proof of damage or waste to the property by such of the non-applicants as are in possession thereof. Bet" wean these two standpoints, it is, however, in my opinion, not the province of this Court to have to make a decision. Although the order of a District Judge under Part 7 of Act 39 of 1925 is not open to appeal or review, it still remains true that such an order is subject to revision : cf. Sato Koer v. Gopal Sahu [1907] 34 Cal. 929. In the circumstances of the present case, however, I find it impossible to hold that -the District Judge has failed to exercise any jurisdiction vested in him, or has exercised a jurisdiction not vested in him, or has otherwise acted illegally or with material irregularity. What the learned District Judge has, in effect, held is that in his discretion, in view of the delay which has occurred, the case is not a suitable or advisable one for even appointing a curator, much less for putting the present applicant in possession. Whether or not the discretion was wisely exercised, it is not the function of this Court to determine, but it is obvious anyhow that the learned District Judge was entitled to take into account the long delay which had occurred before the original application was once more pressed.