Decided on June 29,1900



- (1.) The subject-matter of this Rule is an order made by the District Judge of Patna purporting to be an order under Act XIX of 1841. By this order, the District Judge declined to take any action upon the petition presented to him by the petitioners under the said Act, upon the ground that the claim of right made by the opposite party, Musammat Kishmish Koer, seemed to him to be bona fide.
(2.) The facts which it is necessary to mention in this connection are shortly these: The estate belonged to one Kunt Das. He died leaving a widow Musammat Mandil Koer. This lady adopted one Jaggarnath Das. After this adoption, the petitioner before us brought a suit for a declaratory relief upon the ground that they were the next takers of the inheritance after the death of the widow Mandil Koer and that the adoption made by her was illegal. Juggarnath Das died during the pendency of the suit and was substituted in his place by his widow Musammat Kishmish Koer. His suit seems to have been decreed both by the Zillah Court and by the High Court in appeal; Mandil Koer V/s. Phul Chand 2 C.W.N. 154, it being held, as we are informed, that the adoption was not legal or authorized, and that the petitioners were the reversionary heirs to the estate left by Kunt Das. The decree of the High Court affirming that of the Zillah Court has, however, been appealed against to the Privy Council; and the matter is. now pending before the Judicial Committee. In the meantime Musammat Mandil Koer, the widow of Kunt Das died on the 29 May of the present year. Thereupon, a petition was presented by the reversionary heirs, the petitioners before this Court, under Act XIX of 1841, in which they stated the previous history of the litigation, with this exception, however, that the matter of the appeal to the Privy Council was not mentioned, and also that Musammat Mandil Koer had died leaving properties both movable and immovable, and a large amount of cash, and that Musammat Kishmish Koer, the widow of Juggarnath Das with the help of her father, Lal Baboo, was trying to remove the movable properties left by Kunt Das and his widow Musammat Mandil Koer, and praying that an inventory might be made, and that the nazir of the Court directed to take temporary charge of the properties belonging to the estate. This application was made on the 2nd June. On the same date, the learned District Judge, after reciting what the nature of the application was, made the following order:"Put up on Monday for arguments." On the 4 June, which was Monday, an affidavit was put in on behalf of the petitioners and on the same date it would appear, that a vakalutnama was. presented on behalf of the widow of Juggarnath Das, Kishmish Koer. Later on, on the same date, argument was heard and order reserved; and on the 5 June, the District Judge made the following order:"After hearing the arguments of the parties, I do not think this is a case partaking action under Act XIX of 1841. The preamble of the Act shows that it is to be used only when pretended claims of right by gift or succession are put forward. In this case the claim of right made by the opposite party, Musammat Kishmish, seems bona fide. The parties may, therefore, be left to the ordinary remedies in the Civil Court."
(3.) It is against this order that an application was made to us, and upon which application the Rule was issued, calling upon the opposite party, Musammat Kishmish Koer, to show cause why the said order of the District Judge should not be set aside and he directed to investigate the matter as provided by Act XIX of 1841.;

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