1. The Opposite Party instituted a suit in the Small Cause Court for recovery of certain ornaments and cash which belonged to one Phuleshwari. They were alleged to have been made over to the Defendant No. 1 after her death, and were withheld by him from the Plaintiffs. Plaintiffs alleged that Phuleshwari was the wife of the Plaintiff No. 1 and mother of the Plaintiff No. 2. Defendant No. 1 denied that there was such relationship between the Plaintiffs and the deceased or that he had ever received the ornaments and cash. The Judge of the Small Cause Court held that the Plaintiffs were the heirs as alleged by them and that on Phuleshwari''s death, the ornaments and cash were made over by the chaukidar and duffadar to the Defendant No. 1; and he accordingly gave a decree in favour of the Plaintiffs. Defendants thereupon moved this Court, and obtained this rule calling upon the Opposite Party to show cause why the decree of the Small Cause Court Judge should not be set aside on the ground that he had no jurisdiction to decide the case. It is contended on behalf of the Petitioner that the suit is exempted from the cognisance of the Provincial Small Cause Court by Art. 28 of Sch. II of Act IX of 1887 which exempts a suit " for a legacy or for the whole or a share of a residue bequeathed by a testator, or for the whole or a share of the property of an intestate?. The question, therefore, is whether this is a suit for the " whole or a share of the property of an intestate ? within the meaning of the said article.
2. We are of opinion that the suits contemplated by the said words in Art. 28 are suits for the recovery of the property of an intestate, between rival claimants to the estate, or against persons administering the estate : and this was the view taken in the case of Kapalee Bewah v. Keshram Kooch (11 W. R. 93 (1869)). In that case the learned Judges had to consider the second exception to sec.6 of Act XI of 1865, which exempted suits for " a share or part of a share in an intestacy " from the jurisdiction of the Small Cause Court; and Mr. Justice Norman, in delivering the judgment of the Court, said as follows : -- " We think that those words are intended to apply to suits by persons claiming as heirs against other persons similarly entitled in order to determine their respective rights and interests, and to suits against persons administering the estate of a person who has died intestate, where the share or proportion to Which the claimant is entitled is in question "; and do not apply to suits by the heirs against a wrong-doer. A similar view was taken in the case of Moheshur v. Kailash Nath (7 C. L. R. 71 (1890)), where, in considering the said section, Mitter and Maclean, JJ., held that " suits between parties claiming, respectively, property left by a deceased person as heirs-at-law of such person, are contemplated by this exception?. The Allahabad High Court, in considering Art. 28 of Sch. II of the present Provincial Small Cause Courts Act, agreed with the view taken in the above two cases [see the case of Chhedi v. Gulab (I. L. R. 27 All. 622 (1905))].
3. Reliance has been placed on behalf of the Petitioners upon two cases, e.g., Girish Chunder v. Anna Dossee (17 W. R. 46 (1871)) and Nobin Chunder v. Dribo Moyee (17 W. R. 520 (1872)), in which Couch, C. J., held that a suit to recover money as personal property in respect of a share under an intestacy is not cognizable by the Small Cause Court. But the facts of the first of the two cases [Girish Chunder v. Anna Dossee (17 W. R. 46 (1871))] do not appear from the report, and we do not know whether the suit was against a rival claimant. The second case [Nobin Chunder v. Dribo Moyee (17 W. R. 520 (1872))] was clearly a suit against a person who also claimed to be an heir : and the suit would fall within the class of suits contemplated by the exception to sec.6 of Act XI of 1865, as laid down by Mr. Justice Norman. It is true that the Small Cause Court Judge also asked the High Court to set aside a previous decree passed by him in a suit which had been brought apparently against a wrong-doer. The learned Judges did not interfere although on the ground that the decree had been passed long ago and that the parties had made, no application to the High Court.
4. We agree with the view taken in the first three cases noticed above. It is contended that in these three cases the Defendant did not deny the title of the Plaintiff. But in the case of Kapalee Bewah v. Keshram Kooch (11 W. R. 93 (1869)), we think that the Plaintiff''s title must have been denied as the reference to the Munsif''s finding that the Plaintiff was not the wife of the deceased would go to show. In the Allahabad case, the heirship of the Plaintiff had been determined in a previous suit between the parties, but then that fact is not relied upon, and, in fact, has not even been referred to in the judgment of the Court. The judgment in all those three cases proceeded upon the gorund that the suit contemplated by the section was one between rival claimants to the estate under an intestacy. The fact, therefore, that the Defendants in the present case have denied the title of the Plaintiffs is immaterial.
5. It was argued that the title of the Plaintiffs having been disputed in the present case the suit was taken out of the cognisance of the Small Cause Court. But the suit is based upon the ground, that certain moveable property left by the deceased was detained by the Defendants. There is nothing in the Small Cause Courts Act to show that the jurisdiction of the Court is ousted merely because the Plaintiff''s right is denied. We are of opinion that the Small Cause Court had jurisdiction to entertain the suit. The rule must accordingly be discharged with costs. We assess the hearing fee at one gold mohur.
