ORDER
1. This is an application in revision against an order of the Subordinate Judge of Jaunpur, rejecting an application filed by the applicants for the assignment of a security bond. The facts so far as they are material for the purposes of the present application are as follows:
One Sarup Kunwar held a decree for a sum of Rs. 5,435-3-9. She died leaving two sons Raja Lal Bahadur Singh and Rajendra Narain Singh. Raja Lal Bahadur Singh applied for a succession certificate with a view to realize the decretal amount. Rajendra Narain Singh objected to the grant of the succession certificate to Raja Lal Bahadur Singh on the ground that he (Rajendra Narain) was also entitled to a half-share in the decretal amount. The learned Judge called upon Raja Lal Bahadur Singh to file security of immovable property with respect to the half-share of Rajendra Narain Singh in the decretal amount as a condition precedent to a succession certificate being granted to him (Raja Lal Bahadur). Raja Lal Bahadur filed a security bond in terms of the order passed by the learned Judge and a succession Certificate was granted to him. It was recited in the security bond that Raja Lal Bahadur's application for succession certificate was granted subject to the condition that he should furnish security for half of the decretal amount and that after realization of the amount he will pay half of the amount realized by him to Rajendra Narain Singh. The bond went on to provide that if Raja Lal Bahadur failed to pay half of the amount to Rajendra Narain Singh the amount may be realized by enforcement of the security bond as against the immovable property hypothecated by the bond. After the security bond was furnished, succession certificate was granted to Raja Lal Bahadur and he realized the entire decretal amount so far back as in the year 1928.
2. Rajendra Narain Singh died in the year 1929 leaving a widow and three sons. On 21st January, 1932, the widow applied to the Judge for assignment of the security bond in her favour with a view to realize half of the amount from Raja Lal Bahadur. She impleaded Raja Lal Bahadur and her three sons as opposite parties in the application. In her application she alleged that Rajendra Narain Singh, had before his death, orally gifted or devised his half-share in the decretal amount to her. Raja Lal Bahadur objected to the assignment of the bond in favour of the widow mainly on the allegation that the oral gift or will put forward by the widow was never made by Rajendra Narain Singh. The sons of Rajendra Narain Singh did not appear and did not contest the application. The learned Judge after going through the evidence produced by the widow in support of her allegation as regards the oral gift or will by her husband came to the conclusion that the alleged gift or will was not proved. He also observed that the widow could not be the heir of Rajendra Narain Singh under the Hindu law as Rajendra Narain Singh had left sons. In view of these findings the learned Judge rejected the application filed by the widow. He proceeded further to make the following observations in the course of his order:
Let the sons take proper steps to get themselves declared heirs and then assignment can be made by an order of the Court.
3. The sons then filed an application for the assignment of the security bond in their favour and. the learned Judge rejected the application on the ground that his order directing the sons to get themselves declared heirs had not been complied with.
4. The present application is against this order of the learned Judge. In our judgment the order cannot be sustained and ought to be reversed. It appears that during the pendency of the application for the grant of succession certificate the right of Rajendra Narain Singh to a half share in the decretal amount was not denied by Raja Lal Bahadur. Indeed the latter agreed to take the succession certificate subject to the liability to pay half of the decretal amount realised by him to Rajendra Narain Singh. This fact is abundantly borne out by the security bond given by Raja Lal Bahadur. The learned Judge of the Court below does not appear to have perused the security bond before deciding the application for assignment of that bond filed by the present applicants. If he had read the bond it would have been clear to him that the right of Rajendra Narain to a half share in the decretal amount could not, in view of the recitals in the bond, be disputed by Raja Lal Bahadur. That being so, there could be no escape from the conclusion that Rajendra Narain was entitled to a half share in the amount realized by Raja Lal Bahadur, and as such, either his widow or his sons were entitled to that half share. The widow's application for assignment having already been rejected, the only persons who could be entitled to the amount were the sons of Rajendra Narain. What the learned Judge was asked to assign was the security bond and it cannot be denied that the recitals in that bond were of cardinal importance in the case. The learned Judge however as already observed, does not appear to have perused the bond. By omitting to do so he exercised the jurisdiction vested in him with material irregularity. It was his duty to have looked into the bond that he was requested to assign to the applicants. He however failed to discharge that duty and this was a material irregularity committed by him.
5. Mr. Haribans Sahai, the learned Counsel for the opposite party, has argued that as the learned Judge of the Court below had a discretion in the matter, and as he has exercised the discretion, we ought not to interfere with the same in the exercise of our revisional jurisdiction howsoever erroneously the discretion may have been exercised by the learned Judge. If the learned Judge had judicially considered the matter in controversy between the parties, we would have had no jurisdiction to interfere with the exercise of his discretion howmuchsoever we may have disapproved of the matter in which he exercised his discretion, but the omission of the learned Judge to consider the terms of the security bond was tantamount to a refusal by the learned Judge to consider the application filed by the applicants judicially. Indeed it was a material irregularity in the exercise of his jurisdiction by the learned Judge to refuse to look into the bond that he was asked to assign. The irregular exercise of jurisdiction by the learned Judge vests us with discretion to revise his order, and as the discretion vested in the learned Judge was exercised by him capriciously, we have no other alternative but to reverse the order of the learned Judge.
6. Mr. Haribans Sahai further expressed the apprehension that if the bond is assigned in favour of the sons and they realize the amount from Raja Lal Bahadur Singh, the widow of Rajendra Narain Singh may thereafter file a claim against Raja Lal Bahadur Singh for the realization of the amount on the basis of an alleged oral gift or will by her husband. In order to set at rest this apprehension, we have decided to direct that the bond be assigned not only in favour of the sons of Rajendra Narain, Singh but also in, favour of his widow and Mr. Malik, the learned Counsel for the applicants, has agreed to this decision.
7. For the reasons given above, weal-low this application, set aside the order of the learned Judge of the Court below and direct that the security bond furnished by Raja Lal Bahadur Singh be assigned in favour of the applicants, and their mother, the widow of Rajendra Narain Singh, provided she is alive. The applicants are entitled to their costs both here and below. Let the record be sent to the Court below at an early date with the direction that the bond should be assigned immediately in favour of the persons mentioned above.