B R JAYANTHI Vs. RADAMMA

JUDGEMENT

(1.) A petition under Section 276 of the indian Succession Act, 1925 ('central Act' for short) was filed by the respondents herein, in the Court of District Judge, Madikeri, Kodagu district, by impleading the petitioners herein. The prayer in the petition was to hold that, the Will said to have been executed by one Ramanna Rai, in common form be allowed to be proved and that probate thereon to have effect throughout India maybe granted to them, pertaining to the 'a' schedule property and for such other relief. The respondents in the Probate petition have opposed the petition, by filing statement of objections. Since the petition was contested, it was ordered to be converted in to a original suit. Thereafter, issues have been framed on 29. 6. 2001. Considering the office note with regard to the pecuniary and territorial jurisdiction of the suit property, by an order dated 12. 12. 2003, the petition which was converted into a suit, was transferred and directed to be considered by the principal Civil Judge (Junior Division) at Madikeri, by directing the parties to appear in the Court of the Principal Civil Judge (Junior Division), at madikeri on 24. 1. 2004 and to take further orders. The defendants, i. e. , the petitioners herein, had filed LA. No. IV under Section 151 of CPC with a prayer to return the plaint to the plaintiffs, to present the same in the proper Court, contending that the Civil Judge (Junior Division), has no jurisdiction to issue the probate, in view of the provisions contained under section 264 of the Act. Said application was opposed by the respondents herein. After hearing the parties, the learned Civil Judge (Junior Division), madikeri, has rejected LA. No. IV, holding that, since the District Court has transferred the suit for disposal to it, the plaint cannot be returned, for presentation in the proper Court and the earlier order passed by the district Court, transferring the suit to it, having not been questioned by filing an appeal or revision, the order having attained finality, the application was not meritorious. The said order has been questioned in this writ petition.

(2.) I have heard Sri G. Balakrishna Shastry, learned Counsel for the petitioners and perused the records. The respondents though served remained unrepresented.

(3.) SRI G. Balakrishna Shastry, learned Counsel for the petitioners contended that, the probate case under Section 276 of the 'central Act' has to be tried only by the District Court and the subordinate Courts have no jurisdiction to try the suit. Learned Counsel contended that the District court had erred in transferring the suit and hence LA. No. IV filed before the Civil Judge (Junior Division) to exercise its inherent power and to return the plaint for presentation in the District Court or to re-transfer the record to the District Court, ought to have been allowed. It is contended by the learned Counsel that, in not ordering so and by dismissing LA. No. IV, the Court below has committed illegality and hence the impugned order be set aside and the relief prayed in LA. No. IV be granted.