R RAMA SUBBARAYALU REDDIAR Vs. RENGAMMAL

JUDGEMENT

(1.) This appeal which arises out of an order returning an application for probate of a Will, for presentation to the proper court has been placed before the Full Bench, by reason of a conflict between the decisions. reported in Karthiruma Goundan v. Rangammal, ILR 55 Mad 701: (AIR 1932 Mad 456) and P. J. Francis v. P. J. Varghese, 1956-2 Mad LJ 288: (AIR 1956 Mad 680). The facts relevant for and giving rise to this appeal are: The appellant claiming as an executor under an alleged will of one P.W. Subbaraya Reddiar who died on 1-7-1957, first applied for the grant of pro-bate of the will in the Sub Court, Tirunelveli. The application was opposed by the daughter of the deceased who contested the genuineness of the will and who inter alia denied the jurisdiction of the Sub Court to dispose of a contentious application for probate. To appreciate the latter objection, it is necessary to refer to two notifications conferring jurisdiction on the Sub Court to grant probate of a will. They are (1) By virtue of a notification made by this Court under Sec. 265 of the Indian Succession Act, 1925, all subordinate Judges in the Madras Province have been appointed as ex officio District delegates under that enactment within the local limits of their respective jurisdiction; (2) By virtue of another notification of the High Court made under Sec. 29(1) of the Madras Civil Courts Act, 1873, all subordinate Judges in the Madras Province have been authorised to take cognizance of any proceedings under the Indian Succession Act, 1925, which cannot be disposed of by the District delegates. (Vide Civil Rules of Practice Vol. I, page 275) where the two notifications are set out.

(2.) A District Delegate under the provisions of the Indian Succession Act will have jurisdiction to grant probate of a will or letters of administration only (1) if the deceased had at the time of his death a fixed place of residence within his jurisdiction and (2) in non-contentious cases. The second of the two notifications referred to above issued under Sec. 29(1) of the Madras Civil Courts Act will, however. authorise a subordinate Judge to deal with other cases as well, e.g., non-contentious (sic) matters. In 1956-2 Mad LJ 288: (AIR 1956 Mad 680), Govinda Menon and Basheer Ahmed Sayeed, JJ. held that as under Sec. 265 of the Indian Succession Act, a District Delegate can take cognizance of only non-contentious proceedings the latter of the two notifications which invested a subordinate judge with a jurisdiction over contentious proceedings as well, would be invalid and that a subordinate judge would, therefore, have no power but to return the application for probate or letters of administration which turned out to be contentious, for presentation to the District Judge. While coming to that conclusion the learned Judges did not, however, refer or consider Sec. 29 of the Madras Civil Courts Act or the decision of this court in ILR 55 Mad 701: (AIR 1932 Mad 456). That was a case relating to a petition under Section 192 of the Indian Succession Act. It was contended @herein that the notification made under Sec. 29(1) of the Madras Civil Courts Act authorising all Sub Judges to take cognizance of all proceedings other than those that could be dealt with by District Delegates would be restricted only to matters concerning the grant of probate or letters of administration under Part IX of the Indian Succession Act and not to applications under the other parts of the Act. This contention was rejected. In so doing Remy and Ananthakrishna Ayyar, JJ. observed that Sec. 29 of the Madras Civil Courts Act would extend the powers of the subordinate Judge over the whole field of the former Act.

(3.) The learned Subordinate Judge in the instant case following the decision in 1956-2 Mud LJ 288: (AIR 1956 Mad 680) as indeed he was bound to do, returned the application which was a contentious one, for presentation to the appropriate court. The appellant who thereupon took back his application, presented it to the District Court, Tirunelveli. In the latter court there was no contest by either of the parties as to the jurisdiction of the court, the only point left for the determination being about the genuineness of the will. But the learned District Judge suo motu raised a question as to his own jurisdiction. He found that there was a conflict between the view expressed in 1956-2 Mad LJ 288: (AIR 1956 Mad 680) acid the earlier decision of a Bench of this court in ILR 55 Mad 701: (AIR 1932 Mad 456) holding that it was open to him "to follow the decision which appealed" to him most, and choosing the earlier of the two decisions as laying down the correct procedure he directed a return of the application to the proper court, namely, the Sub Court at Tirunelveli. The appellant who was placed in the unenviable position of having his application returned by both the Subordinate Judge as well as by the District Judge, each holding that the other had jurisdiction to deal with his application, has filed this appeal against the order of the District Judge returning his application for presentation to the Sub Court.