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, (1933) 62 M.L.J. 622 :, I.L.R. 55 Mad. 701 and P. J. Francis v. P.J. Varghese, (1956) M.L.J. 288. 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 1st July, 1957, first applied for the grant of probate of the will in the Sub -Court at 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 Section 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 Section 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. 1, 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 Section 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 matters. In Francis v. Varghese : (1956)2MLJ288 Govinda Menon and Basheer Ahmed Sayeed, JJ., held that as under Section 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 Section 29 of the Madras Civil Courts Act or the decision of this Court in Karthiruma Goundan v. Rangammal, (1933) 62 M.L.J. 622 :, I.L.R. 55 Mad. 701. That was a case relating to a petition under Section 192 of the Indian Succession Act. It was contended therein that the notification made under Section 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 Reilly and Anantakrishna Iyer, JJ., observed that Section 29 of the Madras Civil Courts Act would extend the powers of the Subordinate Judge over the whole field of the former Act.

(3.) BEFORE we deal with the question, involved in the appeal, it is necessary to examine the propriety of the procedure adopted by the learned District Judge. The normal rule as to the precedents is, that subordinate Courts are bound in the absence of any decision of the Supreme Court, to follow the decisions of the High Court to which they are subordinate. Where, however, there is a conflict between two decisions of the High Court, the rule to be adopted is as follows : - -Where the conflict is between the judgment of a single Judge and a Bench or between a Bench and a larger Bench, the decision of the Bench or the larger Bench as the case may be, will have to be followed. But where the conflict is between two decisions both pronounced by a Bench consisting of the same number of Judges, and the subordinate Court after a careful examination of the decision came to the conclusion that both' of them directly apply to the case before it, it will then be at liberty to follow that decision which seems to it more correct, whether such decision be the later or the earlier one. To enable the subordinate Court to do so, the two apparently conflicting decisions must directly relate to and expressly decide the question that arises before the Court; otherwise a subordinate Court should follow that ruling which specifically deals with the point. It will not be open to it for example to follow the other decision which only impliedly or indirectly or by way of a mere observation gave expression to a contrary view. It follows that the learned District Judge in the present case was not justified in refusing to follow the decision referred in Francis v. Varghese : (1956)2MLJ288 , for his preference a decision which impliedly decided the point as against the one that directly did so is neither consistent with established rules relating to precedents nor conducive to orderly administration of justice.