SHIVA DAT RAM Vs. BHAGWATI JI AND OTHERS

JUDGEMENT

(1.) This is an appeal from an order of the District Judge of Faizabad transferring a contested case under the Indian Succession Act from his own file to that of the Civil Judge Faizabad. A will is alleged to have been made by a widow leaving her property to two deities, Shri Bhagwati and Shri Bhagwan Ji, installed in the temple of Dawan Anant Ram at Ajodhya. An application for the grant of a probate was made on behalf of deities, and was filed before the Civil Judge, Faizabad. A caveat was filed by two persons whose names are immaterial. On the death of one of them, his son Shiva Dutta Ram, the present applicant, was brought on the record and continued the objections. As it was a contentious matter, the Civil Judge, being only a District Delegate under the Indian Succession Act, could not dispose of it himself, and he sent the case to the District Judge for disposal.

(2.) When the matter was listed before the latter for hearing he observed that he would not like to try the case for personal reasons, and decided to transfer it to the Court of the Civil Judge Faizabad. It was objected on behalf of the present applicant that the jurisdiction of the Civil Judge was barred under Secs. 264 and 286 of the Indian Sue-cession Act. The former enjoins that the District Judge shall have jurisdiction for granting and revoking probate and letters of administration in all cases within his district. The latter provides that a District Delegate shall not grant probate or letters of administration in any case in which there is contention as to the grant or in which it otherwise appears to him that probate or letters of administration ought not to be granted in his court. The applicant contended that, as this was a contentious probate matter, the District Judge alone had the jurisdiction to decide it. He also urged that the Civil Judge, being a District Delegate appointed by the High Court under Sec. 265 of the Act, was debarred by Sec. 286 from trying any contentious matter. The learned District Judge rejected both contentions on the ground that he had the power under Sec. 31 of the Oudh Courts Act to send the case to the Civil Judge. The applicant has come to this Court in appeal against that decision.

(3.) Mr. Ganesh Prasad, learned counsel for the appellant, urged that Sec. 264 is a mandatory provision giving exclusive jurisdiction to the District Judge in the matter of granting a probate. According to him, the word 'District Judge' refers to a persons designata and a Civil Judge has no power to try probate matters, even if he has the powers of a District Judge as regards other matters. Learned counsel also urged that, in any case, the case could not have been sent to a Civil Judge who also happened to be a District Delegate, as his jurisdiction in contentious matter was barred by Sec. 296. Finally learned counsel urged that, even if it be held that Sec. 31 of the Oudh Courts Act does empower the District Judge to send a contentious matter to the Civil Judge, the provisions of that Sec. cannot override the express provisions of the Indian Succession Act, which is a law made by the Central Legislature.