ABHIRAJI BANSRAJ SINGH Vs. VIMAL NARSINGH BAHADUR SINGH

JUDGEMENT

(1.) Learned counsel appearing on behalf of the petitioners are challenging the objection raised by the office in respect of the service of citation. The learned counsel appearing on behalf of the petitioners submitted that in the past the procedure which has followed by the office for service of citation was to issue a notice to the legal heirs and next-of-kin of the deceased and if the heirs could not be served by the said process nor could be served through post, in that event, the heirs were served by publication of the citation into newspapers. It is submitted that the citation and process are to be served in the same manner, in view of the provisions of Rules 397 to 400 of the Bombay High Court (Original Side) Rules and also in accordance with Rule 445. It is further submitted that the provisions of Rule 1, Order 49, Civil Procedure Code also would be applicable to the Chartered High Court and this Court being Chartered High Court, service of citation could also be made in accordance with the said Rule 3, of Order 49, Civil Procedure Code. It is submitted that in view of provisions of Rule 398, citation is also a process issued by this Court and therefore the provisions of Rule 445 were clearly applicable for the service of process and as such even citation could be served in accordance with procedure laid down in Rule 445. On the other hand, the first Assistant Master, High Court Bombay has filed a note on the subject of issuance of citation. In the note, it is stated that Rules 397 to 400 of the Original Side, 1980 describes rules for issuance of citation.of notices in all applications for probate, letters of administration and succession certificate and lays down the procedure, it is to be adopted for the service of citation. It is submitted that only two modes of service of citation is prescribed under Rules 399 and 400 and therefore a citation has to be served personally on the person concerned and if it is not possible, then by publication of the citation in the newspaper. It is further stated that Rule 1 of Order 49 will not be applicable in respect of service of citations, in view of the fact that the provisions of High Court Original Side Rules overwrites (overrides) Code of Civil Procedure and therefore the said provision of Rule 1, Order 49 would not be applicable in this case. It is also stated in the said note that Hon'ble Justice A. S. Oka has directed the office that in all testamentary matters citation/notice was served and affixed through the bailiff and Sheriff of Bombay has further directed to put appropriate notice in that regard and accordingly notice also has been issued pursuant to the said directions which had given by learned Single Judge.

(2.) After having heard the learned counsel appearing on behalf of the petitioner and having gone through the note submitted before the office, in order to decide the said controversy, it would be necessary to go through the relevant provisions of the Indian Succession Act, High Court Original Side Rules and provisions of Code of Civil Procedure. Section 122 of the Code of Civil Procedure gives power to Chartered High Courts to frame its own rules and the rules of the High Courts to that extent will be applicable in respect of procedure which has to be followed. The provisions accordingly of the Original Side have been made and therefore the provisions prescribed in the rules framed by the High Court would prevail over the provisions of the Code of Civil Procedure. This being the legal provision, in my view, the provisions of Order 49, will not be attracted, since specific rules have been framed by this Court for the purpose of service of citations and process of this Court.

(3.) The word citation is used in the sections 229 and 283 of the Indian Successions Act. The word citation has been defined in the Advanced Law Lexicon as under: