LATE ISHAN Vs. JOGESH

JUDGEMENT

(1.) Both these petitions have been filed under Rule 8 of the Testamentary and Intestate Rules framed by the High Court of Judicature at Nagpur for issuance of the succession certificate under section 372 of the Indian Succession Act, 1925. On filing the same as per order dated 15-5-2012, time to file the undertaking in terms of Rule 8 in Form No. 7 prescribed in the said rule and-citation in terms of Rule 23 was granted. The undertaking was filed on 20-5-2012 and the citation was published in the daily newspaper 'Dainik Bhaskar' and 'Free Express' on 2-7-2012 specifying the date of hearing as 17-7-2012. In the meantime vide order dated 15-5-2012, direction to submits certificate by the Registrar as per Rule 9 and also to comply with Rule 10 with respect to payment of Court fee was issued. As per order dated 19-5-2012, Deputy Registrar of this Court was directed to issue the citation in form No. 11. Thereafter, when the matter came up for hearing on 17-7-2012, an objection was raised by this Court regarding the maintainability of the petition for grant of succession certificate in reference to the provisions of Indian Succession Act whereby the certificate can be issued by the District Judge. It was observed that this Court was having doubt regarding maintainability of the original proceedings for grant of certificate in the High Court. On the issue of maintainability of this petition, Shri Chitle, learned senior counsel assisted by Mr. Subodh Abhyankar have been heard at legth.

(2.) Mr. Chitle, learned senior counsel contends that Part 10 of the Indian Succession Act, 1925 deals with grant of succession certificate. Section 371 specifies that District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death or if no fixed place of residence is there, the District Judge within whose jurisdiction any part of the property of the deceased may be found, may grant succession certificate under the Act. The application for grant of such certificate may be applied for under section 372 and the certificate may be issued after following the procedure prescribed in section 373 of the Act. It is submitted by him that Court has been defined in section 2(bb) of the Act which reads as under:--

(3.) It is his contention that for the purpose of testamentary and intestate jurisdiction the High Court may fall within the definition of the District Judge and have concurrent jurisdiction to exercise such power. Rule 2 of Chapter 17 of High Court Rules and Orders 1956 specifies the rules for regulating the testamentary and intestate proceedings in exercise of the powers conferred under Article 225 of the Constitution of India read with clause 27 of the Letters Patent Act by the High Court of Judicature at Nagpur. While enacting the M.P. High Court Rules, 2008, in Chapter 22 the said rules have not been repealed and saved, in such circumstances the High Court is having the concurrent jurisdiction to maintain the proceedings for grant of succession certificate. Learned counsel representing the application placed reliance on the judgment of Madras High Court in the matter of M. Suresh vs. Mrs. B. Sumathi, 2008 AIR(Mad) 18 wherein it was held that after amendment in the Indian Succession Act, 1929, the definition of District judge has been introduced. The District Judge includes the High Court insofar as it entertain a petition and grant, revise or revoke the succession certificate and by virtue of clause 34 of the Letters Patent of Madras which gives the High Court jurisdiction in testamentary and intestate matters. It is submitted by him that Clause 27 of the Letters Patent of Nagpur High Court is pari materia and confer powers similar to Clause 34 of the Letters Patent of Madras High Court, therefore under the rules the succession certificate can be issued by the High Court. It is also submitted that M.P. High Court is the successor Court of Nagpur High Court and those rules are prevalent in Madhya Pradesh, however the High Court of Madhya Pradesh is having jurisdiction to entertain this petition for grant of succession certificate. Learned counsel further placed reliance on a judgment of Smt. Satyabala Dasi vs. Smt. Sudharanee Dasi, 1931 AIR(Cal) 580 wherein also it has been observed that the High Court can grant the succession certificate, further reliance is placed on a judgment of G.A. Kappuswami Nayagar vs. Kumaraswami Sastri, 1930 AIR(Mad) 100 wherein also the same proposition of law has been enunciated. In addition to the aforesaid, it is submitted that similar analogy has been propounded by the Full Bench in the matter of Mary Thomas vs. Dr. K.E. Thames, 1990 AIR(Mad) 100 In view of the foregoing, it is urged that the objection raised by this Court may be annulled maintaining this petition.