DURGA DUTT Vs. CHANDANU

JUDGEMENT

(1.) This is an appeal by an unsuccessful caveator against the order of the Senior Sub Judge, Nahan (exercising powers of a District Judge under the Indian Succession Act) granting letters of Administration, with a copy of the will annexed, in favour of the respondent Chandanu.

(2.) Chandanu relied upon a registered will executed in his favour by Mst. Shankari on the 25th Baisakh 2005B. The caveator-appellant did not dispute the execution of the aforesaid will in favour of Chandanu. His case, on the other hand, was that the will in favour of Chandanu stood revoked by a subsequent will executed by Mst. Shankari in favour of appellant and his brother Zalmu on 2-3-51. Therefore, the point for determination, before the court below, was whether the will relied upon by Chandanu had or had not been revoked by the alleged subsequent will in favour of Durga Dutt and Zalmu. The learned Senior Sub Judge came to the conclusion that the will relied upon by the appellant had not been properly attested as required by the provisions of Section 63, Succession Act. Consequently, he rejected the caveat and granted letters of administration in favour of Chandanu. Hence, this appeal.

(3.) When this appeal came up for hearing on the 14th instant, doubt was expressed (a) whether the learned Senior Sub Judge had jurisdiction to deal with this matter and (b) whether the appeal lay to this Court. As far as (a) is concerned, para 25, H. P. (Courts) Order, 1948, empowers this Court to authorise any Subordinate Judge to take cognizance of, and any District Judge to transfer to a Subordinate Judge any proceedings or any class of proceedings under the Indian Succession Act. Under Notification No. J-1-49/48, dated 11-11-48, issued by the Officer on Special Duty with the Judicial Commissioner, Himachal Pradesh, all Senior Sub Judges in Himachal Pradesh, were authorised to deal with all classes of cases under the Indian Succession Act. The present case was filed in the Court of the District Judge, Mahasu and Sirmur, who transferred it subsequently to the Senior Sub-Judge, Nahan. Since a special provision of law will override its ordinary provisions, the transfer of the case to the Senior Sub-Judge must be deemed to be valid. I would, therefore, hold that the Senior Sub-Judge was competent to deal with the case.