MAKHAN LAL KOUL Vs. PRABHA KAUL

JUDGEMENT

(1.) THE learned District Judge, Jammu while dismissing the application of the appellant seeking probate of his fatherâ„¢s will under the Probate and Administration Act vide his order dated 5.7.1993 impugned in this appeal, for totally un -explained reasons appears to have lost sight of an important fact having close bearing on the subject matter. It appears that the learned District Judge forgot, while disposing of the application and declining relief that the application was originally filed in this court and this court vide its order dated 6.11.1991 had transferred the application to him for disposal in accordance with the law. While, therefore, declining to entertain the application on the ground of lack of jurisdiction, the District Judge failed to note in his order under appeal that he was seized of the matter not because of the act of the appellant in approaching him directly, but because of the transfer to his court of the application, by the High Court.

(2.) CHAPTER -V of the Probate and Administration Act deals with the practice, powers and procedure in granting and revoking probates and letters of administration, u/s 51 of the Act, the District Judge has been given the jurisdiction in granting and revoking the probates and letters of administration in all cases within his District. Section -53 provides that the District Judge shall have the like powers and the authority in relation to the granting of probate and letters of administration and in relation to all matters connected therewith, as are by law vested in him in relation to any civil suit or proceeding pending in his court. Under section 55, the proceedings in all such matters shall be regulated by the Code of Civil Procedure. A cumulative reading of the aforesaid provisions of the Act, therefore, leaves no one in any doubt that the District Judge acts like a civil court in the matters of granting of probates and that the provisions of the Code of Civil Procedure apply to such matters. It is no doubt true that under section 51 of the Act, the District Judge of the concerned district has the powers to deal with the issues involved, but the High Court, in the exercise of its powers u/ s 24 of the Code of Civil Procedure can, in a given case transfer the proceedings to a District Judge who otherwise, under the Act, has no territorial jurisdiction to deal with the matter. The vesting of the powers in the High Court of transferring the cases from one court to another in the State, in effect and substance means that the High Court can assign to a subordinate court a matter for being disposed of, even though. otherwise under a particular statute such subordinate court does not have the territorial jurisdiction. Once, therefore, the High Court transfers or assigns a matter to a District Judge, it simultaneously with the order of transfer clothes him with the power and jurisdiction to deal with the matter. In such a situation there is no question therefore, either of lack of jurisdiction in such a court or anyone challenging or questioning the jurisdiction of such a court on any ground.

(3.) IN the aforesaid background, therefore, I think it was not proper for the District Judge to have dismissed the petition for lack of jurisdiction. It was equally improper for him in having failed to take note of the order of the High Court in transferring the case to him.