NARBHERAM JIVRAM PUROHIT Vs. JEVALLABH HARJIVAN

JUDGEMENT

(1.) One Hirabai widow of Madhavji Makanji died at Bombay on or about January 1, 1932, leaving a will dated December 20, 1931, of which the defendant is the executor. Defendant applied to this Court for probate on July 12, 1932, and probate was granted to him on August 5, 1932. The plaintiffs say that they are the sons of a cousin of the deceased and claim to be her heirs. On August 20, they filed this suit praying for a declaration that they are the heirs of the deceased Hirabai, that the will is not her valid and lawful will, that the grant of probate may be revoked, and that it may be declared that the plaintiffs as heirs of the deceased are entitled to the estate left by her and that the same may be handed over to them, and for other reliefs. On August 22, 1932, the plaintiffs took out a notice of motion for an order revoking the grant of probate and for appointment of a receiver and for injunction. In the argument a preliminary point was raised on behalf of the defendant, namely, whether the High Court in the exercise of its ordinary original civil jurisdiction had jurisdiction to try the suit, as it contained a prayer for revocation of probate which was granted by this Court in the exercise of its testamentary and intestate jurisdiction. The defendant contended that the suit and the notice of motion should be dismissed. The suit was accordingly set down on board for argument on this preliminary point.

(2.) It was contended on behalf of the defendant that if the grant of probate was to be contested, it must be contested before the Court sitting as a Court of Probate, that is, sitting on the testamentary side in the exercise of its testamentary and intestate jurisdiction, and not in the exercise of its ordinary civil jurisdiction. The provisions of the Indian law regarding the grant of probate and letters of administration to the estate of a deceased person are to be found in the Indian Succession Act, 1925. Chapter I of Part IX deals with the grant of probate and letters of administration. Chapter III deals with the alteration and revocation of grants, and Chapter IV, with the practice in granting and revoking probate and letters of administration. An application for probate of a will is to be made by petition to the High Court, or under Section 264 of the Act to the District Judge in all cases falling within his district. The application to the High Court for probate must be made by petition in form No. 83, and an application for letters of administration must also be made by petition in form No. 88 of the High Court Rules and Forms, Such petition is intituled :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION. If the application is unopposed, the grant from the Registry follows as a matter of course, and is drawn up by the Prothonotary and Senior-Master of the Court. If it is opposed, a caveat is filed, and on an affidavit in support of the caveat being filed the proceedings are turned into a suit, and the suit is numbered. There are separate numbers for suits filed on the Testamentary Side of the High Court. The grant of probate or letters of administration or the refusal thereof depends upon the result of the suit.

(3.) It is clear, therefore, that the grant issues from the High Court in the exercise of its testamentary and intestate jurisdiction, and when an application is made to revoke the grant, the question arises whether such an application can be made only by way of proceedings instituted in the Court out of which the grant issued, or whether it can also be made to the Court exercising its original civil jurisdiction. Counsel for the plaintiffs, by way of analogy only, as I take it, referred in the first place to the jurisdiction of the High Court of Judicature in England. In England, before the Judicature Act was passed in 1873, it was held that when the Court having jurisdiction, that is, the spiritual or Ecclesiastical Court, granted probate or letters of administration, the probate or letters, so long as they were unrepealed, could not be impeached in the temporal Courts: see Allen V/s. Dundas (1789) 3 T.R. 125, 130 and The Attorney General V/s. Partingfam (1864) 3 H. & C. 193. By the Judicature Act of 1873 the several Courts exercising different functions were consolidated together into one Supreme Court of Judicature of England, divided into Her Majesty's High Court of Justice and Her Majesty's Court of Appeal, and under Section 16 of that Act the jurisdiction vested in or capable of being exercised by such Courts, which included the Court of Probate, was transferred to or vested in the High Court of Judicature. Other Judicature Acts were passed after 1873, and now under the Supreme Court of Judicature (Consolidated) Act of 1925, which consolidated the Judicature Acts from 1873 to 1910 and other enactments relating to the Supreme Court and the administration of justice thereunder, there is also one Supreme Court of Judicature in England, similarly divided into the High Court and the Court of Appeal. Under Section 4(1) of the Act of 1925, as amended in 1928, the High Court is to have three divisions "for the more convenient despatch of busipess," namely, the Chancery Division, the King's Bench Division, and the Probate, Divorce and Admiralty Division. Section 4(4) provides that without prejudice to the provisions of the Act relating to the distribution of business of the High Court, all jurisdiction vested in the High Court under the Act belongs to all the divisions alike. Secs.55 and 56 regulate the distribution of business and the assignment of business to the three divisions. The result, therefore, is that a Judge belonging to any division has jurisdiction to hear any action within the jurisdiction of the High Court. He may retain and deal with an action wrongly assigned to his division, or he may refuse to exercise his jurisdiction over it, and under Section 58 transfer it to the proper division where it can be more conveniently and appropriately dealt with. In Russian Commercial and Industrial Batik v. British Sank for Foreign Trade, ld. [1921] 2 A.C. 438, Lord Dunedin pointed out that the Chancery Division was not in the strictest sense of the word a separate Court from the High Court of Justice, and at p. 460 Lord Wrenbury stated that the High Court of Justice was after all one Court although divided into divisions and with certain business assigned to one division to the exclusion of another. In Pinney V/s. Hunt (1877) 6 Ch. D. 98 Jessell M.R. held that a Judge of the Chancery Division had under the Judicature Act jurisdiction to grant probate, but that it would not be using a sound discretion in exercising it, apart from the inconvenience caused by allowing the peculiar business of the Probate Division to be distributed over all the other divisions. In In re Ivory, Hanlcin V/s. Turner (1878) 10 Ch. D. 372 letters of administration were granted to the brother of the deceased. Plaintiff then commenced an action in the Chancery Division for the administration of the estate of the deceased, alleging that he was the next of kin. It was held by Lush J. that letters of administration were conclusive that defendant was one of the next of kin, and the proper course for the plaintiff was to apply to the Probate Court to have the letters of administration recalled. These decisions were followed in Bradford V/s. Young (1884) 26 Ch. D. 656 in which it was held that though the Chancery Division might have jurisdiction to recall the probate of a will, it ought not as a general rule to exercise it. There is also an observation of the Lord Chancellor in Stead V/s. Smith [1911] A.C. 688, that "it will always be borne in mind that all legal proceedings ought to be so far as practicable localized for the convenience of those concerned either in litigation or in any other legal business which may come before any officers of the Court."