G RENGARAJA RAO Vs. ATULASIBAI AMMAL

JUDGEMENT

(1.) This is an appeal against the order of the Subordinate Judge of Cuddalore directing the issue of a succession certificate to the respondent Tulasi Bai. She is the daughter of one Venkobai Ammal who is said to have executed a will dated 9 March, 1944, bequeathing all her properties to her daughter. The appellant who is the step-son of Venkobai opposed the application to the grant of succession certificate. His objections were firstly that succession certificate could not be issued by reason of Section 370 of the Indian Succession Act, 1925 (XXXIX of 1925); secondly that the Subordinate Court had no jurisdiction as the deceased was residing at the time of her death within the district of Chittoor where she is said to have executed the will and where she died; and thirdly that the will was not true and valid. All his contentions were overruled. Hence the appeal by him to this Court.

(2.) A preliminary objection is taken by the responden's advocate that the appeal would he only to the District Court of South Arcot and not to this Court. He relied on the proviso the Sub-section (2) of Section 388 of the Act. The appllant's advocate argues the the proviso is inapplicable as there was no notification by the Provincial Government investing the Subordinate Court of Cuddalore with power to exercise the functions of a District Judge under Part X of the Indian Succession Act (XXXIX of 1925). It is admitted that neither under Section 26 of the Succession Certificate Act (Act VII of 1889), nor under Section 388 of the Indian Succession Act (XXXIX of 1925) was there any notification by the provincial Government investing the Subordinate Judge's Court of Cuddalore with powers to exercise the functions of the District Court. The proviso therefore relied on by the respondent's advocate is inapplicable. On the other hand Section 29 of the Madras Civil Courts Act, 1873, and a notification issued under Sub-clause (1) of the said section by the High Court are relied on, as the authority under which the Subordinate Judge of Cuddalore is empowered to issue succession certificates. Assuming this to be correct, it would follow that the appeal against the order of the Subordinate Judge would only lie to the High Court by virtue of Section 384, Sub- clause (1) of the Indian Succession Act, 1925, and Section 29, Sub-clause (3) of the Madras Civil Courts Act, 1873 (Act III of 1873). Section 384(1) of the Indian Succession Act provides that an appeal shall lie to a High Court from an order of a District Judge granting a certificate under Part X of the Act, subject to other provisions of the said Part X. The only other provision dealing with the form of appeal in the said Part X of the Act is the proviso to Sub-clause (2) of Section 388 which I have considered earlier in this judgment. The said proviso being inapplicable to the circumstances of the present case, Section 384, Clause (1) would apply and the appeal will be only to the High Court. It may be noted that Clause (3) of Section 29 of the Madras Civil Courts Act, 1873, provides that proceedings taken cognizance of by a Subordinate Judge under the provisions of Section 29 shall be disposed of by him subject to the law applicable to like proceedings when disposed of by the District Judge, and this notwithstanding anything contained in Section 13 of the said Act, Section 13 provides for the form of appeal from judgment and decrees of Subordinate Judges. The reference to Section 13 in Sub-clause (3) of Section 29 of the Madras Civil Courts Act, 1873, is made only because the proceedings of the Subordinate Judge under Section 29 shall be governed in the matter of appeals also by the same law as would apply to proceedings by a District Judge. In other words, the right of appeal is provided and this right of appeal is on the same basis as if the Subordinate Judge is a District Judge in dealing with this matter. That would mean that an appeal against an order of a Subordinate Judge in proceedings taken cognizance of by him by virtue of a notification under Section 29(1) shall be only to the High Court irrespective of the pecuniary limits imposed by Section 13 of the Madras Civil Courts Act. In this view the preliminary objection fails and is. overruled.

(3.) On the merits I have no hesitation in concurring with the finding of the Subordinate Judge that the will is proved to be true and valid. The evidence of P.W. 1 is sufficient. Nor is it necessary to take out probate or letters of administration in respect of this will as it was not executed within the Presidency town of Madras, and as it does not deal with any of the immoveable Droperties within those limits.