Probate No.2 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Probate No.2 of 2010(O&M) Veena Kang .....Petitioner Versus General Public and others .....Respondents (2) Probate No.3 of 2009 Kamaljit Singh and another .....Petitioners Versus General Public .....Respondent Date of Decision:21.07.2010 CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.N.C.Kinra and Mr.Amit Jhanji, Advocates, for the petitioners. **** M EHINDER S INGH S ULLAR , J.(oral) As an identical question of law and facts is involved, therefore, I propose to dispose of the indicated probate/letter of administration petitions by virtue of this common judgment, in order to avoid the repetition. However, the relevant facts, which need a necessary mention, have been extracted from Probate No.2 of 2010 titled as Veena Kang Versus General Public and others. 2. The epitome of the facts, culminating in the commencement, relevant to consider the core question of maintainability of these petitions and emanating from the record, is that the petitioners directly filed the instant petitions in this Court, for the grant of probate/letters of administration of the estate of the deceased, invoking the provisions of Sections 276 and 278 of the Indian Succession Act, 1925 (hereinafter to be referred as “the Act”). The moot point that Probate No.2 of 2010 2 arises for determination in these cases, is whether the petitioners can straightway file the petitions before the High Court, without first approaching the concerned District Judge or not? 3. Having regard to the contentions of the learned counsel for the petitioners, having gone through the relevant provisions of law with their valuable help and after bestowal of thoughts over the entire matter, to my mind, at the first instance, the petitioners were required to file these petitions before the concerned District Judge, instead of straightway jumping to invoke the concurrent jurisdiction of this Court. 4. However, the main celebrated argument of the learned counsel that this Court has the concurrent jurisdiction to entertain the petitions under Section 300 of the Act, is neither tenable nor the observations of this Court in the matter of the estate of Shri Buja Singh, deceased in Probate Petition No.6 of 1979, 1980 PLJ 586 , are at all applicable at this initial stage in this relevant connection. 5. As is evident from the record, the petitioners have sought probate/letters of administration of the estate of the deceased, invoking the provisions of the Act. Chapter IV of the Act deals with the practice and complete procedure of granting and revoking probates and letters of administration by the District Judge. Section 264 of the Act postulates that the District Judge, shall have jurisdiction in granting and revoking probates and letters of administration in all cases within his district. Section 265 empowers the High Court to appoint such judicial officers within any district as it thinks fit to act for the District Judge as delegates to grant probate and letters of administration in non-contentious cases, within such local limits, as it may prescribe. 6. Sequelly, Section 266 escalates that the District Judge shall have the like powers and authority in relation to the granting of probate and letters of administration, and all matters connected therewith, as are by law vested in him in relation to any civil suit or proceeding pending in his Court. Section 267 provides Probate No.2 of 2010 3 that the District Judge may order any person to produce and bring into Court any paper or writing, being or purporting to be testamentary, which may be shown to be in the possession or under the control of such person. 7. Similarly, Section 268 posits that the proceedings of the Court of the District Judge in relation to the granting of probate and letters of administration shall, save as hereinafter otherwise provided; be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure. Section 269 deals with the power of the District Judge to interfere for protection of the property. Section 270 also deals with a situation when probate or administration is granted by the District Judge. Section 271 relates to the disposal of the petition made to Judge of the District in which the deceased had no fixed abode. 8. Likewise, according to Section 276, an application for probate or for letters of administration, with the Will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the Will or, in the cases mentioned in Sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed and stating the details mentioned therein. Section 278 emanates the procedure for filing the petition for letter of administration in the Court of District Judge. 9. Not only that, Schedule VI and VII of the Act prescribes the format of petitions of probate and letter of administration, to be filed before the District Judge. Even the model specimen for a petition for obtaining a probate/letter of administration under Sections 276 and 278 of the Act, also indicate that such petitions have to be instituted in the Court of District Judge. Section 299 of the Act further posits that every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure, applicable to appeals. Probate No.2 of 2010 4 10. Above all, Section 15 CPC further mandates that every suit shall be instituted in the Court of the lowest grade competent to try it. 11. Thus, it would be seen that a co-joint reading of these mandatory provisions would leave no manner of doubt and indicate that at the first instance, it was only the District Judge, who is competent to entertain and specifically empowered to decide a petition of probate/letter of administration, as per procedure prescribed under Chapter IV of the Act(Emphasis supplied). 12. Possibly no one can dispute that the High Court has the concurrent jurisdiction as well under Section 300 of the Act as observed in Shri Buja Singh's case(supra). Be that as it may, but this provision cannot possibly be interpreted to mean that the initial jurisdiction of the District Judge to entertain such a petition, is completely excluded. To me, the concurrent jurisdiction of the High Court can only be invoked in the special and compelling situations and not in a routine manner. 13. Above being the legal position, to my mind, the petitioners were legally required to first approach the District Judge, as enumerated under Chapter IV of the Act and Section 15 CPC, to enable the aggrieved party to file the appeal in the High Court, as envisaged under Section 299 of the Act. 14. There is another aspect of the matter which can be viewed from a different angle. The petitioner claimed the probate with respect to the registered Will dated 05.02.2009 executed by the deceased in her favour in the presence of the witnesses. It is not a matter of dispute that the deceased had left respondent Nos.2 to 4 as his natural heirs as well. They have been excluded on the basis of Will and were dis-entitled from inheriting the property of the deceased by virtue of natural succession. Meaning thereby, the validity of the Will or otherwise, relatable to the rights of the inheritance of the parties, would be the sole questions to be determined in these petitions, which would naturally require the production of the evidence by the parties in order to substantiate their respective stands. Probate No.2 of 2010 5 Therefore, instead of repeatedly calling the parties and their witnesses in the High Court from far-away places, it would otherwise be prudent and expedient in the interest of justice that such petitions be first decided by the concerned District Judges in order to avoid the inconvenience and litigation expenses of the parties, so that the High Court is free to hear and decide the appeals of aggrieved party under Section 299 of the Act. 15. In the light of reasons recorded here-in-above and thus seen from any angle, it is held that the petitioners ought to have filed the instant petitions before the concerned District Judge, at the first instance and the same deserve to be returned to them in the obtaining facts and circumstances of the case. 16. Therefore, the Registry is directed to return these petitions forthwith to enable the petitioners, to present the same in the Court of the concerned District Judge, for their decision, in accordance with law. Needless to say that the office will follow the due procedure, as contemplated under Order 7 Rules 10 and 10A of the Code of Civil Procedure in this relevant connection. July 21, 2010 (MEHINDER SINGH SULLAR) seema JUDGE Whether to be referred to reporter? Yes/No