IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 28.11.2007 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRP.NPD.No.827 OF 2004 & CMP.No.10071/2006 1.M.K.Srinivasan 2.Kannan .. Petitioners/Petitioners Vs Rangarajan .. Respondent/Respondent Petition filed under Article 227 of the constitution of India against the endorsement made in Memo in S.O.P.No.114 of 2002 on the file of the learned Principal District Judge, Chengalpattu dated 31.12.2003. For Petitioners:Mr.V.Lakshmi Narayanan, Counsel For Respondent Mr.Rangarajan: No appearance ORDER The Civil Revision Petitioners are the legal representatives of the deceased S.Selvaranga Battachariar who wrote a last Will and Testament dated 27.04.1993 in the presence of witnesses. The said testator, Late.S.Selvaranga Battachariar did not appoint any executor of his Will. The revision petitioners herein have filed S.O.P.No.114 of 2002 on the file of the learned Principal Judge, Chengelpattu praying permission to prove the said Will in common form and with Letters of Administration to the properties and credits of the said deceased to have effect throughout the State of Tamil Nadu may be granted to them. 2.Before the learned District Judge, Chengalpattu, a Memo was filed by the learned counsel for the revision petitioners/plaintiffs stating that since the testamentary succession falls within the ambit of original side jurisdiction, viz., Sub Court, it was requested by both sides to treat the main Original Petition as suit and transmit the same to Sub Court, Chengalpattu. Besides, the pecuniary jurisdiction of the case works out to Rs.34,000/- triable by Sub Court and that this Court has ordered for transmission of the petition to the file of the learned District Munsif-cum-Judicial Magistrate, Thirukkazhukundram, which has no jurisdiction to try the testamentary succession, as per section 2[bb] of the Indian https://hcservices.ecourts.gov.in/hcservices/ Succession Act and prayed for passing necessary orders to call for the original petition from the file of the learned District Munsif-cum-Judicial Magistrate, Thirukkazhukundram and to transmit the same to Principal Sub Court, Chengalpattu in the interest of justice. 3.The matter was called in open court on 18.02.2003 and it was heard and posted for orders on 31.12.2003 by the learned Principal District Judge, Chengalpattu. The learned Principal District Judge, Chengalpattu, passed an order on the Memo filed by the petitioners dated 10.10.2003 observing that ‘the total value of the security after deducting the funeral expenses and medical expenses is Rs.28,800/- which could be the value of the suit in the event of the transfer from the file of the District Court, testamentary jurisdiction to the file of the original jurisdiction as contentious suit and in that circumstances, the value of the suit has to be considered as Rs.28,800/- which would consequently attract the jurisdiction of the District Munsif Court, Thirukkazhukundram and therefore, the suit has to be numbered on the file of the District Munsif Court, Thirukkazhukundram and hence, the transfer effected by this Court stands good and retransfer of the suit cannot be ordered’. 4.Aggrieved against the orders passed by the learned Principal District Judge, Chengalpattu, on the Memo dated 10.10.2003 filed by the revision petitioners/petitioners, the present Civil Revision Petition has been filed before this Court. 5.Learned counsel for the revision petitioners submits that the order passed by the learned Principal District Judge, Chengalpattu, on the Memo dated 10.10.2003 is manifestly erroneous and opposed to law and that the court below has over looked the fact that the Munsif Court has no jurisdiction to try contentious matter arising out of Indian Succession Act. He also further contended that section 266 of the Indian Succession Act is a bar for conducting the proceeding before any Court other than the District Munsif or its delegate and that the Civil Courts Act has no application to the present case, as the proceeding under Indian Succession Act is a special procedure and that the general law has no application and therefore, prayed for allowing the revision by setting aside the order dated 30.12.2003 passed on the Memo filed. 6.Section 2[bb] of the Indian Succession Act defines the terms 'District Judge' means a Judge of a Principal Civil Court of original jurisdiction. 7.Learned counsel for the revision petitioners contends that in regard to the grant of Probate and Letters of Administration, the jurisdiction of Subordinate Courts have been clearly spelt out in the Full Bench decision of this Court reported in 1962 [2] MLJ 18 between R.RAMA SUBBARAYALU REDDIAR VS. RENGAMMAL, wherein https://hcservices.ecourts.gov.in/hcservices/ at pages 321 to 323, it is observed as follows: “The Indian Succession Act, 1925, is a consolidating stature which repealed and re- enacted several statutes which dealt with succession to and protection of the property of a deceased person. Certain parts of it relate to particular class of citizens or to disposition of properties situate in the formers Presidency Towns. It is unnecessary to examine them now. Chapter VI of Part IX of the Act relates to the practice and procedure in the matter of granting and revoking probate of a will or Letters of administration to the estate of a deceased person. Section 264 confers jurisdiction on the District Judge to grant or revoke probate or letters of administration. Section 265 lays down that the High Court may 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 matters. A District Delegate’s powers in that regard is however circumscribed. The distinction between the powers of a District Judge and District Delegate is that while the former, can grant probate or letters of administration where the deceased at the time of his death had fixed abode or where any property movable or immovable is alone situate within his jurisdiction, the District Delegate can grant them only in the former class of cases [vide sections 270 and 273 of the Act]. The District Delegate can only dispose of non-contentious cases: once a contest arises he will have to transfer the case to the District Judge. An application for revocation of a grant originally made in a non-contentious proceeding cannot even be decided by him [Vide Section 286] as the very filing of the application for revocation will raise a contest. A District Delegate can also refer a non-contentious matter for disposal by the District Judge. There is also a difference in regard to the conclusiveness of a grant made by the District Delegate and the District Judge. The limited jurisdiction granted to District Delegate is not a peculiar feature of the Succession Act of 1925. It existed in the earlier Succession Act of 1865 and the Probate and Administration Act of 1881. Under those enactments [as well as under the present Act] all contentious proceedings, and all those proceedings in which the deceased at the time of his death did not have permanent abode within the https://hcservices.ecourts.gov.in/hcservices/ jurisdiction of the District Delegate whether contentious or not had to be disposed of by the District Judge. Accumulation of work in the District Court became inevitable. The Bengal, Agra and Assam Civil Courts Act, 1887, made a provision by section 23 therein enabling the High Court by a general or special order to authorize any subordinate Judge or Munsif to take cognizance or any District Judge to transfer to a Subordinate Judge or Munsif under his administrative control any contentious proceeding under the Indian Succession Act, 1865 and Probate and Administration Act, 1881. There was a similar legislative provision in the Punjab Civil Courts Act, 1918, the Central Provinces Courts Act, 1917 and the Bombay Civil courts Act, 1869, the respective statutory provisions being sections 30,19 and 28-A. No such provision was made originally in the Madras Civil Courts Act, 1873. Sub-clause [1] to that section, which alone is relevant to the subject under consideration, states: 'The High Court may be general or special order authorize any Subordinate Judge to take cognizance of, or any District Judge to transfer to any Subordinate Judge under his control any proceeding under the Indian Succession Act, 1925, which cannot be disposed of by the District Delegates.' The terms of the section are clear. It authorizes a disposal by the Subordinate Judge of any proceeding under the Indian Succession Act, 1925, other than those that could be disposed of by the District Delegate. The clause relating to transfer also emphasizes the fact that a Sub- Judge duly authorized can dispose of all proceedings that could be disposed of by the District Judge himself. The words “cognizance of” will imply a right to deal with the matter legally and judicially and will also include a power to entertain such proceedings. Therefore the jurisdiction of a Sub Judge invested with a power under section 29[1] of the Madras Civil Courts Act is that of a District Judge and not that of District Delegate under Succession Act. This view is also borne out by sub-clause [3] to that section which provides a right of appeal from the decision of a Subordinate Judge authorized under clause [1] as if he is a District Judge. Thus a notification under the https://hcservices.ecourts.gov.in/hcservices/ above section confers a new jurisdiction on a Sub-Judge to decide all matters, under the Succession Act which cannot be disposed of by a District Delegate. Much of the argument before us proceeded on the assumption, an assumption for which there is no warrant, that the notification under section 29[1] of the Madras Civil Courts Act confers a jurisdiction on a District Delegate, [Sub-Judge] to dispose of mattes which he would have no jurisdiction to do directly under the provisions of the Indian Succession Act, 1925. A district Delegate appointed under section 265 owes his authority to that source; but a Sub-Judge who is invested with jurisdiction under a notification under section 29[1] of the Madras Civil Courts Act has a different jurisdiction. Thus there is a distinction between the two authorities. For one thing a notification under section n265 can authorize any judicial officer not necessarily a Sub-Judge, to perform the duties given under the statute to District alone can deal with the matters specified therein. It will also be noticed that the notification made by this Court itself makes the distinction; it consists of two parts [1]empowering Sub-Judges under section 265 of the Succession Act so as to enable them to try non-contentious cases; [2] empowering Sub-Judges under section 29[1] of the Madras Civil Courts Act to take cognizance of all proceedings which they could not do qua District Delegates. The latter jurisdiction therefore, cannot be the same as that of a District Delegate. Mr.V.Ramaswami appearing for the appellant in an able argument contended that what section 29 of the Civil Courts Act intended in effect to achieve was to confer a power on District Delegates which section 286 of the Indian Succession Act expressly prohibited them from exercising. Learned counsel further submitted that if the Legislature did really intend to confer an unrestricted jurisdiction on the Subordinate Judges they could have simply amended in an appropriate manner the Indian Succession Act and that a harmonious construction of the two statutory provisions would require that the Sub- Judge authorized under section 29[1] of the Madras Civil Courts Act could do nothing more than what a District Delegate could. This contention, if accepted, would make section 29[1] https://hcservices.ecourts.gov.in/hcservices/ of the Civil Courts Act a dead letter and would perpetuate the very mischief which was attempted to be remedied; it is also against the plain terms of the section. In a recent case S.A.No.179 of 1959 my learned brother Veeraswami, J. had to consider the precise question and in the Course of his Judgment observed:- 'As I said, in view of the provisions of sections 265 and 286 of the Indian Succession Act, there can be no doubt that a District Delegate is not competent to deal with a contentious testamentary matter. But the power of the Subordinate Judge of Tuticorin to deal with such a matter is not rested upon the provision in Part IX of the Indian Succession Act, but on the power delegated to him by the notification of the High Court under section 29[1] of the Madras Civil Courts Act.' If I may say so with respect this is an accurate statement of the position. The question is not whether the Legislature could have better achieved its object by making suitable amendment to the Indian Succession Act but rather whether they have done so by introducing section 29 in the Madras Civil Courts Act, which is also a Central enactment. It must be noticed that there was legislation in most of the other Provinces or States conferring jurisdiction on Sub-Judges, etc., if they were to be invested with the necessary powers by the High Court to try contentious cases. The cause and necessity for legislation was therefore peculiar to the Madras Province, where there was need to confer jurisdiction on courts other than those of District Judge, similar to those existing in other States. Evidently, it was thought sufficient, if the Madras Civil Courts Act were alone amended. Nor are we able to accept the argument, that there is any inconsistency between section 265 of the Indian Succession Act and section 29 of the Madras Civil Courts Act and that both of them cannot stand together unless they are interpreted in the way contended for. The two provisions deal with distinct matters, the former with those entrusted to District Delegates and the latter to all the other https://hcservices.ecourts.gov.in/hcservices/ matters.” 8.Learned counsel also cited the decision in 1980 T.N.L.J. page 471 between ANNAMMAL AND OTHERS VS. SANTAGU AND OTHERS, wherein it is held in pages 473 to 475 as follows: “Under Section 264 of the Indian Succession Act, jurisdiction is conferred on the District Judge to grant or revoke probate or letters of administration. The expression “District Judge” is defined by section 2[bb] as meaning the Judge of a Principal Civil Court of original jurisdiction. Provision is made under section 265 of the Act for the appointment of judicial officers within the district as the High Court may think fit to act for the District Judge as Delegates in non-contentious matters relating to the grant of probate or letters of administration. However, it is necessary to bear in mind that the powers of the District Delegate are circumscribed and while the District Delegate can grant probate or letters of administration when the deceased at the time of his death had fixed abode, the District Judge can grant the probate or letters of administration where the deceased had a fixed abode or where any property movable or immovable is alone situate within his jurisdiction. The District Delegate is empowered only to dispose of non-contentious cases and if once a contest is raised, the matter has got to be referred to the District Judge. An application for revocation of a grant made in a non-contentious proceeding cannot be decided by the District Delegate as the very filing of an application for revocation would raise a contest. The non-contentious matter can also be referred by a District Delegate to the District Judge. In addition, even on the question of conclusiveness of a grant made by the District Delegate and a District Judge, there is a difference. It is not as if the limited jurisdiction conferred on the District Delegate was something very peculiar to the is only. But even in the earlier enactments, the difference in the scope of the jurisdiction of the Delegate and the District Judge had been maintained. As a consequence of this, there was a large-scale accumulation of work in the District Court which led to the passing of the legislation in several States with a view to enable the High Court to authorize any Subordinate Judge or even Munsif to take cognizance of or any District Judge to transfer to a Subordinate Judge or Munsif any contentious https://hcservices.ecourts.gov.in/hcservices/ proceeding under the Indian Succession Act, 1865 and the Probate and Administration Act, 1881. In so far as Tamil Nadu is concerned., originally, the Tamil Nadu Civil Courts Act, 1873 was passed and no provision for any transfer as such had been made therein. This was noticed later which led to the passing of the Act XIV of 1926 which introduced Section 29 of the Tamil nadu Civil Courts Act, 1873. Sub-section [2] provided that the District Judge may withdraw any such proceedings taken cognizance of by, or transferred to, a Subordinate Judge, and any either himself dispose of them or transfer them to a Court under his control competent to dispose of them. Under sub-section [3] it was provided that notwithstanding anything contained in section n13, proceedings taken cognizance of by, or transferred to a Subordinate Judge under the provisions of this section shall be disposed of by him subject to the law applicable to like proceedings when disposed of by the District Judge. It is necessary to refer to two Notifications which conferred jurisdiction on Sub Courts to deal with matters for the grant of probate of a will. Under the terms of the Notifications made by this Court under section 265 of the Indian Succession Act, all Subordinate Judges in Madras Province have been appointed ex- officio District Delegates under that enactment within the local limits of the respective jurisdiction. By another Notification under section n29 [1] of the Tamil Nadu Civil courts Act referred to above, all Subordinate Judges in Madras Province have been authorized to take cognizance of any proceedings under the Indian Succession Act, 1925 which cannot be disposed of by the District Delegates [vide Civil Rules of Practice, Volume I, p.275]. It is at once obvious that the power of transfer of a District Judge in matters arising under the provisions of the Indian Succession Act is referable to section 29[1] and by virtue of the second Notification referred to above, the Subordinate Judge is invested with the jurisdiction to try a proceeding of the nature now under consideration. The question that arises now is, whether the Sub Court, exercising the jurisdiction in a matter under the provisions of the Indian Succession Act transferred to it is acting as a court subordinate to the District Court or whether it is a court of concurrent jurisdiction with the District Court so that any order passed by it https://hcservices.ecourts.gov.in/hcservices/ would be appealable to this Court under section 299 of the Indian Succession Act. It is true that under Section 264, jurisdiction is conferred on District Judge to grant or revoke probate or letters of administration. But by the combined effect of Section 29[1] of the Tamil Nadu Civil Courts Act and the second Notification referred to above, the investiture of jurisdiction on Sub- courts in such matters is not to take away the jurisdiction conferred on the District Judge, with the result that both the District Judge as well as the Subordinate Judge will have concurrent jurisdiction for trying matters arising within the jurisdiction of the District Judge. The circumstance that proceedings for the grant of probate have been taken in the Sub Court is only in conformity with the provisions of the Code of Civil Procedure that the proceedings should be initiated only in the Court of a lower grade competent to try. If the jurisdiction is exercised by a Sub Court in a proceeding received on transfer from the District Court pursuant to Section 29[1] of the Act and the Notification, then the Sub Court is really exercising the jurisdiction of the District Judge. This position is well established by the Full Bench decision in 1962 II MLJ p.318. It is therefore, obvious from the aforesaid Full Bench that the jurisdiction of the District Court as well as of the Sub court is concurrent in a matter like this and the effect of the order passed by the Subordinate Judge is the same as that passed by the District Judge exercising his functions under the provisions of Indian Succession Act. It is also significant to note that there is no provision in the Indian Succession Act which makes available a remedy by way of an appeal as against an adjudication made by a Sub Court in a proceeding under the Act received on transfer from the District Court. The provisions contained in Section 388 of the Indian Succession Act cannot be applied to a case like the present as the provisions therein are confined to matters under Part X of the Act relating to succession certificates and would not apply to Chapter IV, wherein provision has been made for granting probates under section 264 and an appeal has also been provided for under section 299 of the Indian Succession Act.” 9.It is the contention of the revision petitioners that District Munsif Court cannot be treated as Principal Court of https://hcservices.ecourts.gov.in/hcservices/ original jurisdiction and Act 28 of 1995 did not amend section 29 of the Tamil Nadu Civil Courts Act in regard to the exercise of powers by Subordinate Judge of jurisdiction of District in certain proceedings. Section 266 of the Indian Succession Act invests the District Judge as a Probate Court with all the powers of ordinary civil court which he has in relation to any suit or proceedings pending in his court. The proceedings for the grant or revocation of probate or letters of administration have been held to attract the procedure of the Civil Procedure Code. Section 278 of the Indian Succession Act, 1925 speaks of the petition for letters of administration. As per section 265 of the Indian Succession Act, 1925, the High Court is authorized to appoint delegates for granting probates and letters of administration in non-contentious cases within certain limits and the appointments must be made from judicial officers within particular District concerned. If the Subordinate Judge and the District Delegate are one and the same person, he can have jurisdiction to dispose of contentious proceedings if such proceedings have been transferred to him in his capacity as Subordinate Judge by order of the District Judge or when a Government Notification under the relevant Act, for example, under section 29[1] of the Madras Civil Courts Act, 1873, has empowered Sub Judge to take cognizance and dispose of contentious proceedings. The Sub Judge under the new jurisdiction so created, can dispose of the contentious proceedings and this new jurisdiction is not tantamount to taking away the jurisdiction of the District Judge over contentious proceedings. 10.In AIR 1967 GUJARAT PAGE 214 between BAI ZABU KHIMA VS. AMARDAS BALAKDAS, it is observed as follows: “Succession Act [1925], Senior Superintendent.265 and 288 – Effect of sections read together is that a Civil Judge, senior division who is a District Delegate cannot grant letters of administration in contentious applications – Saurashtra District and Subordinate Civil Courts Ordinance [1948], S.28-A[1] – High Court’s Notification dated 30.07.1948 – Ordinance empowers High Court to invest powers of a District Judge on any Civil Judge – Notification by the High Court conferring all the powers of a District Judge on all Civil Judges of Senior Division – The Civil Judge can, therefore, entertain a contention – such power has not been affected by the Bombay Civil Courts Act, 1869 – [Bombay Civil Courts Act [14 of 1869], S.28-A] – Bombay Civil Courts [Extension and Amendment] Act [94 of 1958], S.8 proviso – Effect of, is to continue High Court’s Notification as if issued under S.28-A, Bombay Civil Courts Act notwithstanding repeal of ordinances.” https://hcservices.ecourts.gov.in/hcservices/ 11.It is pertinent to point out that Section 388 of the Indian Succession Act, 1925 deals with the investiture of an of an inferior Court with the jurisdiction of the District Court for the purposes of this Act and the appealability of the orders orders of such inferior Courts to the District Judge. In AIR 1949 MADRAS 818 between G.RANGARAJA RAO VS. A.THULASIBAI AMMAL, it is held as follows: "The proper way of construing S.29[1], Madras Civil Courts Act and S.388, Succession Act is to say that the general words of S.29[]1, Madras Civil Courts Act, should be limited to proceedings under the Succession Act other than Part X for which the special provision