1 AO No.56/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.56 OF 2011 WITH CIVIL APPLICATION NO.502 OF 2011. 1) Vasantrao Tukaram Shirodkar Age: 70 Yrs., occu.Pensioner, R/o at Galli No.7, Dhule. 2) Latika Govindra Bulala (deceased) by her legal representatives 2-a) Pravin Ganpat Bulala Age: 55 Yrs., occu. Business. 2-b) Prasad Ganpat Bulala Age: 45 Yrs., occu. Business. 2-c) Sau.Vijaya Manohar Vadkar Age:Adult, occu.Household work Nos. 2(a) to 2(c) at Sonargalli, Khed, Dist. Ratnagiri. - APPELLANTS (orig.Respondents) VERSUS Sau. Ranjana Chandrakant Sonawane, Age: 47 Yrs., occu. Household, R/o at Kholgalli, Dhule. - RESPONDENT (orig.Plaintiff) ***** Mr.AP Bhandari, Adv. h/for Mr.SR Barlinge, Advocate for Appellants; Mr.PS Paranjape, Advocate for Respondent. ----- 2 AO No.56/2011 CORAM : K.U.CHANDIWAL, J. DATE OF RESERVING JUDGMENT : 19th DECEMBER, 2011. DATE OF PRONOUNCING JUDGMENT: 23rd DECEMBER, 2011. JUDGMENT: 1) Heard finally. 2) The appellant impugned the judgment of learned District Judge-II, Dhule in Civil Appeal No. 69/2006 (arising out of Probate Application No. 86/1997 dated 2nd August, 2010). 3) Vandana Tukaram Shimpi was a spinster, serving at Shahada as a teacher. She was suffering from breast cancer since 1996. Due to her ailment, she went to her sister – Smt. Ranjana to stay and ultimately during the treatment, she expired on 27.2.1997 while at Dhule. Deceased Vandana has executed a Will dated 6.1.1997, while she was mentally well or in a fit state of consciousness, which Will was registered in the office of Sub Registrar at Dhule. She bequeathed all her assets in favour of her sister – Ranjana and brother-in-law – Chandrakant Sonawane. She was a tenant of one Kusumlal Rasiklal at Shahada. She had a open plot at Shahada and recurring deposits in post office, totaling an amount of Rs.440/- apart from other deposits including gold and silver ornaments, household material, which she has bequeathed to above referred persons. 4) An application for probate was moved before 3 AO No.56/2011 the learned Civil Judge, Senior Division at Dhule, wherein evidence was recorded. The question of validity of the Will was also addressed. 5) Learned Civil Judge, Senior Division, dismissed the application, same was questioned by the respondent before the learned District Judge, Dhule in the above referred Civil Appeal No.69/2006 and he allowed the appeal, setting aside the order of the trial Court and remanded the matter to the trial court for framing and deciding the issue of execution of the will and to lead further evidence by seeking leave of the concerned court. This order is questioned by the appellant, step-brother of Smt. Vandana and Ranjanabai in this Appeal from Order. 6) Mr.Bhandari, learned Counsel for the appellant, formulated the following points : (i) Whether the District Court has jurisdiction to entertain the appeal against the order passed by its delegate under the provisions of Indian Succession Act, 1926? (ii) Whether the appeal of the respondent was maintainable before the learned District Judge in view of the provisions of Section 388 of the Indian Succession Act? (iii) When deceased Vandana was not possessing any property at Dhule, and learned Trial Judge has held that the learned Judge of the court at Dhule has no jurisdiction, in this 4 AO No.56/2011 eventuality, whether the first Appellate Court was justified in reversing the judgment of the Trial Court? 7) During the course of submissions, Mr. Paranjape, leaned counsel for the respondent objected to maintainability of the appeal from order and desired a finding as a preliminary issue. Consequently, it was held on 8th December, 2011 that the Appeal from Order is maintainable. This was illustrated by explaining the provisions of Section 388 of the Indian Succession Act, 1925 and the powers invested under the provisions of Order 41 Rule 23 and 23-A of the Code of Civil Procedure to the first Appellate court. It was indicated, Rule 23 of CPC conceive, after the appellate court has disposed of the suit upon a preliminary point and the decree is reversed in the appeal, the Appellate court can remand the case with directions about settlement of issues and to re-admission of the suit under its original number. Rule 23-A of CPC also takes care of the decree under challenge. If in the appeal it reversed and re-trial is considered necessary, the Appellate court has same powers as it has under Rule 23. Order 43 Rule 1(u) of CPC deals with order under 41 Rule 23. Rule 23-A of CPC (remanding a case), where the appeal would lie from decree of the Appellate court. There would not be a second appeal as the matter revolves to remand and care for the same is taken under Order 43 Rule 1(u)of the Code of Civil Procedure. 5 AO No.56/2011 8) The matter was re-heard. 9) Section 28-A of Bombay Civil Courts Act, 1869 (hereinafter to be referred as said Act of 1869) deals with powers of High Court to invest in any judge powers of a District Judge under certain statutes. Section 28-A reads as under : "28-A (1) The High Court may by general or special order invest any Civil Judge within such local limits and subject to such pecuniary limitation, as may be prescribed, in such order, with all or any of the powers of a District Judge or a District Court as the case may be under the Indian Succession Act, 1865, the Probate and Administration Act, 1881 or paragraph 5 of Schedule III to the Code of Civil Procedure, 1908. (2) Every order made by a Civil Judge by virtue of th powers conferred upon him under sub-section (1) shall be subject to appeal to the High Court or the District court according as the amount or value of the subject-matter exceeds or does not exceed fifty thousand rupees. (3) Every order of the District Judge passed on appeal under sub-section (2) from the order of a Civil Judge shall be subject to an appeal to the High Court under the rules contained in the Code of Civil Procedure applicable to appeals from the appellate decrees." 10) Section 384 of the Indian Succession Act, 1925, reads as under : "384. Appeal – (1) Subject to the other provisions of this Part, an appeal shall lie to the High Court from an order of a District Judge granting, refusing or revoking a certificate under this Part, 6 AO No.56/2011 and the High Court may, if it thinks fit, by its order on the appeal, declare the person to whom the certificate should be granted and direct the District Judge, on application being made therefor, to grant it accordingly, in super session of the certificate, if any, already granted. (2) An appeal under sub-section (1) must be preferred within the time allowed for an appeal under the Code of Civil Procedure, 1908 ( 5 of 19089) (3) subject to the provisions of sub-section (1) and to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908 ( 5 of 1908) as applied by section 141 of that Code, an order of a District Judge under this Part shall be final." ) Section 388 thereof is as under : "388. Investiture of inferior courts with jurisdiction of District Court for purposes of this Act, - (1) The State Government may, by notification in the Official Gazette, invest any Court inferior in grade to a District Judge, with power to exercise the functions of District Judge under this Part. (2) Any inferior Court so invested shall, within the local limits of its jurisdiction, have concurrent jurisdiction with the District Judge in the exercise of all the powers conferred by this Part upon the District Judge, and the provisions of this Part relating to the District Judge shall apply to such an inferior Court as if it were a District Judge; Provided that an appeal from any such order of an inferior Court as is mentioned in sub-section (1) of Section 384 shall lie to the District Judge, and not to the High Court, and that the District Judge may, if he thinks fit, by 7 AO No.56/2011 his order on the appeal, make any declaration and direction as that sub- section authorizes the High Court to make by its order on an appeal from an order of a District Judge. (3) An order of a District Judge on an appeal from order of an inferior Court under the last foregoing sub-section shall, subject to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908 (5 of 1098), as applied by section 141 of that Code, be final. (4) The District Judge may withdraw any proceedings under this Part from an inferior Court and may either himself dispose of them or transfer them to another such court established within the local limits of the jurisdiction of the District Judge and having authority to dispose of the proceedings. (5) A notification under sub-section (1) may specify any inferior Court specially or any class of such Courts in any local area. (6) Any Civil Court which for any of the purposes of any enactment is subordinate to or subject to the control of, a District Judge shall, for the purposes of this section, be deemed to be a Court inferior in grade to a District." 11) It is obvious, in exercise of powers conferred by Section 28-A(1) of Bombay Civil Courts Act, 1869, the High Court has invested all Civil Judges (Senior Division) with all the powers of a District Judge to take cognizance of any contested proceeding under the Indian Succession Act, 1925, arising within the local limits of their respective jurisdiction that may be transferred to them by their respective District Judges. Under Section 265 of the 8 AO No.56/2011 Indian Succession Act, the High court has appointed all Civil Judges to act for the District Judge as delegates to grant Probate and Letters of Administration in non-continuous cases arising within the local limits of their respective jurisdiction. These situations are emerged in paragraph 254 and 255 of Civil Manual. Thus, every order made by a Civil Judge by virtue of powers conferred upon him under sub-section (1) of Section 28-A, shall be subject to appeal to the High Court or the District Court according as the amount or value of the subject matter exceeds or does not exceed fifty thousand rupees. Every order of the District Judge passed on appeal under sub-section (2) from the order of a Civil Judge shall be subject to an appeal to the High Court under the rules contained in the Code of Civil Procedure applicable to appeals from the appellate decrees. 12) Section 388 speaks of an appeal from any order of inferior court, as mentioned in sub-section (1) of Section 384 to lie to the District Judge and not to the High court. It also provides, the District Judge, may, if he thinks fit, by his order on the appeal, make any such declaration and direction as that sub-section authorizes, the High Court to make by its order on appeal from order of a District Judge. 13) The legal position would be in terms of sub- section (2) of Section 388, an appeal from order passed by the Civil Judge, Senior Division, shall lie only to the District judge and not to the High Court. Consequently, I hold that the District Judge has 9 AO No.56/2011 jurisdiction to entertain the appeal against the order passed by its delegates under Indian Succession Act, 1925 and the appeal is maintainable. Before the learned District Judge. 14) Learned Counsel for the appellant canvassed that deceased Vandana though breathed her last at Dhule, it will not attract to claim to be her permanent abode as was held by the learned District Judge. Learned Counsel submits, even in the Will deed, Vandana has stated her residence to be at Shahada and hence transmitting the proceedings to the Court at Dhule by the District Judge is improper. 15) Mr.Paranjape for the respondent has invited my attention to Section 270 and 271 of the Indian Succession Act, which conceive as under : "270.When probate or administration may be granted by District Judge, - Probate of the Will or letter of administration to the estate of a deceased person may be granted by a District Judge under the seal of his Court, if it appears by a petition, verified as hereinafter provided, of the person applying for the same that the testator or intestate, as the case may be, at the time of his decease had a fixed place of abode, or any property, movable or immovable, within the jurisdiction of the Judge. 271. Disposal of application made to Judge of district in which deceased bad no fixed abode, - When the application is made to the Judge of a district in which the deceased had no fixed abode at the time of his death, it shall be in 10 AO No.56/2011 the discretion of the Judge to refuse the application, if in his judgment it could be disposed of more justly or conveniently in another district, or, where the application is for letters of administration, to grant them absolutely, or limited to the property within his own jurisdiction." 16) Reference to the term "at the time of his decease had a fixed place of abode" will have to be read in juxtaposition to the events occurred in the matter. Deceased Vandana, from the record, shifted on account of her ailment or otherwise from 17.7.1996 at Dhule with her sister. Her condition was getting deteriorated and consequently within her powers, she had executed her Will dated 6.1.1997. The term "abode" denotes – place of a man's residence, temporary or permanent. Vandana was having her fixed place of abode at the time of her death at Dhule. She had availed 90 days' leave from 17.7.1996 due to severe ailment of cancer and stayed at Dhule with her sister. She had undergone operation. The record illustrate, from 17.7.1996 she continuously remained at Dhule. She was residing in a rented premise at Shahada. Part of her movable property like gold ornaments were with her. It could be of a small value or negligible, however, it would certainly bring the matter to the jurisdiction of a Court at Dhule, which is competent to grant Probate or Letter of Administration. Section 271 is discretionary. It certainly does not take away jurisdiction conferred by Section 270. The residence of Smt. Vandana at Dhule need not be of a permanent nature. To my mind, the 11 AO No.56/2011 fixed place of abode refers to the time of deceased staying at Dhule. In this situation of the matter, the objection that the Court at Dhule had no jurisdiction, is not on correct factual and legal situation. 17) The remand of the case to the learned CJSD occasioned due to non raising the issue of execution of will deed by Smt. Vandana dated 16.1.1997 to be valid. He has also discussed as to what `abode' means made the situation to remand the matter. I do not see any error on the part of learned District Judge in allowing the appeal and remitting the matter to the learned Civil Judge, Senior Division for deciding the issue of execution of the will deed. 18) The Appeal from order lacks merit, dismissed. CA No.502/2011 dismissed. Learned Civil Judge, Senior Division shall endeavour to dispose of the pending proceedings expeditiously in the time schedule. sd/- (K.U.CHANDIWAL) JUDGE bdv/