Rama Kant vs Ramraj
2017 Latest Caselaw 994 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 18
 
Case :- FIRST APPEAL FROM ORDER No. - 84 of 2005
 
Appellant :- Rama Kant
 
Respondent :- Ramraj
 
Counsel for Appellant :- B.D. Sharma,Jaspreet Singh
 
Counsel for Respondent :- Ashok Bajpai,Harish Chandra Dubey
 

 
Hon'ble Attau Rahman Masoodi,J.

Heard Sri Jaspreet Singh learned amicus curiae who has assisted with ability.

This Court having noticed neglect of duty on the part of learned counsel for appellant appointed Shri Jaspreet Singh as amicus curiae to assist the Court particularly on the aspect of jurisdictional objection reflected in the interim order passed by this Court on 3.2.2005.

This F.A.F.O. filed under Section 299 of the Indian Succession Act, 1925 assails the order passed in Misc. Case No. 118 of 1998(R) whereby the application filed by the opposite parties under Section 263 of Indian Succession Act, 1925 for revoking the order dated 9.5.1994 was allowed and the probate proceedings were restored for fresh adjudication. It may be noted that the order dated 9.5.1994 was passed by the learned District Judge, Sultanpur whereas the application for revoking the order on being filed by the opposite party before the district judge was assigned to the Additional District Judge-court no. 2, Sultanpur where the same was decided by annulling the order, hence the present appeal. At the  initial stage when the appeal came up for orders, this Court was  pleased to pass an interim order on 3.2.2005, which reads as under:-

Heard the learned counsel for the appellant.

It has been contended that the Additional District Judge had no jurisdiction to pass the impugned order annulling the probate granted by the District Judge under Section 276 of the Indian Succession Act.

Arguable points have been raised.

Admit.

Issue notice.

Till the next date of listing, the proceeding pending before the Additional District Judge for issue of probate shall remain stayed.

Having regard to the interim order passed by the Court, which remained operative throughout during pendency of this F.A.F.O., the question of jurisdiction was necessary to be considered in the light relevant provisions which are discussed hereinafter :-

Section 295 of the Succession Act provides as under :-

Section 295. Procedure in contentious cases.--In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 (5 of 1908) in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant.

The provision extracted above essentially defines the procedure which is to be adopted by the District Judge in contentious cases of probate or letters of administration. The jurisdiction of District Judge for dealing with the matters in the nature of probate proceedings emanates from Section 264 of the Indian Succession Act,  which for ready reference is extracted as under :-

Section 264. Jurisdiction of District Judge in granting and revoking probates, etc.-

1. The District Judge shall have jurisdiction in granting and revoking probates and letters of administration in all cases within his district.

2. Except in cases to which section 57 applies, no Court in any local area beyond the limits of the towns of Calcutta, Madras and Bombay, 1[***] shall, where the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, receive applications for probate or letters of administration until the State Government has, by a notification in the Official Gazette, authorised it so to do.

Sections 265 also provides for the disposal of non-contentious cases by the delegates of District Judge who are appointed by the High Court but in the present case, the initial order dated 9.5.1994 was passed by the District Judge and thereafter the application for revocation of said order on being filed came to be assigned to the Additional District Judge and thus, the question of jurisdiction has cropped up in the above background. Indisputably the District Judge of a district has jurisdiction to deal with the probate proceedings under Section 264 read with Section 286 of the Succession Act. The difficulty lies when we come to the definition of District Judge as defined under Section 2(bb) of the Indian Succession Act as under:-

Section 2(bb) "District Judge" means the Judge of a Principal Civil Court of original jurisdiction.

The District Judge of a district is understood to be a Judge of Principal civil court of original jurisdiction; now, as to whether the ''District Judge' defined as above would include the Additional District Judge or the phrase would refer to persona designata is the question that calls for an answer in the case at hand.

Sri Jaspreet Singh learned amicus curiae inviting attention of this Court to the definition of District Judge under Section 2(17) of the General Clauses Act has pointed out that the definition of District Judge is para materia with what has been defined under Section 2(bb) of the Indian Succession Act, 1925.

Thus, as per the statutory definitions, there is no distinction in the definition of District Judge but it is equally clear that the expression ''District Judge' used in Section 264 does not refer to persona designata in the matter of grant or revocation of probate or letters of administration. This position is supported in the case reported in AIR 1977 page 419 and there is no scope to depart from the view taken.

The issue as to whether the District Judge would include Additional District Judge or not, the matter came up for consideration before this Court in a case reported in AIR 1998 Allbd. 313 wherein it has been held that the court of Additional District Judges is no doubt, a class of civil courts as visualized by Section 3 of the Bengal, Agra and Assam Civil Courts Act, 1887 but it exercises the same power as that of the District Judge except for some powers that are specifically conferred upon the District Judge or which are in the nature of administrative powers or otherwise.

From a bare perusal of the judgment referred to above, it is clear that the Additional District Judges exercise the same power as the District Judge in relation to the function assigned to them by virtue of Section 8(2) of the Bengal, Agra and Assam Civil Courts Act, 1887 which for ready reference is reproduced below :-

Section 8(2) :- "Additional Judges so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to them, and in the discharge of those functions, they shall exercise the same powers as the District Judge".

This position of law is also clarified under several other judgments of the High Courts, which were brought to the notice of this Court and particularly the judgment of Himachal Pradesh High Court in the case reported in AIR 2007 HP 88. That apart, reference may also be made to Article 236 of the Constitution of India which offers an aid to the interpretation of term ''district judge' as under :-

Section-236 :- Interpretation-In this Chapter-

(a) the expression "district judge" includes judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge;

(b) .....................................

Having regard to the position of law as it stands, this Court is of the considered opinion that in so far as the jurisdictional aspect of the matter highlighted in the interim order dated 3.2.2005 passed by this Court is concerned, the same does not have any sanctity of law and the order impugned in this appeal passed by additional district judge cannot be interfered with on the ground of lack of jurisdiction. So far as challenge to the impugned order on merit is concerned, it is clear  that the contentious dispute has arisen between the parties before the court below and once there is a dispute, the same deserves to be adjudicated upon in accordance with law.

The impugned order thus does not call for any interference in the exercise of appellate jurisdiction and the appeal is thus rejected.

The court below shall proceed to conclude the probate proceedings expeditiously in accordance with law.

Order Date :- 23.5.2017

kanhaiya