Smt.Usha Mohan vs Property Of Late M.C. Mohan
2018 Latest Caselaw 1944 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

																				RESERVED
 
AFR
 

 
TESTAMENTARY CASE NO. 1(T.C.) of 1993
 
Smt. Usha Mohan		                                    ......Applicant
 
						Versus
 
Property of Late Sri Mehr Chand Mohan,
 
Saraswati Bhawan, Chandganj Extension,          ...Opposite Party	
 
    AND	
 
TESTAMENTARY CASE NO. 2 (T.C.) of 1993
 
Smt. Usha Mohan		                                    ......Applicant
 
						Versus
 
Property of Late Smt. Saraswati Mohan              ...... Opp.party						
 

 
Hon'ble Dr.Devendra Kumar Arora,J.

Smt Usha Mohan, (hereinafter referred as the "applicant /petitioner") has preferred the instant application/petition under-Section 278 of the Indian Succession Act for grant of Letter of Administration to the property and credits of the said deceased, namely, Late Sri M.C. Mohan.

Shorn of unnecessary details, the facts in brief which have given rise to filing of the instant application are that one Late Sri Mehr Chand Mohan son of Late Gonda Mall Mohan died on 16.12.1992 in Lucknow. Prior to his death i.e on 20th April 1990, he had made and published his last ''WILL' and testament duly registered in the office of Sub-Registrar Lucknow, dated 26.05.1990 by which he left and bequeathed his estate and effects as per detail given in the ''WILL' itself.

It is said that the said "WILL' was duly executed by Late Sri M.C. Mohan on 20.4.1990 in presence of the witnesses, namely, Sri B.C. Agarwal, and Anoop Singh, Advocates whose names appear at the foot thereof and was also duly attested by them. Since no executor was appointed by the testator, the applicant being his daughter-in-law and one of the persons entitled to a share of his estate, is entitled to and so claims administration of the property of the testator, namely, M.C. Mohan.

According to the applicant, all the properties and assets in the Schedule which the deceased possessed of or was otherwise entitled to at the time of his death, which have come or likely to come to the applicant's hand and so far as the applicant has been able to ascertain or is aware, there are no property credits other than what are specified in the annexed schedule. In the event of discovery of other assets, the applicant/petitioner undertakes to pay requisite court fee on that account also.

The aforesaid application has seriously been contested by Sri Virendra Mohan son of Late Sri Sudarshan Mohan, R/o Z-2 Sainik Farms, P.O. IGNOU, New Delhi (hereinafter referred as ''Objector') by filing Objections stating that Late Mehar Chand Mohan was originally residing in the province of Lahore before partition but just before partition between India and Pakistan in the year 1947, he came to India and settled in the city of Lucknow. It has been vehemently asserted that the application filed by the petitioner under- Section 278 of Indian Succession Act for granting Letters of Administration is not maintainable as the relevant provisions of law including the Rules made in Chapter XXX of Allahabad High Court Rules, 1952 under the heading ''Testamentary and Intestate Jurisdiction [hereinafter referred to as the ''Rules'] have not been complied with and the application deserves to be rejected.

According to the Objector, Late M.C. Mohan after disposing of the gold, valuables, ornaments and the cash whatever was in his possession, established a company, known as M/s Mohanco Private Limited, hereinafter referred to as ''Company', which was registered with the Registrar of Companies. Moreover, Shri Sudarshan Mohan was born in 1926, Shri Krishna Mohan in 1935 and Jitendra Mohan in 1942. It was a Joint Hindu family consisting of aforesaid three sons, of which Late M.C. Mohan was ''Karta'. All of them migrated to India just before partition which took place in 1947. After coming to India, they all established a common business and lived as a Hindu Joint Family.

The objector asserted that the provisions relating to probate and grant of letters of administration as per provisions of Section 213 read with Section 57 of the Indian Succession Act, are not attracted in the State of Uttar Pradesh and the provision will apply only in the areas specified in Clause (a) & (b) of section 57 of the said Act. To substantiate his assertion, reliance has been placed upon a judgment rendered in the case of Smt. Bimla Gaindher Versus Smt Uma Gaindher 2004 All.CJ 1022 where the court has observed that the provisions relating to probate and grant of letters of administration are not applicable in the State of Uttar Pradesh.

Moreover, Section 300 (2) of the Indian Succession Act provides that no High Court in exercise of its concurrent jurisdiction over any local area beyond the limits of town of Kolkata, Madras and Bombay shall receive application for probate or letters of administration until the State Government has by notification in the official gazette authorized it to do so. In the instant case the notification, if any, issued under Section 300(2) of the said Act has not been brought on record.

Elaborating his arguments, learned Counsel for the Objector has vehemently asserted that the instant application filed under section 278 of the Indian Succession Act, 1925 for issuance of letters of administration in favour of the applicant is not maintainable under the provisions of The High Court Rules, 1952. Relevant Rules of the Allahabad High Court Rules towards which, my attention was drawn enjoin as under:-

Rule 6 Application for letters of administration :- "An application for Letters of administration shall be made by petition in the prescribed form or as near thereby as the circumstances of the case may permit and shall be accompanied by annexure (b) (c) (d) mentioned in the preceding Rule."

Sub clause (b) of Rule 5 provides for filing of an affidavit for valuation in the form set forth in Schedule III of Court Fee Act, 1870 along with appropriate account specifying all the properties in respect of which estate duty is payable upon the death of the deceased. Sub clause (c) of Rule 5 provides for filing an authenticated copy of the application.

Rule 19 deals with the citation to rightful parties and says as under:-

"Rule 19:- On an application for letters of administration, unless otherwise ordered by the judge or Registrar, a citation shall issue to all persons including the Administrator General having a right to take the grant prior or equal to that of the applicant,unless such persons have signified their consent to the application."

Rule 39 deals with the conversion of an application into suit and says as under:-

"Conversion of Application into Suit - Upon the affidavit in support of the caveat being filed (notice whereof shall immediately be given by the caveator to the petitioner) the proceedings shall be numbered as a suit in which the petitioner for the probate or letters of administration shall be the plaintiff, and the caveator shall be the defendant, the petition for probate or letters of administration being registered as and deemed a plaint filed against the caveator, and the objection filed by the caveator being treated as his written statement in the suit. The procedure in such suit shall, as nearly as may be, be according to the provisions of the Code."

A perusal of Rule-39 reveals that after filing of the affidavit in support of caveat, the notice shall be given to the petitioner and the proceeding shall be numbered as a suit in which the petitioner for probate or letter of administration shall be the plaintiff and caveator shall be the defendant. The objection filed by the caveator is to be treated as his written statement in the suit. It is only thereafter the case may proceed as a suit in accordance with the provisions provided for trial of suits in the Code of Civil Procedure.

Countering the arguments, the learned Counsel for the petitioner has stated that opposite party no.2 has raised an assertion regarding issuance of notification under Section 300(2) of the Indian Succession Act conferring powers upon the Hon'ble High Court to decide an application for Probate or Letter of Administration. The Petitioner pointed out that the above testamentary case was filed in the year 1993 and after the exchange of objections, the issues were framed on 14.10.1993. The evidence of the petitioner was filed in the year 2012, while the evidence of one of the attesting witnesses of the WILL in question was filed much earlier i.e. on 31.07.2009.

It has been urged by the petitioner that instead of cross-examining the petitioner and other witnesses, the opposite party No.2, namely, Sri Virendra Mohan filed the above objections alleging that primarily in view of sub section (2) of Section 300 of the Indian Succession Act, unless there is a notification issued by the State Government conferring powers upon the High Court to try the matter regarding the Probate and Letter of Administration, the Hon'ble High Court may not exercise the concurrent jurisdiction regarding the Probate and Letter of Administration.

According to the petitioner, Section-300 confers a mandate that the Hon'ble High Court shall have the concurrent jurisdiction with District Judge in exercise of powers conferred upon the District Judge. He further pointed out that provisions of Hindu Will Act and of the Probate and Administration Act, 1881 in light of the statement of objects and reasons of the Indian Succession Act, 1925 have been brought in and thus primarily both the said Acts have been consolidated to bring the Indian Succession Act of 1925 in existence. In other words, the Indian Succession Act was promulgated on 30th September 1925 and the aim and object clearly indicates that it was for the purpose of consolidating the Indian Laws relating to testamentary and intestate succession. Prior to the said Succession Act, as far as it relate to Hindu, Jain, Sikh and Buddhist, the Act prevalent regarding testamentary succession was the Hindu Wills Act,1870 and another Act, namely, Indian Succession Act, 1865 was in force.

According to the learned Counsel for the petitioner, there was no restriction upon a Hindu to have executed an oral WILL. However, under the Hindu Will Act 1870, which was limited only to the territory subject to the Lieutenant Governor of Bengal and in towns of Madras and Bombay, have now by virtue of sub-section (c) of Section 57 have been made applicable to all and throughout the country. Therefore, all the Hindu and the persons governed by the Indian Succession Act are necessary required to execute a WILL in writing duly attested by two attesting witnesses and the relevant Sections which are mentioned in the third schedule reflect that the same restriction and modification govern the construction of the WILLs. Therefore, earlier when the Hindu WILLs were confined to a limited area now by Section-57 in terms of its three clauses and proviso regarding the Hindu WILLs have been made applicable throughout the country, to bring in uniformity.

The petitioner has pointed out that at the time of enactment of Indian Succession Act, 1925, there was Hindu Wills Act of 1870, which was prevalent and which had a limited geographical application insofar as the WILLs executed by Hindus were concerned. To illustrate (1) in case of two Hindus out of which one is geographically located within the Presidency Town or is located outside the Presidency Town but the properties affected by the WILL so executed by him is located within the Presidency Towns then he would be governed by the rigour and restrictions mentioned in the Hindu Wills Act (2) So far as the other Hindu, who is neither geographically located within the Presidency Town nor his properties are located within the Presidency town, then his WILL would be governed by another Act called the Probate and Administration Act of 1881. The Probate and Administration Act, 1881 was applicable to the whole of British India as discerned from Section 1 of the Act of 1881.

Elaborating his arguments, Sri Jaspreet Singh, learned Counsel for the petitioner has pointed out that the High Court at Allahabad came into existence by means of Letter Patent issued on 17.3.1866 by His Majesty of Great Britain. The Letter Patent clearly indicates that all powers which are being exercised by Fort William in Bengal for the Bengal Division of Presidency of Fort William High Court of Judicature, which was called the High Court of Judicature Fort William in Bengal (at Calcutta) shall now with the same powers be constituted for North-Western provinces of the Presidency of Fort William and be called High Court of Judicature at Allahabad and the said Court shall constitute a Court of Record. By the same Letter Patent of His Majesty various jurisdictions were conferred and so was the Testamentary and Intestate jurisdiction as contained in Clause-25 of the Letter Patent.

Lastly, learned Counsel for the petitioner has submitted that this Hon'ble Court had earlier asked the Registrar of this Court to submit its report on the aforesaid issue vide order dated 24.07.2014. The Registrar vide its report dated 26.07.2014 submitted that in the facts of the present case, no notification of the State Government is required regarding the concurrent jurisdiction of this Hon'ble Court.

On the strength of the aforesaid factual and legal position, it has been vehemently argued that the objections as raised by the opposite party no.2 are misconceived and are liable to be rejected as the same have been made with a sole purpose of lingering the matter on one pretext or the other and to frustrate the very purpose of filing the instant application.

Having heard learned Counsel for the parties and going through the record, first of all, it would be apt to reproduce relevant provisions of Indian Succession Act, 1925 and as to how the Allahabad High Court came into existence. Statement of objects and reasons as mentioned in the Indian Succession Act, 1925 reads as under:-

"Statement of Objects and Reasons:- The object of this Bill is to consolidate the Indian Law relating to succession. The separate existence on the Statute Book of a number of large and important enactments renders the present law difficult of ascertainment and there is, therefore, every justification for an attempt to consolidate it. The Bill has been preferred by the Statute Law Revision Committee as a purely consolidating measure. No intentional change of law has, therefore, been made."

Section 57 of the Act deals with the application of provisions of Part to a class of Wills made by Hindus and says:-

S.57. Application of certain provisions of Part to a class of Wills made by Hindus, etc. - The provisions of this part which are set out in Schedule-III shall, subject to the restrictions and modifications specified therein, apply -

(a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jain, on or after the first day of September 1870 within the territories which at the said date were subject to the Lieutenant - Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and

(b) to all such Wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits; and

(c) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jain on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b):

Provided that marriage shall not revoke any such will or codicil.

Section-300 deals with the concurrent jurisdiction of the High Court and it reads as under:-

S.300. Concurrent Jurisdiction of High Court -(1) the High Court shall have concurrent jurisdiction with the District Judge in the exercise of all the powers hereby conferred upon the District Judge.

(2) Except in cases to which Section 57 applies, no High court, in exercise of the concurrent jurisdiction hereby conferred over any local area beyond the limits of the towns of Calcutta, Madras and Bombay shall where the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jain or an exempted person, receive applications for probate or letters of administration until the State Government has, by a notification in the Official Gazette, authorized it so to do.

A perusal of the record shows that a large number of Acts were consolidated by the Indian Succession Act, namely, The Succession (Property Protection) Act, 1841, Act XIX of 1865;The Indian Succession Act, 1865, Act X of 1865;The Parsi Intestate Succession Act, 1865, Act XXI of 1865;The Hindu Wills Act, 1870, XXI of 1870;The Married Women's Property Act, 1874, Act III of 1865;The Probate and Administration Act 1881, Act V of 1881;The District Delegates Act, 1889, Act VI of 1889;The Probate and Administration Act, 1889, Act VII of 1889;The Succession Certificate Act, 1889 Act VII of 1889;The Probate and Administration Act, 1890, Act II of 1890;The Native Christian Administration of Estates Act, 1901 Act of 1901.

Thus, the aforesaid Acts, as mentioned above, were all consolidated by the Indian Succession Act, 1925, and the purpose was clearly to consolidate all the Indian Laws relating to succession, which were in existence on the statute books, separately and they being large in number, it was rendering difficulty in ascertainment of such laws.

It seems that Section-57, which has been incorporated in the Indian Succession Act of 1925, is borrowed from Hindu Wills Act 1870. Section 2(a) and (b) of the Hindu Will Act is the reproduction and incorporated in Section (a) and (b) of the Hindu Succession Act of 1925. Sections relating to Probate and Letter of Administration fall under Part IX of the Act of 1925 under the head -''Probate, Letters of Administration and Administration of Assets of deceased.' This commences from sections 217 to section 369, from Chapter (i) to (xiii). The sections contained in Probate and Administration Act of 1881, have been incorporated under this head from Section 211 to Section 369 of the Indian Succession Act 1925. Similarly, Chapter IV of Part IX relating to the practice in granting and revoking the Probate and Letter of Administration, which commences from Section 264 to Section 302 of the Indian Succession Act of 1925, has been borrowed from Sections 51 to 87 of Chapter V of the Probate and Administration Act of 1881. Section-300 of the Act of 1925 is equivalent to Section-87 of the Probate and Administration Act of 1881. Both the sections clearly indicate that the High Court shall have concurrent jurisdiction with the District Judge in exercise of all the powers conferred upon the District Judge. Similarly, Section-264 of the Indian Succession Act of 1925 is equivalent to Section-51 of the Probate and Administration Act of 1881. Section-255 of the Indian Succession Act of 1925 is equivalent to Section-52 of the Probate and Administration Act of 1881.

Thus, it is imminently clear that by virtue of above sections High Courts were given power to appoint Judicial Officers in any District as it thinks fit to act for District Judge, as delegates for grant of Probate and Letter of Administration in non-contentious case, for such local limits as it may provide and only in cases of such High Courts which are not established by the Royal Charter, such appointment shall not be made without previous sanction of the State Government. Putting it differently, only such High Courts, which are not created by the Royal Charter require previous sanction of the State Government. It is for the said reason that on the date of enactment of the said Act of 1925, sub-section (2) incorporated in Section-300 clearly indicates that except in cases to which Section-57 applies.

There is no dispute to the fact that High Court at Allahabad came into existence by means of Letter Patent issued by His Majesty of Great Britain which was promulgated on 17.03.1886. The Letter Patent clearly indicates that all powers which are being exercised by Fort William in Bengal for the Bengal Division of Presidency of Fort William High Court of Judicature which was called the High Court of Judicature Fort William in Bengal (at Calcutta) shall now with the same powers be constituted for North- Western provinces of the Presidency of Fort William and be called High Court of Judicature at Allahabad and the said Court shall constitute a Court of Record. By the same Letter Patents various jurisdiction were conferred and so was the Testamentary and Intestate jurisdiction as contained in Clause-25 of the Letter Patent. The relevant portion i.e Clause-25 of the Letter Patent is being reproduced hereinafter for convenient perusal of the Hon'ble Court.

"Testamentary and Intestate Jurisdiction

25. And We do further ordain that the said High Court of Judicature at Allahabad shall have the like power and authority as that which now lawfully exercised within the said territories by the said High Court of Judicature at Fort William in Bengal in relation to the granting of Probates of last Wills and Testaments and Letter of administration of the goods, Chattels, Credits and all other effects whatsoever of persons dying intestate and that the jurisdiction of the said last mentioned High Court in relation thereto shall cease from the date of the publication of these present: Provided always that any proceedings already commenced in relation to any of the matters aforesaid in the said last mentioned High Court shall continue as if these presents had not been issued: Provided also that nothing in these Letter Patents contained shall interfere with the provisions of any law which has been made by competent legislative authority for India by which power is given to any court to grant such Probates and Letters of Administration."

Hence it can be said that the Letter Patent is the mother document by which the aforesaid High Court of Judicature at Allahabad came into existence. It further needs to be noted that the testamentary jurisdiction as earlier exercised by the High Court of Judicature at Fort William for Bengal (at Calcutta), same powers were conferred by the aforesaid Letter Patent on the High Court of Judicature at Allahabad.

Going to the background of creation of High Courts in India, it reveals that the High Court at Calcutta and Bombay were established on 2.7.1862 and 14.8.1862 while the High Court at Madras was established on 15.8.1862 and only thereafter the High Court of Judicature at Allahabad was established in the year 1866. Apart from above, Mysore High Court (1884), Punjab & Haryana High Court (1919) and Patna High Court (1916) were created before coming into force of Indian Succession Act, 1925. All the other High Courts in the entire country came to be established thereafter.

It may be clarified that in the year 1866, the High Court of Judicature for the North-Western Provinces came to existence at Agra under Letter patent of the 17th March, 1866, replacing the Old Sadar Diwani Adalat. The seat of the High Court for the North-Western Provinces was shifted from Agra to Allahabad in 1869 and its designation was altered to "the High Court of Judicature at Allahabad" by a supplementary Letter Patent issued on March 11, 1919. It is also relevant to point out that by the U.P. High Court Amalgamation Order, 1948 the Chief Court of Oudh was amalgamated with the High Court of Allahabad and the new High Court was conferred with the jurisdiction of both the Courts so amalgamated. By the Amalgamation Order, the jurisdiction of the Court under the Letter Patent and that of the Chief Court under the Oudh Courts Act was preserved.

It may be noted that the power conferred on the High Court under the Royal Charter by virtue of the Letter Patent has been preserved with the enactment of United Provinces High Courts (Amalgamation) Order, 1948 as would be evident from perusal of Section 7(1) of the Amalgamation Order, which reads as under:-

"7. (1) The new High Court shall have, in respect of the whole of the United Provinces all such original, appellate and other jurisdiction as, under the law in force immediately before the appointed day, is exercisable in respect of any part of that Province by either of the existing High Courts.

(2) the new High Court shall also have in respect of any area outside the United Provinces all such original, appellate and other jurisdiction as under the law in force immediately before the appointed day is exercisable in respect of that area by the high Court in Allahabad."

Thus, it is established beyond doubt that all the jurisdictions, original or appellate in force, exercised by the existing High Courts as defined in Section 2(a) of the United Provinces High Courts (Amalgamation) Order, 1948, refers to the High Court at Allahabad and the Chief Court of Oudh. The cumulative effect being that the Testamentary jurisdiction conferred by the Royal Charter continued to be preserved and is exercised in terms of the Amalgamation Order by the existing High Court, which came into being in the year 1948.

It is in furtherance thereof that the High Court Rules for Allahabad High Court were framed in the year 1952, in exercise of the powers conferred under Article 225 of the Constitution of India. In Section-3 of the Rules of the Court, the word "Court" has been defined to mean the High Court of Judicature at Allahabad as constituted by U.P. High Courts [Amalgamation] Order, 1948 which needless to say includes both the High Court i.e. the erstwhile High Court at Allahabad and the Chief Court of Oudh at Lucknow. The Allahabad High Court Rules, Part-VII under the head "Special Provisions", which commence from Chapter-27 to 35 (e), both inclusive, encompasses Chapter-XXX which relates to Testamentary and Intestate jurisdiction and is clearly referable in the exercise of jurisdiction by High Court as ordained by the Letter Patent.

My above view is countenanced by the judgment rendered in the case of Mahendra Pratap Singh Vs. Padama Kumar Devi; AIR 1993 Alld. 143 wherein it was held that the Court exercises Testamentary jurisdiction not by means of any particular legislation or notification, rather it has been ordained by the Royal Charter as would be evident from relevant paragraph of the aforesaid judgment, which reads as under:-

"The Allahabad High Court is one of the Charter High Courts established by the Letters of Patent of 1866. This High Court is invested with special jurisdiction in Insolvency and in Admiralty, Testamentary ad Matrimonial matters a dover infants, idiots and lunatics. They were powers where reserved with Charter High Courts. What is reserved for the Calcutta High Court was ordained by the Letters of Patent for the High Court of Judicature at Allahabad. Clause 12 mentions that this High Court would have like powers and authority as is exercised in Bengal Division of Presidency of Fort William by the High Court of Judicature at Fort William in Bengal."

Here it would be relevant to mention that the Objector has relied upon the judgment rendered by the Apex Court in the case of Clarence Pais and others Vs. Union of India; (2001) 4 SCC 325. In this case the validity of Section 213 of the India succession Act was challenged on the ground that it is unconstitutional and to restrain the Union of India from enforcing the provisions thereof against Indian Christian. The challenge was turned down by the Apex Court, holding that Section-213 and 57 is not discriminatory and in paragraph 7 of the said judgment the Apex Court observed as under:-

"...The whole foundation of the case is thus lost. The differences are not based on any religion but for historical reasons that in the British Empire in India, probate was required to prove the right of a legatee or an executor but not in Part ''B' or ''C' States. That position has continued even after the Constitution has come into force. Historical reasons may justify differential treatment of separate geographical regions provided it bears a reasonable and just relation to the matter in respect of which differential treatment is accorded...."

The judgment rendered in the case of Clarence Pais [supra] as stated above relates to the validity of Section 213 of the Indian Succession Act on the ground of religious discrimination. Similarly, in Smt. Bimla Gaindeher versus Smt. Usha Gaindher and another; AIR 2004 All 329 the Court has considered the provisions of Section 57(a) and (b) of the Succession Act and not the provisions of Section 300(2) and the powers with regard to exercise of Testamentary jurisdiction by the High Court. Therefore, the above case is of no avail to the Objector so far as the present controversy is concerned. At this juncture, it would be gainful to mention that in the case of In the Goods of Rajendra Chandra Sen Gupta [AIR 1934 All 958] this Court with regard to grant of probate or letter of administration held as under:-

" So far as the grant of Probate or letter of administration is concerned, there is specific provision in Section 300 of the Succession Act, as well as in Clause-25 of the Letters of Patent, conferring jurisdiction on this High Court..."

In the case of Satnam Kaur versus Satyendra Pal Singh and others; 2015(109) ALR 573 this Court while considering the question as to whether a beneficiary under a Will can maintain a petition for obtaining probate under Section 213 of the Indian Succession Act opined in paragraph 12 as under:-

"12. It will also not be out of place to mention here that the applications for grant of probate of Will are cognizable by the High Court also as provided under Chapter- XXX of the Allahabad High Court, 1952..."

Here, it would not be out of place to mention here that when challenge of jurisdiction of this Court in view of Section 300(2) of the Indian Succession Act was made, the Senior Registrar was directed vide order dated 24.7.2014 to look into the matter and submit its report. I have gone through the report dated 26.7.2014 submitted by the Senior Registrar, who after going through the record and in view of the observation made in the case of Bratindra Nath Dey versus Sukumar Ch. Dey, AIR 1970 Cal 85 reported that in view of the provisions contained in Section 300(2) read with Section 57 of the Indian Succession Act, 1925, no notification of the State Government is required to invoke the concurrent jurisdiction of this Court.

In Bratindra Nath Dey's (supra), which has been relied upon by the Registrar while submitting its report dated 26.7.2014, the Calcutta High Court observed as under:_

"Apart from the effect of Section 6 of the General Clauses Act, 1897 and that of Article 225 of the Constitution read with clause 34 of the Act in the present case. It appears to me that under Section 300(2) notification is required only when the High Court exercises its concurrent jurisdiction in a case other than the cases mentioned in Section 57 of the Act. Section 57 of the Act refers to cases of Wills made by a Hindu on or after 1st day of September 1870 within West Bengal and also other Wills made by a Hindu which are not mentioned under the two groups of Wills mentioned in Section 57(a) & (b). The present Will admittedly is a Will which comes under the case of Section 57(a) & (b) and in the premises no notification is necessary to invoke the concurrent jurisdiction of this Hon'ble Court."

In view of the aforesaid legal position, it is imminently clear that the Testamentary jurisdiction is exercised by the High Court in terms of the powers conferred by the Royal Charter. By the United Provincial Amalgamation Order, 1948 all the powers conferred previously upon the High Court was preserved in Section 7(1) of the Amalgamation Order. As far as exercise of the Testamentary and Intestate jurisdiction is concerned, it has been recognized in Chapter XXX of the Allahabad High Court Rules. Thus, from the aforesaid legal position, it clearly emerges out that only in such High Courts which are not created by the Royal Charter, the previous sanction of the State Government is required, relating to such appointments and conferring such powers as mentioned in the Act of 1925 itself. Therefore, the objections as raised by Sri Virendra Mohan with regard to requirement of a notification by the State Government are unsustainable and are accordingly rejected.

List on 30th August, 2018 before the appropriate bench dealing with Testamentary Cases for cross-examination of the petitioner and examination of witnesses. It is relevant to mention that the instant case is pending since more than two decades and is quite old and as such it should be listed with first five cases of the cause list for peremptorily hearing of the matter.

Order Date: 13 August, 2018 [ Devendra Kumar Arora, J.]

MH/-