Bombay High Court
Uday Sharad Kulkarni vs Claude Lila Narayan Parulekar ... on 12 November, 2024
Author: N.J.Jamadar
Bench: N.J. Jamadar
2024:BHC-OS:18377
ial-30893-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
INTERIM APPLICATION (L) NO. 30893 OF 2022
IN
TESTAMENTARY PETITION NO.2500 OF 2018
VISHAL
SUBHASH Uday Sharad Kulkarni ...Applicant
PAREKAR
Digitally signed by
vs.
VISHAL
SUBHASH Claude Lila Narayan Parulekar ...Deceased
PAREKAR
Date: 2024.11.12
19:25:14 +0530
WITH
INTERIM APPLICATION NO. 2188 OF 2024
IN
TESTAMENTARY SUIT NO.65 OF 2023
Jeev Raksha Animal Welfare Trust ...Applicant
vs.
Uday Sharad Kulkarni ...Respondent
Mr. Vishwajit Sawant, Senior Advocate a/w. Mr. Prabhakar Jadhav,
for the Applicant in IA No. 2188 of 2024 and for Defendant in TS No.
65 of 2023.
Mr. Vishal Kanade a/w. Ms. Tanaya Patankar i/b. Mr. Sanjay Gawde,
for the Applicant in IAL No. 30893 of 2022 and for Respondent in IA
No. 2188 of 2024.
CORAM : N.J. JAMADAR, J.
RESERVED ON : 11th SEPTEMBER, 2024
PRONOUNCED ON : 12th NOVEMBER, 2024
--------------
JUDGMENT
1. These applications raise an issue of jurisdiction of this Court,
primarily, and were, therefore, heard together and are decided by
this common order.
Interim Application (L) No. 30893 of 2022 -
2. This is an application for amendment in the petition for grant
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of Letters of Administration to the property and credits of Claude
Lila Narayan Parulekar (the deceased) so as to include additional
movable and immovable properties enumerated in the schedule
annexed at Exhibit A to the application.
3. The applicant/petitioner filed the petition for grant of Letters
of Administration asserting, inter alia, that the deceased died
intestate leaving behind the petitioner and other surviving heirs
and next of kin, the particulars of whom are furnished in the table
at paragraph 4 of the petition. The petitioner claimed to be a son of
the paternal cousin sister of the deceased. The petitioner asserted
that the deceased has left behind the property described in the
Schedule B i.e. 4-A, Queen's Garden, Pune.
4. 'Jeev Raksha Animal Welfare Trust' has entered a caveat.
Thereupon, the petition came to be converted into Testamentary
Suit No. 65 of 2023.
5. The applicant has preferred this application asserting that
while filing the petition, the petitioner was aware that the deceased
has properties within Greater Bombay and in the State of
Maharashtra. However, the specific details were not available. The
petitioner made inquiries and became aware that movable and
immovable properties as described in the schedule 'Exhibit A'
appended to this application belonged to the deceased. Hence, this
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application to amend the Schedule of Properties by incorporating
the said properties.
6. An affidavit in reply is filed on behalf of the caveator. The
caveator has strongly opposed the prayer for amendment. At the
outset, it is contended that the application for amendment has been
filed mala fide and with ulterior motive. In fact, the Testamentary
Petition for grant of Letters of Administration could not have been
entertained at all as this Court has no jurisdiction to entertain, try
and decide the petition for grant of Letters of Administration. The
deceased passed away at Pune on 13 th September, 2016. The
deceased had a fixed place of abode at Pune. The property described
in the Schedule appended to the petition is situated at Pune. No
cause of action of whatsoever nature arose within the territorial
limits of the jurisdiction of this Court.
7. The caveator thus contends that, to fill in the lacuna and tide
over the incurable defect, the petitioner has made an endeavour to
amend the petition. In fact, the amendment was sought to be
surreptitiously made before the Testamentary Registrar, who
declined to allow the petitioner to amend the petition on the basis of
praecipe.
8. In the instant application also, the petitioner has made
deliberate false statement. There was no reference in the original
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petition that the deceased left behind any property within the
territorial limits of ordinary original civil jurisdiction of this Court.
Yet, in the instant application, it is blatantly asserted that the
petitioner had pleaded in the petition that the deceased had left
behind properties in Mumbai.
9. The caveator further contends that the deceased had left
behind a Will dated 1st May, 2010, whereunder she bequeathed all
her properties to the caveator trust. A Probate application No. 977
of 2016 has been filed before the Court of Civil Judge Senior Division
at Pune. In the said application, the applicant has filed a caveat.
However, the said caveat has not been pursued. The applicant has
also filed a Misc. Petition No. 108 of 2023 before this Court seeking
the transfer of the said probate application No. 977 of 2016 from the
Court of Civil Judge, Senior Division, Pune to this Court. In that
proceedings as well, the respondent-trust has raised objections.
Thus, the caveator contends the instant application is an dis-
ingenious attempt to confer jurisdiction on this Court, which it
otherwise does not possess. Therefore, the application deserves to
be rejected.
Interim Application No. 2188 of 2024 -
10. The caveator has also filed interim application for rejection of
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the instant petition as there is no cause of action. For the reasons
which are articulated in the affidavit in reply to Interim Application
No. 30893 of 2022 (summarized above), the applicant/caveator
contends that the petition deserves to be rejected by invoking the
powers under section VII Rule 11 of Code of Civil Procedure, 1908 as
it is premised on a deliberate false statement to the knowledge of
the petitioner besides being without any cause of action.
Submissions :-
11. I have heard Mr. Vishwajit Sawant, learned Senior advocate
for the applicant in IA No. 2188 of 2024 and Mr. Vishal Kanade,
learned counsel for the applicant in IAL No. 30893 of 2022. The
learned counsel took the Court through the pleadings in the petition
and the interim applications.
12. Mr. Kanade, learned counsel for the petitioner, submitted that
the prayer of the applicant to amend the petition so as to add the
properties left behind by the deceased is, in a sense, of formal
nature. The Testamentary Court does not decide the title to the
property. The applicant, post institution of this petition, learnt that
there were certain properties in which the deceased has right, title
and interest. Those properties are sought to be included by way of
amendment in the Schedule I. Neither it changes the nature of the
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petition nor causes any prejudice to the caveator.
13. Mr. Kanade submitted that the contention on behalf of the
caveator that the petition ought not to have been entertained as no
cause of action had accrued within the territorial limits of the
jurisdiction of this Court, is wholly misconceived. First and
foremost, in paragraph 2 of the petition the petitioner had
categorically asserted that the deceased left behind the property
within Greater Bombay and throughout the State of Maharashtra.
By way of amendment, the petitioner proposes to incorporate those
properties. At any rate, the objection based on territorial
jurisdiction is misconceived in law.
14. Amplifying the aforesaid submission, Mr. Kanade strenuously
urged that under section 300 of the Indian Succession Act, 1925
this High Court has concurrent jurisdiction. In exercise of the
powers conferred under section 2 of the Probate and Administration
Act No. VI of 1889, a notification was issued on 1 st August, 1889
authorizing the High Court of Judicature at Bombay throughout the
territories subject to the Govener in Council to receive applications
for Probate and Letters of Administration.
15. Mr. Kanade further urged that, it is not a case of inherent lack
of jurisdiction. Thus, an application for rejection of the plaint is
wholly unsustainable. Moreover, in the affidavit in support of the
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caveat, the caveator has not raised objection on the ground of
territorial jurisdiction. Therefore, the caveator cannot be now
permitted to assail the tenability of the petition on the said ground.
16. It was lastly submitted that the merits of the amendment
cannot be examined at this stage. If the amendment is allowed, the
caveator will get an efficacious opportunity to contest the claim by
filing an additional affidavit. Therefore, no prejudice as such would
be caused to the caveator.
17. Mr. Sawant, learned Senior Advocate for the caveator, would
urge that the very initiation of the proceedings is tainted with
suppression of facts. Despite having entered a caveat in the probate
application filed by the caveator before the Civil Court at Pune, the
petitioner had made a patently false statement that the deceased
died intestate. Secondly, it was categorically asserted in the petition
that the deceased died at Pune and had left behind a bungalow at
Pune. She was a permanent resident of Pune and, yet, the petition
was filed before this Court. Under no circumstances, can it be said
that any part of cause of action arose within the limits of ordinary
original civil jurisdiction of this Court. Mr. Sawant, made an earnest
endeavour to draw home the point that realizing this difficulty, an
effort is made to amend the petition by incorporating movable and
immovable properties in the Schedule.
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18. Even if the Schedule of Properties proposed to be added is
taken into account, yet, it can not be said that the deceased left
behind any property within the jurisdiction of this Court, merely for
the reason that, the Head Office of the companies, in which scripts/
securities are held, are located in Mumbai. Mr. Sawant urged with a
degree of vehemence that, the fact that the Head Office of the
Companies is situated in Mumbai cannot furnish a cause of action to
entertain the petition for grant of Letters of Administration. Neither
the application for amendment is bonafide nor the petitioner had
initially approached this Court with clean hands. Therefore, this is a
fit case where the petition itself deserves to be rejected instead of it
being returned to the petitioner for filing the same before the
appropriate Court. Mr. Sawant placed reliance on the judgment of
the Supreme Court in the case of Begum Sahiba Sultan vs. Nawab
Mohd. Mansur Ali Khan and Ors.1 and the decision of the Nagpur
High Court in the case of Mangia Hagria Mahar vs. Sakia and
Others2.
19. Joining the issue on the applicability of section 300 of the
Indian Succession Act, 1925 Mr. Sawant would urge that the
concurrent jurisdiction cannot be exercised with regard to a subject
matter beyond the ordinary original civil jurisdiction of High Court.
1 (2007) 5 S.C.R. 36
2 1940 SCC OnLine MP 21.
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20. The aforesaid submissions now fall for consideration.
21. Before adverting to the core question of the tenability of the
petition for grant of Letters of Administration before the High Court,
clarity on facts would be necessary. By and large, it is not in dispute
that the deceased neither died nor the deceased had a fixed place of
abode at the time of her death, within the territorial limits of the
ordinary original jurisdiction of this Court. The immovable property
described in the Schedule I appended to the petition is situated at
Pune. Thus, the substance of the resistance on behalf of the
Caveator to the jurisdiction of the High Court is premised on non-
availability of the factors which would confer the jurisdiction to
entertain a petition for grant of Letters of Administration. Whether
the challenge is sustainable ?
22. The petitioner proposes to meet the challenge by canvassing a
two-pronged submission. One, in the petition, for grant of Letters of
Administration, the petitioner had averred that the deceased had
left property within Greater Bombay and throughout the State of
Maharashtra. However, exact particulars of items of the properties
were then not known and hence this application to amend the
Schedule of Properties in accordance with the Schedule (Exhibit A)
which includes, inter alia, the properties within the local limits of
the ordinary original civil jurisdiction of this Court. Two, the High
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Court has a concurrent jurisdiction under section 300 of the Indian
Succession Act, 1925 and, therefore, the challenge to the territorial
jurisdiction is devoid of substance.
23. In order to appreciated the question in controversy in a
correct perspective, it may be necessary to note the relevant
provisions of Indian Succession Act as well as the Letter Patent
(Bombay).
24. Clause 34 of the Letters Patent (Bombay) which confers
Testamentary and Intestate jurisdiction, reads as under:-
34. Testamentary and intestate jurisdiction: - And We do further
ordain that the said High Court of Judicature at Bombay shall
have the like power and authority as that which may now be
lawfully exercised by the said High Court in relation to the
granting of probates of last wills and testaments, and letters of
administration of the goods, chattels, credits and all other
effects whatsoever, of persons, dying intestate, whether within
or without the Presidency of Bombay : Provided always that
nothing in these Letters Patent 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
other Court to grant such probates and letters of administration.
25. Under section 2(bb) of Indian Succession Act, 1925 "District
Judge" means the Judge of a Principal Civil Court of original
jurisdiction.
26. Section 57 of Indian Succession Act, 1925 provides thus :-
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
Jaina, 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
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Madras and Bombay; and
(b) to all such wills and codicils made outside those territories
and limits so far as relates to immoveable property situate
within those territories or limits, 4[and (c) to all wills and
codicils made by any Hindu, Buddhist, Sikh or Jaina 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.
27. Section 270 of the Indian Succession Act which confers
jurisdiction on the District Judge to grant Probate or Letters of
Administration, reads as under:-
270. When probate or letters of administration may be
granted by District Judge-- Probate of the will or letters 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.
28. In exercise of the jurisdiction conferred under the Letters
Patent (Bombay), this Court can exercise the authority to grant
Letters of Administration in respect of property and credits of the
person dying intestate, whether within or without the local limits of
the ordinary original civil jurisdiction of this Court, provided there
is no law made by the competent legislature whereby the said power
is given to any other Court. The power of the District Judge under
section 270 of the Indian Succession Act is conditioned by two
imperatives. One, the deceased had a fix place of abode at the time of
his death. Or the deceased left behind any property, movable or
immovable, within the jurisdiction of the District Judge. Under the
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Indian Succession Act, 1925 the District Judge, in turn, is defined to
mean, the judge of a Principal Civil Court of original jurisdiction.
29. If the facts of the case at hand are appraised, through the
aforesaid prism, as noted above, the deceased had a fixed place of
abode at Pune and the immovable property left behind by the
deceased, is situated at Pune (as claimed in the original petition),
the petition for grant of Letters of Administration, unless it is
covered by the other provisions of the Succession Act, 1925, would
not lie before the High Court in exercise of its testamentary and
intestate jurisdiction.
30. The petitioner banks upon section 300 of the Indian
Succession Act as the special provision which confers concurrent
jurisdiction on the High Court. In addition to section 300, reference
is required to be made to section 273 of the Indian Succession Act,
1925 which bears upon tenability of the petition for Letters of
Administration, before this Court.
31. Section 273 provides for conclusiveness of Probate or Letters
of Administration in the following terms :-
273. Conclusiveness of probate or letters of administration--
Probate or letters of administration shall have effect over all the
property and estate, moveable or immoveable, of the deceased,
throughout the State in which the same is or are granted, and
shall be conclusive as to the representative title against all
debtors of the deceased, and all persons holding property which
belongs to him, and shall afford full indemnity to all debtors,
paying their debts and all persons delivering up such property to
the person to whom such probate or letters of administration
have been granted:
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Provided that probates and letters of administration granted
(a) by a High Court, or
(b) by a District Judge, where the deceased at the time of his
death had a fixed place of abode situate within the jurisdiction of
such Judge, and such Judge certifies that the value of the
property and estate affected beyond the limits of the State does
not exceed ten thousand rupees,
shall, unless otherwise directed by the grant, have like effect
throughout the other States.
The proviso to this section shall apply in 2[India] 3after the
separation of Burma and Aden from India to probates and
letters of administration granted in Burma and Aden before the
date of the separation, or after that date in proceedings which
were pending at that date.
The proviso shall also apply in India after the separation of
Pakistan from India to probates and letters of administration
granted before the date of the separation, or after that date in
proceedings pending at that date, in any of the territories which
on that date constituted Pakistan.
32. Section 300 of the Indian Succession Act confers concurrent
jurisdiction on the High Court. It reads as under:-
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 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,
authorized it so to do.
33. I will first deal with the support sought to be drawn from the
provisions contained in section 300 of the Indian Succession Act,
1925. On its plain reading sub section (1) of section 300 does not
make it peremptory that any portion of the property left behind by
the deceased ought to be situated within the limits of ordinary
original civil jurisdiction of the High Court for exercise of
concurrent jurisdiction by the High Court along with District Judge.
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Sub section (2) of section 300 curtails the concurrent jurisdiction,
by providing that except in cases to which section 57 applies, no
High Court, shall exercise the concurrent jurisdiction, where the
deceased is Hindu, Mohammedan, Buddhist, Sikh or Jaina or an
exempted person, unless the State Government has, by a
notification in the Official Gazette, authorized it so to do. It implies
that if the case is covered by section 57 of the Indian Succession
Act, the notification under sub section (2) is not necessary. If the
case is not covered by section 57, the concurrent jurisdiction
conferred by sub section (1) of section 300 cannot be exercised in
the absence of notification by the State Government.
34. Mr. Kanade, learned counsel for the petitioner, banked upon a
notification dated 1st August, 1889 published in Bombay
Government Gazette under section 2 of the Probate and
Administration Act V of 1881 authorizing the High Court of
Judicature at Bombay to receive the applications for Probate and
Letters of Administration. The said notification reads as under:-
Notification
Judicial Department
Bombay Castle, 31st July, 1889
No. 4021 - In exercise, of the power conferred by Section 2 of the
Probate and Administration Act V of 1881, the Governor of Bombay
in Council is pleased, with the previous sanction of the Governor
General in Council, to authorize the High Court of Judicature at
Bombay throughout the territories subject to the Governor in
Council, and all District Judges as defined in the said Act within the
said territories, and such Judicial Officers as the said High Court
may from time to time appoint as District Delegates to receive
applications for Probate and Letters of Administration.
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35. It was submitted that the said notification continues to hold
the field as the provisions contained in section 300 of the Indian
Succession Act are pari materia section 2 Probate and
Administration Act V of 1881. To this end, Mr. Kanade placed a
strong reliance on a decision of Calcutta High Court in the case of
Maniklal Shah v. Hiralal Shaw3 wherein a question about the
jurisdiction of the Calcutta High Court to entertain and try a suit for
grant of Probate of a Will was questioned on the premise that the
property was situated outside the local limits of the Ordinary
Original Civil Jurisdiction of the Calcutta High Court and, secondly,
that the testator lived and died in Dum-Dum which was also outside
the local limits of the jurisdiction of the said Court.
36. Repelling the aforesaid challenge, the learned single Judge of
the Calcutta High Court, banking upon the notification issued under
section 2 of Probate and Administration Act V of 1881 and
construing the same to be the one issued under section 2 of Section
300 of Indian Succession Act, 1925, enunciated the law as under:-
9] The provisions of Section 2, Probate and Administration
Act having been re-enacted as indicated above, the said
notification, to my mind, is sufficient compliance with the
provisions of Sub-section (2) of Section 300, of the present
Act.
10] There is a further answer to Mr. Ghosh's contention. The
definition of "District Judge" given in Section 2 (bb) of the
amending Act XVIII [18] of 1929 includes a Judge of the High
Court on the Original Side (see Manubhai v. General Accident,
Fire and Life Assurance Corporation Ltd., 38 Bom. L. R. 632
3 AIR (37) 1950 Calcutta 377.
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at p. 655 : (A. I. r. (23) 1936 Bom. 363). The result is that a
High Court Judge on the original side has concurrent
jurisdiction with the District Judge in all testamentary
matters. In the case of In the Goods of Mohendra Narain Roy,
5 C. W. N. 377. Sale, J., held that the "High Court" in Section
87, Probate and Administration Act (v [5] of 1881) was not
merely confined to the Appellate Jurisdiction of that Court,
but included its Original Jurisdiction and that under section
the High Court, exercising its Original Jurisdiction, had
concurrent jurisdiction with the District Judge.
11] In Nagendra Bala v. Kasipati, 37 Cal. 224 : (5 I. C. 1003),
Fletcher, J. held that the High Court had jurisdiction to grant
probate and letters of administration, on its original side, in
any case which could have been brought before any District
Judge in either of the two Provinces of Bengal. This decision
involved the consideration of SECTIONS 2, 51 and 87, Probate
and Administration Act V [5] of 1881, and Fletcher, J.,
summarized his conclusions thus : "I think, from Sections 2,
51 and 87, it is clear that the High Court has jurisdiction in all
districts." These three sections of the Probate and
Administration Act correspond to Sections 300(2), 264(1)
and 300(1) of the present Act respectively. Like Section 87,
Probate and Administration Act, the corresponding Section
300(1), does not require that any portion of the property
should be within the limits of the Ordinary Original Civil
Jurisdiction of the High Court.
12] Under Clause 34, Letters Patent (1865), the High Court's
jurisdiction in testamentary matters is co-extensive with the
limits of the Province. This jurisdiction cannot be said to
interfere with those provisions of the Indian Succession Act
which confer jurisdiction on District Judges to grant
probates. The exercise by the High Court of its testamentary
jurisdiction beyond the local limits of its ordinary original
civil jurisdiction is not exclusive of, but concurrent with, the
jurisdiction of the District Judge. I hold therefore that this
Court has jurisdiction to entertain and try this suit.
(emphasis supplied)
37. Prima facie, the aforesaid pronouncement appears to govern
the facts of the case at hand. However, I do not propose to decide the
controversy in the case at hand, with reference to the continued
applicability of the aforesaid Notification issued under section 2 of
the Probate and Administration Act, 1881. In my view, the answer
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to the controversy can be based on a more surer foundation under
section 273 of the Indian Succession Act, 1925.
38. The proviso to section 273 makes a distinction between the
efficacy of the Probate and Letters of Administration granted by
High Court and the District Judge. The Probate and Letters of
Administration granted by High Court shall have effect throughout
the State in which the same are granted and throughout the other
States as well. However, the Probate and Letters of Administration
granted by a District Judge shall have effect throughout the other
States only when the District Judge certifies that the value of the
property and estate affected beyond the limits of the State does not
exceed 10,000/- rupees. Thus, an element of pecuniary limits of the
jurisdiction creeps in when the District Judge grants Probate and
Letters of Administration in respect of the property situated beyond
the limits of the State. On the other hand, the Probate and Letters of
Administration granted by the High Court have affect throughout
that State and the other States. Does that affect the tenability of the
petition for Letters of Administration before the District Judge in
cases where the value of the property and estate affected by the
Probate and Letters of Administration, exceeds Rs. 10,000/- ?
39. In the case of Naval vs. Jagdish Prasad4 a Full Bench of the
Madhya Pradesh High Court had an occasion to consider the
4 1998 Madhya Pradesh Series 267.
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following two questions, on a reference:-
(i) Whether the District Judge loses its jurisdiction to
grant probate if the value of the property and estate
situate beyond the limits of state exceeds Rs. 10,000/- ?
(ii) Whether probate granted by the District Judge would
be valid for the property situated within its jurisdiction
despite the presence of property and estate worth more
than Rs. 10,000/- beyond the state ?
40. The Full Bench answered the question, inter alia, as under:-
Section 273 of the Act, envisaging conclusiveness of probate or
letters of administration, clarified the jurisdictional periphery.
Proviso makes it luculent that grant by a High Court shall have
like effect throughout the other State, as substituted by A.L.O
1948 whereas the grant by a District Judge to be effective in
other State depends on certification of such Judge that the value
of the property and estate effected beyond the limits of the State
does not exceed ten thousand rupees. In other words, writ of the
District Judge does not run throughout the other State if value
beyond the limits exceeded the extent of ten thousand rupees.
This section does not say that claim can be segregated and grant
can be made to the extent of property and estate located within
the limits of the State. In other words, such a jurisdiction cannot
be read into the proviso. That would tantamount to altering of
the "material" rather than simply ironing out of "creases".
... ....
In the ultimate analysis, we conclude that the District Judge
has no jurisdiction to entertain the petition where the value of
the property beyond the limits of his State is in excess of Rs.
10,000/- and has no right under the law to grant probate or
letters of administration for the "portion" of the property
situated in his State. Section 273 of the Act speeks of "all" teh
property and estate AND effect throughout "the other State". If
his grant cannot produce this effect, then he has no jurisdiction
in the matters and he should leave it to unqualified and
unlimited foram particularized under clause (a). In law, there is
no separatism, unless specifically provided, and as such there is
no short cut which often proves to be a wrong cut. The same is in
sight here.
Law ensures that everything is in its place, more so when the
issue is one of jurisdiction. Samuel Smile observed that - "A
place for everything and in its place", Clause (b) indicates the
place in undoubtful terms.
We thus approve of the law laid down in Misc. Appeal No. 67
of 1959 (supra) and disapprove of and thus rule passing
observations concerning jurisdiction as contained in para 33 of
Smt. Yuvrant's case (supra). Legal position, as detailed above,
therefore, has compelled us to billon bistoury and to bust the
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ambulation to clear the conundrum. Clause (b) clarifies and does
not confuse. Legislative intent is evident. The question is simple,
so is the answer.
Jurisdiction thus depends on existence of specified
conditions. There is no way to scissor any one of those conditions
or orchestrate a different tune. Forum cannot deal with
"portion" for a "place". Writ has to run for "all" and
"throughout". Provision does not permit any other course or
recourse. Availability of (a) - i.e. High Court is sure clue to
restrictive operation of (b) of Section 273 of the Act. Relief on
same cause of action cannot be spun in piecemeal before two or
three District Judges of different States property wise. Firstly, it
is impermissible and violative of Order II. Rule I of the Code and
Secondly this exercise may produce conflicting consequences
which, in law, must be avoided. It has to be one time lis at proper
forum.
The stage is now reached to pen omega.
Accordingly our answers to the questions are as under:-
(a) Question No. (i) YES
(b) Question No. (ii) NO
(emphasis supplied)
41. In the case of Col. Anand Prakash Gupta and Others v. State
and Others5 a learned single Judge of Delhi High Court having found
that the value of the property and estate affected beyond the limits
of the jurisdiction of the District Judge exceeded Rs. 10,000/-
directed the transfer of the petition for Letters of Administration to
the Delhi High Court observing, inter alia, as under:-
8] Proviso to Section 273 of the Indian Succession Act makes it
clear that the District Judge can grant a probate and letter of
administration if the deceased at the time of his death had a
fixed place of abode situated within the jurisdiction of such
Judge, and such Judge certifies that the value of property and
estate effected beyond the limits of the State does not exceed ten
thousand rupees.
9] In this present case, it is an admitted case that the value of
the property and the estate effected beyond the limits of the
jurisdiction of learned trial court exceeds Rs.10,000/-.
Respondents no.1 to 4 have no objection to the transfer of PC No.
12/2020 titled "Col. Anand Prakash Gupta and others v. The
State" from the court of Ld. ADJ - 02, South District, Saket
Courts to this Court.
5 2022 SCC OnLine Del 3257.
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42. In M/s. Subrata Saha w/o. Debabrata Saha v. Debabrata Saha6
a learned single Judge of this Court has overruled an objection to
the tenability of the petition for grant of Letters of Administration
on an identical line.
43. Reverting to the facts of the case, in the proposed Schedule of
Properties, in addition to the properties which are situated within
the limits of the ordinary original civil jurisdiction of this Court, the
petitioner has made a reference to the properties of the deceased
situated in the States of Delhi, West Bengal, Gujrat, Madhya Pradesh
and even properties situated in Switzerland and United States. The
value of the properties which are likely to be affected by grant of
Letters of Administration beyond the limits of the State of
Maharashtra runs into lakhs of rupees. The District Judge will thus
have no jurisdiction to entertain and decide the petition for grant of
Letters of Administration.
44. I am, therefore, inclined to hold that the petition for Letters of
Administration in respect of the properties which are sought to be
included by way of proposed amendment will be required to be filed
before the High Court.
45. So far as the opposition to the amendment, I do not find any
impediment in granting the amendment so as to include the
properties proposed to be added by way of amendment. The primary
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objective would be to ensure that no property left behind by the
deceased remains un-administered. The question as to whether the
petitioner is entitled to Letters of Administration merits
adjudication at the appropriate stage. It is trite the merits of the
amendment are not required to be delved into while considering the
question of grant of permission for amendment. The proposed
amendment neither changes the nature nor the character of the
proceedings. It also appears necessary for the determination of the
controversy, once and for all.
46. So far as the application for rejection of the petition, suffice to
note that once the Court finds that the petition for grant of Letters
of Administration is maintainable before this Court, the very
substratum of the application for rejection of the petition stands
dismentalled. The submission on behalf of the Caveator that in the
petition, the petitioner had made a statement which is false to the
knowledge of the petitioner, i.e. the deceased died intestate, as the
petitioner has filed a Caveat in the petition for grant of Probate of
the Will, filed on behalf of the Caveator before the Civil Court at
Pune, is a matter which touches upon the merits of the petition. At
this stage, the same can not be urged as a ground for rejection of the
petition for grant of Letters of Administration.
47. Even otherwise, the statement that the deceased died
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intestate cannot be said to be irretrievably irreconcilable with the
action of the petitioner in opposing the grant of Probate of the Will,
propounded by the Caveator herein. Undoubtedly, it could be urged
that the petitioner ought to have disclosed the fact that a petition
for grant of Probate has already been filed on behalf of the Caveator
and the same is subjudice before the Civil Court at Pune. Yet, the
effect of omission, or for that matter suppression, would be a matter
for adjudication. Thus, the application for rejection of the petition
does not deserve countenance.
48. For the foregoing reasons, I am inclined to allow the
application for amendment and reject the application for rejection of
the petition.
Hence, the following order.
ORDER
1] The interim application (L) No. 30893 of 2022 stands
allowed in terms of prayer clause (a).
2] Necessary amendment in accordance with the
Schedule of Amendment be carried out within a period of
two weeks from the date of uploading of this order.
3] Amended copy of the petition be served on the
Caveator within two weeks thereafter.
4] The Caveator shall be at liberty to file additional
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affidavit in support of Caveat within a period of four weeks
thereafter.
5] The Interim Application No. 2188 of 2024 stands
rejected.
6] Cost in cause.
(N.J.JAMADAR, J.)
