Kerala High Court
Lekshmi. M. Nair vs Sudhamony Amma. C.K on 23 February, 2024
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
FRIDAY, THE 23RD DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945
MFA (SUCCESSION) NO. 3 OF 2023
AGAINST THE ORDER/JUDGMENT OP (LA) 3/2022 OF DISTRICT & SESSIONS
COURT, ALAPPUZHA
APPELLANT/PETITIONER IN OP(LA):
LEKSHMI. M. NAIR
AGED 39 YEARS
D/O (LATE) R. MURALEEDHARAN NAIR, CHERUVALLIL,
VADACKAL P.O., PARAVOOR VILLAGE, AMBALAPPUZHA TALUK,
ALAPPUZHA DISTRICT, PIN - 688003
P.B.KRISHNAN
P.B.SUBRAMANYAN
SABU GEORGE
B.ANUSREE
MANU VYASAN PETER
DEEPA NOBLE
RESPONDENTS/RESPONDENTS IN OP(LA):
1 SUDHAMONY AMMA. C.K
W/O LATE R. MURALEEDHARAN NAIR, CHERUVALLIL,
VADACKAL P.O., PARAVOOR VILLAGE, AMBALAPPUZHA TALUK,
ALAPPUZHA DISTRICT, PIN - 688003
2 LEKHA NAIR
AGED 52 YEARS, D/O SUDHAMONY AMMA. C.K., AVANI, PERUNNA,
CHANGANACHERRY, KOTTAYAM DISTRICT, PIN - 686102
3 REKHA HARIKUMAR
AGED 47 YEARS, D/O SUDHAMONY AMMA.C.K. NEDUMPARAMBIL,
PADAHARAM, THAKAZHY, AMBALAPPUZHA TALUK,
ALAPPUZHA DISTRICT, PIN - 688003
K.S.HARIHARAPUTHRAN
PINKU MARIAM JOSE(K/749/2015)
ANIL KUMAR T.P.(K/001028/2021)
THIS MFA (SUCCESSION) HAVING COME UP FOR HEARING ON 30.01.2024,
THE COURT ON 23.02.2024 DELIVERED THE FOLLOWING:
MFA (SUCCESSION) NO. 3 OF 2023
2
ANU SIVARAMAN, J. & C. PRATHEEP KUMAR, J.
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MFA (Succession) No.3 of 2023
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Dated this the 23rd day of February, 2024
ORDER
Anu Sivaraman, J.
The question raised for consideration before us by the Reference
Order dated 9.1.2024 is whether, in the absence of a notification by
the State Government under Section 264(2) of the Indian Succession
Act, 1925 (for short, 'the Act'), the District Court has jurisdiction to
grant or revoke probates and letters of administration.
2. A learned Single Judge of this Court in Natarajan T.K. v. T.
K. Raman Achari [2023 (2) KHC 652] held that the courts within the
State of Kerala have no jurisdiction to issue probate or letters of
administration unless there is a notification by the State Government
as mandated under Section 264(2). To come to the said conclusion, a
decision of the Apex Court in Ravinder Nath Agarwal v. Yogender
Nath Agarwal and others [2021 (1) KLT 1139 (SC) : AIR 2021 SC
3156] was relied on.
3. We have heard Sri.P. B. Krishnan, the learned counsel for
MFA (SUCCESSION) NO. 3 OF 2023
the appellant ably assisted by Adv. Chithira Venugopal and Sri.K. S.
Hariharaputhran, the learned counsel appearing for the respondents.
4. The learned counsel for the appellant contends that the
provisions of Section 264(1) of the Act which specifically provides
that the District Judge shall have jurisdiction in granting and
revoking probates and letters of administration in all cases within his
district being clear and unambiguous, the provision in sub section (2)
of the same Section would apply only to courts other than District
Courts which are specifically provided with the jurisdiction under
Section 264(1). It is further contended that it is only in cases to
which Section 57 does not apply and where the deceased is a Hindu,
Muhammadan, Buddhist, Sikh or Jain or an exempted person that a
notification is required by the State Government for courts in local
area beyond the limits of the towns of Calcutta, Madras and Bombay
for receiving applications for probate or letters of administration. It
is contended that since Section 57(c) provides that the provisions of
the part shall apply to all wills and codicils made by Hindu, Buddhist,
Sikh and Jaina on or after the first day of January, 1927. The will in
question is the question being one made by a Hindu and not being
covered by Section 57(a) and (b), is one covered by Section 57(c) and
MFA (SUCCESSION) NO. 3 OF 2023
therefore, no notification is required under Section 264(2), it is
contended.
5. The Indian Succession Act, 1925 defines a 'District Judge'
to mean the Judge of a principal civil court of original jurisdiction.
The present Act is divided into several parts. Part VI of the Act deals
with testamentary succession. Section 57 provides for the
application of certain provisions of Part to a class of Wills. Section
57(c) states that the provisions of Part VI which are set out in
Schedule III shall, subject to the restrictions and modifications
specified therein, apply 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). The
matters set out in Schedule III are admittedly the provisions of Part
VI, that is, from Section 57 to Section 191 barring a few provisions.
Section 264 of the Act figures in Part IX of the Act which provides for
probate, letters of administration and administration of assets of
deceased.
6. Chapter IV of Part IX of the Indian Succession Act deals
with the practice in granting and revoking probates and letters of
administration. Section 264 figures in Chapter IV and reads as
MFA (SUCCESSION) NO. 3 OF 2023
follows :-
"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 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, authorised it so to do."
7. The subsequent Sections in the Part specifically refer to the
powers of the District Judge in dealing with applications for grant of
probates and letters of administration and to their conclusiveness and
appeal therefrom. Section 300 provides that the High Court shall
have concurrent jurisdiction with the District Judge. It is pertinent to
note that Section 300(2) also provides that except in cases to which
Section 57 applies, no High Court, in exercise of the concurrent
jurisdiction 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,
MFA (SUCCESSION) NO. 3 OF 2023
authorised it to do so.
8. The learned counsel for the appellant has placed the
Succession Act of 1865 as well as the Act of 1870 for our
consideration and brings to our notice the fact that the definition of a
'District Judge' and the jurisdiction of the District Judge and the
powers for grant of probates and letters of administration under
Section 235 under Part XXXI of the 1865 Act were in pari materia with
the powers conferred by the 1925 Act as well. It is, therefore,
contended that the power to grant or revoke probates or letters of
administration is specifically conferred on the District Judge. It is
submitted that sub section (2) of Section 264 which provides that no
court shall accept applications for probates or letters of administration
without a notification by the State Government would only mean
courts other than the District Courts which are specifically conferred
with the jurisdiction under Section 264(1). It is contended that this
aspect of the matter would be amply clear from a consideration of the
judgment of a Full Bench of the Madras High Court in R. Rama
Subbarayalu Reddiar v. Rengammal [AIR 1962 Mad 450], where it
was held that a notification under the provisions of the Civil Courts
Act, 1873 would enable a subordinate court or a Munsiff's court to
MFA (SUCCESSION) NO. 3 OF 2023
accept applications and dispose of applications for probate and letters
of administration under the provisions of the Indian Succession Act.
However, such vesting of authority in the Subordinate Judge to
entertain and dispose of contentious applications for probate under
the provisions of the Civil Courts Act cannot take away the jurisdiction
of the District Judge who is specifically empowered to consider
applications and to grant or revoke probates and letters of
administration under Section 264(1). It was, therefore, held that the
District Judge has concurrent jurisdiction with the Subordinate Judge
to consider an application for grant of probate. The provisions of
Section 264(2) were also referred to by the Full Bench.
9. In Ganpat Pralhad and others v. Mahadeo Paikajee
Kolhe and others [AIR (36) 1949 Nagpur 408 (C.N.164)], the
question considered was whether the Additional District Judge can
exercise the powers of District Judge in the matter of grant of probate
of a Will. It was held that the term 'District Judge' used in the
provisions of the Succession Act is a specific reference to the District
Court and the term is not used to refer to the District Judge as a
persona designata but to a court of principal civil jurisdiction and
therefore, an Additional District Judge will also have the power to
MFA (SUCCESSION) NO. 3 OF 2023
consider an application for grant of probate of a Will.
10. A decision of the Apex Court in Ashwani Kumar Singh v.
U. P. Public Service Commission [2003 KHC 1334] is relied on by
the learned counsel for the appellant to contend that the judgments
should not be interpreted like words in a statute and each decision has
to be considered on the basis of the facts of the case which it decided.
A decision of the learned Single Judge of this Court in Varkey v.
George [1992 KHC 377] is also relied on to contend that the
expression District Judge in Section 264 refers to the District Court
and not to a persona designata. Relying on Sections 278, 268 and 295
of the Succession Act, the learned Single Judge held that there is no
prohibition in the Act or in the Rules against the seeking of the letters
of administration in respect of an earlier Will if the latter Will were to
fail for any reason. It was held that the endeavour of the court should
be not to curtail the power which is not specifically curtailed by any
other Act or the Rules framed thereunder and it is not for the court to
impose upon itself self created fetters so as to disable it from
exercising a power which is a normally recognised one and is used for
doing justice in a given cause.
11. In Triloki Nath v. Kanhiya Lal and other opposite
MFA (SUCCESSION) NO. 3 OF 2023
parties [AIR 1978 Allahabad 297], a learned Single Judge of the
Allahabad High Court considered an identical question and held that
since Section 264(1) of the Succession Act makes it clear that the
District Judge has jurisdiction in granting and revoking probates and
letters of administration in all cases within his district, the
requirement for a notification under Section 264(2) will be applicable
only in cases where Section 57 is not applicable. Referring to Section
57(c), it was held that where a Will is made by a Hindu, Budhist, Sikh
or Jain on or after the 1st day of January, 1927, the provisions of
Section 57 are attracted and there would be no necessity for a
notification empowering the District Judge to entertain petitions for
probates and letters of administration and that the District Judge has
jurisdiction to entertain such petitions and to grant such letters of
administration.
12. The learned counsel appearing for the respondents would,
on the other hand, contend that Section 57 makes only the specific
provisions as provided under Schedule III applicable to wills or
codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the
first day of January, 1927 and that since Section 264 is not made
applicable to such persons by Section 57, a notification would be
MFA (SUCCESSION) NO. 3 OF 2023
required. Further, it is contended that there is no requirement for
Hindu, Buddhist, Sikh or Jaina to obtain a probate of a Will and
therefore, the entire question is irrelevant.
13. Having considered the contentions advanced, we notice
that a District Judge is specifically conferred with the jurisdiction to
grant and revoke probate and letters of administration in all cases
within his District under Section 264(1) of the Act. The language of
Section 264(2) would make it clear that the necessity of a notification
would arise only in cases where Section 57 does not apply. This
aspect is amply clear from a reading of the other provisions of Chapter
IV of Part IX specifically refers to the procedure before the District
Judge, the nature of the adjudication and the appeal therefrom. It is,
therefore, clear that in case of a District Judge, the jurisdiction for
granting and revoking of probates and letters of administration in all
cases within his District is specifically vested under Section 264(1). It
is only in cases where Section 57 does not apply that a notification by
the State Government is required to receive applications for probate
or letters of administration.
14. The question which arose for consideration in Ravinder
Nath Agarwal's case (supra) was as to the territorial jurisdiction to
MFA (SUCCESSION) NO. 3 OF 2023
consider an application for probate under the Indian Succession Act.
The question is whether the proceedings under the Succession Act
could be transferred to the Court trying a suit for partition. The Apex
Court held that by virtue of Section 213(2)(i) read with Clauses (a) and
(b) of Section 57, the mandatory requirement to seek probate or
letters of administration for establishing a right as executor or legatee
under a Will is applicable only to Wills made by a Hindu, Buddhist,
Sikh or Jain within the local limits of the ordinary original civil
jurisdiction of certain High Courts and to Wills made outside those
territories to the extent they cover immovable property situated within
those territories. It was further held that in other cases, there is no
necessity for an executor or a legatee under a Will to seek probate or
letters of administration. However, it was noticed that in Balbir
Singh Wasu v. Lakhbir Singh and others [(2005) 12 SCC 503], it
was held that there is nothing in Section 213 prohibiting the executor
from applying for probate as a matter of prudence or convenience to
the courts in other parts of the country. It was therefore found that in
cases where probates or letter of administration need not be obtained,
primacy for those proceedings cannot be claimed.
15. Having given our anxious consideration to the said decision,
MFA (SUCCESSION) NO. 3 OF 2023
we find that the reference made to Section 264 in paragraph 35 of the
said decision is only to the effect that the jurisdiction to grant probate
or letters of administration vests only within courts located within the
towns of Calcutta, Madras or Bombay and the courts in any local area
notified by the State Government in the Official Gazette. Paragraph
36 would show that the question was whether there is a requirement
under the provisions of the Succession Act to seek probate or letters
of administration in other cases. It was in the above context that the
Apex Court had held that there is no such requirement. This cannot
be read as meaning that even in cases where probate or letters of
administration are required or felt to be desirable by the person
concerned, who is covered by Section 57(c) of the Act, the District
Court, which is specifically empowered under Section 264(1) would
not have the power to consider such application. We, therefore, hold
that the view of the learned Single Judge in Natarajan T. K.'s case
(supra) is not the correct law. There is no finding by the Supreme
Court in Ravinder Nath Agarwal's case (supra) that even in cases
covered by Section 57, the District Judge would have no jurisdiction
to entertain an application for probate or letters of administration,
unless a notification is issued by the State Government under Section
MFA (SUCCESSION) NO. 3 OF 2023
264(2). We, therefore, answer the reference as follows:-
16. Even in the absence of a notification under Section 264(2) of
the Indian Succession Act, the District Court would be empowered to
accept applications and grant and revoke probates and letters of
administration in cases specifically covered under Section 57(c).
In the instant case, the parties being Hindus, they are
specifically covered by Section 57(c) of the Indian Succession Act. The
MFA Succession is allowed. The judgment under appeal is set aside.
The matter is remanded to the District and Sessions Court, Alappuzha
for appropriate consideration, in accordance with law.
Sd/-
ANU SIVARAMAN
JUDGE
Sd/-
C. PRATHEEP KUMAR
JUDGE
Jvt/9.2.2024
