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Smt. Nola Jonathan Ranbhise Vs. the Union of India, the Law and Judiciary Department and Others - Court Judgment

LegalCrystal Citation
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 2777 of 2013
Judge
AppellantSmt. Nola Jonathan Ranbhise
RespondentThe Union of India, the Law and Judiciary Department and Others
Excerpt:
code of civil procedure, 1908 - indian succession act, 1925 – section 276, section 299 - bombay civil court act, 1869 - section 28-a, section 28a(2) and section 28a(3) - probate and administration act, 1881 - section 28-a(1), section 28-a(2) – application for probate – grant of probate – revocation of probate seeked – grant of revocation challenged - upon demise of “e�, petitioner applied for probate under section 276 of the act, 1925 in respect of her will before civil judge, which was granted – thereafter, deceased’s son filed application under section 263 of the act, 1925 seeking revocation of probate, which was granted by civil judge - petitioner appealed to district.....m.s. sonak, j. 1. by this petition, the petitioner inter alia, seeks a declaration that section 28-a of the bombay civil court act,1869 is void on grounds of inconsistency with and repugnancy to the section 299 of the indian succession act, 1925. 2. the declaration and consequential reliefs have been sought in the following facts and circumstances: a) on 25.3.1997, mr. ebenezer walter baker filed regular civil suit no.167 of 1977 seeking 1/12th share in the properties of late dr. baker. the petitioner came to be impleaded as defendant no.5 in the said suit, which was ultimately dismissed for want of prosecution. b) upon demise of ms. eunice d. baker, the petitioner vide m.c.a.no.417 of 1997 applied for probate under section 276 of indian succession act, 1925 in respect of her will dated.....
Judgment:

M.S. Sonak, J.

1. By this Petition, the Petitioner inter alia, seeks a declaration that Section 28-A of the Bombay Civil Court Act,1869 is void on grounds of inconsistency with and repugnancy to the Section 299 of the Indian Succession Act, 1925.

2. The declaration and consequential reliefs have been sought in the following facts and circumstances:

A) On 25.3.1997, Mr. Ebenezer Walter Baker filed Regular Civil Suit No.167 of 1977 seeking 1/12th share in the properties of late Dr. Baker. The petitioner came to be impleaded as Defendant No.5 in the said Suit, which was ultimately dismissed for want of prosecution.

B) Upon demise of Ms. Eunice D. Baker, the Petitioner vide M.C.A.No.417 of 1997 applied for probate under Section 276 of Indian Succession Act, 1925 in respect of her Will dated 4.4.1985 before the Civil Judge, Senior Division Pune. This was granted by the Civil Judge on 12.12.1997.

C) Mr. Ebenzer Baker thereupon filed M.C.A. No.32 of 1999 under Section 263 of the Indian Succession Act, 1925 seeking revocation of the probate granted on 12.12.1997 before the Civil Judge Senior Division Pune. Upon demise of Mr. Ebenzer Baker, the M.C.A. was pursued by Respondent Nos.3 and 4 being the legal representatives of said Mr. Ebenzer Baker.

D) By judgment and order dated 30.1.2006, the Civil Judge Senior Division at Pune allowed M.C.A. No.32 of 1999 and revoked the probate granted on 12.12.1997.

E) On 20.4.2006, the Petitioner vide Civil Appeal No.137 of 2006 appealed to District Judge Pune against the judgment and order dated 30.1.2006 passed by the Civil Judge Senior Division at Pune in M.C.A.No.32 of 1999. This Appeal came to be dismissed by the District Judge, Pune vide judgment and order dated 4.11.2008.

F) The Petitioner thereafter preferred Civil Revision Application No.686 of 2008 under Section 115 of the C.P.C. before this Court impugning the judgment and order dated 30.1.2006 passed by the District Judge, Pune. The memo of Revision Petition was amended to incorporate challenge to the provisions of Section 28A of the Bombay Civil Courts Act, 1869. Upon such amendment, the Revision Application was placed before the Division Bench of this Court for further consideration.

G) Ultimately, Civil Revision Application No.686 of 2008 was disposed of by granting liberty to the Petitioner to prefer a Writ Petition in order to question viresof Section 28-A of the Bombay Civil Courts Act, 1869.

H) Accordingly, the present petition came to be filed questioning inter alia, the viresof Section 28-A of the Bombay Civil Courts Act, 1869 primarily on the ground that the same is inconsistent with and repugnant to the provisions of Section 299 of the Indian Succession Act, 1925.

I) Section 28-A of the Bombay Civil Courts Act 1869 :

(i) empowers the High Court to invest Civil Judges with jurisdiction to exercise powers of District Judges under the Indian Succession Act, 1865 and the Probate and Administration Act, 1881 [Section 28-A(1)..

(ii) Provides that every order made by Civil Judge so invested, shall be subject to appeal to the High Court or the District Court according as the amount or value of the subject matter exceeds or does not exceed ten lakh rupees [Section 28-A(2)..

(iii) Provides that every order of the District Judge passed in an appeal under sub-section (2) from the order of the Civil Judge shall be subject to an appeal to the High Court under the rules, contained in the Code of Civil Procedure, applicable to appeals from appellate decrees [Section 28-A(3)..

J. In contrast, Section 299 of the Indian Succession Act, 1925 provides that every order made by a District Judge shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure, 1908, applicable to appeals.

K) The Petitioner contends that there is apparent conflict between the provisions of Section 28-A of the Bombay Civil Courts Act, 1869, which is a prior, provincial and general Legislation and Section 299 of the Indian Succession Act, 1925, which is a later, Central and special Legislation. In case of such a conflict, the Petitioner urges, the later, Central and Special Legislation ought to prevail.

L) Accordingly, the Petitioner urges that Appeal against the judgment and order dated 30.1.2006 passed by the Civil Judge revoking the probate issued on 12.12.1997 lay before the High Court and consequentially the judgment and order dated 4.11.2008 passed by the District Court is incompetent. The District Court ought to have returned the memo of Appeal for presentation before High Court, which is only appellate forum competent to entertain such appeal in the light of provisions contained in Section 299 of the Indian Succession Act, 1925.

M) Hence, the present Petition, seeking declaration and consequential relief as aforesaid.

3. Mr. Siddhartha R. Ronghe, learned counsel appearing for the Petitioner has made the following submissions in support of the Petition:

(a) Section 28-A(1) of the Bombay Civil Courts Act, 1869 makes specific reference to 'Indian Succession Act, 1865' and 'the Probate and Administration Act, 1881'. Accordingly, the said Section cannot be employed for the purposes of investing Civil Judges with powers of District Judges under 'Indian Succession Act, 1925'', which is a different and distinct Legislation. The very investiture of the Civil Judges with powers of District Judge under the 'Indian Succession Act, 1925' was therefore ultra vires Section 28-A(1) of the Bombay Civil Courts Act, 1869. Further, since 'Indian Succession Act, 1865' and 'the Probate and Administration Act, 1881' stand repealed by the 'Indian Succession Act, 1925' , the entire provision contained in Section 28A of the Bombay Civil Courts Act, 1869 becomes inoperable, otiose, redundant and void.

(b) The fields 'wills, intestacy and succession' find place in List III (Concurrent List) to Schedule-VII to the Constitution of India. The provisions contained in Section 28-A of the Bombay Civil Courts Act, 1869 and Section 299 of Indian Succession Act, 1925 relate to the aforesaid fields. The Bombay Civil Courts Act, 1869 is a provincial and therefore a State Legislation. The Indian Succession Act, 1925 is a Central Legislation. In terms of Article 254 of the Constitution of India, if any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of repugnancy, be void. Accordingly, it was submitted that the provisions contained in sub-section (2) and (3) of Section 28-A of the Bombay Civil Courts Act, 1869, to the extent the same are inconsistent with and repugnant to the provisions contained in Section 299 of the Indian Succession Act, 1925, are void.

(c) If for any reason, it is held that the provisions of Article 254 of the Constitution of the India are not attracted since both, 1869 Act and 1925 Act are 'pre-constitution legislations', even then :

(i) The 1925 Act and 1869 Act are laws dealing with the same subject. The 1925 Act is a later enactment. Since the provisions of Section 299 of the Act of 1925, are inconsistent with the provisions of Section 28-A of the 1869 Act (earlier Act), the two cannot stand together and consequentially the earlier stands impliedly repealed by the later;

(ii) The 1925 Act is a 'special law' in so far as proceedings for grant and revocation of probate and letters of administrations is concerned, whereas the 1869 Act is a 'general law' on the subject. If special provision is made on a certain matter, then that matter is excluded from the general provision on the principle expressed in the maxims 'Generaliaspecialibus non derogant, and Generalibus specialia derogant'.

4. As the issue of constitutional validity of Section 28A of the Bombay Civil Courts Act, 1869 was at stake, notice was issued to the Advocate General, State of Maharashtra. Mr. D.J. Khambatta, learned Advocate General appeared in response, and in his usual fairness made the following submissions:

(a) The circumstance that Section 28-A (1) of the Bombay Civil Courts Act, 1869 makes reference to 'Indian Succession Act, 1865' and 'Probate and Administration Act, 1881' makes no dent whatsoever to the validity of the said provision. Such a situation is governed by the provisions of Section 8 of the General Clauses Act, 1897 and Section 9 of the Bombay General Clauses Act, 1904, which provide that where any Act repeals and re-enacts, with or without modification, any provision of a former enactment, then reference in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as reference to the provision so re-enacted. Learned Advocate General, therefore, submitted that since the Indian Succession Act, 1925 repeals the Indian Succession Act, 1865 and the Probate and Administration Act, 1881, reference to such repealed enactments in Section 28-A(1) of the Bombay Civil Courts Act, 1869 shall have to be construed as reference to 'Indian Succession Act, 1925'. In support of this submission, learned Advocate General placed reliance upon ruling of the Supreme Court in the case of State through SP, New Delhi vs. Ratan Lal Arora (2004 4 SCC 590).

(b) In so far as the second and third submissions made by and on behalf of the Petitioner, learned Advocate General fairly submitted that the Indian Succession Act, 1925, being both, a later enactment and special enactment, would prevail over the provisions contained in Section 28A of the Bombay Civil Courts Act, 1869 in so far as proceedings for grant and revocation of probates and letters of administration are concerned.

5. Mr. D.J. Dalal, learned counsel appearing for the Respondent No.3 made the following submissions:

(a) The only ground raised in the Petition concerns 'repugnancy' as contemplated by Article 254 of the Constitution of India. In the present case, since two enactments in question are 'pre-constitution enactments', the question of repugnancy between the same cannot be decided by resort to the provisions contained in Article 254 of Constitution of India. In this regard, he placed reliance upon the decision of the Division Bench of this Court in the case of KhimjiPoonja and Co. v. N. Ramanlal and Co. (AIR 1960 Bom 532) and the decision of the Supreme Court in the case of State of Tamil Nadu vs. Adhiyaman Educational and Research Institute (1995) 4 SCC 104).

(b) Under Section 28-A(1) of the Bombay Civil Courts Act, 1869, the High Court has 'invested' the Civil Judge with the powers of District Judge under the Indian Succession Act, 1925 in terms of paragraph 305 of the Civil Manual. There is a difference between 'investment of power' and 'delegation of power'. In case of 'investment', the District Judge exercises his power as a Judge of original jurisdiction and not as a delegate of District Judge. Such 'investment of power' has not been challenged in the Petition. In absence of any such challenge, appeal rightly lay before the District Judge or the High Court according to the amount or value of the subject matter of the proceedings.

(c) Relying upon the decision in cases of Mrs. Vera D. Thackersey vs. Bai Manekbai Annasaheb Thackersey (AIR 1977 Bombay 419), R.RamaSubbaraylu Reddiar vs. Rengammal (AIR 1962 Madras 450)and Bai Zabu Khima v. Amardas Balakdas (AIR 1967 Guj. 214), Mr. Dalal submitted that the expression 'District Judge' as appearing in the Indian Succession Act, 1925 is not persona designata, but rather a District Judge 'as defined under Section 2(bb) of the Indian Succession Act, 1925'. Based upon such reasoning and the aforesaid rulings, the challenge of inconsistency between Section 28-A of the Bombay Civil Courts Act, 1869 and Sections 264 and 265 of the Indian Succession Act, 1925 has been repelled. Applying very same analogy, it was submitted that the challenge of inconsistency between Section 28-A of the Bombay Civil Courts Act, 1869 and Section 299 of the Indian Succession Act 1925 ought to fail.

(d) Section 299 of the Indian Succession Act 1925 contemplates right of Appeal to the High Court. This Section does not specify whether such Appeal should be œFirst Appeal? or œSecond Appeal?. Section 28-A of the Bombay Civil Courts Act, 1869, specifically retains right of œSecond Appeal? to the High Court in case where amount or value of the subject matter of the proceedings is less than Rs.10 Lakhs. No party has any vested right to select the forum of Appeal. In this regard, reliance was placed upon the decision of this Court in the case of MahendraPanmal Duggad Jain vs. Bhararilal Panmal Duggad Jain (2008(6) Bom.C.R.)and in the decision of the Gujarat High Court in case of LiladharK. Trivedi vs. Minaxiben B. Trivedi (2008) 1 GLR 75).

(e) The two Acts, that is 1865 Act and 1925 Act have been in operation for past almost 112 years. A challenge to any long standing and established rules of practice and procedure ought not to be normally entertained. Reliance was placed upon the decision of the Supreme Court in the case of National Sewing Thread Co. Ltd vs. James Chadwick and Bros. Ltd. (AIR 1953 SC 357).

(f) Finally, it was submitted that the present Petition is not maintainable at the behest of the Petitioner for the following reasons:

(i) The Petitioner herself filed an Appeal against the judgment and order dated 30.1.2006 before the District Court. Thereby, objection if any, to the pecuniary jurisdiction of the District Court stands waived. The Petitioner, is now estopped from objecting to the jurisdiction of the District Court, in entertaining the Petitioner's Appeal;

(ii) As against the judgment and order dated 30.1.2006 passed by the Civil Judge, the Petitioner preferred an Appeal to the District Court, which was dismissed vide judgment and order dated 4.11.2008. The Petitioner then preferred Civil Revision Application No.686 of 2008 before this Court against the judgment and order dated 4.11.2008. Therefore, even if the Petitioner succeeds on the ground that the appellate forum is the High Court and not the District Court, the Civil Revision Application No.686 of 2008 would nevertheless be not maintainable. Under the circumstances, the issues raised by the Petitioner in the present Petition are merely 'academic' which ought not to be decided at the behest of the Petitioner. In this regard, reliance was placed upon the decision in the case of MakhanSingh Tarsikka vs. State of Punjab (AIR 1964 SC 381).

6. In order to appreciate rival contentions, it is necessary to refer to the relevant provisions of the Bombay Civil Courts Act, 1869 and the Indian Successions Act, 1925, including in particular, two provisions alleged to be inconsistent with and repugnant to one another.

7. The Bombay Civil Courts Act, 1869 is an provincial act to consolidate and amend the law relating to the district and other subordinate Civil Courts in the Presidency of Bombay. Section 5 of this Act provides that there shall be in each district a District Court presided over by Judge to be called the District Judge. Section 7 of this Act provides that the District Court shall be the Principal Court of original civil jurisdiction in the district, within the meaning assigned to this phrase under the Code of Civil Procedure, 1908. Section 8 of this Act provides that except as provided in Sections 16, 17 and 26 the District Court shall be Court of appeal from all decrees and orders passed by the subordinate Courts from which an appeal lies under any law for the time being in force. Section 21 of this Act provides that there shall be in each district so many Civil Courts, subordinate to the District Court as the State Government shall, from time to time, direct. Section 24 of this Act, provides that Civil Judge shall be of two classes, i.e., Civil Judge, Senior Division whose jurisdiction shall extend to all original suits and proceedings of a civil nature and Civil Judge, Junior Division whose jurisdiction presently extends to all original suits and proceedings of a civil nature wherein the subject matter does not exceed its amount or value five lakh rupees. Section 25 of this Act provides for special jurisdiction to be exercised by Civil Judge, Senior Division in respect of such suits and proceedings of a civil nature, as may arise within the local jurisdiction of the Courts in the district presided over by a Civil Judge, Junior Division and wherein the subject matter exceeds pecuniary jurisdiction of the Civil Judge, Junior Division as defined by Section 24. Section 27 of this Act concerns appellate jurisdiction of Civil Judge, Senior Division or a Judge of the Court of Small Causes. Section 28 of this Act empowers the High Court to invest Civil Judges with Small Causes powers. Section 28-A of this Act, with which we are directly concerned deals with the power of the High Court to invest Civil Judges with jurisdiction, inter alia under the Indian Succession Act, 1865.

8. Section 28-A of the Bombay Civil Courts Act, 1869 reads thus:-

œ28A. Power to invest (Civil Judges) with jurisdiction under certain Acts X of 1865, V of 1881.V of 1908 “ (1) The High Court may by general or special order invest any (Civil Judge) within such local limits and subject to such pecuniary limitation as may be prescribed in such order, with all or any of the powers of a District Judge or a District Court as the case may be, under the Indian Succession Act, 1865, (the Probate and Administration Act, 1881), or paragraph 3 of Schedule III to the Code of Civil Procedure, 1908.

(2) Every order made by a (Civil Judge) by virtue of the powers conferred upon him under subsection (1) shall be subject to appeal to the High Court or the District Court according as the amount or value of the subject matter exceeds or does not exceed (ten lakh rupees).

(3) Every order of the District Judge passed an appeal under sub-section (2) from the order of a, (Civil Judge) shall be subject to an appeal to the High Court under the rules, contained in the Code of Civil Procedure applicable to appeals from appellate decrees.?

9. The Indian Succession Act, 1925, is a Central Act to consolidate the law applicable to intestate and testamentary section. The statement of objections and reasons reads thus:

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 to 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. - Gaz.of Ind., 1923, Pt. V, P.40.

This Act has repealed the following Acts (vide S.392 since repealed)

1. The Succession (Property Protection) Act 21 of 1841.

2. The Indian Succession Act 10 of 1865.

3. Parsi Intestate Succession Act 21 of 1865.

4. The Hindu Wills Act 21 of 1870.

5. The Married Women's Property Act 3 of 1874, S.2.

6. The Probate and Administration Act 5 of 1881.

7. The Probate and Administration Act 6 of 1889.

8. The Probate and Administration Act 2 of 1890.

9. The Probate and Administration Act 8 of 1903.

10. The District Delegates Act 6 of 1881.

11. The Succession Certificate Act 7 of 1889.

12. The Native Christain Administration of Estates Act 7 of 1901.

10. Section 2(bb) of the said Act defines œDistrict Judge? to mean the Judge of a Principal Civil Court of original jurisdiction. Chapter IV of the said Act which concerns 'practice of granting and revoking probates and letters of administration' comprises Section 264 to 304. Section 264 provides that the District Judge shall have jurisdiction in granting and revoking probates and letters of administration in all cases within his district. Section 265 empowers the High Court to appoint such judicial officer within any district as it thinks fit to act for the District Judge as 'delegate' to grant probate and letters of administration in non-contentious cases within such local limits as it may prescribe. The persons so appointed shall be called as œDistrict Delegates? Section 266 deals with the powers of the District Judge to grant probate and letter of administration. Section 268 provides that the proceedings before a District Judge in relation to grant of probate and letters of administration shall, save as otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908. Sections 276 and 278 provides for the manner in which the petitions for probate and letters of administration shall have to be made. Section 295 provides for the procedure to be adopted in contentious cases. Ultimately, Section 299 which is relevant for the purposes of the issues raised in the present petition provides for appeals from orders of District Judge.

11. Section 299 of the Indian Succession Act, 1925 reads thus:

299. Appeals from orders of District Judge “ Every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), applicable to appeals.

12. In the backdrop of the aforesaid legal provisions, the rival submissions now fall for our consideration.

13. In so far as the first submission of Mr.Ronghe is concerned, although it is true that Section 28-A(1) of the Bombay Civil Courts Act, 1869 makes reference to 'Indian Succession Act, 1865', and 'Probate and Administration Act, 1881', both enactments, since repealed by 'Indian Succession Act, 1925', in our opinion, the same will have no impact whatsoever upon validity of Section 28-A(1) of the Bombay Civil Courts Act, 1869. This is because a situation of this type would be squarely governed by the provisions of Section 8 of the General Clauses Act, 1897 and Section 9 of the Bombay General Clauses Act, 1905, which incidentally are parimateria in so far as their content is concerned.

Section 8 of the General Clauses Act, 1897 reads thus:

œSection 8. Construction of references to repealed enactments. - (1) Where this Act, or any [Central Act. or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re- enacted.

(2) [Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and re-enacted., with or without modification, any provision of a former enactment, then references in any [Central Act. or in any Regulation or instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted?.

Section 9 of the Bombay General Clauses Act, 1904 reads thus:

œSection 9. Where this Act, or any Bombay Act [or Maharashtra Act. made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then reference in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as reference to the provision so re-enacted.?

14. Applying the principle of statutory interpretation with regard to construction of references to repealed enactments as aforesaid, it is clear that reference to 'Indian Succession Act, 1865' and 'Probate and Administration Act, 1881' shall have to be construed as reference to 'Indian Succession Act, 1925'. There is absolutely nothing either under the Bombay Civil Courts Act 1869 or the Indian Succession Act, 1925 to suggest any 'different intention'. Accordingly, the principles of statutory interpretation as contained in Section 8 of the General Clauses Act, 1897 and Section 9 of the Bombay General Clauses Act, 1904 clearly warrant reference to the repealed enactments to be construed as reference to the provisions so re-enacted, which in the present case would be the provisions of the Indian Succession Act, 1925. So construed, there remains no force in the first submission of Mr. Ronghe.

15. Such construction is supported by the authority of the Supreme Court in the case of State vs. Ratan Lal Arora (supra). In the context of Section 8 of the General Clauses Act, 1897, the Supreme Court has held that the object of the said provision, obvious and patently made known is that where any Act or regulation is repealed and re-enacted, references in any other enactment to provisions of the repealed former enactment must be read and construed as references to the re-enacted new provisions, unless a different intention appears. The Supreme Court in the said judgment made reference to similar situation wherein Section 8 came to be so construed to tide over such situation. In the case of New Central Jute Mills Co. Ltd. Vs. CCE (1970) 2 SCC 820), the Supreme Court held it to be possible to read the provisions of the Customs Act, 1962 in the place of Sea Customs Act, 1878 found mentioned in Section 12 of the Central Excises and Salt Act, 1944. In case of State of Bihar vs. S.K. Roy (AIR 1966 SC 1995) , the Supreme Court held that by virtue of Section 8 of the General Clauses Act, references to the definition of the word œemployer? in clause (e) of Section 2 of the Indian Mines Act, 1923 made in the Coal Mines Provident Fund and Bonus Schemes Act, 1948, should be construed as references to the definition of œowner? in clause (l) of Section 2 of the Mines Act, 1952, which repealed and re-enacted 1923 Act.

16. In our opinion therefore, the provisions of statutory interpretation as contained in Section 8 of the General Clauses Act, 1897 and Section 9 of the Bombay General Clauses Act, 1904 afford a complete answer to the first submission of Mr. Ronghe in the context of validity of Section 28A(1) of the Bombay Civil Courts Act, 1869. Upon construing references to the 'Indian Succession Act, 1865' and the 'Probate and Administration Act, 1881' as reference to the 'Indian Succession Act, 1925', the first submission of Mr. Ronghe looses its sting, and is consequentially required to be rejected.

17. In so far as the second submission of Mr. Ronghe is concerned, the reference shall have to be made to Article 254 of the Constitution of India, which reads thus:

œ254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States - (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.?

18. In the present case, there is and there can be no dispute that both the legislations in question, i.e., Indian Succession Act, 1925 and the Bombay Civil Courts Act, 1869 are 'pre-constitution legislations'. The expression œexisting law? appearing in Article 254 of the Constitution of India would include any law made either by the provincial or the Central Legislature before commencement of the Constitution. Therefore, it would appear that both under clauses (1) and (2) of the Article 254 of the Constitution of India, the repugnancy contemplated is between a law made by the Legislature of a State and a law made by Parliament and an existing Central Law, provided the Central Legislation is in respect of matters enumerated in the Concurrent List. Article 254 of the Constitution of India, however, does not refer to any repugnancy between existing provincial law and Central Legislation on the same subject. The expression œa law made by Legislature of a State? in clauses (1) and (2) of Article 254 of the Constitution of India cannot include a pre-constitution law made by the provincial Legislature under the Government of India Act, 1935. The question of repugnancy between a law made by the provincial Legislature before the Constitution and a law made by the Parliament cannot, therefore, be decided under Article 254 of the Constitution of India.

19. A Division Bench of this Court in case of KhimjiPoonja and co. Vs. N. Ramanlal and Co. and ors (supra), has ruled that the provisions contained in Article 254 (1) of the Constitution of India are not applicable in adjudging repugnancy as between two 'pre-constitution enactments'. The relevant observations are as follows:

œ(14) Then Mr. Chhatrapati contended that he could also take advantage of the provisions of the General Clauses Act, 1897, as adapted by the Adaptation of Laws Order, 1950. Under Art. 367(1) of the Constitution, unless the context otherwise requires, the General Clauses Act, 1897, shall subject to any adaptations and modifications that may be made therein under Art. 372, apply for the interpretation of the Constitution as ti applies for the interpretation of an Act of the Legislature of the Dominion of India. Now, the adaptation of the General Clauses Act, 1897, by the Adaptation of Laws Order, 1950, is to be found in Part IV-C of the Bombay Government Gazette, Extraordinary, dated February 14, 1950, at pages 82(74) to 82(81). Mr. Chhatrapati relies on clauses (58) and (59) of this adaption at page 82(80). Under clause (58) "State" shall mean a part A State, a Part B State or a Part C state. Under clause (59), "State Act" shall mean an Act passed by the Legislature of a State established or continued by the Constitution. The argument of Mr. Chhatrapati is that since the Bombay Act continues in Bombay State after the Constitution, it must be construed to be a State Act and, therefore, an Act passed by the Legislature of the State established or continued by the Constitution. Mr. Chhatrapati takes advantage of the fact that the Provincial Legislature in Bombay at the time the Constitution came into force was continued as the Legislature of the State till 1952. This argument is without substance. In our view, all that the expression "State Act" means is an Act passed by the Legislature of a State after the coming into force of the Constitution, which Legislature is either established by the Constitution, or continued by the Constitution, before elections were held after the Constitution. The expression "a law made by the Legislature of a State" must, in our judgment, be construed by reference to the relevant provisions of the Constitution, including Article 254. Under Article 367(2), it is stated that any reference in the Constitution to Acts or laws of, or made by Parliament, or to Acts or laws of, or made by, the Legislature of a State specified in Part A or Part B of the First Schedule shall be construed as including a reference to an Ordinance made by the President or, to an Ordinance made by a governor or Rajpramukh, as the case may be. The words "specified in Part A or Part B of the First Schedule" as well as the words "or Rajpramukh" were omitted by the constitution (Seventh Amendment) Act, 1956. But it is clear that under Art. 367(2) there is a reference to laws made by the Legislature of a State specified in Part A or Part B of the first Schedule. Therefore, in our view, under Art. 367(2), before its amendment in 1956, the expression "a law made by the Legislature of a State" must have reference to the Legislature of a State after the coming into force of the Constitution. The expression "a law made by the Legislature of a State" is used in both the clauses of Art. 254. Under clause (2) of Art. 254, it is provided that where a law made by the Legislature of a State specified in Part A or Part B of the First Schedule with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State. The words "specified in Part A or Part B of the First Schedule" were omitted by the Constitution (Seventh Amendment) Act, 1956, here also. But the reference in this clause that the law so made by the Legislature of such State shall prevail in that State only if it has been reserved for the consideration of the president and has received his assent, shows that in clause (2) the expression "a law made by the Legislature of a State" must mean a law made after the coming into force of the Constitution. It is a well settled cannon of construction that where the same expression is used in several sections of a statute, normally its connotation would be the same in that statute unless the context shows otherwise. This is much more so when the same expression happens to be used in two clauses of the same article. Further, in both the clauses of Article 254, the repugnancy contemplated is between "a law made by the Legislature of a State" and "a law made by the Legislature of a State" and "a law made by Parliament" or "any existing law". Article 366 of the Constitution, which defines certain expressions, defines "existing law" in clause (10) as meaning

"any law, Ordinance, order, bye-law, rule or regulation passed or made before the commencement of this constitution by any Legislature, authority or person having power to make such a law, Ordinance, order bye-law, rule or regulation".

In our view, the expression "existing law" would include any law made either by the Provincial or Central Legislature before the commencement of the Constitution; and that is apparent from the definitions of the expressions "existing Central law" and "existing Provincial law" in clause 2 of the Adaptation of Laws Order, 1950. Therefore it would appear that both under clauses (1) and (2) of Art. 254, the repugnancy contemplated is between a law made by the Legislature of a State and a law made by Parliament and an existing Central law, provided the Central legislation is in respect of matters enumerated in the Concurrent List. It is significant that Art. 254 does not refer to any repugnancy between existing provincial law and Central legislation on the same subject. Clause (2) of Art 367, which has been already referred to above, includes an Ordinance made by a Governor in laws of, or made by, the Legislature of a State. But here again there is no reference in Art. 367, which is an Interpretation article, to any existing law made by the Provincial Legislature. In our judgment, therefore, the expression "a law made by the Legislature of a State" in clauses (1) and (2) of Art. 254 of the Constitution cannot include a law made by the Provincial Legislature under the Government of India Act, 1935. The question of repugnancy between a law made by a Provincial Legislature before the Constitution and a law made by Parliament cannot, therefore, be decided under Article 254 of the Constitution.

¦. (emphasis supplied)

20. In the case of Soma Singh vs. State of Pepsu (AIR (1954) SC 311) , the Supreme Court was called upon to decide whether Patiala and East Punjab States Union General Sales Tax Ordinance promulgated on 5.11.1949 had become void since the date of commencement of the Constitution and in this regard reliance was placed upon Article 286(3) of the Constitution, which provided before its amendment in 1956, that no law made by the Legislature of State imposing, or authorising imposition of, a tax on the sale or purchase of any such goods as have been declared by the Parliament by law to be essential for the life of the community shall have effect unless it has been reserved for the consideration of the President and has received his assent. One of the points that the Supreme Court had to decide was whether the ordinance ran counter to clause (3) of Article 286 of the Constitution of India and in this context it was held that the clause contemplated 'a post-Constitution law' because the expression œLegislature of a State? must refer to the Legislature of a State created by the Constitution. This Supreme Court authority is directly on the point as to the meaning of the expression œlaw made by the Legislature of the State? as employed in Article 286(3) of the Constitution of India. The same expression œlaw made by Legislature of a State? has been employed in sub-clauses (2) of Article 254 of the Constitution of India. Normally, an expression which is used in a statute at several places must be given the same meaning, unless the context indicates otherwise. In these circumstances, the expression œlaw made by the Legislature of a State? must referred to a post-Constitution law.

21. In the case of State of Tamil Nadu vs. Adhiyaman Educational and Research Institute (supra), it was held that at best repugnancy under Article 254 of the Constitution of India may also arise between pre-constitutional law made by the provincial legislature which continues to be in force by virtue of Article 372 of the Constitution of India and a post-constitutional law of the Parliament. However, when it comes to repugnancy between the provisions of two pre-constitutional laws, Article 254 would clearly not apply.

22. Accordingly, we are unable to apply the provisions of Article 254 of the Constitution of India per se, to adjudge validity of two pre-constitution enactments.

23. The third submission of Mr. Ronghe has two limbs. The first, on the premise that 1925 Act being a later enactment ought to prevail over 1869 Act, which is an earlier enactment, in case of any inconsistency between the two. The second, on the premise that 1925 Act is a special law and the 1869 Act is a general law upon the same subject.

24. The first limb of Mr. Ronghe's third submission appears to be premised upon the maxim Legesposteriores priores contrarias abrogant, which means later laws repeal earlier laws inconsistent, therewith. Normally, there is a presumption against repeal by implication and the reason of this rule is based on the theory that the Legislature while enacting a law has a complete knowledge of the existing laws on the same subject matter and therefore, when it does not provide a repealing provision, it gives out an intention not to repeal the existing legislation. The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of later Act are so inconsistent with or repugnant to the provisions of earlier Act œthat the two cannot stand together? (Municipal Council, Palia v.T.J. Joseph - AIR 1963 SC 1561, M/s. Mathra Parshad and Sons v. State of Punjab - AIR 1962 SC 745, Cantonment Board Mhow v. M.P. State Road Transport corpn. - (1997 ) 9 SCC 450, and R.S. Raghunath v. State of Karnataka and anr. - (1992) 1 SCC 335).

25. In the case of Municipal Council, Palia vs. T.J. Joseph (supra), the Supreme Court has indicated that the test applied for determining the repugnancy under Article 254 of the Constitution of India may be applied for solving a question of implied repeal and that it should be seen: œ(1) Whether there is a direct conflict between the two provisions; (2) Whether the Legislature intended to lay down an exhaustive Code in respect of the subject matter replacing the earlier law; (3) Whether the two laws occupied the same field?. The doctrine of implied repeal is based on the theory that the Legislature, which is presumed to know the existing law, did not intend to create any confusion by retaining conflicting provisions and, therefore, when the Court applies the doctrine, it does no more than to give effect to the intention of the Legislature by examining the scope and object of the two enactments and by a comparison of their provisions. Further as observed by the Supreme Court in the case of RatanLal Adukia v. Union of India (1989 (3) SCC 537), œbut in a conceivable case, the very existence of two provisions made by itself, and without more, lead to an inference of mutual irreconcilability if the later set of provisions is by itself a complete Code with respect to the same matter?. In such a case the actual detailed comparison between the two sets of provisions may not be necessary.

26. In practice, a prior particular or special law is not readily held to be impliedly repealed by a general law enactment (Chandra Prakash Tiwari vs. Shakuntala shukla - (2002) 6 SCC 127 and Cantonment Board Mhow v. M.P. State Road Transport Corpn. - (1997) 9 SCC 450). However, a prior general Act may be affected by a subsequent particular or a special Act. The later particular law, in a given case may have the effect of partially repealing the general Act, or curtailing its operation or adding conditions to its operation for particular cases (Municipal Board, Bareilly vs. Bharat Oil Company - (1990)1 SCC 311). In the case of RatanLal Adukia vs. Union of India (supra), the Supreme Court held that Section 80 of the Railways Act, 1890, as substituted in the year 1961 and which provided for forum where a suit for compensation for the loss of life of, or personal injury to, a passenger or for loss, destruction, damage, deterioration or non-delivery of animals or goods against a railway administration may be brought was a special provision and a self contained code and that it impliedly repealed, in respect of suits covered by it the general provisions of Section 20 of the Code of Civil Procedure 1908. The position of law is, therefore, clear in that later laws repeal earlier laws, inconsistent therewith. Such implied repeal can be more readily inferred where a prior general law is affected by a later particular law.

27. The second limb of Mr. Ronghe's submission, as observed earlier is premised on the maxims Generaliaspecialibus non derogant, and Generalibus specialia derogant. This means that if special provision is made on a certain matter, that matter is excluded from the general provision (GaddeV. Rao vs. Government of Andhra Pradesh - AIR 1966 SC 828, The Commissioner of Incometax, Patiala v. M/s. Shahzada Nand and Sons - AIR 1966 SC 1342, Maharashtra State Board of Secondary and Higher Secondary Education vs. Paritosh B. Sheth - (1984) 4 SCC 27). In the case of Maya Mathew vs. State of Kerala and Ors. (2010) 4 Supreme Court Cases 498), the Supreme Court adverted to the rules of interpretation when a subject is governed by two sets of rules by observing thus:

œ12. The rules of interpretation when a subject is governed by two sets of rules are well settled. They are:

(i) When a provision of law regulates a particular subject and a subsequent law contains a provision regulating the same subject, there is no presumption that the latter law repeals the earlier law. The rule-making authority while making the later rule is deemed to know the existing law on the subject. If the subsequent law does not repeal the earlier rule, there can be no presumption of an intention to repeal the earlier rule;

(ii) When two provisions of law “ one being a general law and the other being a special law govern a matter, the court should endeavour to apply a harmonious construction to the said provisions. But where the intention of the rule-making authority is made clear either expressly or impliedly, as to which law should prevail, the same shall be given effect.

(iii) If the repugnancy or inconsistency subsists in spite of an effort to read them harmoniously, the prior special law is not presumed to be repealed by the later general law. The prior special law will continue to apply and prevail in spite of the subsequent general law. But where a clear intention to make a rule of universal application by superseding the earlier special law is evident from the later general law, then the later general law, will prevail over the prior special law.

(iv) Where a later special law is repugnant to or inconsistent with an earlier general law, the later special law will prevail over the earlier general law.?

28. In the case of Suresh Nanda vs. Central Bureau of Investigation (2008) 3 Supreme Court Cases 674), the Supreme Court held that Section 104 of Cr. P.C, which authorizes the Court to impound document or thing produced before it is a general law. Whereas the Passport Act, 1967, is a special Act relating to a matter of passport. Accordingly, the rule that œgeneral provision should yield to the specific provision? is to be applied. The Passport Act, 1967 being a specific Act, whereas Section 104 of Cr. P.C. being general provision for impounding any document or thing, the Passport Act, 1967 shall prevail over the Section in the Cr. P.C. when it comes to impounding of a Passport. Thus, by necessary implication, the power of the Court to impound any document or things produced before it would exclude a passport.

29. As observed by the Supreme Court in case of Municipal Council, Palai Vs. T.J. Joseph (supra), the test applied for determining repugnancy under Article 254 of the Constitution of India, may be applied for solving the question of implied repeal. In case of MaaVaishno Devi Mahila Mahavidyala vs. State of Uttar Pradesh and others (2013) 2 Supreme Court Cases 617), in the context of Article 254 of the Constitution of India the Supreme Court has held that there has to be a direct conflict between two competing legislations, but the direct conflict is not necessarily to be restricted to the obedience of one resulting in disobedience of the other. A direct conflict can also arise where result of one would be in conflict with the other.

30. In this regard, reference can usefully be made to the decision of the Calcutta High Court in case of G.P. Stewart v. Brojendra Kishore Roy Chaudhary (AIR 1939 Cal 628), where it is observed thus:

'It is sometimes said that two laws cannot be said to be properly repugnant unless there is a direct conflict between them, as when one says œdo? and the other œdon't?, there is no true repugnancy, according to this view, if it is possible to obey both the laws. For reasons which we shall set forth presently, we think that this is too narrow a test: there may well be cases of repugnancy where both laws say œdon't? but in different ways. For example, one law may say œno person shall sell liquor by retail, that is, in quantities of less than five gallons at a time? and another law may say, œno person shall sell liquor by retail, that is, in quantities of less than ten gallons at a time?. Here, it is obviously possible to obey both laws, by obeying the more stringent of the two, namely, the second one; yet it is equally obvious that the two laws are repugnant, for to the extent to which a citizen is compelled to obey one of them, the other, though not actually disobeyed, is nullified.

31. The aforesaid view of the Calcutta High Court has been quoted with approval by the Supreme Court in case of State of Maharashtra vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya (2006) 9 SCC 1) and further in case of MaaVaishno Devi Mahila Mahavidyalaya v. State of Uttar Pradesh and ors. (supra).

32. Applying the aforesaid principles to the facts and circumstances of the present case, the Bombay Civil Courts Act 1869 is a general Act enacted by the provincial Legislature, prior in point of time. Whereas the Indian Succession Act, 1925 is a particular Act enacted by the Central Legislature, later in point of time. In so far as grant and revocation of probates and letters of administration is concerned, the Indian Succession Act, 1925, apart from being a special Act, constitutes an exhaustive code in respect of such subject matter providing for both the right as well as the remedies. The provisions of sub-sections (2) and (3) of Section 28A of the Bombay Civil Courts Act, 1869 and the provisions of Section 299 of the Indian Succession Act, 1925 compete to occupy the same field. In terms of sub-section (2) of Section 28A of the Indian Succession Act, 1925, any order made by a special Judge invested with powers of a District Judge under the Indian Succession Act, 1925 is made subject to appeal to the District Court in case where amount or value of the subject matter does not exceed ten lakh rupees. Every order of the District Judge passed in Appeal under sub-section (2) of Section 28A of the Bombay Civil Courts Act 1869 is subject to an appeal to the High Court under the rules, contained in the Code of Civil Procedure, applicable to the appeals from appellate decrees. In contrast, Section 299 of the Indian Succession Act, 1925 provides that every order made by the District Judge by virtue of powers conferred upon him shall be subject to appeal to the High Court in accordance with the provisions of Code of Civil Procedure, 1908, applicable to the appeals. The inconsistency between the two provisions is, therefore, apparent. If one has to comply with the provisions of sub-section (2) of Section 28A of the Bombay Civil Courts Act, 1869, then in a case where the amount or value of the subject matter is less than ten lakh rupees, an appeal shall have to be filed before the District Court. Further in terms of sub-section (3) of Section 28A of the Bombay Civil Courts Act, 1869, there shall be a further appeal to the High Court which would be governed by the rules contained in Section 100 of C.P.C., applicable to the appeals from appellate decrees. However, if one is to apply the provisions of Indian Succession Act, 1925, then as against any order passed by the Civil Judge who is invested with the powers of the District Judge under sub-section (1) of Section 28A of the Bombay Civil Courts Act, 1869, an appeal would lie before the High Court in terms of Section 299 of Indian Succession Act, 1925. Further Indian Succession Act, 1925 makes no provision for any further appeal. In such a situation both the provisions cannot stand together. One of the provisions has to yield to the other.

33. Accordingly, we are of the opinion that provisions contained in sub-sections 2 and 3 of Section 28A of th Bombay Civil Courts Act, 1869 are inconsistent with and repugnant to the provisions contained in Section 299 of the Indian Succession Act, 1925. Further, as observed earlier, the Indian Succession Act, 1925 is a later enactment as compared to the Bombay Civil Courts Act, 1869. Therefore, applying the maxim legesposteriores priores contrarias abrogant: Later laws repeal earlier laws inconsistent, therewith, we are of the opinion that the provisions of sub-sections (2) and (3) of Section 28A of the Bombay Civil Courts Act, 1869 stand impliedly repealed. Further, the Indian Succession Act, 1925 being a special enactment dealing with the subject of grant and revocation of probates and letters of administration, applying the principle expressed in the maxims Generaliaspecialibus non derogant, and Generalibus specialia derogant, the provisions contained therein will prevail over the provisions contained in sub-sections (2) and (3) of the Section 28A of the Bombay Civil Courts Act, 1869, which is a general enactment upon the subject.

34. The submissions of Mr. Dalal based upon difference between 'investment of power' and 'delegation of power' may at the highest have some relevance in the context of validity or otherwise of the provisions contained in Section 28-A(1) of the Bombay Civil Courts Act 1869. We have already held that by adopting principle of statutory construction as contained in Section 8 of the General Clauses Act 1897 and Section 9 of the Bombay General Clauses Act 1904, reference to earlier repealed enactment in Section 28-A(1) of the Bombay Civil Courts Act 1869, shall have to be construed as reference to the Indian Succession Act, 1925. Upon adoption of such construction, it is clear that there is no infirmity in the 'investment of power' in a Civil Judge as provided under Section 28A(1) of the Bombay Civil Courts Act, 1869. However, in so far as validity or otherwise of the provisions contained in sub-section (2) and (3) of Section 28A of the Bombay Civil Courts Act, 1869 is concerned, the submission is quite irrelevant.

35. The rulings in the case of Mrs. Veera D. Thackersey vs. Bai Manekbai Annasaheb Thackersey (supra), R. Rama Subbarayalu Reddiar v. Rengammal (supra) and Bai Zabu Khima vs. Amardas Balakdas (supra) are clearly distinguishable. In the case of Mrs. Veera D. Thackersey (supra), the Division Bench of this Court was concerned with conflict, if any, between the provisions of Section 28A of the Bombay Civil Courts Act, 1869 and Section 264 of the Indian Succession Act, 1925. The challenge was based upon the premise that the expression œDistrict Judge? as used in Section 264 of the Indian Succession Act, 1925 refers to persona designata. This premise was found to be fallacious, as this Court upon due consideration of various provisions of the Indian Succession Act, 1925 came to a conclusion that the expression œDistrict Judge? as used in Section 264 of the Indian Succession Act, 1925, means Principal Civil Court of original jurisdiction as defined in Section 2(bb) of the Indian Succession Act, 1925. Such a question is not at all involved in the present case. Same is the position with the decision of the Full Bench of the Madras High Court and the Division Bench of the Gujarat High Court.

36. There is no dispute regards the proposition that no litigant can have any vested right in 'forum of Appeal'. However, in the facts and circumstances of the present case, such proposition is not attracted. Admittedly, the Indian Succession Act, 1925 is a central, later and special enactment in so far as the practice of granting and revoking probates and letters of administration is concerned. This enactment provides for an Appeal to the High Court against exercise of original jurisdiction in the matter of grant or revocation of probate or letters of administration. This would obviously imply 'First Appeal' in accordance with the provisions contained in Code of Civil Procedure 1908. Section 28-A(2) of the Bombay Civil Courts Act, 1869 instead, in proceedings where the amount or value of the subject matter is less than ten lakh rupees provides an Appeal to the District Court. Further sub-section (3) of Section 28-A of the Bombay Civil Courts Act, 1869, in such cases provides for 'Second Appeal' to the High Court. Clearly, therefore, this is a case where inconsistency and repugnancy between the two provisions is writ large. This is not a case of seeking any 'vested right in the forum'.

37. The issue involved in the case of MahendraPanmal Duggad Jain (supra) was whether in absence of any saving clause in the Amending Act 1999 (by which the provisions of Section 26 of the Bombay Civil Courts Act, 1869 came to be amended to provide increase in pecuniary jurisdiction of Civil Courts), the Appeals filed before the High Court were required to be transferred to the District Court or be retained in the High Court itself. The Division Bench of this Court, applying the well settled principle in the case of GarikapatiVeeraya Vs. N. Subbaiah Choudhary (AIR 1957 S.C. 540), that the right of appeal is not a mere matter of procedure but is a substantive right; and that institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit; held that the absence of any saving clause makes no difference to the principle, because in that case the provisions contained in Section 7(b) of the Bombay General Clauses Act, 1904 would apply. Accordingly, pending matters were not required to be transferred to the District Court.

38. In our view, the aforesaid ruling of the Division Bench is not relevant to the issues raised in the present Petition.

39. In the case of National Sewing Thread Co. Ltd.(supra), the Supreme Court held that when a statute directs that an Appeal shall lie to a Court already established, then that Appeal must be regulated by the practice and procedure of that Court. Such ruling also has no relevance to the issue raised in the present Petition.

40. Finally, the submissions on the aspect of maintainability of the Petition also do not commend to us. In the first place, there can be no estoppel against a statute. In this case, the objection is not based upon lack of pecuniary or territorial jurisdiction of the Court. Appeal and Forum of Appeal are creations of a Statute. The jurisdiction as to subject matter, is distinct and stands upon different footing. Neither consent nor waiver can confer jurisdiction upon a court, otherwise incompetent to try the cause (HarshadChiman Lal Modi v. DLF Universal Ltd and anr. - (2005) 7 SCC 791).Secondly, as observed earlier, the Civil Revision Application No.686 of 2008 has since been disposed of with liberty to the Petitioner to file the present Petition. Thirdly, the issue as raised is not 'academic'. In case the provisions of Section 28A (2) and (3) of the Bombay Civil Courts Act, 1869 are held to be inconsistent with and repugnant to Section 299 of the Indian Succession Act, 1925, then the judgment and order dated 4.11.2008 shall have to be set aside with a direction to the District Judge to return the memo of Appeal for presentation before this Court. For all these reasons, we see no merit in the submissions of Mr. Dalal on the issue of maintainability of the Petition.

41. In conclusion, therefore, we are of the opinion that subsections 2 and 3 of Section 28-A of the Bombay Civil Courts Act, 1869 are inconsistent with and repugnant to Section 299 of the Indian Succession Act, 1925 and the same accordingly stand impliedly repealed. Every order made by a District Judge under the Indian Succession Act, 1925 or every order made by a Civil Judge invested with the powers of a District Judge or a District Court, as the case may be, under the Indian Succession Act, 1925 in terms of sub-section (1) of Section 28A of the Bombay Civil Courts Act, 1869 shall be subject to appeal to the High Court in accordance with the provisions of Code of Civil Procedure, 1908, applicable to appeals, irrespective of whether the amount or value of the subject matter exceeds or does not exceed ten lakh rupees.

42. In light of the aforesaid, declaration is liable to issue that the provisions of Section 28A (2) and Section 28A(3) of the Bombay Civil Courts Act 1869 are inconsistent with and repugnant to the provisions of Section 299 of the Indian Succession Act, 1925 and every order made by a District Judge under the Indian Succession Act, 1925 or every orders made by a Civil Judge invested with the powers of a District Judge or a District Court, as the case may be, under the Indian Succession Act, 1925 in terms of sub-section (1) of Section 28A of the Bombay Civil Courts Act, 1869 shall be subject to appeal to the High Court in accordance with the provisions of Code of Civil Procedure, 1908, applicable to appeals.

43. As a result of the aforesaid declaration in relation to subsections (2) and (3) of Section 28A of the Bombay Civil Courts Act, 1869, an issue may arise in relation to the fate of very large number of matters decided by the District Courts as first Appellate Courts and this Court as the second Appellate Court based upon the said sub-sections. It is possible that attempts will be made to reopen concluded cases based upon the view now taken by us. This would result in unnecessary chaos and confusion. Such apprehensions, however, can be allayed by resort to 'de facto doctrine' which is born of necessity and public policy to prevent needless confusion and endless mischief.

44. Apprehensions similar to the aforesaid were expressed before the Division Bench of this Court in the case of MahendraPanmal Duggad Jain (supra), where the Bench was examining the correctness of the view taken by a Single Judge of this Court in the case of TukaramVs. Smt. Habib (102(1) Bom.L.R.654) decided on 16.12.1999 that appeals pending before the High Court were required to be transferred to the District Court consequent upon 1999 amendment to the Bombay Civil Courts Act, 1869 increasing pecuniary jurisdiction of the Civil Courts. As observed earlier, the Division Bench ruled that transfer of pending matters was incorrect and the pending matters were required to be retained and decided by this Court itself. In the meanwhile, however, based upon the decision of the learned Single Judge in case of Tukaramvs. Smt. Hababi (supra), as also an administrative direction of this Court dated 24.2.2000, there were scores of pending First Appeals in this Court were already transferred to and decided by the District Courts. The Division Bench took note of this circumstance and observed that on the basis of the law declared, it is possible that enterprising litigants seek to turn the clock back thereby opening a floodgate of litigations and causing endless confusion. To overcome this apprehension, the Division Bench purported to prospectively overrule the view taken by the Single Judge in the case of Tukaramvs. Smt. Hababi (supra). The decision of the Division Bench in the case of MahendraPanmal Duggad Jain (supra) came up for consideration before the Full Bench of this Court in the case of Vijay @ Ambadas Dattatraya Pawar vs. Ramappa Ambannappa Masare and ors. (2012(2) Mh.L.J.561), inter alia on the issue as to whether a Division Bench of this Court could prospectively overrule the view taken by the Single Judge.

45. Although the issue of prospective overruling was not answered by the Full Bench, the issue in respect of concluded matters was resolved by invoking the principle akin to the de facto doctrine. At paragraphs 21 to 29, the Full Bench observed thus:

œ21. The learned Single Judge in the order of reference has expressed doubt about the correctness of the Division Bench judgment in Mahendra Panmal's case, invoking the doctrine of prospective overruling. The learned Single Judge has expressed a view that such doctrine can only be invoked by the Supreme Court in exercise of the power under Article 142 of the Constitution and by the High Courts in exercise of the writ jurisdiction under Article 226 of the Constitution, but not by a Court hearing first appeals.

22. Without expressing any opinion on the aforesaid view of the learned Single Judge, in our opinion, the controversy which agitated the mind of the learned Single Judge making the order of reference can simply be resolved by relying on the principle akin to the de facto doctrine.

23. In the leading judgment in Gokaraju Rangaraju vs. State of Andhra Pradesh (1981) 3 SCC 132), the Supreme Court dealt with the effect of a declaration by the Supreme Court that the appointment of an Additional Sessions Judge was invalid, on judgments pronounced by the Judge prior to the declaration. In that case, while Criminal Revisions and Appeals were pending before the High Court, the Supreme Court quashed the appointments of several Sessions Judges who had heard those cases on the ground that their appointments were in violation of Article 233 of the Constitution. Thereupon, it was urged that the judgments rendered by those Judges were void and would have to be set aside. Negating the contention, the Supreme Court explained the object of the doctrine in the following words:-

œThe doctrine is now well established that œthe acts of the officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding, as if they were the acts of officers de jure? (Pulin Behari v. King-Emperor, (1912) 15 Cal LJ 574. As one of us had occasion to point out earlier œthe doctrine is founded on good sense, sound policy and practical experience. It is aimed at the prevention of public and private mischief and the protection of public and private interest. It avoids endless confusion and needless chaos. An illegal appointment may be set aside and a proper appointment may be made, but the acts of those who hold office de facto are not so easily undone and may have lasting repercussions and confusing sequels if attempted to be undone.?

24. The Supreme Court, thus, approved the principle laid down by Calcutta High Court in a criminal case way back in 1912, which was obviously long prior to even framing of the Constitution. Sir Asutosh Mookerjee, J. of the Calcutta High Court after referring to the first reported judicial recognition of the doctrine in the case of Abbe de Fontaine in the year 1431 (1431 Year Book 9H 6 Fol 32), explained the rationale of the doctrine in the following words,:-

œThe substance of the matter is that the de facto doctrine was introduced into the law as a matter of policy and necessity, to protect the interest of the public and the individual where those interests were involved in the official acts of persons exercising the duties of an office without being lawful officers. The doctrine in fact is necessary to maintain the supremacy of the law and to preserve peace and order in the community at large.?

25. In the above judgment, the Supreme Court also relied upon the following passage from the judgment of the Kerala High Court in P.S. Menon v. State of Kerala (AIR 1970 Kerala 165):

œThis doctrine was engrafted as matter of policy and necessity to protect the interest of the public and individuals involved in the official acts of persons exercising the duty of an officer without actually being one in strict point of law. But although these officers are not officers de jure they are by virtue of the particular circumstances, officers, in fact, whose acts, public policy requires should be considered valid.?

26. The principle was reiterated by the Supreme Court in Pushpadevi M. Jatia v. M.L. Wadhawan, Additional Secretary (1987)3 SCC 367), and in Central Bank of India v. C. Bernard (1991)1 SCC 319). In Pushpadevi's case, the Supreme Court explained the doctrine as under:-

œWhere an office exists under the law, it matters not how the appointment of the incumbent is made, so far as validity of his acts are concerned. It is enough that he is clothed with the insignia of the office, and exercises its powers and functions. The official acts of such persons are recognised as valid under the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief.?

Of course, the Supreme Court added the caveat in C. Bernard's case (supra) that the incumbent of office must not be a total intruder or usurper, but must have some colour of title, that is apparent trite to the office and acquiescence in the possession thereof by the public. According to this doctrine, the acts of officers de facto performed within the sphere of their assumed official authority, in the interest of the public or the third parties and not for their own interest, are generally held valid and binding as if they were performed by the de jure officers. The Supreme Court thus, held that the de facto doctrine can be invoked in cases where there is an appointment to office which is defective; but notwithstanding the defect to the title of the office, the decisions made by such a de facto officer clothed with the powers and functions of the office would be as efficacious as those made by a de jure officer. The same would, however, more be true of a total intruder of usurper of office. While the de facto doctrine saves official acts done by an officer whose appointment is found to be defective the private parties to a litigation are precluded from challenging the appointment in any collateral proceedings.

27. Following the above decisions another Division Bench of this Court (Coram: Dr. D.Y. Chandrachud and A.A. Syed, JJ) in M/s. Hamilton Housewares Private Limited v. Designated Authority, Directorate General of Anti-dumping and Allied Duties, Writ Petition No.6791 of 2011 (decided on 14 October 2011), after examining the doctrine as applied in foreign jurisdictions, has observed as under:-

œThe Supreme Court held that a Judge de facto is one who is not a mere intruder or usurper, but a person who holds the office under colour of lawful authority though his appointment is defective and may later be found to be defective. The underlying principle, according to the judgment of the Supreme Court, is that the defect of his title to the office would not render the judgments pronounced a nullity when the acts were done by him when he was clothed with the powers and functions of the office. Such acts and decisions had the same efficacy as judgments pronounced and acts done by a Judge de jure. In other words, as explained by the Supreme Court, the genesis of the de facto doctrine is the public policy to prevent needless confusion and endless mischief. The de facto doctrine is doctrine born out of necessity.?

28. The Division Bench in Mahendra Panmal's case also realised that if the judgment of the learned Single Judge in Tukaram Pandurang Gaikwad's case was overruled with retrospective effect, there was going to be needless confusion and endless mischief and, therefore, out of necessity applied its decision with prospective effect. There could be no dispute about the fact that the District Courts which decided the appeals transferred pursuant to the judgment dated 16 December 1999 of learned Single Judge in Tukaram Pandurang Gaikwad's case were apparently clothed by the said judgment in Tukaram's case with the powers and functions of the first appellate Court when the appeals were heard and decided by them. At the time of hearing and deciding those first appeals between 17 December 1999 and 9 March 2008, they had lawful authority to hear and decide those appeals. The District Judges who decided those appeals were not intruders or usurpers of office. It was subsequently on account of the Division Bench judgment rendered on 10 March 2008, that it was realised that such appeals were required to be heard by the High Court. Hence, the judgments rendered by the District Courts during the aforesaid period of eight years were not required to be pronounced a nullity. The Division Bench judgment, in effect, merely applied the doctrine which has been holding the field for the last six centuries.

29. We have, therefore, no hesitation in holding that the judgment of the Division Bench in Mahendra Panmal's case applying its interpretation of the provisions of the Amending Act of 1999 with prospective effect, and not retrospective effect, was made out of necessity and as a public policy to prevent needless confusion and endless mischief.?

46. In this regard reference can also be made to the case of Union of India vs. Charanjit S. Gill (2000) 5 SCC 742), where the Supreme Court recorded a conclusion that the Judge Advocate associated with the Court Martial held under the Army Rules, 1954 cannot be an Officer of a rank lower than that of the Officer facing the trial and on this basis upheld the view of Calcutta High Court, which had quashed the proceedings, giving the authorities liberty to initiate fresh Court Martial proceedings in the light of the judgment delivered by the High Court. In the said case before the Supreme Court fears were expressed that in case the proceedings of Court Martial are quashed on the ground of Judge Advocate being lower in rank than the Officer facing trial before the Court Martial, many judgments delivered, orders passed and actions taken by various Courts Martial till date would be rendered illegal, as in the meantime number of Courts Martial have already been held and conducted under the assumption that there was no such disqualification. Apprehensions were expressed that the floodgate of new litigations will open which ultimately is likely to not only weaken the discipline in the Armed forces but also result in great hardship to all those whose rights have already been determined. The Supreme Court, however, observed that such apprehension œis misplaced in view of de facto doctrine born out of necessity as acknowledged and approved by the various pronouncements of the courts?. Upon reference to its earlier decision in the case of GokarajuRangaraju v. State of A.P. (supra), Chandra Mohan v. State of U.P. (AIR 1966 SC 1987) and State of U.P. v. Rafiquddin (1987 Supp SCC 401), the Supreme Court ruled that the judgment rendered by the Courts Martial which have attained finality cannot be permitted to reopened on the basis of law laid down in the said judgment. 'The setting aside of the orders/proceedings in the particular case at hand was upheld'. Further it was held that the proceedings of the Courts Martial, if already challenged on this ground and pending adjudication in any Court in the country were also held as immune from the principles of de facto doctrine. However, the Supreme Court clarified that such pending Petitions were not to be permitted to amended to incorporate a plea regards ineligibility and disqualification of Judge Advocate on the ground that the appointment was contrary to the reasoning in the judgment.

47. The fate of the matters already decided by the District Court as the first Appellate Court in terms of sub-section (2) of Section 28A of the Bombay Civil Courts Act, 1869 and this Court as the second Appellate Court in terms of sub-section (3) of Section 28A of the Bombay Civil Courts Act, 1869, shall also be similarly governed by the aforesaid principle akin to the de facto doctrine as invoked by the Full Bench of this Court in the case of Vijay vs. Ramappa (supra) and the Supreme Court in various cases, including CharanjitS. Gill (supra). This aspect has been clarified in order to prevent needless confusion and endless mischief. In fact, as observed by the Division Bench of this Court in the case of M/s Hamilton Housewares Private Limited (supra), the genesis of the de facto doctrine is the public policy to prevent needless confusion and endless mischief.

48. Reverting to the facts and circumstances of the present case, it needs to be noted that the judgment and order dated 4.11.2008 passed by the District Judge, Pune, did not conclude the matter in so far as the parties to these proceedings are concerned. The Petitioner carried the matter to this Court by preferring Civil Revision Application No.686 of 2008. Therein the Petitioner raised the issue of constitutional validity of sub-sections (2) and (3) of Section 28-A of the Bombay Civil Courts Act, 1869 and accordingly the Civil Revision Application was placed for consideration before the Division Bench of this Court. Finally, the Civil Revision Application was permitted to be withdrawn with liberty to file the present Petition.

49. By impugned judgment and order dated 4.11.2008, in Civil Appeal No.167 of 2006, the District Judge, Pune has upheld the order dated 30.1.2006 passed by Civil Judge, Senior Division, Pune in M.C.A. No.32 of 1999 revoking the probate granted by judgment and order dated 12.12.1997 in M.C.A. No.417 of 1997. In granting and revoking probate, the Civil Judge, Senior Division has exercised powers of a District Judge or a District Court under the Indian Succession Act, 1925 in terms of sub-section (1) of Section 28A of the Bombay Civil Courts Act, 1869. In the light of the aforesaid conclusion which we have reached, every order made by a District Judge or a Civil Judge invested with the powers of District Judge or a District Court, as the case may be, shall be the subject to appeal to the High Court in accordance with the provisions of Code of Civil Procedure, 1908, applicable to the appeals. Thus the judgment and order dated 20.4.2006 passed by the Civil Judge, Senior Division, Pune (invested powers of District Judge or District Court) was subject to any appeal before the High Court under Section 299 of the Indian Succession Act, 1925, but was subjected to appeal to the District Court based upon Section 28-A(2) of the Bombay Civil Courts Act, 1869. In the light of the view taken by us, such appeal to District Court was not competent. The impugned judgment and order dated 4.11.2008 passed by the District Judge, Pune shall accordingly have to be set aside on the ground that the District Judge lacked jurisdiction to entertain the same. The appeal memo in Civil Appeal No.167 of 2006 shall have to be returned by the District Court, Pune for presentation to the High Court, which alone will be competent to entertain an appeal against the judgment and order dated 20.4.2006 passed by Civil Judge, Senior Division, Pune in M.C.A. No.32 of 1999.

50. Accordingly, we pass the following order:

(a) It is hereby declared that sub-sections (2) and (3) of Section 28A of the Bombay Civil Courts Act, 1869 are inconsistent with and repugnant to the provisions of Section 299 of the Indian Succession Act, 1925 and consequently the same stand impliedly repealed. Accordingly, every order made by the District Judge under the Indian Succession Act, 1925 or every order made by a Civil Judge invested with the powers of a District Judge or a District Court, as the case may be, under the Indian Succession Act, 1925 in terms of sub-section (1) of Section 28A of the Bombay Civil Courts Act, 1869 shall be subject to appeal to the High Court in accordance with the provisions of Code of Civil Procedure, 1908, applicable to appeals;

(b) The impugned judgment and order dated 4.11.2008 passed by the learned District Judge, 10 Pune in Civil Appeal No.167 of 2006 is quashed and set aside and the District Judge at Pune is directed to return the appeal memo in said Civil Appeal No.167 of 2006 for presentation to the High Court with a period of 30 days from today;

(c) Upon return of the appeal memo as aforesaid, the Petitioner is at liberty to present the same before the High Court within 30 days, failing which the judgment and order dated 30.1.2006 passed by the Civil Judge, Senior Division in M.C.A. No.32 of 1999 shall stand confirmed;

(d) It is clarified that the judgments and orders passed by District Courts as first Appellate Courts and this Court as second Appellate Court in terms of sub-sections (2) and (3) of Section 28A of the Bombay Civil Courts Act, 1869, upto the date of this judgment and order shall be regarded as valid, notwithstanding the reasoning and declaration contained in this judgment and order by applying the principle akin to de facto doctrine. However, where such judgment and orders have already been challenged on the ground of inconsistency or implied repeal of the provisions contained in Section 28A(2) and (3) of Bombay City Civil Courts Act, 1865, and such proceedings are pending adjudication, then they shall not be governed by the principles of akin to de facto doctrine.

(e) Rule is, accordingly, made absolute in aforesaid terms;

(f) In the facts and circumstances of the present case there shall be no order as to costs.


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