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In Re: Gordon Frederic Muirhead and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Petn. Nos. 118 and 251 of 1957
Judge
Reported inAIR1959Kant83; AIR1959Mys83; (1958)36MysLJ208
ActsSuccession Act, 1925 - Sections 300; Mysore Regulation, 1914 - Sections 85; Constitution of India - Article 225; Indian Succession Act, 1865 - Sections 57, 264 and 300(1)
AppellantIn Re: Gordon Frederic Muirhead and anr.
Appellant AdvocateB. Seetaramaiah and ;Wilfred A D'souza, Advs.
Respondent AdvocateV. Krishnamurthy, Amicus Curiae
Excerpt:
.....building is business income - the said section clearly empowers the high court to exercise all powers in respect of grant of probate and/or letters of administration which the district judge as a court of original jurisdiction could exercise......mysore on the 1st of april. 1951, we find that the high court has concurrent jurisdiction with the district judge in the exercise of all the powers conferred by the said act upon the district judge, at least, in the matter of granting probate and/or letters of administration. section 300 of the said act makes this position clear. it reads as follows:--'(1) tile high court shall have concurrent jurisdiction with the district judge in the exercise of all the powers hereby conferred upon the district judge. (2) except in cases to which section 57 applies, no high court, in exercise of the concurrent jurisdiction hereby conferred over any local area beyond the limits of the towns of calcutta. madras and bombay, shall, where the deceased is a hindu, mahammadan, buddhist, sikh or jaina or an.....
Judgment:

S.R. Das Gupta, C.J.

1. The question which is referred to us for decision is whether or not this Court has jurisdiction to grant probate and/or letters of administration in respect of an estate, the whole of which is within the State of Mysore. The answer to this question, from whatever point of view it may be considered, can only be in the affirmative.

If we take into consideration the existing provisions of the Indian Succession Act, which came into force in the State of Mysore on the 1st of April. 1951, we find that the High Court has concurrent jurisdiction with the District Judge in the exercise of all the powers conferred by the said Act upon the District Judge, at least, in the matter of granting probate and/or letters of administration. Section 300 of the said Act makes this position clear. It reads as follows:--

'(1) Tile High Court shall have concurrent jurisdiction with the District Judge in the exercise of all the powers hereby conferred upon the District Judge.

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

At the very outset I should mention that Sub-section (2) of this section has no application to the present case; the petitioners for the grant of letters of administration before us being European Christians. We are therefore concerned with the effect of Subsection (1) of the said section. It is not necessary for the purpose of deciding the present matter, to enter into the question as to whether or not concurrent jurisdiction, which has been conferred upon the High Court by this section relates only to matters mentioned in Chapter IV of Part IX of the Indian Succession Act, in which this section appears, or whether each powers are given in respect of all matters mentioned in the Indian Succession Act.

I am proceeding, for the present purpose, on the fooling that the words 'all the powers hereby conferred' mentioned in the said section have a restricted meaning and relate only to powers in respect of grant of probate and letters of administration. Sub-section (1) of Section 300 on its plainlanguage makes it quite clear that every High Court shall have the same powers which the District Judge has in the matter of grant of probate and/or letters o administration.

Those powers are mentioned in Chapter IV of Part IX of the Indian Succession Act and include not only the power to make such grants but also the power to do all things necessary for that purpose as mentioned in the said chapter. Thus, for example, the power of examining the petitioner in person upon oath and requiring further evidence of the due execution of the will or the right of the petitioner to the letters of administration as the case may be and of issuing citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration, which are conferred on the District Judge under this Chanter, arc alt vested in the High Court by virtue of Sub-section (1) of Section 300.

Thus the difficulty which may be felt by reason of the fact, that this court is a court of appellate jurisdiction hearing appeals from the subordinate courts and to thus enable to decide matters which a court exercising original jurisdiction can only decide, is obviated by the clear provisions of this section.

The said section clearly empowers the High Court to exercise all powers in respect of grant of probate and/or letters of administration which the District Judge as a Court of original jurisdiction could exercise. In my opinion, therefore, looking at this question, which is now before us, from the point of view of the existing law, there is no difficulty in holding that this High Court has jurisdiction to grant probate and/or letters of administration.

2. If I have to consider this matter from the point of view of the law as it stood prior to the date when the Succession Act (Act XXXIX of 1925) came into force in the State of Mysore, I would also arrive at the same conclusion, namely, that this High Court has such jurisdiction. The Indian Succession Act as it was first enacted in 1865 (Act X of 1865) was extended to the State of Mysore by the Government of India by a notification dated 23rd July, 1868. Section 264 of the said Act provides:

'The High Court shall have concurrent jurisdiction with the District Judge in the exercise of all the powers hereby conferred upon the District Judge.'

The powers referred to in the Chapter in which the said section appears are powers in granting and revoking probates and letters of administration. The 'High Court' as defined in the said Act means the 'highest civil court of appeal.' The highest civil court of appeal in the State of Mysore was Originally the chief court which subsequently came to be named as the 'High Court.' In the year 1914 the State of Mysore passed a Regulation being Regulation VI of 1914 to provide for the grant of probates of Wills and letters of administration to the estates of deceased persons. The preamble of the said Regulation provides:

'Whereas it is expedient to provide for the grant of probates of Wills and letters of administration to the estates of deceased persons in eases to which the Indian Succession Act, 1865, as applied to Mysore by Government of India Notification, Foreign Department, No. 203, Judicial, dated 23rd July, 1868 does not apply:

His Highness the Maharaja is pleased to direct the said Regulation.'

Section 51 of the said Regulation provides that the District Judge shall have jurisdiction in grant-ing and revoking probates and letters of administration in all cases within his District Section 85 of the said Regulation reads as follows:--

'The High Court shall have concurrent jurisdiction with the District Judge in the exercise of all the powers hereby conferred upon the District Judge.'

Thus under the old Succession Act, which was extended to the territories of Mysore as already mentioned and also under Regulation VI of 1914 the powers, which the District Judge had in the mutters of granting probate and letters of administration, were also vested in the High Court of Mysore. Therefore, under the law as it stood prior to the date when the new Succession Act (Act XXXIX of 1925) came into force in the State of Mysore, the High Court had the same jurisdiction as the District Judge in granting probates and letters of administration.

In the new Succession Act 'High Court' has not been defined but in Clause (26) of the General Clauses Act 'High Court' has been defined as the 'highest Civil Court of appeal.' I, therefore, hold that on the state of the law as it stood prior to 1st April, 1951, the High Court of Mysore had jurisdiction to make such grants and Article 225 of the Constitution preserved the existing jurisdiction of all High Courts.

3. One other point of view was pressed before us in support of the contention that this Court has such jurisdiction. Item 5 of List III, which is the concurrent list, of the Seventh Schedule of the Constitution, read with Item 46 of the said List shows that the Parliament as also the Legislature of the State specified in Part A or Part B of the 1st schedule has power to make laws with regard to jurisdiction and powers of High Courts in respect of intestacy and succession.

Therefore it was argued that the Succession Act. which was made applicable to the State of Mysore on the 1st of April, 1951, could and did confer such jurisdiction on the High Court. This contention also seems to me to be sound. I have therefore come to the conclusion that the question referred to us should be answered in the affirmative.

Nittoor sreenivasa Rau, J.

4. I agree.

A.R. Somnath Iyer, J.

5. I agree.

6. Reference answered.


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