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Triloki Nath Vs. Kanhiya Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 413 of 1977
Judge
Reported inAIR1978All297
ActsSuccession Act, 1925 - Sections 57 and 264(2)
AppellantTriloki Nath
RespondentKanhiya Lal and ors.
Appellant AdvocateSwami Dayal, Adv.
Respondent AdvocateVinod Swaroop, Adv.
DispositionRevision dismissed
Excerpt:
family - civil - jurisdiction of district judge - section 264 (2) and 57 (c) of indian succession act, 1925 - whether in absence of any notification under section 264 (2) by government district judge has jurisdiction to grant letters of administration with respect to will - where will is executed by a hindu after 01.01.1927 provisions of section 57 will be attracted ( in view of language of section 264 (2) there is no necessity of notification in official gazette before district judge can entertain petitions for probates and letters of administration. - .....was decided, the filing of the written statement by the opposite parties may be deferred. the learned district judge by his aforesaid order rejected the application. the present revision has been filed against the above order.2. learned counsel for the applicant contended that unless there was a notification in the official gazette by the state government as contemplated under section 264(2) of the indian succession act, hereinafter referred to as the act, the district judge had no jurisdiction for granting letters of administration with the will annexed. he urged that the opposite parties had not 'been able to show the existence of such a notification and, as such, the court of district judge at agra had no jurisdiction to entertain the petitions for the grant of letters of.....
Judgment:
ORDER

Amitav Banerji, J.

1. This revision is directed against an order of the District Judge, Agra, dated 11th October, 1976. The opposite parties had moved an application 36C stating that the Court of District Judge at Agra had no jurisdiction to entertain the application for the grant of letters of administration. The prayer was that until this point of jurisdiction was decided, the filing of the written statement by the opposite parties may be deferred. The learned District Judge by his aforesaid order rejected the application. The present revision has been filed against the above order.

2. Learned counsel for the applicant contended that unless there was a notification in the official gazette by the State Government as contemplated under Section 264(2) of the Indian Succession Act, hereinafter referred to as the Act, the District Judge had no jurisdiction for granting letters of administration with the Will annexed. He urged that the opposite parties had not 'been able to show the existence of such a notification and, as such, the Court of District Judge at Agra had no jurisdiction to entertain the petitions for the grant of letters of administration.

3. I have heard the learned counsel for the parties and, in my opinion, the contention raised by the learned counsel is wholly misconceived. Section 264(1) of the Act makes it clear that the District Judge has jurisdiction in granting and revoking probates and letters of administration in all cases within his district. Section 264(2) of the Act makes it clear that except in cases to which Section 57 of the Act applies, no court shall (apart from local limits of the towns of Calcutta, Madras and Bombay) receive applications for probate or letters of administration until the State Government has by notification in the official gazette authorised it so to do. It is evident that where Section 57 applies, notification is not necessary. Section 57 of the Act has three sub-clauses. Sub-clause (c) is relevant. Section 57 read with Sub-clause (c) reads as follows:

'Section 57(c). The provisions of this part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply-

(c) to all wills and codicils made by any Hindu, Budhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b).'

4. It is apparent from a perusal of the above that where a will has been made by a Hindu, Budhist, Sikh or Jaina on or after the 1st day of January, 1927, and to which sub-clauses (a) and (to) do not apply, the provisions of part VI of the Act would apply subject to the restrictions and modifications specified in Schedule III. Schedule III lays down five restrictions and modifications. There is no dispute that none of these five clauses have any application in the present case. Admittedly, in the present case, the date of the execution of the will is after the 1st January, 19:27, and the deceased was a Hindu. Consequently the provisions of Section 57 are attracted and in view of the language of Section 264(2) of the Act, there was no necessity of a notification in the official gazette empowering the District Judge to entertain petitions for probates and letters of administration and grant the same. It therefore follows that the District Judge has jurisdiction to entertain petitions and grant letters of administration.

5. For the reasons given above, I find no merits in this revision. It is accordingly dismissed, 'but in the circumstances of the case, I make no order as to costs. The stay order is vacated, and the record of the case shall be forthwith sent down to the Court below so that the further proceedings are done expeditiously.


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