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Raj Rani Widow of Late Raizada Bansi Lal Vs. Raizada Mool Raj and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberProbate Case No. 10-D of 1960
Judge
Reported inAIR1962P& H62
ActsIndian Succession Act - Sections 276; Code of Civil Procedure (CPC), 1908 - Sections 10
AppellantRaj Rani Widow of Late Raizada Bansi Lal
RespondentRaizada Mool Raj and ors.
Cases ReferredSobramanian Chetty v. Maung Po Tha
Excerpt:
.....for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. - in about 1959 a house at 9 bhargava lane, boulevard road, delhi, was allotted to her husband by the government and he, as well as shrimati raj rani......which are the subject-matter of preliminary issues nos. 1, 2 and 3. reading as under:1. did the deceased l. bansi lal have his fixed place of abode at delhi? 2. if issue no. 1 is answered in the affirmative, does this petition not lie in this court under section 300 of the indian succession act? 3. are the proceedings in this case liable to be stayed till the disposal of the suit referred to in paragraph 5 of the preliminary objections in the written statement filed by respondents nos. 1 and 3? the parties have led evidence on these three preliminary issues and have addressed lengthy arguments. i do not, however, find that any of these preliminary objections has any force. re. issue no. 1. (2) it is in evidence that raizada bansi lal belonged to ambala where the family has got an.....
Judgment:
ORDER

(1) Shrimati Raj Rani has brought the present petition in this Court for the grant of Letters of Administration with the will annexed pertaining to the estate of the late Raizada Bansi Lal son of Rai Bahadur Ganga Ram of 9, Bhargava Lane, Boulevard Road, Delhi. She has alleged that the said late Raizada Bansi Lal was her husband and made a will in her favour bequeathing some property to her and some to his children from his first write who died long back and after whose death he had married the present petitioner. The petition is being opposed on behalf of a son and a daughter of the late Raizada Bansi Lal from his previous wife as also by the deceased's brother. They have denied that the petitioner ever married the late Raizada Bansi Lal or that a will was ever made by the said deceased. Some preliminary objections have also been taken which are the subject-matter of preliminary issues Nos. 1, 2 and 3. reading as under:

1. Did the deceased L. Bansi Lal have his fixed place of abode at Delhi?

2. If issue No. 1 is answered in the affirmative, does this petition not lie in this Court under section 300 of the Indian Succession Act?

3. Are the proceedings in this case liable to be stayed till the disposal of the suit referred to in paragraph 5 of the preliminary objections in the written statement filed by respondents Nos. 1 and 3? The parties have led evidence on these three preliminary issues and have addressed lengthy arguments. I do not, however, find that any of these preliminary objections has any force.

Re. ISSUE No. 1.

(2) It is in evidence that Raizada Bansi Lal belonged to Ambala where the family has got an ancestral house in which he has a share. He has, however, been in Government service for a pretty long time before the death and was posted at different stations from time to time. In July, 1956, he was posted at Delhi as a Tehsildar in the Income-tax Department and till the date of his death. i.e., 1-3-1960, he remained posted here. Shrimati Raj Rani, petitioner, has stated on oath that during this entire period she and her husband were living in Delhi in different houses. In about 1959 a house at 9 Bhargava Lane, Boulevard Road, Delhi, was allotted to her husband by the Government and he, as well as Shrimati Raj Rani. lived in that house till 1-3-1960 when he died. During their stay at Delhi a son was born to them on the 21st of February, 1958, and for that purpose Shrimati Raj Rani was admitted to St. Stephens Hospital, Tis Hazari, Delhi.

The respondents admit that the deceased was employed at Delhi and stayed here from July, 1956, to the date of his death, i.e., 1-3-1960. Their case, however, is that Delhi cannot still be termed as, his permanent place to abode as envisaged by section 276 of the Indian Succession Act. I regret I cannot accept this contention. In my opinion the permanent place of abode is the one where a man has actually been living permanently and not merely as a temporary visitor or a temporary lodger. Obviously, the deceased did not come to Delhi just to pay a visit to this place and go back or to stay here in connection with some particular occasion, namely, to attend a marriage or a funeral or to see an exhibition. He was actually posted here and intended to stay here permanently unless he was transferred to another station. I am unable to agree with Mr. Narula's contention that permanent place of abode means the place to which ancestors of a person belonged or a place where his ancestral property is situate. I am supported in this view by that taken in Bhagat Singh Bugga v. Dewan Jagbir Sawhney, AIR 1941 Cal 670, and Govind v. Anant, 71 Ind Cas 816: (AIR 1923 Nag 145) Mr. Narula relies on Sobramanian Chetty v. Maung Po Tha, 11 Ind Cas 851 (Bur) but this authority does not help Mr. Narula in any way.

Re. ISSUE No. 2.

(3) Mr. Narula's contention is that the petition can only be filed before the learned District Judge and not in the High Court. For this purpose he relies on section 276 and sub-section (2) of Section 300 of the Indian Succession Act. Under sub-section (1) of section 300 the High Court has concurrent jurisdiction with the District Judge in the exercise of all the powers conferred upon the District Judge under the Act. Mr. Narula's case is that the present case falls under sub-section (2) of section 300 and as there is no notification of the Government empowering the High Court in that behalf, the High Court has no jurisdiction to entertain the present petition. I regret I cannot accept this contention. Sub-section (2) applies to cases to which section 57 of the Indian Succession Act does not apply. The will in the present case having been not apply. The will in the present case having been made after the first day of January, 1927, and being one by a Hindu, the present case is governed by section 57 of the Indian Succession Act and sub-section (2) of section 300 of the said Act does not, therefore, apply.

The only other argument of Mr. Narula is that the High Court at Chandigarh has got jurisdiction but not the Circuit Bench of it at Delhi. Even it I had found that the deceased had not a permanent abode in Delhi I would have no hesitation in holding that the present petition can be heard by the Circuit Bench. The deceased has admittedly left property at Ambala and the High Court of Punjab has, therefore, jurisdiction. I cannot appreciate the argument that while the High Court has jurisdiction, the circuit Bench at Delhi has got no jurisdiction. So far as the jurisdiction goes, the Circuit Bench cannot be deemed to a different Court than the High Court at Chandigarh. The will was made at Delhi and all the witnesses are at Delhi and it must in the circumstance be held that it is convenient that the case is tried at Delhi. This issue is accordingly decided in favour of the petitioner.

Re. ISSUE No. 3.

(4) It is urged by Mr. Narula that the present proceedings are liable to be stayed because the daughter of the deceased from his first wife has brought a suit for a declaration at Ambala that certain jewellery, which is lying in the locker at Ambala, belonging to her. That suit obviously has nothing to do with the present proceedings which are proceedings in rem and which relates to a will left by the deceased with respect to this entire property. Section 10 of the Civil Procedure Code can have no applicability to the case and it is certainly not a case which should be stayed under the inherent powers of this Court. This issue also is decided against the respondents.

(5) The petitioner will have costs of these proceedings. Counsel's fee Rs. 50/-.

(6) Order accordingly.


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