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T.J. George S/O Thattil Joseph Vs. Mrs. Lucy Kochuvareed - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 937 of 1962 (originally filed as C.M.A. 160 of 1962)
Judge
Reported inAIR1963Ker188
ActsSuccession Act, 1925 - Sections 273 and 299; Code of Civil Procedure (CPC) , 1908 - Sections 115
AppellantT.J. George S/O Thattil Joseph
RespondentMrs. Lucy Kochuvareed
Appellant Advocate M. Manuel,; T. Paikaday and; L.I. Thattil (Leelamma Paik
Respondent Advocate P.K. Subramonia Iyer,; P.V. Krishna Iyer,; C.S. Ananthak
DispositionRevision petition dismissed
Cases ReferredAshtbhuj Ratan Kuer v. Debi Baksh Singh
Excerpt:
.....act, 1925 and section 115 of code of civil procedure, 1908 - jurisdiction of district court to grant probate in question - appellant contended that district court was incompetent to grant probate as property in will situated outside state of kerala - section 273 specifically conferred jurisdiction on district court to grant effective probate for properties situated inside kerala - as per proviso of section 273 district court had extra territorial jurisdiction to grant probate in respect of properties situated outside kerala - held, district court had jurisdiction to grant probate. - - in declining to entertain such applications, the courts were applying the well-known principle that a party should not be allowed to deal with matters piecemeal. in appeal, the high court on the..........is observed :'there appears to be no provision in the succession act which authorises the court to grant probate limited to part of the estate in cases where under section 179 section 179 of the indian succession act x of 1855) the whole estate is vested in the executor. 'in sardar singh v. teja singh, air 1946 lah 277 which construed section 232 of the act, it was held :'... .except in a case where the estate has been partially administered before an application for grant of letters of administration is made the application must cover the entire estate of the deceased. it is only in cases covered by clause (c) where the executor has died after having proved the will but before having administered all the estate of the deceased that an application for administration of a part of the.....
Judgment:

Govindan Nair, J.

1. The 16th counter-petitioner, in a proceeding initiated before the District Court, Trichur, by the respondent herein for the grant of a probate of a registered will dated 2-9-1958 said to have been executed by her late husband, T. V. Kochuvareed, is the appellant. The appellant, by means of an application dated 13th of August 1962, contended before the lower Court that it had no jurisdiction to entertain the application for probate because properties worth more than Rs. 10,000/- belonging to the estate of the deceased were situate outside the State of Kerala. It is admitted that item No. 3 of the A schedule to the Probate application is situate in the State of Madras and that the value of that Item is over Rs. 10,000/-. The contention that was urged before the Court below was that in view of the proviso to Section 273 of the Indian Succession Act, XXXIX of 1925, (hereinafter referred to as the Act), the District Court was incompetent to issue a probate in this case that will be effective throughout India, and, therefore, had no jurisdiction-to entertain the application. The application, it is contended, should have been moved before the High court, that Court being competent to grant a probate for the entire properties and estate of the testator, wherever situate in India. This contention was rejected by the Court below and the application moved by the appellant dismissed by the order appealed against.

2. No argument was addressed before us regarding the competency of this appeal, but we doubt whether an appeal would lie from such an order. The only question that has been determined by the District Court is that It has jurisdiction. Such an order cannot be said to beone passed under the Act. Section 299 of the Act, providing that

'Every order made by a District Judge, by virtue of powers hereby conferred upon him shall be subject toappeal to the High Court in accordance with the provisions of the Code of Civil Procedure, 1908, applicableto appeals.'

may not, therefore, apply.

In the decision reported in Fakirji Navroji v. Maherban Faredoon, AIR 1942 Bom 276, Sir Beaumont C. J., who wrote the judgment, observed that when a District Judge exercises his discretion under Section 271 of the Act, he cannot be said to be making an order under the Act. He is merely deciding to proceed with the application and therefore no right of appeal is granted by Section 299 against such an order. We think the same reasoning must apply to this case and that the appeal is not maintainable. We would, however, treat this appeal as a revision petition and deal with it as such. The case will be renumbered as a revision petition.

3. The question to be decided is whether there is by implication -- it is not contended, nor do we see any express provision in the Act, prohibiting the District Court from exercising its jurisdiction under the section in cases of this type -- an exclusion of the jurisdiction or the District Court to grant a probate when the probate cannot be effective in regard to the properties outside the State.

'Probate' is defined in the Act as

'the copy of a will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator.' (Section 2(1).

Section 232 of the Act enacts that letters of administration with the Will annexed may be granted to an universal or a residuary legatee of so much of the estate as may be unadministered. Chapter II of the Actcontaining Sections 237 - 247 deals with cases of limited grants, limited in point of duration, and Sections248 - 254 provide for grants for special purposes and Sections 255 and 256 pertain to grants subject to an exception. When a grant subject to an exception hasbeen made, the person entitled to probate or administration of the remainder of the deceased's estate may take a grant of probate or letters of administration, as the case may be, of the rest of the deceased's estate, (section 257).

These sections deal with cases where even when the Court has jurisdiction to grant a probate or letters of administration in general terms the grant is limited in point of time or to a specific purpose, or is grantedsubject to an exception, or is granted for the whole or the unadministered estate.

4. It is, however, argued on the basis of these provisions, that the normal rule is to apply for a probate or letters of administration for the entire estate of a deceased person and that the limiting of the application to a part of the estate is the exception to the rule. Apart from any statutory provision, it is contended, that the principle is that a grant should relate to the entire estate and not a part of it. Section 271, it is pointed out, will apply only to letters of administration and not to a probate. Reliance was also placed on four cases.

In In the Goods of Ram Chand Seal, ILR 5 Cal 2, which was a case relating to an application for letters of administration, it is said

'If Hindus take out letters of administration at an, they must take out general letters. I cannot grant you letters of administration limited as you wish.'

And, in In the Matter of Madhavji Dharamsi, ILR 6 Bom 460, it is observed :

'There appears to be no provision in the Succession Act which authorises the Court to grant probate limited to part of the estate in cases where under Section 179 Section 179 of the Indian Succession Act X of 1855) the whole estate is vested in the executor. '

In Sardar Singh v. Teja Singh, AIR 1946 Lah 277 which construed Section 232 of the Act, it was held :

'... .except in a case where the estate has been partially administered before an application for grant of letters of administration is made the application must cover the entire estate of the deceased. It is only in cases covered by Clause (c) where the executor has died after having proved the will but before having administered all the estate of the deceased that an application for administration of a part of the estate can be made, and even in that case the application must comprise the entire unadministered estate. On principle, apart from the provisions of Section 232, also it is quite clear that a person who is appointed to administer the estate of a deceased must administer the entire estate.'

In the decision of the Court of the Judicial Commissioner, Sind, reported in Khubchand Bhai v. Smt. Motilbai, AIR 1936 Sind 150, also a similar view has been taken.

These cases state the general rule that the grant of a probate or letters of administration must normally be for the entire estate of for the entire balance of the unadministered estate of the deceased person. But these cases have not decided that an application before a District Court enumerating all the properties of the deceased and asking for a probate with the Will annexed, is not maintainable, because the District Court has no power to grant probate or letters of administration effective in regard to properties outside the State exceeding Rs. 10,000/- in value. Moreover, in all these cases, the courts before which the applications were made, had the power to grant letters of administration for the entire estate. In ILR 5 Cal 2 and ILR 6 Bom 460 cases, the applications were moved before the High Court and from the facts stated in the other two cases it appears that the District Courts before which the applications were moved had jurisdiction to grant letters of administration for the entire estate. In fact, in both those cases the applications were allowed to be amended so as to include all the properties. The applications as originally moved, however, were limited to some of the properties for which an effective probate could have been granted by those Courts. In declining to entertain such applications, the Courts were applying the well-known principle that a party should not be allowed to deal with matters piecemeal. Those cases have not held that the Courts were incompetent as such or were lacking in Inherent jurisdiction to grant a limited probate or letters of administration.

5. The only case that has been brought to our notice, which we consider is helpful in deciding the controversy raised, is that of the Judicial Committee of the Privy Council reported in Ashtbhuj Ratan Kuer v. Debi Baksh Singh, AIR 1S44 PC 29. We think that this case concludes the revision petitioner and is a direct authority for the proposition that a District Court has jurisdiction to grant a probate even when such probate is inoperative in relation to properties situate outside the'Province' of the District Court. The facts that the judicial Committee had to consider were these : An application was made by the posthumous daughter and residuary legatee of the testator in the Court of the District Judge of Benares in the Province of Agra under Section 232 of the Act, for letters of administration with copy of the will annexed. Objection was pointedly taken that the Court of the District Judge of Benares had no jurisdiction to entertain the petition as all the properties of the testator were situate in the province of Oudh. The District Court, after reading Section 270 of the ACT, decided that inasmuch as some of the property of the testator even though of very small value was admittedly situate in the Jaunpur District at the time of the hearing and property of a greater value at the time of the death, the Court had jurisdiction to hear the petition, it was argued before the District Judge that 'Province' (which was the word used in Section 273 at that time) In Section 273 was not confined to the Province of Agra, but since the passing of Act VII of 1902, meant the amalgamated provinces of Oudh and Agra. The District Judge accepted this view. In appeal, the High court on the other hand, held that the District Judge of Benares was wrong and the decree 'was bad because the grant was not in terms limited to the property situate in the Province of Agra, but was absolute'. The Judicial Committee declined to express any opinion on this question and observed :

'They will only say that for the reasons they have given, the Court had jurisdiction and leave the decision as to the property over which the grant had effect to an occasion when it is necessary to decide that point. Nor do their Lordships think that the grant was made without jurisdiction because the learned District Judge did not limit the grant to the property within his own Jurisdiction.'

Their Lordships then read Section 271 of the Actand proceeded :

'This provision however does not go to jurisdiction but to discretion. In the present case the genuineness of a will was in dispute and in order to resolve it witnesses had to be called and the documents produced in their Lordships' view the District Judge had ample evidence upon which to decide that it was proper to hear the petition and to grant the letters of administration absolutely. In so doing he has considered the matter both on the footing that the grant would have effect ever all the property both in Agra and Oudh and also upon the footing that it would have effect over the property in Agra only. In either case he decided to exercise his discretion in favour of making the grant. Their Lordships think that he had material before him upon which he could properly so exercise his discretion and that there is no reason for interfering with it.'

6. We respectfully follow this decision and we think that the conclusion that the District Court has jurisdiction to grant a probate effective only with respect to the properties inside the State gains support from the provisions of the 'Act as well. Sections 264 - 270 and the other sections providing the formalities that have to be complied with are satisfied in this case, section 273 reading.

'Probate or letters of administration shall have effect over all the property and estate, moveable or immovable, of the deceased, throughout the State in which the same is or are granted, and shall be conclusive as to the representative title against all debtors of the deceased,and all persons holding property which belongs to him, and shall afford full indemnity to all debtors, paying their debts and all persons delivering up such property to the person to whom such probate or letters of administration have been granted;

Provided that probates and letters of administration granted:--

(a) by a High Court, or

(b) by a District Judge, where the deceased at the time of his death had a fixed place of abode situate within the jurisdiction of such Judge, and such Judge certifies that the value of the property and estate affected beyond the limits of the State does not exceed ten thousand rupees,

shall unless otherwise directed by the grant, nave like effect throughout the other States.'

enacts that the grant shall be effective over all the property and estate of the deceased and the proviso to the-section makes it effective in regard to properties outside the State as well when the conditions of the proviso are satisfied. The question is whether In the case of a grant by the District Judge where the proviso cannot be applied, as in this case, the District Judge ceases to have jurisdiction.

The proviso to Section 273 only enlarges the ambit and effectiveness of the grant. We are not able to read into the proviso, though, no doubt, it is an exception, anything which limits or abrogates the full scope and effect of the first paragraph of Section 273 which enacts that a grant (necessarily by a Court on which jurisdiction has been conferred by the Act) will be effective in regard to all the properties and estate, movable or immovable, of the deceased throughout the State it the contention of counsel for the petitioner is accepted, we will have to hold that even when all the provisions of the statute are satisfied by an applicant, a grant by a District Judge will be ineffective even in regard to the estate of the deceased in the State.

In view of Section 264 and Section 273, which nave specifically conferred jurisdiction on the District court to grant an effective probate for all properties inside Kerala State, we are not prepared to say that the District Court has no jurisdiction to grant a probate for the properties inside the State.

7. Certain other provisions of the statute also, we think, make it clear that the Act contemplates the issue of a limited probate or letters of Administration effective in regard to some only of the properties and the estate of the deceased. Section 228.

'When a will has been proved and deposited in a Court of competent jurisdiction situated beyond the limits' of the State whether within or beyond the limits of India and a properly authenticated copy of the will is produced, letters of administration may be granted with a copy of such copy annexed.'

is one such. This provision in the Act indicates that when once a will is proved and deposited in a Court of competent Jurisdiction situate beyond the limits of a State, a copy of the Will is sufficient for the issue of letters of administration in that State. This necessarily means that the issue of a probate or letters of administration in the first instance was not effective in regard to all the properties. The proviso to Section 273 itself enacts that 'unless otherwise directed by the grant' (the probate will) (sic) have effect throughout the other States.We think that this points out that either the High court or the District Court can, in granting the probate or letters of administration, limit the effect of the grant to properties inside the State where the Court is situate. Counsel for the revision petitioner suggested that 'unless otherwise directed by the grant' must necessarily refer only to on a or other of the specific limitations provided by the statute in the sections referred to. We do not think so. The proviso to Section 273, if we may use the expression, deals with the extra territorial effect of the grant and the context in which those words occur In the proviso makes it clear that the direction contemplated is a direction regarding this extra territorial effect. At any rate, the direction that can be given must include a direction about the extra territorial effect.

8. In the light of the above discussion, we Holdthat the District Court has jurisdiction and dismiss thisrevision petition with costs.


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