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N. Chinnakannu Pillai Vs. N.S. Sundaram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 455 of 1950
Judge
Reported inAIR1951Mad437; (1950)2MLJ607
ActsCode of Civil Procedure (CPC) ; Succession Act, 1925 - Sections 371 and 388; General Clauses Act, 1897 - Sections 24; Succession Certificate Act, 1889
AppellantN. Chinnakannu Pillai
RespondentN.S. Sundaram
Appellant AdvocateS. Ramachandra Iyer, Adv.
Respondent AdvocateV. Ramaswami Iyer, Adv.
DispositionRevision dismissed
Cases ReferredRengaraja Rao v. Dulasibai Ammal
Excerpt:
.....certificate - petition dismissed. -..........was nothing in the laterg. o. depriving those courts of the jurisdiction vested in them by the earlier notifications. to some extent, g. o. no. 1731 dated5-6-1933 (sic) may overlap g. o. no. 391 in caseswhere courts of subordinate judges speciallyempowered by g. o. no. 391, fall within thecategory of subordinate judges functioning atplaces other than headquarters of districts.with reference to subordinate judges functioning at the headquarters of districts and empowered by g. o. no. 391 to take cognisance ofapplications for grant of succession certificates,their jurisdiction would remain unaffected byg. o. no. 1731 dated 5-6-1924 which confersjurisdiction only on subordinate judges anddistrict munsifs not functioning at headquarters of districts. it is therefore not possible tosay.....
Judgment:
ORDER

Viswanatha Sastri, J.

1. This civil revision petition is directed against an interlocutory order of the Subordinate Judge of Tuticorin in O. P. No. 33 of 1949, a petition for the issue of a succession certificate under Succession Act (XXXIX [39] of 1925), holding that he had jurisdiction to entertain the application. The contention of the petitioner in this Court is that the Subordinate Judge had no jurisdication. There is no notification of the Provincial Government under Section 388(1), Succession Act, 1925, empowering Subordinate Judges to issue succession certificates. Under Section 26, Sub-section (3), Succession Certificate Act (vii [7] of 1889) there were three notifications by the Local Government conferring jurisdiction on Courts inferior to a District Court to issue succession certificates. Effect of these successions issued under that Act is one of the matters that fall to be decided in this case. The provisions of Act XIV [14] of 1926 passed by the Indian Legislature, where by Section 29, Madras Civil Courts Act, 1873, was inserted in that Act, empowered the High Court, by notification, to invest 'judicial officers with jurisdiction in matters arising under the Succession Act. Sections 265 and 388, Succession Act, empower the High Court and the Provincial Government respectively, by notification, to invest any Court inferior in grade to that of a District Judge with power to exercise the functions of a District Judge under the Act in respect of the matters specified in those sections. The High Court has issued notifications in the exercise of the power conferred upon it under Section 265, Succession Act, and Section 29 (1), Madras Civil Courts Act of 1873, as amended by Act XIV [14] of 1926 of the Indian Legislature authorising all Subordinate Judges to take cognizance of any proceedings under the Succession Act, 1925, which cannot be disposed of by 'District Delegates' and appointing all subordinate Judges ex officio as 'District Delegates' under the Succession Act, 1925, within the local limits of their respective jurisdiction. It is the effect of these several notifications that has to be considered in arriving at a decision on the question of jurisdiction raised in the present case.

2. Under Section 26 (1), Succession Certificate Act, 1889, the Local Government by G. O. No. 391 dated 22-10-1921 notified that the Subordinate Judge of Tuticorin would have jurisdiction to issue succession certificates. In a later G. O. No. 1731 dated 5-6-1924, the Local Government invested all Subordinate Judges and District Munsifs except those at the headquarters of districts (subject to a few exceptions) with the powers of a District Court under the Succession Certificate Act, 1889, within the local limits of their respective jurisdiction. By another notification, G. 0. No. 24 dated 7-1-1925, superseding G. O. no. 1731 (wrongly printed as G. O. No. 371 at p. 274 of vol. I of the CivilEules of Practice) the Local Government invested all Courts of District Munsifs in the Presidency except those situated at headquarters of districts, with jurisdiction to issue succession certificates. All these notifications were issued under Section 26, Succession Certificate Act, 1889, which has now been repealed and re-enacted as Part x of theSuccession Act, 1925. It cannot be successfullycontended that with the repeal of the Succession Certificate Act, 1889, and its re-enactmentby the Succession Act, 1925, the life of thenotifications issued under the earlier Act cameto an end by reason of the omission in the laterAct of a provision continuing the notificationsissued under the earlier Act. Section 24, GeneralClauses Act, provides for the continuation inforce of such notifications unless otherwise expressly provided in the later Act, and there is nosuch provision in the Succession Act, 1925. Theargument of the petitioner is that the secondG. O. No. 1731 dated 5-6-1924, operated as a repealof the first G. O. No. 391 dated 22-10-1921, and thesecond G. O. was, in its turn, repealed by thethird G. O. No. 24 dated 7-1-1925 and that theresult of the several notifications is that District Judges and District Munsifs, except thoseat headquarters of districts, alone have jurisdiction to issue succession certificates.

3. I am unable to accept this argument.While the third notification in terms supersedesthe second, the second does nob purport tosupersede the first. It cannot be said that thefirst notification became otiose or wholly devoidof any effect after the issue of the second notification. The special notifications empoweringcertain selected Subordinate Judges' Courts, ofwhich the Tuticorin Subordinate Judge's Courtwas one, to take cognizance of applications forgrant of succession certificates, continued to bein force notwithstanding G. O. No. 1731 dated5-6-1924 because there was nothing in the laterG. O. depriving those Courts of the jurisdiction vested in them by the earlier notifications. To some extent, G. O. No. 1731 dated5-6-1933 (sic) may overlap G. O. No. 391 in caseswhere Courts of Subordinate Judges speciallyempowered by G. O. No. 391, fall within thecategory of Subordinate Judges functioning atplaces other than headquarters of districts.With reference to Subordinate Judges functioning at the headquarters of districts and empowered by G. O. No. 391 to take cognisance ofapplications for grant of succession certificates,their jurisdiction would remain unaffected byG. O. No. 1731 dated 5-6-1924 which confersjurisdiction only on Subordinate Judges andDistrict Munsifs not functioning at headquarters of districts. It is therefore not possible tosay that the scope and ambit of G. O. No. 1731dated 5-6-1924 are comprehensive enough toprovide for all matters for which G. O. No. 391made provision. In other words, the two G. Os.can exist and have operation side by side.The doctrine of repeal by implication mustnob be resorted to unless the implication is quite clear. An enactment or a rule having the force of law cannot be held to be repealed by implication by a later enactment or statutory rule unless the provisions of the earlier enactment or rule are plainly repugnant to those of the subsequent enactment or rule and the entire subject-matter of the first is taken away by the second. If the two provisions standing together would lead to wholly absurd consequences or if the entire subject-matter of the earlier statutory provision is provided for by a later statutory provision, then there may be room for the application of the rule of repeal by implication. Eepeal by implication is not to be lightly inferred and the mere inclusion in a later statutory provision of a portion of the subject-matter contained in an earlier statutory provision cannot by itself have the result; of a repeal of the earlier provision. Eepeal by implication is the consequence of contradictory or inconsistent legislation and should not be imputed to a legislative or rule-making authority unless one is driven to do so. See Halsbury's Laws of England, vol. 31, p. 561. Even in a case where there is repeal or amendment of an earlier Act by necessary implication, the repeal need not extend to the whole of the provisions of an earlier enactment and certain provisions of the earlier enactment may survive the repeal or amendment. The present is such a case. In my opinion, G. O. No. 1731 dated 5-6-1924 neither expressly nor by necessary implication repeals the earlier G. O. No. 391. In this view, the Subordinate Judge of Tuticorin would have jurisdiction to entertain the petition for the grant of succession certificate.

4. It is unnecessary to consider the effect of the notifications issued by the High Court in 1939 acting under the provisions of Section 26, Succession Act, 1925 and the provisions of Section 29 (1), Madras Civil Courts Act, 1873, as amended by Act, XIV [14] of 1926. These notifications do not, in so many terms, confer jurisdiction on Subordinate Judges to take cognizance of applications for grant of succession certificates. At the same time, the notification authorises

'all Subordinate Judges to take cognizance of any proceedings under the Indian Succession Act 1925, which cannot be disposed of by district delegates.'

District delegates had no place in the old Succession Certificate Act, and under the Succession Act of 1925, could not entertain applications for the issue of succession certificates. The words of the notification are, however, wide and quite general and, literally interpreted, would include proceedings under Part X of the Succession Act. There is a decision of this Court in Karthiruma Goundan v. Rangammal, 55 Mad. 701 : A. I. R. 1932 Mad. 456 favouring such a wide and literal interpretation of the notification which adopts the language of Section 29 (1), Madras Civil Courts Act, as amended by Act XIV [14] of 1926. Panchapagesa Sastri J. in the decision reported in Rengaraja Rao v. Dulasibai Ammal, : (1949)1MLJ650 , was inclined to place a more restricted interpretation on the scope of the notification and to hold that it did not authorise Subordinate Judges to entertain applications for the issue of succession certificates. It is unnecessary for me to express an opinion as to which of these divergent views represents the true intention of the Legislature. The difficulty has arisen from the Succession Act, 1925, assembling together different enactments which dealt with different topics without reference to each other, namely, the Succession Certificate Act, 1889, the Probate and Administration Act, 1881, the Succession Act, 1865, the Succession (Property Protection) Act, 1841, and the Hindu Wills Act, 1870. There was no place for a District delegate in the Succession Certificate Act 1889 while the Probate and Administration Act 1881 gave jurisdiction to a District delegate in non-contentious applications for probate or letters of administration. The Consolidating Act of 1925 has, to some extent, to be interpreted in the light of the history of the previous legislation embodied in the several enactments above referred to, and, if so interpreted, the reasoning of Panchapagesa Sastri J. if I may say so with respect, appears to me to be convincing. I need not pursue the matter further as the civil revision petition fails on my interpretation of G. o. No. 391 of 1921 and the subsequent notifications issued by the Government.

5. The civil revision petition is therefore dismissed with costs.


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