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Vellaiammal Vs. Vellaichamy and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 2416 of 1970
Judge
Reported inAIR1972Mad338
ActsIndian Succession Act, 1925 - Sections 372 and 388; Madras Civil Courts Act, 1873 - Sections 29 and 29(1)
AppellantVellaiammal
RespondentVellaichamy and ors.
Cases ReferredReddiar v. Rengammal
Excerpt:
- .....a petition for the issue of a succession certificate. velliammal applied under section 372 of the indian succession act for the issue of a succession certificate in her favour to the district munsif of paramakudi. during the hearing of the petition, the present respondents got themselves impleaded as parties and opposed the grant of the said certificate. the learned district munsif, however, granted the succession certificate. the respondents took up the matter on appeal, and the learned subordinate judge of ramanathapuram at madurai allowed the appeal holding that velliammal is not entitled to claim a succession certificate in respect of the amount left by the deceased perumal at penang. against the present civil revision petition to this court. 2. apart from contending that on the.....
Judgment:
ORDER

1. This petition is filed by Valliammal, wife of one T. Perumal against the order of the learned Subordinate Judge of Ramanathapuram at Madurai passed on appeal dismissing a petition for the issue of a succession certificate. Velliammal applied under Section 372 of the Indian Succession Act for the issue of a succession certificate in her favour to the District Munsif of Paramakudi. During the hearing of the petition, the present respondents got themselves impleaded as parties and opposed the grant of the said certificate. The learned District Munsif, however, granted the succession certificate. The respondents took up the matter on appeal, and the learned Subordinate Judge of Ramanathapuram at Madurai allowed the appeal holding that Velliammal is not entitled to claim a succession certificate in respect of the amount left by the deceased Perumal at Penang. Against the present civil revision petition to this Court.

2. Apart from contending that on the merits the learned Subordinate Judge was in error in interfering with the conclusion arrived at by the learned District Munsif, Mr. S. Gopal Ratnam, learned counsel for the petitioner submitted that the learned Subordinate Judge was in error in finding a custom that divorce was permissible in the community to which the petitioner belonged, without the respondents having definitely made an issue about the existence of the custom and established such a custom. Apart from this question of law, the learned counsel also raised a contention that the learned Subordinate Judge had not jurisdiction to hear an appeal from the learned District Munsif in the matter under the Indian succession Act.

3. Section 388 of the Indian Succession Act (Act 39 of 1925) provides that the State Government may by notification in the official gazette, invest any Court inferior in grade to a District Judge with power to exercise the functions of a District Judge under Part X. The proviso to sub-section (2) enacts that if an inferior Court to the District Court is so authorised, an appeal lies to the District Court, and under sub-section (3), a revision is provided against the order of the District Judge on appeal to the High Court. Section 29(1) of the Madras Civil Courts Act, 1873, empowers the High Court, by general or special order, to authorise any Subordinate Judge to take cognizance of, or any District Judge to transfer to any Subordinate Judge under his control, any proceedings under the Indian Succession Act, 1925, which cannot be disposed of by District Delegates. Sub-section (2) enables a District Judge to withdraw any proceedings taken cognisance of by, or transferred to, a Subordinate Judge and either himself dispose of them or transfer them to a Court under his control competent to dispose of them. Bu virtue of the powers conferred under Section 29 of the madras Civil courts Act, the High Court has framed rules under the Indian Succession Act. The Government under the powers vested under Section 388 of the Indian Succession Act, invested all Courts of District Munsif in the Presidency except those situated at headquarters of districts with the functions of a District Court under the Indian Succession Act within the local limits of their respective jurisdiction. (Vide G.O. 24 L (G) dated 7-2-1925 H.C. Dis. 312 of 1925. At page 274 of the Civil Rules of Practice and Circular Orders, Volume (I). The High court by virtue of the powers conferred under Section 29(1) of the Madras Civil Courts Act authorised all Subordinate Judges to take cognisance of any proceedings under the Indian Succession Act, 1925, which cannot be disposed of by a District Delegate. (H.C.P. Dis. 947 of 1939--at page 274 of the Civil Rules of Practice and Circular Orders, Vol. I). The High Court under the powers vested under Section 265 of the Indian Succession Act empowered all subordinate judges ex officio as District Delegates under the said Act within the local limits of their respective jurisdiction (H.C.P. Dis. 947 of 1939 at page 274 of the Civil Rules of Practice and Circular Orders Vol I). By virtue of the three notifications referred to above, District Munsifs are invested under Section 388 of the Indian Succession Act, with the functions of a District Court under the Act within the local limits of their respective jurisdiction, and the Subordinate Judges, by virtue of the notification of the High court under Section 29(1) of the Madras Civil Courts Act and under the provisions of Section 265 of the Indian Succession Act, are authorised to take cognisance of any proceedings under the Indian Succession Act which cannot be disposed of by District Delegates and are also appointed ex officio District Delegates under the Act within the local limits of their respective jurisdiction. The result of these notifications is that the district Judge, the Subordinate Judge and the District Munsif can take cognisance of the matter under the Indian Succession Act referred to above. The District judge is also empowered to hear appeals under Section 388 of the Indian Succession Act from a decision of an inferior Court, that is, a District Munsif or a Subordinate Judge,. This position is beyond dispute and had been so held by a Full Bench of this Court in Sub-barayalu Reddiar v. Rengammal, ( : AIR1962Mad450 (FB)).

4. In the present case, we are concerned with the propriety and validity of the Subordinate Judge hearing an appeal against the order of the district Munsif granting a succession certificate. Section 29(1) of the Madras Civil Courts Act empowers the High court by general or special order to authorise the District Judge to transfer to any subordinate Judge under his control to any proceedings under the Indian Succession Act which cannot be disposed of by District Delegates. But the High court has not so authorised the District Judge to transfer to any subordinate Judge any of the Proceedings under the Indian Succession Act. It is also clear from Section 388(4) of the Indian succession Act that the District Judge may withdraw any proceedings under Part X from an inferior Court, and may either himself dispose of them or transfer them to another such Court established within the local limits of the jurisdiction of the District Judge and having authority to dispose of the proceedings. While this provision would empower the District Judge to withdraw proceedings from an inferior Court and try himself or transfer such proceedings to another Court having authority to dispose of the proceedings, so far as an appeal which is preferred to the District Judge from an inferior Court is concerned, there is no provision for transfer of such an appeal. Nor is the Subordinate Judge under any of the provisions of the Act empowered to hear such appeal. As already pointed out, though the High Court has powers under Section 29 of the Madras Civil Courts Act to authorise any district Judge to transfer to any Subordinate Judge under his control any proceeding under the Indian Succession Act, it has not so empowered and therefore the hearing of an appeal by the Subordinate Judge, as in the instant case, is without jurisdiction and the appellate order has therefore to be set aside. The appeal is remanded to the District Judge of Ramanathapuram at Madurai for disposal in accordance with law. In the appeal, the petitioner will be permitted to take a ground that the respondents have not set up a custom of divorce in the community to which the petitioner belongs or established it, and the respondents will be permitted to take such defence as is open to them in law.

5. In the result the civil revision petition is allowed. There will be no order as to costs.

6. Revision allowed.


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