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G. Rengaraja Rao Vs. A. Tulasibai Ammal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1949)1MLJ650
AppellantG. Rengaraja Rao
RespondentA. Tulasibai Ammal
Cases ReferredKarthiruma Goundar v. Rangammal
Excerpt:
- - it may be noted that clause (3) of section 29 of the madras civil courts act, 1873, provides that proceedings taken cognizance of by a subordinate judge under the provisions of section 29 shall be disposed of by him subject to the law applicable to like proceedings when disposed of by the district judge, and this notwithstanding anything contained in section 13 of the said act, section 13 provides for the form of appeal from judgment and decrees of subordinate judges. are very wide and are quite general and must necessarily include proceedings under part x of the indian succession act as well. any proceedings under the indian succession act of 1925 which cannot be disposed of by district delegates are not confined to contentious proceedings relating to the issue of probate and..........relied on by the respondent's advocate is inapplicable. on the other hand section 29 of the madras civil courts act, 1873, and a notification issued under sub-clause (1) of the said section by the high court are relied on, as the authority under which the subordinate judge of cuddalore is empowered to issue succession certificates. assuming this to be correct, it would follow that the appeal against the order of the subordinate judge would only lie to the high court by virtue of section 384, sub-clause (1) of the indian succession act, 1925, and section 29, sub-clause (3) of the madras civil courts act, 1873 (act iii of 1873). section 384(1) of the indian succession act provides that an appeal shall lie to a high court from an order of a district judge granting a certificate under part x.....
Judgment:

Panchapagesa Sastri, J.

1. This is an appeal against the order of the Subordinate Judge of Cuddalore directing the issue of a succession certificate to the respondent Tulasi Bai. She is the daughter of one Venkobai Ammal who is said to have executed a will dated 9th March, 1944, bequeathing all her properties to her daughter. The appellant who is the step-son of Venkobai opposed the application to the grant of succession certificate. His objections were firstly that succession certificate could not be issued by reason of Section 370 of the Indian Succession Act, 1925 (XXXIX of 1925); secondly that the Subordinate Court had no jurisdiction as the deceased was residing at the time of her death within the district of Chittoor where she is said to have executed the will and where she died; and thirdly that the will was not true and valid. All his contentions were overruled. Hence the appeal by him to this Court.

2. A preliminary objection is taken by the responden's advocate that the appeal would he only to the District Court of South Arcot and not to this Court. He relied on the proviso the Sub-section (2) of Section 388 of the Act. The appllant's advocate argues the the proviso is inapplicable as there was no notification by the Provincial Government investing the Subordinate Court of Cuddalore with power to exercise the functions of a District Judge under Part X of the Indian Succession Act (XXXIX of 1925). It is admitted that neither under Section 26 of the Succession Certificate Act (Act VII of 1889), nor under Section 388 of the Indian Succession Act (XXXIX of 1925) was there any notification by the provincial Government investing the Subordinate Judge's Court of Cuddalore with powers to exercise the functions of the District Court. The proviso therefore relied on by the respondent's advocate is inapplicable. On the other hand Section 29 of the Madras Civil Courts Act, 1873, and a notification issued under Sub-clause (1) of the said section by the High Court are relied on, as the authority under which the Subordinate Judge of Cuddalore is empowered to issue succession certificates. Assuming this to be correct, it would follow that the appeal against the order of the Subordinate Judge would only lie to the High Court by virtue of Section 384, Sub-clause (1) of the Indian Succession Act, 1925, and Section 29, Sub-clause (3) of the Madras Civil Courts Act, 1873 (Act III of 1873). Section 384(1) of the Indian Succession Act provides that an appeal shall lie to a High Court from an order of a District Judge granting a certificate under Part X of the Act, subject to other provisions of the said Part X. The only other provision dealing with the form of appeal in the said Part X of the Act is the proviso to Sub-clause (2) of Section 388 which I have considered earlier in this judgment. The said proviso being inapplicable to the circumstances of the present case, Section 384, Clause (1) would apply and the appeal will be only to the High Court. It may be noted that Clause (3) of Section 29 of the Madras Civil Courts Act, 1873, provides that proceedings taken cognizance of by a Subordinate Judge under the provisions of Section 29 shall be disposed of by him subject to the law applicable to like proceedings when disposed of by the District Judge, and this notwithstanding anything contained in Section 13 of the said Act, Section 13 provides for the form of appeal from judgment and decrees of Subordinate Judges. The reference to Section 13 in Sub-clause (3) of Section 29 of the Madras Civil Courts Act, 1873, is made only because the proceedings of the Subordinate Judge under Section 29 shall be governed in the matter of appeals also by the same law as would apply to proceedings by a District Judge. In other words, the right of appeal is provided and this right of appeal is on the same basis as if the Subordinate Judge is a District Judge in dealing with this matter. That would mean that an appeal against an order of a Subordinate Judge in proceedings taken cognizance of by him by virtue of a notification under Section 29(1) shall be only to the High Court irrespective of the pecuniary limits imposed by Section 13 of the Madras Civil Courts Act. In this view the preliminary objection fails and is. overruled.

3. On the merits I have no hesitation in concurring with the finding of the Subordinate Judge that the will is proved to be true and valid. The evidence of P.W. 1 is sufficient. Nor is it necessary to take out probate or letters of administration in respect of this will as it was not executed within the Presidency town of Madras, and as it does not deal with any of the immoveable Droperties within those limits.

4. The further contention of the appellant's advocate that Venkobai was a permanent resident in the district of Chittoor at the time of her death and that therefore the Subordinate Court of Cuddalore had no jurisdiction is in my opinion not open to him by reason of Section 21 of the Civil Procedure Code which is applicable to proceedings relating to the issue of succession certificates under the Succession Act also by reason of Section 141 of the Civil Procedure Code. I do not think it necessary therefore to deal with the contention whether her permanent place of residence at the time of her death was really in the district of Chittoor or not. All the contentions raised by the learned advocate for the appellant having been negatived, it would follow that this appeal should be dismissed.

5. But, at a late stage of the arguments, and in the course of the discussion, a further point emerged which raises a question of great importance, and it is this: whether a notification by the High Court under Section 29 (1) of the Madras Civil Courts Act would vest jurisdiction in a Subordinate Judge to issue a succession certificate under Part X of the Indian Succession Act (XXXIX of 1925). It may be pointed out that under the Succession Certificate Act (Act VII of 1889) there were notifications under Section 26 of the said Act empowering certain selected Subordinate Judges' Courts and District Munsiffs' Courts to issue succession certificates. The Courts of the Subordinate Judges so empowered were those of Cocanada, Ellore, Madura (East) and Madura (West), Cochin, Tanjore, Kumba-konam, Negapatam, Mayavaram, Dindigul and Tuticorin. These notifications do not seem to have been superseded but there was a general notification in G. O-No. 1731 Law (General) Department dated 5th June, 1924, and published at page 649 of Part I of the Fort St. George Gazette, dated 10th June, 1924, which was as follows:

Under the provisions of Sub-section (1) of Section 26 of the Succession Certificate Act, l889 (VII of 1889) the Local Government are pleased to invest all Courts of Subordinate Judges and all Courts of District Munsifs in the Presidency except those situated at headquarters of Districts other than Bellary, Coimbatore and Tinnevelly with the functions of a District Court under the said Act within the local limits of their respective jurisdictions. In these excepted districts, however, the Principal Subordinate Judge's Court at Coimbatore, the Principal Subordinate Judge's Court at Tinnevelly and the Court of the District Munsif at Bellary, shall perform the functions of a District Court under the said Act within the local limits of their jurisdictions.

This notification, however, was superseded by the notification in G.O. No. 24 Law (General) Department dated 7th January, 1925, which reads as follows:

Under the provisions of Sub-section (1) of Section 26 of the Succession Certificate Act, 1889. (VII of 1889), and in suppression of Law (General) Department Notification No. 371 dated 5th June, 1924, published at page 649 of the Fort St. George Gazette, dated 10th June, 1924, the Local Government are pleased to invest all Courts of District Munsiffs in the presidency except those situated at headquarters of districts with the functions of a District Court under the said Act within the local limits of their respective jurisdiction.

The Succession Certificate Act was repealed and re-enacted as Part X of the Indian Succession Act (XXXIX of 1925)'. Though there has been no fresh notification under Section 388(1) of the Indian Succession Act, the previous notifications under the superseded Succession Certificate Act, such of them as were in force continued to be in force even after the enactment of the Indian Succession Act, 1925. In the year 1926, the Indian Legislature passed Act XIV of 1926 whereby Section 29 was inserted in the Madras Civil Courts Act, 1873. This, it may be noted, is an enactment of the Indian Legislature and not of the Madras Legislature. Under the newly added Section 29 the High Court is empowered, by general or special order, to authorise any Subordinate Judge to take cognizance of any proceedings under the Indian Succession Act, 1925, which cannot be disposed of by District Delegates. In 1927, in exercise of the powers conferred by Clause (1) of Section 29 of the Madras Civil Courts Act, 1873, and in exercise of the powers conferred by Section 265 of the Indian Succession Act, 1925, the High Court made two notifications which are set out below:

(i) Under the provisions of Section 265 of the Indian Succession Act, 1925 (Act No. XXXIX of 1925) and in supersession of all previous notifications on the subject, the High Court hereby appoints ex officio as District Delegates under that Act within the local limits of their respective jurisdictions, all Subordinate Judges who are exercising jurisdiction under that Act.

(ii) Under the provisions of Section 29 (1) of the Madras Civil Courts Act, 1873, as amended by the Madras Civil Courts (Amendment) Act, 1926 (Act No. XIV of 1926), the High Court hereby, authorises all such Subordinate Judges to take cognizance of any proceedings under the Indian Succession Act, 1925 (Act XXXIX of 1925), which cannot be disposed of by the District Delegates.

In the year 1939, these notifications of 1927 were superseded by fresh notifications made by the High Court and they are as follows:

1. Under the provisions of Section 265 of the Indian Succession Act, 1925 (Act XXXIX of 1925), and in supersession of High Court's notification, dated 23rd July, 1927, published at page 1138, Part II of the Fort Si. George Gazttte, dated 23rd August, 1927, the High Court hereby appoints all Subordinate,Judges ex qfficio as District Delegates under that Act within the local limits of their respective jurisdiction.

2. Under the provisions of Section 29(1) of the Madras Civil Courts Act, 1873, as amended by the Madras Civil Courts (Amendment) Act, 1926 (Act XIV of 1926) and in supersession of High Court's notification dated 23rd July, 1927, published at page 1138, Part II of the Fort St. George Gazette, dated 23rd August, 1927, the High Court hereby authorizes all Subordinate Judges to take cognizance of any proceedings under the Indian Succession Act, 1925 (Act XXXIX of 1925) which cannot be disposed of by District Delegates.

6. The question that falls to be considered now is whether on a proper interpretation of Section 29(1) of the Madras Civil Courts Act, 1873, and Section 388 of the Indian Succession Act (XXXIX of 1925), any jurisdiction can be conferred by a notification of the High Court under Section 29 of the Madras Civil Courts Act upon Subordinate Judges to grant succession certificate under Part X of the Indian Succession Act. It will be noted that the Succession Certificate Act of 1889 empowered the Provincial Government to invest Courts inferior to District Courts with jurisdiction to act as District Judge in the matter of granting succession certificates and that power was continued by Section 388 of the Indian Succession Act in Part X which takes the place of the old Succession Certificate Act. Under this power the High Court has empowered all District Munsiffs other than those at headquarters of Districts to take cognizance of applications for grant of succession certificates. Except the special notifications in favour of certain selected Subordinate Judge's Courts empowering them to act similarly under Section 26 of the Succession Certificate Act of 1889, there is no notification by the Provincial Government, empowering all Subordinate Judges as such or other Subordinate Judges than those already mentioned to take cognizance of proceedings under Part X of the Act. The Sub-Court of Cuddalore has not been empowered by any notification by the Provincial Government either under Section 26 of the Succession Certificate Act (1889) or Section 388 of the Indian Succession Act, 1925. The power to entertain succession certificate apolications by the Subordinate Judge's Court of Cuddalore is sought to be rested only on Section 29(1) of the Madras Civil Courts Act, 1873, and the High Court's notification of 1939 set out above. In the first place it may be noted that Section 29(1) of the Madras Civil Courts Act refer to ' any proceedings under the Indian Succession Act, 1925, which cannot be disposed of by District Delegates' and the notification also adopts the same language. In explicit terms there, is no authorisation to deal with proceedings under Part X of the Indian Succession Act. But the argument is that the words:

any proceedings under the Indian Succession Act, 1925, which cannot be disposed of by District Delegates.

are very wide and are quite general and must necessarily include proceedings under Part X of the Indian Succession Act as well. Reliance is placed upon the decision in Karthiruma Goundar v. Rangammal : AIR1932Mad456 . There, however, the question related only to the jurisdiction of a Subordinate Judge authorised by the notification aforesaid, to deal with an application under Section 192 which is contained in Part VII of the Indian Succession Act. The learned Judges held that the expression:

any proceedings under the Indian Succession Act of 1925 which cannot be disposed of by District Delegates

are not confined to contentious proceedings relating to the issue of probate and letters of administration which could not be disposed of by District Delegates but the words are wide enough to include applications under Section 192 of the Act as well. It is unnecessary for me to say anything more about this judgment than that it is not an authority dealing with the point now under discussion, viz., whether applications under Part X of the Act could also come under the expression used in the notification following the language of Section 29(1) of the Madras Civil Courts Act. Section 388 of the Indian Succession Act is not repealed wholly or in part and continues to be in force. If we should interpret the general words of Section 29(1) of the Madras Civil Courts Act as including aiso proceedings under Part X of the Succession Act, it might result in an inconsistency and possibly in a conflict of powers between the High Court and the Provincial Government. The Provincial Government may invest either Subordinate Judges or District Munsiffs with power to act under Part X and an appeal from an order of the Court so invested with power will be to the District Court. The High Court on the other hand cannot invest any District Munsiff with like power but can only empower if at all, a Subordinate Judge and an appeal against his order would lie to the District Court. If a Subordinate Judge is invested both by the High Court and by the Provincial Government, it will be difficult to say whether the appeal would lie only to the District Court or to the High Court. Further the power to authorise can be exercised from time to time and the authority conferred may be withdrawn from time to time. It may possibly result in a conflict if both the Provincial Government and the High Court should have concurrent powers to authorise all or any of the Subordinate Judges to act under Part X of the Succession Act, or to withdraw the powers so given. It seems to me that the words in Section 29 (1) should really read as excluding proceedings under Part X at least of the Indian Succession Act, 1925, wherein there is a special provision for investing inferior Courts with jurisdiction to act under that part and that power is given not to the High Court but to the Provincial Government. The two sections have got to be read together and reconciled in such a manner that they do not lead to conflict of powers or jurisdiction. Assuming that the amendment of the Madras Civil Courts Act of 1873 by the insertion of the new Section 29 by Act XIV of 1926 was intended to give power to the High Court to authorise the Subordinate Judges to dispose not only merely all contentious matters relating to the issue of probate and letters of administration which could not be disposed of by District Delegates, still even the wide powers claimed under Section 29(1) should be restricted to proceedings under the Indian Succession Act, where the said Act itself does not contain a special provision empowering an authority to invest inferior Courts with jurisdiction to act in respect of certain specified proceedings. It may not be inappro-priate to point out that there were enactments which permitted a delegation of powers to deal with contentious matters of probate and letters of administration to Subordinate Judge's Courts both under the Indian Succession Act of 1865and the Probate and Administration Act (V of 1881) as for instance the provisions which will be found in the Civil Courts Acts of some other Provinces. See for instance Section 23 of Bengal, Agra and Assam Civil Courts Act, 1887, Section 28-A of the Bombay Civil Courts Act of 1869, Section 19 of the Central Provinces Courts. Act (I of 1917) and Section 30 of the Punjab Courts Act of 1918. These it may be pointed out refer to delegation of certain proceedings under the Indian Succession Act of 1865 and the Probate and Administration Act, 1881. It was apparently on those lines that power was intended to be conferred on the High Court in Madras also, on the recommendations contained in the report of the Civil Justice Committee. However by the year 1926, when the Amending Act was passed by the Indian Legislature inserting Section 29 in the Madras Civil Courts Act of 1873, the Indian Succession Act of 1865 and the Probate and Administration Act of 1881 and various other Acts including the Succession Certificate Act (Act VII of 1889) and the Property Protection Act of 1841 had all become consolidated in Act XXXIX of 1925 which was referred to as the Indian Succession Act, 1925. That is why in the new Section 29 of the Madras Civil Courts Act reference is made to:

any proceedings under the Indian Succession Act, 1925, which cannot be disposed of by District Delegates

and not to proceedings under the Indian Succession Act of 1865 or the Probate and Administration Act of 1881. It is because of this reference to the Indian Succession Act of 1925 which also consolidated the provisions of the Property Protection Act and the Succession Certificate Act along with the other two Acts mentioned above, that this question has now arisen for decision in this Province. Whatever may be the case with reference to Section 192 in Part VII of the Indian Succession Act, is to which it may be noted there was and is no power to delegate such functions of the District Judge to inferior Courts apart from Section 29(1) now under consideration, so far as Succession Certificate Act of 1899 and Part X of the Indian Succession Act are concerned, there was and is always a machinery to empower such delegation and it was the Provincial Government who had and has the power to do so and that is kept intact by the re-enactment of the old Section 26 of the Succession Certificate Act in Section 388 of the Indian Succession Act of 1925. It seems to me there fore that the proper way of construing Section 29(1) of the Madras Civil Courts Act and Section 388 of the Indian Succession Act is to say that the general words of Section 29(1) of the Madras Civil Courts Act should be limited to proceedings under the Succession Act, 1925, other than Part X for which the special provision in Section 388 of the Act alone will apply. In this view it would follow that the notification in question does not and cannot confer any power upon the Subordinate Judge as such to entertain applications under Part X of the Indian Succession Act, 1925. Apart from the notification of 1939 made in. exercise of the powers under Section 29(1) of the Madras Civil Courts Act, 1873, there has been no special notification empowering the Subordinate Judge's Court of Cuddalore under either the old Section 26 of the Succession Certificate Act or the new Section 388 of the Indian Succession Act. The Provincial Government were advised to give such powers apparently only to Courts of District Munsiffs other than those at headquarters and some selected Subordinate Courts. In the circumstances, it would follow that the Subordinate Judge's Court of Cuddalore had no jurisdiction at all to entertain this application for succession certificate and this is not a matter which can be cured by Section 21 of the Code of Civil Procedure. In the result this appeal is allowed but having regard to the fact that the practice from 1939 appears to have been for Subordinate Judge's Courts as such to entertain applications under Part X of the Succession Act also, in the circumstances of the case, I order that each party should bear his or her own costs.

7. The order of the lower Court is set aside and the petition in the lower Court will stand dismissed.


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