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In Re: Bholanath Pal, Deceased - Court Judgment

LegalCrystal Citation
Subject Family
CourtKolkata
Decided On
Reported inAIR1931Cal580
AppellantIn Re: Bholanath Pal, Deceased;sm. Satyabala Dasi
Respondent;sm. Sudharanee Dasi
Cases ReferredSalmon v. Duncombe
Excerpt:
- .....the order is wrong because: (1) section 2, succession act, 1929, does not empower this court to grant succession certificates; and (2) the proper procedure was not adopted.5. it is argued that the secretary of state is a proper, if not a necessary, party under order 1, rule 10, civil p.c., and that as the order made by buckland, j., was not drawn up, this is a stage in the proceedings; and that the advocate-general is entitled to appear in any case as of right, or as amicus curiae.6. counsel appearing for the parties to the suit opposed this application; as the matter is of considerable public importance i heard the parties on the merits.7. in my opinion it is unnecessary to consider the position of the advocate-general, as i think the secretary of state should be added as a party.....
Judgment:

Remfry, J.

1. The Secretary of State for India in Council applied for an order to set aside an order made by a Judge of this Court on 22nd May 1930. It appears that the suit arose out of a petition for the grant of letters of administration, and the learned Judge made an order for the issue of a succession certificate in respect of a part of the estate.

2. That order was made with the consent of the parties to the suit.

3. The Secretary of State applies to set aside that order because no notice of the filing of the cause was received by him and no opportunity to appear was afforded to him,

4. In the petition it is contended that notice ought to have been given to the Secretary of State and that the order is wrong because: (1) Section 2, Succession Act, 1929, does not empower this Court to grant succession certificates; and (2) the proper procedure was not adopted.

5. It is argued that the Secretary of State is a proper, if not a necessary, party under Order 1, Rule 10, Civil P.C., and that as the order made by Buckland, J., was not drawn up, this is a stage in the proceedings; and that the Advocate-General is entitled to appear in any case as of right, or as amicus curiae.

6. Counsel appearing for the parties to the suit opposed this application; as the matter is of considerable public importance I heard the parties on the merits.

7. In my opinion it is unnecessary to consider the position of the Advocate-General, as I think the Secretary of State should be added as a party under Order 1, Rule 10. As the order has not been drawn up, this is a stage in the proceedings and I think the Secretary of State is a proper party; but in my opinion he can only be heard on the question as to the jurisdiction of this Court to grant a succession certificate and not as to the validity of the order allowing the amendment of the suit. The Court can impose terms on a person who seeks to be added as a party to a suit, and in this case the Secretary of State had no interest in the suit until the order of amendment was passed, and the question as to its validity is not one of public importance, and in my opinion the Court can allow a party to be added on the condition that he can only intervene at a particular stage in the suit and cannot question an order or orders passed before he applied to the Court.

8. This is not in my opinion a review of the order made by the learned Judge, but the position is that the proceedings are not concluded and Order 1, Rule 10 applies, and though, when that is possible, any application under that rule should be made to the Judge who heard the suit, in his absence another Judge can entertain it.

9. On the merits the argument advanced was that under the former law a High Court had no jurisdiction to grant a succession certificate and that the Succession Act of 1925 was a consolidating Act and did not change the law, and therefore an Act amending that Act did not change the law.

10. The Succession Act of 1925 contained no definition of the words 'District Judge' and accordingly the definition in the General Clauses Act applied. Under the proviso to that definition a Judge of a High Court is excluded from it., This caused some difficulty as the Act of 1925, according to that definition, did not give a Judge of a High Court jurisdiction to grant probate or letters of administration.

11. It is argued that in order to meat this difficulty the Act of 1929 was passed. That Act defined the words 'District Judge' as they had bean defined in the General Clauses Act, but omitted the proviso.

12. It is contended that it cannot have been the intention of the legislature by that amending Act, or, at all, to give a High Court power to grant a succession certificate.

13. It is not suggested that the definition does not include a Judge of a High Court; for as regards certain sections of the Succession Act of 1925, it was obviously intended that the words ' District Judge' should include a Judge of a High Court. The Court is invited to hold that although the term 'District Judge 'includes a Judge of the High Court when it is used in all other sections of the Succession Act, it excludes a Judge of the High Court when it is used in the sections relating to succession certificates. There is nothing in these sections to indicate that the definition in the amending Act was not intended to apply to them.

14. The words used are plain and un-ambiguous and read in their ordinary meaning give a High Court jurisdiction to grant succession certificates.

15. The presumption that the legislature did not intend to alter the law by an Act described as a consolidatory Act, cannot override the plain meaning of the words used: Gilbert v. Gilbert [1928] P. 1.

16. In my opinion to accede to the argument in this case would be to amend and not to construe the Act, and however strongly a Court may feel that the legislature has overlooked a necessary provision or however obvious it may be that a provision has been inserted or omitted owing to the blunder of the draftsman, a Court is not at liberty to make laws or amend them : see per Lorebourne, L.C., in Bristol Guardians v. Bristol Waterworks Co. [l914] A.C. 379.

17. The result of accepting the ordinary meaning of the words used does not involve 'any absurdity or nullify the whole object of the Act: see Salmon v. Duncombe [1886] 11 A.C. 627. A Bench of the Madras High Court came to the same conclusion but without giving any reasons : sea In re Kuppuswami Nayagar A.I.R. 1930 Mad. 779.

18. In my opinion the Succession Act of 1925 read with the amending Act of 1929 gives a High Court power to grant succession certificates. The order of the learned Judge will stand. The Secretary of State must pay the costs, on the footing that he appeared in a contested application for the issue of a succession certificate.


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