1. In this case a preliminary point has been taken as to whether the High Court has jurisdiction under the provisions of the Probate and Administration Act to grant probate, unless a portion of the assets are situate within the limits of the Original Jurisdiction of this Court.
2. The sections of the Probate and Administration Act that are material are, first, Section 2, which provides that 'no Court in any local area beyond the limits of the town of Calcutta, Madras and Bombay, etc., and no 'High Court, in exercise of the concurrent jurisdiction over such local area hereby conferred, shall receive applications for probate or letters of administration until the Local Government has, with the previous sanction of the Governor-General in Council, by a Notification in the Official Gazette, authorized it so to do'. The notification referred to has been published in the Calcutta Gazette in 1881, by which this Court (that is the High Court of Calcutta) has jurisdiction to receive applications for probate and letters of administration throughout the territories subject to the Lieutenant Governor of Bengal.
3. The next section necessary to call attention to is Section 51. Section 51 defines the jurisdiction of a District Judge for granting probate, and the terms of that section are extremely general: and it says that the District Judge shall have jurisdiction in granting and revoking probates and letters of administration in all cases within his district.' Apparently nothing is said here as to what the cases within his district are meant to be. Then Section 56 defines the cases where probate and letters of administration may be granted by the District Judge, and the cases are where the testator had at the time of his death a fixed place of abode or any movable or immovable property within the jurisdiction of the Judge.
4. Then comes Section 87, which provides that the High Court shall have concurrent jurisdiction with the District Judge in the exercise of all the powers hereby conferred upon the District Judge'. Now the power conferred upon the District Judge is to have jurisdiction in all cases in his district, and under the general notification it is obvious that the High Court has jurisdiction in all cases in all districts of the District Judges. I think, from Sections 2, 51 and 87, it is clear that the' High Court has jurisdiction in all districts. That being so, so long as the petition could have been presented to any one District Court in one of the two Provinces of Bengal, this Court has, in my opinion, power to grant probate or letters of administration.
5. The next point taken by Mr. Pugh is that the High Court meant here is the High Court exercising its Appellate Jurisdiction. That point has been disposed of by Mr. Justice Sale in the case of In the Goods of Mohendra Narain Roy 5 C.W.N. 377. It is sufficient form to say that I agree with him that the 'High Court' mentioned in Section 87 is not menely confined to the Appellate Jurisdiction of this Court, bat includes its Original Jurisdiction. The word 'concurrent' could mean nothing if it applied to the Appellate Jurisdiction. In my opinion, the High Court has jurisdiction to grant probate or letters of administration on the Original Side in any case which could have been brought before any District Judge in either of the two Provinces of Bengal.
6. The next point is as to the meaning of Rule 740 of this Court. It appears that this Rule came from archaic times:' 'originally it was one of the Rules framed under the Chaiter of George III. That Rule has apparently never been altered. In those days the Supreme Court had power to grant probate or letters of administration if the testator or the intestate, if a European British subject, died within the limits of Bengal, Behar or Orissa, and also jurisdiction in the case of a person not a European British subject, if there was property within the limits of the Original Jurisdiction of the Supreme Court. That Rule seems to have been continued; but the question is whether, unless the petitioner proves there is property within jurisdiction, that Rule is binding and overrides the provisions of the Probate and Administration Act giving the High Court concurrent jurisdiction in all cases. Section 87 does not require that any portion of the property should be within the limits of the Original Jurisdiction. I think these Rules cannot override the express provisions of Section 87 giving the High Court concurrent jurisdiction. It is apparent that that Rule refers to application for probate in common form of a written and perfect Will, etc., to be made by petition' etc. It means a petition in the common form of probate, where use is made of the common allegations in the petition which is adopted as a matter of practice.
7. That Rule, in my opinion, does not override the practice of the High Court; I think, therefore, the contention of Mr. Banerjee is well-founded, and hold that this Court has power to grant probate.