Madras High Court
Minila Rani(Died) vs Pamila Rani on 26 November, 2014
Author: M.Duraiswamy
Bench: M.Duraiswamy
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 26.11.2014 CORAM THE HONOURABLE MR.JUSTICE M.DURAISWAMY C.R.P.(MD)(NPD).No.1172 of 2011 and M.P.(MD)No.1 of 2011 1. Minila Rani(died) 2. M.S.Pragalatha Rao 3. P.S.Sharmila 4. P.Sathish 5. P.Sabitha (Petitioners 2 to 4\5 are brought on record as L.Rs of the deceased sole petitioner vide order dated 18.08.2014 made in M.P.(MD)Nos.1to3 of 2014) ...Petitioners/Respondent/ Defendant Vs. 1. Pamila Rani 2. Nirmala Rani 3. A.Sampath Raj 4. A.Xavier Chander 5. A.L.Jerald Shantha Rajan ... Respondents/Petitioners/ Plaintiffs Prayer: Civil Revision Petition has been filed under Article 227 of Constitution of India to set aside the decree and judgment passed in O.S.No.3294 of 2004 dated 28.01.2011 on the file of the First Additional District Munsif Court at Tiruchirappalli. !For Petitioners : Mr.K.Vamanan ^For Respondents : Mr.A.Arumugam for M/s Ajmal Associates :ORDER
Orders Reserved On: 24.11.2014 Orders Pronounced On:26.11.2014 The defendant in O.S.No.3294 of 2004, on the file of the I Additional District Munsif Court, Trichirappalli has filed the above Civil Revision Petition to set aside the judgment and decree passed in the suit. The defendant/revision petitioner died during the pendency of the Civil Revision Petition and her legal representatives were brought on record as petitioners 2 to 5.
2. Heard the learned Counsel for the petitioners and the learned Counsel for the respondents.
3. The respondents filed O.P.No.177 of 1985 before the District Court, Trichirappalli under Section 372 of the Indian Succession Act, 1925 to grant probate of the will of the deceased Nambikai Mary Ammal dated 16.05.1977 executed in their favour. According to the respondents, the suit properties were originally purchased by one Nambikai Mary Ammal, who died on 23.12.1982 at Tiruchirappalli. While she was in sound disposing state of mind, she executed a will dated 16.05.1977 which was duly executed and registered. As per the will, the respondents alone were given the rights in the suit properties. The revision petitioner disputed the will executed in favour of the respondents as false. The revision petitioners also disputed the genuineness, attestation and registration of the will. Further they have stated that the said Nambikai Mary Ammal executed her last will and testament on 16.11.1982 bequeathing all her properties in favour of the second defendant. Therefore, according to the defendants earlier will dated 16.05.1977 was automatically cancelled because of the execution of the subsequent will dated 16.11.1982.
4. Since the defendants contested the probation O.P., the O.P. was converted into a suit and renumbered as C.S.No.3 of 1987 on the file of the District Court, Tiruchirappalli. The total market value of the suit properties was mentioned as Rs.84,695/-. Subsequently, when the pecuniary jurisdiction of the Subordinate Court was enhanced, the District Court erroneously transferred the suit filed under Section 372 of the Indian Succession Act to the file of the Subordinate Court, Trichirappalli and the suit was renumbered as O.S.No.481 of 1996, on the file of the Subordinate Court, Trichirappalli. Thereafter, adding salt to the wound, the Subordinate Court transferred the suit to the file of the I Additional District Munsif, Trichirappalli, when the pecuniary jurisdiction of the District Munsif Court was enhanced.
5. Before the I Additional District Munsif, the suit was renumbered as O.S.No.3294 of 2004 and the I Additional District Munsif, Trichirappalli conducted the trial and by its judgment dated 28.01.2011 found that Ex.A.1 will dated 16.05.1977 as true and genuine and probated the will. Aggrieved over the judgment and decree passed by the I Additional District Munsif, Trichirappalli, the defendants have filed the above Civil Revision Petition stating that the District Munsif has no jurisdiction to try the O.P. filed under Section 372 of the Indian Succession Act for probating the will dated 16.05.1977.
6. It is the settled position that only the District Court shall have the jurisdiction to decide the petitions filed for probating the will. In the case on hand, the plaintiffs have rightly filed the original petition before the District Court, Trichirappalli. But the District Court, Trichirappalli committed an error by transferring the suit to the file of the Subordinate Court. In turn, the Subordinate Court also committed an error by transferring the suit to the file of the I Additional District Munsif Court, Trichirappalli. When under the Indian Succession Act, the probate O.Ps can be filed only before the District Court, transferring the suit to the file of the District Munsif Court would clearly establish the non application of mind by the District Judge and the Subordinate Judge. The District Munsif also, without going into the provisions of the Indian Succession Act, went on to decide the matter and pronounce the judgment probating the will dated 16.05.1977.
7. The learned Counsel for the revision petitioners/defendants submitted that since the I Additional District Munsif has no jurisdiction to try the petitions filed under Section 372 of the Indian Succession Act, the judgment and decree passed by the I Additional District Munsif are liable to be set aside.
8. Under Section 264 of the Indian Succession Act, only the District Judge shall have the jurisdiction in granting and revoking the probates and letters of administration in all cases within his District. However under Section 265 of the the Indian Succession Act, the High Court can delegate the power with regard to grant of probate to the Subordinate Court. But the District Munsif does not have any jurisdiction to entertain the probate proceedings and to grant probate in respect of a will.
9. Under Section 286 of the Indian Succession Act, the Subordinate Court cannot be delegated with the power of grant of probate when there is a contest between the parties. Admittedly in the case on hand there was a contest by the defendants for the grant of probate. When admittedly the will was executed by a Christian, under Section 213 of the Indian Succession Act, the will need not be probated.
10. The learned Counsel appearing for the petitioners in support of his contention relied upon the following judgment:
In P.J.Francis Vs. P.J.Verghese and Others reported in 1956 Madras 680, wherein the Division Bench of this Court held that once a contest is raised with regard to an application for letters of administration, the duty of the Subordinate Judge was to have returned it for presentation to the proper Court on the ground that he had no jurisdiction.
11. Countering the submissions made by the learned Counsel for the petitioners, the learned Counsel for the respondents submitted that though the District Munsif has no jurisdiction to decide the matter relating to probate, the judgment delivered by the District Munsif is a "judgment in rem"
and therefore, the same need not be set aside. Further the learned Counsel submitted that in the event of this Court coming to the conclusion that the District Munsif has no jurisdiction to decide the probate proceedings, the oral and documentary evidences let in by the parties before the I Additional District Munsif may be kept in tact and based on the available oral and documentary evidences, the District Judge may be directed to dispose of the matter.
12. In support of his contention, the learned Counsel relied upon the following judgments:
(i) In Pasupuleti Venkateswarlu Vs. The Motor & General Traders reported in AIR 1975 Supreme Court 1409, the Honourable Apex Court held that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceedings provided the rules of fairness to both sides scrupulously obeyed.
(ii) In Kalarikkal Thressiamma and another Vs. Kallidukkananikkal Joseph and Others reported in AIR 1998 Kerala 160, wherein the Kerala High Court held that under Section 213(2) of the Indian Succession Act, there is no need for the Christian to get the will probated. However the Kerala High Court held that the Court cannot refuse to grant probate on the ground that it was not necessary.
(iii) In Rameshwar and Others Vs. Jot Ram and Others reported in AIR 1976 Supreme Court 49, the Honourable Supreme Court held as follows:
"It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suit or institutes the legal proceedings. This is an emphatic statement that the right of a party is determined by the facts as they exist on the date the action is instituted. Granting the presence of such facts, then he is entitled to its enforcement. Later developments cannot defeat his right. The Court's procedural delays cannot deprive him of legal justice or rights crystallised in the initial cause of action."
13. There is no dispute or quarrel regarding the ratios laid down in the judgments relied upon by the learned Counsel for the petitioners and the respondents. But when under Section 264 of the Indian Succession Act, the jurisdiction for filing the probate proceedings lies only on the District Court, the District Munsif should not have entertained the proceedings and decided the same. Merely because the District Munsif had decided the matter on merits and therefore, it is a "judgment in rem" cannot be accepted for the reason that the decision rendered by the District Munsif is without jurisdiction and against the provisions of the Indian Succession Act. The District Munsif should have returned the papers to the District Court for adjudication. On a perusal of the materials available on record, it is also evident that even the parties have not raised any objection with regard to the jurisdiction of the District Munsif.
14. The submission of the learned Counsel appearing for the respondents that when the District Munsif is deciding the issues with regard to the proof of will in the civil suits, the present judgment rendered by him probating the will cannot be said to be an erroneous judgment cannot stand for the reason that in a civil suit, the civil Court can decide the issue with regard to the proof of will under Section 68 of the Indian Evidence Act. There is no specific provision under any act that for proving the will, only a particular Court shall have the jurisdiction. On the contrary for filing a probate proceedings, a specific provision is contemplated under the Indian Succession Act. Therefore, giving a finding with regard to proof of will in a civil suit is different from deciding the truth and genuineness of the will under a probate proceedings. Therefore, the contention raised by the learned Counsel for the respondents is liable to be rejected. Accordingly, the same is rejected.
15. With regard to the next contention raised by the learned Counsel for the respondents that based on the available oral and documentary evidences, the District Court may be directed to dispose of the probate proceedings is concerned, the said contention also cannot be allowed to stand for the reason that when the District Court alone has got jurisdiction to try the proceedings, recording of evidence by the District Munsif, Trichirappalli cannot be relied upon for deciding the matter by the District Court, Trichirappalli. The parties have to let in fresh evidence before the District Court for proving and disproving the will. However any contradiction made by the parties from the evidence let in before the District Munsif can also be highlighted at the time of trial Court before the District Court.
16. In these circumstances I am of the considered view that the judgment and decree passed in O.S.No.3294 of 2004, on the file of the I Additional District Munsif Court, Trichirappalli are liable to be set aside. Accordingly, the same are set aside. The matter is remanded to the Principal District Court, Trichirappalli for fresh disposal on merits and in accordance with law. On receipt of the papers, the Principal District Judge, Trichirappalli, shall issue notices to both sides and decide the matter afresh after trial. The parties are at liberty to let in oral and documentary evidences before the District Court, Trichirappalli. The parties are also at liberty to put question to the witnesses, in case, if there is any contradiction between the evidence to be let in before the District Court and the evidence let in before the District Munsif Court. The District Court, Trichirappalli is directed to dispose of the matter on merits and in accordance with law within a period of six months from the date of receipt of a copy of this order.
16. With these observations, the Civil Revision Petition is allowed. Consequently, the connected Miscellaneous Petition is closed. There shall be no order as to costs.
.......11.2014 Index :Yes/No Internet :Yes/No ssl To
1. The Principal District Court, Trichirappalli.
2. The Subordinate Court, Trichirappalli.
3. The I Additional District Munsif Court, Trichirappalli.
M.DURAISWAMY,J.
ssl Pre-delivery order made in C.R.P.(MD)(NPD).No.1172 of 2011 and M.P.(MD)No.1 of 2011 ......11.2014