Punjab-Haryana High Court
Joginder Singh And Others vs Balwinder Kaur And Others on 11 January, 2012
Author: L. N. Mittal
Bench: L. N. Mittal
Probate Petition No. 6 of 2008 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : Probate Petition No. 6 of 2008 (O&M)
Date of Decision : January 11, 2012
Joginder Singh and others .... Petitioners
Vs.
Balwinder Kaur and others .... Respondents
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
* * *
Present : Mr. G. S. Jaswal, Advocate
for the petitioners.
Mr. K. S. Dhillon, Advocate
for respondents no.1 to 5.
Mr. R. S. Manhas, Advocate
for respondents no.9 and 10.
* * *
L. N. MITTAL, J. (Oral) :
C. M. No. 22936-C-II of 2010 :
This is application by respondents no.1 to 5 under Order 7 Rule 10 of the Code of Civil Procedure (in short - CPC) for return of the main petition for presentation before District Judge, Jalandhar or for transfer of the main petition to District Judge, Jalandhar. Probate Petition No. 6 of 2008 (O&M) 2
Petitioners have filed petition under Sections 276 and 278 of the Indian Succession Act, 1925 (in short - the Act) for grant of probate/letter of administration of the alleged Will left by Naranjan Singh Dhanoa (since deceased).
Respondents no.1 to 5 in their application have alleged that the petition for probate/letter of administration should have been instituted in the court of District Judge concerned, and therefore, the main petition is required to be returned for presentation before the concerned District Judge or is required to be transferred to the concerned District Judge.
Petitioners, in their reply, have opposed the application. It has been pleaded that substantial evidence of the petitioners has already been recorded and therefore, it would not be appropriate to return the main petition at this stage. It was also pleaded that under Section 300 of the Act, this Court has concurrent jurisdiction with District Judge to adjudicate upon the main petition.
I have heard learned counsel for the parties and perused the case file.
Learned counsel for the applicants contended that this Court in an unreported judgment dated 21.07.2010 passed in Probate Petition No. 2 of 2010 titled Veena Kang vs. General Public and others has held that probate petition should be instituted in the court of concerned District Judge Probate Petition No. 6 of 2008 (O&M) 3 being court of lowest grade competent to try it, notwithstanding that this Court also has concurrent jurisdiction under Section 300 of the Act to try the main petition.
Counsel for the petitioners, relying on Division Bench judgment of Madras High Court in the case of M. Suresh vs. Mrs. B. Sumathi and another reported as AIR 2008 Madras 18 and referring to Section 300 of the Act, contended that since this Court has concurrent jurisdiction, the petition is not required to be returned for presentation before concerned District Judge. It was also contended that substantial evidence of the petitioners has already been recorded, and therefore, it would not be appropriate to return the petition at this stage for presentation before District Judge.
Counsel for respondents no.1 to 5, relying on an unreported judgment dated 25.08.2010 of this Court passed in Probate Petition No.3 of 2007 titled Pushpawati J. N. Sharma Charitable Trust (Regd.) vs. The General Public and others, contended that the main petition be transferred to the concerned District Judge for proceeding further from the same stage, at which it is pending in this Court.
I have carefully considered the rival contentions. In view of Section 300 of the Act, it is manifest that this Court has concurrent jurisdiction along with District Judge concerned to try the Probate Petition No. 6 of 2008 (O&M) 4 main petition. However, Section 15 CPC specifically postulates that every suit shall be instituted in the Court of the lowest grade competent to try it. In view of this provision, the probate petition should have been instituted in the first instance in the court of concerned District Judge, who has concurrent jurisdiction to try the same. It is also worth mentioning that if the probate petition is tried by the District Judge, aggrieved party would have a right to file appeal in this Court in view of Section 299 of the Act. Consequently, the main petition is required to be adjudicated upon by the concerned District Judge.
As regards contention that substantial evidence of the petitioners has already been recorded, the grievance can be redressed by transferring the petition to the concerned District Judge, with direction to proceed from the same stage, at which it is pending in this Court, instead of ordering return of the petition. Respondents no.1 to 5, in their application, have also made alternative prayer for transferring of the main petition to the concerned District Judge.
In view of the aforesaid, the instant application is allowed and main petition i.e. Probate Petition No. 6 of 2008 is transferred to District Judge, Jalandhar for disposal in accordance with law from the present stage, at which it is pending in this Court.
Main Case :
Probate Petition No. 6 of 2008 (O&M) 5
Registry is directed to send the complete record of the case to District Judge, Jalandhar. Parties are directed to appear there on 10.02.2012.
January 11, 2012 ( L. N. MITTAL ) monika JUDGE