Gujarat High Court
Tusharbhai Natwarlal Patel vs Rakshit Natwarlal Patel on 24 July, 2015
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
O/OJCA/371/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (OJ) NO. 371 of 2015
In TESTAMENTARY PETITION NO. 1 of 2014
With
CIVIL APPLICATION (OJ) NO. 669 of 2014
In
TESTAMENTARY PETITION NO. 1 of 2014
With
TESTAMENTARY PETITION NO. 1 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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TUSHARBHAI NATWARLAL PATEL....Applicant(s)
Versus
RAKSHIT NATWARLAL PATEL....Respondent(s)
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Appearance:
MR MEHUL S SHAH, WITH MR RUSHABH R SHAH, ADVOCATE for the
Applicant(s) No. 1
MR.V.S.DESAI WITH MR VINAYAK R RAVAL, ADVOCATE for the
Respondent(s) No. 1
Page 1 of 81
O/OJCA/371/2015 CAV JUDGMENT
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 24/07/2015
CAV JUDGMENT
1. Rule. Learned advocate Mr.Vinayak R Raval waives service of notice of rule for respondent.
2. OJ CA No.669 of2014 has been filed by the original petitioner with a prayer that opposition made by the objector may be discharged/discarded whereas OJ CA 371 of 2015 has been filed by the objector with a prayer that Testamentary Petition No.1 of 2014 be dismissed for want of jurisdiction of this Court and this Court may decide the issue of jurisdiction as preliminary issue in Testamentary petition No.1 of 2014.
3. The issue raised in both the aforesaid applications are interconnected and, therefore, the same are taken up for hearing together.
4.1. That the original petitioner-Rakshit Natwarlal Patel has filed Testamentary Petition No.1 of 2014 invoking testamentary jurisdiction qua concurrent jurisdiction of this Court under Page 2 of 81 O/OJCA/371/2015 CAV JUDGMENT Section 300(1) and Section 57(c) of the Indian Succession Act, 1925. In the said petition, the petitioner has stated that Shri Natwarlal @ Natubhai Mathurbhai Patel (hereinafter referred to as the `testator') executed, admitted to have executed, got registered his 'Will'. Execution of the said 'Will' is attested by three witnesses. It is also registered in the office of Sub- Registrar, Vadodara on 5.12.2012. By way of the said 'Will', testator appointed the petitioner as the Executor of, over, with respect to all his property qua the testamentary estate. The schedule particularly of the immovable property situate within the district of Vadodara and Bharuch. The title deeds stated therein are the testator's respective legal titles thereof. The petitioner is having original copy of the 'Will'. The Sub-Registrar issued certified copy thereof. The same is annexed with the testamentary petition. It is the case of the petitioner that testator died testate at Vadodara on 10.1.2013. Therefore, the 'Will' became effective forthwith i.e. from 10.1.2013 under the provisions of Section 2(h) of the Indian Succession Act. Thus, the Executor-the petitioner is having representative title for all the property qua the testamentary estate of the testator. It is the case of the petitioner that the testator has, by way of the said 'Will', appointed the petitioner Page 3 of 81 O/OJCA/371/2015 CAV JUDGMENT the sole, universal, residuary, legatee devising and bequeathing to him all the testamentary estate thereunder. The petitioner qua the executor assents to his own legacy completing his "ownership title" thereof from 10.1.2013 under Sections 332, 335(1) and 336 of the Indian Succession Act. The 'Will' is his legal "title deed" of the testamentary estate thereunder. The petitioner has shown his other surviving near relatives of the testators in paragraph 8 of the petition namely testator's elder bachelor son, testator's pre-deceased daughter Geeta's married daughter and testator's pre-deceased daughter Geeta's bachelor son. The petitioner, therefore, prayed in the petition that this Court may grant him the probate of the 'Will' annexed at Annexure `A' with the petition.
4.2. This Court passed an order on 20.3.2014 whereby the Testamentary Petition is admitted and the citation was sent to the three near relatives of the testator whose details are given in the petition. The citation was also published on the notice board of this Court, District Court, Vadodara, District Court, Bharuch, Collector Office, Vadodara and Collector Office, Bharuch. It was also published in the official gazette.
4.3. In pursuance to the citation issued by Page 4 of 81 O/OJCA/371/2015 CAV JUDGMENT this Court in the Testamentary Petition, the testator's elder bachelor son namely Tushar Natwarlal Patel (brother of the petitioner) appeared before this Court and has filed written statement/objections against the grant of probate in favour of the petitioner. In the said objection mainly, the objector has stated that the 'Will' produced at Annexure `A' seems to be not a genuine 'Will' and for such averment he has relied upon certain revenue entries and the revenue proceedings. The objector has specifically taken the contention in the objection that present petition is not maintainable and for the grant of probate of 'Will', the powers are vested with the District Court and, therefore, the present petition is required to be dismissed.
4.4. The petitioner has filed the affidavit- in-rejoinder to the objection raised by the objector. At that stage, the petition is pending for hearing.
4.5. In the meantime, the original petitioner has preferred OJ CA No.669 of 2014 in which it is stated that this Court is having concurrent jurisdiction, objector has no right to contest the petition, he has no caveatable interest, caveat is not filed by the objector and there is Page 5 of 81 O/OJCA/371/2015 CAV JUDGMENT no contentious case and, therefore, the objections raised by the objector are required to be discharged/discarded.
4.6. During the pendency of OJ CA 669 of 2014, the objector has filed OJ CA 371 of 2015 with a prayer that the testamentary petition filed by the petitioner be dismissed for want of jurisdiction and the issue of jurisdiction be decided as preliminary issue.
5. Heard learned advocate Mr.V.S.Desai with learned advocate Mr.Vinayak R Raval for the original petitioner and learned advocate Mr.Mehul S Shah with learned advocate Mr.Rushabh R Shah for the objector.
5.1. Learned advocate Mr.Desai referred to the Preamble of the Indian Succession Act of 1925 which provides that An Act provides for `an Act to consolidate the law applicable to intestate and testamentary succession.' Learned advocate Mr.Desai thereafter referred to the Preamble of the Hindu Succession Act of 1956 which provides for "An Act to amend and codify the law relating to intestate succession among the Hindus." Learned advocate thereafter referred to Section 3(f) of the Hindu Succession Act which provides the definition of the word 'heir'. It says that Page 6 of 81 O/OJCA/371/2015 CAV JUDGMENT `heir' means any person, male or female, who is entitled to succeed to the property of an intestate under this Act.
5.2. He further referred to Section 3(g) of the Hindu Succession Act which provides the definition of `intestate'. It says that `intestate' means a person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect.
5.3. Referring to the aforesaid provisions of two different Acts, learned advocate submitted that Hindu Succession Act is applicable where a Hindu died intestate whereas Indian Succession Act is law regulating succession of deceased person's immovable and movable property. In the present case, testator died after making 'Will' which is duly executed by testator attested by three witnesses and registered with the office of Sub-Registrar, Vadodara. The objector cannot be termed as a heir of testator and, therefore, the objector cannot raise any objection.
5.4. Learned advocate Mr.Desai referred to Entry No.5 and 11(A) of list III to Schedule 7 of Constitution of India. The word 'Will' is mentioned in entry no.5 in the aforesaid list.
Page 7 of 81 O/OJCA/371/2015 CAV JUDGMENTHowever, the word 'Will' is not defined under the Constitution of India. Therefore, learned advocate has referred to Section 3(64) of the General Clauses Act, 1897 wherein it is stated that 'Will' shall include a codicil and every writing making a voluntary posthumous disposition of property. Thereafter, learned counsel referred to cause title of this testamentary petition and submitted that there is no respondent in such type of testamentary petition. The probate proceedings are unilateral proceedings and, therefore, when the present objector is not joined as a respondent and when he is not 'heir', the objection raised by the objector is required to be discarded.
5.5. Learned counsel further submitted that the testamentary petition is admitted by this Court by order dated 20.3.2014 and citations were issued to the concerned persons including the objector. However, except the objector, nobody has raised any objection. He submitted that the objector has not filed any caveat against the grant of probate under Section 284 of the Indian Succession Act. The form of caveat is prescribed in Schedule V of the Indian Succession Act. He, therefore, submitted that only the objector appeared before this Court without filing caveat. Learned counsel further referred to the provision Page 8 of 81 O/OJCA/371/2015 CAV JUDGMENT of Section 283 of Indian Succession Act which provides for the powers of the District Judge. Section 283(1) reads as under:
"283. Powers of District Judge - (1) In all cases the District judge or District Delegate may, if he thinks proper, -
(a) examine the petitioner in person, upon oath;
(b) require further evidence of the due execution of the Will or the right of the petitioner to the letters of administration, as the case may be;
(c) issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration."
5.6. Learned advocate has thereafter submitted that the citations can be issued calling upon the persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate. Thus, the objector to whom citation was issued by this Court has only right to come and see the proceedings and, therefore, he cannot participate in the proceedings by filing any objection unless he has filed a caveat or is having caveatable interest.
5.7. Learned counsel for the petitioner thereafter referred to the provisions of Section 285 and 286 and other provisions of the Indian Page 9 of 81 O/OJCA/371/2015 CAV JUDGMENT Succession Act and submitted that the probate is right-in-rem. He further submitted that there are no contentious issues in the present case. The objector has not taken any specific objection against the grant of probate in favour of the petitioner and it is only stated that the testator's `Will' seems to be not genuine. The objector has not denied the signature of the testator nor he has raised doubt against the registration of the `Will' which is registered before the Sub-Registrar's Office, Vadodara. Hence, the objector has no right to raise any objection against grant of probate in favour of the petitioner.
5.8. Learned advocate Mr.Desai further submitted that for filing an objection/to contest the petition as of right, the objector must show that he is having a ceveatable interest. The caveat should be in the statutory form, the Court's notice, if Court's thinks reasonable, to the caveator, the caveator's reply thereto and positive order of the Court thereon are the conditions precedent for making the objection a contentious case. The Court has no power to circumscribe and condone these conditions at the sweet will of the citee. Therefore, a contentious case is a condition precedent to get converted the objection into the suit to let him contest.
Page 10 of 81 O/OJCA/371/2015 CAV JUDGMENTLearned advocate Mr.Desai, therefore, submitted that from the objections raised by the objector to the testamentary petition, it cannot be said that the objector is having any caveatble interest and there is any contentious case. Therefore, the objection raised by the objector be discharged/discarded.
5.9. Learned advocate Mr.Desai has placed reliance on the decision rendered by the Hon'ble Privy Counsel in the case of Muhammad Husain Khan and others V/s Babu Kishva Nandan Sahai, reported in AIR 1937 PC 233, wherein the Hon'ble the Privy Counsel observed as under:
"There are, on the other hand, observations in a later judgment of the Board in 35 I A 206 which are pertinent here. It was stated in that judgment that unless the lands came "by descent from a lineal male ancestor in the male line, they are not deemed ancestral in Hindu law". This case, however, related to the property which came from male collaterals and not from maternal grandfather; and it was governed "by the custom of the Punjab", but it was not suggested that the custom differed from the Hindu law on the issue before their Lordships. The rule of Hindu law is well-settled that the property which a man inherits from any of his three immediate paternal ancestors, namely his father, father's father and father's father's father is ancestral property as regards his male issue, and his son Page 11 of 81 O/OJCA/371/2015 CAV JUDGMENT acquires jointly with him an interest in it by birth. Such property is held by him in coparcenary with his male issue, and the doctrine of survivorship applies to it. But the question raised by this appeal is whether the son acquires by birth an interest jointly with his father in the estate, which the latter inherits from his maternal grandfather. Now, Vijnanesvara, the author of Mitakshara, expressly limits such right by birth to an estate which is paternal or grand-paternal. It is true that Colebrooke's translation of the 27th sloka of the first section of the first chapter of Mitakshara, which deals with inheritance is as follows: "It is a settled point that property in the paternal or ancestral estate is by birth." But Cole-brooke apparently used the word `ancestral' to denote grand- paternal, and did not intend to mean that in the estate, which devolves upon a person from his male ancestor in the maternal line, his son acquires an interest by birth. The original text of the Mitakshara shows that the word used by Vijnanesvara, which has been translated by Colebrooke as `ancestral' is pitamaha which means belonging to pitamaha. Now, pitamaha ordinarily means father's father, and though it is sometimes used to include any paternal male ancestor of the father, it does not mean a maternal male ancestor.
Indeed, there are other passages in Mitakshara which show that it is the property of the paternal grandfather in which the son acquires by birth an interest jointly with, and equal to that of this father. For instance, in the 5th sloka of the fifth section of the first Page 12 of 81 O/OJCA/371/2015 CAV JUDGMENT chapter, it is laid down that in the property which was acquired by the paternal grandfather the ownership of father and son is notorious; and therefore partition does take place. For, or because the right is equal, or alike therefore partition is not restricted to be made by the father's choice, nor has he a double share."
5.10. Learned counsel Mr.Desai thereafter placed reliance on the decision rendered by the Hon'ble Supreme Court in the case of Chiranjilal Shrilal Goenka (deceased) through Lrs. V/s Jasjit Singh and others, reported in (1993)2 SCC 507. Paragraphs 16 and 20 of the said decision read as under:
"16. The grant of a probate by court of competent jurisdiction is in the nature of a proceeding in rem. So long as the order remains in force it is conclusive as to the due execution and validity of the will unless it is duly revoked as per law. It binds not only upon all the parties made before the court but also upon all other persons in all proceedings arising out of the will or claims under or connected therewith. The decision of the probate court, therefore, is the judgment in rem. The probate granted by the competent court is conclusive of the validity of the will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate. In Sheoparsan Singh V. Ramnandan Prasad Narayan Singh the Judicial Committee was to consider Page 13 of 81 O/OJCA/371/2015 CAV JUDGMENT whether the will which had been affirmed by a court of competent jurisdiction, would not be impugned in a court exercising original jurisdiction (civil court) in suit to declare the grant of probate illegal etc. The Privy Council held that the civil court has no jurisdiction to impugn the grant of probate by the court of competent jurisdiction. In that case the subordinate court of Muzafarbad was held to have had no jurisdiction to question the validity of the probate granted by the Calcutta High Court. In Narbheram Jivram Purohit V.Jevallabh Harjivan probate was granted by the High Court exercising probate jurisdiction. A civil suit on the original side was filed seeking apart from questioning the probate, also other reliefs. The High Court held that when a probate was granted, it operates upon the whole estate and establishes the will from the death of the testator. Probate is conclusive evidence not only of the factum, but also of the validity of the will and after the probate has been granted, it is incumbent of a person who wants to have the will declared null and void, to have the probate revoked before proceeding further. That could be done only before the probate court and not on the original side of the High Court.
When a request was made to transfer the suit to the probate court, the learned Judge declined to grant the relief and stayed the proceeding on the original side. Thus it is conclusive that the court of probate alone had jurisdiction and is competent to grant probate to the will annexed to the petition in the manner prescribed under the Succession Act. That court alone is competent to deal with the probate proceedings and to Page 14 of 81 O/OJCA/371/2015 CAV JUDGMENT grant or refuse probate of the annexed will. It should keep the original will in its custody. The probate thus granted is conclusive unless it is revoked. It is a judgment in rem."
20. On a conspectus of the above legal scenario we conclude that the probate court has been conferred with exclusive jurisdiction to grant probate of the will of the deceased annexed to the petition (suit); on grant or refusal thereof, it has to preserve the original will produced before it. The grant of probate is final subject to appeal, if any, or revocation if made in terms of the provisions of the Succession Act. It is a judgment in rem and conclusive and binds not only the parties but also the entire world. The award deprives the parties of statutory right of appeal provided under Section 299. Thus the necessary conclusion is that the probate court alone has exclusive jurisdiction and the civil court on original side or the arbitrator does not get jurisdiction, even if consented to by the parties, to adjudicate upon the proof or validity of the will propounded by the executrix, the applicant. It is already seen that the executrix was nominated expressly in the will and is a legal representative entitled to represent the estate of the deceased but the heirs cannot get any probate before the probate court. They are entitled only to resist the claim of the executrix of the execution and genuineness of the will. The grant of probate gives the executrix the right to represent the estate of the deceased, the subject-matter in other proceedings. We make it clear that out exposition of Page 15 of 81 O/OJCA/371/2015 CAV JUDGMENT law is only for the purpose of finding the jurisdiction of the arbitrator and not an expression of opinion on merits in the probate suit."
5.11. Learned counsel thereafter has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Krishna Kumar Birla V/s Rajendra Singh Lodha, reported in 2008(4) SCC 300, and more particularly, following paragraphs:
"2. What is a caveatable interest within the meaning of Succession Act, 1925 (1925 Act) vis-a-vis the Rules framed by the Calcutta High Court in the year 1940 is the question involved herein.
24. Provisions relating to grant of "Probate"
are contained in Chapter IV of the 1925 Act. Section 283 of the 1925 Act enumerates the powers of the District Judge. Section 283(1)
(c) of the 1925 Act confers power upon the District Judge to issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of "Probate" or "Letters of Administration". Sub-section (2) of Section 283 postulates that the citation shall be fixed up in some conspicuous part of the court-house, and also the other spaces as specified therein. Section 284 of 1925 Act provides for the lodging of caveats against grant of Probate or Letter of Administration with a copy of the Will annexed with a District Judge or a District Delegate.
25. The form in which caveat is entered has Page 16 of 81 O/OJCA/371/2015 CAV JUDGMENT been prescribed in Schedule V appended to the Act, which is to the following effect :-
"SCHEDULE V [ See section 284 (4) ] FORM OF CAVEAT Let nothing be done in the matter of the estate of A, B, late of ________ deceased, who died on the day of ____ at _____ without notice to C.D. of ___________"
26. The Calcutta High Court framed rules laying down the procedure for dealing with the applications filed before it in its testamentary and intestate jurisdiction.
27. It is contained in Chapter XXXV thereof. Rule 4 provides for "Application for probate or letters of administration, or a certificate". Rule 5(a) inserted in the year 1948 provides that in all applications for grant of Probate or Letters of Administration with the Will annexed, the names of the members of the family or other relatives upon whom the estate would have devolved in case of an intestacy together with their present place of residence shall be stated. Rule 24 provides for filing of caveat on the same terms as contained in Section 284 of the 1925 Act. Rule 25 provides for "Affidavit in support of the caveat" in the following terms :-
"25. Affidavit in support of caveat. - Where a caveat is entered after an application has been made for a grant of probate or letters of administration with or without the will annexed, the affidavit or affidavits in support shall be filed within eight days of the caveat being lodged, notwithstanding the long vacation. Such affidavit shall state the Page 17 of 81 O/OJCA/371/2015 CAV JUDGMENT right and interest of caveator, and the grounds of the objections to the application."
(emphasis added).
28. Rule 26 provides for "Notice to caveator to file affidavit". It reads as under:--
"26. Notice to caveator to file affidavit. - Where an application for grant of probate or letters of administration with or without the will annexed is presented after a caveat has been filed, the Registrar shall forthwith issue notice to the caveator, calling upon him to file his affidavit or affidavits in support of his caveat within eight days from the service of such notice."
29. Rule 27 provides for the "Consequence of not filing the affidavit". Rule 28 provides that upon the affidavit being filed in support of the caveat (Notice whereof shall immediately be given by the caveator to the petitioner), the proceedings shall, by order of the Judge upon application by summons be numbered as a suit in which the petitioner for probate or letters of administration shall be the plaintiff and the caveator shall be the defendant, the petition for probate or letters of administration being registered and deemed as a plaint filed against the caveator, and the affidavit filed by the caveator being treated as his written statement in the suit.
30. Rule 29 provides for service of "Notice to prove will in solemn form" in the following terms :-
Page 18 of 81 O/OJCA/371/2015 CAV JUDGMENT"29. Notice to prove will in solemn form, - The party opposing a will may, with his affidavit, give notice to the party setting up the will that he merely insists upon the will being proved in solemn form of law, and only intends to cross-examine the witnesses produced in support of the will, and he shall thereupon be at liberty to do so, and shall not, in any event, be liable to pay the costs of the other side, unless the Court shall be of opinion that there was no reasonable ground for opposing the will."
31. Rule 30 provides for "trial of preliminary issue" as under:
"30. Trial of preliminary issue - The Court may, on the application of the petitioner by summons to the caveator before making the order mentioned in Rule 28, direct the trial of an issue as to the caveator's interest. Whereupon the trial of such issue, if it appears that the caveator has no interest, the Court shall order the caveat to be discharged, and may order the issue of probate or letters of administration, as the case may be."
55. The 1925 Act is a self contained Code. An application for grant of probate is to be filed in terms of Sections 275 and 276 thereof. Particulars stated in the said provisions are to be furnished by the applicant. The petition for grant of probate is to be signed and verified. Citations in terms of Section 283 (1)(c) are to be issued calling upon all such persons who claim to have any interest in the estate of the deceased. Citations are issued in order to Page 19 of 81 O/OJCA/371/2015 CAV JUDGMENT enable such persons to see the proceedings before the grant of probate and if necessary to oppose the same.
56. Such persons to whom citations have been issued whether general or special, may file a caveat. All proceedings are required to be taken only upon service of notice to the caveator(s). Section 286 uses the word "contention" to mean appearance of any one in person, or by his recognized agent, or by a pleader duly appointed to act on his behalf, to oppose the proceeding. In the contentious cases the procedures which are required to be adopted are specified in Section 295. Only because neither in Section 284 nor Section 295 a caveator is required to show any interest in the estate of the deceased, whether the same would mean that anybody and everybody who intends to oppose the grant of probate would be entitled to lodge caveat, is the question.
57. The 1925 Act in this case has nothing to do with the law of inheritance or succession which is otherwise governed by statutory laws or the custom, as the case may be. It makes detailed provisions as to how and in what manner an application for grant of probate is to be filed, considered and granted or refused. Rights and obligations of the parties as also the executors and administrators appointed by the court are laid down therein. Removal of the existing executors and administrators and appointment of subsequent executors are within the exclusive domain of the court. The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the Will. A question of title arising under the Act cannot be gone into the (sic probate) proceedings. Construction of a Will relating to the right, title and Page 20 of 81 O/OJCA/371/2015 CAV JUDGMENT interest of any other person is beyond the domain of the Probate Court.
58. A person to whom a citation is to be issued or a caveator, must have some interest in the estate of the testator. Any person claiming any interest adverse to the testator or his estate cannot maintain any application before the Probate Court. His remedy would be elsewhere. The question with regard to the degree of interest or the right which a caveator must show to establish his or her caveatable interest before the Probate Court should be considered having regard to the aforementioned legal propositions.
67. In the recent judgment of Kanwarjit Singh Dhillon v. Hardayal Singh Dhillon, this court inter alia relying upon Chiranjilal Shrilal Goenka v. Jasjit Singh and upon referring to a catena of decisions of the High Court and this Court, held that Probate court does not decide any question of title or of the existence of the property itself.
82. The Madras High Court, we may notice, in a recent judgment in M.S.Saraswathi had a snapshot of a large number of decisions of various High Courts operating in the field including the decisions of the Calcutta, Bombay, Madras and Kerala High Court. It followed a Division Bench decision, N.Narasimhan, In re wherein it was held that Section 8 of the Hindu Succession Act would apply and the caveator being an heir alone could claim a share and his son and, thus, the applicant therein could not claim any share as he had no present interest in the property. It was emphasised that a caveator if he denied the testator's title was liable to be discharged.
Page 21 of 81 O/OJCA/371/2015 CAV JUDGMENT83. Real versus bare interest test was considered in each of the cases having regard to the fact situation obtaining therein.
Propositions of law
84. Section 283 of the 1925 Act confers a discretion upon the court to invite some persons to watch the proceedings. Who are they? They must have an interest in the estate of the deceased. Those who pray for joining the proceeding cannot do so despite saying that they had no interest in the estate of the deceased. They must be persons who have an interest in the estate left by the deceased. An interest may be a wide one but such an interest must not be one which would not (sic) have the effect of destroying the estate of the testator itself. Filing of a suit is contemplated inter alia in a case where a question relating to the succession of an estate arises.
85. We may, by way of example notice that a testator might have entered into an agreement of sale entitling the vendee to file a suit for specific performance of contract. On the basis thereof, however, a caveatable interest is not created, as such an agreement would be binding both on the executor, if the probate is granted, and on the heirs and legal representatives of the deceased, if the same is refused.
86. The propositions of law which in our considered view may be applied in a case of this nature are:
(i) To sustain a caveat, a caveatable interest must be shown.
(ii) The test required to be applied is:Page 22 of 81 O/OJCA/371/2015 CAV JUDGMENT
Does the claim of grant of probate prejudice his right because it defeats some other line of succession in terms whereof the caveator asserted his right?
(iii) It is a fundamental nature of a probate proceeding that whatever would be the interest of the testator, the same must be accepted and the rules laid down therein must be followed. The logical corollary whereof would be that any person questioning the existence of title in respect of the estate or capacity of the testator to dispose of the property by will on ground outside the law of succession would be a stranger to the probate proceeding inasmuch as none of such rights can effectively be adjudicated therein."
89. While determining the said question, the law governing the intestate succession must also be kept in mind. The right of the reversioner or even the doctrine of 'spes successonis' will have no application for determining the issue in a case of this nature.
94. A will is executed when the owner of a property forms an opinion that his/her estate should not devolve upon the existing heirs according to the law governing intestate succession. When, thus, a person who would have otherwise succeeded to the estate of the testator, would ordinarily have a caveatable interest, any other person must ordinarily show a special interest in the estate.
100. We are not oblivious of the fact that a judgment rendered in a probate proceeding is a judgment in rem. But, its application is limited. A judgment rendered in a probate proceeding would not be determinative of the Page 23 of 81 O/OJCA/371/2015 CAV JUDGMENT question of title. If a probate has been obtained by fraud or suppression of material fact, the same can be the subject matter of revocation of the grant in terms of Section 263 of the 1925 Act. [See Elizabeth Antony]. In Basanti Devi, it was held : (SCC P.275,para 24 (23)) "23. It is now well settled that an application for grant of probate is a proceeding in rem. A probate when granted not only binds all the parties before the Court but also binds all other persons in all proceedings arising out of the Will or claims under or connected therewith. Being a judgment in rem, a person, who is aggrieved thereby and having had no knowledge about the proceedings and proper citations having not been made, is entitled to file an application for revocation of probate on such grounds as may be available to him. We are, therefore, of the opinion that the application for revocation of the grant of probate should have been entertained."
109. It is in that backdrop the question which is required to be posed is: Did the Calcutta High Court or the other High Court opine that even a busy body or an interloper having no legitimate concern in the outcome of the probate proceedings would be entitled to lodge a caveat and oppose the probate? The answer thereto, in our opinion, must be rendered in the negative. If anybody and everybody including a busy body or an interloper is found to be entitled to enter a caveat and oppose grant of a probate, then Sections 283(1)(c) and 284 of the 1925 Act would have been differently worded. Such an Page 24 of 81 O/OJCA/371/2015 CAV JUDGMENT interpretation would lead to an anomalous situation. It is, therefore, not possible for us to accede to the submission of the learned counsel that caveatable interest should be construed very widely.
110. A caveatable interest is not synonymous with the word `contention'. A 'contention' can be raised only by a person who has a caveatable interest. The dictionary meaning of 'contention', therefore, in the aforementioned context cannot have any application in a proceeding under the 1925 Act.
111. While interpreting the provisions of a statute, we must also bear in mind the admitted legal position that a probate proceeding should not be permitted to be converted into a title suit. It should not be permitted to become an unchartered field to be trespassed into by persons even if he is not affected by testamentary disposition.
SECTION 284 OF THE ACT
112. Section 284 of the 1925 Act may have to be construed keeping in view the aforementioned legal principles. It does not lay down the qualifications or disqualifications of the caveator. Once a caveat is filed, it is for the court to determine the question as to whether the caveator has any caveatable interest or not.
The Rules of the Calcutta High Court:
115. The Rules framed by the Calcutta High Court provide for determination of the issue of caveatable interest as a preliminary Page 25 of 81 O/OJCA/371/2015 CAV JUDGMENT issue. We do not see any reason as to why the High Court, in exercise of its powers conferred upon it under Section 122 of the Code of Civil Procedure, could not frame such Rules. After coming into force of the Constitution such Rules can also be framed by the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.
116. If the contention of Mr. Jethmalani is to be accepted that there being no such provision in the Act for determination of such an issue as preliminary issue, the High Court could not have framed the Rules, we are of the opinion that in a similar situation this Court also could not direct listing of the writ petitions under Article 32 of the Constitution of India for preliminary hearing in terms of the Supreme Court Rules. The Court having regard to its general power as also the power under Order XIV Rule 1 of the Code of Civil Procedure can decide the matter by framing preliminary issues in regard to the maintainability or otherwise of the application. It is a rule of procedure and not of substance. A court is entitled to dismiss a lis at the threshold if it is found not maintainable. The Court even in absence of any rule must take the precaution of not indulging in wasteful expenditure of its time at the instance of the litigants who have no case at all. We do not, therefore, find any legal infirmity in the Rules.
187. The Submission that RSL is an outsider and the bequest is un-natural does not appeal to us. Such a question cannot be determined at this stage. Why an owner of the property executes a Will in favour of another is a matter of his/her choice. One may by a Will deprive his close family members including his sons and daughters. She had a right to do Page 26 of 81 O/OJCA/371/2015 CAV JUDGMENT so. The court is concerned with the genuineness of the Will. If it is found to be valid, any further question as to why did she do so would be completely out of its domain.
A Will may be executed even for the benefit of others including animals. Various documents have been placed before us by the learned counsel appearing on behalf of the first respondent to show that MPB was not happy in regard to management of Birlas' Group of Companies and by the division thereof which took place after the demise of G.D. Birla in 1983.
197. Probate proceeding of RSL in respect of Will of PDB executed in the year 1999 should be taken up first. The hearing of the probate proceeding of Will of MPB of 1982 may be taken up immediately thereafter. Judgments may be delivered, if possible, at the same time. The suit filed by the executors of the two 1982 Wills being Civil Suit No. 221 of 2004 may be taken up for hearing only after the disposal of the probate proceedings, if necessary.
CONCLUSION:
198. For the reasons aforementioned, Civil Appeal arising out of SLP (C) No. 10176 of 2007 filed by RSL challenging appointment of YB is allowed and all other appeals are dismissed with costs."
5.12. Learned counsel Mr.Desai, therefore, submitted that the Gujarat High Court has not framed rules with regard to testamentary succession. In the present case, the objector has not denied execution of the 'Will' by his father Page 27 of 81 O/OJCA/371/2015 CAV JUDGMENT that means he has admitted the said 'Will'. He submitted that as per Section 63 of the Indian Succession Act, the testator shall execute his 'Will' according to the Rules made in Section 63 that is the testator shall sign or shall affix his mark to the 'Will' or it shall be signed by some other person in his presence and by his direction. The signature or mark to the testator shall be so placed that it shall appear that it was intended thereby to give effect to the writing as the 'Will' and 'Will' shall be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to the 'Will'.
5.13. Thus, learned counsel submitted that when the objector has not denied the execution of the 'Will' by his father, he cannot object for grant of probate in favour of the petitioner.
5.14. Learned counsel submitted that under Section 52 of the Registration Act of 1908, certain duties are assigned to the registering authority when the document is presented before him for registration. As per Section 58 of the said Act, certain particulars are to be endorsed on documents by the authority, which are admitted to registration. The registering officer shall affix the date and the signature to all the Page 28 of 81 O/OJCA/371/2015 CAV JUDGMENT endorsements made under Sections 52 and 58 relating to the same documents and made in his presence on the same day. Section 60 of the said Act provides that after completing the formalities with regard to presentation and registration of the document, the registering officer shall endorse thereon a certificate containing the word `registered' together with the number and page of the book in which the document has been copied. After referring to the provisions of the Registration Act, learned advocate Mr. Desai referred to the `will' produced at Annexure `A' with the testamentary petition, and submitted that all the formalities are complied with and the registering authority has registered the said will. Thus, when the will is duly signed, duly witnessed and duly registered, the objection raised by the objector is required to be discharged/discarded. Learned counsel has placed reliance upon the decision rendered by the Bombay High Court in the case of Kashibai Martand V/s Vinayak Ganesh and others, reported in AIR 1956 Bom 65 as well as in the case of Mahesh Kumar (Dead) By Lrs. V/s Vinod Kumar and others, reported in (2012) 4 SCC 387.
5.15. Learned advocate Mr. Desai submitted that in view of the provisions of Section 300(1) of the Indian Succession Act, the High Court is Page 29 of 81 O/OJCA/371/2015 CAV JUDGMENT having concurrent jurisdiction with the District Judge in exercise of all the powers conferred upon the District Judge by the said Act.
5.16. Learned advocate Mr. Desai further referred to Section 30 of the Bombay Reorganisation Act of 1960, which reads as under:
"30. The High Court of Gujarat shall have, in respect of any part of the territories included in the State of Gujarat, all such jurisdiction, powers and authority as, under the law in force immediately before the appointed day, are exercisable in respect of that part of the said territories by the High Court of Bombay."
5.17. In support of this contention, learned advocate Mr. Desai has placed reliance upon the decision rendered by this Court in the case of Manilal Maganlal and another vs. Kalidas Maganlal and others reported in AIR 1961 Guj. 7, wherein in paragraphs No. 5 and 6 it was held as under:
"5. A Full Bench of this Court has recently held that the judgments delivered by the High Court of Bombay prior to 1-5-1960 are binding on this Court. It must therefore follow having regard to the decision of the High Court of Bombay reported in 43 Bom LR 926 :
(AIR 1941 Bom 397) that prior to 1-5- 1960 the High Court of Bombay had inherent or general jurisdiction to appoint a guardian of the undivided property of a minor who was a member of Page 30 of 81 O/OJCA/371/2015 CAV JUDGMENT a joint Hindu family and who was residing in the territories now forming part of the State of Gujarat. Now S.30 of the Bombay Reorganisation Act, 1960 which has been relied on by Mr.Joshi runs as under:
"30. Jurisdiction of Gujarat High Court : The High Court of Gujarat shall have, in respect of any part of the territories included in the State of Gujarat, all such jurisdiction, powers and authority as, under the law in force immediately before the appointed day, are exercisable in respect of that part of the said territories by the High Court of Bombay."
It is clear from a plain reading of this section that since the High Court of Bombay had inherent or general jurisdiction to appoint a guardian of the undivided property of a minor who was a member of a joint Hindu family and who was residing in the territories now forming part of the State of Gujarat, this Court has the same jurisdiction by virtue of the provisions of this Section.
6. I, therefore, hold that this Court has, under its inherent or general jurisdiction, power to make an order appointing guardian of the undivided property of a minor who is a member of a joint Hindu family and who resides within the territories forming part of the State of Gujarat. The petition is accepted and Mr.V.J.Merchant, the Deputy Registrar of this Court is appointed guardian-ad-item of the minor respondents and the hearing of the Page 31 of 81 O/OJCA/371/2015 CAV JUDGMENT petition is fixed on 7-10-1960."
6. On the other hand, learned advocate Mr. Mehul Shah appearing for the objector has contended that though in Section 300 of the Indian Succession Act, it is stated that the High Court is having concurrent jurisdiction with the District Judge in exercise of the powers conferred upon the District Judge, while reading the various provisions of the Indian Succession Act, the intention of the Legislature is clear that powers to grant probate is vested with the District Court. Learned advocate Mr. Shah referred to the provisions contained in Chapter IV of the Indian Succession Act, which provide for the practice in granting and revoking probates and letters of administration.
6.1. The provisions are contained in Sections 264 to 302 of the Indian Succession Act. Learned advocate submitted that Section 264 provides for jurisdiction of the District Judge in granting and revoking probates, etc. Section 266 of the Indian Succession Act gives the powers to the District Judge to grant probate and letters of administration. Section 268 of the Indian Succession Act provides for the proceedings before the District Judge in relation to probate and letters of administration. Sections 270 and 271 of the said Act provide about the territorial Page 32 of 81 O/OJCA/371/2015 CAV JUDGMENT jurisdiction of the District Court while entertaining proceedings with regard to probate and letters of administration. Section 283 gives powers to the District Judge to examine the petitioner in person upon oath and with regard to the evidence in connection with the will and to issue citations calling upon the persons claiming to have any interest in the estate of the deceased.
6.2. Learned advocate further submitted that in this Chapter certain powers are given to the delegate of the District Judge to issue grant of probate and letters of administration.
6.3. He thereafter referred to Section 295 of the Indian Succession Act, which reads as under:-
"295. Procedure in contentious cases- In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 (5 of 1908) in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant."
6.4. Thereafter, he referred to Section 299 of the Indian Succession Act, which is with Page 33 of 81 O/OJCA/371/2015 CAV JUDGMENT regard to filing an appeal against the order of the District Judge. Section 299 of the Act provides as under:
"299. Appeals from orders of District Judge- Every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), applicable to appeals.
6.5. Learned advocate Mr. Shah thereafter submitted that though heading of Section 300 is concurrent jurisdiction of High Court, there is no specific conferment of the powers given to the High Court or procedure to be followed by the High Court with regard to grant of probate. There is also no provision of appeal against the order of the High Court while exercising its original jurisdiction with regard to grant of probate. Therefore, the only remedy against the aggrieved party against the order of the High Court is to file Letters Patent Appeal, but there is no provision for filing First Appeal before the High Court. Thus, under the statute, i.e. the Indian Succession Act, there is no provision of filing of appeal against the order of the High Court, and therefore, if this Court exercises its original jurisdiction in testamentary petition Page 34 of 81 O/OJCA/371/2015 CAV JUDGMENT for grant of probate, then the aggrieved party will not get a chance to prefer an appeal before this Court by way of First Appeal, and hence, this Court is having no jurisdiction to entertain this petition.
6.6. Learned advocate Mr. Shah further refers to Section 24 of the Gujarat Civil Courts Act of 2005, which reads as under:-
"24. (1) The High Court may by general or special order invest any Senior Civil Judge, within such local limits and subject to such pecuniary limitation as may be specified in such order, with all or any of the powers of a District Judge or a Court of District Judge, as the case may be, under the Divorce Act, 1869, the Succession Act, 1925, the Special Marriage Act, 1954, or the Guardians and Wards Act, 1890.
(2) Every order made by a Senior Civil Judge by virtue of the powers conferred upon him under sub-section (1) shall be subject to an appeal to the High Court where the amount or value of the subject matter exceeds rupees five lakhs or to the Court of District Judge where the amount or value of the subject matter does not exceed rupees five lakhs.
(3) Every order of a Court of District Judge passed on appeal under sub-section (2) from the order of a Senior Civil Judge shall be subject to an appeal to the High Court under the rules contained in the Code applicable to appeals from appellate decrees."Page 35 of 81 O/OJCA/371/2015 CAV JUDGMENT
6.7. Learned counsel Mr. Shah therefore submitted that the High Court is having powers to invest Senior Civil Judges with jurisdiction under certain Acts including the Succession Act of 1925, and therefore, while exercising such jurisdiction if Senior Civil Judge passes an order, the same is subject to appeal to the High Court.
6.8. Learned advocate Mr. Shah thereafter referred to Rule 255 of Civil Manual in which it has been provided that under Section 265 of the Indian Succession Act, 1925 the High Court has appointed all Civil Judges to act for the District Judge as delegates to grant probate and letters of administration in non-contentious cases arising within the local limits of their respective jurisdiction. He further submitted that as per Rule 255(2), the High Court while exercising the powers conferred under Section 28- A(1) of Bombay Civil Courts Act invested all Civil Judges (Senior Division) with all the powers of a District Judge to take cognizance of any contested proceedings under the Indian Succession Act, 1925.
6.9. Thus, learned advocate submitted that the District Court as well as Civil Judge (Senior Page 36 of 81 O/OJCA/371/2015 CAV JUDGMENT Division) are having powers to grant probate as per the said Rule, and therefore when the powers are given to such courts, this Court may not exercise the concurrent jurisdiction.
6.10. Learned advocate thereafter referred to clause 34 of Letters Patent and more particularly proviso to clause 34 and thereby submitted that when the powers are given to the Civil Judge (Senior Division) and the District Judge for grant of probate, this Court may not exercise the testamentary jurisdiction under clause 34 of Letters Patent.
6.11. Learned counsel Mr. Shah thereafter submitted that Section 300 of Indian Succession Act is for those High Courts where the High Courts are having ordinary original civil jurisdiction, for example, Bombay High Court. He submitted that the Bombay High Court is having ordinary original civil jurisdiction, and therefore, the testamentary petition for grant of probate can be filed before the District Court or before the High Court of Bombay. Learned counsel further submitted that under Section 299 of the Indian Succession Act, appeal can be preferred before the High Court against the order passed by the District Court, and therefore, statutory appeal is provided, and hence, if testamentary Page 37 of 81 O/OJCA/371/2015 CAV JUDGMENT proceedings are directly filed before this Court, the aggrieved party would not get chance to file appeal before this Court, and therefore, the said right would be lost. If the intention of the Legislature is to give original jurisdiction of the High Court to entertain testamentary petition, and if interpretation is made that High Court is having concurrent jurisdiction, then Section 299 of the Indian Succession Act would become redundant.
6.12. Learned counsel further submitted that under the Indian Succession Act, the powers and procedures for grant of probate as well as letters of administration are to be regulated by the Code of Civil Procedure, 1908. Learned advocate Mr. Shah has relied upon Section 15 of the Code of Civil Procedure, 1908 wherein it is provided that every suit shall be instituted in the court of lowest grade competent to try it. He thereafter referred to Section 141 of the Code of Civil Procedure, 1908, which provides that the procedure prescribed in the Code with regard to suits shall be followed as far as it can be made applicable in all proceedings in any court of civil jurisdiction.
6.13. Learned advocate Mr. Shah has placed reliance upon the decision rendered by the High Page 38 of 81 O/OJCA/371/2015 CAV JUDGMENT Court of Punjab and Haryana in the case of Joginder Singh and others v. Balwinder Kaur and others reported in 2012 CJ (P&H) 3250 and more particularly paragraphs No.3, 4 and 10 of the said decision.
"3. 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.
4. 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.
10. 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 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 Page 39 of 81 O/OJCA/371/2015 CAV JUDGMENT 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."
6.14. Learned counsel has further placed reliance upon the decision of High Court of Madras in the case of A.V. Arockiam and Etc. vs. Arul Mary Alias Latchumi Devi and another reported in 2002 CJ(Mad) 58 and more particularly paragraphs No.6, 16, 21, 24 to 28 and 35 to 37.
"6. The preamble to the Indian Divorce Act runs as follows:
"Whereas it is expedient to amend the law relating to divorce of persons professing the Christian religion, and to confer upon certain Courts jurisdiction in matters matrimonial, it is hereby enacted as follows":
Section 3(1) states that "High Court"
means, with reference to any area in a State, the High Court for that State and in the case of any petition under the Act, "High Court" means the High Court for the area where the husband and wife reside or last resided together.
As per Section 3(2) "District Judge"
means a Judge of a Principal Civil Court of original jurisdiction however Page 40 of 81 O/OJCA/371/2015 CAV JUDGMENT designated.
Section 3(3) defines the "District Court" as follows:
"District Court" means, in the case of any petition under this Act, the Court of the District Judge within the local limits of whose ordinary jurisdiction, or of whose jurisdiction under this Act, the husband and wife reside or last resided together.
Under Section 3(4) "Court" means the High Court or the District Court, as the came may be.
Section 4 deals with the manner of exercise of jurisdiction by the High Court in matrimonial cases and it runs as follows:
The jurisdiction now exercised by the High Courts in respect of divorce a mensa ettoro and in all other causes, suits and matters matrimonial, shall be exercised by such courts and by the District Courts subject to the provisions in this Act contained and not otherwise, except so far as it relates to the granting of marriage licences, which may be granted as if this Act had not been passed." Section 6 runs as follows:
"All suits and proceedings in cause and matters matrimonial, which when this Act comes into operation, are pending in any High Court, shall be dealt with and decided by such court, so far as may be, as if they had been originally instituted therein under this Act."Page 41 of 81 O/OJCA/371/2015 CAV JUDGMENT
16. As per Section 45, subject to the provisions of the Act all proceedings under the Act between party and parry shall be regulated by the Civil Procedure Code. In Sabitri Thakurain V.Savi, AIR 1921 PC 80: ILR 48 Cal 481, the Privy Council has decided that the Code of Civil Procedure of 1908 and the rules contained in the orders apply to proceedings in the High Court whether original or appellate except so far as the Code expressly provided to the contrary. Under Section 120 of the Code of Civil Procedure, only Sections 16, 17 and 20 of the Code are excluded in their application to the High Court in the exercise of its Original Civil Jurisdiction. Section 15 which provides that every suit shall be instituted in the Court of the lowest grade competent to try it, is not excluded, obviously because there is no other provision inconsistent with it.
21. In O.M.S.No.13/63 decided by R.Sadasivam, J. it was a petition under Sections 22 and 23 of the Indian Divorce Act 4 of 1869 for a decree of Judicial separation. The petitioner in that case was married to the respondent on 24-4- 1950 at Thanjavur. The respondent continued to live at Thanjavur. The ground for judicial separation was that the respondent was suffering from an infectious type of leprosy and was compelling the petitioner to have cohabitation with him. Though the respondent was not represented by an Advocate, the petitioner was not cross- examined and according to the learned Judge, the petitioner would have been normally entitled to the judicial separation prayed for by her. But then the learned Judge himself elicited from Page 42 of 81 O/OJCA/371/2015 CAV JUDGMENT the petitioner that she and her husband last resided at Thanjavur and that her husband was residing in Thanjavur. After referring to Sections 3(3) and 3(4), the learned Judge held that the petition should have been filed in the District Court at Thanjavur. The learned counsel for the petitioner referred to Section 23 of the Act as also clause 35 of the Letters Patent stating that the High Court at Madras would have jurisdiction within the State of Madras in matters matrimonial between subjects professing Christian religion. But the learned Judge took note of the proviso to the section to the effect that nothing contained in the clause should be held to interfere with the exercise of any jurisdiction in matters matrimonial by any Court not established by Royal Charter within the said State lawfully possessed thereof. In the view of the learned Judge, the District Court, Thanjavur, had actual jurisdiction to entertain the petition. Might be under Section 8 of the Act, the High Court whenever it thought fit, could remove and try and determine as a Court of original jurisdiction any suit or proceeding instituted under the Act in the Court of any District Judge within the limits of its jurisdiction under the Act; but then according to the learned Judge having regard to Sections 3(3), 3(4) and Section 8 of the Divorce Act, the parties should normally file the petition for judicial separation only in the place where they actually resided or last resided together. In the course of his judgment, the learned Judge distinguished the following two judgments:
(1) Kelly V. Kelly and Saunders (1869) 3 Page 43 of 81 O/OJCA/371/2015 CAV JUDGMENT Beng.LR 675 and (2) Ritchson V. Ritchson AIR 1934 Cal
570.
24. In Jeremian Yesupatham V. Mrs.Deenamma Yesupatham (1975) 88 Mad LW 677 the decision of Sadavisam, J. in O.M.S.No.13/63 was followed and the parties were directed to approach the District Court. In that case, the contention raised on behalf of the petitioner against taking the view the Court did, was that the Letters Patent conferred jurisdiction on this Court to try all matrimonial cases and the proviso to clause 35 should be understood as merely preserving power of other subordinate Courts to try the matrimonial matters. The learned Judge, though accepted the contention on behalf of the petitioner that there could be no dispute that his court had concurrent jurisdiction in respect of matrimonial matters, still held that the petitioner had to move the District Court. The learned Judge reasoned as follows:
"With reference to this matter, there is nothing in the Indian Divorce Act, which provides anything contrary to Section 15 of the Code of Civil Procedure. Hence, the Code of Civil Procedure would apply by virtue of Section 45 of the Indian Divorce Act. In the absence of any inconsistency between the Indian Divorce Act and the Code of Civil Procedure, the provisions of the Code are directly attracted under Section 45 of the Indian Divorce Act. Section 15 of the Code of Civil Procedure would thus have application so as to require the matter being presented before the Court of the lowest grade competent to try."
The learned Judge further rejected the Page 44 of 81 O/OJCA/371/2015 CAV JUDGMENT submission on behalf of the petitioner that similar petitions had been entertained by this Court without any objection, observing that any failure to notice the defect on the earlier occasions could not convert it into a practice by which this court should be governed. The learned Judge fully endorsed the view taken by Sadasivam, J in O.M.S.No.13/63.
25. The decision Sengottuvelan, J which has already been referred to, in my view, projects the correct position with regard to matrimonial matters.
26. In another case, the question arose as to whether after the coming into force of the Family Courts Act (16 of 1984), the jurisdiction of the High Court in respect of applications for appointment as guardian by Foreign Nationals as petitioners of Indian minor children under special enactment like the Letters Patent, Madras, was taken away from the High Court and entrusted to the Family Court. The further question also, as to the maintainability of applications for divorce by Christian subjects before the High Court under the Indian Divorce Act after the introduction of the Family Courts Act, arose.
27. It was held in Mr.Patrick Martin Etc. by a Division Bench of this Court that after the coming into force of the Family Courts Act, the High Court lost its jurisdiction in such matters. In paragraph 17 of the said judgment, it is further stated as follows:
"Even assuming that the jurisdiction of the High Court under Clause 17 still Page 45 of 81 O/OJCA/371/2015 CAV JUDGMENT existed, it would be as per the appellants, a jurisdiction of general nature applicable to all, then Section 15 of the Code of Civil Procedure will come into play, and the appellants should approach the lowest grade Court competent viz. the Family Court. The proper forum for the parties in the matter is the Family Court wherever and whenever it is established and till then the respective District Courts, with of course the right of appeal before this Court."
28. The order of Abdul Hadi, J. In the matter of Guardians and Wards Act. In the matter of Minor Rekha. In the matter of Indian Divorce Act and In the matter of R.Manivannanapd Agnes Mythili Manivannan holding that the original jurisdiction which vested in the High Court in respect of minors had come to an end after the Family Courts Act, 1984 came into effect in the City of Madras and the equally the arguments built upon the superior powers of the High Court under some of the provisions of the Indian Divorce Act, are of no avail in view of the clear provisions under Sections 7 and 8 of the Family Courts Act read with Section 2(e) thereof, was affirmed on appeal.
35. There is a provision in the Code of Civil Procedure under Section 24 giving general power of transfer and withdrawal both on the District Court and the High Court. But what makes all the difference between the Indian Divorce Act on the one hand and the provisions of the Code of Civil Procedure and the Code of Criminal Procedure on the other is the presence of the expression "as the case may be" in Section 3(4) of the Indian Page 46 of 81 O/OJCA/371/2015 CAV JUDGMENT Divorce Act. The said expression "as the case may be" would only mean that if the parties last resided together at a particular place, the District Court having jurisdiction over that place would be alone competent to entertain a petition under the Indian Divorce Act. Proviso to clause 35 of the Amended Letters Patent cannot also be ignored. If the parties resided within the jurisdiction of the High Court, the High Court as also the Family Court would have jurisdiction to entertain the petition. That appears to be the only logical way of looking at this.
36. Be that as it may, section 15 of the Code of Civil Procedure, which is not excluded by Section 45 of the Indian Divorce Act clearly enjoins the parties to approach the lowest Court having jurisdiction, for relief, though in view of the Full Bench decision, the High Court has concurrent jurisdiction even if the husband and the wife do not reside or did not last reside together, within the jurisdiction of the High Court. The High Court has also a discretion in such matters. It does not have to entertain them merely because they are presented before it. It is entitled to return them for presentation before proper court or to transfer them to the District Courts or the Family Courts as the case may be.
37. The question for consideration is therefore answered in the following manner:
Though, in view of the judgment of the Full Bench in Mary Thomas V. Dr.K.E.Thomas (1989) 104 Mad LW 344 the High Court may be said to have Page 47 of 81 O/OJCA/371/2015 CAV JUDGMENT concurrent jurisdiction, the petitions have to be filed only before the District Courts concerned in view of Section 15 of the Code of Civil Procedure."
6.15. Learned advocate Mr. Shah thereafter placed reliance upon the decision rendered by the Honourable Supreme Court in the case of Executive Engineer, Road Development Division No.III, Panvel vs. Atlanta Limited reported in AIR 2014 SC 1093 and more particularly paragraphs No. 6, 15 and 18.
"6. The contention advanced at the hands of the learned counsel for the State of Maharashtra, while assailing the impugned order of the High Court dated 15.3.2013 was, that it was improper for the High Court to transfer the proceedings initiated by the appellant through Miscellaneous Application No.229 of 2012 and Miscellaneous Application No.230 of 2012 under Section 34 of the Arbitration Act before the Court of the District Judge, Thane to the High Court. In this behalf, the pointed submission of the learned counsel for the appellant was, that only the District Judge, Thane, had the jurisdiction to determine the controversy emerging out of the award of the arbitral tribunal dated 12.5.2012. It was also submitted, that the proceedings initiated by Atlanta Limited through Arbitration Petition No. 1158 of 2012, ought to have been transferred from the High Court to the District Judge, Thane. In order to make Page 48 of 81 O/OJCA/371/2015 CAV JUDGMENT good the aforesaid submission, learned counsel for the appellant placed reliance on the definition of the term "Court" expressed in Section 2(1)(e) of the Arbitration Act. Section 2(1)(e) aforementioned is being reproduced hereunder :
"2 - Definitions- (1) In this Part, unless the context otherwise requires,-
(e) "Court" means the Principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any civil court of a grade inferior to such Principal Civil Court, or any Court of Small Causes."
Drawing the court's pointed attention to the definition of the term "Court", it was the vehement contention of the learned counsel for the appellant, that to determine which court would have jurisdiction to decide the subject- matter of an arbitral dispute, it was essential to find out the particular court which would have had jurisdiction in the matter, had the dispute been agitated through a civil suit. According to learned counsel, the latter determination, would answer the jurisdictional avenue of the arbitral dispute, in terms of Section 2(1)(e) extracted above. In this behalf it was submitted, that in the absence of any express exclusion clause between the parties, on the subject-matter under reference, in order to settle the Page 49 of 81 O/OJCA/371/2015 CAV JUDGMENT dispute inter-parties, it would have been imperative for the parties to raise their respective challenges only before the District Judge, Thane.
15. The following submissions were advanced before us. Firstly, considering clause (c) of the operative part of the award, according to learned counsel it was clear, that enforcement of such a clause in the award was site-specific, since Mumbra byepass is located on the Mumbai-Pune road (on national highway No. 4) and falls in Thane District, the District Judge, Thane, ought to be "natural choice" for consideration of the issues advanced by the appellants, as also the respondent. Secondly, according to the learned counsel for the appellants, the definition of the term "Court" expressed in Section 2(1)(e) of the Arbitration Act uses the expression "subject-matter" and not "cause of action". While "cause of action" can be referable to places where the works contract is executed, or where arbitration proceedings were conducted; the term "subject-matter" used in Section 2(1)(e) of the Arbitration Act is only referable to the subject-matter of the works contract, with respect to which the dispute is raised (with respect to which, there was a direction for extension of the concession period, under the award). Accordingly it was submitted, that although the High Court may also have jurisdiction, the District Court, Thane is "more natural", "more suitable" and "more appropriate" for the adjudication of the claims, raised by the rival parties. Thirdly it was contended, that the original side of the High Court of Bombay, vis-a-vis, the District Judge, Thane, is a "superior"
Page 50 of 81 O/OJCA/371/2015 CAV JUDGMENTCourt. According to the learned counsel for the appellants, even if it is acknowledged that the "ordinary original civil side" of the High Court of Bombay as also the "principal Civil Court of original jurisdiction" for the District Thane i.e., the District Judge, Thane, both have jurisdiction in the matter, there were many attributes on the basis of which it could be clearly established, that the original side of the High Court of Bombay, is superior to the Court of the District Judge, Thane. In this behalf it was sought to be pointed out, that the High Court could take cognizance of contempt of its own orders, and furthermore, a judgment delivered by the original side of a High Court operated as a binding precedent. It was submitted, that the District Court, Thane, does not have any such attributes. In the above view of the matter it was submitted, that reliance could be placed on Section 15 of the Code of Civil Procedure, to determine which of the two courts should adjudicate upon the matter. Section 15 is being extracted hereunder:-
"15. Court in which suits to be instituted-
Every suit shall be instituted in the Court of the lowest grade competent to try it."
Based on Section 15 extracted above it was submitted, that in case jurisdiction could be exercised by two Courts, it was imperative to choose the Court of the lowest grade competent to try the suit. Accordingly, it was contended, that from amongst the original side of the High Court of Bombay and the District Court, Page 51 of 81 O/OJCA/371/2015 CAV JUDGMENT Thane, in terms of the mandate of Section 15 of the Code of Civil Procedure, the District Court, Thane, being the Court lower in grade than the original side of the High Court of Bombay, ought to have been chosen to adjudicate upon the matters. It was also pointed out, that the choice of District Court, Thane, would even otherwise be beneficial to the rival parties on account of the fact, that the determination by the said Court, would be open for re-examination before the High Court of Bombay, which exercises supervisory jurisdiction over it.
18.We shall first endeavour to address the submissions advanced at the hands of the learned counsel for the appellants, with reference to Section 15 of the Code of Civil Procedure. In terms of the mandate of Section 15 of the Code of Civil Procedure, the initiation of action within the jurisdiction of Greater Mumbai had to be "in the Court of lowest grade competent to try it".We are, however, satisfied, that within the area of jurisdiction of Principal District Judge, Greater Mumbai, only the High Court of Bombay was exclusively the competent Court (under its "ordinary original civil jurisdiction") to adjudicate upon the matter. The above conclusion is imperative from the definition of the term "Court" in Section 2(1)(e) of the Arbitration Act. Firstly, the very inclusion of the High Court "in exercise of its ordinary original civil jurisdiction, within the definition of the term "Court", will be rendered nugatory,if the above conclusion was not to be accepted. Because, the "principal Civil Court of original jurisdiction in a district"
Page 52 of 81 O/OJCA/371/2015 CAV JUDGMENTnamely the District Judge concerned, being a court lower in grade than the High Court, the District Judge concerned would always exclude the High Court from adjudicating upon the matter. The submission advanced by the learned counsel for the appellant cannot therefore be accepted, also to ensure the inclusion of "the High Court in exercise of its ordinary original civil jurisdiction" is given its due meaning. Accordingly, the principle enshrined in Section 15 of the Code of Civil Procedure cannot be invoked whilst interpreting Section 2(1)(e) of the Arbitration Act. Secondly, the provisions of the Arbitration Act, leave no room for any doubt, that it is the superior most court exercising original civil jurisdiction, which had been chosen to adjudicate disputes arising out of arbitration agreements, arbitral proceedings and arbitral awards. Undoubtedly, a "principal Civil Court of original jurisdiction in a district", is the superior most court exercising original civil jurisdiction in the district over which its jurisdiction extends. It is clear, that Section 2(1)
(e) of the Arbitration Act having vested jurisdiction in the "principal Civil Court of original jurisdiction in a district", did not rest the choice of jurisdiction on courts subordinate to that of the District Judge. Likewise, "the High Court in exercise of its ordinary original jurisdiction", is the superior most court exercising original civil jurisdiction, within the ambit of its original civil jurisdiction. On the same analogy and for the same reasons, the choice of jurisdiction, will clearly fall in the realm of the High Court, wherever a High Court exercises Page 53 of 81 O/OJCA/371/2015 CAV JUDGMENT "ordinary original civil jurisdiction".
Under the Arbitration Act, therefore, the legislature has clearly expressed a legislative intent, different from the one expressed in Section 15 of the Code of Civil Procedure. The respondent had chosen to initiate proceedings within the area of Greater Mumbai, it could have done so only before the High Court of Bombay. There was no other court within the jurisdiction of Greater Mumbai, where the respondent could have raised their challenge. Consequently, we have no hesitation in concluding, that the respondent by initiating proceedings under Section 34 of the Arbitration Act, before the original side of the High Court of Bombay, had not violated the mandate of Section 2(1)(e) of the Arbitration Act. Thus viewed, we find the submission advanced at the hands of the learned counsel for the appellants, by placing reliance on Section 15 of the Code of Civil Procedure, wholly irrelevant."
6.16. Learned advocate Mr. Shah thereafter referred to Sections 438 and 439 of the Code of Criminal Procedure, 1973, and submitted that by way of the said provisions, the High Court as well as the court of sessions, both have concurrent jurisdiction to entertain application for anticipatory bail and application for bail respectively. However, in view of various decision rendered by various High Courts, including this Court, the accused is ordinarily filing an application for anticipatory bail or an Page 54 of 81 O/OJCA/371/2015 CAV JUDGMENT application for bail, as the case may be, before the learned Sessions Court first, and against the order passed by the learned Sessions Court under the same Section, application can be preferred before this Court. Learned counsel has placed reliance upon the decision rendered by this Court in the case of Harivallabh P Parish vs. State of Gujarat reported in 1999 (1) GLR 638 and more particularly paragraph No.15 of the said decision. Similarly, he placed reliance upon the decision rendered by this Court in the case of Ramchandra Kashiram Vora vs. State of Gujarat reported in 1987(1) GLR 85 more particularly paragraphs No. 8 to 10 and 13. Learned advocate submitted that similar view is taken by the High Court of Rajasthan in the case of Satya Deo Rajpurohit and Others vs. State of Rajasthan, reported in 2001 CJ (Raj.) 910 = 2003 (1) Cr.LR 462 and a decision rendered by the High Court of Karnataka in the case of Savitri Samson V/s State of Karnataka, reported in 2001 CJ Kar. 579.
6.17. Relying upon the aforesaid decisions rendered by various High Courts, learned advocate submitted that as a matter of practice, the proceedings are required to be initiated before the court of lowest grade though the courts are having concurrent jurisdiction, and under exceptional circumstances, proceedings can be Page 55 of 81 O/OJCA/371/2015 CAV JUDGMENT initiated directly before the High Court. However, in the present case, no such special case or circumstances are shown by the petitioner for invoking testamentary jurisdiction of this Court, and therefore, this Court may not entertain this petition and the proceedings may be transferred to the concerned District Court having territorial jurisdiction.
6.18. Learned advocate Mr. Shah in response to the O.J. Civil Application No. 669 of 2014 filed by the petitioner mainly submitted that in the said application, the petitioner has prayed that the opposition of the objector may be discharged. He referred to prayer made in paragraph No.9 of the application, and thereafter submitted that there is no provision under the Indian Succession Act or Code of Civil Procedure, 1908 to discharge the opposition, and therefore, the present application is misconceived and baseless. Then, he contended that this Court has issued the citations to the present objector and two others and in pursuance to the said citations issued by this Court, objections were raised by the objector. Therefore, the objections and the issues raised by the objector are required to be decided on its own merits, and therefore, such objection/opposition cannot be discharged or discarded at the out set. He further submitted Page 56 of 81 O/OJCA/371/2015 CAV JUDGMENT that the objector is having caveatable interest or not can be an issue, which is to be framed at the time of hearing of the testamentary petition, and it is a matter of evidence, and therefore, at this stage, it cannot be said that the objector is not having any caveatable interest. Learned counsel Mr. Shah thereafter submitted that the objector has specifically stated in the petition that he is the elder son of the testator having interest in the property and he has raised doubt about the genuineness of the will relying upon certain documentary evidence. Thus, the objector is having the caveatable interest. He thereafter submitted that as per the provisions of the Indian Succession Act, caveat can be filed prior to filing of the petition in the form prescribed under Schedule V of the Indian Succession Act. Caveat cannot be filed after filing of the petition. Learned advocate has placed reliance upon the decision rendered by the High Court of Madras in the case of M.K.Sowbagiammal and Another vs. Komalangi Ammal By guardian Kandaswami Chetti and Anr. reported in AIR 1928 Madras 803 more particularly in paragraphs No. 9 and 12. He thereafter placed reliance upon the decision rendered by the Calcutta High Court in the case of Bhobatarini Devi V/s Hari Charan Banerjee, reported in AIR 1917 Cal 311 and in the case of Gouri Bala Sadhhukhan V/s Jiban Krishna Page 57 of 81 O/OJCA/371/2015 CAV JUDGMENT Sadhukhan reported in (1973) ILR 2 Calcutta 363.
6.19. Learned advocate Mr. Shah thereafter has placed reliance upon observation made by the Honourable Supreme Court in paragraphs No. 55, 58, 86 and 102 in the case of Krishna Kumar Birla (supra) and submitted that the caveator or the person to whom citations were issued are having right to show his interest, and therefore when the citations are issued by this Court, objector has appeared before this Court and filed the objections, hence, he is having caveatable interest. He therefore submitted that when the objector is having caveatable interest and filed objections pursuant to the issuance of the citations, this Court may consider the same, and also consider the issue with regard to the jurisdiction of this Court. Even the issue with regard to the caveatable interest can be kept open and this testamentary petition can be transferred to the concerned District Court.
7. Learned advocate Mr. Desai in response to the arguments canvassed by the learned advocate Mr. Shah for the objector mainly submitted that as per Section 2(b) of the Gujarat Civil Courts Act, 2005, the same is applicable to the civil court and not to the High Court. High Court is having jurisdiction under Article 225 Page 58 of 81 O/OJCA/371/2015 CAV JUDGMENT read with Article 215 of the Constitution of India. He further submitted that Section 24 of the Gujarat Civil Courts Act 2005 is impliedly repealed as it has not received presidential assent. He further referred to Entries No. 2, 11A and 13 of List III of Schedule VII of the Constitution of India. Learned counsel thereafter referred to Article 372 of the Constitution of India, and submitted that all the laws in force in the territory of India immediately before the commencement of the Constitution shall continue in force until it is altered, repealed or amended by a competent Legislature. Petitioner is relying on special law, viz. The Indian Succession Act.
7.1. Learned counsel Mr. Desai further referred to Section 21 of the Code of Civil Procedure 1908 and submitted that no objection as to the place of suing shall be allowed by any appellate or revisional court, unless such objection was taken in the court of first instance at the earliest possible opportunity. Learned advocate submitted that in the present case the objector has not taken objection with regard to the jurisdiction at the first instance.
7.2. He further submitted that in the present petition pecuniary limit is Rs.1.00 cr., and Page 59 of 81 O/OJCA/371/2015 CAV JUDGMENT therefore, appeal lies against the order passed by this Court or by the District Court, before the Division Bench of this Court. Therefore, the appellate forum would be the same.
7.3. Learned counsel Mr. Desai further submitted that this Court admitted the petition on 20.3.2014 and citations were issued to the concerned parties. Against the said order, the affected party, i.e. the objector has not filed any review or appeal, and therefore, it can be said that the objector has waived or abandoned his right.
7.4. Learned counsel Mr. Desai further submitted that the reliance placed by the learned advocate Mr. Shah for the objector on various decisions of the Honourable Supreme Court as well as this Court and other High Courts are not applicable to the facts of the present case.
7.5. He therefore submitted that O.J. Civil Application No.669 of 2014 may be allowed by discharging the opposition made by the objector and O.J. Civil Application No.371 of 2015 filed by the objector may be dismissed.
8. I have considered the rival submissions advanced on behalf of the learned advocates for Page 60 of 81 O/OJCA/371/2015 CAV JUDGMENT the petitioner as well as the objector. I have also considered the documents placed on record as well as various provisions of law relied upon by the learned counsels and the decisions relied upon by the learned counsels.
9. Two issues are required to be decided by this Court in this proceedings; (1) whether the objector is having caveatable interest or not as well as whether the objections raised by the objector can be taken into consideration or not? (2) whether this Court has jurisdiction to entertain this testamentary petition or not?
10. For deciding the aforesaid two issues, various provisions of different Acts are required to be considered by this Court.
11. Chapter IV of the Indian Succession Act is with regard to the provisions of granting and revoking probates and letters of administration.
12. Sections 264 to 302 fall under the said Chapter. Section 264 of the said Act provides for the jurisdiction of the District Court in granting and revoking the probates. Sub-section (1) of Section 264 provides that the District Judge shall have jurisdiction in granting and revoking probates and letters of administration Page 61 of 81 O/OJCA/371/2015 CAV JUDGMENT in all the cases within his district.
13. Section 265 of the said Act provides that the High Court may appoint such judicial officers within any District as it thinks fit to act for the District Judge as delegates to grant probate and letters of administration in non- contentious cases within such legal limits as it may prescribe. Persons so appointed shall be called district delegates.
14. Section 268 of the Act provides that the proceedings of the court of the District Judge in relation to the grant of probate and letters of administration shall be regulated by the Code of Civil Procedure 1908.
15. Section 270 of the said Act provides that probate of the will or letters of administration to the estate of a deceased person may be granted by a District Judge under the seal of his court, if it appears by petition, that the testator or intestate at the time of his deceased had a fixed place of abode or any property within the jurisdiction of the Judge.
16. Section 272 of the Act gives power to grant probate, etc. to the district delegate.
Page 62 of 81 O/OJCA/371/2015 CAV JUDGMENT17. Section 284 of the Act provides for filing of caveats against grant of probate. Form of caveat is prescribed in Schedule V.
18. Section 295 of the Act provides for the procedure in contentious cases. It provides that in any case before the District Judge in which there is contention, the proceedings shall take as nearly as may be the form of a regular suit according to the provisions of the Code of Civil Procedure 1908 in which the petitioner for probate shall be the plaintiff and the person who has appeared to oppose the grant shall be the defendant.
19. Section 299 of the said Act provides for filing appeals before the High Court from the orders of the District Judge in accordance with the provisions of Code of Civil Procedure, 1908.
20. Section 300 of the Act 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.
21. Rule 255 of the Civil Manual provides as under:-
"255(i) Under section 265 of the Indian Page 63 of 81 O/OJCA/371/2015 CAV JUDGMENT Succession Act, 1925, the High Court has appointed all Civil Judges to act for the District Judge as delegates to grant probate and letters of administration in non- contentious cases arising within the local limits of their respective jurisdiction.
(ii) In exercise of the powers conferred by section 28-A(1) of the Bombay Civil Courts Act (XIV of 1869), the High Court has invested all Civil Judges (Senior Division), with all the powers of a District Judge to take cognizance of any contested proceeding under the Indian Succession Act, 1925, arising within the local limits of their respective jurisdiction that may be transferred to them by their respective District Judges."
22. Thus, as per Rule 255, the High Court has appointed Civil Judges to act for the District Judge as delegates to grant probate in non-contentious cases under the provision of Section 265 of the Indian Succession Act, whereas under Section 28-A(1) of the Bombay Civil Courts Act. He exercises the powers conferred upon it and has invested all Civil Judges (Senior Division) with all the powers of a District Judge to take cognizance of any contested proceedings under Indian Succession Act.
23. Clause 34 of Letters Patent provides as under:
" 34. Testamentary and intestate jurisdiction Page 64 of 81 O/OJCA/371/2015 CAV JUDGMENT
- And We do further ordain that the said High Court of Judicature at [Madras], [Bombay], Fort William in Bengal shall have the like power and authority as that which may now be lawfully exercised by the said High Court, in relation to the granting of probates of last wills and testaments, and letters of administration of the goods, chattels, credits, and all other effects whatsoever of persons dying intestate, whether within or without the [Presidency of Madras], [Bombay], Bengal Division of the Presidency of Fort William; Provided always that nothing in these Letters Patent contained shall interfere with the provisions of any law which has been made by competent legislative authority for India, by which power is given to any other Court to grant such probates and letters of administration."
Proviso to clause 34 provided that nothing in the Letters Patent contained shall interfere with the provisions of any law which has been made by competent legislative authority for India by which power is given to any other court to grant such probates.
24. Section 15 of the Code of Civil Procedure, 1908 provides that every suit shall be instituted in the court of the lowest grade competent to try it.
25. In view of the aforesaid provisions, it is clear that once this Court has issued citations to the present objector and two others Page 65 of 81 O/OJCA/371/2015 CAV JUDGMENT and in pursuance to the said citations issued by this Court, objections are filed by the objector, the same are required to be considered by this Court for a limited purpose. In the case of M.K.Sowbagiammal (supra), the High Court of Madras has observed in paragraphs 9 and 12 as under:
"9. The view I am taking is thus supported by authority and uniform practice of the court; furthermore, it is based on reason and sound common sense. The function of the Court of Probate is to decide whether the will propounded is the last will of the testator and whether the right to represent the estate may be conferred upon the applicant. The Court of Probate does not profess to decide the disputed title to every item of property mentioned in the will. If a testator disposes of, say, 15 items of property and 10 different claimants appear before the court, each claiming one of them as his own, is the court to postpone its decision on the validity of the will and on the representative character of the applicant, until it decides the disputed ownership of the various items? By delaying the grant, serious injury may be caused to the estate, there being none during this interval to represent it. Then, again, innumerable persons, each with his grievance, may come to oppose the grant, from one who claims a property worth some lakhs, down to one who sets up title to a property worth a paltry sum. It is certainly not to be expected that the application is to be decided in the presence of each one of Page 66 of 81 O/OJCA/371/2015 CAV JUDGMENT these claimants. If, then, the scope of a testamentary proceeding-is correctly understood, no difficulty can arise. Can the executor to whom probate is granted, on the strength of that probate, recover property to which is not the testator's? Does the probate confer on the executor right to property to which he is otherwise not entitled? If it is remembered that these questions ought to be answered in the negative, it does not in the least matter, what the properties are, which the testator professes to treat as his own and to dispose of by his will. The remarks I have made apply equally to applications for letters of administration. In dealing with the question - Has the caveator the necessary interest? - the test is, does the grant displace any right to which the caveator would otherwise be entitled? If so, he has such an interest, if not, he has not. An heir on intestacy has an interest in impeaching the will; for, but for the will, he would succeed to the property. A legatee under a previous will has a similar interest; for, he is interested in establishing the validity of that will and impeaching the validity of the later will which deprives him of the benefit. A reversionary heir under the Hindu Law has such an interest; for, normally, a widow has only a limited estate and the reversioner is interested in impeaching a will, which professes to enlarge that interest, or again, which purports to confer upon her a right to make an adoption. [See Brindaban Chandra Saha V.Sureswar Saha (1909)10 CLJ 263]. But in every case it must be shown that the caveator, but for the will, would be entitled to a right, of which that will deprives him.Page 67 of 81 O/OJCA/371/2015 CAV JUDGMENT
12. It came to my notice that citation did not issue to the minor grandsons of the testator, Gopala and Chengalroya. They are certainly persons interested in the estate and I therefore directed citation to issue to them. As their mother happens to be one of the petitioners, a Court guardian has been appointed and the latter has filed a written statement. I shall now proceed to hear the application on its merits."
26. In the case of Bhobatarini Debi (supra), the High Court of Calcutta has observed as under:
"It is clear that in treating the petition of objection filed by the daughter as a caveat the learned Judge has fallen into error. A caveat is in the nature of a precautionary measure intended to ensure that there shall be no proceedings in the matter of the estate of the deceased without notice to the person who files the caveat. In this case no caveat was necessary. Citations had issued upon the daughters at the instance of the petitioner and in answer to the citation she appeared and claimed her right to be heard. Eight annas on such a petition is sufficient and the daughter, having appeared upon citation and being a person interested in the estate of the deceased, should obviously have been allowed to be present throughout the proceeding and to adduce such evidence as she might have in opposition to the claim. For these reasons we set aside the Judges order of 14th December 1914 and also his order of 22nd December 1914 and direct that the Page 68 of 81 O/OJCA/371/2015 CAV JUDGMENT proceedings be re-opened and that the will be proved in the presence of the objector, who shall be allowed full opportunity to adduce such evidence in the matter as she may be advised to offer. The Probate already issued shall be re-called. The appeal is accordingly decreed."
27. In the case of Gouri Bala Sadhukhan (supra), the High Court Calcutta has held that:
"A caveat is entered before an application for probate. A caveat is a warning given by a person having or asserting an interest in the estate of the deceased against the Court issuing any probate without notice to the caveator. A caveat is not a notice to any particular person but is a notice to the Court not to allow proceedings to be taken in the matter of the Will of the deceased without notice to the caveator. A caveat does not commence litigation nor does it institute proceedings. The main purpose for which a caveat is entered is to allow time to the caveator to make enquiries and to obtain such information as may enable him to determine whether or not there are grounds for his opposing the grant, or to enable the caveator to apply for an order that the sureties to the administration bond shall justify, or as a step preliminary to an action or to the issuing of citation. The form of caveat indicates that it is nothing more than a warning. No grounds of objection need be stated therein and nothing follows upon the filing of a caveat except that the caveator becomes entitled to notice before the grant for Page 69 of 81 O/OJCA/371/2015 CAV JUDGMENT getting an opportunity to appear and contest the grant.
There is good deal of difference between a caveat and a petition of objection upon receipt of citation. In point of time, the caveat is filed before the application for probate, whereas the petition of objection is filed after citations are issued and served. A case does not become contentious merely on the filing of the caveat or the filing of a petition of objection. Only when some one appears to oppose the proceeding for probate, there is a `contention' as to the grant within the meaning of the Indian Succession Act. The proviso to Schedule II, Article 1(g)
(ii) is invoked when two conditions are satisfied, namely, (i) a caveat has been entered and (ii) the application is registered as a suit."
28. In the case of Krishna Kumar Birla (supra), the Hon'ble Supreme Court has held in paragraphs 56 to 58, 84 and 94 that a person to whom a citation is to be issued or a caveator must have some interest in the estate of the testator. Any person claiming any interest adverse to the testator or his estate cannot maintain any application before the Probate Court. It is further held that a Will is executed when the owner of a property forms an opinion that his/her estate should not devolve upon the existing heirs according to the law governing intestate succession. When, thus, a person who Page 70 of 81 O/OJCA/371/2015 CAV JUDGMENT would have otherwise succeeded to the estate of the testator, would ordinarily have a caveatable interest, any other person must ordinarily show a special interest in the estate. It is further held by the Hon'ble Supreme Court that Section 283 of the Indian Succession Act confers a discretion upon the court to invite some persons to watch the proceedings. Who are they? They must have an interest in the estate of the deceased. Those who pray for joining the proceeding cannot do so despite saying that they had no interest in the estate of the deceased. They must be persons who have an interest in the estate left by the deceased.
29. Thus, from the aforesaid decisions rendered by different High Courts as well as by the Hon'ble Supreme Court, it is clear that when the citation has been issued at the instance of the petitioner and in answer to the citation, when the elder son of the testator/objector appeared and claimed his right to be heard raising doubt about the genuineness of the Will, it can be said that the objector in the present case who is the elder son of the testator is having caveatable interest and, therefore, in view of the aforesaid decisions, the present objector can file objections before this Court and can raise various contentions including the Page 71 of 81 O/OJCA/371/2015 CAV JUDGMENT contention with regard to jurisdiction of this Court.
30. Thus, when I am of the opinion that the objector is having right to file objections, his first objection with regard to the jurisdiction of this Court is required to be considered first. Section 300 of the Indian Succession Act provides that the High Court shall have concurrent jurisdiction with the District Judge in exercise of the powers conferred upon the District Judge. Therefore, it is not in dispute that the High Court is having concurrent jurisdiction to entertain the proceedings with regard to grant of probate. However, the question is whether this Court can exercise such powers in view of various provisions of law relied upon by the learned advocate for the objector.
31. It is clear from the provisions contained in Sections 264 to 302 of the Indian Succession Act that powers are given to the District Judge as well as the district delegate to grant or revoke the probate etc. The procedure is also prescribed for the said purpose. The petitioner is required to be examined on oath with regard to the evidence in connection with the Will. The provision is also made for filing an appeal before the High Court against the order Page 72 of 81 O/OJCA/371/2015 CAV JUDGMENT passed by the District Judge. Similarly, Section 24 of the Gujarat Civil Courts Act, 2005 provides that the High Court may invest any Senior Civil Judge, within such local limits and subject to such pecuniary limitation as may be specified in such order, with all or any of the powers of a District Judge or a Court of District Judge under the Indian Succession Act. Under Rule 255 of the Civil Manual, the High Court has appointed all civil Judges to act for the District Judge as delegates to grant probate and letters of administration under the Indian Succession Act.
32. Even the proviso of Clause 34 of Letters Patent provides that nothing in these Letters Patent contained shall interfere with the provisions of any law which has been made by the competent legislative authority for India, by which power is given to any other Court to grant such probates and letters of administration. Thus, when the powers are given to the District Judge to grant probates and letters of administration, the proceedings are required to be initiated before the said Court.
33. Similarly, Section 15 of the Civil Procedure Code provides that every suit shall be instituted in the Court of lowest grade competent to try it and as per Section 141 of Civil Page 73 of 81 O/OJCA/371/2015 CAV JUDGMENT Procedure Code, the procedure prescribed in the Code with regard to suits shall be followed as far as it can be made applicable in all the proceedings in any Court of civil jurisdiction. Therefore, when the concurrent jurisdiction is given to the District Court as well as to the High Court to entertain testamentary petition, the testamentary proceedings are required to be filed before the District Court first.
34. This Court is also in agreement with the submission canvassed on behalf of learned advocate Mr.Shah that under Section 299 of the Indian Succession Act, an appeal can be preferred to the High Court against the order passed by the District Court while exercising the powers conferred upon him under the said Act. Thus, if the testamentary petition is directly filed before this Court, then the aggrieved party will not get a chance to prefer statutory appeal i.e. first appeal before this Court and, therefore, Section 299 would become redundant. Thus, in my view, the testamentary petition is required to be filed first before the District Court.
35. In Criminal Procedure Code, 1973, under Sections 438 and 439, powers are given to the Sessions Court as well as the High Court to entertain application for anticipatory bail and Page 74 of 81 O/OJCA/371/2015 CAV JUDGMENT application for bail, as the case may be. However, this Court as well as different High Courts have held that though the concurrent jurisdiction is given to the High Court, ordinarily, application for anticipatory bail or application for bail is required to be filed before the Sessions Court first unless special/exceptional circumstances are pointed out by the applicant to approach before the High Court. In the present case, the present petitioner has failed to demonstrate any special/exceptional circumstances for directly approaching before this Court for grant of probate and, therefore, also present proceedings are required to be transferred to the District Court.
36. In the case of Joginder Singh (supra) the High Court of Punjab and Haryana has held in paragraph No. 10 as under:
"10.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 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.Page 75 of 81 O/OJCA/371/2015 CAV JUDGMENT
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."
37. In the case of A.V. Arockiam (supra) decided by High Court of Madras, the Madras High Court has observed in paragraphs No.35 and 37 as under:
"35. There is a provision in the Code of Civil Procedure under Section 24 giving general power of transfer and withdrawal both on the District Court and the High Court. But what makes all the difference between the Indian Divorce Act on the one hand and the provisions of the Code of Civil Procedure and the Code of Criminal Procedure on the other is the presence of the expression "as the case may be" in Section 3(4) of the Indian Divorce Act. The said expression "as the case may be" would only mean that if the parties last resided together at a particular place, the District Court having jurisdiction over that place would be alone competent to entertain a petition under the Indian Divorce Act. Proviso to clause 35 of the Amended Letters Patent cannot also be ignored. If the parties resided within the jurisdiction of the High Court, the High Court as also the Family Court would have jurisdiction to entertain the petition. That appears to be the only logical way of looking at this.Page 76 of 81 O/OJCA/371/2015 CAV JUDGMENT
37. The question for consideration is therefore answered in the following manner:
Though, in view of the judgment of the Full Bench in Mary Thomas V. Dr.K.E.Thomas (1989) 104 Mad LW 344 the High Court may be said to have concurrent jurisdiction, the petitions have to be filed only before the District Courts concerned in view of Section 15 of the Code of Civil Procedure."
38. In the case of Executive Engineer, Road Division (supra), the State of Maharashtra, through its Public Works Department, awarded a contract in favour of the respondent-company. Dispute arose between the parties and, therefore, the dispute was referred to the Arbitrator. The Arbitral Tribunal rendered the award in favour of the respondent-company and the counter claims raised by the State of Maharashtra before the Arbitral Tribunal were rejected. The State of Maharashtra, therefore, moved the Miscellaneous Application under Section 34 of the Arbitration and Conciliation Act before the District Judge, Thane and prayed for quashing and setting aside the arbitral award. On the same day, the respondent-company filed Arbitration Petition before the High Court of Judicature at Bombay for setting aside some of the direction issued by the Arbitral Tribunal and also claimed further Page 77 of 81 O/OJCA/371/2015 CAV JUDGMENT compensation. Since the same award was subject matter of challenge before two different Courts, the Company preferred Miscellaneous Application under Section 24 of Civil Procedure Code praying for transfer of Miscellaneous Application filed by State of Maharashtra pending before the District Court, Thane to the original side of the High Court. The Hon'ble Supreme Court, considered the definition given in Section 2(1)(e) of the Arbitration Act which defines the word "Court". The said definition provides that:
(e) "Court" means the Principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any civil court of a grade inferior to such Principal Civil Court, or any Court of Small Causes."
39. Thus, the Bombay High Court is having ordinary original civil jurisdiction and the definition given in Arbitration Act in Section 2(1)(e)also provides that `Court' includes the High Court in exercise of its ordinary original civil jurisdiction. Thus, the Hon'ble Supreme Court transferred the files pending before the District Judge, Thane to the High Court for Page 78 of 81 O/OJCA/371/2015 CAV JUDGMENT disposal. However,in the present case, this Court is not dealing with the definition of the `Court' given under the Arbitration Act and this Court is not having ordinary original civil jurisdiction. Therefore, I am of the opinion that the present proceedings are required to be transferred to the District Court which is having ordinary original civil jurisdiction.
40. Thus, in view of the aforesaid discussion, the answer to the first issue is that the objector in the present case is having right to raise the objection which is required to be considered by this Court and, therefore, the only objection at this stage which is considered by this Court is with regard to jurisdiction of this Court. The other contentions and objections are kept open. The objector is permitted to raise other contentions/objections before the District Court.
41. The answer to the second issue is that though this Court is having concurrent jurisdiction, the testamentary petition is required to be filed first before the concerned District Court.
42. The other contentions of the learned advocates for the parties are not discussed in Page 79 of 81 O/OJCA/371/2015 CAV JUDGMENT detail and it is open for the parties to raise all available contentions before the District Court as and when these proceedings are transferred to the said Court. It is open to the District Court to consider the contentions of the petitioner as well as the objector on its own merits without being influenced by observations made by this Court in this judgment.
43. In view of the aforesaid discussion, the OJ CA No.371 of 2015 filed by the objector is allowed. Rule is made absolute. The main petition i.e. Testamentary Petition no.1 of 2014 along with OJ CA No. 669 of 2014 are hereby transferred to the District Judge, Vadodara for disposal in accordance with law from the present stage at which it is pending in this Court. Registry is directed to send the complete record of the case to District Judge, Vadodara. Parties are directed to appear before the District Judge, Vadodara on 1.9.2015.
(VIPUL M. PANCHOLI, J.) Srilatha After the pronouncement of the judgment, learned advocate Mr.Desai for Mr.Raval appearing for the original petitioner has requested that this judgment be stayed for a period of six weeks. Request as prayed for is accepted. The Page 80 of 81 O/OJCA/371/2015 CAV JUDGMENT implementation of this judgment is stayed for a period of six weeks.
(VIPUL M. PANCHOLI, J.) Srilatha Page 81 of 81