Bombay High Court
Shri Shridhar And Baba Keshav Phadke And ... vs Shri Shivram And Bal Keshav on 26 February, 1997
Equivalent citations: (1997)99BOMLR744
JUDGMENT R.C. Vaidyanatha, J.
1. This is an appeal against the order dated 23.12.1988 in Special Civil Suit No. 50 of 1984 on the file of V. Joint Civil Judge, Senior Division, Pune. Heard both the sides.
2. The respondents filed a petition for probate in the Court below against the appellants in Misc. Application 299 of 1981. The appellants appeared before the Court and filed their objections. Since the probate proceedings were contested, the Trial Court treated the Miscellaneous application as a suit and registered it as as Special Civil Suit. The original objections filed by the appellants was treated as written statement. Both the parties adduced evidence in support of their rival contentions. After recording evidence and hearing both the sides, the trial Court decreed the suit by granting a Letter of Administration. Being aggrieved by the judgment and decree of the Trial Court, the original defendants have come up with the present appeal.
3. Few facts which are necessary for the disposal of this appeal are as follows:
The parties will be referred as per their rankand title in the Court below.
The respondent-plaintiff, Shridhar and Vishwanath were three brothers. They were the sons of one Keshav Phadke who died leaving a Will in favour of his wife Savitribai. Subsequently, the mother Savitribai executed a Will dated 28.11.1978 and she died on 29.3.1981. Under the Will, there is a bequeath of property in favour of the original plaintiff; since no executor had been appointed under the Will Miscellaneous Application was filed for Letter of Administration on the basis of the Will of the mother dated 28.11.1978. It appears one brother Shridhar died leaving behind his wife and three children. Their defence to the suit was that Savitribai had left behind a codicil dated 9.11.1980 under which a portion of the properly was bequeathed 10 Shridhar and therefore, the defendants objected to granting of letter of administration on the basis of the Will. But their defence is that the codicil should be taken into consideration before granting relief prayed in the plaint. They objected to the grant of letters of administration on the basis of the Will but wanted the relief should be granted on the basis of the Will modified by the Codicil. The learned trial Court framed the following issues:
Issues.
1. Do the defendants prove that the deceased Savitribai wife of Keshav Phadke had executed a Codicil on 9.11.1980 to her Will dated 28.11.1978?
2. Do the defendants prove that the said Codicil dated 9.11.1980 is legal, proper and valid?
3. Do the defendants prove that the defendants did not act as per the terms and condistions of the Codicil?
4. Do the defendants prove that the defendants Nos. 1 and 2 acquired legal rights and the interest to the extent of half share in the suit property on the strength of Codicil dated 9.11.1980?
5. Is Petitioner entitled for letters of administration in respect of the will dated 28.11.1978, executed by deceased Savitribai?
6. What order and decree?
4. After recording evidence and hearing both sides, the trial Court held that the defendants have failed to prove the codicil dated 9.11.1980. Since the codicil held not proved and there was no dispute about the execution of the Will, the trial Court decreed the suit and granted letters of administration on the basis of the Will of the mother dated 28.11.1978.
5. The learned Counsel for the appellants questioned the correctness and legality of the findings of the trial Court on the codicil dated 9.11.1980, but his main contention before this Court is that the Civil Judge, Senior Division had no jurisdiction to try this case since there was no transfer of proceedings by the District Judge as required by law. He therefore, contended that the impugned order is without jurisdiction and liable to be set aside. While supporting the findings of the trial Court on the codicil, the learned Counsel for the Respondent contended that the appellant has acquiesced in the proceedings and never raised the plea of jurisdiction over the last 17 years he cannot be permitted that plea for the first time at the final hearing of the appeal and therefore, the said plea should be rejected summarily. Further he submitted that the plea of jurisdiction has no merit.
6. In the light of the arguments addressed before me, the points that fall for determination are:
(1) Whether the Civil Judge, Senior Division had no jurisdiction to try this case and the impugned order is liable to be set aside on the ground of want of jurisdiction?
(2) Whether on merits, the finding of the trial Court regarding codicil is justified or liable to be set aside?
(3) What order?
Point No. (1)
7. The Miscellaneous Application was filed in the court below in 1981 which was objected by the appellants by filing their objections. No plea was taken regarding the jurisdiction of the Court though the learned Civil Judge, Senior Division, passed an order dated 21.1.1987 to the effect that since the Miscellaneous application is now contested it should be treated as Special Civil Suit and had ordered accordingly and then the matter was tried as a Civil Suit. Even after this order, no attempt was made by the appellants to raise the plea of jurisdiction. The proceedings were pending in the trial Court for 7 or 8 years. At no stage, appellants raised the plea of want of jurisdiction. They submitted to the jurisdiction of the Trial Court and produced the witnesses and took a chance on merits. However, on merits their plea was rejected by the trial Court and suit was decreed.
Then the appeal was filed in this Court in 1990. As many as 8/9 grounds are taken in the memorandum of appeal on merits of the case but even in the appeal memo, no ground was taken on the point that the trial Court had not jurisdiction to pass the impugned order. When the matter came up for final hearing now after 7 years of filing of the appeal and 16 years after the proceedings were instituted in the trial Court in 1981, vehement arguments were addressed on behalf of the appellants that the trial Court had no jurisdiction and competence to pass the impugned order. The learned Counsel for the Respondent is, therefore, right in his submission that the appellants have acquiesced and submitted to the jurisdiction of the trial Court where the proceedings were pending for nearly 8/9 years and at this late stage they cannot be heard to contend that the trial Court had no jurisdiction to try this case. The learned Counsel of the appellants submitted that if the trial Court had no jurisdiction then the jurisdiction cannot be conferred by a mere waiver or even by consent.
It is true that if the Court lacks inherent jurisdiction then the jurisdiction cannot be conferred by consent or by way of waiver. But I will presently point out that this is not a case of inherent lack of jurisdiction. It is a case where there was no formal order of transfer by the District Judge to the Court of Civil Judge, Senior Division and therefore, it was argued that the Civil Judge, Senior Division had no jurisdiction. It is purely a procedural conferment of jurisdiction and not a case of inherent lack of jurisdiction.
If the appellants had taken this plea at the earliest point of time when they had filed their objections in 1982/83 or at least when their suit was registered in January, 1984 and pointed out to the Court that it had no jurisdiction since there was no order of transfer from the District Judge to the Civil Judge, Senior Division, the learned Civil Judge would have written a letter to the learned District Judge, Senior Division and got a formal order of transfer or the Civil Judge could have pointed out any general or special notification issued by the District Judge by confirming the jurisdiction on a particular civil judge Senior Division by a special or general Order. That is why, always, the question of jurisdiction must be raised at the earliest point of time and preferably before issues are settled. This has been statutorily recognised in Section 21 of the Code of Civil Procedure, where the case of territorial jurisdiction or pecuniary jurisdiction the objections must be raised at the earliest point of time and before issues are framed. Now, the point cannot be raised at the final hearing of the appeal when the appellant slept over the matter for 16 years after the proceedings were instituted.
8. In this connection, I may also refer to Section 99 of the Code of Civil Procedure where it is clearly provided that no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on any account of any misjoinder (or non-joinder) of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court:
The only point that is highlighted by the learned Counsel for the appellant is that when once the proceedings before the trial Court becomes contested proceedings, there should have been a formal transfer of proceedings by the District Judge to the Court of Civil Judge, Senior Division and if there is no such order of transfer than the Civil Judge had no jurisdiction. Even if we accept this argument at its face value, at best, it is a case of irregularity in the procedure adopted by the learned trial Court which does not go to the merits of the case or touches the jurisdiction of the Court. It is more so when the point was not raised at the earliest point of time. Hence, the appellant cannot be permitted to raise this plea at this belated stage about 16/17 years after the proceedings came to be instituted.
9. Even granting for a moment that this is purely a question of law and therefore, it can be raised at any stage, let me examine the merits of the argument.
Under Section 264 of the Indian Succession Act, the learned District Judge is empowered to grant probate and letters of administration within his district: Then Sub-clause (2) says that no other Court shall have jurisdiction regarding this matter, unless there is a notification issued by the State Government.
Then we have Section 265 of the Indian Succession Act which enables the High Court to appoint Judicial Officers as delegates to grant probate and letters of administration in non-contentious cases. Therefore, it is a case of the High Court being empowered to appoint district delegates to exercise powers of a District Judge in non-contentious cases.
The learned Counsel for the appellant heavily relied on Sections 285 and 288 of the Indian Succession Act. Strictly, speaking Section 287 is not attracted. But in Section 288, it is provided that when proceeding become contentious, the district delegate should not proceed with the matter and pass an order directing that the Petition be presented to the District Judge. It is, therefore, clear that if a District Delegate is dealing with a non-contentious matter and subsequently it becomes a contested matter, he has no jurisdiction to proceed with the case except ordering that the Petition be presented to the District Judge or he has also powers to impound the proceedings and transfer the same to the District Judge.
In my view, Section 288, is not attracted to this case for the simple reason that this is a not a proceeding initiated before a district delegate. Therefore, strictly speaking Section 288 is not attracted to this case.
10. Here is a case where the Civil Judge, Senior Division is dealing with the matter.
Section 28(A)(1) of the Bombay City Civil Courts Act, 1869 empowers the High Court to invest Civil Judges by a general or special order with all the powers of the District Judge under the provisions of the Indian Succession Act etc. By virtue of this provision, conferring the powers by High Court is provided in the Civil Manual Vol. I of 1986 Edition Rule 305.
Rule 305(i) provides that the High Court has appointed all Civil Judges to act as delegates of the District Judge in granting probate etc. In non-contentious cases.
Section 305(ii) does provide that the High Court has invested all Civil Judges, Senior Division with all the power of a District Judge which reads as follows:
3O5(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 al 1 the power of a District Judge to take cognizance of any contested proceeding under Indian Succession Act, 1925, arising within the local limits of their respective jurisdiction that may be transferred to them by their respective District Judges.
It is, therefore, seen that under this Rule, the High Court empowere all the Civil Judges, Senior Division with all the powers of a District Judge but the learned Counsel for the appellant laid stress on the word "that may be transferred to them" by the District Judge and pointed out that in the present case, there is no order of the District Judge to transfer the case to the Civil Judge. Senior Division. It was, therefore, submitted that when there was no such order of transfer, the Civil Judge had no jurisdiction to grant any relief.
This is not a case of inherent lack of jurisdiction. The Civil Judges are empowered with all the powers of a District Judge in contentious cases also. Therefore, the Civil Judge, Senior Division has undoubted jurisdiction to decide the contested matters. The fact that there is a provision made for a procedural aspect that the cases may be transferred from the District Judge and if there is some defect in that procedure, it will not touch the jurisdiction of the Civil Judge, Senior Division. Therefore, it is not a case of inherent lack of jurisdiction. At worst it may be a case of some defect in the procedure which does not go to the root of the matter but in such a case Section 99 of the Code of Civil Procedure is attracted and if there-is a procedural defect the appellate Court should not set aside the order passed by the subordinate court. The same principle finds place in Section 21 of the Code of Civil Procedure regarding territorial and pecuniary jurisdiction. Reliance was also placed by the learned Counsel for the Respondents on AIR 1977 Bom. 41. There, it has been pointed out that the High Court has empowered all the Civil Judges, Senior Division to try and decide the matters under the circular issued by the High Court. That was a case where the case was initially transferred from the District Judge, to the Civil Judge. At that stage, it was a non-contentious matter. Subsequently, when the matter became contested, the question was whether the proceedings should be stopped by the Civil Judge and he should get a further order of transfer from the District Judge. The High Court negatived this contention and held that since Civil Judge, Senior Division has been given all the powers of a District Judge and he was not working as a District delegate there was no necessity to get a fresh order of transfer from the District Judge after the matter became contested.
11. The learned Counsel for the respondent tries to interpret Rule 305(ii) of the Civil Manual where the word "transferred" mentioned therein pertains to jurisdiction of the Court and not to transfer of the case. This position was seriously disputed by the learned Counsel for the appellants. In my view, even if we accept the interpretation placed on 305(ii) of the Civil Manual by the learned Counsel for the appellants and even if it is held that there was no order of transder, it does not affect the jurisdiction of the Civil Judge, Senior Division to hear the matter when he is conferred with all the powers of the" District Judge in a contested case by the High Court Circular. Procedure of transfer is only formal in nature and does not affect jurisdiction of the Civil Judge. As has already been pointed out by me that this point should have been raised at the earliest point of time this is not a pure question of law; whether there was such notification or not is a question of evidence; if this point was raised at the earliest point of time, the respondent would have moved the District Judge and got order of transfer or he could have produced a notification issued by the District Judge either generally or specially for transfer of contested cases to the Civil Judge, Senior Division. The Civil Judge, himself could have written a letter to the District Judge and obtained a formal order of transfer; having not taken such a step at the earlies stage, it is not now open to the appellants to raise this plea for the first time in the High Court and that too at the time of final hearing. Even granting that there was some defect in the procedure adopted by the trial Court, it does not affect the power of the Court to grant the relief. The High Court has empowered all the Civil Judges with powers of a District Judge and that power is sufficient to grant relief. The question of providing for transfer is a procedural aspect and it does not affect the jurisdiction of the Court. Hence, I am not impressed by the argument of the learned Counsel of the appellant that the impugned order is without jurisdiction and liable to be set aside. Point No. 1 is answered accordingly.
Point No. (2)
12. As far as merits are concerned, the appellants have no better case. They have adduced some evidence to prove the codicil dated 9.11.1980. On the other hand, the respondents took the stand that the codicil is a forged document and it was not signed by his mother.
The appellants examined two witnesses Shri Kundalkar and Smt. Joglekar. The trial Court has considered their evidence and found that they are interested witnesses being the friend of first defendant and they were not acquainted with the old lady and therefore, their very presence to act as witnesses for codicil was doubtful. The trial Court examined their evidence and found that these two witnesses are not reliable and their evidence is not sufficient to prove the codicil.
It is also seen from the materials on record that P.W. 5. Shriniwas Phansalkar retired examiner of documents from Government service was appointed as a Commissioner to examine the disputed codicil. He examined the original Will which is an undisputed document and the disputed codicil. After examining the documents and obtaining the enlarged photographs he compared the disputed signature of Savitribai appearing on the codicil with that of the admitted signature of Savitribai on the Will. He also gave evidence in Court producing the photographs and other documents. The trial Court has pointed out that his evidence clearly proves that the codicil is a forged document and it is not proved to be executed by Savitribai.
Nothing is pointed out as to why finding of the trial Court is vitiated. The learned trial Court has considered the evidence adduced by both the parties and has come to the conclusion that the codicil is not duly proved; the learned Counsel of the appellant was not able to demonstrate and point out as to why the finding of the trial Court is vitiated. After reappreciating the evidence I find that the trial Court's finding on this point is fully justified from the evidence on record. The finding of the trial Court does not call for interference by this Court. Agreeing with the trial Court I hold that the codicil is not proved.
13. If once it is held that the codicil is not proved and when there is no dispute about the will dated 28.11.1978, the plaintiff is entitled to letter of administration on the basis of the said Will. No exception can be taken to the decree passed by the trial Court. Hence, the appeal has to fail.
14. In the result, the appeal fails and is dismissed with costs. The Judgment and decree of the trial Court are confirmed.
Certified copy of this Judgment/Order be issued expeditiously.