In Re: In The Goods of Jogesh Chandra Mukherjee

Bachawat J.

This is an application for the issue of a succession certificate. The question is whether I have the jurisdiction to grant the certificate.

My jurisdiction to issue the certificate is circumscribed by the Indian Succession Act. Section 371 of the Indian Succession Act reads

The District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death, or, if at that time he had no fixed place of residence, the District Judge, within whose jurisdiction any part of the property of the deceased may be found, may grant a certificate under this part.

On the affidavits my findings are as follows: The deceased had a fixed place of residence at Sambalpore. The deceased also left behind him certain property within the jurisdiction of this Court. On this finding I am of the opinion that this Court has no jurisdiction to issue the certificate.

This Court has jurisdiction to issue the certificate on the ground that the part of the property of the deceased is to be found within the jurisdiction of this Court only if at the time of his death the deceased had no fixed place of residence. Inasmuch as at the time of his death the deceased had a fixed place of residence at Sambalpore this Court has no jurisdiction to grant the certificate on the ground that part of the property is to be found within the jurisdiction of this Court.

The power to grant the certificate on the ground of situs of property within the jurisdiction arises only if the deceased had no fixed place of residence. The question has arisen whether the words "he had no fixed place of residence" mean that the deceased had no fixed place of residence anywhere in the world or whether he had no fixed place of residence in the Union of India. The view which has now prevailed is that the words bear the latter meaning. The Court can issue certificate in respect of the debts due to a deceased who was a non-resident foreigner if his property is to be found within the jurisdiction of this Court although he may have a fixed place of residence outside the Union of India.

The relevant part of Section 371 therefore really means. "The District Judge within whole jurisdiction the deceased ordinarily resided at the time of his death or if at that time he had no fixed place of residence (within the jurisdiction of a District Judge).''''

I think this is the effect of the decisions In Re: Kanjee Abdul lttigul (1950) 54 C.W.N. 826. AIR 1935 646 (Lahore) , Krishnammal v. R. Rakshmi Ammal 1949 (2) M.L.T. 647.

The Petitioner relies upon certain observations of Sarkar in Re: Knnjec Ahdul Rasul (1950) 54 C.W.N. 826. The ratio of the decision is to be found in the following observations:

The second basis for giving jurisdiction mentioned in the section arises only on the failure of the first and hence it should be taken as meaning no fixed place of the residence within tl.\\e jurisdiction of a District Judge, that is to say, in India.

These observations in no way support the contention of the Petitioner that this Court has jurisdiction to grant certificate in the case of a citizen of India who has residence within the jurisdiction of another District Judge in India solely on the "round that the deceased has left behind certain property within the jurisdiction of another District Judge.

Reliance is next placed by the Petitioner on Section 372(6) of the Indian Succession Act. That section provides for the contents of an application for a certificate. There may he cases where a District Judge can issue a certificate because some part of the property of the deceased is situate within the local, limits of the jurisdiction of the District Judge, and the section provides that in such a case the particulars of such properly must be given in the petition. That section no way extends the jurisdiction conferred on a District Judge by Section 371 of the Indian Succession Act.

The second basis of jurisdiction mentioned in Section 371 is clearly an alternative and arises only on the failure of the first basis of jurisdiction. The view which I take is supported by the decision in Chan Pyu v. Cltan Chor Khine AIR (1923) Ran. 238.

Accordingly I have no jurisdiction to grant the certificate.

The application is dismissed. There will be no order as to costs. Certified for Counsel.