In Re: sailendra Krishna Ray

Manohar Lall, J.—In this reference by a learned Single Judge of this Court the question for decision is whether the Patna High Court has jurisdiction to grant a succession certificate.

The applicant is the only son of late Babu Atul Krishna Ray, who died in Laheriasarai on 3oth June 1946, and was ordinarily resident at that place at the time of his death and therefore within the local limits of the jurisdiction of the District Judge of Darbhanga.

The Stamp Reporter raises an objection that this Court has not the jurisdiction to grant the succession certificate in view of the decision of the Allahabad High Court In Re: Rajendra Chandra Sen, . The applicant, on the other hand, relied upon the practice which is said to have prevailed in this Court from 1940 and on the authorities of In the goods of In Re: Bholanath Pal, Deceased, . In the matter of Indian Succession Act 1925 and the Estate of L.A.B. Aroonachellam Chettyar A.I.R.1931 Rang. 281 and In re Kuppuswami Nayagar A.I.R.1930 Mad. 779.

Before considering the case law, it is ad-visable to look to the provisions of the Letters Patent of the Patna High Court and the relevant sections of Succession Act, 1925, and its amendment in 1929. The civil jurisdiction of the Patna High Court is defined in paragraphs 9 and 10 of the Letters Patent and is divided into extraordinary original jurisdiction (paragraph 9) and the appellate jurisdiction (paragraph 10). The testamentary and intestate jurisdiction conferred upon this Court is defined in paragraph 26 but relates only to the granting of probates of last wills and testaments, and letters of administration of the goods, chattels, credits and all other effects what sever of persons dying intestate. Proceedings for the grant of succession certificates are of a civil nature and have always been treated as falling within the original civil jurisdiction of the Judge. I am deliberately using the word ''Judge'' and not the District Judge, or a ''High Court Judge.'' No original civil jurisdiction is conferred by our ''Letters Patent.

Upon a plain reading of the relevant paragraphs of the Letters Patent of this Court it is clear to me that this Court has no jurisdiction to grant succession certificates.

The learned advocate for the appellant argued that the High Court at Patna has always an original jurisdiction (as distinct from original civil jurisdiction which may be called ordinary original jurisdiction under which this Court has the power to grant succession certificates). A similar argument was advanced unsuccessfully before the Judicial Committee In the matter of Gandas; Narrondas Navivahu v. C.A. Turner 13 Bom. 520 Lord Hobhouse delivering the judgment of the Board made the following observations at page 533:

But it was strongly contended at the bar that this jurisdiction though civil and original was not ordinary and Mr. Rigby argued that the passages of the Charter which have just been epitomized divide the jurisdiction into four classes--ordinary original, extraordinary original, appellate and those special matters which are the subject of special and separate provisions. But their Lordships are of opinion that the expression "ordinary jurisdiction" embraces all such as is exercised in the ordinary course of law and without any special step being necessary to assume it: and that it is opposed to extraordinary jurisdiction, which the Court may assume at its discretion upon special occasions and by special orders They are confirmed in this view by observing that in the nest group of clauses which indicate the law to be applied by the Court to the various classes of oases, there is not a fourfold division of jurisdiction but a threefold one, into ordinary, extraordinary and appellate. The judgment of 1868 was entered up by the High Court, not by way of special discretionary action but in the ordinary course of the duty cast upon it by law according to which every other case of the same kind would be dealt with. It was, therefore, enter d up in exercise of the ordinary original Civil jurisdiction of the High Court and no present right-accrued to the Official Assignee to move for execution until the order of 5th April 1886 was made

See also a recent decision of the Privy Council, Hamid Hassan Nomani v Banwarilal Roy 1947 AIR 1947 P.C. 90.

Every High Court, therefore, can only possess ordinary, extraordinary and appellate civil jurisdiction. I have already shown from an examination of the Letters Patent of the Patna High Court that this Court has been granted only two civil jurisdictions, namely, extra-ordinary and appellate It follows that it has no jurisdiction to entertain proceedings to grant succession certificates.

It was then argued that by Section 300, Succession Act, the High Court has been granted concurrent jurisdiction with the District Judge in the exercise of all the powers conferred upon the District Judge by the Act. This argument is also not sound because 8 300 occurs in Chap. iv, Part IX of the Act Part IX relates to "probate, letters of administration and administration of assets of deceased" and Chapter Iv therein deals with the practice in granting and revoking probates and letters of administration. The pro visions for the grant of succession certificates are to be found in para. 10 of the Letters Patent of this Court in which it is nowhere provided that the High Court shall have concurrent jurisdiction with the District Judge in the exercise of the powers conferred upon the latter for granting succession certificates.

It was also argued that in the Act of 1925, there was no definition of the word "District Judge" and therefore, those words according to the General Clauses Act, could not include a High Court and that it was to get over this anomaly that a new definition of the words "District Judge" was inserted in Section 2(bb) in 1929 providing that it means the Judge of a principal civil Court of original jurisdiction. It was, therefore, submitted that the High Court Judge being a Judge of a principal civil Court of original jurisdiction has the power to grant succession certificates. In my opinion, this argument also is not entitled to ''succeed. I have already shown that a Judge of the Patna High Court is not a Judge of a principal civil Court of original jurisdiction. In my opinion, the amendment merely empowered Judges of those. High Courts which possessed original civil jurisdiction to grant succession certificates.

I now turn to the case law on the point In Kuppuswami Nayagar case A.I.R.1930 Mad. 779, the judgment of the-Division Bench which beard the reference merely states that having regard to the amendment of he Act the learned Judges were of the opinion that the application for the grant of succession certificate was now maintainable in that Court. It is not clear from the report whether the deceased was resident within the ordinary jurisdiction of the Madras High Court at the time of his death. If he was so resident, with respect to the learned Judges, I am of opinion that the judgment is correct. The observations (at p. 241 of the report) support this view because it was said:

there is no reason why there should be a facility for persons outside Madras in respect of collection of Email debts and securities when such facility is being denied to those in Madras.

The learned Judge, it may also be observed, while giving a quotation from the decision of the Privy Council in Navivahu''s case 13 Bom. 520, did not refer to the important observations which I have already -quoted (from page 583 of the report).

The next case relied upon was In Re: Bholanath Pal, Deceased, . This is a decision of a single Judge of the Calcutta High Court and has certain peculiar features. The application was originally made to the learned Judge on the original side for grant of letters of administration. The learned Judge, admittedly, had full jurisdiction to entertain such an application, but during the course of the proceedings the parties agreed that instead of granting letters of administration a succession certificate might be issued. The sue-cession certificate was asked for in respect of Government Promissory Notes belonging to the deceased. It is not clear from the report what was the place of the death of the deceased and what was the place at which the Government Promissory Notes were at the time of the death of the deceased. If, however, the succession certificate was granted in respect of the estate of the deceased outside the jurisdiction of the Calcutta High Court, I am unable to treat this decision as one which should be followed by the Patna High Court. In the case of Aroonchellam Chettyar A.I.R.1931 Rang. 281, also it is not clear that the deceased was not resident within the ordinary jurisdiction of the Rangoon High Court, and therefore, is of no assistance.

I would prefer to follow the decision in In Re: Rajendra Chandra Sen, , where, with great respect, the learned Chief Justice has taken the correct view as I have just expressed.

For these reasons, I am of opinion that the objection of the Stamp Reporter is well founded and the application for grant of succession certificate must be rejected.

Imam J.

Since 1940, this Court began to entertain applications for succession certificates under the Succession Act, (Act xxxix [89] of 1925) hereinafter referred to as the Act. In a stamp report the Stamp Reporter raised the question as to whether this Court had jurisdiction to entertain such applications. The report was considered by Bennett J. who thought that the matter should be more authoritatively dealt with by a larger Bench and accordingly he referred the question of law as to whether this Court had or had not jurisdiction to grant a succession certificate for decision of a Division Bench It is quite obvious that if this Court has no jurisdiction to grant succession certificates under the Act, the fact that it had been granting such certificates for the last seven years would not confer jurisdiction on this Court to do so.

Before I refer to the legislation which has taken place in the course of years in India with reference to grant of probate, letters of administration and succession certificates I would like to refer to the observations of Lord Hobhouse in the case of Candas Narron Das Navivahu 13 Bom. 520. Although that was a case arising out of insolvency proceedings, Lord Hobhouse had considered the various provisions of the Charter of the Bombay High Court. It had been contended before their Lordships of the Privy Council that the civil jurisdiction of the Bombay High Court was of four kinds--ordinary original, extraordinary original, appellate and those special matters which are the subject of special and separate provisions. This contention was clearly negatived by their Lordships of the Judicial Committee. Lord Hobhouse explained that the expression "ordinary jurisdiction" embraces all such as is exercised in the ordinary course of law and without any special step being necessary to assume it; and that it was opposed to extra-ordinary jurisdiction, which the Court may assume at its discretion ''upon special occasions'' and by special orders. His Lordship then went on to say that there was not a fourfold division of jurisdiction but a three fold one, into ordinary, extra, ordinary and appellate. The Letters Patent of this Court do not confer ordinary original civil jurisdiction. It was, however, argued on behalf of the applicant that Clause 26 of the Letters Patent of this Court conferred on it ordinary jurisdiction in matters testamentary and in. testate. I think there can be little doubt that when this Court is granting probate of wills and testament and letters of administration "ordinary jurisdiction" is being exercised. This jurisdiction, however, has been specifically granted by the Letters Patent of this Court, that is to say, it was a jurisdiction exercised, to use the words of Lord Hobhouse, in the ordinary course of law and without any special step being necessary to assume it. By Section 300 of the Act concurrent jurisdiction has been given to the District Judge and the High Court in relation to the granting of probate of wills and testaments and letters of administration. Such provision was undoubtedly made in order to conform not only with the Letters Patent of this Court but also with the Letters Patent of the other High Courts which contain a similar provision. Although the exercise of such jurisdiction under the Letters Patent of this Court and Section 300 of the Act may be said to be "ordinary jurisdiction" as it is exercised in due course of law without any special step being necessary to assume, it does not follow thereby that this Court is "a principal civil Court of original jurisdiction". To answer this question, it is necessary to examine the provisions of the various Acts which directed the procedure to be followed in such matters previous to the passing of the Act.

The Act which received the assent of the Governor-General on 30th September 1925, was not an Amending Act but a consolidating one. The preamble itself states that it is expedient to consolidate the law applicable to intestate and testamentary succession in British India. Previous to the Act there were various Acts which dealt with the granting of probate and letters of administration and succession certificates. The Act contained many of the provisions contained in the other Acts. The Act has been divided into various parts, and part IX deals with probate and letters of administration and administration of assets of deceased. Part X deals with succession certificates. For the purposes of this case, it is unnecessary to refer to the other Acts except the Succession Act of 1865 (Act X [10] of 1865) and the Succession Certificate Act, 1889 (Act VII [7] of 1889). Although, Act x [10] of 1865 is entitled the Succession Act, 1865, its preamble states that it is expedient to amend and define the rules of law applicable to intestate and testamentary succession in British India. I have not been able to find in this Act any provision of the granting of succession certificates. The expression "District Judge", however, is defined and it is stated to mean "the Judge of a principal civil Court of original jurisdiction." The expression "High Court" is also defined in this Act to mean "the highest Civil Court of Appeal therein" (that is to say, within the expression "Local Government.") The Sue cession Act, 1865, therefore, defined both the expressions "District Judge" and "High Court." Section 263 of the said Act states that

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 under the rules contained in the CPC applicable to appeals.

Section 264 of this Act, however, provided 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.

It seems to me, therefore, that under the Succession Act, 1865, not only were the expressions "District Judge" and "High Court" defined, but there were dear indications in its provisions that the distinction in the two expressions was a real one. It is for this reason that Section 264 specifically stated that the High Court shall have concurrent jurisdiction with the District Judge in the exercise of all the powers conferred upon the District Judge. When the Act received the assent of the Governor-General in 1925 it did not contain any definition of the expressions "District Judge" or "High Court". Accordingly the definition of the expression "District Judge" as to be found in the General Clauses Act, 1897, was applicable. The proviso to the definition "District Judge" in the said Act clearly excluded the High Court in the exercise of its ordinary or extra-ordinary original civil jurisdiction. Section 299 of the Act contained a similar provision to Section 263, Succession Act of 1865, with a slight alteration. Section 300 of the Act conferred concurrent jurisdiction on the High Court in the exercise of all the powers conferred upon the District Judge, a provision similar to that of Section 264, Succession Act of 1865. It was found in the course of time that the omission to define the expression "District Judge" in the Act prevented the High Court from exercising the various powers conferred on the District Judge under the Act. Accordingly by the amending Act of 1929 "District Judge" was defined to mean "the Judge of a principal civil Court of original jurisdiction". It is, however, to be remembered that Section 300 of the Act is in Part ix which deals with probates and letters of administration only and not succession certificates.

Previous to the Act, succession certificates were granted under the Succession Certificate Act 1889 (Act VII of 1889). Clause (4) to Section 1 prohibits the granting of certificates under the Act with respect to any debt or security to which a right can be established by probate or letters of administration under the Succession Act, 1865, or by probate of a will to which the Hindu Wills Act, 1870, applies, or by letters of administration with a copy of such a will annexed. In this Act "District Court" is defined and not "District Judge". The definition of "District Court" in this Act is as follows:

District Court'' subject to the other provisions of this Act and to the provisions of proviso (b) to Section 23, Punjab Courts Act, 1884, and of any other like enactment for the time being in force, means a Court presided over by a District Judge.

The expression "High Court" has not been defined in this Act and there is no provision there, in which gives concurrent jurisdiction to the High Court to grant succession certificates. Section 19, however, makes provision for an appeal to the High Court from an order of the District Court granting, refusing or revoking a certificate under this Act. It further gives the power to the High Court by its order in appeal to declare the person to whom the certificate shall be granted and to direct, the District Court, on application being made there for, to grant it accordingly in supersession of the certificate, if any already granted. The Succession Certificate Act, 1889, (Act VII [7] of 1889) repealed Act xxvii [27] of 1860. Succession Certificates were granted under Act XXVII [27] of 1860 by the District Court and there was provision therein for an appeal to the Sudder Court which Court could suspend the granting of a certificate and declare the party to whom the certificate should be granted. The Sudder Court could also upon petition after a certificate had been granted by the District Court grant a fresh certificate in supersession of the certificate granted by the District Court. Act XXVII [27] of 1860 defined "District Court" to mean "a principal civil Court of original jurisdiction in a Zillah or District" and "Sudder Court" to include the highest civil Court of appeal in any part of the British territories in India not subject to the control and superintendence of a Sudder Court.

I have referred to the various Acts which governed the granting of probate and letters of administration and succession certificates before the passing of the Act in order to ascertain bow such grants were made previously. It will be seen, therefore, that until the passing of the Act succession certificates were not granted in the exercise of original jurisdiction by either the Sudder Courts or the High Courts. When the Act was passed, consolidating the law applicable to intestate and testamentary succession in British India, the provisions therein, for the granting of succession certificates, were contained in Part x of the Act. Part X of the Act contains no such provision as Section 300 of Part IX of the Act, that is to say, it does not confer on a High Court concurrent jurisdiction with the District Judge in the exercise of all the powers conferred upon the District Judge. As the expression "District Judge" was not defined in the Act when it was enacted it is obvious that the High Court could not grant succession certificates under Part X of the Act having regard to the definition of "District Judge" in the General Clauses Act, 1897. In 1929, there was an amendment of the Act and the expression "District Judge" was defined to mean the Judge of a principal civil Court of original jurisdiction. The report of the Joint Committee stated.

The Succession Act 1865, contained in Section 8 a definition of the expression "District Judge" which was wide enough to include and was always held to include a Judge o� the High Court exercising probate jurisdiction on the Original Side. The Consolidating Act oft 1925, omitted this definition, with the result that the expression "District Judge" cannot be held to include a High Court in the exercise of its ordinary or extra-ordinary civil jurisdiction in view of the definition contained in the General Clauses Act, 1897. As the. Succession Act of 1925 now stands, numerous powers contained therein and given to District Judge have-not been given to the High Court on its. Original Side. This effect of the omission of the definition of "District Judge" from the Act of 1925 was apparently not fore seen and it is proposed to restore it.

I have quoted this passage from the report of tb.0 Joint Committee not with a view to interpreting the definition of the expression "District Judge" as now to be found in the Act in consequence of the amendment, but With a view to showing that the omission to define "District Judge" to the Act led to difficulties in the way of a Judge of the High Court exercising probate jurisdiction on the original side. If, on a proper interpretation of the definition of the expression "District Judge" in the Act as it now stands, it can be said to include a Judge of the High Court exercising jurisdiction on the original side, then there can be no doubt that the High Court would have jurisdiction to entertain an application for the grant of a succession certificate. I think, having regard to the definition, what has to be determined is as to whether this Court is "a principal civil Court of, original jurisdiction." If it is, then there is jurisdiction in this Court to grant a succession certificate under part X of the Act. Having regard to the Letters Patent of this Court, I am unable to find anything contained therein from which if could be inferred that this Court "is a principal, Court of original jurisdiction." It undoubtedly has original jurisdiction under its Letters Patent to grant probate and letters of administration* but it will be unreasonable to infer merely from that that this Court is a principal civil Court of original jurisdiction. Reference may now be made to the Letters Patent of the Calcutta, Bombay and Madras High Courts, under the heading "Civil Jurisdiction of the High Court." Clause 11 specifically provides that the said High Courts

shall have and exercise ordinary original civil jurisdiction within such local limits as may, from time tot time, be declared and prescribed by any law made by, competent legislative authority for India," etc.

Clause 12 specifically confers jurisdiction on those Courts in the exercise of their ordinary original civil jurisdiction to receive, try and determine suits of every description, if in the case of suits, for land or other immovable property, such land'' or property shall be situated, or in all other cases if the cause of action shall have arisen, either wholly, or in ease the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court, or if the defendant at the time of the commencement of the suit shall dwell, or carry on business, be personally work for gain within such limits, except that the said Courts shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause Court in which the debt or damage or value of the property sued for does not exceed one hundred rupees. Clause 22 comes under the heading "Criminal Jurisdiction." This clause confers upon these Courts ordinary original criminal jurisdiction within the local limits of their ordinary original civil jurisdiction. It is unnecessary to set out in detail the entire provisions of this clause. Clause 32 provides that they shall have and exercise maritime jurisdiction as may now be exercised by the said High Courts as a Court of admiralty or of vice-admiralty; and Clause 33 provides for the exercise of criminal jurisdiction in such matters. Clause 31 confers jurisdiction in matters testamentary and intestate. Clause 35 confers on them jurisdiction in matters matrimonial for persons professing the Christian religion. Clauses 9 and 10 of the Rangoon High Court confer ordinary original civil jurisdiction on that Court. The Letters Patent of this Court does not provide for ordinary original civil jurisdiction at all. Under the heading "Civil Jurisdiction of the High Court" under Clause 9 it is only extraordinary original civil jurisdiction which has been conferred. Under the heading "Criminal Jurisdiction," Clause 15 confers ordinary original criminal jurisdiction on this Court and Clause 17 confers extra-ordinary original criminal jurisdiction. Clauses 24 and 25 confer admiralty jurisdiction. Clause 26 confers jurisdiction in matters testamentary and intestate. Clause 27 confers matrimonial jurisdiction. It will thus be seen from the various clauses of the Letters Patent of this Court that ordinary original civil jurisdiction has not been conferred on this Court. It is true that when exercising admiralty jurisdiction, testamentary and intestate jurisdiction and matrimonial jurisdiction, it may be said that this Court is exercising ordinary jurisdiction in the sense that it is a jurisdiction assumed in the course of law and without any special step being necessary to assume it. I cannot persuade myself, however, to come to the conclusion that by the exercise of these jurisdictions just referred to this Court is constituted into a principal civil Court of original jurisdiction. The Letters Patent of the Allahabad High Court is similar to that of this Court. As far as I have been able to see past legislation, at no time previous to the amendment of the Act in 1929 was there any jurisdiction in the High Courts on its original side to grant succession certificates. The definition of "District Judge" as now to be found in the Act would include such High Courts as have ordinary original jurisdiction granted to them by their Letters Patent as they are, within the ambit of their territorial jurisdiction of the original side, principal civil Courts of original jurisdiction. It is for this reason that the decisions of the Calcutta, Madras and Rangoon High Courts may well be correct in view of the provisions of their Letters Patent and they should be distinguished from the decision of the Allahabad High Court.

I have given anxious consideration to the question raised and have come to the conclusion that this Court has no jurisdiction to grant succession certificates under part X of the Act and that the definition of the expression "District Judge" as given in the Act does not include a Judge of this Court as this Court Is not a principal civil Court of original jurisdiction. I agree with the judgment of my learned brother and I have expressed my opinion as the question raised is an important one. The application to this Court is misconceived and ought to be returned to the applicant to be presented to the proper Court.