S. Rajapalani vs D. Babu

M. Jeyapaul, J.—The plaintiff originally filed O.P.No. 26 of 2002 seeking grant of letters of administration. As the defendant filed caveat on

11.4.2003, the Original Petition was converted into Testamentary Original Suit.

The plaintiff would submit that Arumugam who is the great great great grandfather of the plaintiff executed his last Will on 20.1.1901. It was

registered in the Sub Registrar''s Office, Cuddalore. He bequeathed one item of property to his only son A. Deivasigamani. He is no more and he

died many years ago. The particulars of the wife and children of Deivasigamani are not known to the plaintiff due to efflux of time. As per the

directions in the Will, the bequest goes to the hands of Duraisami, the second son of the Testator''s elder sister. No one was appointed as executor

under the said Will. As there was no issues to Deivasigamani, the plaint schedule property is succeeded by Duraisami, the second son of the

Testator''s elder sister. The said Duraisami is the grandfather of the plaintiff herein. Duraisami and his wife died many years ago. Six children were

born to Duraisami. Mrs. Radhabai Animal, one of the daughters of Duraisami is the mother of the plaintiff. The plaintiff, inspite of his diligent

enquiry, is unable to trace the particulars of the legal heirs of the other children of Duraisami. Iyyappan is the son of the plaintiff''s deceased elder

sister, who died many years ago. The said Iyyappan and the plaintiff are the only legal heirs. Further, the mother of the said Iyyappan is not entitled

to any share in the estate'' of the deceased in accordance with the Hindu Succession Act. Therefore, the said Iyyappan is also not entitled to any

share in the estate of the deceased. It is impossible to confirm the death of the attesting witnesses. Radhabai Ammal, mother of the plaintiff resided

permanently in Chennai and died intestate on 13.7.2001. This court has jurisdiction to deal with the present proceedings u/s 300 of the Indian

Succession Act. The suit has been filed within time from the date of death of S. Radhabai Ammal. Therefore, the plaintiff prays for grant of letters

of administration.

The defendant filed written statement contending that the plaintiff has not chosen to include the true legal heirs of the deceased Arumugam Pillai.

The suit itself is not maintainable as the Will was allegedly executed much prior to the commencement of the Indian Succession Act. The suit is

hopelessly barred by limitation and it suffers from laches. The genealogical tree submitted by the plaintiff is totally false. It is denied that A.

Deivasigamani is the only son of the deceased Arumugam. Dr. Balasundaram is not the son of Duraisami Mudaliar, but, he is the husband of

Sivakamavalli who is the daughter of Duraisami Mudaliar. The defendant is the son of Dhandapani who is the son of Duraisami Mudaliar. S.

Ganapathy, the other son of Duraisami Mudaliar died leaving behind him his only son Ramanathan who died leaving behind him two daughters

sivakamavalli also died leaving behind two sons of by name Sundaram and Sivaprakasam. The plaintiff has suppressed all the material facts about

the legal heirs and filed the present petition for grant of letters of administration. The plaint mentioned property has to be succeeded only by the

legal heirs of the deceased sons of Duraisami Mudaliar. The defendant and the granddaughters of Ganapathy are the legal heirs to succeed to the

estate of the deceased Duraisami Mudaliar in exclusion of the plaintiff and other persons. Relating to the Trust created by Arummgam by virtue of

the Will dated 20.1.2001, many litigations have sprung before the courts in Cuddalore District. The defendant, therefore, pray that the suit may be

dismissed with costs.

The following issues were framed for determination:

Is the suit barred by limitation?

Whether Arumugam has executed the Will in a sound disposing state of mind.

Whether the plaintiff is entitled to. letters of administration as prayed for.

To what relief are the parties entitled?

On the side of the plaintiff, the plaintiff was examined as PW1 and Exs.P1 to P5 were marked. On the side of the defendant, the defendant was

examined as DW1, but, no document was marked.

Issue No. 5:- The Will was allegedly executed wayback on 20.1.1901 under the jurisdiction of Cuddalore District. All the properties

bequeathed under the Will are also situate only at Cuddalore.

Learned Counsel for the plaintiff would contend that though the properties bequeathed under the Will are situate at Cuddalore and the Will was

also executed and registered at Cuddalore, the High Court of Judicature at Madras has testamentary jurisdiction all over Tamil Nadu. Therefore,

he would contend that irrespective of the place of execution of the Will and the location of the properties covered under the Will, the High Court of

Judicature at Madras is the competent court to grant letters of administration as prayed for.

Per contra, learned Counsel for the defendant would vehemently submit drawing the attention of this court to various provisions of the Indian

Succession Act, 1925 that there is no requirement for the probate of the Will where the property covered under the Will was located outside the

Ordinary Original Civil Jurisdiction of this court and the execution of the Will was also beyond such jurisdiction. Therefore, the plaintiff is not

entitled to grant of letters of administration, he would further contend.

It is relevant to refer to Clause 34 of the Letters Patent which reads as follows:

Testamentary and intestate jurisdiction-And we do further ordain that the said High Court of Judicature at Madras 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; 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.

Two things are made clear under Clause 34 of the Letters Patent. Firstly, the High Court of Judicature at Madras has the power to grant letters of

administration and probate of the last Will whether the person dying intestate within the presidency of Madras or outside the presidency of

Madras. Secondly, if the competent legislative authority makes a law creating inroad to such authority of the High Court, the above provision under

the Letters Patent will give way for such contingency. In other words, the Testamentary and intestate jurisdiction of the High Court is subject to the

future statute conferring the power on any other court.

Let us find what is the local limits of the Ordinary Original Civil jurisdiction of our High Court. Clause 11 of the Letters Patent deals with the

Ordinary Original Civil Jurisdiction of the High Court as hereunder:

Local limits of the ordinary original jurisdiction of the High Court-And we do hereby ordain that the said High Court of Judicature at Madras shall

have and exercise ordinary original civil jurisdiction within such local limits, as may from time to time be declared and prescribed by and law made

by the Governor-in-Council, and, until some local limits shall be so declared and prescribed within the limits of the local jurisdiction of the said High

Court of Madras at the date of the publication of these presents, and the ordinary original civil jurisdiction of the said High Court shall not extend

beyond the limits for the time being declared and prescribed as the local limits of such jurisdiction.

The local limits of the Ordinary Original Civil Jurisdiction of the High Court means only the geographical limits of the jurisdiction of High Court of

Madras. In fact, the limits of the local jurisdiction have been defined by the Madras High Court (Jurisdiction) Act, 1927 as amended from time to

time.

Now let us deliberate upon the various provisions of the Indian Succession Act, 1925. First let us take up Section 57 which has a potential

bearing on the issue involved in this case. Section 57 of the Indian Succession Act, 1925 reads as follows:

Application of certain provisions of part to a class of wills made by Hindus etc.-The provisions of this part which are set out in Schedule III shall,

subject to the restrictions and modifications specified therein, apply-

(a) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories which at

the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts

of Judicature at Madras and Bombay; and

(b) to all such Wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or

limits; and

c) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not

applied by Clauses (a) and (b):

Provided that marriage shall not revoke any such Will or codicil.

It has been made clear under the aforesaid provision of law that all the Wills made by a Hindu on or after the 1st September, 1870 within the local

limits of Ordinary Original Civil Jurisdiction of the High Court of Judicature at Madras and all the Wills executed outside such territory but the

immovable property dealt under the Will is situate within those territories, the Testamentary Succession dealt under part 6 which are set out in

schedule 3 of the Indian Succession Act would be applicable. As per Section 58 of the said Act, Testamentary Succession dealt in part 6 of the

Indian Succession Act, 1925 will have no application to Mohammedans. Section 57 of the said Act just deals with the applicability of the

provisions dealing with the Testamentary Succession.

The relevant provision is Section 213 of the said Act which would throw light on the controversy raised by the parties in this lis. Let us refer to

Section 213 of the Indian Succession Act, 1925 which reads as follows:

Right as executor or legatee when established- (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of

competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will

or with a copy of an authenticated copy of the Will annexed.

(2) This Section shall not apply in the case of Wills made by Muhammadans or Indian Christians, and shall only apply-

(i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in Clauses (a) and (b) of Section

57? and

(ii) in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where

such Wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where

such Wills are made outside those limits, in so far as they relate to immovable property situated within those limits.

A combined reading of Section 57 and 213 of the Indian Succession Act, 1925 makes it profoundly clear that where the Will was executed by

a Hindu within the Ordinary Original Civil Jurisdiction of the High Court of Madras or the properties covered under the Will are located within the

Ordinary Original Civil Jurisdiction of the High Court of Judicature at Madras as dealt under Clauses (a) and (b) of Section 57, the executor or the

legatee under the Will is bound to approach the said court for grant of probate or letters of administration failing which the right as executor or

legatee cannot be established in any of the courts of law. u/s 213 of the said Act, exemption was granted to Muhammadans from the rigors of the

aforesaid provision of law. Later on, as per the Amendment Act, 26 of 2002, the Indian Christians also were exempted from the mischief of the

provisions of Section 213 of the said Act.

The Honourable Supreme Court in Clarence Pais v. Union Of India (2001) 3 MLJ 43 (SC) has held as follows:

A combined reading of Sections 213 and 57 of the Act would show that where the parties to the Will are Hindus or the properties in dispute are

not in territories falling u/s 57(a) and (b), Sub-section (2) of Section 213 of the Act applies , and Sub-section (1) has no application. As a

consequence, a probate will not be required to be obtained by a Hindu in respect of a Will made outside those territories or regarding the

immovable properties situate outside those territories.

Referring to the provisions of Section 57 and Section 213 of the Indian Succession Act, the Honourable Supreme Court has authoritatively held

that no probate is required to be obtained by a Hindu in case the Will was made outside the Ordinary Original Civil Jurisdiction of the High Court

or the properties covered under the Will was situate beyond the said jurisdiction.

Our High Court also wayback in the year 1969 in Rangaswami Naicker Vs. Rangammal (died) by proposed L.R., K.R. Venkataswami

Naidu, , has observed as follows:

Thus Section 213 of the Indian Succession Act will not apply so as to oust the jurisdiction of the executing Court, because it clearly enacts that so

far as a will made by a Hindu is concerned, it will only apply where the Will is of the classes specified in Clauses (a) and (b) of Section 57; and if

we turn to Clauses (a) and (b) of Section 57, they refer to a Will executed within the city of Madras or relating to property situated in Madras city.

But here, the Will was executed outside the city of Madras and the properties also are situated in Coimbatore District. Hence Section 213 will not

apply.

The aforesaid pronouncement makes it clear that there is no necessity for the plaintiff herein to approach this court for grant of letters of

administration.

The Bombay High Court also in Shri Bhagwanji Karsanbhai Rathod Vs. Shri Surajmal Anandraj Mehta, has held as follows:

On conjoint reading of the above provisions, it would appear that only Wills specified in Clause (a) and (b) of Section 57 of the Act would require

the executor or legatee to obtain probate or letters of Administration from the Court of competent jurisdiction so as to pursue the right arising

under the Will to its logical end. This legal position is reinforced from the exposition of our High Court in Ahmed''s case (supra) as well as Jyoti''s

case (supra). Therefore, the first question that needs to be considered is: whether the subject Will is covered by Section 57, Clause (a) and (b) of

the Act? As mentioned earlier, it is not in dispute that the suit property is situated at Pune and the Will was also executed at Pune. If that is so, it is

not possible to countenance the submission that Section 57(a) and (b) of the Act would apply. Understood thus, it was not necessary for the

petitioner to obtain probate so as to proceed with the execution proceedings.

The aforesaid ratio also reinforces the stand taken by the defendant herein.

The learned Counsel for the plaintiff would contend that as per Section 300 of the Indian Succession Act, 1925, the High Court has concurrent

jurisdiction with that of the District Judge.

To set at naught the controversy, let us first refer to the provisions under, Section 300 of the said Act which reads as follows:

Concurrent jurisdiction of High Court-

(1) The High Court shall have concurrent jurisdiction with the District Judge in the exercise of all the powers herein conferred upon the District

Judge.

(2) Except in cases to which Section 57 applies, no High Court, in exercise of the concurrent jurisdiction hereby conferred over any local area

beyond the limits of the towns of Calcutta, Madras and Bombay shall where the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an

exempted person, receive applications for probate or letters of administration until the State Government has, by a notification in the Official

Gazette, authorised it so to do.

The District Judge had jurisdiction in granting probate and letters of administration in all cases of Wills executed by Christians within his District

as per Section 264 of the said Act. Though concurrent jurisdiction for the High Court with the District Court is contemplated u/s 300 of the said

Act, no High Court can usurp the powers of the District Judge in the guise of the aforesaid concurrent jurisdiction except in cases where Section

57 applies unless the State Government authorizes such High Court to do so by a notification in the official gazette. It is made clear that notification

as contemplated u/s 300(2) is required only when the High Court exercises its concurrent jurisdiction in a case other than the case mentioned in

Section 57 of the Act. Inasmuch as the Muhammadans were already exempted and the Christians have been exempted as per Amendment Act 26

of 2002 from the purview of Section 213 of the Indian Succession Act, 1925, the powers of the District Judge in Testamentary Succession has

been indirectly nullified.

As the High Court of Judicature at Madras was not authorized by the State Government u/s 300(2) of the Indian Succession Act, 1925 for

issuing notification in the official gazette conferring concurrent jurisdiction n the High Court with the District Judge in exercising the jurisdiction over

the territories of the Districts in Tamil Nadu, the High Court of Judicature at Madras had no powers to deal with the Testamentary Jurisdiction

conferred on the District Judge in the District level as regards the Will executed by Christians prior to the Amendment Act 26 of 2002.

The Testamentary Original Jurisdiction for the High Court of Judicature at Madras contemplated in Clause 34 of the Letters Patent is subject

to the provisions u/s 300 of the Indian Succession Act, 1925. The proviso u/s 34 of the Letters Patent makes it very clear that if the competent

legislative authority for India makes inroad into the powers provided under Clause 34 of the Letters Patent, such legislative competency will have

to be honoured and the sweep of Section 34 of the Letters Patent will have to be subdued.

The learned Counsel for the plaintiff referred to an authority reported in Maniklal Shah Vs. Hiralal Shaw, wherein it has been held that a High

Court Judge on the Original Side has concurrent jurisdiction with the District Judge in all testamentary matters and that therefore, the High Court

has jurisdiction on the Original Side to entertain a suit for grant of probate in respect of the property situate even beyond the limits of the Ordinary

Original Civil Jurisdiction of the High Court. That was a case where as per Sub-section (2) of Section 300 of the Indian Succession Act, 1925, a

notification was issued by the local Government conferring power on the High Court of Calcutta to have testamentary jurisdiction throughout the

territories subject to the Lieutenant Governor of Bengal. As already pointed out by this Court,- no such notification was issued conferring such

powers on the High Court of Judicature at Madras to have concurrent jurisdiction all over the State of Tamilnadu. Therefore, the aforesaid ruling

does not apply to the instant case.

Under the above facts and circumstances, the court comes to the conclusion that the plaintiff has unnecessarily troubled this court when the

plaintiff is not required to take proceedings for grant of letters of administration as the Will was executed at Cuddalore and the properties also are

located only therein. Therefore, it is held that the plaintiff is not entitled to letters of administration as prayed for. The issue is answered accordingly.

Issue Nos. 1 and 2:- As the court has held that the Will executed by a Hindu at Cuddalore and the properties covered under the Will also are

situate in Cuddalore, it requires no letters of administration, this court is not obliged to answer the above issues.

Issue No. 4:- The plaintiff is not entitled to the relief as prayed for. Therefore, the suit stands dismissed. Considering the question of law

involved in this matter, the parties are directed to bear their own costs.