1966 (3) TMI 91 - HC - Indian Laws

Summary

Issues Involved:
1. Jurisdiction of the Civil Judge to grant letters of administration.
2. Validity of the instrument as a will.
3. Due execution of the will.
4. Procedural correctness in handling contentious cases.

Detailed Analysis:

Jurisdiction of the Civil Judge:
The first issue raised was whether the Civil Judge had jurisdiction to grant letters of administration in a contentious case. The opponent argued that the learned Civil Judge lacked jurisdiction once objections were filed, making the case contentious. Under Sections 265 and 288 of the Indian Succession Act, a Civil Judge can only grant letters of administration in non-contentious cases. However, the Saurashtra District and Subordinate Civil Courts Ordinance, 1948, and a subsequent High Court Notification dated 30th July 1948, empowered Civil Judges, Senior Division, to exercise the powers of a District Judge. This notification remained effective despite the repeal of the Ordinance by the Bombay Civil Courts (Extension and Amendments) Act, 1958. Consequently, the Civil Judge, Senior Division, Surendranagar, was competent to entertain the application and grant letters of administration even in a contentious case.

Validity of the Instrument as a Will:
The second issue was whether the instrument dated 5th November 1947 constituted a valid will. The opponent contended that the instrument did not dispose of property and thus could not be considered a will. Section 2(h) of the Indian Succession Act defines a will as a legal declaration of a testator's intention regarding his property to be carried into effect after his death. The deceased had dedicated the temple and land to Thakorji, retaining the Shebaitship, which included managing the temple and appropriating its income. The court held that Shebaitship, involving both religious duties and the right to income, constituted property. Thus, the instrument, which bequeathed Shebaitship to the applicant, qualified as a will.

Due Execution of the Will:
The third issue was whether the applicant had established the due execution of the will. The applicant provided affidavits from witnesses, including Ratilala Chhotalala and Govubha Zhala, who attested to the deceased signing the will in their presence and being in a sound state of mind. The opponent did not challenge this testimony during cross-examination. The court found the evidence sufficient to establish the will's due execution, fulfilling the requirement that the person propounding the will must satisfy the court's conscience.

Procedural Correctness in Handling Contentious Cases:
The final issue concerned the procedural correctness of handling contentious cases. The opponent argued that the learned Civil Judge erred by relying on affidavits instead of oral evidence in examination-in-chief. Section 295 of the Indian Succession Act mandates that contentious cases should follow the form of a regular suit, requiring oral evidence. However, the court noted that parties implicitly consented to treating affidavits as evidence by not objecting. While the court upheld the order based on implied consent, it strongly deprecated the practice of relying on affidavits in contentious cases, emphasizing the need to follow the prescribed procedure of recording oral evidence in open court.

Conclusion:
The appeal was dismissed, and the order of the learned Civil Judge granting letters of administration to the applicant was upheld. The court reiterated the importance of adhering to procedural requirements in contentious cases to ensure the ascertainment of truth.