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TMI Blog1962 (1) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... urisdiction on the Sub Court to grant probate of a will. They are (1) By virtue of a notification made by this Court under Sec. 265 of the Indian Succession Act, 1925, all subordinate Judges in the Madras Province have been appointed as ex officio District delegates under that enactment within the local limits of their respective jurisdiction; (2) By virtue of another notification of the High Court made under Sec. 29(1) of the Madras Civil Courts Act, 1873, all subordinate Judges in the Madras Province have been authorised to take cognizance of any proceedings under the Indian Succession Act, 1925, which cannot be disposed of by the District delegates. (Vide Civil Rules of Practice Vol. I, page 275) where the two notifications are set out. 2. A District Delegate under the provisions of the Indian Succession Act will have jurisdiction to grant probate of a will or letters of administration only (1) if the deceased had at the time of his death a fixed place of residence within his jurisdiction and (2) in non-contentious cases. The second of the two notifications referred to above issued under Sec. 29(1) of the Madras Civil Courts Act will, however. authorise a subordinate Judge to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ost, and choosing the earlier of the two decisions as laying down the correct procedure he directed a return of the application to the proper court, namely, the Sub Court at Tirunelveli. The appellant who was placed in the unenviable position of having his application returned by both the Subordinate Judge as well as by the District Judge, each holding that the other had jurisdiction to deal with his application, has filed this appeal against the order of the District Judge returning his application for presentation to the Sub Court. 4. Before we deal with the question, involved in the appeal, it is necessary to examine the propriety of the procedure adopted by the learned District Judge. The normal rule as to the precedents is, that Subordinate courts are bound in the absence of any decision of the Supreme Court, to follow the decision of the High Court to which they are subordinate. Where, however, there is a conflict between two decisions of the High Court, the rule to be adopted is as follows: Where the conflict is between the judgment of a single Judge and a Bench or between a Bench and a larger Bench, the decision of the Bench or the larger Bench as the case may be, will h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a District Judge and District Delegate is that while the former can grant a probate or letters of administration where the, deceased at the time of his death had a fixed abode or where any property moveable or Immovable is above situate within his jurisdiction, the District delegate can grant them only in the former class of cases (vide Ss. 270 and 273 of the Act). The District Delegate can only dispose of non-contentious cases; once a contest arises he will have to transfer the case to the District Judge. An application for revocation of a grant originally made in a non-contentious proceedings cannot even be decided by him (vide Sec. 286) as the very filing a the application for revocation will raise a contest. A District delegate can also refer a non-contentious matter for disposal by the District Judge. There is also a difference in regard to the conclusiveness of a grant made by the District Delegate and the District Judge. The limited jurisdiction granted to the District delegate is not a peculiar feature of the Succession Act of 1925. It existed in the earlier Succession Act of 1865 and the Probate and Administration Act of 1881. Under those enactments (as well as unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly and judicially and will also include a power to entertain such proceedings. Therefore the jurisdiction of a sub judge invested with a power under Sec. 29(1) of the Madras Civil Courts Act is that of a District Judge and not that of District Delegate under the Succession Act. This view is also borne out by sub-clause (3) to that section which provides a right of appeal from the decision of a subordinate Judge authorised under clause (i) as if he is a District Judge. Thus a notification under the above section confers a new jurisdiction on a Sub Judge to decide all matters, under the Succession Act which cannot be disposed of by a District Delegate. 7. Much of the argument before us proceeded on the assumption. an assumption for which there is no warrant, that the notification under Sec 29(1) of the Madras Civil Courts Act confers a jurisdiction on a District Delegate. (Sub Judge) to dispose of matters which he would have no jurisdiction to do directly under the provisions of the Indian Succession Act, 1925. A District Delegate appointed under Sec. 265 owes his authority to that source; but a sub judge who is invested with jurisdiction under a notification under S. 29(1) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication of the High Court under section 29(1) of the Madras Civil Courts Act. If I may say so with respect this is an accurate statement of the Position. The question is not whether the Legislature could have better achieved its object by making suitable amendments to the Indian Succession Act but rather whether they have done so by introducing Sec. 29 in the Madras Civil Courts Act, which is also a central enactment. It must be noticed that there was legislation in most of the other provinces or States conferring jurisdiction on sub judges etc., if they were to he Invested with the necessary powers by the High Court to try contentious cases. The cause and necessity for legislation was therefore peculiar to the Madras province, where there was need to confer jurisdiction on courts other than those of district judges, similar to these existing in other states. Evidently it was thought sufficient, if the Madras Civil Courts Act wore alone amended. Nor are we able to accept the argument. that there is any inconsistency between Sec. 265 of the Indian Succession Act and Sec. 29 of the Madras Civil Courts Act and that both of them cannot stand together unless they are interpreted in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it will be necessary to have a different agency like the High Court for the same purpose and Sec. 29 of the Madras Civil Courts Act should be so construed as not to cover the Came field. In support of this argument learned counsel referred to the rule making power of the Government under S. 264(2) of the Indian Succession Act, and contended that the general words of Sec. 29(1) of the Madras Civil Courts Act should not be interpreted according to their tenor, but a restricted meaning should be given to them. as otherwise it will result in an inconsistency and a conflict of powers. Sec. 264(2) of the Succession Act enables the State Government by a notification to authorise courts outside the presidency towns to entertain applications for probate and letters of administration. It was said that to recognise an unlimited power under Section 29(1) of the Madras Civil Courts Act would be to nullify the power of the Government. 12. Section 264(2) of the Indian Succession Act deals with an entirely different subject-matter from the one now under consideration. It enables the Government to vest a power in courts other than those specified, to grant probate or letters of administration, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... require no relief. The grammatical meaning of S. 29 of the Madras Civil Courts Act fits in therefore with what is the apparent object of the enactment . 14. In Rangaraja Rao v. Tulasi Bai Ammal (1949) 1 MLJ 650 Panchapagesa Sastry J. was not prepared to accept the foregoing observations as applying to part X of the Indian Succession Act. In a later case, namely, Chinnakannu Pillai v. Sandaram, AIR 1951 Mad 437 Viswanatha Sastri J. was inclined to share the same view in regard to a case relating to the grant of succession certificate under part X of the Indian Succession Act. 15. Section 388 of the Act empowers the State Government by a notification to invest any court inferior to that of a district court to perform the functions of a district judge under part X of the Succession Act. Panchapagesa Sastry J. was of the opinion that if S. 29(1) of the Madras Civil Courts Act were to apply according to its tenor, there would be the possibility of a conflict between the notification made by the Government under S. 398 of the Indian Succession Act and that which might be made by the High Court acting under S. 29(1) of the Madras Civil Courts Act. The learned judge, therefore, held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... repugnance. In Nuth v. Tamplin, (1881) 8 QBD 247, Jessel M. R. observed at page 253 thus: Any one who contends that a section of an Act of Parliament is not to be read literally must be able to show one of two things either that there is some other section which cuts down its meaning or else that the section itself (if read literally) is repugnant to the general purview of the Act . It cannot be said that there is any such repugnance in the case. On the other hand, S. 29 of the Madras Civil Courts Act was designed for the specific purpose of giving relief to District Judges in regard to their work under the Indian Succession Act; there is no reason why a limited interpretation should be given. We are, therefore, unable to accept, with great respect to the learned Judge who decided (1949) 1 MLJ 650 that S. 29 of the Madras Civil Courts Act should be restricted in its interpretation. In our opinion the power vested in the Government under S. 388 of the Indian Succession Act can certainly co-exist with that conferred on the High Court under S. 29 of the Madras Civil Courts Act. There is, there-fore, no reason to limit the scope of the power of the High Court under S. 29 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound to take advantage of it. if it does not wish to try the suit it may refuse to entertain it. If it wishes to retain the suit in its court it may do so. It is not bound to refuse to entertain it . 17. These observations were made with reference to a provision in the Civil Procedure Code of 1882 (Sec. 15) corresponding to S. 15 of the Civil Procedure Code of 1908. 18. In the present case the appellant filed the application for probate in the first instance before the Subordinate Judge. That court erroneously returned the application taking the view that it had no jurisdiction to entertain it. The order of return not having been appealed against has become final between the parties. The result is that so far as the parties were concerned, the District Court was the only court to which the application could lie. Under those circumstances the learned District Judge should not have returned the application again to the party for presentation to the sub court, as the sub Judge could very properly say that he had by his judicial order which has become final between the parties, decided against his own jurisdiction. The learned District Judge should have respected the finality ..... X X X X Extracts X X X X X X X X Extracts X X X X
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