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TMI Blog1932 (9) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... a preliminary point was raised on behalf of the defendant, namely, whether the High Court in the exercise of its ordinary original civil jurisdiction had jurisdiction to try the suit, as it contained a prayer for revocation of probate which was granted by this Court in the exercise of its testamentary and intestate jurisdiction. The defendant contended that the suit and the notice of motion should be dismissed. The suit was accordingly set down on board for argument on this preliminary point. 2. It was contended on behalf of the defendant that if the grant of probate was to be contested, it must be contested before the Court sitting as a Court of Probate, that is, sitting on the testamentary side in the exercise of its testamentary and intestate jurisdiction, and not in the exercise of its ordinary civil jurisdiction. The provisions of the Indian law regarding the grant of probate and letters of administration to the estate of a deceased person are to be found in the Indian Succession Act, 1925. Chapter I of Part IX deals with the grant of probate and letters of administration. Chapter III deals with the alteration and revocation of grants, and Chapter IV, with the practice in gran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by such Courts, which included the Court of Probate, was transferred to or vested in the High Court of Judicature. Other Judicature Acts were passed after 1873, and now under the Supreme Court of Judicature (Consolidated) Act of 1925, which consolidated the Judicature Acts from 1873 to 1910 and other enactments relating to the Supreme Court and the administration of justice thereunder, there is also one Supreme Court of Judicature in England, similarly divided into the High Court and the Court of Appeal. Under Section 4(1) of the Act of 1925, as amended in 1928, the High Court is to have three divisions for the more convenient despatch of business namely, the Chancery Division, the King's Bench Division, and the Probate, Divorce and Admiralty Division. Section 4(4) provides that without prejudice to the provisions of the Act relating to the distribution of business of the High Court, all jurisdiction vested in the High Court under the Act belongs to all the divisions alike. Sections 55 and 56 regulate the distribution of business and the assignment of business to the three divisions. The result, therefore, is that a Judge belonging to any division has jurisdiction to hear an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blishing High Courts of Judicature in India, (2) by the Letters Patent issued thereunder, and (3) by the Rules framed by each High Court under the authority conferred upon it by the Act. Section 9 of the Act provides that the Court shall have and exercise all such jurisdiction as Her Majesty may by Letters Patent grant and direct, the Court being comprised of the Chief Justice and the Judges appointed by Her Majesty. Section 13 empowers the Court to make Rules providing for the exercise by one or more Judges or by Division Courts constituted by two or more Judges of the said High Court of the original and appellate jurisdiction vested in such Court, in such manner as may appear to such Court to be convenient for the due administration of justice . The High Court of Bombay was established under the Letters Patent, and when established it was to have and to exercise all such Civil, Criminal, Admiralty, and Vice-Admiralty, Testamentary, Intestate, and Matrimonial Jurisdiction, original and appellate, and all such powers and authority for, and in relation to, the administration of justice in the Presidency as Her Majesty might by the Letters Patent grant and direct. Clause 34 of the Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re to be made for the exercise of jurisdiction by single Judges or Division Courts in such manner as may appear to the Court to be convenient for the due administration of justice . The several jurisdictions on the original side for which rules have been made have been separated because of this convenience in the due administration of justice, but they are not exclusive of one another. They are each of them parts of the jurisdiction vested in the High Court on its original side. In my opinion, therefore, every Judge of the High Court by virtue of his appointment is competent to discharge all the functions connected with the High Court on its Original Side, that is, he has full powers to exercise all or any part of the jurisdiction vested in the High Court on its original side. The hearing and determination of testamentary and intestate matters form a part of that jurisdiction, and therefore any Judge may exercise it, subject only to the assignment of business under Rule 60 for the sake of convenience in the due administration of justice. I may state here that Mirza J. in Tilak v. Nene (1932) O.C.J. Suit No. 2490 of 1923, decided by Mirza J., on February 2, 1932(Unrep.) has also exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, and there was no such rule, so that the order made was in the exercise of a jurisdiction which the Judge. could not lawfully exercise. The local jurisdiction of the Judge on the original side being confined to the limits of the Town and Island of Bombay, an order for stay of a suit in a subordinate Court in the mofussil appertains to the appellate side of the High Court, and the jurisdiction on the appellate side is, according to the rules, unless otherwise provided or ordered, to be exercised by a Division Court consisting of two Judges. The exorcise of the jurisdiction of the Court in testamentary and intestate matters is assigned to a Judge for convenience in the due administration of justice, but there is no rule which lays down that the functions of such a Judge can be exercised by that Judge alone, and no other. In fact, as I have already pointed out, Rule 58 vests the whole or part of the jurisdiction vested in the original side of the Court in every Judge, subject to the division of work mentioned in Rule 60. 6. It was next argued that an order made by a competent Court in the exercise of its probate jurisdiction, or the testamentary and intestate jurisdiction, is a judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Indian Succession Act when the grant is revoked, the person to whom the grant was made has to return it to the Court which made the grant. Counsel for the defendant relied on Kishorbhai Revadas v. Ranchodia Dhulia I.L.R. (1914) Bom. 427 16 Bom. L.R. 459 but there it was held that the District Court was competent to decide questions of fraud or collusion vitiating the grant of probate and alone had jurisdiction to revoke the probate, and the subordinate Court had no jurisdiction in probate matters. Similarly in Sheoparsan Singh v. Ramnandan Singh it was held that the will having been affirmed in a Court exercising appropriate jurisdiction, the propriety of that decision could not be impugned by a Court exercising any other jurisdiction. Probate was there granted by the District Judge of Mozufferpur, and the suit was filed in the Court of the Subordinate Judge for a declaration that the plaintiffs were the nearest reversionary heirs of the deceased in order that that declaration may enable them to apply for revocation of the letters of administration. The suit was for a declaration under Section 42 of the Specific Relief Act, and it was held that it was misconceived because s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lves to blame for having come to the wrong side of the High Court for relief in respect of the revocation of probate. Legal proceedings have to be localized in the proper Courts, and to be taken on the proper side. Moreover, the procedure for revocation of probate is not by suit, but by petition. However small the estate may be, there can be no question of denial of justice, because the plaintiffs can file a petition on the testamentary and intestate jurisdiction and establish the very facts on which they rely in the suit for revocation of probate. 7. The conclusion to which I have arrived is that the plaintiffs should, take the necessary proceedings, if so advised, to have the probate revoked by the Court in the exercise of its testamentary and intestate jurisdiction by filing a separate petition; the petition to be filed within a week. This suit will be stayed and the notice of motion adjourned. liberty to the parties to apply to have the suit set down for hearing and final disposal and to bring on the notice of motion in default of proceedings being taken as aforesaid; in the event of proceedings being taken to have the suit so set down within a week after the Court sitting on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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