Maniklal Shah v. Hiralal Shaw — 1949 DIGILAW 116 (CAL)

JUDGMENT :- This is a suit in the testamentary jurisdiction of the Court ion the grant of probate of the Will of one Harsing Prosad Shaw, deceased. The plaintiff Maniklal is the executor under the Will and is the elder of the two surviving sons of the testator. The defendant Hiralal is the other son. 2. The original application for grant of probate was presented on 18th December 1947. Hiralals name not having been mentioned in the said application as one of the sons of the testator, no citation was issued to him, and in due course, probate of the Will, which is dated 12th October 1946 was issued on 22nd December 1947. On 7th May 1948, Hiralal made an application for the revocation of the probate on the ground of absence of citation on him. This application was heard by Majumdar, J. who held that the want of citation was a just cause within the meaning of S. 263, Succession Act, and by his order dated 20th July 1948, he revoked the said grant. The directions given by Majumdar, J. as to the filing of the caveat and the supporting affidavit as also those in respect of discovery and inspection were complied with and the proceedings were marked as a contentious cause. 3. The testator Narsing Prosad Shaw, who was a Hindu governed by the Mitakshara School of Hindu law, lived at Dum-Dum. He had three sons, Maniklal - the plaintiff, Hiralal - the defendant and one Pannalal who predeceased the testator. Pannalals widow Binapani and his son Mrityunjoy are living. The testator who was a well-known wrestler in the locality died on 5th November 1946, admittedly at a very old age. As I have said before, the disputed "Will is alleged to have been executed on 12th October 1946, that is, less than a month before the testators death. By the said Will, which is in the Bengali language and character, he bequeathed all his properties and credits to the plaintiff and his grandson, the said Mrityunjoy Shaw, in equal shares, and appointed the plaintiff the sole executor. Hiralal was completely left out. The reason for Hiralals exclusion from the "Will is stated in the within the following terms : "My second son Sreeman Hiralal Shaw left me long ago and having built houses etc., at a different place is in the enjoyment and possession of the same. Hiralal was completely left out. The reason for Hiralals exclusion from the "Will is stated in the within the following terms : "My second son Sreeman Hiralal Shaw left me long ago and having built houses etc., at a different place is in the enjoyment and possession of the same. His financial position is also good. But it never strikes him that he ought to be tending and nursing his aged father." 4. Defendant Hiralals case, inter alia, is that the testator was about 100 years of age when the Will is said to have been executed and that by reason of his old age and illness to which he later succumbed, his father had no testamentary capacity, that the alleged signatures of the testator in the Will did not appear to be in the handwriting of the testator and that, if the signatures be held to be genuine, the plaintiff in collusion with two lawyer friends of his - Surath Nath Ganguli and Sachindra Nath Mitra - caused the alleged Will to be executed by his father "by undue influence, fraud and coercion." No particulars of the allegations of undue influence and coercion and of fraud were given and, curiously enough, no particulars were asked for on behalf of the plaintiff. After the opening by learned counsel on behalf of the plaintiff, the following issues were raised : "(1) Had the deceased any testamentary capacity at the time of the execution of the Will ? (2) Was the Will validly executed ? (3) Was the Will executed under the under the influence of Maniklal ? (4) Has this Court jurisdiction to entertain and try this suit ?" To support his case the plaintiff, besides examining himself, called the two attesting witnesses to the Will - Surath Nath Ganguly and Sachindra Nath Mitra, as well as a neighbour by name Charu Chandra Samanta. [After dismissing the evidence His Lordships proceeded :] This brings me to the certified copy of the entry in the Register maintained by the Calcutta Corporation at the Cossipore Cremation Ghat. Chapter 31, Calcutta Municipal Act (1923) deals with the registration of births and deaths and disposal of the dead. Under this Chapter it is the duty of the Sub-Registrar for each registered burial or burning ground to maintain a register of deaths in which the particulars prescribed in Sch. Chapter 31, Calcutta Municipal Act (1923) deals with the registration of births and deaths and disposal of the dead. Under this Chapter it is the duty of the Sub-Registrar for each registered burial or burning ground to maintain a register of deaths in which the particulars prescribed in Sch. 22 to the Act have to be entered in respect of every death. Exhibit 2 is in the form prescribed by the said Schedule which is a form for registration of deaths with some fourteen columns with such heads as date of death, age, cause of death, signature, description and residence of informant. This register is thus kept by a public servant in the discharge of his official duty and is admissible under S. 35, Evidence Act. Any entry in such a register can be proved under S. 77, Evidence Act by the production of a certified copy thereof. The question is how much of the entry in this register is evidence. Clearly the entry is evidence of the fact of death. Other particulars such as the cause of death, the deceaseds age etc., as to which the officer concerned can have no personal knowledge or any means of checking, cannot be treated as evidence. [After discussing the evidence further His Lordship proceeded;] 5. On a consideration of the entire evidence, I hold that the plaintiff has proved that the testator had the requisite testamentary capacity, that the will was validly executed and that the defendant has failed to prove that the execution of the will was caused by undue influence or coercion. It must be borne in mind that by his will, the testator bequeathed his property in equal shares to the plaintiff and the deceased Pannalals son. Had the plaintiff had the testator completely under his control, I see no reason why he could not have persuaded the testator to leave all his property to the plaintiff absolutely. 6. Mr. J.K. Ghosh on behalf of the defendant has taken the point that this Court has no jurisdiction to entertain and try this suit. His reasons are, firstly, that the property which is the subject matter of the Will is situated outside the local limits of the Ordinary Original Civil Jurisdiction of this Court and secondly, that the testator lived and died in Dum Dam which is also outside the local limits of the said jurisdiction. 7. Mr. His reasons are, firstly, that the property which is the subject matter of the Will is situated outside the local limits of the Ordinary Original Civil Jurisdiction of this Court and secondly, that the testator lived and died in Dum Dam which is also outside the local limits of the said jurisdiction. 7. Mr. Ghosh says that the concurrent jurisdiction which the High Court has with the District Judge under sub-s. (1) of S. 800, Succession Act, 1925, is restricted by sub-s. (2) of that section. It is pointed out that the present case is one to which S. 57 of the Act does not apply, and accordingly the High Court has no jurisdiction to entertain it in the absence of a notification in the official gazette as required under sub-s. (2). He says further that this limitation imposed on the High Courts concurrent jurisdiction with the District Judge is not in any way affected by cl. 34 of the Letters Patent of 1865, as the proviso to cl. 34, says : "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 each probates and letters of administration." Mr. Ghosh contends that by reason of this proviso, the wide testamentary jurisdiction of the High Court under the first part of cl. 34, is controlled by sub-s. (2) of S. 300, Succession Act. 8. The present Indian Succession Act [Act XXXIX [39] of 1925] is a consolidating Act, into which has been consolidated, amongst others, the Probate and Administration Act V [5] of 1881. Sub-section (2) of S. 300 of the present Act is toti dem verbis S. 3, Probate and Administration Act v [6] of 1881, I find that a notification such as was required under S. 2, Probate and Administration Act V [5] of 1881 was issued by the local Government in its official gazette on 20th April 1881. The said notification is at page 445, Part I of the Calcutta Gazette of that date and is in terms as follows : "The 1st April 1881. The said notification is at page 445, Part I of the Calcutta Gazette of that date and is in terms as follows : "The 1st April 1881. - In exercise of the power conferred by S. 2, Act V [5] of 1881, His Honor the Lieutenant Governor of Bengal, with the previous sanction of the Governor-General in Council, is pleased hereby to authorise the High Court o! Judicature at Fort William in Bengal, throughout the territories subject to the Lieutenant-Governor of Bengal, and all District Judges as denned in the said Act within the said territories, and such judicial officers as the said High Court may from time to time appoint as district delegates, to receive applications for probate and letters of administration." 9. The provisions of S. 2, Probate and Administration Act having been re-enacted as indicated above, the said notification, to my mind, is sufficient compliance with the provisions of sub-s. (A) of S. 300, of the present Act. 10. There is a further answer to Mr. Ghoshs contention. The definition of "District Judge" given in S. 2 (bb) of the amending Act XVIII [18] of 1929 includes a Judge of the High Court on the Original Side (see Manubhai v. General Accident, Fire and Life Assurance Corporation Ltd., 38 Bom LR 632 at p. 655 : (AIR (23) 1936 Bom 363). The result is that a High Court Judge on the original aide has concurrent jurisdiction with the District Judge in all testamentary matters. In the case of in the Goods of Mohendra Narain Roy, 5 CWN 377. Sale, J., held that the "High Court" in S. 87, Probate and Administration Act (v [5] of 1881) was not merely confined to the Appellate Jurisdiction of that Court, but included its Original Jurisdiction and that under section the High Court, exercising its Original Jurisdiction, had concurrent Jurisdiction with the District Judge. 11. In Nagendra Bala v. Kasipati, 37 Cal 224 : (5 IC 1003), Fletcher, J. held that the High Court had jurisdiction to grant probate and letters of administration, on its original side, in any case which could have been brought before any District Judge in either of the two Provinces of Bengal. This decision involved the consideration of Ss. 2, 51 and 87, Probate and Administration Act V [5] of 1881, and Hatcher, J., summarised his conclusions thus : "I think, from Ss. This decision involved the consideration of Ss. 2, 51 and 87, Probate and Administration Act V [5] of 1881, and Hatcher, J., summarised his conclusions thus : "I think, from Ss. 2, 51 and 87, it is clear that the High Court has jurisdiction in all districts." These three sections of the Probate and Administration Act correspond to Ss. 300(2), 264(1) and 300(1) of the present Act respectively. Like S. 87, Probate and Administration Act, the corresponding S. 300(1), does not require that any portion of the property should be within the limits of the Ordinary Original Civil Jurisdiction of the High Court. 12. Under cl. 34, Letters Patent (1865), the High Courts jurisdiction in testamentary matters is co-extensive with the limits of the Province. This jurisdiction cannot be said to interfere with those provisions of the Indian Succession Act which confer jurisdiction on District Judges to grant probates. The exercise by the High Court of its testamentary jurisdiction beyond the local limits of its ordinary original civil jurisdiction is not exclusive of, but concurrent with, the jurisdiction of the District Judge. I hold therefore that this Court has jurisdiction to entertain and try this suit. 13. In the result I decree that probate of the Will of Narasingh Prosad Shaw, deceased, dated 12th October 1946 be granted to the plaintiff Manik Lal Shaw. [The rest of the judgment is not material for purposes of repotting - [Ed.] Order accordingly.