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1950 DIGILAW 169 (MAD)

N. Chinnakannu Pillai v. N. S. Sundaram

1950-04-14

VISWANATHA SASTRI

body1950
Judgment This civil revision petition is directed against an interlocutory order of the Subordinate Judge of Tuticorin in O.P. No. 33 of 1949, a petition for the issue of a succession certificate under the Indian Succession Act (XXXIX of 1925), holding that he had jurisdiction to entertain the application. The contention of the petitioner in this Court is that the Subordinate Judge had no jurisdiction. There is no notification of the Provincial Government under section 388(1) of the Succession Act, 1925, empowering Subordinate Judges to issue succession certificates. Under section 26, sub-section (3) of the Succession Certificate Act (VII of 1889), there were three notifications by the Local Government conferring jurisdiction on Courts inferior to a District Court to issue succession certificates. The effect of these successive notifications issued under that Act is one of the matters that fall to be decided in this case. The provisions of Act XIV of 1926 passed by the Indian Legislature, whereby section 29 of the Madras Civil Courts Act, 1873, was inserted in that Act, empowered the High Court, by notification, to invest judicial officers with jurisdiction in matters arising under the Indian Succession Act. Sections 265 and 388 of the Indian Succession Act empower the High Court and the Provincial Government respectively, by notification, to, invest any Court inferior in grade to. that of a District Judge with power to exercise the functions of a District Judge under the Act in respect of the matters specified in those sections. The High Court has issued notifications in the exercise of the power conferred upon it under section 265 of the Indian Succession Act and section 29(1) of the Madras Civil Courts Act of 1873, as amended by Act XIV of 1926 of the Indian Legislature authorising all Subordinate Judges to take cognizance of any proceedings under the Indian Succession Act, 1925, which cannot be disposed of by “District Delegates” and appointing all Subordinate Judges ex officio as “District Delegates” under the Succession Act, 1925, within the local limits of their respective jurisdiction. It is the effect of these several notifications that has to be considered in arriving at a decision on the question of jurisdiction raised in the present case. Under section 26(1) of the Succession Certificate Act, 1889, the Local Government by G.O. No. 391 dated 22nd. It is the effect of these several notifications that has to be considered in arriving at a decision on the question of jurisdiction raised in the present case. Under section 26(1) of the Succession Certificate Act, 1889, the Local Government by G.O. No. 391 dated 22nd. October, 1921, notified that the Subordinate Judge of Tuticorin would have jurisdiction to issue succession certificates. In a later G.O. No. 1731 dated 5th June, 1924, the Local Government invested all Subordinate Judges and District’ Munsiffs except those at the headquarters of districts (subject to a few exceptions) with the powers of a District Court under the Succession Certificate Act, 1889, within the local limits of their respective jurisdiction. By another notification, G.O. No. 24 dated 7th January, 1925, superseding G.O. No. 1731 (wrongly printed as G.O. No. 371 at page 274 of Volume I of the Civil Rules of Practice) the Local Government invested all Courts of District Munsiffs in the Presidency except those situated at head quarters of districts, with jurisdiction to issue succession certificates. All these notifications were issued under section 26 of the Succession Certificate Act, 1889, which has now been repealed and re-enacted as Part X of the Indian Succession Act, 1925. It cannot be successfully contended that with the repeal of the Succession Certificate Act, 1889, and its re-enactment by the Indian Succession Act, 1925, the life of the notifications issued under the earlier Act came to an end by reason of the omission in the later Act of a provision continuing the notifications issued under the earlier Act. Section 24 of the General Clauses Act provides for the continuation in force of such notifications unless otherwise expressly provided in the later Act, and there is no such provision in the Indian Succession Act, 1925. The argument of the petitioner is that the second G.O. No. 1731 dated 5th June, 1924, operated as a repeal of the first G.O. No. 391 dated 22nd October, 1921, and the second G.O. was, in its turn, repealed by the third G.O. No. 24 dated 7th January, 1925, and that the result of the several notifications is that District Judges and District Munsiffs, except those at headquarters of districts, alone have jurisdiction to issue succession certificates. I am unable to accept this argument. I am unable to accept this argument. While the third notification in terms supersedes the second, the second does not purport to supersede the first, It cannot be said that the first notification became otiose or wholly devoid of any effect after the issue of the second notification. The special notification empowering certain selected Subordinate Judges’ Courts, of which the Tuticorin Subordinate Judge’s Court was one, to take cognizance of applications for grant of succession certificates, continued to be in force notwithstanding G.O. No. 1731 dated 5th June, 1924, because there was nothing in the later G.O. depriving those Courts of the jurisdiction vested in them by the earlier notification. To some extent, G.O. No. 1731 dated 5th June, 1924, may overlap G.O. No. 391 in cases where Courts of Subordinate Judges specially empowered by G.O. No. 391 fall within the category of Subordinate Judges functioning at places other than headquarters of districts. With reference to-Subordinate Judges functioning at the headquarters of districts and empowered by G.O. No. 391 to take cognizance of applications for grant of succession certificates, their jurisdiction would remain unaffected by G.O. No. 1731 dated 5th June, 1924, which confers jurisdiction, only on Subordinate Judges and District Munsiffs not functioning at headquarters of districts. It is therefore not possible to say that the scope and ambit of G.O. No. 1731 dated 5th June, 1924, are comprehensive enough to provide for all matters for which G.O. No. 391 made provision. In other words, the two G. Os. can exist and have operation side by side. The doctrine of repeal by implication must not be resorted to unless the implication is quite clear. An enactment or a rule having the force of law cannot be held to be repealed by implication by a later enactment or statutory rule unless the provisions of the earlier enactment or rule are plainly repugnant to those of the subsequent enactment or rule and the entire subject-matter of the first is taken away by the second. If the two provisions standing together would lead to wholly absurd consequences or if the entire subject-matter of the earlier statutory provision is provided for by a later statutory provision, then there may be room for the applica-. tion of the rule of repeal by implication. If the two provisions standing together would lead to wholly absurd consequences or if the entire subject-matter of the earlier statutory provision is provided for by a later statutory provision, then there may be room for the applica-. tion of the rule of repeal by implication. Repeal by implication is not to be lightly inferred and the mere inclusion in a later statutory provision of a portion of the subject-matter contained in an earlier statutory provision cannot by itself have the result of a repeal of the earlier provision. Repeal by implication is the consequence of contradictory or inconsistent legislation and should not be imputed to a legislative or rule-making authority unless one is driven to do so. See Halsbury’s Laws of England, Vol. 31, page 561. Even in a case where there is repeal or amendment of an earlier Act by necessary implication, the repeal need not extend to the whole of the provisions of an earlier enactment and certain provisions of the earlier enactment may survive the repeal or amendment. The present is such a case In my opinion, G.O. No. 1731 dated 5th June, 1924, neither expressly nor by necessary implication repeals the earlier G.O. No. 391. In this view, the Subordinate Judge of Tuticorin would have jurisdiction to entertain the petition for the grant of succession certificate. It is unnecessary to consider the effect of the notifications issued by the High Court in 1939 acting under the provisions of section 265 of the Indian Succession Act, 1925 and the provisions of section 29(1) of the Madras Civil Courts Act,. 1873, as amended by Act XIV of 1926. These notifications do not, in so many terms, confer jurisdiction on Subordinate Judges to take cognizance of applications; for grant of succession certificates. At the same time, the notification authorises. “all Subordinate Judges to take cognizance of any proceedings under the Indian Succession Act, 1925, which cannot be disposed of by district delegates.” District delegates had no place in the old Succession Certificate Act and under the Succession Act of 1925 could not entertain applications for the issue of succession certificates. The words of the notification are, however, wide and quite general and literally interpreted, would include proceedings under Part X of the Indian Succession Act. The words of the notification are, however, wide and quite general and literally interpreted, would include proceedings under Part X of the Indian Succession Act. There is a decision of this Court in Karthiruma Goundan v. Rangammal1, favouring such a wide and literal interpretation of the Notification which adopts the language of. section 29(1) of the Madras Civil Courts Act as amended by Act XIV of 1926. Panchapagesa Sastri, J., in the decision reported in Rangaraja Rao v. Tulasibai Ammal1, was inclined to place a more restricted interpretation on the scope of the notification and to hold that it did not authorise Subordinate Judges to entertain applications for the issue of succession certificates It is unnecessary for me to express an opinion as to which of these divergent views represents the true intention of the Legislature. The difficulty has arisen from the Indian Succession Act, 1925, assembling together different enactments which dealt with different topics without reference to each other, namely, the Succession Certificate Act, 1889, the Probate and Administration Act, 1881, the Indian Succession Act, 1865, The Succession (Property Protection) Act, 1841, and the Hindu Wills Act, 1879. There was no place for a District delegate in the Succession Certificate Act, 1889, while the Probate and Administration Act, 1881, gave jurisdiction to a District delegate in non-contentious applications for probate or letters of administration. The consolidating Act of 1925 has, to some extent,, to be interpreted in the light of the history of the previous legislation embodied in the several enactments above referred to, and, if so interpreted, the reasoning of Panchapagesa Sastri, J., if I may say so, with respect, appears to me to be convincing. I need not pursue the matter further as this civil revision petition fails on my interpretation of G.O. No. 391 of 1921 and the subsequent notifications issued by the Government. The civil revision petition is therefore dismissed with costs. K.S. ------ Petition dismissed.