Meghraj v. Manaklal — 1956 DIGILAW 197 (RAJ)

Dave, J.—This is an appeal against the order of the District Judge, Jodhpur, dated the 28th of January, 1956, granting probate to the respondent Manaklal. 2. The facts giving rise to it are that one Kanyalal Begani resident of Phalodi died at Phalodi on Asad Vad 14, Svt. 1994, corresponding to 10th of July, 1937. On the 27th of January, 1943, the respondent Manaklal presented an application in the Court of the District Judge of the former State of Jodhpur under sec. 222 of the Marwar Succession Act. It was stated by him that the deceased Kanyalal used to carry on business at Madras, that on the 31st of May, 1937, he had executed a will at Madras and got it registered on 30th of June 1937 at the same place. By that will, five persons including the respondent Manaklal and the appellant Meghraj were appointed as executors of the will. But later on, Meghraj turned hostile inasmuch as he tried to set up his own claim against the contents of the will, while executors were not taking any interest on account of their resident elsewhere and hence it was prayed that a probate of the said will be granted in his (respondents) favour. The application was contested by the appellant Meghraj on several grounds. Such an application should have been disposed of within a few months, but for several reasons, which need not be enumerated here, the case lingered on for a long time and it was on the 28th of January, 1956, that the learned Judge ordered the grant of the probate in favour of the respondent. That order has been assailed by the appellant in this Court on three grounds. In the first place, it is contended that the District Judge had no jurisdiction to receive the application for probate. It is next urged that the respondent had no right to apply for a probate and lastly, it is urged that the attestation was not proved and hence the order of the District Judge should be set aside. 3. We have heard learned counsel of both the parties at length. So far as the last two objections are concerned, there is little force in them and we shall discuss them later on. 3. We have heard learned counsel of both the parties at length. So far as the last two objections are concerned, there is little force in them and we shall discuss them later on. It would be proper to take up the first point first because it involves a question of law which is a little peculiar on account of the special provisions of the Marwar Succession Act. 4. In order to understand the point raised by the appellants learned counsel it would be proper first to set out the provisions of secs.57, 264 and 270 of the Marwar Succession Act, 1936. It may be pointed out here that the Indian Succession Act (Act No. XXXIX of 1925) was adopted in Marwar with certain changes. The Marwar Code (Volume II), publishes at page 1747, only the changes which were made in the Indian Succession Act of 1925. Thus the Marwar Succession Act, 1936, was not published in its entirety. In the case of Genmal vs. ML Phau (1), it was held that in sec. 57 of the Marwar Succession Act, 1936, it was only sec. 57(a) which was adopted with a change indicated below and that parts (b) and (c) of that section were not adopted. The correctness of that decision has not been challenged before us by either party and, therefore, sec. 57 of Marwar Succession Act, 1936, reads as follows :— "57. The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply— (a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina within the Marwar territory. In sec. 264, the first part of sec. 264 of the Indian Succession Act was adopted without any change. As regards the second part, it was provided that for the words "no Court in any local area beyond the limits of the towns of Calcutta. Madras and Bombay, and the province of Burma" read the words "no Court in Marwar" and for the words "Local Government" read the words "Government" and for the words "Local Official Gazette" read the words "Jodhpur Government Gazette". The amended sec. 264 would, therefore, read as follows:— "264 (1) The District Judge shall have jurisdiction in granting and revoking probates and letters of administration in all cases within his district. (2) Except in cases to which sec. The amended sec. 264 would, therefore, read as follows:— "264 (1) The District Judge shall have jurisdiction in granting and revoking probates and letters of administration in all cases within his district. (2) Except in cases to which sec. 57 applies, no court in Marwar, shall, where the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, receive applications for probate or letters of administration until the Government has, by a notification in the Jodhpur Government Gazette, authorised it so to do". 5 In sec. 270, no change was made and, therefore, it would read as follows: — "270. Probate of the will or letters of administration to the estate of a deceased person may be granted by a District Judge under the seal of his Court, if it appears by a petition. Verified as hereinafter provided, of the person applying for the same that the testator or intestate, as the case may be, at the time of his decease, had a fixed place of abode, or any property, movable or immovable, within the jurisdiction of the Judge." 6. It would appear from the language of sec. 264, sub-sec. (1) that the District Judge had jurisdiction to grant probates and letters of administration in all cases within his district. But sub-sec. (2) restricted the jurisdiction given to him in sub sec. (1) because according to sub-sec. (2) he could grant probates or revoke probates only in those cases to which sec. 57 applied. In other words he had no jurisdiction to grant probates or revoke probates in these cases to which sec. 57 did not apply unless the Jodhpur Government authorised him by notification in the Jodhpur Government Gazette to do so. 7. We have now to see if according to the said section, the present case came within the jurisdiction of the District Judge or not. Learned counsel for the appellant has urged that according to sec. 57, as it was adopted in Marwar, it applied only to wills and codicils made by a Hindu, Buddhist, Sikh or Jain within the territory of Marwar. The will in the present case was on the respondents own showing, executed in Madras and, therefore, sec. 57 was not applicable to it. It was further urged by learned counsel that no notification was issued by the Jodhpur Government under sub-sec. The will in the present case was on the respondents own showing, executed in Madras and, therefore, sec. 57 was not applicable to it. It was further urged by learned counsel that no notification was issued by the Jodhpur Government under sub-sec. (2) of sec, 264 and, therefore, the District Judge had no jurisdiction to grant probate in the present case. It has been conceded by learned counsel for the respondent at the time of arguments that no notification, as required by sub-sec. (2) of sec. 261 was issued by the Jodhpur Government. He has however urged in reply that the testator had his fixed place of abode at Phalodi which was within the jurisdiction of the District judge and since the property was also within the jurisdiction of the learned Judge, he could grant probate according to the provisions of sec. 270 referred above. We have given due consideration to this argument of the respondents learned counsel, but, in our opinion, sec. 270 can help him only if the jurisdiction of the District Judge is first established under sec. 264 of the Act. It may be observed that sec. 64 (1) laid down generally that the District Judge had jurisdiction in granting and revoking probates and letters of administration in all cases within his district. Sub-sec. (2) however. clearly prohibited all courts in Marwar to receive applications for probate or letters of administration relating to those cases to which sec. 57 did not apply unless a notification was made by the Jodhpur Government and published in the Jodhpur Government Gazette. This sub section clearly barred the jurisdiction of the District Judge to entertain applications in those cases to which sec. 57 did not apply. Now, it had been conceded by learned counsel for the respondents that sec. 57 applied only to those wills and codicils which were made by Hindu, Buddhist, Sikh or Jaina within the territories of Marwar and therefore, it did not apply to the present case. Sec. 270 did not give to the District Judge, Jurisdiction which was not already conferred on him by sec. 264. On the other hand, it laid down as to which District Judge would grant the probate in cases which could be entertained by more than one District Judge under sec. 264. Sec. 270 did not give to the District Judge, Jurisdiction which was not already conferred on him by sec. 264. On the other hand, it laid down as to which District Judge would grant the probate in cases which could be entertained by more than one District Judge under sec. 264. For instance if there were three or four District Judges in the State who could have jurisdiction under S. 264, then the probate could be granted only by that District Judge in whose jurisdiction the testator had his fixed place of abode at the time of his decease or in whose jurisdiction there was any property movable or immovable covered by the will. To put in a nut-shell, sec. 270 puts a limitation over the general jurisdiction of a District Judge given by sec. 264. In the present case, the learned District judge, Jodhpur, had no jurisdiction under sec. 254 because the will was not made in Marwar and so the provisions of sec. 5, were not attracted and there was no notification either by the Government of Jodhpur as required therein. Therefore, even though the testator had his place of abode within his jurisdiction and some property was also within his jurisdiction, he could not grant probate in the present case because of the absence of the notification. 8. As regards the other two points raised by the appellants learned counsel, we have gone through the will on the record and find that the respondent was appointed an executor therein and, therefore, he was entitled to put up an application for probate under sec. 222 of the Marwar Succession Act. Similarly, we find that the will was attested by two witnesses. Although Shivraj could not be examined, he verified on Oath the probate application at the time of its presentation and he had attested the will at the request of the deceased Kanyalal and that Kanyalal had signed it in his presence. The other witness Jorawarsingh was examined in the lower court. He also stated that he had attested the will at the request of Kanyalal. He has further identified the signature of the deceased witness Shivraj on the document. He was cross-examined at length, but his evidence has remained unshaken. Is is quite clear that the will was properly attested as required by law. He also stated that he had attested the will at the request of Kanyalal. He has further identified the signature of the deceased witness Shivraj on the document. He was cross-examined at length, but his evidence has remained unshaken. Is is quite clear that the will was properly attested as required by law. We would have had no hesitation in dismissing this appeal on the latter two grounds but we find that the appeal must succeed on the first ground because the learned District Judge had no jurisdiction to entertain the application in this matter at the time when it was presented. 9. The appeal is, therefore, allowed and the order of the learned District Judge granting the probate is set aside. In view of the fact that the jurisdiction of the lower court was not assailed on the grounds which have been raised in this Court, the parties are left to bear their own costs throughout.