Iftikharuddm v. Aisha Bi — 1956 DIGILAW 67 (MP)

JUDGMENT : This, is an appeal by Master Iftikharuddin, non-applicant 1, against the order of Shri S.N. Shrivastava, Additional District Judge, Bhopal, granting the succession certificate to Sm. Aisha Bi, respondent 1. 2. Master Iftikharuddin and Maqsud Ali were joined as non-applicants in the above succession certificate proceeding and notice was also published in a local newspaper. No one opposed the application except the two non-applicants and Maqsud Ali did not contest the proceeding except for filing an objection. Master Iftikharuddin is one against whom the deceased, Seth Ahmad had obtained a decree and against whom another suit is pending with regard to a transaction alleged to have taken place with Seth Ahmad. 3. The case of Sm. Aisha Bi is that she is the widow of Seth Ahmad and that her husband had no brother and did not leave any other relative. The non-applicants half-heartedly challenged the marriage of Seth Ahmad and Sm. Aisha Bi but strongly urged that Seth Ahmad had two brothers, one of whom is residing in Hyderabad and the other has migrated to Pakistan. The parties adduced oral evidence to which I shall make reference subsequently. 4. Maqsud Ali is absent in spite of service and the appeal was heard in his absence. 5. Two points have been urged before me, firstly, that the Additional District Judge of Bhopal was not competent to entertain an application for succession certificate, and secondly, that Sm. Aisha Bi was not entitled to the succession certificate. 6. The contention of the appellant that the Additional District Judge of Bhopal was not competent to entertain an application for succession certificate does not appeal to me. In Ss. 371 and 373, Indian Succession Act, the word used is 'District Judge' which is defined in S. 2 (bb) as the 'Judge of a principal civil Court of original jurisdiction". Section 13(2), General Clauses Act, 1897, clearly provides that words in the singular shall include the plural unless there is anything repugnant in the subject or context. There is nothing in the Indian Succession Act to suggest that the word 'Judge' used in the definition in 3. 2(bb) cannot include Additional Judges. Section 13(2), General Clauses Act, 1897, clearly provides that words in the singular shall include the plural unless there is anything repugnant in the subject or context. There is nothing in the Indian Succession Act to suggest that the word 'Judge' used in the definition in 3. 2(bb) cannot include Additional Judges. If the Judge was to refer to only the main or the Chief Judge, it would mean that if the High Courts are to entertain applications under Indian Succession Act, such applications can be disposed of only by the Chief Justice or the Chief Judge of the High Court. This would lead to an anomalous position. Consequently, the term 'District Judge' would include Additional District Judge. In S. 264 Indian Succession Act, a similar term was used and in Mt. Daho Kuer v. Mt. Tural Dei, AIR 1924 Pat 593 (A) it was held to include Additional District Judges also. 7. The provisions of the Bhopal and Vindhya Pradesh (Courts) Act, 1950, cannot lead me to a contrary inference. The term 'District Court' has been defined in S. 2 (iii) of this Act as below; "District Court' means the Court of the District Judge and includes the Court of an additional District Judge :" Thus the Court of the Additional District Judge is also a District Court. 8. Additional District Judges are appointed by the Chief Commissioner under Section 16 of the above Act when the business pending before the Court of a District Judge requires the aid of Additional District Judge or Judges for its speedy disposal and the Additional District Judges exercise the same powers as the District Judge in the discharge of the functions assigned to them by the District Judge under S. 16(2). It was urged on behalf of the appellants that Additional District Judges could be appointed only after cases had been instituted and as a result thereof the pending file could not be controlled by the District Judge alone. This appears to me to be a fallacious argument. It is at the time of the appointment of the Additional District Judge that the Chief Commissioner has to satisfy himself whether the pending file can be controlled by the District Judge alone or he requires extra assistance. This appears to me to be a fallacious argument. It is at the time of the appointment of the Additional District Judge that the Chief Commissioner has to satisfy himself whether the pending file can be controlled by the District Judge alone or he requires extra assistance. In certain cases the appointment of Additional District Judges may be made in anticipation, due to the likelihood of a huge number of cases or big cases being instituted in the near future. In the latter case, the then pending file can be controlled by the District Judge but the pending file shall be deemed to be uncontrollable keeping in mind the future institutions which cannot be dealt with by the District Judge alone. The appointment of Additional District Judges beforehand, cannot, therefore, be regarded to be illegal or in any way, irregular. Of course, the Additional District Judges can try only such cases as are transferred to them by the District Judge and in the trial of such cases they will have the same powers as the District Judge himself as. 9. The control that the District Judge has over all the Civil Courts within the local limits of his jurisdiction is as laid down in S. 27, subject to the general superintendence and control of the judicial Commissioner. In the present case the Judicial Commissioner had passed an order regarding the distribution of the work between the District Judge and the Additional District Judge. Though this order has not been happily worded, the pith and substance of the order is that the District Judge, Bhopal, is to hear civil cases of Raisen District, while the Additional District Judge, of Sehore District. The relevant portion of this order, No. 9 dt. 13-11-1950, is as below :- "The District Judge, Bhopal, shall be the principal Court of original civil jurisdiction and shall have unlimited civil jurisdiction in the Raisen Revenue District. The Additional District Judge, Bhopal, shall be the principal Court of original civil jurisdiction in the Sehore Revenue District (including Bhopal town)." The first part of the order simply provides that though the District Judge, is the principal Court of original civil jurisdiction, he would try civil cases of Raisen District. The Additional District Judge, Bhopal, shall be the principal Court of original civil jurisdiction in the Sehore Revenue District (including Bhopal town)." The first part of the order simply provides that though the District Judge, is the principal Court of original civil jurisdiction, he would try civil cases of Raisen District. The second part has been vaguely worded as if there were two principal Courts of original civil jurisdiction in Bhopal State, one of which was of the District Judge, Bhopal, for the whole State and the other was of the Additional District Judge, Bhopal, for Sehore Revenue District. Such a division is not contemplated under any of the enactments. But if the order is considered in its context, that is, it was to provide for the distribution of work between the District Judge and the Additional District Judge, it must be held that the pith and substance of the order was that District Judge would try civil cases of Raisen District, while Additional District Judge, Bhopal, of Sehore District. 10. The other two provisions of the Bhopal and Vindhya Pradesh (Courts) Act which are helpful in the determination of the present question are Ss. 18 and 19, which run as below :- "18. District Court to be" principal Civil Court of original jurisdiction:- The Court of the District Judge shall be the principal Civil Court of original jurisdiction in the district." "19. Original jurisdiction of District Court :- Save as otherwise provided by any other law for the time being in force, the Court of the District Judge shall have original jurisdiction in civil suits without limit as regards the value." 11. The learned counsel for the appellant has urged that the words 'the Court of the District Judge,' cannot have the same meaning as the term 'District Court' and consequently by virtue of S. 18, the Court of District Judge and not the Court of Additional District Judge would be the principal civil Court of original jurisdiction in the district. While construing any particular Section the import of the other provisions will also have to be kept in mind, and that meaning will have to be given to the Section which is in consonance with the policy of the enactment and will not nullity it. While construing any particular Section the import of the other provisions will also have to be kept in mind, and that meaning will have to be given to the Section which is in consonance with the policy of the enactment and will not nullity it. In case the terms 'Court of District Judge' and 'District Court' do not have the same meaning, S. 19 will mean that only District Judge has unlimited original civil jurisdiction while the Additional District Judge cannot have such powers. Such an interpretation will be repugnant to S. 16(2) of the same Act. Consequently in interpreting S. 18, marginal note thereof should be utilised in determining the actual scope of the Section. In my opinion, therefore, what is meant by the term 'the Court of the District Judge' is that it has reference to the 'District Court' as defined in S. 2 (ill) of the Act and it will include the Court of the Additional District Judge. 12. If the provisions of the Succession Act and the Bhopal and Vindhya Pradesh (Courts) Act are read together, it would mean that the Additional District Judge is competent to hear applications for succession certificate. 13. The only error committed in the present case is that the application for succession certificate was presented in the Court of the Additional District Judge and not in the Court of the District Judge. But this irregularity is of no material importance and could not have caused any prejudice to any of the parties, chiefly because, even if it was presented in the Court of the District Judge, it would have been by virtue of the general order transferred to the Additional District Judge for disposal. It is now a well-settled rule that unless the defect of jurisdiction was in respect of the subject-matter of the action, it will not vitiate the proceeding unless prejudice was caused to that party. See Kiran Singh v. Chaman Peswan, AIR 1954 SC 340 (B), and Kishanlal v. Jailal, AIR 1919 Lah 27 (C). As no prejudice was caused to the appellant, the order of the lower Court cannot be set aside simply because the application was not presented before a competent Court. 14. See Kiran Singh v. Chaman Peswan, AIR 1954 SC 340 (B), and Kishanlal v. Jailal, AIR 1919 Lah 27 (C). As no prejudice was caused to the appellant, the order of the lower Court cannot be set aside simply because the application was not presented before a competent Court. 14. Shrimti Aisha Bi would therefore be entitled to the succession certificate if it is proved that she is the widow of Seth Ahmad and Seth Ahmad had no brother living at the time of his death. 15. Shrimati Aisha Bi was examined on commission and she examined three witnesses. Wall Mohammad, Ahmad, and Isa Bhai, her brother, Shrimati Aisha Bi has clearly deposed that she is the widow of Seth Ahmad and that her husband had no brother or sister. Even then she was not cross-examined as to her marriage with Seth Ahmad. The whole of the cross-examination related to the existence or non-existence of her husband's brothers. Similarly Isabhai was not cross-examined about the marriage and was simply asked about the brothers of Seth Ahmad. This omission on the part of the appellant is of great significance. When it has at the same time to be kept in mind that in another litigation the appellant had himself proposed that Sm. Aisha Bi being the widow of Seth Ahmad was his legal representative. In that application no reference to the existence of the brothers of Seth Ahmad was made. In these circumstances the statement on oath of Sm. Aisha Bi and her brother, Isa Bhai, can be accepted in full. 16. Wall Mohammad and Ahmed were not witnesses to the marriage of Sm. Aisha Bi and Seth Ahmad but they have deposed that she is the widow of Seth Ahmad. If S. 50, Evidence Act is strictly construed, such a statement would not be admissible in evidence. But when the testimony of Sm. Aisha Bi and Isa Bhai has remained uncontradicted on the point of marriage, the evidence of these two witnesses can be given a liberal meaning namely that when they referred to Sm. Aisha Bi as the widow of Seth Ahmad, what they meant was that the two were living as husband and wife. Master Iftikharuddin himself appeared in the witness-box and examined Tehzib Ali and Abdul Wahid. It is significant that none of them has denied the marriage of Sm. Aisha Bi and Seth Ahmad. Aisha Bi as the widow of Seth Ahmad, what they meant was that the two were living as husband and wife. Master Iftikharuddin himself appeared in the witness-box and examined Tehzib Ali and Abdul Wahid. It is significant that none of them has denied the marriage of Sm. Aisha Bi and Seth Ahmad. These three witnesses have also confined themselves to the existence of two brothers of Seth Ahmad. It may further be observed that these witnesses have made a vague statement. They appear to me to be brought up witnesses in order to make some kind of statement to support the appellant. 17. In other words, it is proved that Sm. Aisha Bi is the widow of Seth Ahmad, who had no brother at the time of his death. Shrimati Aisha Bi was, therefore, entitled to the succession certificate. 18. The appeal has thus no force and it is hereby dismissed with costs. Appeal dismissed.