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1959 DIGILAW 232 (ALL)

Shiva Dat Ram v. Bhagwati Ji

1959-08-27

S.S.DHAVAN

body1959
JUDGMENT S.S. Dhavan, J. - This is an appeal from an order of the District Judge of Faizabad transferring a contested case under the Indian Succession Act from his own file to that of the Civil Judge Faizabad. A will is alleged to have been made by a widow leaving her property to two deities, Shri Bhagwati and Shri Bhagwan Ji, installed in the temple of Dawan Anant Ram at Ajodhya. An application for the grant of a probate was made on behalf of deities, and was filed before the Civil Judge, Faizabad. A caveat was filed by two persons whose names are immaterial. On the death of one of them, his son Shiva Dutta Ram, the present applicant, was brought on the record and continued the objections. As it was a contentious matter, the Civil Judge, being only a District Delegate under the Indian Succession Act, could not dispose of it himself, and he sent the case to the District Judge for disposal. 2. When the matter was listed before the latter for hearing he observed that he would not like to try the case for personal reasons, and decided to transfer it to the Court of the Civil Judge Faizabad. It was objected on behalf of the present applicant that the jurisdiction of the Civil Judge was barred under Secs. 264 and 286 of the Indian Sue-cession Act. The former enjoins that the District Judge shall have jurisdiction for granting and revoking probate and letters of administration in all cases within his district. The latter provides that a District Delegate shall not grant probate or letters of administration in any case in which there is contention as to the grant or in which it otherwise appears to him that probate or letters of administration ought not to be granted in his court. The applicant contended that, as this was a contentious probate matter, the District Judge alone had the jurisdiction to decide it. He also urged that the Civil Judge, being a District Delegate appointed by the High Court under Sec. 265 of the Act, was debarred by Sec. 286 from trying any contentious matter. The learned District Judge rejected both contentions on the ground that he had the power under Sec. 31 of the Oudh Courts Act to send the case to the Civil Judge. The applicant has come to this Court in appeal against that decision. The learned District Judge rejected both contentions on the ground that he had the power under Sec. 31 of the Oudh Courts Act to send the case to the Civil Judge. The applicant has come to this Court in appeal against that decision. 3. Mr. Ganesh Prasad, learned counsel for the appellant, urged that Sec. 264 is a mandatory provision giving exclusive jurisdiction to the District Judge in the matter of granting a probate. According to him, the word 'District Judge' refers to a persons designata and a Civil Judge has no power to try probate matters, even if he has the powers of a District Judge as regards other matters. Learned counsel also urged that, in any case, the case could not have been sent to a Civil Judge who also happened to be a District Delegate, as his jurisdiction in contentious matter was barred by Sec. 296. Finally learned counsel urged that, even if it be held that Sec. 31 of the Oudh Courts Act does empower the District Judge to send a contentious matter to the Civil Judge, the provisions of that Section cannot override the express provisions of the Indian Succession Act, which is a law made by the Central Legislature. 4. After hearing learned counsel and examining the provisions of the relevant statutes, I take the view that the contention must fail. The relevant portion of Sec. 31 of the Oudh Courts Act is as follows :- "31 (I) The Chief Court may by general or special order authorise any (Civil) Judge to take cognizance of or any District Judge to transfer to a (Civil) Judge under his control, any of the proceedings next hereinafter mentioned or any class of those proceedings specified in such order. (2) The proceedings referred to in sub-Sec. (1) are the following, namely,- (a) Proceedings under the Indian Succession Act, 1865 and the Probate and Administration Act, 1881, which cannot be disposed of by District Delegates. 5. It is clear that, under this Section, the old Chief Court had the power to authorise any District Judge to transfer to a Civil Judge any proceedings under the Indian Succession Act or the Probate and Administration Act which could not be disposed of by District Delegates. This obviously refers to contentious proceedings. 5. It is clear that, under this Section, the old Chief Court had the power to authorise any District Judge to transfer to a Civil Judge any proceedings under the Indian Succession Act or the Probate and Administration Act which could not be disposed of by District Delegates. This obviously refers to contentious proceedings. Therefore, the District Judge had the power to transfer any contentious matter to a Civil Judge if he had been so authorised by the Chief Court. It is admitted that the Chief Court had by a general order authorised all District Judges to make this kind of transfer. The Oudh Courts Act received the assent-of the Governor of the United Provinces on 3rd April, 1925, and the assent of the Governor General under Sec. 81 of the Government of India Act was accorded on 16th May, 1925. It is beyond dispute that any Act passed by the local legislature could have the effect of altering or repealing provision of any law made by the Central legislature, provided the previous sanction of the Governor General had been obtained. The proviso to Sec. 80-A of the Government, of India Act expressly says, that an Act made by a local legislature and assented to by the Governor General in pursuance of that Act, should not be deemed invalid by reason only of its requiring the previous sanction of the Governor General under the Act, and therefore, the question whether the sanction of the Governor General was obtained before or after passing of the Oudh Courts Act is immaterial in considering the validity of the Act. It shall be deemed to have been valid even if it has the effect of altering or repealing any provision of the Indian Succession Act in its application to the United Provinces, its provisions shall prevail. 6. In Sheikh Kallu v. Mohammad Noor Johan, A.I.R. 1935 Oudh 38 the Oudh Chief Court decided precisely the question which has been agitated before me. The District Judge of Faizabad empowered a Subordinate Judge to decide a matter of caveat. The Caveator filed an application before the Chief Court impugning the validity of the transfer. He urged that the jurisdiction of the Subordinate Judge was barred. The District Judge of Faizabad empowered a Subordinate Judge to decide a matter of caveat. The Caveator filed an application before the Chief Court impugning the validity of the transfer. He urged that the jurisdiction of the Subordinate Judge was barred. Over-ruling this contention, the Chief Court observed that it had authorised, under Rule 240 of the Oudh Civil Rules read with Sec. 31 Oudh Courts Act, all District Judges in Oudh to transfer by general or special order any of the proceedings mentioned in Part 9, Act XXXIX of 1925, and that, this included proceedings for the grant of probate whether contentious or non-contentious. 7. It was conceded by learned counsel for the appellant that Sec. 31 of the Oudh Courts Act continues to have effect even after the amalgamation of the Chief Court in Oudh and the High Court in Allahabad under the United Provinces High Courts (Amalgamation) Order 1948. Clause 17 of that order says that Chapter II of the Oudh Courts Act shall cease to have effect after the appointed date which was 26th July, 1948. This clearly implies that the other provisions of that Act continued in force even after the amalgamation of the two Courts. Therefore the power of the District Judge of Faizabad to transfer any contentious probate matter to the Civil Judge remained intact. 8. The impugned order was within jurisdiction and valid. The appeal must fail and is rejected with costs. The stay order is hereby discharged.