Research › Browse › Judgment

Kerala High Court · body

1962 DIGILAW 312 (KER)

KESAVA PILLAI v. BHAGEERADHI AMMA

1962-10-29

T.C.RAGHAVAN

body1962
Judgment :- 1. Both these cases arise out of the same proceeding under the Indian Succession Act and the short question for adjudication is whether the lower appellate Court, which disposed of the appeal, had jurisdiction to hear the appeal. 2. A petition for the issue of a Succession Certificate was filed before the Court of the Munsiff of Neyyattinkara and that court disposed of the matter in a particular manner. Against that decision an appeal was filed before the Court of the District Judge of Trivandrum and the appeal was transferred to the Court of the Principal Subordinate Judge there. The learned Subordinate Judge varied the decision of the learned Munsiff; and aggrieved by that order two parties have filed separate revisions before this Court. The only question, as I have already indicated, is whether the Court of the Subordinate Judge had jurisdiction to dispose of the appeal. 3. Part X of the Indian Succession Act deals with the issue of Succession Certificates and S.371 invests the District Judge with jurisdiction to issue such Certificates. S.384 (1) provides for appeals to the High Court from the orders of the District Judge granting, refusing or revoking Succession Certificates. S.388 (1) then enacts that the State Government may, by notification in the Official Gazette, invest any court inferior in grade to a District Judge with power to exercise the functions of a District Judge under Part X. Sub S.2 of the section lays down that any inferior court so invested with power shall, within the local limits of its jurisdiction, have concurrent jurisdiction with the District Judge in the exercise of all the powers conferred by Part X upon the District Judge, and the provisions of Part X relating to the District Judge shall apply to such inferior court as if it were a District Judge. A proviso is added to this sub-section, which provides that an appeal from any such order of an inferior court as is mentioned in sub-section 1 to S.384 shall lie to the District Judge, and not to the High Court, and that the District Judge may make any such declaration and direction as that sub-section authorises the High Court to make by its order on an appeal from an order of the District Judge. Under sub-section 3 of this section the appellate orders of the District Judge are made final, subject to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure. 4. From a reading of the aforesaid provisions of the Succession Act what appears is that under the Act the District Judge alone has jurisdiction to issue Succession Certificates and in such cases appeals lie to the High Court. But the State Government is given authority under S.388 (1) to invest any other court inferior in grade to a District Judge with such powers; and if that is done, such inferior court has concurrent jurisdiction with the District Judge within the local limits of its own jurisdiction. If such a notification is issued and an inferior court is invested with powers, then by the proviso to S.388 (2) the District Judge is given appellate jurisdiction to entertain appeals against the orders of such inferior court. And in such cases S.388 (3) restricts or confines the jurisdiction of the High Court to reference. and revision under the Code of Civil Procedure. Thus the appellate jurisdiction conferred on the District Judge is as a consequence or as a result of the investing of powers on the inferior courts, which again is the result of the notification by the State Government. In other words, under the Act, before the notification by the State Government, the District Judge has only original jurisdiction and the appellate jurisdiction is with the High Court. By the notification what is conferred on the inferior courts is such original jurisdiction as the District Judge has; and on the conferment of such original jurisdiction on the inferior courts, the District judge gets appellate jurisdiction by the proviso to sub-section 2 of S.388. This means that the inferior courts have only original jurisdiction and have no appellate jurisdiction; which again means that the powers conferred on the inferior courts are the original powers of the District Judge under Part X, excluding his appellate powers under the proviso, which are only consequential on the notification. Thus, the subordinate judge had no jurisdiction in this case to hear the appeal transferred to him. Thus, the subordinate judge had no jurisdiction in this case to hear the appeal transferred to him. In this connection it may be mentioned that the State Government had by notification invested all courts of Munsiffs and Subordinate Judges in the State with power to exercise the functions of a District Judge under Part X of the Act within the local limits of their respective jurisdictions, so that such courts have original powers regarding the issue of Succession Certificates. 5. Two or three decisions have been brought to my notice. But I do not think any of them directly applies to this case. Since on a consideration of the scheme and the interpretation of the relevant sections I have reached the above conclusion, I do not think I should consider those decisions. At any rate, I shall mention them here. They are: Huran Bibi v. Hingan Bibi (ILR. 34 All. 148), Bisesar Sheodayal Soonar v. Jairam Bariyar Soonar (AIR. 1940 Nag. 162); and Mst. Bhanwar Bai v. Balamukund (AIR. 1960 Raj. 9). 6. In the result both the Civil Revision Petitions are allowed. The order in appeal passed by the Subordinate Judge is set aside and the appeal is remanded to the District Court, Trivandrum. The District judge is directed to dispose of the appeal himself. Since the contesting respondents, who obtained the order under revision in their favour, have not appeared before me, I pass no order regarding costs. Allowed.