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2002 DIGILAW 256 (JK)

Kamla Wati Rafiz v. Chaman Lal Rafiz

2002-08-09

S.K.GUPTA

body2002
Through the currency of this Appeal, the appellants-petitioners seek a reversal of the order dated 31.08.2000, propounded by the learned District Judge, Jammu in Probate proceedings, by virtue of which the grant of probate has been refused. It appears that the appellants-petitioners have sought to probate the will allegedly executed by one J.L.Rafiz in May, 1988 in respect of his property at Srinagar, invoking the provisions of section-62 of the Probate and Administration Act, 1977(1920 AD) (hereinafter called the "Act"). The deceased- J.L. Rafiz is stated to have died on 17.09.1990 at Faridabad (Haryana) as per the death certificate annexed as annexure-, P1 with the Appeal and this fact is wrongly indicated in the order impugned in this Appeal. The deceased had a house at Srinagar which is stated to have been destroyed due to militant activities and the Government, vide order No. DCS/Relief/ Mig/03 of 1998 dated 19.6.1998 sanctioned ex-gratia relief. It is also stated that the deceased had some amount in the State Bank of India Talab Tillo, Jammu at the time of his death. The appellants-petitioners, claiming to be the beneficiaries under the will, being executors, prayed for the probate in respect of the moveable and immoveable property in their favour. It is not in dispute that the testator did not have any property within the jurisdiction of the court of the learned District Judge, Jammu at the time of his death. An amount of Rs.3788/- is stated to be in the State Bank of India, Talab Tillo, Jammu in the name of the deceased. In fact, the said amount was got transferred after his death from Jawahar Nagar, Srinagar, as is clearly borne out from the communication of the Bank annexed with the Appeal as annexure P- 4. It is further borne out from the record that due to on slaught of militancy in Srinagar, the testator shifted to Faridabad (Haryana) where he died on 17.09.1990, but a fixed Place of abode depends on the facts of each case. Under the provisions of the Act, the Judge can command the discretion to decide as to which of the court can more justly grant probate, but the most appropriate place for applying for probate and letter of administration is where the testator had a fixed place of abode and the property moveable and immoveable located at the time of his death. There is, however, no discretion of the Judge, where there is no court of concurrent jurisdiction since the property situated at Srinagar at the time of his death, which in fact also took place at Faridabad (Haryana) is outside the jurisdiction of the court of the learned District Judge Jammu. Section 56 of the Act deals with the grant of probate or administration by the learned District Judge. It clearly envisages that the probate of the will or letters of administration to the estate of a deceased person may be granted on being applied by the executor for the same in the court of the learned District Judge in whose jurisdiction, the deceased had at the time of his death, fixed place of abode, or any property, moveable or immovable existed. In the instant case, neither the testator had a fixed place of abode at the time of his death nor the property existed at the relevant time within the jurisdiction of the court of the learned District Judge, Jammu. If that be the position, the disposal of the application for probate of the will is provided under section- 57 of the Act which contemplates that on an application being made before the learned District Judge in which the deceased had no fixed abode at the time of his death, the Judge may in his discretion refuse the application, if in his judgement it could be disposed of more justly or conveniently in another District. Learned counsel appearing for the appellants-petitioners when taken through both the provisions of sections 56 and 57 of the Act, could not convince, in the facts and circumstances of the case, that view contrary to what has been taken by the learned District Judge, Jammu could be taken on the conjoin reading of sections 56 and 57 of the Act. In this view of the matter, I do not find any legal infirmity in the order impunged, inviting interference in this appeal. Having considered the facts and circumstances of the case discussed in its cumulative, the inevitable conclusion reached is that, there is no merit in this appeal and the same is accordingly dismissed.