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2003 DIGILAW 810 (AP)

Kusumatai Dandekar v. Bhoopathi Rajeshwari

2003-06-30

B.PRAKASH RAO

body2003
B. PRAKASH RAO, J. ( 1 ) THE petitioner in this revision filed under Article 227 of the constitution of India seeks to assail the judgment in O. P. No. 2 of 2000 dated 11. 11. 2000 on the file of the Junior Civil judge, Adilabad, returning the application filed by the petitioner under Section 372 of the Indian Succession Act for presentation before the appropriate Court for disposal. ( 2 ) THE facts in brief are that the petitioner is the mother of the deceased satyakam Dendekar, who died on 5. 11. 1996 in the hands of the extremists at Mancherial town, whereupon the District Collector had announced an ex-gratia Rs. 1,00,000/ -. Since deceased was unmarried and he had no wife and children and the father of the deceased Sathyakam Dandekar also died, the petitioner being only the dependent of the deceased filed the application. ( 3 ) THE respondents 1 to 3 are also claiming as wife and children of late satyakam Dandekar, though the said fact was denied by the petitioner. ( 4 ) AFTER regular contest by both the sides, and after framing of the issues, a regular enquiry was held by the Court below wherein both sides produced both oral and documentary evidence. The petitioner examined himself as PW. 1 and got marked Ex. A1 to Ex. A3. On behalf of the respondents RW. 1 to RW. 3 were examined and Ex. B1 to Ex. B33 were got marked. ( 5 ) AMONG the issues which were framed by the Court below it included as to whether the Court has jurisdiction to entertain the petition or not. On this issue, the Court below held that the Court at mancherial has jurisdiction to try the case and accordingly it directed the petitioner to approach that Court. Aggrieved by the said order, the present C. R. P. is filed. ( 6 ) ACCORDING to the learned Counsel for the petitioner since the amount so sanctioned to the deceased has to be paid by the District Collector, Adilabad, the court at Mancherial has no jurisdiction to entertain the petition especially when a regular enquiry was held where both parties adduced evidence, no prejudice would be caused to the Court at Adilabad take up the matter rather than to return the same. ( 7 ) ON consideration of the submission made and also on perusal of the record, it is seen that the relevant provision applicable to the facts of this case are Section 371 of the Indian Succession Act, which reads as under:"371. Court having jurisdiction to grant certificate :the District Judge in whose jurisdiction the deceased ordinarily resided at the time of his death, or, if at that time he had no fixed place of residence, the District judge, within whose jurisdiction any part of the property of the deceased maybe found, may grant a certificate under this Part. " ( 8 ) ON a reading of the above provision, it is seen that there are two limbs which provide for the purpose of jurisdiction. One is the ordinary residence and the other is where no such residence is there, it is that Court within whose jurisdiction any part of the property of the deceased is found. ( 9 ) IN this case though ultimately the district Collector is the sanctioning and paying authority of the ex-gratia, the fact remains that the deceased was the ordinary resident of Mancherial and died there and there is no dispute in, this regard. Having regard to the same, it cannot be said that the first limb of the provision is applicable to the present case. ( 10 ) CONSIDERING the said provision, a division Bench of the Madras High Court in Krishnammal v. Lakshmi Ammal, AIR 1951 Mad. 535 , held as under:"under Section 371, the jurisdiction of the court is made to depend on one of two circumstances i. e. , either the ordinary residence of the deceased at the time of his death, or in the absence of such residence, any part of the property of the deceased being found within the jurisdiction of the district Judge. The second part of the section which confers jurisdiction on the Court in whose jurisdiction any part of the property is situate can be invoked only if at the time of the death, the deceased had no fixed place of residence. The first part of the section must necessarily refer to ordinary residence within the jurisdiction of a British Indian Principal civil Court of original jurisdiction. The first part of the section must necessarily refer to ordinary residence within the jurisdiction of a British Indian Principal civil Court of original jurisdiction. From this it follows that when the section refers to the deceased having no fixed place of residence, it must also refer to residence in british India, as the same words "resided" and residence" occurring in the section must receive the same interpretation in the absence of anything to indicate the contrary. " ( 11 ) IN view of the aforesaid provision of law, it cannot be said that there is no ordinary residence attributable to the deceased. Therefore, it is only the Court at Mancherial which has jurisdiction to entertain the petition. The lower Court was right in returning the petition for presentation of the same before the appropriate Court having jurisdiction. Hence, I do find any error in the order impugned warranting interference of this Court. The revision petition is accordingly, dismissed. The petitioner shall take return of the petition from the Court and present the same before the Court at Mancherial which has the jurisdiction. The parties shall appear before the Junior Civil Judge at Mancherial on 11-8-2003 and the learned Junior Civil judge, Mancherial shall take the petition on its file and dispose of the same after giving opportunity to both parties in accordance with law. No costs.