Research › Search › Judgment

Rajasthan High Court · body

2017 DIGILAW 2534 (RAJ)

Shree Prakash Sharma v. General Public

2017-11-18

ARUN BHANSALI

body2017
JUDGMENT : 1. The petitioner has filed three affidavits in evidence on 30/10/2017, which are taken on record. 2. Learned counsel for the respondent no.3 submitted that he has filed an application under Section 21 CPC on 17/11/2017 questioning the jurisdiction of this Court in dealing with the present testamentary case. 3. Learned counsel for the petitioner submitted that he does not want to file any reply to the said application and is prepared to argue on the said application. 4. It is submitted by learned counsel for the respondent no.3 that present proceedings have been filed for grant of probate of Will dated 3/12/2009 said to have been executed by late Hanuman Prasad, who expired on 12/1/2010 at Bikaner; the estate of the deceased comprised of 12 properties. Prior to filing of the proceedings before this Court, two applications under Sections 272 and 372 of the Indian Succession Act, 1925 (‘the Act’) were filed before the District Judge, Bikaner, which were withdrawn on 19/9/2011. The petitioner has indicated that the estate of the deceased is situated in District Bikaner except the agricultural land ad measuring 1 Bigha and 15 Katha situated at Ram Nagar, Assam. It is inter alia submitted that the said agricultural land was purchased on 12/3/2002 by Pawan Kumar Jain, Mool Chand Baid, Hanuman Prasad and Jeth Mal Jain jointly; 15 katha of the aforesaid land has been acquired by the State and, therefore, the share of deceased Hanuman Prasad in the remaining land is less than 5 Biswa i.e. about 400 sq. yds., rest of the entire movable and immovable properties are situated in Bikaner District. 5. Submissions have been made that Section 300 of the Act confers concurrent jurisdiction of High court with the District court and provides that except in cases to which Section 57 of the Act applies, no High Court shall receive application for probate until the State Government by notification in the official gazette authorizes it to do so. 5. Submissions have been made that Section 300 of the Act confers concurrent jurisdiction of High court with the District court and provides that except in cases to which Section 57 of the Act applies, no High Court shall receive application for probate until the State Government by notification in the official gazette authorizes it to do so. With reference to provisions of Section 264, 270 and 271 of the Act, it was emphasized that at the time of death, Hanuman Prasad, the executant of the Will, had fixed place of abode at Bikaner and he was bonafide resident of the said place, wherein, the entire movable and immovable belonging to him are situated other than the miniscule part, which is situated at Assam and, therefore, the only competent court to entertain the probate proceedings is the District Court at Bikaner and, therefore, the probate petition deserves to be returned back. 6. Learned counsel relied on the judgments in N.S.Chopra vs. State : Testamentary Case No.38/13 decided on 23/1/2014 by Delhi High Court and Mohan Lal Futnani vs. Vishanji D. Futnani : (1990) 2 MLJ 294 . 7. Learned counsel for the petitioner opposed the application. It was submitted that as the properties of the deceased are situate din more than one State, the jurisdiction lies with High Court only and, therefore, the objection raised by the respondent no.3 byway of filing application is baseless and same deserves to be rejected. 8. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 9. The valuation of movable and immovable properties of the deceased filed as Schedule I with the testamentary petition interalia indicates the valuation of the land situated at Ram Nagar, Assam as Rs.3 lakh. 10. Though, the provisions of Section 264 and 270 of the Act provides for jurisdiction of the District Court in granting and revoking probates and the circumstances in which the probate may be granted by the District Court, which indicate that probate of the Will of a deceased person may be granted by the District Judge if it appears by a petition that at the time of death, the deceased had a fixed place of abode or any property, movable or immovable, within the jurisdiction of the Judge. However, the relevant provision in the present circumstance is Section 273 of the Act, which insofar as relevant reads as under: “273. Conclusiveness of probate or letters of administration.-Probate or letters of administration shall have effect over all the property and estate, moveable or immoveable, of the deceased, throughout the State in which the same is or are granted; and shall be conclusive as to the representative title against all debtors of the deceased, and all persons holding property which belongs to him, and shall afford full indemnity to all debtors, paying their debts and all persons delivering up such property to the person to whom such probate or letters of administration have been granted: Provided that probates and letters of administration granted— (a) by a High Court, or (b) by a District Judge, where the deceased at the time of his death had a fixed place of abode situate within the jurisdiction of such Judge, and such Judge certifies that the value of the property and estate affected beyond the limits of the State does not exceed ten thousand rupees, shall, unless otherwise directed by the grant, have like effect throughout the other States. ” 11. A perusal of the above provision reveals that the probate granted by a District Judge would have effect throughout the other States in case the estate affected beyond the limits of the State in which the District Court is situated does not exceed Rs.10,000/-, else for having effect throughout the other States the probate is required to be granted by the High Court. 12. Though no challenge has been laid in the application to the valuation of Rs.3,00,000/- as indicated in Schedule I qua the property situated at Assam, submissions were made by counsel for the respondent no.3-applicant that the property in question at Assam was purchased in the year 2002 for a small amount and the share of the deceased would not be substantial, whereas, the rest of the properties are situated within the District Bikaner. Submission was also made that as the Act was enacted in the year 1925 and the limit indicated therein is Rs.10,000/- the same maybe taken into consideration as the matter is dealt with after about 90 years from the date the enactment took place. The submissions so made in this regard are apparently baseless. 13. Submission was also made that as the Act was enacted in the year 1925 and the limit indicated therein is Rs.10,000/- the same maybe taken into consideration as the matter is dealt with after about 90 years from the date the enactment took place. The submissions so made in this regard are apparently baseless. 13. Rule 750 of the Rajasthan High Court Rules, 1952, which deals with the application for probate provides that the petition for probate inter alia shall be accompanied by an affidavit of valuation in the form set forth in Schedule III to the Court Fees Act, 1870,as adapted to Rajasthan. The form of valuation of estate forms part of Schedule III of the Rajasthan Court Fees and Suits Valuation Act, 1961, which requires the applicant to inter alia declare as under: “6. I further declare that the said estate, exclusive only of the last-mentioned items, at the date of the death of the deceased was is under value of.” this application is 14. The declaration requires the valuation at the date of the death of the deceased/date of the application. 15. In view thereof, the fact that the property was acquired in the year 2002 at a particular value loses its significance and the valuation has to be assessed and indicated as on the date of death of the deceased or on the date of the application, as the case maybe. 16. So far as the submission regarding monetary valuation of Rs.10,000/- indicated in proviso (b) of Section 273 having been prescribed in the year 1925 is concerned, if the submission made by counsel for the respondent No.3 is accepted that the valuation of threshold limit as indicated in statute has to be considered based on the time lapse which has taken place since the Act was enacted, the same would result in anomalous situation, wherein, the threshold limit would have to be assumed to be revised every year, which cannot be the intention. Unless the threshold limit as indicated in the enactment is amended and brought in sync with the time which has lapsed, the threshold limit indicated in the enactment only would be relevant. 17. Unless the threshold limit as indicated in the enactment is amended and brought in sync with the time which has lapsed, the threshold limit indicated in the enactment only would be relevant. 17. As, admittedly, the properties of the deceased are situated in more than one State i.e. Rajasthan and Assam and the property situated at Assam is valuing more than Rs.10,000/- and the probate is sought by the petitioner having effect throughout the country, in view of the provisions of Section 273 of the Act, it is the High court only which would have jurisdiction to grant probate having effect throughout the country. 18. So far as the judgments cited by learned counsel for the applicant in the case of N.S.Chopra (supra) and Mohan Lal (supra) are concerned, both the judgments do not take into consideration the provisions of Section 273 of the Act and the fact that for a probate being effective throughout the country has to be granted by the High court, if the properties having valuation of more than Rs.10,000/- are situated in more than one State. 19. In view of the above discussion, there is no substance in the application under Section 21 CPC filed by respondent no.3, the same is, therefore, rejected. 20. List the petition for further proceedings on 1/12/2017.