@JUDGMENTTAG-ORDER
J.K. Maheshwari, J.@mdashBoth these petitions have been filed under Rule 8 of the Testamentary and Intestate Rules framed by the High Court of Judicature at Nagpur for issuance of the succession certificate u/s 372 of the Indian Succession Act, 1925. On filing the same as per order dated 15-5-2012, time to file the undertaking in terms of Rule 8 in Form No. 7 prescribed in the said rule and-citation in terms of Rule 23 was granted. The undertaking was filed on 20-5-2012 and the citation was published in the daily newspaper ''Dainik Bhaskar'' and ''Free Express'' on 2-7-2012 specifying the date of hearing as 17-7-2012. In the meantime vide order dated 15-5-2012, direction to submits certificate by the Registrar as per Rule 9 and also to comply with Rule 10 with respect to payment of Court fee was issued. As per order dated 19-5-2012, Deputy Registrar of this Court was directed to issue the citation in form No. 11. Thereafter, when the matter came up for hearing on 17-7-2012, an objection was raised by this Court regarding the maintainability of the petition for grant of succession certificate in reference to the provisions of Indian Succession Act whereby the certificate can be issued by the District Judge. It was observed that this Court was having doubt regarding maintainability of the original proceedings for grant of certificate in the High Court. On the issue of maintainability of this petition, Shri Chitle, learned senior counsel assisted by Mr. Subodh Abhyankar have been heard at legth.
In view of objection of maintainability of this Court, the question for determination arises "whether the succession certificate can be granted by the High Court under the provisions of Indian Succession Act, 1925 read with the Testamentary and Intestate Rules exercising original jurisdiction?"
2. Mr. Chitle, learned senior counsel contends that Part 10 of the Indian Succession Act, 1925 deals with grant of succession certificate. Section 371 specifies that District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death or if no fixed place of residence is there, the District Judge within whose jurisdiction any part of the property of the deceased may be found, may grant succession certificate under the Act. The application for grant of such certificate may be applied for u/s 372 and the certificate may be issued after following the procedure prescribed in section 373 of the Act. It is submitted by him that Court has been defined in section 2(bb) of the Act which reads as under:--
2(bb) ''District Judge'' means the Judge of Principal Civil Court of original jurisdiction''.
3. It is his contention that for the purpose of testamentary and intestate jurisdiction the High Court may fall within the definition of the District Judge and have concurrent jurisdiction to exercise such power. Rule 2 of Chapter 17 of High Court Rules and Orders 1956 specifies the rules for regulating the testamentary and intestate proceedings in exercise of the powers conferred under Article 225 of the Constitution of India read with clause 27 of the Letters Patent Act by the High Court of Judicature at Nagpur. While enacting the M.P. High Court Rules, 2008, in Chapter 22 the said rules have not been repealed and saved, in such circumstances the High Court is having the concurrent jurisdiction to maintain the proceedings for grant of succession certificate. Learned counsel representing the application placed reliance on the judgment of Madras High Court in the matter of
4. After hearing learned senior counsel appearing on behalf of the petitioner, first of all the provision of Indian Succession Act is required to be referred. Section 371 of the Indian Succession Act specifies that the District Judge within 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 Jude, within whose jurisdiction any part of the property of the deceased may be found, may grant a certificate under part X of the Act. As per section 372 and 373, for the purpose of submitting the application and to grant certificate and follow the procedure the word ''District Judge'' has been referred. In the said context, as per definition of clause 2(bb), it is apparent that under the Act the District Judge means the Judge of a Principal Civil Court of original jurisdiction. However, as per Indian Succession Act, the application can be submitted for grant of succession certificate before the District Judge and he may issue the same, section 300 of the said Act confers concurrent jurisdiction to the High Court with the District Judge to exercise all the powers conferred upon the District Judge with certain exceptions, as specified in sub-section (2) thereof.
5. Under Article 225 of the Constitution of India, the power has been conferred to the High Court to make the rules of the Court and to regulate the sitting of the Court and members sitting alone or in division Courts after commencement of the constitution. It cannot be doubted that M.P. High Court Judicature at Jabalpur is the successor Court to the High Court of Judicature at Nagpur which Letters Patent of Nagpur applies. Clause 27 of the said Letters Patent confers the power for regulating the proceedings which is reproduced hereinbelow:--
27. Regulation of Proceedings. -- And we do further ordain that it shall be lawful for the High Court of Judicature at Nagpur from time to time to make rules and orders for regulating the practice of the Court and for the purpose of adapting as far as possible the provisions of the CPC being an Act No. V. of 1908, passed by the Governor General in Council and the provisions of any law which has been or may be made, amending or altering the same, by competent legislative authority for India, to all proceeding in its testamentary, intestate and matrimonial jurisdiction respectively.
6. Thus, the High Court of Judicature at Nagpur in exercise of the powers conferred under Article 225 of the Constitution of India read with Clause 27 of the Letters Patent has made the rules which were known as ''The Testamentary and Intestate Rules'' and made effective w.e.f. 1-7-1956. In such circumstances it is clear that for exercising the concurrent jurisdiction by the High Court akin to the District Court the powers flows under those rules. Under the rules, it has been specified that Registrar of the High Court or such officer of the High Court as may be authorized by the Chief Justice shall perform such duties assigned to the Registrar. In those rules, how the application for probate, letter of administration, succession certificate can be applied for, has been specified and thereafter following the procedure as contemplated in rule, the certificate may be issued as contemplated in rule, the certificate may be issued as per Schedule VII of India Succession Act, 1925. Thus the complete procedure has been specified for grant of certificate by the High Court.
7. Now it is to be seen that under the Succession Act, the power for grant of certificate has been conferred to the District Judge of a District Court, however the High Court may exercise the power of the District Judge for the purpose of issuance of succession certificate in exercise of concurrent jurisdiction is required to be considered. The said issue arose for consideration before the Madras High Court in the matter of
It is argued that in order to meet this difficulty the Act of 1920 was passed. That Act defined the words "District Judge'' as they had been defined in the General Clauses Act, but omitted the proviso.
It is contended that it cannot have been the intention of the legislature by that amending Act, or at all, to give a High Court power to grant a succession certificate.
It is not suggested that the definition does not include a Judge of a High Court for as regards certain sections of the Succession Act of 1925, it was obviously intended that the words ''District Judge'' should include a Judge of a High Court. The Court is invited to hold that although the term "District Judge" includes a Judge of the High Court when it is used in all other sections of the Succession Act, it excludes a Judge of the High Court when it is used in the sections relating to succession certificates. There is nothing in these sections to indicate that the definition in the amending Act was no intended to apply to them.
The words used are plain and unambiguous and read in their ordinary meaning give a High Court jurisdiction to grant succession certificate.
The presumption that the legislature did not intend to alter the law by an Act described as a consolidatory Act, cannot override the plain meaning of the words used.
In my opinion to accede to the argument in this case would be to amend and not to construe the Act, and however strongly a Court may feel that the legislature has overlooked a necessary provision or however obvious it may be that a provision has been inserted or omitted owing to the blunder of the draftsman, a Court is not at liberty to make laws or amended them.
The result of accepting the ordinary meaning of the words used does not involve any absurdity or nullify the whole object of the Act. A Bench of the Madras High Court came to the same conclusion but without giving any reasons.
In my opinion the Succession Act of 1925 read with the Amending Act of 1929 gives a High Court power to grant succession certificates. The "order of the learned Judge will stand. The Secretary of State must pay the costs, on the footing that he appeared in a contested application for the issue of a succession certificate.
8. The Madras High Court in the matter of M. Suresh (supra) referring the aforesaid provision in para 11 and para 21 held --
11. The next question, therefore, arises as to whether the High Court has jurisdiction to entertain a petition for issue of succession certificate. In this context, the definition of section 2(bb) of the Act is referable. As the Succession Certificate Act 7 of 1889 has defined only the District Court for the purpose of conferment of jurisdiction to issue succession certificate, by Amendment Act 18 of 1929, section 2(bb) was introduced wherein the District Judge was defined as a Judge of the Principal Civil Court of original jurisdiction. The jurisdiction entertain a petition for succession certificate and the power to issue such certificate came up for consideration before this Court in the matter of
21. The above discussion on the issue leads us to the only conclusion that though there is no specific provision of concurrent jurisdiction for the High Court grant a succession certificate under Part X, when such provision of concurrent jurisdiction is conferred by section 300 for grant of probate and letters of administration, in view of the definition of section 2(bb) defining the term "District Judge" which includes the High Court insofar as it entertains a petition and grant, revise or revoke the succession certificate and by virtue of Clause 34 of the Letters Patent which gives the High Court jurisdiction, in testamentary and intestate matters, we hold that this Court should have concurrent jurisdiction vested with the District Judge within 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 may be found and the present original petition for the grant of succession certificate is maintainable. In view of our discussion, the order of the learned Single Judge is liable to be set aside. Accordingly the impugned order is set aside and the original side appeal is allowed. Registry is directed to number the Original Petition Diary No. 12670 of 2006 and post the same before the learned Single Judge dealing with the subject. No costs. Consequently, M.P. No. 1 of 2007 is closed.
9. In the judgment of Mary Thomas (supra) wherein issue regarding ousting of jurisdiction of High Court with respect to matrimonial cases was involved, the Court referring the provisions of Family Courts Act has observed:--
After the constitution of the Family Court for the Madras area, the original jurisdiction of the High Court in respect of matters that may fall under the Explanation to section 7 of the Act is not ousted and the High Court can continue to exercise its jurisdiction notwithstanding the coming into force of the Family Court Act, 1984.
10. In the said context, it is seen that referring Clause 34 of the Letters Patent of Madras High Court, the judgments have been delivered and in M.P. High Court which is successor to Nagpur High Court, thus Letters patent of Nagpur is applicable. On perusal of Clause 27 of the said Act referred hereinabove it is clear that provisions of Clause 34 of the Letter Patent of Madras High Court are pari materia. In exercise of the said powers as well as the powers so conferred under Article 225 of the Constitution of India, High Court has framed the rules of Testamentary and intestate jurisdiction and notified on 16-5-1956. Under those rules, procedure have been prescribed for issuance of the certificate, the rules of 1956 has not been repealed by new M.P. High Court Rules 2008 and saved as per Chapter 22 of the said rules. It is to be observed here that as per the record, the High Court of M.P. has granted certificates various cases, details of some of them are as under:--
11. As per Testamentary and Intestate Rule of 1956, it is made clear that for testamentary and intestate purpose, the Indian Succession Act, 1925 will be applicable and the Registrar of the High Court as the officer of such Court may be authorised by the Chief Justice to perform such duties assigned under the 1956 rules. Thus, on filing an application seeking succession certificate and after following the procedure prescribed in the case of 1956, the High Court can exercise the concurrent jurisdiction as per section 300(1) of Indian Succession Act. It is to be further noted here that in the light of the judgment in the case of G.A. Kuppuswami, Smt. Satyabala Das and M. Suresh (supra), while exercising the power under the Testamentary and Intestate Rules, 1956, the High Court be treated as District Court for the purpose of the Indian Succession Act while exercising such jurisdiction, it is to be further observed that the High Court of M.P. is vested with the powers to grant succession certificate as per rules of 1956. In such circumstances the question raised as per order dated 17-7-2012 is hereby decided, maintaining this petition. In view of the earlier orders, the Registrar of this Court shall submit a certificate as per Rule 9 of the Rules of 1956 and the applicant shall comply with Rule 10 paying requisite Court fee within a week.
List on 27-2-2013.
