Lekshmi M. Nair v. Sudhamony Amma C.K. and others

**“CR”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **&** **THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR** **FRIDAY, THE 23[RD] DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945** **MFA (SUCCESSION) NO. 3 OF 2023** **AGAINST THE ORDER/JUDGMENT OP (LA) 3/2022 OF DISTRICT & SESSIONS** **COURT, ALAPPUZHA** ## **APPELLANT/PETITIONER IN OP(LA):** **LEKSHMI. M. NAIR AGED 39 YEARS D/O (LATE) R. MURALEEDHARAN NAIR, CHERUVALLIL, VADACKAL P.O., PARAVOOR VILLAGE, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT, PIN - 688003** **P.B.KRISHNAN P.B.SUBRAMANYAN SABU GEORGE B.ANUSREE MANU VYASAN PETER DEEPA NOBLE** ## **RESPONDENTS/RESPONDENTS IN OP(LA):** - **1 SUDHAMONY AMMA. C.K W/O LATE R. MURALEEDHARAN NAIR, CHERUVALLIL, VADACKAL P.O., PARAVOOR VILLAGE, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT, PIN - 688003** - **2 LEKHA NAIR AGED 52 YEARS, D/O SUDHAMONY AMMA. C.K., AVANI, PERUNNA, CHANGANACHERRY, KOTTAYAM DISTRICT, PIN - 686102** **3 REKHA HARIKUMAR AGED 47 YEARS, D/O SUDHAMONY AMMA.C.K. NEDUMPARAMBIL, PADAHARAM, THAKAZHY, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT, PIN - 688003 K.S.HARIHARAPUTHRAN PINKU MARIAM JOSE(K/749/2015) ANIL KUMAR T.P.(K/001028/2021)** **THIS MFA (SUCCESSION) HAVING COME UP FOR HEARING ON 30.01.2024, THE COURT ON 23.02.2024 DELIVERED THE FOLLOWING:** **MFA (SUCCESSION) NO. 3 OF 2023** **2** **“CR”** ## **ANU SIVARAMAN, J. & C. PRATHEEP KUMAR, J.** **-----------------------------------------------------------------MFA (Succession) No.3 of 2023 --------------------------------------------------------Dated this the 23[rd] day of February, 2024** ## **JUDGMENT** ## **Anu Sivaraman, J.** The question raised for consideration before us by the Reference Order dated 9.1.2024 is whether, in the absence of a notification by the State Government under Section 264(2) of the Indian Succession Act, 1925 (for short, 'the Act'), the District Court has jurisdiction to grant or revoke probates and letters of administration. 2. A learned Single Judge of this Court in **Natarajan T.K.** v. **T. K. Raman Achari** [2023 (2) KHC 652] held that the courts within the State of Kerala have no jurisdiction to issue probate or letters of administration unless there is a notification by the State Government as mandated under Section 264(2). To come to the said conclusion, a decision of the Apex Court in **Ravinder Nath Agarwal** v. **Yogender Nath Agarwal and others** [2021 (1) KLT 1139 (SC) : AIR 2021 SC 3156] was relied on. **MFA (SUCCESSION) NO. 3 OF 2023** **3** 3. We have heard Sri.P. B. Krishnan, the learned counsel for the appellant ably assisted by Adv. Chithira Venugopal and Sri.K. S. Hariharaputhran, the learned counsel appearing for the respondents. 4. The learned counsel for the appellant contends that the provisions of Section 264(1) of the Act which specifically provides that the District Judge shall have jurisdiction in granting and revoking probates and letters of administration in all cases within his district being clear and unambiguous, the provision in sub section (2) of the same Section would apply only to courts other than District Courts which are specifically provided with the jurisdiction under Section 264(1). It is further contended that it is only in cases to which Section 57 does not apply and where the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jain or an exempted person that a notification is required by the State Government for courts in local area beyond the limits of the towns of Calcutta, Madras and Bombay for receiving applications for probate or letters of administration. It is contended that since Section 57(c) provides that the provisions of the part shall apply to all wills and codicils made by Hindu, Buddhist, Sikh and Jaina on or after the first day of January, 1927. The will in **MFA (SUCCESSION) NO. 3 OF 2023** **4** question being one made by a Hindu and not being covered by Section 57(a) and (b), is one covered by Section 57(c) and therefore, no notification is required under Section 264(2), it is contended. 5. The Indian Succession Act, 1925 defines a 'District Judge' to mean the Judge of a principal civil court of original jurisdiction. The present Act is divided into several parts. Part VI of the Act deals with testamentary succession. Section 57 provides for the application of certain provisions of Part to a class of Wills. Section 57(c) states that the provisions of Part VI which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jain on or after the first day of January, 1927 to which those provisions are not applied by clauses (a) and (b). The matters set out in Schedule III are admittedly the provisions of Part VI, that is, from Section 57 to Section 191 barring a few provisions. Section 264 of the Act figures in Part IX of the Act which provides for probate, letters of administration and administration of assets of deceased. **MFA (SUCCESSION) NO. 3 OF 2023** **5** 6. Chapter IV of Part IX of the Indian Succession Act deals with the practice in granting and revoking probates and letters of administration. Section 264 figures in Chapter IV and reads as follows :- ## **“264. Jurisdiction of District Judge in granting and revoking probates, etc.** (1) The District Judge shall have jurisdiction in granting and revoking probates and letters of administration in all cases within his district. (2) Except in cases to which section 57 applies, no court in any local area beyond the limits of the towns of Calcutta, Madras and Bombay shall, where the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jain or an exempted person, receive applications for probate or letters of administration until the State Government has, by a notification in the Official Gazette, authorised it so to do.” 7. The subsequent Sections in the Part specifically refer to the powers of the District Judge in dealing with applications for grant of probates and letters of administration and to their conclusiveness and appeal therefrom. Section 300 provides that the High Court shall have concurrent jurisdiction with the District Judge. It is pertinent to note that Section 300(2) also provides that except in cases to which Section 57 applies, no High Court, in exercise of the concurrent **MFA (SUCCESSION) NO. 3 OF 2023** **6** jurisdiction conferred over any local area beyond the limits of the towns of Calcutta, Madras and Bombay shall, where the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jain or an exempted person, receive applications for probate or letters of administration, until the State Government has, by a notification in the Official Gazette, authorised it to do so. 8. The learned counsel for the appellant has placed the Succession Act of 1865 as well as the Act of 1870 for our consideration and brings to our notice the fact that the definition of a 'District Judge' and the jurisdiction of the District Judge and the powers for grant of probates and letters of administration under Section 235 under Part XXXI of the 1865 Act were in _pari materia_ with the powers conferred by the 1925 Act as well. It is, therefore, contended that the power to grant or revoke probates or letters of administration is specifically conferred on the District Judge. It is submitted that sub section (2) of Section 264 which provides that no court shall accept applications for probates or letters of administration without a notification by the State Government would only mean courts other than the District Courts which are specifically conferred **MFA (SUCCESSION) NO. 3 OF 2023** **7** with the jurisdiction under Section 264(1). It is contended that this aspect of the matter would be amply clear from a consideration of the judgment of a Full Bench of the Madras High Court in **R. Rama Subbarayalu Reddiar** v. **Rengammal** [AIR 1962 Mad 450], where it was held that a notification under the provisions of the Civil Courts Act, 1873 would enable a subordinate court or a Munsiff's court to accept applications and dispose of applications for probate and letters of administration under the provisions of the Indian Succession Act. However, such vesting of authority in the Subordinate Judge to entertain and dispose of contentious applications for probate under the provisions of the Civil Courts Act cannot take away the jurisdiction of the District Judge who is specifically empowered to consider applications and to grant or revoke probates and letters of administration under Section 264(1). It was, therefore, held that the District Judge has concurrent jurisdiction with the Subordinate Judge to consider an application for grant of probate. The provisions of Section 264(2) were also referred to by the Full Bench. 9. In **Ganpat Pralhad and others** v. **Mahadeo Paikajee Kolhe and others** [AIR (36) 1949 Nagpur 408 (C.N.164)], the **MFA (SUCCESSION) NO. 3 OF 2023** **8** question considered was whether the Additional District Judge can exercise the powers of District Judge in the matter of grant of probate of a Will. It was held that the term 'District Judge' used in the provisions of the Succession Act is a specific reference to the District Court and the term is not used to refer to the District Judge as a _persona designata_ but to a court of principal civil jurisdiction and therefore, an Additional District Judge will also have the power to consider an application for grant of probate of a Will. 10. A decision of the Apex Court in **Ashwani Kumar Singh** v. **U. P. Public Service Commission** [2003 KHC 1334] is relied on by the learned counsel for the appellant to contend that the judgments should not be interpreted like words in a statute and each decision has to be considered on the basis of the facts of the case which it decided. A decision of the learned Single Judge of this Court in **Varkey** v. **George** [1992 KHC 377] is also relied on to contend that the expression District Judge in Section 264 refers to the District Court and not to a _persona_ designata. Relying on Sections 278, 268 and 295 of the Succession Act, the learned Single Judge held that there is no prohibition in the Act or in the Rules against the seeking of the letters **MFA (SUCCESSION) NO. 3 OF 2023** **9** of administration in respect of an earlier Will if the latter Will were to fail for any reason. It was held that the endeavour of the court should be not to curtail the power which is not specifically curtailed by any other Act or the Rules framed thereunder and it is not for the court to impose upon itself self created fetters so as to disable it from exercising a power which is a normally recognised one and is used for doing justice in a given cause. 11. In **Triloki Nath** v. **Kanhiya Lal and other opposite parties** [AIR 1978 Allahabad 297], a learned Single Judge of the Allahabad High Court considered an identical question and held that since Section 264(1) of the Succession Act makes it clear that the District Judge has jurisdiction in granting and revoking probates and letters of administration in all cases within his district, the requirement for a notification under Section 264(2) will be applicable only in cases where Section 57 is not applicable. Referring to Section 57(c), it was held that where a Will is made by a Hindu, Budhist, Sikh or Jain on or after the 1[st] day of January, 1927, the provisions of Section 57 are attracted and there would be no necessity for a notification empowering the District Judge to entertain petitions for **MFA (SUCCESSION) NO. 3 OF 2023** **10** probates and letters of administration and that the District Judge has jurisdiction to entertain such petitions and to grant such letters of administration. 12. The learned counsel appearing for the respondents would, on the other hand, contend that Section 57 makes only the specific provisions as provided under Schedule III applicable to wills or codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927 and that since Section 264 is not made applicable to such persons by Section 57, a notification would be required. Further, it is contended that there is no requirement for Hindu, Buddhist, Sikh or Jaina to obtain a probate of a Will and therefore, the entire question is irrelevant. 13. Having considered the contentions advanced, we notice that a District Judge is specifically conferred with the jurisdiction to grant and revoke probate and letters of administration in all cases within his District under Section 264(1) of the Act. The language of Section 264(2) would make it clear that the necessity of a notification would arise only in cases where Section 57 does not apply. This aspect is amply clear from a reading of the other provisions of Chapter **MFA (SUCCESSION) NO. 3 OF 2023** **11** IV of Part IX specifically refers to the procedure before the District Judge, the nature of the adjudication and the appeal therefrom. It is, therefore, clear that in case of a District Judge, the jurisdiction for granting and revoking of probates and letters of administration in all cases within his District is specifically vested under Section 264(1). It is only in cases where Section 57 does not apply that a notification by the State Government is required to receive applications for probate or letters of administration. 14. The question which arose for consideration in **Ravinder Nath Agarwal's case** ( _supra_ ) was as to the territorial jurisdiction to consider an application for probate under the Indian Succession Act. The question is whether the proceedings under the Succession Act could be transferred to the Court trying a suit for partition. The Apex Court held that by virtue of Section 213(2)(i) read with Clauses (a) and (b) of Section 57, the mandatory requirement to seek probate or letters of administration for establishing a right as executor or legatee under a Will is applicable only to Wills made by a Hindu, Buddhist, Sikh or Jain within the local limits of the ordinary original civil jurisdiction of certain High Courts and to Wills made outside those **MFA (SUCCESSION) NO. 3 OF 2023** **12** territories to the extent they cover immovable property situated within those territories. It was further held that in other cases, there is no necessity for an executor or a legatee under a Will to seek probate or letters of administration. However, it was noticed that in **Balbir Singh Wasu** v. **Lakhbir Singh and others** [(2005) 12 SCC 503], it was held that there is nothing in Section 213 prohibiting the executor from applying for probate as a matter of prudence or convenience to the courts in other parts of the country. It was therefore found that in cases where probates or letter of administration need not be obtained, primacy for those proceedings cannot be claimed. 15. Having given our anxious consideration to the said decision, we find that the reference made to Section 264 in paragraph 35 of the said decision is only to the effect that the jurisdiction to grant probate or letters of administration vests only within courts located within the towns of Calcutta, Madras or Bombay and the courts in any local area notified by the State Government in the Official Gazette. Paragraph 36 would show that the question was whether there is a requirement under the provisions of the Succession Act to seek probate or letters of administration in other cases. It was in the above context that the **MFA (SUCCESSION) NO. 3 OF 2023** **13** Apex Court had held that there is no such requirement. This cannot be read as meaning that even in cases where probate or letters of administration are required or felt to be desirable by the person concerned, who is covered by Section 57(c) of the Act, the District Court, which is specifically empowered under Section 264(1) would not have the power to consider such application. We, therefore, hold that the view of the learned Single Judge in **Natarajan T. K.'s case** ( _supra_ ) is not the correct law. There is no finding by the Supreme Court in **Ravinder Nath Agarwal's case** ( _supra_ ) that even in cases covered by Section 57, the District Judge would have no jurisdiction to entertain an application for probate or letters of administration, unless a notification is issued by the State Government under Section 264(2). We, therefore, answer the reference as follows:- 16. Even in the absence of a notification under Section 264(2) of the Indian Succession Act, the District Court would be empowered to accept applications and grant and revoke probates and letters of administration in cases specifically covered under Section 57(c). In the instant case, the parties being Hindus, they are specifically covered by Section 57(c) of the Indian Succession Act. The **MFA (SUCCESSION) NO. 3 OF 2023** **14** MFA Succession is allowed. The judgment under appeal is set aside. The matter is remanded to the District and Sessions Court, Alappuzha for appropriate consideration, in accordance with law. **Sd/ANU SIVARAMAN** **JUDGE** **Sd/C. PRATHEEP KUMAR JUDGE** Jvt/9.2.2024