SUBEDAR DURGEY THAPA Vs. MADHAB PRASAD REGMI
LAWS(GAU)-1958-2-9
HIGH COURT OF GAUHATI
Decided on February 07,1958

Subedar Durgey Thapa Appellant
VERSUS
Madhab Prasad Regmi Respondents


Referred Judgements :-

LAL SINGH V. MT. KISHEN DEVI [REFERRED TO]
KASUMARI DAS VS. MAKKU [REFERRED TO]


JUDGEMENT

G. Mehrotra, J. - (1.)THIS is an application under Rule 36 of the Rules for the Administration of Justice and Police in the Administered areas of Shillong and also under Article 227 of the Constitution of India. The Petitioner is a permanent resident of Naspatighari, Mawprem, Shillong. A suit was instituted by the Opposite Party for declaration of his title in the court of the Assistant Dominion Agent, Khasi States against the Petitioner as Defendant No. 1 and his father as Defendant No. 2, claiming certain property situated in the administered areas of Shillong.
One Sabarna Debi is alleged to have executed a will in favour of the opposite party on 15 -11 -1938. Under the said will, the opposite party was made the sole legatee and executor. A probate was obtained by the opposite party from the Benaras Court on 17 -9 -1946, in respect of the aforesaid will. The suit was contested by the Petitioner and his father on the ground that the opposite party had no right to bring the suit.

A number of issues were framed; but the Assistant Dominion Agent, Khasi States, dismissed the suit on the sole ground that the opposite party failed to prove his representative character and thus was not entitled to bring the suit. On appeal, the Additional Dominion Agent, Khasi States, by his order dated 1 -8 -1949, upheld the judgment of the trial court and further held that the deceased was not competent to make a Will.

The Plaintiff -opposite -party came to this Court in revision against that order. During the pendency of that revision, the District Judge, Benaras, on being moved by the opposite party, granted a certificate on 7 -1 -1950, incorporating that the value of the property affected beyond the limits of the "Province" did not exceed Rs. 10,000/ - and thus the certificate was effective throughout the Indian Dominion.

In the original probate granted on 17 -9 -1946, there was no mention of this fact. A second application was then made by the opposite party to the Benaras Court for a certificate to the effect that the probate was effective throughout India. The amended certificate was granted by the District Judge of Benaras on 3 -4 -1950 and the same was forwarded to this Court.

This Court, by its judgment dated 20 -7 -1950, dismissed the application filed in revision holding that the amended certificate cannot be given retrospective effect. This Court 'however, observed that the finding of the lower appellate court on the merits of the case was unnecessary and will not prejudice the case of the Plaintiff -opposite -party in any subsequent litigation.

The present suit was then instituted by the opposite party in the court of the Assistant to the Deputy Commissioner, Khasi Hills, against the Petitioner and his father for a declaration of his right, title and also for possession.

(2.)THE main contention raised by the opposite party in this case was that as the deceased Sabarna Debi, inherited the property from her mother - Maina Debi, who in turn inherited it from her mother - Dhani Gurungseni and as the probate had been granted by the District Judge of Benaras, the Plaintiff was entitled tattle reliefs.
The suit was contested on various grounds inter alia that the suit was not maintainable in law and the court below had no jurisdiction to try the case. It was also contended by the Petitioner that Subedar Datta Thapa, since deceased, father of Defendant No. 2, was a brother of Kali Debi, wife of Havildar Bon Bahadur, who was an adoptive daughter of Havildar Putki Thapa - husband of Subarna Debi.

Thus, he denied that Subarna Debi inherited the property in dispute from Dhani Gurungni. It was also denied that there was any lady named Dhani Gurungni. The execution of the Will was also denied. The validity of the Probate proceeding before the District Court of Benaras was also challenged and the jurisdiction of the Benaras Court to amend the certificate was contested.

On 16 -4 -1956, the suit was dismissed by the trial court on the ground that the Plaintiff had no representative character on the strength of the Probate and the amended certificate and that the suit was not maintainable. All the other issues were not decided by him. On appeal by the Plaintiff -opposite -party, the Deputy Commissioner by his judgment dated 3 -5 -1957, allowed the appeal and set aside the order of the trial court dismissing the suit on the preliminary ground and directed the suit to proceed. It is against that order that the present application has been filed.

The first contention raised by the Petitioner is that the opposite party has no representative character inasmuch as the Benaras Court had no jurisdiction to amend the certificate granted earlier and to include the property in dispute in the Probate when it was not done so at the earlier stage. It was also contended in this connection that the Probate cannot be effective as against the present property in dispute inasmuch as the property Was situated outside the British India, at the time when the Probate was granted, and the provisions of the Indian Succession Act do not apply to this State. Probate has been defined in the Indian Succession Act in Sub -section 2 Clause (f) as follows:

Probate means the copy of a Will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator.

It is not denied that the Probate was obtained by the opposite party on the basis of the Will, certified copy of which was attached. In the original affidavit filed, the property was included in the list of the assets of the deceased. The Will was executed in respect of the entire assets of the deceased. The Probate was therefore granted in respect of the entire assets of the deceased.

It cannot therefore be said that the Probate by itself was defective. It was contended that the Benaras Court was not competent to grant a Probate inasmuch as the property in dispute was then situated outside the British India. The competence of the court to grant a Probate in respect of a Will is to be determined in accordance with the provisions of Section 270 of the Indian Succession Act, which gives power to a District Judge of the territory within which the deceased had a fixed place of abode or any property to grant probate.

It is not denied in the present case that the deceased at the time of the execution of the Will was a resident within the jurisdiction of the District Judge of Benaras and that some property was admittedly within his jurisdiction. Under these circumstances, it cannot be said that the Benaras Court was not competent to grant a Probate in respect of the Will of the deceased.

How far such a Probate will be effective as against the property lying outside British India, at that time is a matter which will have to be determined in accordance with the provisions of Section 273 of the Indian Succession Act.

(3.)RELIANCE was placed by the counsel for the Petitioner on the case of Lal Singh v. Mt. Kishen Devi reported in, AIR 1929 Lah. 72 (2) (A). In that case it wan held that a Probate granted in respect of a Will cannot be effective as against the property situated outside British India; but it was also held therein that such a Probate will not be without jurisdiction and the competency of the court granting the Probate has to be ascertained having regards to the provisions of Section 273. Section 273 as amended provides as follows:
Probate or letters of administration shall have effect over all the property and estate, moveable or immovable, 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.

It is not denied that the property is situated within the territory of the State of Assam. The Probate therefore can be effective as against the disputed property under the provisions of Section 273 for the District Judge has granted a certificate to the effect that the value of the property outside the State does not exceed Rs. 10,000/ -. Such a certificate has been granted by the District Judge of Benaras.

The certificate contemplated under Section 273 has to contain merely a declaration that the value of the property and estate affected beyond the limits of the State does not exceed Rs. 10,000/ -. No certificate is necessary giving the properties comprising the estate of the deceased. There is nothing in Section 273 which provides that such a certificate has necessarily to be given along with the Probate.

Section 274 then enjoins upon the District Judge to send a certificate when a Probate or Letters of administration have been granted by him with the effect referred to in Section 273 to certain courts. There is no dispute that the provisions of Section 274 have been complied with and the certificate has been forwarded to this Court. It cannot be therefore said that the Benaras Court had no jurisdiction under Section 273 to grant a certificate.

As soon as the certificate required under Section 273 has been granted, the Probate can be effective as against the property lying beyond the limits of the State of Uttar Pradesh, and such a Probate is to be conclusive as to the representative title of the Plaintiff. It was then urged that as the Indian Succession Act, is not in force in the territory of the Administered Areas of Shillong, the provisions of Section 273 will not apply.

It is not necessary to decide this question inasmuch as even, if this argument is accepted, not only Section 273 will not apply, but even Sections 214 and 213 of the Indian Succession Act will not apply. There is therefore no bar to the Plaintiff -opposite -party, who claims to be the sole legatee under the Will to come to the Court for enforcement of his title to the property. In this view of the matter, the counsel for the Petitioner did not press that contention seriously.



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