Back
High Court Of Calcutta
Prabir Kumar Majumdar
TARAK BALA DASI - Appellant
Versus
STATE - Respondent
Testy Suit 11 Of 1986
Decided On : 10/11/1988
TESTAMENTARY JURISDICTION - JURISDICTION OF HIGH COURT UNDER CLAUSE 34 OF LETTERS PATENT - APPLICATION FOR PROBATE - WHETHER MAINTAINABLE BEFORE HIGH COURT OR CITY CIVIL COURT - CITY CIVIL COURT (AMENDMENT) ACT, 1980 - EFFECT OF - INDIAN SUCCESSION ACT, 1925 - SECTIONS 270, 271, 299, 300 -LETTERS PATENT, CLAUSE 34 - INTERPRETATION.
Fact of the Case:
Petitioner filed an application for probate of the last will and testament of Smt. Tarak Bala Dasi, who died on 20th November, 1985 at No. 2, Amrita Lall Bose Street, Calcutta within the local limits of the Ordinary Original Civil Jurisdiction of this Court. The deceased left Will and Testament in Bengali, dated 23rd February, 1978 and the said Will and Testament was registered at the Calcutta Registry Office. By the said Will and Testament the petitioner was appointed by the testatrix as the sole executrix. A caveat has been filed by one Manarama Dey daughter of the testator Tarak Bala Dasi.
Finding of the Court:
1. The City Civil Court (Amendment) Act, 1980 has affected the testamentary and intestate jurisdiction conferred in the High Court by Clause 34 of the Letters Patent only in cases arising exclusively within the territorial jurisdiction of the City Civil Court. 2. If either the deceased had died having a fixed place of abode or leaving any assets outside the City Civil Court but within the State then the High Court shall have jurisdiction to grant of probate or Letters of Administration as the case may be under Clause 34 of the Letters Patent. 3. In the present case, the place of abode is within the jurisdiction of City Civil Court as also the jurisdiction of the Original Court. It is also not in dispute that the part of the property is within the jurisdiction of City Civil Court and also within the jurisdiction of the Original Side of this Court. It is not in dispute that the value of the property is within the pecuniary limits of the City Civil Court. 4. By virtue of the City Civil Court (Amendment) Act. 1980 this Court has no jurisdiction over the matter where the place of abode is within the jurisdiction of the City Civil Court or the assets of the value not exceeding 1 lakh, are within the jurisdiction of the City Civil Court even though the same is also within the jurisdiction original side of this Court. 5. The High Court can entertain the application for probate of the Will bequeathing the property which is situated within the limits of the State or "bengal Division" as contemplated in the Letters Patent, but outside the jurisdiction of City Civil Court after the said Amendment Act.
Issues: 1. Whether the application for probate is maintainable before the High Court or the City Civil Court? 2. What is the effect of the City Civil Court (Amendment) Act, 1980 on the jurisdiction of the High Court under Clause 34 of the Letters Patent? 3. How has the Indian Succession Act, 1925 been affected by the City Civil Court (Amendment) Act, 1980?
Ratio Decidendi: 1. The jurisdiction of the High Court under Clause 34 of the Letters Patent has been affected by the City Civil Court (Amendment) Act, 1980. 2. The High Court has lost the concurrent jurisdiction, which is vested in this Court by the provision of Section 300 of the Indian Succession Act, after the deletion of Section 300 of the Indian Succession Act by the said City Civil Court (Amendment) Act, 1980. 3. The High Court can entertain the application for probate of the Will bequeathing the property which is situated within the limits of the State or "bengal Division" as contemplated in the Letters Patent, but outside the jurisdiction of City Civil Court after the said Amendment Act.
Final Decision: The application for grant of probate is not maintainable and the petition should be taken off the file. The petitioner may make an application for grant of probate in respect of the said Will, dated 22nd February, 1978 before the appropriate Court. The application is dismissed as it is not maintainable. There will be no Order as to cost.
( 1 ) THE Court: This is an application for probate of the last will and testament of Smt. Tarak Bala Dasi. The petitioner is the sole executrix named in the last will and testament of the deceased Smt. Tarak Bala Dasi.
( 2 ) THE deceased a Hindu governed by the Dayabhaga School of Hindu Law died on 20th November, 1985 at No. 2, Amrita Lall Bose Street, Calcutta within the local limits of the Ordinary Original Civil Jurisdiction of this Court. The deceased left Will and Testament in Bengali, dated 23rd February, 1978 and the said Will and Testament was registered at. the Calcutta Registry Office. By the said Will and Testament the petitioner was appointed by the testatrix as the sole executrix. It is alleged in the petition that the testatrix left the property within the Ordinary Original Civil Jurisdiction of this Court and the testatrix was also Shebait of the deity of Sree Sree Naru Gopal Jew located at No. 2, Amrita Lall Bose Street, Calcutta which is also situate within the Ordinary Original Civil Jurisdiction of this Court. It is also alleged by the petitioner that the said Will was duly executed. The citation was issued to the person interested and pursuant thereto a caveat has been filed by one Manarama Dey daughter of the testator Tarak Bala Dasi.
( 3 ) BY the said Will and Testament, the testatrix claiming to be the Shebait in respect of Sree Sree Naru Gopal Jew at No. 2, Amrita Lall Bose Street, Calcutta and in respect of Sree Sree Sambhu Nath Jew in the premises situated at Kashi (Uttar Pradesh) and by virtue of the testatrix having a right of making appointment of Shebait in her place and stead made appointment of her eldest daughter Smt, Bhagabati Seal, the petitioner herein as Shebait Sree Sree Naru Gopal Jew of premises No. 2, Amrita Lal Bose Street, Calcutta after her death and whatever right title and claim belonging to the testatrix should vest on the said daughter the petitioner herein during her life time and on her death her youngest named daughter Smt. Rubi Dutta, wife of Shri Sambhu Nath Duty shall be the Shebait of said Sree Sree Naru Gopal Jew in her place and all right title and claim therein shall be vested on her and she shall be entitled to appoint Sabayat in her place and stead in turn. It was also provided in the said will for the appointment of one Shri Shyamal Dey son of testatrix's youngest daughter Smt. Manorama Dey an Shebait of Sree Sree Shambhu Nath Jew, Kashi in place and stead of the testatrix after her death and the testatrix also gave him power for making appointment of Sebayat in her place and stead which shall be effective after her death. The petitioner makes an application for probate of the said will
( 4 ) MR. Utpal Bose Learned Advocate appearing for the petitioner submits that shebait is a property and such property has been bequeath in favour of the petitioner and also the son of the caveatrix Smt. Manorama Dey.
( 5 ) MR. Sujit Auddy, Learned Advocate appearing for the caveator raises preliminary objection as to the maintainability of this application and has contended that this Court has no jurisdiction to entertain this application in as much as the part of the property being in Calcutta, the City Civil Court and not the High Court shall have jurisdiction to try and entertain the proceedings under Indian Succession Act (hereinafter referred to as the Succession Act) by virtue of City Civil Court Amendment Act, 1980. Mr. Auddy submits that under Section 2 of the City Civil Court Act, 1953 (hereinafter referred to as the Act) the City of Calcutta means the area comprised within the local limits for the time being of Ordinary Original Civil Jurisdiction of the High Court and Section 2 (2) of the said Act, City Civil Court means the Court established under Section 3 of the said Act. He submits that under Section 5 of the said Act the local limits of the jurisdiction of the City Civil Court shall be the City of Calcutta and it is provided in Section 5
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
