The jurisdiction of the High Court to grant probate of a Will executed by a Hindu, after the amendment of the City Civil Court Act, 1953, in 1980, is taken away and conferred exclusively upon the City Civil Court at Calcutta if the cause of action for filing such application arises within the limits of the Original side.

Bhaskar Bhattacharya, J.

1. IN course of hearing of an application filed in connection with an appeal of 2003 arising out of probate jurisdiction, we decided to hear out the appeal itself instead of disposing of the interlocutory application keeping the appeal pending. Consequently, the learned Counsel for the parties made their submission only on the merit of the appeal.

2. THIS appeal is at the instance of an Executor and is directed against an order dated 8th October, 2002 passed by a learned Single Judge of this Court by which His Lordship revoked the grant of probate earlier made by holding that this High Court had no jurisdiction to entertain an application for grant of probate in respect of the Will left by the deceased in this case. Being dissatisfied, the Executor has come up with the present appeal.

There is no dispute that the deceased was a Hindu governed by the Mitakshara School of Hindu law and died on January 18, 1999 at Mumbai leaving his alleged last Will and Testament dated 9th November, 1998 which was registered with the Sub-Registrar, Vikash Sadan, New Delhi. The probate proceeding was initiated in this High Court on the allegation that the deceased had left an immoveable property situate at 1A, Indian Mirror Street, Calcutta, within the jurisdiction of this Court. In the application for revocation, various points were taken including the genuineness of the said Will. However, the learned Single Judge held that after the amendment of the City Civil Court (Amendment) Act, 1980 (West Bengal Act LX of 1980), this Court has lost its jurisdiction to entertain a testamentary application relating to a Will executed by a Hindu.

3. MR. Deb, the learned Senior Advocate appearing on behalf of the appellant, has strenuously contended before us that by virtue of the provisions contained in the City Civil Court (Amendment) Act, 1980 (hereinafter referred to as the 1980 Amendment) all that has been taken away is the jurisdiction of this Court to try and entertain the proceeding under the Indian Succession Act, 1925 and such jurisdiction has been conferred upon the City Civil Court at Calcutta.

4. ACCORDING to Mr. Deb, apart from the provisions contained in Indian Succession Act, 1925, this High Court by virtue of its power conferred by the Letters Patent possesses testamentary jurisdiction irrespective of the provisions contained in Indian Succession Act and thus, even if the power conferred under the Indian Succession Act to grant Probate is taken away by the 1980 Amendment, the original jurisdiction to grant Probate by dint of the provisions of Letters Patent and the Original Side Rules of this Court still exists and this Court can entertain and dispose of a Probate application in respect of a Will executed by a Hindu without taking aid of the Indian Succession Act.

In other words, according to Mr. Deb, the jurisdiction conferred by the Letters Patent cannot be taken away except by specific legislation and in view of amendment of the City Civil Court Act, the testamentary jurisdiction under the Letters Patent has not been affected in any manner. Mr. Deb, therefore, submits that we should not treat the present application for grant of probate as one field under the Indian Succession Act but should consider it as an application in terms of the Original Side Rules read with the Letters Patent. Mr. Deb, therefore, prays for setting aside of the order passed by the learned Single Judge and for hearing of the application for revocation of the probate on merit.

5. IN support of his contention, Mr. Deb relies upon the following decisions:

1. Sharda Devi Vs. State of Bihar, reported in (2002) 3 SCC 705;

2. P. S. Sathappan (Dead) By LRS. Vs. Andhra Bank Ltd. and Ors., reported in (2004) 11 SCC 672;

3. Commissioner of Customs and Central Excise Vs. Hongo INdia Private Limited and Anr., reported in (2009) 5 SCC 791;

4. Swedish Match Ab And Anr. Vs. Securities and Exchange Board of India and Anr., reported in (2004) 11 SCC 64