The amendment of the City Civil Court Act, 1953 by the City Civil Court (Amendment) Act, 1980 affected the High Court's jurisdiction to grant probate and letters of administration under the Indian Succession Act, 1925 and under clause 34 of the Letters Patent, 1865, but did not affect the High Court's jurisdiction under Clause 34 of the Letters Patent in respect of cases arising outside the territorial jurisdiction of the City Civil Court.

Sailendra Nath Sarkar, (hereinafter referred to as the said deceased) a Hindu governed by Dayabhaga School of Hindu Law of Indian domicile and an inhabitant of Ramkrishnapur, Howrah outside the ordinary original civil jurisdiction of the High Court but within the testamentary jurisdiction of the District Court, Howrah died on 30th December, 1982 leaving a will and testament dated 18th day if November, 1981. The said deceased died leaving his five sons, his widow, Smt. Durgarani Sarkar and one daughter Sm. Priti Mitra. By and under the said deceased appointed his two sons, namely, Sachidulal Sarkar and Nirode Baran Sarkar as Joint Exectors and Trustees. The said deceased left properties all within the jurisdiction of the Court of the District Judge Howrah.

2. The petitioners, Sachidulal Sarkar and Nirode Baran Sarkar have made an application to this Hon'ble Court for grant of a probate of the said will. A question has arisen as to whether after amendment of the City Civil Court Act 1953 by the City Civil Court (Amendment) Act, 1980 this Court has jurisdiction to grant probate of the said will. In connection with the said question a broader question has arisen in this case as to how far the jurisdiction of the High Court to grant probate and letters of administration under Indian Succession Act, 1925 as also under clause 34 of the Letters Patent, 1865 has been affected in view of the amendment of the City Civil Court Act, 1953 by the City Civil Court (Amendment) Act, 1980.

3. Submissions were made before me by the learned Counsel appearing all behalf of the petitioners and the State of West Bengal respectively.

4. It has been submitted on behalf of the petitioners that the City Civil Court Act, 1953 a, amended by the City Civil Court (Amendment) Act, 1980 is, restricted in its application within the territorial jurisdiction of the City Civil Court which under S. 2(3) is City of Calcutta and the same includes the area comprised within the local limits for the time being of the ordinary original civil jurisdiction of the High Court. It is submitted that if The place of abode at the time of death or the assets left by the deceased are outside the territorial jurisdiction of the City Civil Court then the amendment made in the City Civil Court Act cannot affect the jurisdiction of the District Judges of other courts who have concurrent jurisdiction with the High Court at Calcutta it is further submitted that in such cases the High Court also retains jurisdiction under clause 34 of the Letters Patent 1865 unless it can be shown that there is a specific negation of such power and jurisdiction of the High Court by any other special statute it has also been submitted that even after the amendment of the City Civil Court Act as aforesaid the High Court retains its testamentary jurisdiction in all cases except where the testator dies having a place of abode within that territorial jurisdiction of the City Civil Court Act and also has left the assets within the jurisdiction of that court valued less then Rs.1 lakh.

5. On behalf of the petitioners reference was made to Ss. 264, 266, 270, 271, 273, 298 and 300 of the Indian Succession Act 1925 for the purpose of showing that the territorial and pecuniary jurisdiction of the District Court when the deceased dies leaving assets within the jurisdiction of the District Court and that after the probate proceeding is contested it becomes a suit and Court Fees Act is attracted for payment of ad valorem duty. It has been Submitted that when a probate proceeding is contested and marked as contentious cause it becomes a suit under the provisions of S. 295 of the Indian Succession Act, 1925 as also under Schedule II item 1(g) proviso of the west Bengal Court Fees Act and Court fees are payable according to the provisions of the said Act. Further submissions on behalf of the petitioners was that after amendment of S. 5 of the City Civil Court Act 1953 by the City Civil (Amendment) Act, 1980 the High