Fixed place of adobe cannot be permanent abode.

Abdul Hadi, J.

1. This suit prays for grant of Probate of the last will and Codicil of late D.B. Futnani dated 28.6.1982 and 29.3.1983 respectively executed by him at Madras. The first plaintiff is his younger son. Second Plaintiff is the first plaintiffs son. The defendant is his elder son. The first issue in the unit is:

Has this Honourable Court the jurisdiction to grant probate and the said issue has been taken up as a preliminary issue as per my order dt.20-6-1989. Evidence was let in, by both the parties on the said issue and a finding is given hereby, on the said issue.

2. As per Section 270 of, the Indian Succession Act, Probate of the Will of a deceased person may be granted by a District Judge, if it appears by a petition verified as provided, of the person applying for the same that the testator at the time of his decease had "a fixed place of abode, or any property movable or immovable within the jurisdiction of the Judge." The term 'District Judge' is defined under Section 2(bb) as the Judge of a Principal Civil Court of Original jurisdiction. It is well known that the Judge of a High Court on its Original Civil jurisdiction would come under this definition. But, the real question is whether the deceased D.B. Futnani at the time of his death had a fixed place of abode or any property within the jurisdiction of this Court. Admittedly he died on 1-4-1983 at Madras, i.e., at the residence of the plaintiffs at 13, Commander-in-Chief Road, Madras. In the petition for probate also it is stated that he was a permanent resident of Madras at the time of his death and possessed property within the State of Tamil Nadu and other places. But, in the written statement it is stated that the said deceased had no permanent place of residence within the jurisdiction of this Honourable Court nor had any property at the time of his death and as such the application for probate filed before this Honourable Court is without jurisdiction.

3. So, it has to be seen whether D.B. Futnani had either a fixed place of abode at the above said residence of the plaintiffs at Madras or at least had property within the jurisdiction of this Court. Taking the first aspect of the question viz., regarding the "fixed place of abode", the said expression under Section 56 of Probate and Administration Act was considered in Govind v. Anand A.I.R. 1923 Nag. 145. It was held therein that 'fixed' could not possibly mean 'permanent' because no one in this world had a permanent place of abode. In the said case the deceased had been posted as a railway guard at a place for 20 years and occupied railway quarters there and it was held that he must be deemed to have had a fixed place of abode at such place, although he was liable to be transferred. Then, in Inre Mohendra Naraiyan 5 C.W.N. 377 where the deceased breathed his last within the jurisdiction of the District Judge where he had no permanent residence but came there for the purpose of medical treatment and was not certain how long he would have lived at that place, it was held that the District Judge of that place had jurisdiction to grant Probate. Then, in Sukhlal v. State Bank of India the Supreme Court, in dealing with the term 'place of residence' appearing in Debt Laws Displaced Persons (Debts Adjustment) Act, 1951, has observed thus:

It connotes a place where a person has his dwelling house, which need not necessarily be permanent or exclusive. A person may have more places of residences than one at a given time. A place occupied by a person with intention of setting up of a fixed though not permanent abode would be deemed to be a place of residence. Sojourn for a purely temporary purpose will not constitute residence, and the place of residence within the meaning of the Act; but where a person possesses establishments at more places than one and spends time more or less considerable in all those places, as exigencies of his occupation, vacation or fancy demand, he would be deemed to have a place of r