Ramachandra Iyer, C.J.

This appeal which arises out of an order returning an application for probate of a will, for presentation to the proper Court has been placed before the Full Bench, by reason of a conflict between the decisions reported in Karthiruma Goundan v. Rangammal1 and P. J. Francis v. P. J. Varghese2. The facts relevant for and giving rise to this appeal are: The appellant claiming as an executor under an alleged will of one P. W. Subbaraya Reddiar who dird on 1st July, 1957 first applied for the" grant of probate of the will in the Sub-Court at Tirunelveli. The application was opposed by the daughter of the deceased who contested the genuineness of the will and who inter alia denied the jurisdiction of the Sub-Court to dispose of a contentious application for probate. To appreciate the latter objection it is necessary to refer to two notifications conferring jurisdiction on the Sub-Court to grant probate of a will. They are: (1) By virtue of a notification made by this Court under section 265 of the Indian Succession Act, 1925 all Subordinate Judges in the Madras Province have been appointed as ex officio District Delegates under that enactment within the local limits of their respective jurisdiction ; (2) By virtue of another notification of the High Court made under section 29 (1) of the Madras Civil Courts Act, 1873 all Subordinate Judges in the Madras Province have been authorised to take cognizance of any proceedings under the Indian Succession Act, 1925, which cannot be disposed of by the District Delegates. (Vide Civil Rules of Practice, Vol. 1, page 275) where the two notifications are set out.

A District Delegate under the provisions of the Indian Succession Act, will have jurisdiction to grant probate of a will or letters of administration only (1) if the deceased had at the time of his death a fixed place of residence within his jurisdiction and (2) in non-contentious cases. The second of the two notifications referred to above issued under section 29 (1) of the Madras Civil Courts Act will, however authorise a Subordinate Judge to deal with other cases as well, e.g., non-contentious matters. In Francis v. Varghese1 Govinda Menon and Basheer Ahmed Sayeed, JJ., held that as under section 265 of the Indian Succession Act a District Delegate can take cognizance of only non-contentious proceedings, the latter cf the two notifications which invested a Subordinate Judge with a jurisdiction over contentious proceedings as well, would be invalid and that a Subordinate Judge would, therefore have no power but to return the application for probate or letters of administration which turned out to be contentious for presentation to the District Judge. While coming to that conclusion the learned judges did not, however, refer or consider section 29 of the Madras Civil Courts Act or the decision cf this Court in Karthiruma Goundan v. Rangammal2. That was a case relating to a petition under section 192 of the Indian Succession Act. It was contended therein that the notification made under section 29 (1) of the Madras Civil Courts Act authorising all Sub-Judges to take cognizance of all proceedings other than those that could be dealt with by District Delegates would be restricted only to matters concerning the grant of probate or letters of administration under Part IX cf the Indian Succession Act and not to applications under the other parts of the Act. This contention was rejected. In so doing Reilly and Anantakrishna Iyer, JJ., observed that section 29 of the Madras Civil Courts Act would extend the powers of the Subordinate Judge over the whole field of the former Act.

The learned Subordinate Judge in the instant case following the decision in Francis v. Varghese1 as indeed he was bound to do, returned the application which was a contentious one, for presentation to the appropriate Court. The appellant who thereupon took back his application, presented it to the District Court at Tirunelveli. In the latter Court th

Click Here to Read the rest of this document