Gujarat High Court Allows Appeal in Succession Case, Directs Transfer of Probate Application to District Judge Under Section 288 of Indian Succession Act, 1925. The trial court's rejection of probate application for lack of jurisdiction under Section 272 was set aside as the court should have transferred the matter to the District Judge under Section 288.

High Court: Gujarat High Court

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2026-05-19 17:40:08

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Case Note & Summary

The appellant, Usha Pankajbhai Bhayani, filed a First Appeal under Section 96 of the Code of Civil Procedure, 1908 read with Section 299 of the Indian Succession Act, 1925, challenging the judgment dated 29.07.2025 passed by the learned Additional Civil Judge, Porbandar in Civil Miscellaneous Application No.70 of 2022. The trial court had rejected the appellant's application for probate or letters of administration solely on the ground that it lacked jurisdiction under Section 272 of the Indian Succession Act, as the deceased had a fixed place of abode in a different state. The appellant, represented by Ms. Dharti Ratani, argued that the court should have transferred the application to the District Judge under Section 288 of the Act instead of rejecting it. It was also submitted that citation and newspaper publication had already been done, and the matter had been previously remanded by the High Court. The appellant had produced affidavits of Anilkumar Vinodchandra Amlani (grandson of the attesting witness Vallabhdas Pitambar Amlani) identifying the witness's signature, and another affidavit. The High Court, after hearing the appellant's counsel, found that the trial court erred in rejecting the application on jurisdictional grounds without following the procedure under Section 288. The court held that when a court lacks jurisdiction, it should transfer the application to the District Judge. Accordingly, the appeal was allowed, the impugned order was set aside, and the matter was remanded to the Civil Judge (Senior Division), Porbandar, with a direction to transfer the application to the District Judge, Porbandar, for appropriate consideration. The court also directed that the appellant may produce all relevant documents before the District Judge.

Headnote

A) Succession Law - Probate and Letters of Administration - Jurisdiction - Section 272, 288, 299 Indian Succession Act, 1925 - Section 96 Code of Civil Procedure, 1908 - The appellant filed an application for probate/letters of administration before the Civil Judge (Senior Division), Porbandar, which was rejected on the ground that the court lacked jurisdiction under Section 272 as the deceased had a fixed place of abode in a different state. The High Court held that when a court lacks jurisdiction, it should transfer the application to the District Judge under Section 288 instead of rejecting it. The impugned order was set aside and the matter remanded to the Civil Judge to transfer the application to the District Judge for appropriate consideration. (Paras 1-4)

Issue of Consideration

Whether the Civil Judge (Senior Division) can reject a probate application for lack of jurisdiction under Section 272 of the Indian Succession Act, 1925, or whether the application should be transferred to the District Judge under Section 288 of the Act.

Final Decision

The appeal is allowed. The impugned judgment and order dated 29.07.2025 passed by the learned Additional Civil Judge, Porbandar in Civil Miscellaneous Application No.70 of 2022 is set aside. The matter is remanded to the learned Civil Judge (Senior Division), Porbandar with a direction to transfer the application to the learned District Judge, Porbandar for appropriate consideration. The appellant may produce all relevant documents before the learned District Judge.

Law Points

Jurisdiction under Indian Succession Act
Section 288 transfer to District Judge
Probate and Letters of Administration
Civil Procedure Code Section 96

Case Details

2026 LawText (GUJ) (01) 282

R/First Appeal No. 3423 of 2025

2026-01-23

M. K. Thakker

Ms. Dharti P Ratani

Usha Pankajbhai Bhayani

No One

Nature of Litigation

First Appeal under Section 96 of CPC read with Section 299 of Indian Succession Act against rejection of probate/letters of administration application.

Remedy Sought

Appellant sought setting aside of the trial court's order rejecting her application for probate/letters of administration and direction to transfer the application to the District Judge.

Filing Reason

The trial court rejected the application on the ground of lack of jurisdiction under Section 272 of the Indian Succession Act as the deceased had a fixed place of abode in a different state.

Previous Decisions

The trial court (Additional Civil Judge, Porbandar) rejected Civil Miscellaneous Application No.70 of 2022 on 29.07.2025. The matter had been previously remanded by the High Court.

Issues

Whether the Civil Judge (Senior Division) can reject a probate application for lack of jurisdiction under Section 272 of the Indian Succession Act, 1925, or whether the application should be transferred to the District Judge under Section 288 of the Act.

Submissions/Arguments

Learned advocate Ms. Dharti Ratani submitted that the trial court should have referred the application to the District Judge under Section 288 of the Indian Succession Act instead of rejecting it. It was submitted that citation and newspaper publication had already been done, and the matter had been previously remanded by the High Court. Affidavits of Anilkumar Vinodchandra Amlani (grandson of attesting witness) identifying the witness's signature and another affidavit were produced.

Ratio Decidendi

When a court lacks jurisdiction to entertain a probate or letters of administration application under Section 272 of the Indian Succession Act, 1925, it should not reject the application but should transfer it to the District Judge under Section 288 of the Act for appropriate consideration.

Judgment Excerpts

This appeal is filed under section 96 of Civil Procedure Code, 1908 read with section 23 of 299 of the Indian Succession Act and challenging the judgment dated 29.07.2025 passed by the learned Additional Civil Judge, Porbandar in Civil Miscellaneous Application No.70 of 2022 whereby, the learned Court has rejected the application only on the ground that learned Court is not having the jurisdiction as per the provision of section 272 of Indian Succession Act as death of the deceased has fixed a place of abode at different State. It is submitted by learned advocate Ms.Dharti Ratani that if the learned Court comes to the conclusion that the probate or letters of administration is required to be refused then it should have been referred to the Court of learned District Judge instead of rejecting the same under section 288 of the Indian Succession Act.

Procedural History

The appellant filed Civil Miscellaneous Application No.70 of 2022 before the Additional Civil Judge, Porbandar seeking probate/letters of administration. The trial court rejected the application on 29.07.2025 on jurisdictional grounds. The appellant then filed the present First Appeal No.3423 of 2025 before the Gujarat High Court, which was heard and allowed on 23.01.2026.