Case Note & Summary
This judgment arises from a reference under Section 113 of the Code of Civil Procedure, 1908, made by the learned Joint Civil Judge, Senior Division, Kolhapur, in Miscellaneous Civil Application No.139 of 2014. The application was filed by Swapnil Mole against Shantabai Mole under Section 276 of the Indian Succession Act, 1925, for grant of probate of the last will of deceased Dadaso Mole. The respondents resisted the claim, denying execution of the will. The learned Judge was of the opinion that Section 28A(1) of the Maharashtra Civil Courts Act, 1869, which empowers the High Court to invest Civil Judges with jurisdiction under certain Acts, is invalid or inoperative in light of Sections 265, 272, 286 and 295 of the Indian Succession Act, 1925. The Judge referred the question to the High Court. The High Court examined the relevant provisions. Section 28A(1) of the 1869 Act allows the High Court to invest any Civil Judge with jurisdiction under certain Acts, including the Succession Act. The Succession Act, under Sections 265, 272, 286 and 295, deals with the grant of probate and letters of administration, but does not expressly prohibit Civil Judges from exercising such jurisdiction. The Court noted that the Succession Act is a general law, while the 1869 Act is a special law dealing with the jurisdiction of civil courts in Maharashtra. The Court held that there is no inconsistency or repugnancy between the two enactments. The High Court also considered paragraph 305 of the Civil Manual, which suggests that probate matters should be heard by District Judges, but held that the Manual is directory and cannot override the statutory power under Section 28A(1). The Court concluded that Section 28A(1) is valid and not invalid or inoperative. The reference was answered accordingly, and the matter was directed to be placed before the appropriate Bench for disposal in accordance with law.
Headnote
A) Civil Procedure - Reference under Section 113 CPC - Validity of Section 28A(1) of Maharashtra Civil Courts Act, 1869 - The learned Joint Civil Judge referred the question whether Section 28A(1) is invalid due to inconsistency with Sections 265, 272, 286, 295 of Indian Succession Act, 1925 - The High Court held that Section 28A(1) is valid and not inconsistent, as the Succession Act does not prohibit investment of jurisdiction in Civil Judges - Held that the reference is answered in the negative, i.e., Section 28A(1) is not invalid (Paras 1-20). B) Succession Act - Probate Jurisdiction - Sections 265, 272, 286, 295 of Indian Succession Act, 1925 - These sections do not create a bar against Civil Judges exercising probate jurisdiction - The High Court can invest Civil Judges with such jurisdiction under Section 28A(1) of the Maharashtra Civil Courts Act, 1869 - Held that the provisions are not repugnant (Paras 10-15). C) Civil Manual - Paragraph 305 - Directory Nature - Paragraph 305 of the Civil Manual, which requires District Judges to be designated for probate matters, is directory and not mandatory - It does not override the statutory power under Section 28A(1) - Held that the Manual cannot override the Act (Paras 16-18).
Issue of Consideration
Whether Section 28A(1) of the Maharashtra Civil Courts Act, 1869 is invalid or inoperative in the light of Sections 265, 272, 286 and 295 of the Indian Succession Act, 1925?
Final Decision
The High Court answered the reference in the negative, holding that Section 28A(1) of the Maharashtra Civil Courts Act, 1869 is not invalid or inoperative in light of the Indian Succession Act, 1925. The matter is directed to be placed before the appropriate Bench for disposal in accordance with law.
Law Points
- Section 28A(1) of Maharashtra Civil Courts Act
- 1869 is valid and not inconsistent with Sections 265
- 272
- 286
- 295 of Indian Succession Act
- 1925
- High Court can invest Civil Judges with probate jurisdiction
- Civil Manual paragraph 305 is directory not mandatory
