Report No. 110
I. Jurisdiction and Connected Matters
38.2. Section 264-Jurisdiction of District judge in granting and revoking probates, etc.-
Section 264 reads-
"264. (1) The District Judge shall have jurisdiction in granting and revoking probates and letters of administration in all cases within his district.
(2) Except in cases to which section 57 applies, no Court in any local area beyond the limits of the towns of Calcutta, Madras and Bombay, shall, where the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jain or an exempted person, receive applications for probate or letters of administration until the State Government has, by a notification in the Official Gazette authorised it so to do."
The section needs no change.
38.3. Section 265-District Delegates-Recommendation.- Section 265 reads-
"265. (1) The High Court may appoint such judicial officers within any district as it thinks fit to act for the District Judge as Delegates to grant probate and letters of administration in non-contentious cases, within such local limits as it may prescribe:
Provided that, in the case of High Courts not established by Royal Charter, such appointment shall not be without previous sanction of the State Government.
(2) Persons so appointed shall be called "District Delegates."
We are of the view that the proviso to sub-section (1) should be deleted as unnecessary at the present day, and recommend its deletion.
38.4. Section 266-District Judge's powers as to grant of probate and administration.-
Section 266 reads-
"266. The District Judge shall have the like powers and authority in relation to the granting of probate and letters of administration and all matters connected therewith as are by law vested in him in relation to any civil suit as proceedings pending in his Court".
The section needs no change.
38.5. Section 267.- Section 267 reads-
"267. (1) The District Judge may order any person to produce and bring into Court any paper or writing, being or purporting to be testamentary, which may be shown to be in the possession or under the control of such person.
(2) If it is not shown that any such paper or writing is in the possession or under the control of such person, but there is reason to believe that he has the knowledge of any such paper or writing, the Court may direct such person to attend for the purpose of being examined respecting the same.
(3) Such person shall be bound to answer truly such questions as may be put to him by the Court, and, if so ordered, to produce and bring in such paper or writing, and shall be subject to the like punishment under the Indian Penal Code, in case of default in not attending or in not answering such questions or not bringing in such paper or writing, as he would have been subject to in ease he had been a party to a suit and had made such default.
(4) The costs of the proceeding shall be in the discretion of the Judge. We have no comments on the section.
38.6. Section 268.-
Section 268 provides that the proceedings of the Court of the District Judge in relation to the granting of probate and letters of administration shall, save as hereinafter otherwise provided, be regulated, so far as the circumstances Of the case permit, by the Code of Civil Procedure, 1908.
We have no comments on the section. 38.7. Section 269.-Section 269 reads-
"269. (1) Until probate is granted of the will of a deceased person, or an administrator of his estate is constituted, the District Judge, 'within whose jurisdiction any part of the property of the deceased person is situate, is authorised and required to interfere for the protection of such property at the instance of any person claiming to be interested therein, and in all other cases where the Judge considers that the property incurs any risk of loss or damage; and for that purpose, if he thinks fit, to appoint an officer to take and keep possession of the property.
(2) This section shall not apply when the deceased is a Hindu, Mohammadan, Buddhist, Sikh or Jain or an exempted person, nor shall it apply to any part of the property of an Indian. Christian who has died intestate".
We have no comments on the section.
38.8. Section 270-When probate or administration may be granted by District Judge.-
Section 270 provides that probate of the will or letters of administration to the estate of deceased person may be granted by a District Judge under the seal of his Court, "if it appears by a petition, verified as hereinafter provided, of the person applying for the same, that the testator or intestate, as the case may be, at the time of his decease, had a fixed place of abode, or any property, movable, or immovable within the jurisdiction of the Judge".
A similar power is conferred on the High Court acting on the original side, since "District Judge"1, as defined in the Act, includes such a High Court.
1. Section 2 (bb).
38.9. Person not domiciled in India.-
It appears that section 270 would cover a case even where the testator or intestate was a person not domiciled in India-say, a foreign national-who left property most of which was outside India, while leaving some movable property in India. Of course, section 270 is not concerned with the question dealt with in sections 4 and 5,-the law applicable regarding succession. The section is concerned only with the jurisdiction of Indian courts. It would appear-though there is no case law on this point-that, in so far as a non-domiciled person has left property in India, the section would apply. The law applicable will, of course, be governed by sections 4-5.
For the present, and, in the absence of case law raising any concrete questions, we have no further comments on this point.
38.10. Section 270-Assets in India.-
The foundation of the jurisdiction of a Court to grant probate or letters of administration is that there is property of the deceased to be administered with the country and section 270 does not, in any way, provide an alternative basis for a grant1. Thus, the section cannot be understood as dispensing with the necessity of existence of Indian assets before probate, etc. can issue from an Indian Court.
1. Kalyanikutty v. Gourikutty, AIR 1953 TC 352, para. 3 (Koshi, C.J. and M.S. Menon, J.).
Section 270 has its origin in section 46 of the Court of Probate Act, 1857 (20 and 21 Vict., c. 77).
38.12. English cases.-
English decisions from the earliest time have insisted on English assets as a condition precedent to an English grant. For example Sir C. Cresswell held1-
"It does not appear from the affidavits that the deceased left any property in this country. Unless he did so, there is nothing upon which the grant asked for would operate and I should have no jurisdiction to decree letters of administration to be granted".
Sir J.P. Wilde observed in another case2:
"It is not one of the functions of this Court to determine as an abstract question who is the proper representative of a deceased person. The foundation of the jurisdiction of this Court is, that there is personal property of the deceased to be distributed within its jurisdiction. In this case the deceased has no property, within this country, and the Court has, therefore, no jurisdiction".
Other decisions to the same effect are 'In Goods of Pittock3 where, administration was refused because the deceased left no personal property in England and-In Goods of Coode4 where it was held that a will disposing only of property in a foreign country was not entitled to an English probate.
It should, however, be pointed out that what section 270 requires is not the existence of assets in India in every case. Two criteria are given, of which one is enough.
1. Evans v. Burrel, (1859) 4 Sw & Tr P 185: 154 ER 1487.
2. Goods of Hannah Tucker, (1864) 3 Sw & Tr 585: 164 ER 1402.
3. Goods of Fittock (in re:), (1863) 32 JLP M&A 157.
4. Goods of Coode (in re:), (1867) 1 P&D 449.
38.13. Section 271.- This takes us to section 271, which reads-
"271.. When the application is made to the judge of a district in which the deceased had no fixed abode at the time of his death, it shall be in the discretion of the Judge to refuse the application if in his judgement it could be disposed of more justly or conveniently in another district, or, where the application is for letters of administration, to grant them absolutely, or limited to the property within his own jurisdiction".
The section needs no change.
38.14. Section 272-Probate and letters of administration may be granted by delegate.-
Section 272 reads-
"272. Probate and letters of administration may, upon application for that purpose to any District Delegate, be granted by him in any case in which there is no contention, if it appears by petition, verified as hereinafter provided, that the testator or intestate, as the case may be, at the time of his death had a fixed place of abode within the jurisdiction of such Delegate".
No changes are required in the section.
38.15. Section 273-Conclusiveness of probate or letters of administration.-
Section 273 reads as under-
"273. Probate or letters of administration shall have effect over all the property and estate, movable or immovable, of the deceased, throughout the State in which the same is or are granted, and shall be conclusive as to the representative title against all debtors of the deceased, and all persons holding property which belongs to him, and shall afford full indemnity to all debtors, paying their debts and all persons delivering up such property to the person to whom such probate or letters of administration have been granted:
Provided that probates and letters of administration granted-
(a) by a High Court, or
(b) by a District Judge, where the deceased at the time of his death had affected, beyond the limits of the State does not exceed ten thousand and such Judge certifies that the value of the property and estate effected, beyond the limits of the State does not exceed ten thousand rupees, shall, unless otherwise directed by the grant, have like effect throughout the other States.
The proviso to this section shall apply in India after the separation of Burma and Aden from India to probates and letters of administration granted in Burma and Aden before the date of the separation, or after that date in proceedings which were pending at that date.
The proviso shall apply in India after the separation of Pakistan from India to probate and letters of administration granted before the date of the separation, or after the date in proceedings pending at that date, in any of the territories which on that date constituted Pakistan".
The amount of ten thousand rupees should now be increased to rupees fifty thousand in view of fall in the value of the rupee. We recommend accordingly.
38.16. Section 274-Transmission to High Courts of certificate of grants under proviso to section 273.-
Section 274 reads as under:-
"274. (1) Where probate or letters of administration has or have been granted by a High Court or District Judge with the effect referred to in the proviso to section 273, the High Court or District Judge shall send a certificate thereof to the following courts, namely:-
(a) when the grant has been made by a High Court, to each of the other Courts:
(b) when the grant has been made by a District Judge, to the High Court to which such District Judge is subordinate and to each of the other High Courts.
(2) Every certificate referred to in sub-section (1) shall be made as early as circumstances admit in the form set forth in Schedule IV, and such certificate shall be filed by the High Court receiving the same.
(3) Where any portion of the assets has been stated by the petitioner, as hereinafter provided in sections 276 and 278, to be situate within the jurisdiction of a District Judge in another State, the Court required to send the certificate referred to in sub-section (1) shall send a copy thereof to such District Judge, and such copy shall be filed by the District Judge receiving the same."