Sheikh Monshi vs Imam Khan

V.R. Newasker, J.—This appeal arises out of proceedings for obtaining letters of Administration started on a petition filed by the four respondents claiming to be entitled to the assets left by deceased Ahmadkhan who died on 17-8-1957 at Dewas.

The application of the respondents was opposed by the appellant Sheikh Munshi who claimed relationship with the deceased.

The matter was heard by the Additional District Judge, Dewas who after recording evidence overruled the objection of the appellant and directed the grant of the letters of Administration to the respondents.

On behalf of the appellant the jurisdiction of the Additional District Judge to grant letters of Administration was assailed on the ground that under the Madhya Bharat Civil Courts Act which applied at the material time the Court of District Judge is treated as a separate Court from that of the Additional District Judge and that the Additional District Judge therefore could not be called the ''Distrtct Judge'' for the purposes of grant of letters of Administration. The decision of the Court below was also assailed on merits on the ground that the respondents bore no relationship with deceased Ahmad-Khan and that the allegation made by them in the petition that respondent No. 1 is the cousin and the rest of the respondents are the sons of another cousin is untrue and a mere pretention.

Mr. Bhalerao for the respondents raised a preliminary objection that the appeal against the decision of Additional District Judge would be to District Judge and not to the High Court.

This objection is obviously untenable. This reason is that either the Additional District Judge acted with jurisdiction or without jurisdiction as is contended on behalf of the appellant. If the former, the decision being that of the District Judge within the meaning of the term under the Indian Succession Act an appeal against his decision regarding grant of letters of Administration will lie u/s 299 of the Act to the High Court. On the other hand if he had no jurisdiction and yet he acted and granted letters of Administration an appeal will still be to the High Court. Because it is well settled that an appeal against the decision of a Court which acts without jurisdiction will be to the same Court to which an appeal ordinarily lies in case he acts with jurisdiction, vide Janardan Reddy and Others Vs. The State of Hyderabad and Others, . Even in the decision Letters Patent Appeal No. 36 of 1958 upon which Mr. Bhalerao relies the High Court doubted whether the appeal against the decision of the Additional District Judge cum-Civil Judge First Class of Narsinghpur lay to the District Judge or to the High Court. But the High Court refused to interfere as according to its view under the provisions of law there prevailing the grant of probate by the Additional District Judge was wholly without jurisdiction as that was to be done by the Civil Judge. The case has no application particularly for the reasons given above. The preliminary objection therefore fails.

As regards the contention raised on behalf of the appellant regarding the jurisdiction of the Additional District Judge; Dewas, it is not disputed that the present case will have to be treated for the purpose of considering this question as being governed by the Madhya [Bharat] Civil Courts Act. Under that Act although the Court of Addl. District Judge is classified distinctly from that of the District Judge as indicated by Section 4 of the Act, and although u/s 10 of the Act the District Court is the Provincial Court of original Civil Jurisdiction within the meaning of the CPC nevertheless since u/s 15 of the Madhya Bharat Civil Court Act the Government had power to appoint in any District one or more Additional District Judge''s who shall be invested with co-extensive powers with the District Judge'' and in pursuance of that power the Government had acted and appointed an Additional District Judge Dewas investing him with powers co-extensive with those of District Judge, it is clear that the Additional District Judge Dewas became a principal Civil Court of original jurisdiction within the meaning of the CPC as contemplated under the Madhya Bharat Civil Courts Act. The Additional District Judge therefore, is, for that place ''District Judge'' for the purpose of grant of letters of Administration.

Reference is made to AIR 1949 408 (Nagpur) , and it is contended that there is distinction between the provisions of Section 17 (c) of the Central Provinces Courts Act. 1917 and those of the Madhya Bharat Civil Courts Act. Whereas under the former it is the District Court which is designated as the principal Court of original civil jurisdiction, under the latter it is the Court of the District Judge defined under that Act which is termed the Court of principal Court of original civil jurisdiction. But to my mind there is hardly any real point of destination. u/s 26 (1) of the former Act the Additional Judge appointed to a District Court can exercise jurisdiction and powers of the Court to which they are appointed. The same result is achieved under, the Madhya Bharat Civil Courts Act by empowering the Government u/s 10, to appoint Additional District Judges who of necessity are to be invested with powers coextensive with that of the District Judge. When so appointed they become nothing less than District Judges under the Act and their Courts there fore become principal Courts of original civil jurisdiction. The decision in Mt. Daho Kuer Vs. Mt. Tural Dei, , was held to take a view consonant with this decision.

The contention raised on behalf of the appellant therefore is untenable and the trial of the case and the decision therein is not by a Court without jurisdiction.

As regards the merits there is overwhelming evidence to indicate that Judge-khan the father of the deceased and Jamal-khan the father of the respondent No. 1 were real brothers. It is admitted by the appellant that the other respondents are the nephews of Imamkhan respondent No. 1. As regards the appellant he is no more than a neighbour and bears no relationship. The grant of letters of Administration to the respondents therefore is in no way erroneous.

The appeal is consequently without force and is hereby dismissed with costs.