1998 PLP 850 (CLC)

The relevant provisions in granting or revoking probates or letters of administration are contained in Chapter VI of the Succession Act (Act XXXIX of 1925), which commence with the opening section 264 relating to the jurisdiction of District Judge in such matters. Subsection (1) of section 264 provides that District Judge shall have jurisdiction in granting and revoking letters of administration in all cases within his District except in cases to which section 57 of the Act applies within the meaning of subsection (2) of section

264. The words ' all cases' referred to subsection (1) of section 264 signify the cases in respect of probates or letters of administration only and which pertain to or fall within the exercisable jurisdiction of the District Judge. Similarly within the purview of subsection (1) of section 265 of the Succession Act, appointment of judicial officers are made to act for the District Judge as delegates to grant probate and letters of administration only in non‑contentious matters within such limits as may be prescribed by such appointment within a district. Thus, a Delegate District Judge can be appointed for the whole of a District or to a part of such District and even for a Sub‑Division and further this subsection entails the scope of more than one District Judge delegates to be appointed for a District would be competent to deal only with non‑contentious matters on such subject, whereas, the District Judge enjoys all the powers and authority in relation to the subject (to the grant of probate and letters of administration) and all matters connected therewith as are vested in him in relation to any civil suit or proceeding pending in his Court as provided under section 266 of the Succession Act and such proceedings are to be regulated so far as the circumstances of the case permit by the Code of Civil Procedure unless, otherwise provided in the Act itself as laid down in section

268. It is manifest from the provisions of sections 266 and 268 that in relation to the grant of probate and letters of administration District Judge enjoys all the powers and authority exercisable by him in relation to any suit or proceedings pending in his Court which are to be regulated in accordance with the provisions of Civil Procedure Code unless provided otherwise in the Act, as such it is abundantly expressed that the District Judge would be competent to deal with the subject in the exercise of his powers as are exercisable in relation to a suit, therefore, if under the provisions of sections 16 to 20, C.P.C. and Civil Courts Ordinance, 1962 he has no jurisdiction territorial or pecuniary to entertain any suit; there would be thus statutory cloak on the powers of the District Judge to entertain any petition/proceedings in respect of grant of probate and letters of administration pertaining to the matter which could not have been taken cognizance of by him, if it were a civil suit. In non‑contentious cases, Delegate District is competent to exercise jurisdiction in respect of grant of probate and letters of administration if it appears from the petition 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 delegatee within the meaning of section 272 of the Succession Act. The provisions of this section in respect of exercise of jurisdiction by the delegate District Judge is based upon the permanent place of abode of the testator or instestate; would not be read in isolation to other related provisions of the Act and those pertaining to the exercise of such powers on the subject by the District Judge, section 273 of the Act visualizes the conclusiveness of the probate or letter of administration to have effect over all the property and estate, movable or immovable of the deceased throughout the Province in which the same is or are granted provided that the probates and letters of administration is granted by a High Court or by a District Judge where the deceased at the time of his death had a fixed place of abode situate within the jurisdiction of such Judge who certifies that the value of property and estate affected beyond in limits of the Province does not exceed ten thousand rupees by virtue of 1st proviso to section 273 which shall be read subject to 2nd and 3rd provisos to the section and thus such pecuniary prescribed limits would not be applicable to the instant case and the same shall have effect throughout Pakistan unless otherwise directed by the grant, but such effect of grant over all the property and estate movable or immovable of the deceased, throughout the Province in which the same is granted and beyond such. Province (through Pakistan) would be operative if made by a High Court and the same effect would be available to such grant if made by a District Judge within whose jurisdiction the deceased at the time of death had a fixed place of abode and in other cases the grant shall have its effect throughout the Province in which it is granted. Petitioner applying for letters of administration is required to distinctly furnish. the particulars as required under section 278 of the Succession Act besides the other facts under the preceding relevant sections of the Act. The relevant clauses of subsection (1) and subsection (2) of section 278 are given below for convenience:‑ (a)

(b)

(c)

(d)

(e) when the application is to the District Judge, that the deceased at the time of death had a fixed place of abode, or had some property situate within the jurisdiction of the Judge; and (f) when the application is to a District Delegate, that the deceased has fixed place of abode within the jurisdiction of such delegate. (2) Where the application is to the District Judge and any portion of the assets likely to come to the petitioner's hands is situate in another Province, the petitioner shall further state the amount of such assets in each province and the District Judge within whose jurisdiction such assets are situated. Further section 283 deals with the powers of District Judge or District Delegate which is reproduced below for reference. Section 283 of Act XXXIX of 1925: "Section.

283. Powers of District Judie. ‑‑‑(1) In cases the District Judge or District Delegate may, if he thinks proper‑‑ (a) examine the petitioner in person, upon oath; (b) require further evidence of due execution of will or the right of petitioner to the letters of administration, as the case may be; (c) issue citation calling upon all persons claiming to have interest in the estate of deceased to come and see the proceedings before grant of probate or letters of administration. (2) The citation shall be fixed up in some conspicuous part of the Court house, also in the office of the Collector of the district and otherwise published or made known in such manner as the Judge or District delegate issuing the same may direct. (3) Where any portion of the assets has been stated by the petitioner to be situate within the jurisdiction of District Judge in another Province, the District Judge issuing the same shall cause a copy of the citation to be sent to such other District Judge, who shall publish the same in the same manner as if it were a citation issued by himself, and shall certify such publication to the District Judge who issued the citation; " Subsection (3) of section 283 of the Act deals specifically with the powers of District Judge in respect of grant where any portion of the assets of the deceased to be situate within the jurisdiction of District Judge in another Province, whereas; no such powers are available to the District Judge Delegate. The words 'portion of the assets of the deceased to be situate within the jurisdiction of District Judge in another Province, signifies that the portion of the assets of the deceased may not be situate within the jurisdiction of the District Judge to whom the petition for grant has been made. There stands marked distinction in the exercise of jurisdiction between the powers of District Judge and Delegate District Judge emanating from the provisions of sections 265, 272, 278/274, 278 and 283(2)(3) of the Succession Act. The provisions contained in sections 265, 272, 278(f), 283(1)(2) read with section 264, 266 and 268, the delegate District Judge is competent to grant probate or letters of administration only in non‑contentious cases within the local limits of his jurisdiction 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. It is an admitted feature of the case that the impugned order was passed by the District Judge Delegate (Civil Judge‑III, Quetta) who can exercise jurisdiction only in respect of non‑contentious cases within the local limits of its jurisdiction in respect of property and assets movable or immovable of the deceased who at the time of his death had a permanent place of abode within the jurisdiction of such Judge. In the instant case one of the prescribed conditions as above discussed for the exercise of jurisdiction within local limits i.e. property in respect which grant is sought for, is to be situate within the jurisdiction of such Judge is wanting completely; which is situate even beyond the limits of the Province and the District Judge Delegate in such circumstances cannot exercise jurisdiction in respect of property and assets movable or immovable of the deceased situate beyond the limits of the Province, therefore, the appropriate course open to the Delegate District Judge was to return the petition for, presentation to the competent Court instead of rejecting the same, hence the impugned order rejecting the petition being without jurisdiction is not sustainable. Invariably practice has become operative with the District Judges that such like petitions being presented to a District Judge (as has been done in the instant case) petitions are sent to the file of Delegate District Judges without the petition/s being examined in respect of jurisdiction of Delegate Judge; which cause hardship, embarrassment and financial loss to litigant/s. Copies of this judgment be sent to all District and Additional District Judges and Delegate Judges for their guidance and compliance. For the reasons abovementioned, the impugned order dated 25‑4‑1997 passed by the Civil Judge‑III/Delegate District Judge is set aside, with the directions to send the petition to the District Judge, Quetta (to whom it is remanded) who shall proceed with the petitions in accordance with law and keeping in view the provision of subsection (3) of section 283 of the Succession Act, 1925 as well. Consequently, the petition is allowed partly in the above terms, with no order as to costs. A.A./676/Q Order accordingly.