(Delivered by Goyinda Menon, J.)
This is an appeal under S. 299 of the Indian Succession Act against the grant of letters of administration with a copy of the will annexed of one Rev. Father Antony Paliyoor alias Antony Kathanar who died at Trichur on 14th March 1950, in favour of the petitioner in the lower Court, P.J Verghese.
The application was made before the Subordinate Judge of South Malabar at Palghat for the grant of letters of administration. The same was opposed by a number of respondents of whom the second respondent, the appellant before us, in his counter dated 23rd July 1951 pleaded that the Subordinate Judge had no jurisdiction to grant the relief prayed for in the petition. Various other points were raised such as the genuineness of the will, his testamentary capacity and other matters. The learned Subordinate Judge holding that the will is genuine and finding the points raised by the respondent before him against the respondent directed that letters of administration as prayed for will be granted to the petitioner subject to the usual conditions. The question is whether he was justified in doing so.
Under S. 265 of the Indian Succession Act, 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. There is a proviso to the section with which we are not concerned.
This Court, in pursuance of that power, issued a notification in 1939 to the effect that all Subordinate Judges do take cognizance of any proceedings under the Indian Succession Act, 1925, which cannot be disposed of by District Judges. It is probably on the strength of this notification that the Subordinate Judge felt that he was clothed with authority. But the difficulty is that it is not open to the High Court to issue any notification which is contrary to the provisions of S. 265(1). That being the case no notification issued by the High Court could clothe a Subordinate Judge as a delegate of the District Judge to issue letters of administration in contentious matters. There is no doubt whatever that the case in question is a contentious one. Such being the case when once a contest is raised with regard to an application for letters of administration, the duty of the Subordinate Judge was to have returned it for presentation to the proper Court on the ground that he had no jurisdiction. That procedure has not been followed in this case. As Mr. Raghavan says it is due to the fact that, though in vague terms the objection to jurisdiction was taken in the counter, it does not seen to have been made the subject matter of an issue for decision or argued before the learned Subordinate Judge. But the fact that the parties did not raise the question as to want of jurisdiction or even acquiesced in the jurisdiction of a Court would not confer on the Court a jurisdiction which it has not. See the decisions of the Privy Council in Ledgard v. Bull(1) and in Meenakshi v. Subramania (2).
In these circumstances, we feel that the Subordinate Judge has granted the letters of administration without due authority or jurisdiction. His order has therefore to be set aside, it is accordingly set aside and O.P No. 50 of 1953 is remanded to the District Court of South Malabar to be re-tried on merits, As the objection has not been taken by the appellant in the Court below he will not be entitled to any costs.
V.C.S