Jurisdiction, shebaitship and proof of execution upheld in contentious probate despite procedural irregularity.

A Civil Judge's competence to grant letters of administration in a contentious testamentary matter was preserved by a continuing High Court notification that vested Civil Judges, Senior Division, with District Judge powers, so the jurisdiction objection failed. Shebaitship of a Hindu temple was treated as property because it carried a beneficial proprietary interest in the management and usufruct of the endowment, so an instrument disposing of shebaitship fell within the definition of a will. Due execution was also proved by the attesting witness and scribe, and the use of affidavits in examination-in-chief did not vitiate the proceeding where the parties assented and cross-examination was held.

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Issues: (i) Whether the Civil Judge had jurisdiction to entertain and grant letters of administration in a contentious testamentary matter; (ii) whether shebaitship of a Hindu temple constitutes property capable of testamentary disposition and therefore falls within the definition of a will; (iii) whether due execution of the will was proved and whether the use of affidavits in examination-in-chief vitiated the proceedings.

Issue (i): Whether the Civil Judge had jurisdiction to entertain and grant letters of administration in a contentious testamentary matter.

Analysis: Under the Indian Succession Act, a delegate Civil Judge could act only in non-contentious cases, and a contentious objection would ordinarily require return of the application. However, the relevant High Court notification issued under the Saurashtra District and Subordinate Civil Courts Ordinance, 1948, and continued in force through the Bombay Civil Courts legislation, empowered Civil Judges, Senior Division, to exercise the powers of a District Judge. That notification was in force when the application was made, so the Civil Judge retained competence despite the contest.

Conclusion: The objection to jurisdiction failed, and the grant of letters of administration was valid.

Issue (ii): Whether shebaitship of a Hindu temple constitutes property capable of testamentary disposition and therefore falls within the definition of a will.

Analysis: A will must operate upon property. The instrument did not dispose of the temple or the land, which had been dedicated to the deity, but only of the deceased's shebaitship, namely the right to manage the temple, worship the deity, and take the income of the endowed property. Shebaitship is not a bare office; it carries a beneficial or proprietary interest because it includes the right to enjoy the usufruct of the endowment. That proprietary element makes it property capable of being disposed of by will.

Conclusion: Shebaitship was property, and the instrument answered the statutory definition of a will.

Issue (iii): Whether due execution of the will was proved and whether the use of affidavits in examination-in-chief vitiated the proceedings.

Analysis: The attesting witness and the scribe supported execution, and their evidence established signing by the testator in the presence of attesting witnesses while he was in a sound disposing state of mind. Although contentious probate proceedings should follow the procedure of a regular suit and oral evidence ordinarily must be taken viva voce, the parties in this case were taken to have assented to the affidavits being treated as evidence because no objection was raised and cross-examination was conducted. The irregular procedure therefore did not vitiate the trial.

Conclusion: Due execution was proved, and the procedural objection failed.

Final Conclusion: The testamentary grant was upheld, and the appeal failed.

Ratio Decidendi: In a contentious probate matter, a special statutory notification may preserve a Civil Judge's jurisdiction, shebaitship carrying a beneficial interest is property capable of testamentary disposition, and an irregular use of affidavits will not vitiate the proceeding where the parties have assented to that mode of proof.

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