Validity of S. 28(A) of Maharashtra Civil Courts Act, 1869 upheld by Bombay HC

High Court of Bombay: In a recent judgment, a Bench comprising S.C.Dharmadhikari and Prakash D. Naik, JJ. upheld the vires of Section 28A(1) of the Maharashtra Civil Courts Act, 1869.

The Joint Civil Judge, Senior Division Kolhapur had referred the question involving the issue of validity of Section 28 A(1) of the Act of 1869 with respect to Sections 265,  272,  286 and 295 of the Succession Act, 1925, under Section 113 of the Civil Procedure Code.While disposing a miscellaneous civil application, the question of validity and operative nature of the section arose.

The Court observed that the Judge had already assumed his view to be correct and had referred the question to affirm his view, which was contrary to Section 113 of the Code. The Advocate General brought it to the notice of the Court that the issue had been dealt with, in the case of  Nola Janathan Ranbhise v. Union of India and that the Civil Judge had acted erroneously in referring the issue before the Court. In furtherance, he submitted that the power of the District Judge under the Succession Act was invested in the Civil Judges by the Court. The difference between “investment of power” and “delegation of power” was brought forth by the Advocate General to clarify his submission that the District Judge may exercise his power as a judge of original jurisdiction and not as a delegate of District Judge.

The Court, in its observation said that Section 28(A) of the Act of 1869 and Sections 265, 272, 286 and 295 of Act of 1925 were consistent with each other and the Civil Judge’s opinion was erroneous. The civil reference was disposed of. [P.P.Sharma (Reference forwarded from 7th Civil Judge, Senior Division, Kolhapur), 2017 SCC OnLine Bom 2403, delivered on 05-05-2017]

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