ORDER
Abdul Hadi, J.
1. This suit prays for grant of Probate of the last will and Codicil of late D.B. Futnani dated 28.6.1982 and 29.3.1983 respectively executed by him at Madras. The first plaintiff is his younger son. Second Plaintiff is the first plaintiffs son. The defendant is his elder son. The first issue in the unit is:
Has this Honourable Court the jurisdiction to grant probate?
and the said issue has been taken up as a preliminary issue as per my order dt.20-6-1989. Evidence was let in, by both the parties on the said issue and a finding is given hereby, on the said issue.
2. As per Section 270 of, the Indian Succession Act, Probate of the Will of a deceased person may be granted by a District Judge, if it appears by a petition verified as provided, of the person applying for the same that the testator at the time of his decease had 'a fixed place of abode, or any property movable or immovable within the jurisdiction of the Judge.' The term 'District Judge' is defined under Section 2(bb) as the Judge of a Principal Civil Court of Original jurisdiction. It is well known that the Judge of a High Court on its Original Civil jurisdiction would come under this definition. But, the real question is whether the deceased D.B. Futnani at the time of his death had a fixed place of abode or any property within the jurisdiction of this Court. Admittedly he died on 1-4-1983 at Madras, i.e., at the residence of the plaintiffs at 13, Commander-in-Chief Road, Madras. In the petition for probate also it is stated that he was a permanent resident of Madras at the time of his death and possessed property within the State of Tamil Nadu and other places. But, in the written statement it is stated that the said deceased had no permanent place of residence within the jurisdiction of this Honourable Court nor had any property at the time of his death and as such the application for probate filed before this Honourable Court is without jurisdiction. 3. So, it has to be seen whether D.B. Futnani had either a fixed place of abode at the abovesaid residence of the plaintiffs at Madras or at least had property within the jurisdiction of this Court. Taking the first aspect of the question viz., regarding the 'fixed place of abode', the said expression under Section 56 of Probate and Administration Act was considered in Govind v. Anand A.I.R. 1923 Nag. 145. It was held therein that 'fixed' could not possibly mean 'permanent' because no one in this world had a permanent place of abode. In the said case the deceased had been posted as a railway guard at a place for 20 years and occupied railway quarters there and it was held that he must be deemed to have had a fixed place of abode at such place, although he was liable to be transferred. Then, in In re Mohendra Naraiyan 5 C.W.N. 377 where the deceased breathed his last within the jurisdiction of the District Judge where he had no permanent residence but came there for the purpose of medical treatment and was not certain how long he would have lived at that place, it was held that the District Judge of that place had jurisdiction to grant Probate. Then, in Sukhlal v. State Bank of India : [1967]1SCR317 the Supreme Court, in dealing with the term 'place of residence' appearing in Debt Laws Displaced Persons (Debts Adjustment) Act, 1951, has observed thus:
It connotes a place where a person has his dwelling house, which need not necessarily be permanent or exclusive. A person may have more places of residences than one at a given time. A place occupied by a person with intention of setting up of a fixed though not permanent abode would be deemed to be a place of residence. Sojourn for a purely temporary purpose will not constitute residence, and the place of residence within the meaning of the Act; but where a person possesses establishments at more places than one and spends time more or less considerable in all those places, as exigencies of his occupation, vacation or fancy demand, he would be deemed to have a place of residence at each of those places.
(Italics is mine).
From the abovesaid quotation it can be gathered that a fixed abode need not necessarily be a permanent residence and a person can have more than one such fixed abodes, if he spends time more or less considerable, in all those places, as exigencies of his occupation, vocation or fancy demand. Though the Supreme Court only dealt with the term 'place of residence' in the abovesaid case, the general observation of the Court that a place occupied by a person 'with the intention' of 'setting up' of a 'fixed, though not permanent abode' would be deemed to be a place of residence, does throw light on the interpretation I have to put on the expression 'fixed place of abode'.
4. Now, on facts, as noted above, the plea in the written statement is only that the deceased had no 'permanent place of residence' within the jurisdiction of this Court and not that he had no 'fixed place of abode' within the said jurisdiction. That apart, the admitted facts are that the deceased left Bombay in 1981 and came over to Madras and thereafter till his death on 1-4-1983, he was residing with the first plaintiff's son at the abovesaid address at Madras. The case of the plaintiffs is that the deceased had come over to Madras after his wife's death on 31-5-1981, that there was no one to look after his needs, that the defendant, who was at Calcutta did not care to go over to Bombay to stay with his father, that the first plaintiff pleaded with his father to go over to Madras and to stay with him and that the deceased therefore left Bombay and settled at Madras with his younger son, the first plaintiff from November, 1981. The case of the defendant is that his father did not come to Madras to settle down there but only came there for treatment.
5. In this context, Ex. P1, dated 4.4.1983, which is a condolence letter written to the first plaintiff just three days after the death of D.B. Futnani by the President of the Iron and Steel and Hardware Merchants' and Manufacturers' Chamber of India at Bombay may be seen. Inter alia it states as follows:
Eventhough Mr. Futnani had shifted to Madras recently, whenever he came to Bombay, he always took keen interest in the affairs of the Chamber. It was remarkable inspite of not having been associated with the affairs of the Chamber for the past few years, he kept himself fully informed on various matters. Even in the month of December, 1982 when he last visited Bombay, he took active interest and advised how the chamber should take up the matter strongly with the Government for proper distribution of steel in the country.
(Italics is mine).
This clearly shows that he had 'shifted' his residence to Madras and that he was only making some visits to Bombay in the 'few years' preceding his death. Para 20 of the written statement also stated that the said deceased was at the time of the said alleged Will and Codicil was aged 81 years, very weak, feeble physically and mentally, practically blind, confined to bed and unable to move about. As stated above, admittedly the deceased had come down to Madras in November, 1981 itself. If after he came down to Madras and while he was living with the first plaintiff at Madras, his physical condition was stated in the said para 20 of the written statement, there cannot be any difficulty in holding that at that time till his death he was having his fixed abode at Madras. P.W.3, a very leading respected senior member of this Bar, has also deposed that he knew the deceased right from 1976 as he was appearing for the deceased in his tax matters the deceased consulted him in drafting the abovesaid Will. He used to see the deceased also in the beach during his usual morning walks in the beach and that the first plaintiffs son used to accompany the deceased during those morning walks.
6. It cannot be concluded that Futnani came to Madras only for treatment. It is borne out by evidence that he came to Madras in November, 1981. But, the documentary proof showing the first treatment he had after coming to Madras is only Ex. R10, which is the discharge note of Lady Willington Nursing Home, Madras. That shows that he was admitted in the said Nursing Home on 5-12-1981 and discharged the very next day itself and that he was admitted for control of diabetes. In Bombay also there are very good doctors and hospitals, if not better than at Madras. So, normally he need hot have come to Madras for the sole purpose of treatment. Further, admittedly, the three of the six daughters of the deceased who are living at Bombay are doctors. At any rate, if really he has come down to Madras for the purpose of treatment only, he would have consulted, immediately after coming down to Madras, a doctor that too, a very leading one. There is no such evidence. The written statement no doubt states that 'just prior to his death, the said deceased went to Madras for better medical treatment particularly for the treatment of his eye sight.' But, even the abovesaid Ex.R10 docs not relate to any treatment regarding his eye sight. It is seen from Ex.R11 that he had his eye treatment from Sankara Nethralaya only from February, 1982 i.e., much latter than the date of Ex.R10.
7. Another piece of evidence also suggests that after losing his wife, the deceased D.B. Futnani, has chosen to live with his younger son, the first plaintiff, at Madras, since his relationship with the elder son, the defendants, was not cordial. It is Ex.R27, the letter written by the deceased on 28-11-80 to his elder son, the defendant. The material portion of the same runs as follows:
Your last threat personally to me that you will apply 'martial law' has so badly affected that I am unable to come out of it, however much I try to forget it. When I retire or pass away, from this world,...A word in reply shall highly oblige me and may relieve me of the tension I am carrying as a record for having brought you up all these over fifty years of my hard worked age.
The defendant as D.W.1 admitted the abovesaid contents but did not make any comment. That apart, though to the question 'your father came to live in your brother's house in 1981, is it correct?' he answered, 'No. He went there for medical treatment', he answered to the next succeeding question where did he live when he went them? as follows: 'He did go to bur brother's residence'. Further, to the question 'In whose residence he lived at the time of his death?' he replied, 'He was of course at that time at my brother's residence'. R.W.1's answer to another question is more significant. The question was 'Until your father's death in Madras how many times did you go to see', the answer was only, 'I could not go there. It is because I was constantly in touch with my father over the telephone and my sons, who were residing at Hyderabad and Bangalore, visited him. Whenever I telephoned to him he said that I need not come and that he was alright.' Further, to the question 'During the time when he came to Madras in 1981 did you have any correspondence with your father?', the answer was 'No. Father could not read so I did not write'. To another question, 'you never cared to find out from the doctors about your father's health condition' he only answered, 'No, my brother was looking after him'. It is quite obvious that the versions given by D.W.1 for his not going to Madras from Calcutta, to see his father while he was not well and not writing any letter, to his father then, cannot be true. It must be only because of the ill feeling between the father and the said elder son that the said son did not see his father at Madras or write-any letter to him. This ill feeling is clear from the above said Ex.R.27.
8. P.W.1 also deposed as follows:
Prior to 1981 he (D.B.Futnani) was staying with my mother in Bombay and on 30-5-1981 my mother passed away. So he was residing alone in Bombay...On 29-7-1981 my brother left my father alone in Bombay and went to Calcutta...When I came to know this, I rang up to Bombay to speak with my father, he told me that he was all alone there... ...So at first I sent my son to Bombay and also went to Bombay and stayed with him till November, 1981 and then before Deepavali I requested him why he should not come to Madras and stay with our family. He agreed to my request. I brought him to Madras ever since 1981 and he was staying with me from that period.
On many of these specific averments of P.W.1 there was also no specific cross-examination. D.W.1 also admitted that Deepavali in 1981 was on October 27th.
9. From all these there will be no difficulty in concluding that the deceased came down to Madras in November, 1981, after he lost his wife, only with the intention to live with his younger son at Madras in his very old age. If that is so, there is absolutely no difficulty in holding that the deceased had a fixed place of abode at Madras when he died and that hence this Court has jurisdiction to try this suit.
10. One other document viz., Ex.P11 also corroborates the above said conclusion. Ex.P11 is an affidavit sworn to by all the six daughters of the deceased D.B. Futnani and filed before Calcutta High Court in Matter No. 1763 of 1983. It is dated 16-3-1984. They say in the said affidavit as follows:
Our father till October, 1982 was staying at Bombay. We were very often going to our parents till the end of May, 1981 when our beloved mother passed away and thereafter to console and cheer up our father, who was smitten with great grief on the death of our mother. Our two brothers....used to come frequently and stay with our father during 1981. Our brother Vishanji (defendant) did not come after the middle of July, 1981 to our father's house at Bombay. Our father left for Madras with our brother Mohanlal(1st plaintiff) in October, 1981...Our brother Vishanji (defendant) resented this very much. Often acrimonious altercation would ensue between our father and Vishanji, who used to abuse our father in filthy language and subjected him to excruciating mental agony...
When this Ex.P11 was put to D.W. he admitted that it was signed by his six sisters. Here again his version that those sisters did not read the contents of Ex. P11, cannot be true since he himself admitted that out of those six sisters three are medical graduates. No doubt, in re-examination learned Counsel for the defendant elicited from him that Ex.P11 was sent by the said sisters in 1984 after the litigation between the two brothers had started. Any way coming as it is, from six educated ladies and that too in one voice from all of them, the statements made' by them therein cannot be disregarded.
11. No doubt, learned Counsel for the defendant brought to my notice many documents like Ex.P13 stating that the permanent address of D.B. Futnani was at Bombay. But, as stated in Sukhdal v. State Bank of India : [1967]1SCR317 which was referred to earlier, a person may have more than such residence at different places. The Supreme Court therein observed that where a person possesses establishments at more places than one and spend time more or less considerable in all those places as exigencies of his occupation, avocation or fancy demand, he would be deemed to have a place of residence at each of those places.
12. Further, as already observed, the Supreme Court pointed out in the abovesaid decision that a place occupied by. a person with the intention of setting up a fixed, though not permanent, abode, would be deemed to be a place of residence. This also shows that a fixed abode need not be permanent one and so the argument of the learned Counsel for the defendant that there is an element of permanence in the word 'fixed' cannot be accepted. The decision in Thomas Edmund Teignmouth Shore v. High Carey Morgan, I.L.R. 62 Cal. 869 cited by learned Counsel for the defendant, dealt with term 'fixed habitation' in a different context. Even there it was observed that the said term would denote 'residence' freely chosen and not prescribed or dictated by any extraordinary necessity such as duties of office, demands of creditors or the relief from illness arid that it must be residence fixed, not for a limited period or for a particular purpose, but general and indefinite in its future contemplation. Having held that the deceased D.E. Futnani did not come to Madras just for medical treatment, but he came down to Madras from Bombay with the intention to live with his younger son in his very old age his 'fixed habitation' could be easily taken as Madras. Even according to the abovesaid observation of the Calcutta decision, in Smt. Raj Rani v. R. Mool Raj A.I.R. 1962 P&H.; 69 the other decision cited by learned Counsel for the defendant the deceased, a Government servant, belonged to a place A where his family had an ancestral house and during the course of his service he was posted at various places. At one time he was posted at the place D where he stayed for nearly four years till his death. It was in evidence that he intended to stay at D permanently till he was transferred to another station. While so, the Punjab High Court held that D was the 'fixed place of abode' within the meaning of that term in Section 276(2) of the Indian Succession Act. In view of the fact that I have held in the light of several documentary and oral evidence placed before me that the deceased D.B. Futnani had shifted his residence from Bombay to Madras and settled down there with his younger son, even according to the abovesaid Smt. Raj Rani v. R. Mool Raj A.I.R. 1962 P&H; 69 it has to be held that in the present case also, at the time of the death of the abovesaid deceased D.B. Futnani, his fixed place of abode was at Madras.
13. In Mst. Jagir Kaur v. Jaswant Singh : [1964]2SCR73 , also it has been held that a person resides in a place if through choice, makes it his abode permanently or even temporarily and the term 'resides' does not mean domicile in the technical sense of the word. The Supreme Court observed in the said case that where a resident of a village who is suffering from a chronic disease, goes along with his wife to a town for medical treatment, takes a house and lives there for six months, he resides in that town though he is not a domicile in that town. Though this decision relates to the word 'resides', it does throw light on the construction to be put on the term 'fixed place of abode' appearing in Section 270. On fact, I have found that with the intention of living with the younger son in his very old age, the deceased had come down to Madras. So he has even the necessary 'animus' as mentioned by the aforesaid Supreme Court decision.
14. The learned Counsel for the defendant also referred to me different dictionary meanings of the words 'fixed', 'abode' etc., But when Courts in their decisions make the meaning of a word quite clear, it becomes unnecessary to search and select a particular meaning out of diverse meanings of a word is capable of, according to lexicographers. Further judicial decisions expounding the meaning of words in construing statutes in pari materia will have more weight than the meaning furnished by dictionaries.
15. So far as the second aspect viz., the situs of the properties of the deceased at the time of his death, no doubt, most of his properties were outside the jurisdiction of this Court. But, I find two or three properties are in Madras. The petition refers in its para 7 to affidavit of assets, which shows that the deceased owned at the time of his death 10 shares worth Rs.12,000 in Muralimohan Satram and Co., (Madras) Private Ltd., whose registered office, as per Ex.R8, the copy of the annual return of the said company filed on 30-12-82, is Madras. Ex.R24, the estate duty assecsment order relating to the estate of the deceased also shows that the deceased had those shares at the time of his death. The said order also shows that he had a small bank balance at Madras and that a debt was also due to him to the extent of Rs.65,000 and odd from Bharat Trading Corporation, Madras. (A debt is located at the place where it is contracted to be repaid or the place where the debtor resides). There is also no averment in the written statement that no property of the deceased is in Madras. The defendant also deposed that the properties are in Bombay, Calcutta and Madras and all over India. So are as the abovesaid shares in the Company, it is settled law that their location or situs is in the place where the registered office of the company is situated. The said company, (which also appears to be a family concern of the Futnani family, according to Ex.R20, the Income-tax assessment order of the said company) is having its registered office at Madras, as per Ex. R8. So, the deceased had left the said property viz., the shares, at Madras. Even though the properties at Madras left by the deceased may be very small, this Court will have jurisdiction as per Section 270 of the Indian Succession Act; no doubt as per Section 271, it shall then be in the discretion of this Court to refuse to exercise the said jurisdiction, if it could be more justly and conveniently tried by another Court. So despite Section 271 it cannot be said that in such a situation this Court has no jurisdiction. In The matter of Ramchand v. Gurdasmal A.I.R. 1956 Mad. 274 this Court has held as follows:
In regard to this clause the settled case-law is as follows: The existence of any property would be sufficient. Thus a watch and chain and an umbrella might be sufficient to give jurisdiction; In re Mohendra Narayan 5 Cal. W.N. 377(A). So also debts which are to be paid according to the terms of an agreement of the deceased or his heirs residing within the jurisdiction of the Court; Khubchand Bhai v. Motilal A.I.R. 1936 Sin 1501 (B).
Again the Court within whose jurisdiction the office of the officer dealing with the provident fund due to a deceased railway servant lies can entertain the application for grant of probate for the provident fund money; F.G. Simpson v. E.M. Bennett A.I.R. 1946 Oudh 73.
In Asht Bhuja Kuer v. Debi Baksh , it was also held that even where, by far the larger and more valuable part of the property of the testator, was in Oudh and only a small portion of the property was situate in Agra, the District Judge in Agra had jurisdiction to grant letters of administration with the will annexed. It was further observed there that Section 271 does not go to jurisdiction but to discretion.
16. Further D.B. Futnani having resided in Madras ever since November, 1981 till 1-4-1983 till he died it cannot be said that he would not have left some movables at least his personal effects at Madras when he died. That apart, there were also his specified movables at Madras as stated in the affidavit of assets and corroborated by the abovesaid documents.
17. Therefore, there is no difficulty in holding that this Court has jurisdiction to try this suit Further, already nearly six years have passed since this proceeding was initiated in this Court and it will not be proper to drive the plaintiff to another court, which would only delay the trial of the proceeding. Even in the beginning itself, the defendant had not chosen to apply to this Court under Section 271, for itself refusing to try this suit. It is clear he is trying to protract the proceedings as much as possible. I therefore answer issue No. l in favour of the plaintiff and direct the suit to be posted immediately before the learned Judges sitting in the Original Side for an expeditious disposal on the other issues (since I am now sitting in the Appellate Side).