Hanzalis v Greek Orthodox Religious Court

CourtSupreme Court (Israel)
Date10 March 1969
Israel, Supreme Court sitting as the High Court of Justice
Avalon Hanzalis
Greek Orthodox Patriarchate Religious Court and Costandinos Nicola Papadopoulos

Jurisdiction In general Territorial Territorial limits of jurisdiction Extension of area subject to national jurisdiction Jurisdiction determined by lex fori Jurisdiction over immovable property outside State boundaries Powers of court whose jurisdictional district extends over two territories possessing different jurisdictional laws Authority of such court determined by law of territory where it sits The status of Jerusalem The law of Israel

Summary: The facts.The first respondent held that it was competent to deal with an application concerning the will of a deceased person, the wife of the petitioner and sister of the second respondent, under which she left property in Jericho to the latter. The petitioner denied that the religious court had jurisdiction. On a petition by the husband of the deceased objecting to the first respondent's decision regarding its competence, an order nisi was issued by the Supreme Court against both the respondents.

Held: The order nisi must be made absolute, (1) Since 28 June 1967 united Jerusalem was an inseparable part of the State of Israel and the Israel Succession Law, 1965, extended to the whole city. (2) A religious court sitting on Israel territory and possessing jurisdiction in succession matters of a civil Israel court constitutes an Israel religious court. (3) The Israel court system is territorially separate from the court system of Judea and Samaria, and a religious court whose area of jurisdiction extends over both territories is subject to the territorial law of the place where it sits. (4) Since under Jordanian law the civil district court has exclusive jurisdiction in probate matters, a religious court acting in Israel territory has no jurisdiction.

The following is the text of the relevant parts of the judgments:

The Deputy President (Silberg J.) [set out the facts and continued:] On 17 May 1968, [the first respondent] in the presence of all parties gave the following decision:

That was a preliminary decision on the question of jurisdiction; consideration of the substantive question was adjourned, counsel for the petitioner having given notice of the possibility of a petition to this Court.

(3). Precisely one month later, on 17 June 1968, the husband of the testatrix made the present application. The background of the proceedings on this petition was as follows:

(a) On 17 June 1967 the Knesset had enacted the Law and Administration Ordinance (Amendment No. 11) Law, 57271967, in which it is provided:

The law, jurisdiction and administration of the State shall extend to any area of Eretz Israel designated by the Government by order.

This Law came into effect immediately upon being passed by the Knesset.

(b) On 28 June 1967 the Government made the Determination of Area Order in the following terms:

The area or Eretz Israel described in the Schedule is hereby declared an area to which the law, jurisdiction and administration of the State extends.

East Jerusalem was included in the area described in the said Schedule, and since 28 June 1967 the law of the State applies to it.

(c) On 10 November 1965 the Succession Law, 57251965, passed by the Knesset nine months earlier, came into effect. Section 151 (a) of that Law states:

The Court having jurisdiction under this Law [which applies to successions and wills] is the District Court within whose area of jurisdiction the deceased was domiciled at the time of his death.

Section 155 (a) of the Law provides:

Notwithstanding section 151 the religious court which had jurisdiction in matters of the personal status of the deceased is competent to make a Succession Order, grant Probate if all the interested parties under this Law have consented thereto in writing.

(d) It will be recalled that the petitioner is the husband of the deceased and as such one of the parties interested within the meaning of section 155 (a), and not only did he not agree in writing with the decision of the first respondent but he expressly opposed it.

On the basis of the foregoing contentions an order nisi was issued against the two respondents, opposition was filed by both of them and now the parties are before us.

(4). The main interest of the parties centres on the land and house situated in Jericho and accordingly all their submissions are directed to this property. The submission of counsel for the respondents is twofold. (a) The first respondent has probate jurisdiction with regard to the will since the property involved is situated in Jericho, a place where Jordanian and not Israel law applies. (b) Alternatively, this Court must not grant the petitioner's petition because the result will be that the court competent to deal with probate will, by virtue of section 151 (a), be the Jerusalem District Court, and the civil authorities in Jericho will not register an order made by an Israel court. Hence such an order made by the Supreme Court will be sterile and ineffective, and the High Court of Justice does not make such orders.

(5). A representative of the Attorney-General, Dr. Mishal Cheshin, appeared before us at our invitation and he supported the position of counsel for the respondents by adopting, and with still greater force, the first of the above submissions. To begin with, he announced that he was authorized to state in the name of the officer in charge of the Land Register in Jericho that the latter would make no entry in the register except in accordance with an order made by a court competent under Jordanian law, which prevails in Jericho. That means in actual fact that the officer will not register any change of ownership in the land and house of the deceased in Jericho unless an order is made by the Greek Orthodox Patriarchate religious court sitting in east Jerusalem and having jurisdiction to deal with wills of members of the Greek community by virtue of the Jordanian Law of 1958 which extends the law of the non-Moslem religious courts to the West Bank. Thatso counsel for the Attorney-General urgesis the correct position in point of law.

Counsel for the Attorney-General drew our attention to another curious detail, of which I was not at all aware, namely that the Greek religious court sat also in west Jerusalem before the Six-Day War and heard certain disputes between Greeks and Israelis. From this fact Dr. Cheshin draws an interesting conclusion regarding the many-sided nature of this court. It acts in a double capacity, an Israel and a Jordanian; it has a double position. That being so, when it is dealing with a will affecting Jericho it activates, and is entitled to activate, Jordanian law and under that law there is no need for the two sides to consent in writing to its jurisdiction. Counsel for the Attorney-General finds warrant for his view in the actual phraseology of section 151, which opens with the words the Court having jurisdiction under this Law, with the emphasis upon under this Law. The Greek Patriarchate religious court has no jurisdiction at all under this Law, since its jurisdiction goes back to before November 1965 and even before the establishment of the State, and it is therefore free of all the prescripts of the Israel Succession Law.

I refuse to be captive to the interesting but highly artificial legal structure set up so pungently by learned counsel for the Attorney-General. I see no semblance of proof in the support he seeks to derive from the opening words of section 151 (a). I do not rely merely on the present tense employed by the Legislature; I would not think differently if it had used the past tense. It is difficult for me to reconcile myself with the idea of a single court under the rule of two masters, unless one of them shares its dominion with the other. We have no such sharing. Since 28 June 1967 east and west Jerusalem have been one with regard both to regional division and to the application of the law, and for...

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