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2008 Supreme(Cal) 652
IN THE HIGH COURT AT CALCUTTA
Biswanath Somadder, J.
Sri Ajoy Kumar Maiti - Petitioner
Versus
Dr. Anil Kumar Maiti & Ors. - Opposite Parties
C.O. No. 3851 of 2007
Decided On : July 4, 2008
Advocate Appeared:
Mr. S.P. Roychowdhury, Mrs. Chaitali Chatterjee for the Petitioner
Mr. Sadananda Ganguly and Tapabrata Chakraborty for the Opposite Party Nos. 1 & 2
The District Delegate's jurisdiction to grant probate ceases upon the emergence of a contest or contention before the court, as provided under Sections 265, 272, 286, 287, and 288 of the Indian Succession Act, 1925.
Headnote:
INDIAN SUCCESSION ACT, 1925 - GRANT OF PROBATE - JURISDICTION OF DISTRICT DELEGATE - CESSATION OF JURISDICTION UPON CONTEST - INTERPRETATION OF SECTIONS 265, 272, 286, 287, 288 - DISTRICT DELEGATE LOSES JURISDICTION ONCE CONTESTATION ARISES.
Fact of the Case:
The petitioner, as the sole legatee of a deceased person's will, applied to the District Delegate for grant of probate and was appointed as administrator pendente lite. Subsequently, the opposite parties filed an application to recall the order, alleging that they had not consented to the appointment and that there was a contest over the will's existence.
Finding of the Court:
The court held that the District Delegate lost jurisdiction to grant probate once a contest arose before the court, as evidenced by the opposite parties' appearance and opposition to the application. The court interpreted Sections 265, 272, 286, 287, and 288 of the Indian Succession Act, 1925, to conclude that the District Delegate's jurisdiction ceases upon the emergence of a contention or contest.
Issues: 1. Whether the District Delegate retains jurisdiction to grant probate once a contest arises before the court. 2. Interpretation of Sections 265, 272, 286, 287, and 288 of the Indian Succession Act, 1925, in relation to the District Delegate's jurisdiction.
Ratio Decidendi: The court relied on the statutory definition of "contention" in Section 286 of the Indian Succession Act, 1925, which includes any appearance by a person to oppose a proceeding before the District Delegate. The court also considered Section 288, which mandates the District Delegate to return the petition for probate to the applicant for presentation to the District Judge in cases of contention or where the District Delegate believes probate should be refused. The court concluded that the District Delegate's jurisdiction ceases upon the emergence of a contest, and that the matter must be referred to the District Judge.
Final Decision: The court allowed the petitioner's application, set aside the order recalling the appointment of the administrator pendente lite, and directed the parties to approach the District Judge for a decision on the matter.
Heard the learned Advocates appearing on behalf of the parties.
2. This is an application under Article 227 of the Constitution of India directed against an order, being Order No. 13 dated 15th September, 2007 passed by the learned District Delegate, Paschim Midnapore in Probate Case No. 156 of 2006.
3. By the order impugned, the learned Court below was pleased to recall an earlier order, being Order No. 6 dated 28th February, 2007, whereby an application under Section 247 of the Indian Succession Act, 1925, was allowed, appointing the petitioner/executor as administrator pendente lite.
4. In the instant application, the petitioner herein is the petitioner/executor who had approached the learned Court below for appointing him as administrator pendente lite. The opposite party Nos. 1 and 2 herein are the applicants before the learned Court below at whose instance the order dated 28th February, 2007, stood recalled by the impugned order passed by the learned Court below.
5. After considering the submissions made by the learned Advocates appearing on behalf of the parties, it appears that there is only one point of law that is required to be looked into, in order to decide the matter and that is whether the District Delegate could continue to exercise jurisdiction under the Indian Succession Act, 1925, once a "contention" has been raised by the appearance of someone, either in person through a learned Advocate, for the purpose of opposing a "proceeding" pending before him.
6. In order to find out an answer, it may be necessary to refer some of the provisions of the Indian Succession Act, 1925. To begin with, the power to appoint Delegate of District Judge has been spelt out in Section 265. Section 265 of the Indian Succession Act, 1925, is reproduced hereinbelow:-
"Section 265 - Power to appoint Delegate of District Judge to deal with non-contentious cases-(1) 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:
Provided that, in the case of High Courts not established by Royal Charter such appointments shall not be without the previous sanction of the State Government. (2) Persons so appointed shall be called "District Delegates".
7. The power of the District Delegate to grant probate and letters of administration appears under Section 272:-
"Section 272:-Probate and letters of administration may be granted by Delegate.-Probate and letters of administration may, upon application for that purpose of any District Delegate, be granted by him in any case in which there is no contention, if it appears by petition, verified as hereinafter provided, that the testator or intestate, as the ease may be, at the time of his death had a fixed place of abode within the jurisdiction of such Delegate."
8. Another relevant provision of the Indian Succession Act, 1925, wherein it has boon provided as to when a District Delegate cannot grant probate or administration is Section 286:-
"Section 286. District Delegate when not to grant probate or administration.-A District Delegate shall not grant probate or letters of administration in any case in which there is contention as to the grant, or in which it otherwise appears to him that probate or letters of administration ought not to be granted in his Court."
9. The provision of the Indian Succession Act, 1925, which deals with power to transmit statement to District Judge by the District Delegate in doubtful cases where there is no contention has been provided under Section 287:-
"Section 287. Power to transmit statement to District Judge in doubtful cases where no contention.-In every case in which there is no contention, but it appears to the District Delegate doubtful whether the probate or letters of administration should or should not be granted, or when any question arises in relation to the grant, or appl
