The jurisdiction to grant probate in contentious matters lies solely with the District Judge, and cannot be exercised by a subordinate delegate court.

JUDGMENT :

B.P. Routray, J.

1. Present appeal is directed against the order of dismissal passed in Probate Proceeding.

2. The Appellants being the plaintiffs filed Test Case No.16/2006 before the Court of learned District Judge, Khurda at Bhubaneswar praying for Probate of Registered Will No.101 dated 9^th November 2004 executed in their favour by their grandfather, late Abhiram Moharapatra. Respondent No.2 to 4 are the daughters of Abhiram Mohapatra and Respondent No.1 is his only son. Plaintiffs are the sons of Respondent No.1. Abhiram Mohapatra died on 2^nd May 2005. According to the plaintiffs, late Abhiram Mohapatra bequeathed his entire 1/4^th share, which was determined falling in his favour as per the decree passed in partition suit in O.S.No.24/13 of 1981/1979 between the four brothers – Abhiram, Parsuram, Abakash and Bijay Ram – sons of Hrusikesh Mohapatra, in favour of the plaintiffs-Appellants. The Probate Court, i.e. 2^nd Addl. Senior Civil Judge, Bhubaneswar did not believe the contentions of the plaintiffs and accordingly refused to Probate the Will in their favour. Said impugned judgment of 2^nd Addl. Senior Civil Judge is under challenge in the present appeal.

3. Before delving into the factual merits of contentions of the parties, it is important to note here that the Appellants do not question the impugned judgment on merits but limits their challenge as to the jurisdiction of learned 2^nd Addl. Senior Civil Judge as to his competency to decide the Probate Proceeding. Mr. Mohanty, learned Senior Counsel appearing for the Appellants confines his challenge to this technical aspect only with further submission to reserve his right regarding challenge of factual merits.

4. It is submitted on behalf of the Appellants that a Probate Proceeding instituted before the learned District Judge and delegated to the Court of Principal Senior Civil Judge cannot be further sub- delegated to the Court of Addl. Senior Civil Judge by the Principal Senior Civil Judge. That apart, the District Delegate Court can only decide the non-contentious Probate Proceedings and as per the provisions under Section 286 of the Indian Succession Act 1925, the District Delegate cannot grant Probate when there are contentions as to the grant of the Probate and in such cases the District Delegate Court has to proceed in terms of the provisions of Section 288 of Indian Succession Act 1925 to return the proceeding to the Court of District Judge. Since in the instant case, Respondent No.2 to 4, who are daughters of the alleged testator, have entered to contest the very execution of the Will in question, the District Delegate more less the Addl. Senior Civil Judge, is ousted of the jurisdiction to decide on the question of grant of Probate. It is the only District Judge, who is authorized in such matters of grant of Probate involving contentious issues, and not the District Delegate.

5. This submission of the Appellants is countered by Respondent No.2 to 4 on the ground that since the Appellants did not raise their objection before the Addl. Senior Civil Judge with regard to his jurisdiction at the earliest, the Appellants are precluded from raising such objection before the Appellate Court. To support their contention, Respondent No.2 to 4 take aid of provisions contained in Section 21 of the Civil Procedure Code. It is further submitted that as per the provisions contained in Section 2(b) of the Odisha Civil Courts Act, the Civil Judge (Senior Division) includes Addl. Civil Judge (Senior Division). Therefore, the submissions put-forth by the Appellants on the question of jurisdiction of Addl. Senior Civil Judge, be whatever may is it, is not sustainable in the eye of law to fault the judgment of the 2^nd Addl. Senior Civil Judge on this aspect at the present stage.

6. As stated earlier, the question raised in the present appeal is with regard to said technical aspect on the jurisdiction of learned Addl. Senior Civil Judge to entertain the Probate Proceeding. Fro