ORAL JUDGMENT

Date : 30-10-2024 Heard learned counsels for the respective parties.

2. The petitioner is aggrieved by the order dated

22.09.2022 passed by the learned District Delegate-cum-Sub Judge-1, Bhagalpur in Probate Case No. 22 of 2018 whereby and whereunder the learned Sub Judge rejected the petition dated 17.06.2022 filed by the petitioner under Section 295 of the Indian Succession Act, 1925 (hereinafter referred to as ‘the Act’).

3. The learned counsel for the petitioner submits that the petitioner is one of the objectors in the Probate Case No. 22 of 2018. The petitioner filed an application under Section 295 of the Act in the aforesaid probate case for direction to proceed in the in the form of a regular suit. But the learned Sub Judge-1, Bhagalpur dismissed the application dated 17.06.2022 under erroneous consideration of the facts and the laws. The learned counsel further submits that the order is perverse since the learned trial court has mentioned the fact that after notice, the opposite party has appeared and filed his written objection challenging the genuineness of the Will while asserting that the petitioner of the probate case has forged and fabricated the Will by obtaining false signature of their mother, the testator. The learned counsel further submits that once objection has been raised, the probate case would proceed in the manner of a regular suit in accordance with the provisions of the Code of Civil Procedure, 1908. Thus, learned counsel submits that the impugned order is not sustainable and the same needs to be set aside.

4. The learned counsels appearing on behalf of respondent no. 1 as well as respondent nos. 2, 3, 6 & 7 oppose the submission made on behalf of the petitioner. The learned counsel for the respondents submits that there is no infirmity in the impugned order and as there is no dispute over title of the testatrix over the suit property, the contention raised by the petitioner is frivolous. 5. Perused the record.

6. Having regard to the facts and circumstances and submission made on behalf of the parties, the striking aspect of the case which emerge is that the learned Sub Judge-1, Bhagalpur proceeded in the matter despite the fact that objections have been filed challenging the genuineness of the Will.

7. Section 286 of the Act reads as under : “286. District Delegate when not to grant probate or letters of 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.

Explanation.—“Contention” means the appearance of anyone in person, or by his recognised agent, or by a pleader duly appointed to act on his behalf, to oppose the proceeding”.

8. A bare perusal of the aforesaid provision makes it amply clear that a District Delegate has been prohibited to grant probate or letters of administration in any case where contention has been raised as to the grant of probate or letters of administration.

9. Thereafter, Section 295 of the Act provides that in any case before the District Judge where there is contention, the proceeding shall take place, as nearly as may be, in the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant.

10. A conjoint reading of these two provisions make it amply clear that once the contention has been raised, the learned Sub Judge-1 has lost the jurisdiction to proceed in the matter and he was required to transmit the matter to the court of learned District Judge and the learned District Judge was, thereafter, required to proceed in the matter treating it to be a regular suit. However, the learned Sub Judge without considering the law applicable in the pr