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2008 DIGILAW 654 (CAL)

Ajoy Kumar Maiti v. Anil Kumar Maiti

2008-07-04

BISWANATH SOMADDER

body2008
JUDGMENT 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. (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 application for the grant, of any probate or letters of administration, the District Delegate may, if he thinks proper, transmit a statement of the matter in question to the District Judge, who may direct the District Delegate to proceed in the matter of the application, according to such instructions as to the Judge may seem necessary, or may forbid any further proceeding by the District Delegate in relation to the matter of such application, leaving the party applying for the grant in question to make application to the Judge." 10. I have quoted the aforementioned provisions of law at the very outset for a better understanding of the instant case and to answer the point of law, on the facts of the instant case, which follows. 11. On 28th February, 2007, the learned District Delegate, Paschim Medinipore in Probate Case No. 156 of 2006, had passed an order at the instance of the petitioner/ executor herein under Section 247 of the Indian Succession Act, 1925, appointing the petitioner/executor, a sole legatee of the 'Will' of late Satchidananda Maiti, as administrator pendente lite, in respect of the business of the firm "M/s. Maa Saradamoyee Kerosene Agency". It appears that the learned Court below, while passing this order, recorded consent of the opposite parties. 12. At a subsequent stage, the opposite party Nos. 1 and 2 in the present application, approached the learned District Delegate, Paschim Medinipore, by taking out an application for recalling of the order dated 28th February, 2007 on the grounds stated therein. The learned District Delegate, Paschim Medinipore, after considering that recalling application, was pleased to pass the order impugned dated 15th September, 2007, inter alia observing therein that there had been 'a mistake of fact' in respect of the order dated 28th February, 2007. The learned Court below was also pleased to record in the order impugned that the opposite party Nos. 'a' and 'b' had not entered appearance and it had been mentioned mistakenly that the said opposite parties had given no objection at the time of passing of the order dated 28th February, 2007. The learned Court below thereafter went to clarify that it was only the opposite parties who were supporting the petitioner/executor, who had actually given no objection and the "contesting opposite parties" (emphasis supplied) did not get any opportunity to express their opinion and as such, the observation in the order dated 28th February, 2007, that the same was allowed on consent, was an error that required to be rectified. The learned Court below allowed the order dated 28th February, 2007 to be recalled in view of the fact that the opposite party Nos. 'a' and 'b' never gave consent and since it was an order of appointment of administrator pendente lite till disposal of the probate case. 13. The learned Court below allowed the order dated 28th February, 2007 to be recalled in view of the fact that the opposite party Nos. 'a' and 'b' never gave consent and since it was an order of appointment of administrator pendente lite till disposal of the probate case. 13. The learned Court below, however, was pleased to reject the prayer of the petitioner to get back the application for probate to re-file it before the appropriate Court, by observing that it could not be allowed at that stage, prior to service of copies of application upon the opposite party Nos. 'a' and 'b' and prior to affording them an opportunity to express their views as to whether they would contest the petition or not. The learned Court below kept the prayer for return of the petitioner's application in abeyance for the time being, to be reconsidered at a subsequent stage. 14. Now that the relevant facts have also been stated, what is required to be looked into is whether in these set of facts, the learned Court below, being the Court of the District Delegate, could have rejected the prayer of the petitioner/executor for return of the application for probate, to re-file the same before an appropriate Court. To find the answer, the point of law, as formulated hereinabove, is required to be considered. The relevant provisions of the Indian Succession Act, 1925, have already been reproduced hereinbefore, with regard to the appointment and jurisdiction of a District Delegate. 15. On a reading of the same, it appears to me that a District Delegate automatically losses jurisdiction the moment a "contention" is raised before that Court, by 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' before him. I take sustenance of my observation from the statutory definition of the expression, "contention" as appearing under Section 286 of the Indian Succession Act, 1925. 16. In the facts of the instant case, it appears that there was a 'contest' before the District Delegate, by the opposite party Nos. 'a' and 'b' and the petitioner/executor. In my view, the element of "contention" crept in the moment there was a 'contest' before the learned District Delegate. 16. In the facts of the instant case, it appears that there was a 'contest' before the District Delegate, by the opposite party Nos. 'a' and 'b' and the petitioner/executor. In my view, the element of "contention" crept in the moment there was a 'contest' before the learned District Delegate. It is precisely for this reason that the legislature, in its wisdom, provided a statutory explanation to the word "contention", in Section 286 of the Indian Succession Act, 1925. The scheme of the Act itself makes it clear that once there is a "contention" raised, the District Delegate ceases to exercise jurisdiction over matters relating to grant of probate or letters of administration. In this regard, one may also refer to Section 284 of the Indian Succession Act, 1925. The said section is reproduced hereinbelow:- "Section 284. Caveats against grant of probate or administration.-(1) Caveats against the grant of probate or administration may be lodged with a District Judge or a District Delegate. (2) Immediately on any caveat being lodged with any District Delegate, he shall send copy thereof to the District Judge. (3) Immediately on a caveat being entered with the District Judge, a copy thereof shall be given to the District Delegate, if any, within whose jurisdiction it is alleged the deceased had fixed place of abode at the time of his death, and to any other Judge or District Delegate to whom it may appear to the District Judge expedient to transmit the same." 17. Although the aforesaid provision deals with caveats, on a plain reading it appears that the legislature has consciously provided lodging of caveats, both with the District Delegate as well as the District Judge. In fact, there cannot be any manner of doubt with regard to the jurisdiction of the District Delegate, if one looks into another provision of the Indian Succession Act, 1925, and that is Section 287, which has also been reproduced hereinabove. This provision grants power to the District Delegate to transmit statement to District Judge in doubtful cases even where there is no contention. 18. In the facts of the instance case, the learned Court below failed to take into consideration the provisions of Section 288 of the Indian Succession Act, 1925. The said section is quoted below:- "Section 288. This provision grants power to the District Delegate to transmit statement to District Judge in doubtful cases even where there is no contention. 18. In the facts of the instance case, the learned Court below failed to take into consideration the provisions of Section 288 of the Indian Succession Act, 1925. The said section is quoted below:- "Section 288. Procedure where there is contention, or District Delegate thinks probate of letters of administration should be refused in his Court.-In every case in which there is contention, or the District Delegate is of opinion that the probate or letters of administration should be refused in his Court, the petition, with any documents which may have been filed therewith, shall be returned to the person by whom the application was made, in order that the same may be presented to the District Judge, unless the District Delegate thinks it necessary, for the purpose of justice, to impound the same, which he is hereby authorised to do; and, in that case, the same shall be sent by him to the District Judge." 19. "This section begins with the phrase "in every case in which there is contention" (emphasis supplied). As observed before, in the order impugned, the District Delegate himself had recorded the factum of a 'contest' between the opposite party Nos. 'a' and 'b' and the petitioner/executor. In my view, the moment a District Delegate acknowledges the existence of a 'contest' between the parties, in respect of a 'proceeding' before him, he should be alive to the fact that at that very moment he ceases to exercise jurisdiction, since the matter becomes, at once, contentious. 20. The learned Advocate appearing on behalf of the opposite party Nos. 1 and 2 herein submits that the initial order passed by the District Delegate was obtained by the petitioner/executor by committing fraud on Court. He submits that since fraud vitiates every thing, the entire proceeding before the District Delegate instituted by the petitioner/ executor was bad in law. He specifically submits that there is, in fact, no existence of the 'Will', which the petitioner herein claims to be an executor and for which he seeks grant of probate. 21. He submits that since fraud vitiates every thing, the entire proceeding before the District Delegate instituted by the petitioner/ executor was bad in law. He specifically submits that there is, in fact, no existence of the 'Will', which the petitioner herein claims to be an executor and for which he seeks grant of probate. 21. I am of the opinion that whether, in fact, there is any existence of a 'Will' as claimed by the petitioner herein, or there is none, as is the submission of the learned Advocate for the opposite party Nos. 1 and 2, is a matter that requires adjudication. The question is who is to adjudicate. The answer, for reasons stated above, cannot be the District Delegate, since it is absolutely clear that a contentious issue has been raised by the opposite party Nos. 1 and 2, which, by itself, takes away the jurisdiction of the District Delegate. I am, therefore, inclined to allow the instant application and set aside the order impugned, being the order dated 15th September, 2007, passed by the learned District Delegate, Paschim Midnapore in Probate Case No. 156 of 2006. 22. I direct the parties to forthwith approach the learned District Judge, Paschim Midnapore, who shall decide the opposite party Nos. 1 and 2's application for removal of the administrator pendente lite and dispose of the same in terms of this order, within three months from date of communication of this order, during which time the administrator pendente lite appointed earlier by the learned District Delegate shall not function as one. 23. The learned District Judge, Paschim Midnapore is also directed to appoint a Receiver in respect of the business of the firm, "M/s. Maa Saradamoyee Kerosene Agency", immediately upon receipt of this order, who shall continue till further orders of the learned District Judge. 24. I make it clear that the instant application has been decided only on the point of law indicated above and the learned District Judge, Paschim Medinipore, shall decide the matter on its own merit, without being influenced in any manner by any observation made herein. 25. The instant application stands disposed of accordingly. Xerox plain copy of this order duly countersigned by the Assistant Registrar (Court), be given to the parties on usual undertakings.