BENODE BEHARI SUR ROY Vs. BUOY LAXMI ROY

JUDGEMENT

(1.) THIS as an appeal from an order allowing an application under section 383 of the Indian succession Act. The appellant Benode behari Sur Roy had earlier applied for the grant of a succession certificate the application was allowed ex parte to a limited extent by an order dated 23-11-77 in Act XXXIX Case No. 208 of 1977 of the court of the distort Delegate, Alipore. Thereafter the respondent Sm. Bijoy Laxmi Roy filed an application for revocation of the succession certificate granted in favour of Benode Behari Sur Roy which was registered as Revocation Case No. 492 of 1978. This case was eventually allowed on contest by the order impugned in this appeal. Benode Behari has preferred the present appeal.

(2.) THE respondent took a preliminary objection that the appeal presented directly to this court is clearly barred tinder the proviso to Section 388 (2)of the Indian Succession Act. Since we have heard learned advocates on the preliminary objection and since for reasons here in after stated we felt that the objection should prevail, it is clearly unnecessary to enter into the facts of the case nor is it necessary for us to consider the merits of the claim for revocation.

(3.) MR. Chatterjee for dent by drawing our attention provisions of section 388, contended the appeal lies to the alipore and not to this court. 388 in its material part reads "388. Investitute of inferior courts with jurisdiction of District Court for purposes of this Act. (1) The the respondent to tide that district Judge, section as follows: state Government may by notification in the Official Gazette, invest any court inferior in grade to a district Judge with power to exercise the functions of a District judge under this part. (2) Any inferior court so invested shall, within the local limits of its jurisdiction, have concurrent jurisdiction with the District Judge in the exercise of all the powers conferred by this part upon the District Judge, and the provisions of this part relating to the District judge shall apply to such an inferior court as if it were a District Judge : provided that an appeal from any such order of an inferior court as is mentioned in sub-section (1) of section 384 shall he to the District Judge, and not to the High Court, and that judge may, if he thinks fit the District by his order on the appeal, make any such declaration and direction as that sub-section authorizes the High Court to make by this order on an appeal from an order of a District Judge. "