NARENDRA NATH Vs. FAKIRMANI DASSI

JUDGEMENT

(1.) This appeal which is directed against the decision of Sri U. Das Gupta dated 18-8-1949, arises out of certain proceedings for the revocation of the Letters of Administration which were granted to the appellants. The testator was Gopal Chandra Sardar who died on 6-3-1946. Shortly before his death, on 3-3-1946, Gopal Chandra Sardar executed a Will, the genuineness of which is in controversy between the parties. At the time of his death Gopal Chandra Sardar had a widow; surviving him, named Rashmani. Rashmani died, on the evidence, in February or March, 1948. Gopal Chandra Sardar who was also survived by his daughter Fakirmani Dasi, defendant No. 1, and four grandsons, defendants Nos. 2 to 5 of whom defendant No. 2 is major and defendants Nos. 3 to 5 are minors. On 5-5-1948 the appellants who are related to the testator Gopal Chandra Sardar as nephew and son of a nephew, made an application for Letters of Administration to the estate of Gopal Chandra Sardar with a copy of. the Will annexed. Citations were thereupon issued on defendant No. 1 and another nephew of the testator Gopal Chandra Sardar. No citations were issued on the testator's grandsons, defendants Nos. 2 to 5. On 28-8-1948, Letters of Administration with a copy of the Will annexed were granted ex parte. On 28-8-1948, an application for revocation of the grant was made by defendants Nos. 1 to 5. The allegations inter alia were that defendant No. 1 was not served with notice of the application for the grant of Letters of Administration, that the Will in question was forged. It was also alleged that no citations were issued on defendants Nos. 2 to 5. This application for revocation was filed before the District Judge, Ali-pore, District 24-Parganas. After certain transfers to different Subordinate Judges we find that on 9-3-1949, the application for revocation of the grant was transferred to Sri U. Das Gupta, Subordinate Judge, 2nd Additional Court, Alipore. The learned Subordinate Judge took up the hearing of this case on 19-7-1949, and after the application was heard in full he reserved judgment which was delivered on 18-8-1949. The judgment is signed by Sri U. Das Gupta as Subordinate Judge and District Delegate. It is against this decision that the present appeal has been taken by the opposite parties to the application for revocation of the grant, that is, by the applicants for the grant of Letters of Administration to the estate of Gopal Chandra Sardar.

(2.) Mr. Banerjee appearing on behalf of the appellants has first contended that the learned Judge in the Court below had no jurisdiction to hear the application for the revocation of the grant of Letters of Administration on the ground that he subscribed his name to the judgment as a District Delegate. It is contended that a District Delegate has no jurisdiction to hear a revocation case, the more so as the present case was a contentious one. In support of this contention reliance is placed on the decision in the case of 'Kailash Chandra v. Nanda Kumar', 48 Cal W N 751. The decision, on the face of it, fully supports the contention of Mr. Banerjee. The decision of this Court proceeds on a consideration of Sections 264, 265 and 288 of the Indian Succession Act. Section 264 empowers the District Judge to grant and revoke the probate of a Will. Section 265 relates to the appointment of a District Delegate. The section states that the District Delegate may grant probate and Letters of Administration in non-contentious cases. Section 288 then proceeds to state that in every case where there is contention the District Delegate will return the papers to the District Judge. In 'Kailash Chandra Mondal's case', Mukherjee, J. delivering the judgment of the Bench was concerned with a revocation case which was of a contentious nature. This is made clear by the learned Judge at page 754 of his judgment.

(3.) We have, therefore, to consider how far the present case can be said to be concluded by the said decision. The present case concerns the grant of Letters of Administration and the revocation thereof in certain proceedings which took place in the district of 24-Parganas. The revocation case, as I have already pointed out, was heard by Sri U. Das Gupta, learned Subordinate Judge, 2nd Additional Court, Alipore, District 24-Parganas. If the Succession Act stood alone, it is obvious that the learned Judge would have no jurisdiction to hear this matter. It appears, however, that this Court by Notification No. 8986-A dated 25-6-1927, authorised the Subordinate Judges and Munsifs mentioned therein under Section 23 (i) of. the Bengal, Agra and Assam Civil Courts Act, 1887, "to take cognisance of proceedings under the Indian Succession Act, 1925, which cannot be disposed of by District Delegates." In the schedule which follows it is mentioned that two senior Subordinate Judges and the permanent Munsif. at Alipore are empowered under the Notification. From the Civil list for January, 1949, and June. 1949, it appears that Sri U. Das Gupta was the Senior Subordinate Judge at Alipore, This notification, therefore, conferred on Sri U. Das Gupta the requisite authority to take cognisance of the proceedings for revocation of the Letters of Administration. It is plain that the words "to take cognisance of." include not merely entertainment of the proceedings but> the trial thereof. The decision in 'Kailash Mondal's case', 48 Cal WN 751 related to certain proceedings which were started in Bagerhat, district Khulna. The schedule appended to the Notification No. 8986-A dated 25-6-1927, did not empower any Judicial Officer in the district of Khulna to entertain or dispose of revocation cases. The decision in 'Kailash Mondal's case' is, therefore, distinguishable. I may point out that the Notification issued in 1927 has since been superseded by a later Notification bearing No. 5721-A dated 10-8-1949, by which two senior Subordinate Judges at Alipore and Sealdah have been empowered to try and dispose of cases of the aforesaid type. It also appears that by another Notification No. 5729-A dated 10-8-3 949, the High Court has authorised the District Judge under Section 23 (i) of the Bengal, Agra and Assam Civil Courts Act, 1887, to transfer proceedings under the Indian Succession Act, 1925, which cannot be disposed of by District Delegates to any of the Subordinate Judges of 24-Parganas. The position, therefore, is that Sri U. Das Gupta was perfectly competent as a Subordinate Judge presiding over the Second Additional Court, Alipore, to hear and dispose of revocation proceedings. The fact that he also subscribed his name as District Delegate is a superfluity and does not affect his jurisdiction to try and dispose of the revocation lease. In point of fact the Order Sheet shows that all the orders commencing with the trial up to the conclusion of the case were signed by him as Subordinate Judge. The first contention raised by Mr. Banerjee must, therefore, be overruled.