KANU SHARMA Vs. SHYAMAPADA SHARMA

JUDGEMENT

(1.) This revisional application under ' Section 115 of the Code of Civil Procedure is directed against orders Nos. 24 and 26 dated May 7. 1983 and June 11. 1983 both passed by the learned Munsif. Second Court. Seram-pore in his capacity as District Delegate in Misc. Case No. 179 of 1980 and Review Case No. 139 of 1983 rejecting the petitioner's application for grant of probate. It appears that the petitioner made an application before the learned Munsif. Second Court, Serampore in his capacity as District Delegate under Section 276 of the Indian Succession Act for grant of probate in respect of a Will stated to have been executed by one Satish Chandra Sharma on May 4. 1979. On the basis of the said application, the Misc. Case No. 179 of 1980 was started before the said District Delegate. It appears that the opposite parties in the instant revisional application who are next of kin of the executor of the said will did not contest the petitioner's application for grant of probate and it appears that they consented to the grant of the probate of the said Will. The said Misc. Case was fixed for ex parte hearing on May 7. 1983 before the learned District Delegate. Serampore. The petitioner examined himself as p. W. 1 and two of the attesting witnesses to the said Will were examined as P. Ws. 2 and 3. It also appears that after the ex-amination of the said witnesses, an application was made by the petitioner for adjournment of further hearing of the said Misc. Case so as to enable the petitioner to cite other witnesses particularly the scribe of the said Will. It appears that the District Delegate rejected the said prayer for adjournment and upon consideration of the evidence adduced by the said witnesses, the District Delegate by his order No, 24 dated May 7, 1983 rejected the petitioner's application for grant of probate of the aforesaid will. It appears that the petitioner thereafter made an application for review of the said order and the petitioner contended in the said application that the District Delegate should not have dismissed the said application for grant of probate and if he had entertained any doubt in the matter of grant of probate he should have referred the matter to the learned District Judge for disposal. It, however, appears that the learned District Delegate rejected the said application for review on the finding that he had jurisdiction to refuse grant of probate even if there was no contest and the petitioner had opportunity to prefer an appeal against his order and as such there was no occasion to review his order. aS aforesaid, this revisional application has been moved against the said two orders of the District Delegate. No Rule was issued by this Court on the said revisional application but it was directed that the revisional application would be heard as a contested application bv serving notice on the opposite parties. Pursuant to such direction, notice along with a copy of the revisional application was served on the opposite parties and the learned Counsel has also appeared for the said opposite parties. It may be noted that the learned Counsel appearing for the opposite parties did not contest the revisional application, On the contrary, the learned Counsel supported the petitioner's contentions at the hearing of this revisional application.

(2.) Mr. Kabir. the learned Counsel appearing for the petitioner, has contended that under Section 287 of the Indian Succession Act, the District Delegate can grant probate or letters of administration if there is no contest and if the District Delegate entertains any doubt as to whether or not a probate should be granted or if in such matter he thinks it proper, then the District Delegate may transmit the statement of the matter in question to the District Judge. The District Judge on such reference may give such instruction to the District Delegate for the purpose of disposal of the application for grant of probate as may deem to the District Judge as just and proper. The District Judge may also forbid any further proceeding by the District Delegate leaving the party applying for grant of probate to make application before the District Judge. Mr. Kabir has also drawn the attention of the Court to Section 288 of the Indian Succession Act which provides that in a case in which there is contention or where the District Delegate is of opinion that probate or letters of administration should be refused in his court, the petition with any document 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. The District Delegate, may, however, impound any document before the same is returned to the applicant. Mr. Kabir has contended that in the instant case, it appears that the District Delegate was not satisfied on the basis of the evidence adduced before the' District Delegate to grant probate on the said Will. Accordingly, the District Delegate should have returned the application for grant of probate to the petitioner for presentation before the learned District Judge in accordance with the provision of Section 288 of the Indian Succession Act. He has contended that it was not proper for the District Delegate to reiect the application on merit. Mr. Kabir has also contended that as the District Delegate is not authorised to dismiss the application for grant of probate but is authorised to return the application for presentation before the learned District Judge if he is not inclined to grant probate in a case where there is no contention, there is no provision for appeal from the order to be passed by the District Dele-Kate even if the District Delegate rejects the application for grant of probate in contravention of Section 288 of the Indian Succession Act as has been done in the instant case. There is. however, provision for appeal from the order of the District Judge refusing to grant probate on the application of a party. In our view, the contention of Mr. Kabir has substance and should be accepted. From the scheme of the Indian Succession Act. it uppears to us that the Dis-trict Delegate could not reiect the ap-plication for grant of probate if he was not satisfied that the applicant had made out a case for grant of probate. In such circumstances. the District Delegate should have returned the application for grant of probate along with the documents for the purpose of presentation before the District Judge who after hearing the parties will either grant probate or refuse to grant probate. In the circumstances, the orders complained of are set aside and the District Delegate is directed to return the application made by the petitioners for grant of probate along with the documents that may have been filed by the petitioners so that the same may be presented before the iearn-ed District Judge for consideration on merits.

(3.) The revisional application is disposed of accordingly. There will be no order as to costs.