GOUTAM SHANTILAL SHAH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) A question of very great importance has been raised by Mr. Samanta, a learned Advocate of this court on this petition under Article 227 of the Constitution of India. The question is whether a District Delegate under section 276 of the Indian succession Act, 1925 (hereinafter referred to as the Act) can entertain an application for grant of probate of a will in respect of the immoveable property valued at more than Rs. 10,000 of a deceased which is situated outside the limit of this State although moveable assets of the deceased are within its local limit. In order to answer this question, only the facts which are relevant for our purpose are narrated below: An application for grant of probate of a will relating to the estate of one Mohan Lal Lalchad Shah alias M.L. Shah since deceased was made before the District Delegate, 24 Parganas (South) by the petitioner who claimed to have acquired the assets of the deceased on the basis of the will.

(2.) According to the petitioner, the deceased died on l5th of December, 1981 at his residence at 5/2 Beltola Road, Calcutta - 700026 on 15th December, 1981, which was his fixed abode. In the application for grant of probate of the will of the deceased, the petitioner has annexed to it a schedule of assets left by the deceased. The schedule of assets for which the probate of the will was applied for fell within the jurisdiction of the District Delegate at Alipore excepting one immoveable property in the form of a two storied house at Paton, North Gujarat which was valued by the applicant at Rs. 20,000. The learned District Delegate by an order dated 31st July, 1992 held that the application for grant of probate be returned for the purpose of filing the same before the proper forum as he was of the view that since an immoveable property valued more than 10,000 which is outside the local limits of the State had been included is the assets of the deceased, he had no jurisdiction to grant probate of the will to the estate of the deceased. Feeling aggrieved by this order, the present application under Article 227 of the Constitution of India has been moved by the petitioner.

(3.) Mr. Dasgupta appears on behalf of the State of West Bengal as the notice has been duly served on them. In my view, the learned District Delegate has acted illegally and with material irregularity in the exercise of his jurisdiction in passing an order directing the petitioner to take back the application for grant of probate filed under section 276 of the Act and to file the same before the proper forum as valuation given in respect of the immoveable property which is situated beyond the local limits of the State in the annexure to the application for grant of probate exceeds Rs. 10,000. It is not in dispute that the application for grant of probate was made in respect of immoveable and moveable properties left by the deceased. So far as the moveable properties particulars of which have been given to the annexure of the application for grant of probate are concerned, there is no dispute that probate of the will to the estate of the deceased may be granted by the District Delegate, 24 Parganas (South). Since the District Delegate, 24 Parganas(South) has been conferred with the power under the Act to grant probate of the will of the deceased in respect of moveable properties which are all within his jurisdiction, I fail to understand why instead of granting probate of the will in respect of such property, the District Delegate, 24 Parganas(South) directed by the impugned order return of the application for grant of probate in its entirety. The District Delegate, 24 Parganas (South) can therefore grant probate of the will to the estate of the deceased M.L. Shah in respect of the moveable properties in accordance with law as there is admittedly no contention and at the time of death of the deceased 5/ 1 Beltolla Road, Calcutta-700026 which is within the local limit of the District Delegate. 24 Parganas (South) was his fixed place of abode. Accordingly, I am of the view that the learned District Delegate has the Jurisdiction to grant probate of the will to the estate of the deceased in respect of the moveable properties. Accordingly, the impugned order is set aside to the extent indicated above. So far as the jurisdiction of the District Delegate to grant probate of the will of the deceased in respect of the immoveable property which is situated at Patan, North Gujarat and valued by the petitioner himself at more than Rs. 10,000 is concerned, I am however of the view that as the learned District Delegate had no jurisdiction to grant probate of the will to the estate of the deceased relating to immoveable property valued at Rs. 20,000 which is beyond the local limit of the State, the learned District Delegate has rightly directed the petitioner to file the application for grant of probate of the will in respect of such immoveable property before the appropriate forum by the impugned order. Accordingly, this part of the impugned order can not be interferred with. Reasons for reaching this conclusion are as follows: Part IX of the Act deals with probate, letters of administration and Administration of Assets of a deceased. Chapter I of Part IX of the Act, however, deals with grant of probate and Letters of Administration. Chapter II of Part IX deals with limited grants in duration. Chapter III of this part deals with alteration and revocation of grants. Chapter IV of this part deals with practice in granting and revoking probates and letters of Administration.