MATHORAM BORO Vs. MT. SUNDARI KACHARINI

JUDGEMENT

(1.) THIS is a petition of revision challenging the validity of the order dated 7 -3 -51 in Miscellaneous Case No. 47 of 1950 passed by Mr. D.N. Hazarika, Subordinate Judge, L.A.D., acting as a District -delegate whereby he revoked the Letters of Administration issued to the Petitioner Mathoram Boro on a petition filed by Musst. Sundari Kacharini, the opposite party in this case. The dispute was with regard to Letters of Administration issued at the instance of Mathoram Boro with respect to certain properties left by late Duar Ram Boro by a Will alleged to be executed by him. Mathoram Boro is stated to be the brother's son of late Duar Ram Boro and the objectrix Sundari Kacharini is the testator's daughter, Sundari's objection was that she got no notice of the probate proceeding and that the grant of Letters of Administration of the Will by the District -delegate was improper as the proceeding was defective. She denied the existence of the Will.

(2.) THE Miscellaneous case was registered on the basis of this petition, by the District -delegate and notice was served on Mathoram Boro to show cause why Letters of Administration granted to him should not be revoked. Mathoram Boro opposed this petition of objection and the matter proceeded as contentious one. On 2 -12 -50 the learned Subordinate Judge who was acting as the District -delegate under Section 265, Succession Act, granted adjournment of the proceeding at the in -stance of Mathoram Boro on condition of pre -payment of Rs. 10/ - as adjournment cost.

(3.) AFTER hearing the learned Advocate and going through the relevant sections of the Indian Succession Act, I find that the District -delegate has only limited power as has been contended by the Petitioner of granting probates and Letters of Administration in non -contentious cases alone. Section 264, Succession Act having definitely laid down that the power of revocation of Letters of Administration lies in the District Judge alone and the District -delegate not being mentioned in that connection, it is reasonable to hold that the District -delegate had no authority either to entertain an application for revocation of the Letters of Administration of the Will in any case or to grant it - -when the matter was a contentious one. In this view, the learned Subordinate Judge acted without jurisdiction in granting the order of revocation moved against and it must therefore be set aside. I, accordingly, direct that the order dated 7 -3 -51 passed by the Subordinate Judge, L.A.D., be set aside and the miscellaneous proceeding be revived and transferred to the District Judge along with the record of the case 'for grant of Letters of Administration. It would be for the District Judge to dispose of the matter as provided under the law. In view of the fact that there has been no appearance on behalf of the opposite party, I make no order as to costs. The Rule is made absolute. B/D.H.Z. Rule made absolute.