KUNTI DEVI Vs. RAMA KANT TIWARI

JUDGEMENT

(1.) Heard Mr. Dronacharya, learned counsel appearing on behalf of the petitioner and Mr. Rajni Kant Pandey, learned counsel for the respondents. This application under Article 227 of the Constitution of India has been filed questioning the order dated 22.8.2009 passed by the learned Sub-Judge-1st, Kaimur at Bhabhua in Misc. Case No. 63 of 1999 arising from Probate Case No. 57 of 1993, whereby the learned court below has been pleased to reject the petition filed by the petitioner who is opposite party in the court below questioning the jurisdiction of the court to proceed in the matter in the light of the statutory provisions of the Indian Succession Act, 1925 (hereinafter referred to as "the Act").

(2.) The only issue that is sought to be raised by Mr. Dronacharya which also led to filing of the application questioning the jurisdiction of the court is that in view of the provisions of Sections 264, 265 and 286 of the Act, the learned Sub-Judge cannot be held to be a District Judge within the meaning of Section 2(bb) of the Act. With reference to Section 265 of the Act it is stated that although the power has been vested in the High Court to appoint any judicial officer to act for the District Judge as a delegate for the purpose of granting probate and letters of administration but those are only relatable to non-contentious cases and not contentious cases. It is submitted that in fact the provisions are very explicit under Section 286 of the Act and it stands clarified that the District Delegate so appointed by the High Court shall not grant probate and letters of administration in non-contentious case. It is thus submitted that in the circumstances the learned Sub-Judge is not vested with jurisdiction to proceed in matters arising out of probate and letters of administration proceedings relatable to contentious cases.

(3.) The post of District Judge has been defined under Section 2(bb) of the Act to mean the Judge of a Principal Civil Court of original jurisdiction. A conjoint reading of the two provisions leaves no room for confusion that all such judicial officers who are exercising powers of a Judge of a Principal Civil Court of original jurisdiction, are vested powers to perform the duties attached to the post of District Judge for grant or revocation of probates or letters of administration in all cases. Meaning thereby the contentious as well as non-contentious cases. In so far as the provisions of Section 265(1) of the Act is concerned, as referred to by learned counsel for the petitioner the said provision carves out a class in which power has been vested in the High Court to appoint a judicial officer to act as a Delegate of the District Judge to adjudicate upon non-contentious cases. In fact the said provision by itself clarifies that although a District Delegate can be appointed to adjudicate upon non-contentious cases, in so far as the contentious cases are concerned, it can only be adjudicated upon by the District Judge as defined under Section 2(bb) of the Act.