SARADINDU BANERJEE Vs. SITA BANERJEE @ REKHA BANERJEE

JUDGEMENT

(1.) IN this writ application the petitioner has prayed for quashing the order dated 8.2.2006 passed in probate Case No. 3/01 by learned 1st Additional District Judge, Jamtara whereby the petitioner 'spetition challenging his jurisdiction has been rejected.

(2.) THE petitioner herein is the opposite party in the said probate case in the Court below whereas the respondent is the petitioner. The said respondent filed an application under Section 276 of the Indian Succession Act, 1925 , [hereinafter referred to as 'the said Act '], before the learned District Judge, Dumka for grant of probate of the will with regard to the property described in Schedule 'A ' and Schedule 'B ' of the plaint. This said applicant was appointed as the sole executrix of the will executed by one late Dr. Jagdish Chandra Banerjee. After creation of judgeship of Jamshedpur the said case was transferred to the Court of the learned 1st Additional District Judge, Jamshedpur. In the said case the petitioner of this case also appeared. The parties led evidences and the case was finally fixed for argument. At that stage the opposite party -petitioner filed an application challenging the jurisdiction of the said Court on the ground that Section 264 of the said Act only empowers the 'District Judge ' to grant probate in all the cases within the district and as such the Additional District Judge has no jurisdiction to deal with the said case. It was contended that since the said Court has no jurisdiction, the application is fit to be returned to the petitioner -respondent. A rejoinder was filed by the respondent stating, inter alia, that the said objection is wholly frivolous and has been deliberately raised at the final stage only in order to delay disposal of the case. It was further stated that the Additional District Judge on transfer exercises the same power of District Judge and the said Court has got jurisdiction to grant probate.

(3.) MR . Anil Kumar, learned counsel for the petitioner submitted that the proceeding of the said probate case before the Additional District Judge is wholly without jurisdiction. The District Judge alone has got jurisdiction for granting and revoking probates and letters of administration in all the cases within his district and the Additional District Judge can not exercise the said jurisdiction under the provision of Section 264 of the Act. Learned counsel submitted that Section 2 (bb) of the said Act defines the 'District Judge ' as the Judge of the Principal Civil Court of original jurisdiction. An Additional District Judge is not the Judge of Principal Civil Court of original jurisdiction and as such he does not come within the definition of the 'District Judge ' and he cannot deal with the cases for grant of probate. Learned counsel placed reliance on a decision of Allahabad High Court in M/s. I.T.I. Ltd., Allahabad V/s. District Judge, Allahabad and others, reported in AIR 1998 All 313.