Calcutta High Court (Appellete Side)
Mrs. Sara Moiz Khyrullah & Ors vs Sri Dilip Kumar Singh & Ors on 9 July, 2015
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Debi Prosad Dey
F. A. 302 of 2014
Mrs. Sara Moiz Khyrullah & Ors.
versus
Sri Dilip Kumar Singh & Ors.
For the Appellants : Mr. S. P. Roy Chowdhury,
Mr. Sibasis Ghosh.
For the Respondent No.1 : Mr. Kushal Paul,
Ms. Soma Chowdhury (Bandhu).
Heard On : 08-07-2015 & 09-07-2015. Judgement On : 09-07-2015.
Jyotirmay Bhattacharya, J. : Mr. Paul, learned advocate undertakes to file Vakalatnama on behalf of his client in course of this day.
In spite of service of notice, none appears on behalf of the other respondents to contest this appeal.
An ex parte grant of probate by the District Delegate in a non-contentious case was sought to be revoked by the appellants herein by filing an application under Section 263 of the Indian Succession Act, 1925 on various grounds available under Section 263 of the said Act including the ground of non-citation on one of the legal heirs of the testator.
By the impugned order, the appellants' said application under Section 263 of the said Act was rejected by the learned District Judge by holding, inter alia, that such an application in its present form is not maintainable before the District Judge. Learned District Judge held that having regard to the fact that probate was granted ex parte by the District Delegate, the only course which is left open to the party aggrieved, is to apply for setting aside such ex parte grant of probate under Order 9 Rule 13 of the Code of Civil Procedure before the District Delegate which granted such probate.
Thus, in substance, the learned District Judge held that for setting aside an ex parte grant of probate by the District Delegate, the provision contained in Section 263 of the said Act cannot be availed of by the aggrieved party.
Learned District Judge was also of the view that such an ex parte grant of probate by the District Delegate can only be set aside by the District Delegate which granted such probate and that too by only following the provision contained in Order 9 Rule 13 of the Code of Civil Procedure.
The legality and/or propriety of such an order passed by the learned District Judge, Purba Medinipur on 22nd July, 2014 in Other Suit No. 02 of 2010 is under challenge in this appeal before us.
Let us now consider as to how far the learned District Judge was justified in rejecting the appellants' said application under Section 263 of the said Act in the facts of the instant case.
Since the appellants' application under Section 263 of the said Act was rejected on the ground of its maintainability alone without entering into the merit of the said application, we, while deciding this appeal will restrict ourselves to assessing the legality of the impugned judgement with reference to the maintainability of the said application without considering the merit of the said application. For resolving the issue which is raised before us as indicated above, we are required to consult certain provisions of Indian Succession Act, 1925.
Let us first of all consider the provision of Section 263 of the said Act which runs as follows :-
"Section 263. Revocation or annulment for just cause.--
The grant of probate or letters of administration may be revoked or annulled for just cause.
Explanation.-- Just cause shall be deemed to exist where--
(a) the proceedings to obtain the grant were defective in substance; or
(b) the grant was obtained fraudulently by making a false suggestion, or suggestion, or by concealing from the Court something material to the case; or
(c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or
(d) the grant has become useless and inoperative through circumstances; or
(e) the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect.
Illustrations
(i) The Court by which the grant was made had no jurisdiction.
(ii) The grant was made without citing parties who ought to have been cited.
(iii) The Will of which probate was obtained was forged or revoked.
(iv) A obtained letters of administration to the estate of B, as his widow, but it has since transpired that she was never married to him.
(v) A has been taken administration to the estate of B as if he had died intestate, but a Will has since been discovered.
(vi) Since probate was granted, a latter Will has been discovered.
(vii) Since probate was granted, a codicil has been discovered which revokes or adds to the appointment of executors under the Will.
(viii) The person to whom probate was, or letters of administration were, granted has subsequently become of unsound mind."
The aforesaid provision gives clear indication that grant of probate or letter of administration may be revoked or annulled for any just cause on any of the grounds as mentioned in the Explanation added to the said provision.
In the present proceeding, the appellants want to invoke the provision contained in Section 263 of the said Act for revocation of such grant on various grounds including non-citation on one of the legal heirs of the testator, Will was created by forgery etc. etc. On perusal of the said application, we have no hesitation to hold that the appellants applied for revocation of grant of such ex parte probate before the District Delegate on the grounds as enumerated in the Explanation to Section 263 of the said Act. The contesting parties also accepted that this was an application under Section 263 of the said Act, filed by the appellants before the learned District Judge. The District Judge also treated the said application of the appellants as an application under Section 263 of the said Act.
Let us now consider as to which is the competent forum to decide the said application on its merit.
In this regard, we are required to consider the provisions contained in Sections 264, 265 and 266 of Indian Succession Act, 1925. For the sake of convenience of understanding of the problem which is now before us, we set out the provisions of Sections 264, 265 and 266 of the said Act.
"264.-- Jurisdiction of District Judge in granting and revoking probates, etc.-- (1) The District Judge shall have jurisdiction in granting and revoking probates and letters of administration in all cases within his district. (2) Except in cases to which section 57 applies, no court in any local area beyond the limits of the towns of Calcutta, Madras and Bombay, shall, where the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, receive applications for probate or letters of administration until the State Government has, by a notification in the Official Gazette, authorised it so to do.
265. Power to appoint delegate of District Judge to deal with non- contentious cases.-- (1) The High Court may appoint such judicial officers within any districts as it thinks fit to act for the District Judge as delegates to grant probate and letters of administration in non-contentious cases, within such local limits as it may prescribe:
Provided that, in the case of High Courts not established by Royal Charter such appointments shall not be without the previous sanction of the State Government. (2) Persons so appointed shall be called "District Delegates".
266. District Judge's powers as to grant of probate and administration.-- The District Judge shall have the like powers and authority in relation to the granting of probate and letters of administration, and all matters connected therewith, as are by law vested in him in relation to any civil suit or proceeding pending in his Court."
Section 264 of the said Act provides that the District Judge shall have the jurisdiction in granting and revoking probates and letters of administration in all cases within his district. Thus the said provision confers jurisdiction upon the District Judge not only to grant probate, but also to revoke grant of such probate and/or letters of administration in all cases within his district.
Let us now consider the jurisdiction which was conferred upon the District Delegate under Section 265 of the said Act.
Section 265 of the said Act clearly indicates that the District Delegates are authorised to grant probate and letters of administration in non-contentious cases, within the prescribed local limits.
The said provision does not confer any jurisdiction upon the District Delegates to revoke the grant of probate. Even the said provision does not authorise the District Delegates to grant any probate in a contentious case. Thus, we find that limited and/or restricted jurisdiction to grant probate is conferred upon the District Delegates and that too only in non-contentious cases. The said provision thus makes it abundantly clear that the District Delegates have no jurisdiction either to revoke the grant of probate or to grant probate in a contentious case.
Let us now analyze the provision of Section 266 of the said Act which deals with the District Judge's power to grant probate and letter of administration. Section 266 of the said Act provides that the District Judge shall have the like powers and authority in relation to the granting of probate and letters of administration, and all matters connected therewith, as are by law vested in him in relation to any civil suit or proceeding pending in his Court. The said provision thus makes it clear that the District Judge has the power to grant probate and letters of administration in contentious cases also.
The jurisdiction to grant probate by the District Delegate is further controlled by the provision contained in Section 272 of the said Act which puts a further check upon the District Delegate to grant probate in contentious cases, as we pointed out above.
Considering the scheme of the Act, particularly with reference to the aforesaid provisions thereof, we have no hesitation to hold that an application for revocation of grant of probate under Section 263 of the said Act, be it granted by the District Judge in contentious cases or is granted by the District delegate in non-contentious cases, can only be entertained by the District Judge in view of the provision contained in Section 264 of the said Act which gives unfettered authority upon the District Judge not only to grant probate but also to revoke such grant in all cases within his District.
Exercise of such jurisdiction by the District Judge is not restricted to the cases where the District Judge granted such probate within the district. Use of the expression "in all cases" in Section 264 of the said Act is very much significant for the present purpose as it clearly indicates that exhaustive jurisdiction has been conferred upon the District Judges to revoke grant of such probate; be it granted by the District Judge in contentious cases or is granted by the District Delegate in non-contentious cases.
If we read the provision contained in Section 264 of the said Act along with the provision contained in Section 265 of the said Act, the position will be much more clear as Section 265 of the said Act gives a restrictive jurisdiction to the District Delegates only to grant probate and that too in non-contentious cases and jurisdiction to revoke such grant was not conferred upon the District Delegates.
Thus, we have no hesitation to hold that the District Delegate has no jurisdiction to revoke the grant of probate. Such jurisdiction has been conferred upon the District Judge only and as such, the District Judge cannot avoid consideration of the appellants' application under Section 263 of the said Act on its merit.
We, however, clarify here that we are not holding that the ex parte grant of probate in non-contentious case by the District Delegate cannot be set aside under the provision contained in Order 9 Rule 13 of the Code of Civil Procedure. Since such a remedy is available to an aggrieved party, he may apply for the same before the District Delegate, but then again if such a proceeding under Order 9 Rule 13 of the Code of Civil Procedure becomes contentious, such proceeding again cannot be considered by the District Delegate as the District Delegate has not been conferred with any jurisdiction to deal with any contentious case in connection with the probate proceeding.
Before parting with, we also like to mention here that when more than one remedy are available to a party aggrieved, he may opt for any one of them and apply before the appropriate forum of his choice for seeking the remedy and if the Court where such remedy is sought for, is otherwise an appropriate forum for consideration of such an application filed by the aggrieved party before it, that court and/or forum, in our considered view, cannot relegate the parties to the other forum for seeking their other remedy therein by avoiding its responsibility in considering the competent application which is filed before it.
As such, we hold that the learned District Judge committed an illegality by rejecting the appellants' application under Section 263 of the Indian Succession Act by holding it as not maintainable in its present form. We hold that the said application is well maintainable in the present form and as such, we direct the learned District Judge to dispose of the appellants' said application under Section 263 of the said Act on its own merit in accordance with law.
We make it further clear that while deciding this appeal, we have not considered the substance and/or merit of the appellants' application under Section 263 of the said Act and as such, the learned District Judge is absolutely free to decide the appellants' said application under Section 263 of the said Act on its own merit and according to his own wisdom without being influenced by any of the observations made hereinabove.
The judgement and/or order passed by the learned District Judge, Purba Medinipur which is impugned in this appeal is thus set aside.
The learned District Judge is thus requested to dispose of the said proceeding as early as possible but preferably within six months from the date of communication of this order.
The interim order which was passed by the Hon'ble Supreme Court will continue till the disposal of the revocation proceeding.
The appeal is thus allowed.
Re: CAN 9964 of 2014 (Injunction) In view of disposal of the appeal in the manner as aforesaid, no further order need be passed on the application for injunction. The said application being CAN 9964 of 2014 is thus deemed to be disposed of.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(JYOTIRMAY BHATTACHARYA, J.) ( DEBI PROSAD DEY, J. ) dc.