Orissa High Court
Doughlas Garden Wilson vs None on 4 May, 2007
Equivalent citations: 2007(II)OLR180
Author: S. Panda
Bench: S. Panda
ORDER S. Panda, J.
1. Heard Mr. Das, learned Counsel for the petitioner.
2. This Civil Revision has been filed challenging the order dated 23.8.2003 passed by the District Delegate the learned Civil Judge (Senior Division), Bhubaneswar in Probate Misc. Case No. 8 of 2003 wherein he has rejected the petitioner's prayer to get a letter of administration from the Court.
3. The facts leading to the case are as follows:
Petitioner filed a Probate Misc. Case No. 2 of 1998 before the District Judge, Khurda through his power of attorney holder Shri Pradip Pradhan under Section 278 of the Indian Succession Act stating therein that the probate petition and the executor of the Will are Indian Christian. The grandmother of the petitioner Mrs. Gulbadin Harris, wife of late Samuel Harris of Jatni Town in the district of Khurda executed a registered Will before the Sub-Registrar, Bhubaneswar vide Registration No. 9 dated 6.8.1964 bequeathing her property as per schedule mentioned in the probate petition in favour of Carmel Harris and the petitioner. The Will as executed in presence of the attesting witness Sri Kapila Chandra Barik and Bibhuti Bhusan Samantaray. The same was typed by Sri Kishore Chandra Mishra. The testator had made equal distribution of property between Carmel Harris and petitioner in the aforesaid Will. After the death of Carmel Harris on 14.5.1994 the petitioner became sole executor of the Will. Carmel Harris was a spinster and she had no legal heirs. She had also not made any testamentary documents in respect to the scheduled property. Therefore, petitioner is only entitled to the relief claimed in the Probate Misc. Case No. 2 of 1998 in respect to the scheduled property. The power of attorney holder Sri Pradip Pradhan got the power of attorney executed in his favour by the petitioner on 26.2.1996 and basing upon such power of attorney, he filed the present probate misc. case for issue of letter of administration in his favour on the strength of such unregistered power of attorney.
4. It appears that the next kin of the executor of the said Will did not contest the petitioner's application for grant of probate.
5. The petitioner examined three witnesses to substantiate his plea.
6. Witness No. 1 is the power of attorney holder and witness No. 2 is the son of attesting witness Kapila Chandra Barik. The deposition of those two witnesses were recorded by the learned District Judge, Khurda. Thereafter the case was transferred to the District Delegate the learned Civil Judge (Senior Division), Bhubaneswar wherein the probate proceeding was renumbered as Probate Misc. Case No. 8 of 2003 and the learned Civil Judge (Senior Division), Bhubaneswar recorded the deposition of 3rd witness who is a family relation of the executor. The learned District Delegate has raised a doubt in the said misc. case that since there is no opposite parties the State of Orissa should have been made a party through Collector, Khurda. The evidence of P.W. 1, the power of attorney holder is highly suspicious and doubtful and as P.W. 3 has not disclosed about the identity of P.W. 2 who is a stranger to the document of Wilnama is totally unsafe to accept the evidence of attesting witness. Lastly, he has also raised a doubt to grant a letter of administration under the Indian Succession Act in favour of a power of attorney holder and the same can be granted only in whose favour the Wilnama is executed. It cannot be issued by the Court in favour of a power of attorney holder and on the above finding he has rejected the petition.
7. The petitioner contended that the District Delegate should not have dismissed the said application for grant of probate and if he had entertained any doubt in the matter of grant of probate, he should have referred the matter to the learned District Judge for disposal.
8. Sections 287 and 288 of the Indian Succession Act are as follows:
287. Power to transmit statement to District Judge in doubtful cases where no contention - In every case in which there is no contention, but it appears to the District Delegate doubtful whether the probate or letters of administration should or should not be granted, or when any question arises in relation to the grant, or application for the grant, of any probate or letters of administration, the District Delegate, may, if he thinks proper, transmit a statement of the matter in question to the District Judge, who may direct the District Delegate to proceed in the matter of the application, according to such instructions as to the Judge may seem necessary or may forbid any further proceeding by the District Delegate in relation to the matter of such application, leaving the party applying for the grant in question to make application to the Judge.
288. Procedure where there is contention, or District Delegate thinks probate or letters of administration should be refused in his Court. In every case in which there is contention, or the District Delegate is of opinion that the probate or letters of administration should be refused in his Court, the petition with any documents which may have been filed therewith, shall be returned to the person by whom the application was made in order that the same may be presented to the District Judge, unless the District Delegate thinks it necessary, for the purposes of justice, to impound the same, which he is hereby authorized to do; and, in that case, the same shall be sent by him to the District Judge.
9. In view of the aforesaid two sections it is amply clear that the District Delegate can grant probate or letters of administration if there is no contention and if the District Delegate entertains any doubt as to whether or not a probate should be granted or if in such matter he thinks it proper, then he may transmit the statement of the matter in question to the District Judge but he cannot reject the application for grant of probate if he has not satisfied that the applicant has made a case for grant of probate. The District Delegate should have returned the application for grant of probate along with documents for the purpose of presentation before the District Judge who, then, shall follow the procedure to proceed with hearing on merits in the matter of grant or refusal of probate or the District Judge on such reference may give such instruction to the District Delegate for the purpose of disposal of the application for grant of probate as may deem to the District Judge as just and proper. Therefore, the District Delegate in the present case for grant of probate acted illegally and without jurisdiction in rejecting the application of the petitioner. He should have returned the application for grant of probate along with the documents for the purpose of presentation before the District Judge. There is no provision for appeal from the order to be passed by the District Delegate even if the District Delegate rejects the application for grant of probate in contravention of Section 288 of the Indian Succession Act as has been done in the instant case.
10. In this circumstance, the 6rder passed by the District Delegate the learned Civil Judge (Senior Division), Bhubaneswar in Probate Misc. Case No. 8 of 2003 is set aside and the District Delegate is directed to return the application made by the petitioner for grant of probate along with documents that have been filed by the petitioner so that the same may be presented before the learned District Judge, Khurda for consideration on merits.
The Civil Revision is disposed of accordingly.
There will be no order as to cost.