Calcutta High Court (Appellete Side)
Debasish Sen vs Dharamdas Das And Others on 24 February, 2017
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1 Serial 34.
February 24, 2017 SG CO 3132 of 2016 Debasish Sen versus Dharamdas Das and others Mr Asit Baran Raut Mr Tuhin Subhra Raut ... for the petitioner.
The opposite parties are not represented despite due service.
The petitioner questions the propriety of an order dated May 7, 2016. The petitioner had applied under Section 263 of the Succession Act, 1925 for the revocation of a probate granted by the District Delegate, Hooghly. The petition for revocation was entertained and oral evidence was directed to be received in course of the trial. However, on the day that the first witness for the petitioner herein was to be examined, the District Delegate referred to Section 424 of the Indian Succession Act to hold that the petition for revocation of the probate was not maintainable. It is necessary to see the entirety of the order impugned:
"Petitioner and O.P. file haziras through their respective Ld. Advocates. Affidavit in Chief U/order 18 Rule 4 C.P.C. tendered by one witness-Petitioner Adit Kumar Sen and the same be kept with the record.
"Today is fixed for evidence of P.W.-1. The case is taken up for hearing. It appears from the revocation petition that the petitioner prays to revoke the grant of probate certificate issued in favour of the Dharamdas Das by this court on 21-05-2008 in Probate Case No.19 of 2004 and the certificate was sealed and signed on 25-07-2008 by my predecessor.
"Considering the facts and circumstances, under provision under Sec.424 of the Indian Succession Act, the revocation must be ordinarily 2 made by the same Judge who granted the certificate, if he is still in the District. But the Judge, who granted the Probate certificate was transferred from this station, the instant case is not triable by me.
"Hence it is, ORDERED that the application for revocation being not maintainable as per law, let the original revocation application, affidavit of assets, vokalatnama and death certificate be made over to the petitioner to represent the same before proper forum."
To begin with, the Succession Act does not have any more than 392 sections. Further, if the probate is granted by a court, it is such court which has to hear the petition for revocation of the grant. There is no doubt that the District Delegate, Hooghly had granted the probate, as is evident from the order impugned itself. In such circumstances, the petition for revocation had to be carried to the same court. The order impugned is not only erroneous, it is absurd and ludicrous. Apart from the reference to a provision that may not exist, there does not appear to be any reason or rationale in the order.
The impugned order dated May 7, 2016 is set aside and the District Delegate, Hooghly is directed to consider the petition for revocation of grant and dispose of the same in accordance with law as expeditiously as the business of that court would permit and, preferably, within eight months of the receipt of a copy of this order.
The nature of the order impugned is so alarming that appropriate action should be taken against the judicial officer.
Let a copy of this order be placed before the Hon'ble the Acting Chief Justice for an appropriate decision to be taken in respect of the judicial officer by the High Court on its administrative side.
3CO 3132 of 2016 is allowed as above, but without any order as to costs.
(Sanjib Banerjee, J.)