Calcutta High Court
Smt. Karunamoyee Sett And Ors. vs Smt. Lakshmi Rani Debi Alias Khudubala ... on 25 June, 1993
Equivalent citations: (1993)2CALLT177(HC), 97CWN1107
JUDGMENT M.G. Mukherji, J.
1. F.M.A. 130 of 1993 is directed against a judgment and order dated 25th September, 1992 passed by the learned District Delegate, Hooghly in Act XXXIX Case No. 149 of 1987. In this case, succession certificate has been granted in favour of the respondent.
2. The preliminary question that has been raised by the respondent in this appeal is with regard to the maintainability of this appeal purportedly filed Under Section 384 of the Indian Succession Act. The appellants contended that by virtue of the provision contained in Section 384 of the Indian Succession Act, subject to the provisions of this part viz. part X which deals with succession certificates, an appeal shall lie to the High Court from an order of a District Judge, granting, refusing or revoking a certificate.
3. Mr. Shyama Prassana Roychowdhury, Senior Advocate appearing for the appellants cited before us a Division Bench Judgment of our Court in Hirak Roy v. S. K. Roy and Ors. reported in 95 CWN 629 for the proposition that proceeding in respect of granting of probate and/or letters of administration is regulated, by virtue of the provision of Section 268 of the Indian Succession Act, by the Code of Civil Procedure, so far as circumstances of the case permit. This statutory provision is very wide. The legislature had intended that the Civil Procedure Code should be read with the Indian Succession Act mutatis mutandis and unless a particular provision specifically contained in the Code of Civil Procedure has been departed from in a probate proceeding, that is unless a special procedure is provided for separately under the Indian Succession Act, the provisions of the Code of Civil Procedure would apply. The District Delegate, however, functions within the framework of his delegated authority as conferred by the District Judge and if an order is passed by the District Delegate, such an order is subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure applicable to appeals. Mr. Roychowdhury further drew our attention to Bengal, Agra and Assam Civil Courts Act (Act 12 of 1887) and submitted that since District Delegates were deriving their authority from the District Judge himself, an appeal should lie to High Court. Furthermore even if it is construed that the District Delegate was virtually an Assistant District Judge still then according to the pecuniary jurisdiction an appeal above the value of Rs. 60,000/- would lie to this Court, since appeal only upto Rs. 60,000/- would lie to the District Judge by virtue of Section 21 of the Bengal, Agra and Assam Civil Courts Act as it stands amended today.
4. Mr. Sudhis Dasgupta, Senior Advocate appearing for the respondent submitted before us that here the Assistant District Judge was indeed vested with the jurisdiction of a District Delegate not by virtue of such a power being vested in him by an order of the High Court but it was so delegated to him by virtue of a gazette notification Under Section 388 of the Indian Succession Act. Here an inferior court so invested with powers to exercise the power of a District Judge for the purpose of chapter X dealing with succession certificate, even though having the concurrent jurisdiction with the District Judge, would be subject to the proviso to Sub-section (2) to Section 388 so that an appeal from any such order of an inferior court as mentioned in Sub-section (1) of Section 384 shall lie to the District Judge and not to the High Court. However, the District Judge may, if he thinks fit, by his order on the appeal make any such declaration and direction as Sub-section (1) of Section 384 authorises the High Court to make by its order on an appeal from an order by a District Judge. Mr. Sudhis Dasgupta contended that the ratio in Hirak Roy. v. S. K. Roy and Ors. (ibid) was correctly decided by the Division Bench since that was a proceeding gone into by the District Delegate in his capacity to dispose of a non-contentious matter in granting probate or letters of administration by virtue of such a delegation of powers by the District Judge as per the High Court authorisation. An Assistant District Judge while functioning as District Delegate in matters of granting letters of administration or probate in a non-contentious matter was deriving his functions within the framework by his delegated authority as conferred by the District Judge and in such cases an order passed by him is subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure applicable to appeals. However, in the present case an appeal would lie to the District Judge since here for the purpose of granting of succession certificate, the Assistant District Judge as District Delegate is an inferior court vested with the authority Under Section 388(1) of the Indian Succession Act and under proviso to Sub-section (2) of Section 388, an appeal will lie to the District Judge. In support of his contention Mr. Dasgupta cited before us the decision of our High Court in Binod Behari v. Bijoylaxmi and Ors. 85 CWN Page 1 which followed a previous Calcutta High Court Judgment in Radheshyam Basak v. Santosh Kumar Basak . Mr, Dasgupta also referred to us several decisions under the Succession Certificate Act. Referring to the provisions of Sections 18, 19, 21 and 23 of the Bengal, Agra and Assam Civil Courts Act, he contended before us that to the extent of incompatibility, the Indian Succession Act being a central statute and also a special statute should prevail over a State Act and a general statute as Bengal, Agra and Assam Civil Courts Act 1887. Bengal, Agra and Assam Civil Courts Act is a State Act even though of the year 1887. Mr. Dasgupta also pointed to various decisions of the different High Courts as well as of our High Court in 19 CWN 551 = 21 CLJ 154 (Sukhia Bewa v. Secretary of State for India in Council), (Mst. Bhanwar Bai and Ors. v. Balmukund and Anr.), 41 Indian Cases page 640 (Jagram Das v. Mangal Das), 21 Indian Cases 388 (Basti Begam v. Saulat Bahadur and Ors.), 16 CLJ 245 (The Rangoon Botatoung Co. Ltd. v. The Collector, Rangoon) and (Smt. Ganga Bai v. Vijoy Kumar and Ors.) in support of his contention which would not be necessary for us to discuss threadbare in this context. We hold that a District Delegate exercising powers under Part X of the Indian Succession Act, 1925 dealing with Succession Certificates, being invested with such powers Under Section 388 of the Act by State Government notification, even though his is a court inferior to that of a District Judge, is a different functionary from the District Delegate appointed Under Section 265 of the Act to grant probate and letters of administration in non-contentious cases, where the High Court grants such appointments. Hence this distinction keeping in view the statutory provisions of Section 388(2) proviso of the Act.
5. We are in agreement with the submission made by Mr. Dasgupta that in the facts of the present case, an appeal lies to the District Judge. We accordingly direct the learned advocate for the appellants to take back the memorandum of appeal in this matter and present it before the learned District Judge, Hooghly along with an application Under Section 5 read with Section 14 of Limitation Act, giving the appellants the liberty to explain the delay in such an anomalous position.
Let a xerox copy of this order be handed over to the learned advocates for the parties.
N.K. Bhattacharyya, J.
6. I agree.