Calcutta High Court
In Re: Mrs. Mira Roy vs Unknown on 13 May, 1992
Equivalent citations: (1992)2CALLT182(HC), 96CWN1082
JUDGMENT
1. This revisional proceeding raises a question of first impression.
2. One Smt. Giribala Devi died testate, leaving a will whereby she had nominated her grandson, Sri Hirak Roy, as the sole executor. On or about 3.11.83 the said executor applied for probate, giving rise to the instant probate proceeding, before the learned District Delegate, 24-Parganas. It is unfortunate that the said probate proceeding remained pending only for the purpose of valuation report of the Collector for more than 8 years. During the pendency of the said proceeding there were various litigations, going upto the Hon'ble Supreme Court, as off shoots of the said probate proceeding. The Hon'ble Supreme Court, however, by its order dated 18.11.91 issued a mandate for disposing of the probate proceeding within a period of two months. The learned District Delegate fixed up the hearing of the probate matter on 3.1.92, when two applications were filed before him-one by the executor praying for leave to amend the probate application by incorporating 17 names including one of the executor's wife, 16 out of the said 17 persons, that is, all except the executor's wife, the petitioner before us, proposed to be added to the probate proceeding, appeared in Court and expressed their consent to the grant of probate. The wife of the executor, Mrs. Mira Roy, filed a so called caveat expressing her intention to oppose the grant of probate and prayed for conversion of the probate proceeding into a contentious case. She, inter alia, pleaded, in her application, that she was a beneficiary under a previous will, which, she has now alleged in this Revisional Court, to be in the custody of one of the said 16 persons. The learned District Delegate having rejected her application, the present revisional application has been preferred on her behalf.
3. Before us detailed submissions have been made by the learned Advocates for the contesting parties and the question, which we are invited to decide, upon consideration of such submissions, relates to the scope, extent, authority and jurisdiction of the District Delegate in terms of Section 283 of the Indian Succession Act. It has been contended on behalf of the revisional petitioner that as soon as caveat is filed, constituting a contest within the meaning of explanation to Section 283 of the Indian Succession Act viz., appearance for the purpose of opposing the grant of probate, the proceeding for grant of probate becomes a contentious one and the learned District Delegate loses jurisdiction to deal with it in any manner save by transferring the same for adjudication by the learned District Judge. On behalf of the contesting parties, who are beneficiaries under the present will, it has been urged that mere appearance for the purpose of opposing the grant of probate does not divest the District Delegate of the jurisdiction, atleast, to decide about the bona fides of such opposition, which necessarily involves the question of locus standi of the objector or caveator.
4. We have considered the rival submissions carefully and we are of the view that the submissions of Mr. Deb have no substance. The very fact that District Delegate can be no other person than a Judicial Officer (vide Section 265 of the Indian Succession Act) is on index of the legislative intent that the functionary must not act mechanically as a post office but one, who would be having ability to apply his mind to satisfy himself as to the bona fides of the caveator. It needs no emphasis that since a contentious proceeding requires longer time than a non-contentious one and secondly that the implementation of the will of the testator must be expedited as far as practicable, the legislature has created a separate forum for non-contentious cases. If the District Delegate is held to be a mere post office, as soon as a proceeding assumes or is given the appearance of contentious case compelling such District Delegate to transfer it to the learned District Judge, the legislative intent will be frustrated. This conclusion derives support from the provisions of some other sections of the Indian Succession Act, following Section 283, indicating that the District Delegate has liberty to invoke his process of reasoning for the purpose of making a reference even in a non-contentious case. Such interpretation and conclusion do not cause any prejudice to any of the parties involved in the contest. A mechanical action on the other hand may impede flow of justice. Undoubtedly the jurisdiction to be exercised by the District Delegate would be a restricted and limited one in the sense that whatever view he takes or opinion he forms would be prima facie and tentative in nature. Upon reading the application or objection of the caveator, he should derive a prima facie satisfaction about the bona fides and locus standi of the caveator.
5. In the instant case, we have already summarised the relevant facts, which without any further effort, reveal how the proceeding has been dragged for 9 years ultimately requiring mandate from the Supreme Court for its expeditious disposal, such mandate again, would be frustrated if any contrary interpretation and conclusion about the extent of power vested in the District Delegate in the context of Section 283 of the Indian Succession Act, are made. Here reference to an earlier will, without any details thereof indicating as to how the applicant/revisional petitioner would be benefitted therefrom, cannot be said to be sufficient material for treating the proceeding as a contentious one. In other words, in the absence of such particulars, it is difficult to accept the bona fides of the opposition or objection to the grant of probate. At best, it may indicate, to restate the language from the decision in the case of Crispin v. Doglioni noticed with approval by a Division Bench of this Court in the case of Nabin Chandra Guha v. Nibaran Chandra Biswas, reported in 36 CWN 635, which again was followed by another Division Bench of this Court in the case of Kartick v. Ranjita reported in 1977(2) CLJ 137, not possibility of an interest but possibility of a party filling a character, which would give him an interest in the result of setting aside a will-which is not sufficient to establish locus standi of the caveator.
6. For the reasons aforesaid as also in the fact of the present case and upon scrutiny of the findings of the learned Trial Judge, we do not propose to interfere with the impugned order in exercise of our discretion as Revisional Court.
7. The revisional application is, therefore, dismissed. There will be no order as to cost.
8. If urgent certified copies are applied, the department is directed to deliver the same to the party-applicant within 10 days of the deposit of the requisite stamps and folios.