Asit Dey vs Bratin Sarkar

Bhaskar Bhattacharya, J.—This revisional application is at the instance of the propounder of a will and is directed against order No. 27 dated September 8, 2000, passed by the learned District Delegate, South 24-parganas, Alipore in Act 39 Case No. 433/97(P) thereby allowing an application filed by the opposite party for recording objection to the grant of probate and returning the probate application to the Petitioner for presentation before the court of District Judge as the same had become contentious.

The present Petitioners filed an application for grant of probate before the learned district Delegate, Alipore thereby giving rise to Act 39, Case No. 433/ 97(P). In the said case, the opposite party entered appearance and filed an application thereby raising objection to the grant of probate. On such application being filed, the learned District Delegate returned the probate application to the filing lawyer for presentation before the learned District Judge.

Being dissatisfied, the applicants for grant of probate have come up with the instant application.

Mr. Roy, the learned Counsel appearing on behalf of the Petitioner has strenuously contended that the learned District Delegate ought to have held that the opposite party even on the basis of his own case was not entitled to oppose the grant of probate and as such the learned District Delegate ought to have proceeded to grant probate after rejecting the application filed by the opposite party. According to Mr. Roy, simply because the opposite party has come up with an application recording his objection to the grant of probate, that fact alone will not enable the learned District delegate to pass an order of return. Mr. Roy submits that it was the duty of the learned District Delegate to consider the objection raised by the opposite party on merit and to hold that he had not right to oppose the grant.

In support of the aforesaid contention, Mr. Roy places strong reliance upon a Division Bench decision of this Court in the case of In re: In Re: Mrs. Mira Roy, . In the said case of Mrs. Mira Roy, the wife of an executor filed an application 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 beneficiary under a previous will which she had alleged in the said revisional application to be in the custody of some other person. The learned District Delegate having rejected such application, a revisional application was preferred by the said Mrs. Mira Roy, the wife of the executor. It appears from the said decision that the Division Bench in the fact of the said case was of the view that the application was a mala fide one and the sole object of the applicant was to drag the proceeding for indefinite period of time. In the context of such a case the Division Bench was of the view that the learned District Delegate under the Act should not act mechanically as a post office but is required to apply his mind to satisfy himself as to the bona fide of the caveator. According to the said Division Bench decision, upon reading the application or objection of the party the learned District Delegate should be prima fade satisfied about the bona fide and locus standi of the caveator. The Division Bench, however, hastened to add that undoubtedly the jurisdiction to be exercised by the learned 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. (Emphasis supplied). Upon such finding, Division Bench refused to interfere with the order passed by the learned District Delegate as a revisional Court.

In my view, the said decision cannot be shown as an authority for the proposition that in every case whenever a person appears before a District Delegate and declares his intention to oppose a grant it is the duty of the learned District Delegate to make a tentative observation as regards his locus standi. It is how settled position of law that once a person appears and declares his intention to oppose the grant, it become contentious and it is the learned district Judge and not the learned District Delegate who is final authority to decide whether such person has really the locus standi to oppose such grant. Even, the decisions in the case of Nabin Chandra Guha v. Nibaran Chandra Biswas 36 C.W.N. 635 and in the case of Kartick v. Ranjita 1977 (2) C.L.J. 137 relied upon by the Division Bench in the case of Mrs. Mira Roy were given in the cases where the decisions passed by the learned District Judge as regards locus standi of the applicant were impugned. In the case of In re: Mrs. Mira Roy (Supra) the Division Bench in the fact of the said case refused to exercise its revisional power u/s 115 of the Code of Civil Procedure.

In the instant case, the learned District Delegate had decided to send the matter to the learned District Judge who is the final authority to decide whether the opposite party has really locus standi. Under such circumstances, even if I accept the contention of Mr. Roy that the learned District Delegate should have prima facie satisfied himself before returning the case, the said decision will not be final. Thus, no, useful purpose will be served by unnecessarily entertaining this revisional application and calling upon the opposite party to show cause why the order impugned should not be set aside. If this application succeeds the learned District Delegate will be asked to decide the aforesaid question only tentatively; even thereafter the opposite party can dispute the correctness of the said order. Therefore, the learned District Delegate having referred the matter to the learned District Judge for a final decision, this Court should not exercise its revisional power in such a case.

Thus, without going into the controversy whether the learned District Delegate should have prima facie arrived at such conclusion, in the fact of the present case, I am not inclined to entertain this application since all the points raised by the Petitioners in this application as regards the locus standi of the opposite party will be decided by the learned District Judge and the Petitioners will not be prejudiced in any way nor will they suffer any irreparable loss and injury if I do not interfere with the order passed by the learned District Delegate. I am not thus inclined to entertain this application. It is needless to mention that I have not gone into the question whether the opposite party No. 1 has really the locus standi to oppose the grant.

With the above observation, the revisional application is dismissed. Since the probate application is pending before the learned District Delegate from 1997, the learned District Judge or the learned Judge to whom the matter will be assigned is directed to dispose of the question of locus standi of the opposite party positively within a month from the date of communication of this order.