Mathoram Boro vs Mt. Sundari Kacharini

Deka, J.—This is a petition of revision challenging the validity of the order dated 7-3-51 in Miscellaneous Case No. 47 of 1950 passed by Mr. D.N. Hazarika, Subordinate Judge, L.A.D., acting as a District-delegate whereby he revoked the Letters of Administration issued to the Petitioner Mathoram Boro on a petition filed by Musst. Sundari Kacharini, the opposite party in this case. The dispute was with regard to Letters of Administration issued at the instance of Mathoram Boro with respect to certain properties left by late Duar Ram Boro by a Will alleged to be executed by him. Mathoram Boro is stated to be the brother''s son of late Duar Ram Boro and the objectrix Sundari Kacharini is the testator''s daughter, Sundari''s objection was that she got no notice of the probate proceeding and that the grant of Letters of Administration of the Will by the District-delegate was improper as the proceeding was defective. She denied the existence of the Will.

The Miscellaneous case was registered on the basis of this petition, by the District-delegate and notice was served on Mathoram Boro to show cause why Letters of Administration granted to him should not be revoked. Mathoram Boro opposed this petition of objection and the matter proceeded as contentious one. On 2-12-50 the learned Subordinate Judge who was acting as the District-delegate u/s 265, Succession Act, granted adjournment of the proceeding at the in-stance of Mathoram Boro on condition of pre-payment of Rs. 10/- as adjournment cost.

On 7-3-51, when the matter came up for hearing, Mathoram was absent, but he was represented by an Advocate who was not allowed to appear in the case by the learned Subordinate Judge because of the non-payment of the adjournment cost as granted by his order dated 2-12-50. The proceeding was heard ex parte and after examining only one witness for the objectrix, the learned Subordinate Judge allowed Sundari''s petition and revoked the Letters of Administration granted to Mathoram Boro and directed the Deputy Commissioner of Kamrup to bring back the Letters'' of Administration from Mathoram Boro through Officer-in-charge of Nalbari Police Station. This petition is against this order.

Nobody appears on behalf of the Opposite Party in this matter. The learned Advocate for the Petitioner urges before me that the learned Sub-ordinate Judge acting as District-delegate u/s 265, Succession Act had no jurisdiction to entertain the application for revocation of the Letters of Administration. The power is solely enjoyed by the District Judge as enjoined by Section 264, Succession Act, which says that it is only the District Judge who has jurisdiction in granting as well as in revoking probates and Letters of Administration in all cases within his district. According to the learned Advocate, all the Sub-ordinate Judges acting as District-delegates only enjoy the power of granting probates and Letters of Administration in non-contentious cases with-in'' the local limits as might have been described. In this case, it is not denied that the Subordinate Judge had jurisdiction to issue Letters of Administration as the matter was non-contentious at that stage but when the objection was filed on be half of Sundari, it was for the Subordinate Judge to send the application to the Court of the District Judge to treat the matter as contentious one. Another contention raised on behalf of the Petitioner is that even if the Letters of Administration were revoked the proceeding ought not to have been terminated there but the original proceeding for Letters of Administration should have been revived and forwarded to the District Judge as contentious matter, for adjudication.

After hearing the learned Advocate and going through the relevant sections of the Indian Succession Act, I find that the District-delegate has only limited power as has been contended by the Petitioner of granting probates and Letters of Administration in non-contentious cases alone. Section 264, Succession Act having definitely laid down that the power of revocation of Letters of Administration lies in the District Judge alone and the District-delegate not being mentioned in that connection, it is reasonable to hold that the District-delegate had no authority either to entertain an application for revocation of the Letters of Administration of the Will in any case or to grant it--when the matter was a contentious one. In this view, the learned Subordinate Judge acted without jurisdiction in granting the order of revocation moved against and it must therefore be set aside. I, accordingly, direct that the order dated 7-3-51 passed by the Subordinate Judge, L.A.D., be set aside and the miscellaneous proceeding be revived and transferred to the District Judge along with the record of the case ''for grant of Letters of Administration. It would be for the District Judge to dispose of the matter as provided under the law. In view of the fact that there has been no appearance on behalf of the opposite party, I make no order as to costs. The Rule is made absolute. B/D.H.Z. Rule made absolute.