Mt. Daho Kuer vs Mt. Tural Dei

The petitioners in this case appealed to the District Judge for revocation of a Probate granted some time ago by that Court.

The District Judge, by his order of the 5th February 1924, transferred the case to the Additional District Judge for disposal under the following order:

Under Section 8(2) of the Bengal S.W.P. and Assam Civil Courts Act, the functions of the District Judge under the Probate and Administration Act and Indian Succession Act relating to grant and revocation to probate have been assigned to the Additional District Judge. Let this suit accordingly be sent to the Additional District Judge for disposal.

The petitioners objected to the trial of the case by the Additional District Judge upon the ground that the order passed by the District Judge transferring the case to the Additional District Judge was ultra vires and that the Additional District Judge had B o jurisdiction to try the case. This application was refused by the Additional District Judge, and consequently the petitioners moved this Court in revision.

The question before us is whether the Additional District Judge has power to deal with application for revocation of the probate in question. u/s 51 of the Probate and Administration Act (V of 1881) jurisdiction is conferred on the District Judge as regards the granting and revoking-of probate and Letters of Administration in all cases within his district. Section 51 of the Act defines "District Judge" to mean "the judge of a principal civil Court of original jurisdiction." The Bengal, Agra and Assam Civil Courts Act (XII of 1887) deals with the constitution of Civil Courts in Chapter II. As regards Additional Judges, provision is made in Section 8, Clauses (1) and (2) of the Act, which says:

When the business pending before any District Judge requires the aid of Additional Judges for its speedy disposal, the Local Government may, upon the recommendation of the High Court appoint such additional Judges as may be requisite.

Additional Judges so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to them, and, in the discharge of there functions, they shall exercise the same powers as the District Judge.

It is clear from the aforesaid provision that the Additional District Judge exercises with respect to the cases transferred to him by the District Judge the same powers as the District Judge. Now, a class of cases or a particular case may be transferred to the Additional District Judge for the reason that he is to relieve the District Judge of the burden on account of accumulation of cases. When the Additional District Judge takes seizin of a case upon a transfer made to him he becomes the "principal Civil Court of original jurisdiction." Therefore the Additional District Judge exercises the same powers and in fact occupies the position of a District Judge in the sense that it is defined in the Probates and Administration Act referred to above. When the function of a District! Judge under the Probate and Administration Act is transferred to an Additional District Judge he has the same jurisdiction as the District Judge with respect to the grant and revocati on of Probates and Letters of Administration. This is not seriously disputed, and in face of the statutory provisions and the authorities on the subject it cannot be seriously disputed.

Mr. Rai Guru Saran Prasad, however, contends that, although the Additional District Judge had jurisdiction in the matter of grant and revocation of probates and Letters of Administration, he had no jurisdiction even as regards the revocation of probates granted by the District Judge. The foundation of this argument is that the District Judge who grants probates and Letters of Administration should alone have power to revoke the same. There is no authority to support this proposition. The authorities cited go only to show that probates and Letters of Administration should not be allowed to be disputed in any other form but m the Court which granted it. Now, the probate in the present case was granted by the District Judge, and the District Judge had power to revoke it. It is not the personnel of the District Judge, but the presiding officer of the Court of the District Judge will have power to revoke it. By virtue of the transfer made by the District Judge to the Additional District Judge in the present case u/s 8 of the Bengal, Agra and Assam Civil Courts Act the Additional Judge becomes the District Judge for the purpose of exercising functions under the Probate and Letters of Administration Act. Therefore the contention of Mr. Rai Guru Saran Prasad must fail.

The following cases, namely, Behari Basak v. Akhil Chandra Santra 1923 Cal. 469, Jogesh Chundra Sanyal v. Rasik Lal Saha 50 Ind.Cas. 690 and Makhan Lal v. Sri Lal [1912] 34 All. 382 show that in other statutes, such as the Bengal Tenancy Act the Land Acquisition Act and the Insolvency Act, the Additional District Judge exercises the powers of a District Judge in respect of cases transferred to him although the provisions in the particular Act state that the particular function should be exercised by the District Judge. It appears to us that the question raised by Mr. Rai Guru Saran Prasad can be answered by a reference to the reasons given in the order of reference in the Full Bench case of Rup Kishore Lal v. Jaijai Bibi [1915] 42 Cal. 842. Those reasons were accepted by the Full Bench, the judgment of which was delivered by Sir Lawrence Jenkins, C.J. The cases referred to by Mr. Rai Guru Saran Prasad Mayho v. Williams 2 N.W.P. 268, Komollachun Dutt v. Nilruttun Mundle [1879] 4 Cal. 360 and Mohendra Narain Roy In the goods of 5 C.W.N. 377 only show, as has already been said, that the Court which grants a probate should have power to revoke it. The order in the present case passed by the District Judge and quoted above shows that the functions of the District Judge with respect to the Probate and Administration Act were generally transferred to the Additional District Judge, and as a part of that arrangement the present case was also sent to the Additional District Judge for disposal. The order purports to have been passed u/s 2 of the Act and is a valid order.

We, therefore, dismiss this application with costs.