JUDGMENT
Kamlesh Sharma, J.
1. The appellant-applicant Atma Ram and respondent-Asha Ram are sons, respondent-Janki is the widow and respondents 3 to 8 are daughters and grand sons of late Shri Laturia.
2. This appeal is directed against the judgment dated 24-2-1986 passed by Senior Sub-Judge, Bilaspur exercising the delegated powers of District Judge, Bilaspur whereby the application of the appellant-applicant for granting him probate for Will Ex. PA was partly allowed to the extent of 1/8 share in the amount of Rs. 17,012-55 paise lying in Savings Bank Account No. 520541 and Time Deposit Account No. 7510084 at Branch Post Office Jejawin in the name of late Shri Laturia.
3. The Senior Sub-Judge, Bilaspur has also ordered grant of probate in favour of respondents 1/8 share each in the amount of Rs. 17,012-55 paise lying in deposit in the said accounts. However, record shows that only respondent No. 2, Asha Ram had furnished the requisite stamps for drawing succession certificate which was issued to him on 19-4-1986 authorising him to withdraw 1/8 share of the amount of said accounts.
4. We have heard learned counsel for the
parties and also gone through the record.
5. This appeal can be disposed of on the sole ground urged by Shri Ankush Sood, learned counsel for the. appellant-applicant that Senior Sub Judge in his capacity as District Delegate had no power to grant probate in the present case as it was contested by rcspondent-Asha Ram by filing written statement and thereafter by giving evidence to oppose grant of probate to the appellant-applicant on the allegations that the Will Ex. P.A. does not pertain to the amount of said accounts which is to be succeeded by all the natural heirs of late Shri Laturia.
6. It is not in dispute that Senior Sub Judge was delegate of District Judge appointed under Section 265 of the Indian Succession Act, 1925 (heerinafter referred to as ‘the Act’), which clearly stales that appointment of District Delegate is made to grant probate and letters of administration in non-contentious cases. It has been further made clear under Section 286 of the Act that a District Delegate shall not grant probate or letters of administration in any case in which there is contention as to the grant, or in which it otherwise appears to him that probate or letters of administration ought not to be granted in his Court. It is provided in the explanation to Section 286 that word ‘Contention’ means the appearance of any one in person, or by his recognised agent or by a pleader duly appointed to act on his behalf, to oppose the proceeding.
7. Further, Section 288 of the Act prescribes the procedure where there is contention, or District Delegate thinks probate or letters of administration should be refused in his Court. It runs as under :–
“In every case in which there is contention, or the District Delegate is of opinion that the probate or letters of administration should be refused in his Court, the petition, with any documents which may have been filed therewith, shall be returned to the person by whom the application was made, in order that the same may be presented to the District Judge, unless the District Delegate thinks it necessary, for the purposes of justice, to impound the same, which he is hereby authorised to do; and, in that case, the same shall be sent by him to the District Judge.”
8. Bare perusal of Sections 265, 286 and 288 of the Act leaves no doubt that whenever there is
contention in an application for probate, the District Delegate has no jurisdiction to proceed with the matter and he should return the application to the applicant for presenting the same to the District Judge. Coming to the present case, there cannot be any dispute that the moment respondcnt-Asha Ram had put in appearance and filed the written statement to oppose the grant of probate in favour of appellant-applicant Atma Ram, the matter became contentious and the Senior Sub Judge in his capacity as District Delegate had no jurisdiction to proceed with the trial of the application and the proper course for him was to return the application to the appellant-applicant Atma Ram for presenting the same to the District Judge.
9. The result of this discussion is that we accept this appeal and set aside the impugned judgment dated 24-2-1986 and remand this case to the Senior Sub Judge, Bilaspur with the direction to proceed in accordance with law in the light of the observations made herein above. The succession certificate received by respondent-Asha Ram will be deposited by him in the Court of Senior Sub Judge, Bilaspur on the next date of hearing. In case respondent Asha Ram has withdrawn his share of the amount of accounts in question on the basis of succession certificate, he will deposit the same on or before next date of hearing. On deposit, the amount will be sent to the Registry of this Court which will be invested in fixed deposit receipt for a period of 37 months. The parties are directed to appear before the Senior sub Judge, Bilaspur on 28th April, 1997.
10. Before we part with this case, we may point out that in pursuance to our order dated 8-1-1997, an amount of Rs. 25,545-95 paise was received from Post Master, Bilaspur which has been invested in fixed deposit receipt from time to time, which is due to expire on 22nd July, 1997. Therefore, we direct that the fixed deposit receipts will be renewed for a further period of 37 months from the date of maturity i.e. 22nd July, 1997 and its disbursement will be in accordance with law after the parties get their respective claim(s) divided in accordance with law. No costs.