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Orissa High Court
Doughlas Garden Wilson vs None on 26 March, 2008
Equivalent citations: 105 (2008) CLT 844, 2008 I OLR 823
Author: S Panda
Bench: S Panda

JUDGMENT

Sanju Panda, J.

1. This is an application to recall/review the order dated 4.5.2007 passed in CRP No. 319 of 2003. In the aforesaid Revision the petitioner challenged the order dated 23rd August, 2003 passed by the learned Civil Judge (Senior Division), Bhubaneswar in Probate Misc. Case No. 8 of 2003 as a District Delegate dismissing the petitioner’s prayer for grant of probate on the ground of maintainability in view of Section 287 of the Indian Succession Act, 1955 as there is no contention, as to transmit.

2. Learned counsel appearing for the petitioner has fairly submitted that Section 18 of the Orissa Civil Courts Act, 1984 provides for a proceeding under the Indian Succession Act, 1925 and as per the said Section, the Civil Judge has the jurisdiction to consider the dispute. Since the civil revision was disposed of with a finding that the Civil Judge has no jurisdiction to dispose of the non-contention matter, the same is an error apparent on the face of the record which may be reviewed even though the order dated 4.5.2007 was passed in favour of the petitioner. Learned counsel for the petitioner further submitted that it is his duty to point out the clear position of the law. From the above submission of the learned Counsel for the petitioner and after examining the materials, it is revealed that earlier this Court issued a Notification dated 2nd November, 1961 in exercising the power conferred by Section 23 of the Bengal, Agra and Assam Civil Courts Act, 1887 (Act 12 of 1887) and authorized the Courts of all Principal Subordinate Judges to try and dispose of proceedings for grant of probates and letters of administration under the Indian Succession Act, 1925 (Act 39 of 1925).

3. For better appreciation, the Notification Dated 22nd November, 1961 is extracted hereunder;

NOTIFICATION
The 22nd November, 1961

No. 159A.. In exercise of the powers conferred by Section 23 of the Bengal, Agra and Assam Civil Courts Act, 1887 (Act 12 of 1887), the High Court are pleased to authorize the Courts of all Principal Subordinate Judges to try and dispose of proceedings for grant of probates and letters of administration under the Indian Succession Act, 1925 (Act 39 of 1925), transferred to their files by the District Judge.

By order of the High Court
Sd/-

4. The Bengal, Agra and Assam Civil Courts Act, 1887 (Act 12 of 1887) was repealed when the Civil Courts Act, 1984 came into existence. Section 25 of the Orissa Civil Courts Act, 1984 provides for a saving clause. In view of Section 25(2) which begins with a non-obstante clause and as per the said Sub-section, even though the earlier Act was repealed, the notification and rules framed under the earlier Act are deemed to have been made under the Act, 1984. Thus, the High Court has earlier authorized the principal subordinate judges to try and dispose of all the proceedings under the Indian Succession Act, 1925 and the said notification was continuing even after the Civil Courts Act, 1984 came into force.

5. The learned Counsel for the petitioner submitted that this Court in the case of Lokanath Bhoi v. Gaya Prasad Bhoi and two Ors. reported in 2004 (II) CLR 108 : 2004 (Supp.) OLR 606 held that the Civil Judges (Principal Subordinate Judges and Munsifs) within the local limits of their respective jurisdiction have been authorized to entertain such applications within the limits of their respective pecuniary jurisdiction. The State Government as per the Law Department’s Notification dated 14.11.1961 have invested the power under Chapter-X of the Succession Act to dispose of the cases under the Indian Succession Act.

6. The learned Counsel appearing for the petitioner further submitted that in the aforesaid decision, the Civil Judges (Principal Subordinate Judges and Munsif) are only empowered under Chapter-X of the Indian Succession Act to dispose of the dispute between the parties and as the present dispute is coming under Chapter IV, the learned Civil Judge has no jurisdiction to dispose of the case specially when there is no contention/no opposition. The aforesaid question is no more res integra in view of the High Court Notification dated 22nd November, 1961. The position is very clear. Thus, the order passed by this Court on 4.5.2007 suffers from the error apparent on the face of the record. In view of the above notification, it is clear that under the Indian Succession Act, 1925 the Civil Judge (Senior Division) can grant probate or letter of administration if there is no contention and also if the same is transferred to him by the District Judge in view of Section 18(1) of the Orissa Civil Courts Act, 1984. The aforesaid notification was not brought to the notice of the Court when the civil revision was heard. Thus, the recall/review petition is allowed. The order dated 4.5.2007 passed by this Court in CRP No. 319 of 2003 is recalled.

7. Considering the aforesaid notification, this Court holds that the District Delegate i.e. learned Civil Judge (Senior Division), Bhubaneswar has the jurisdiction to decide the proceeding after the same was received on being transferred. This Court, therefore, is not inclined to interfere with the impugned order dated 23rd August, 2003 passed by the learned Civil Judge (Senior Division), Bhubaneswar in Probate Misc. Case No. 8 of 2003. No costs.

8. The Civil Revision has no merit and the same is accordingly dismissed. No costs.


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