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Radheshyam Basak Vs. Santosh Kumar Basak and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 906 of 1974
Judge
Reported inAIR1977Cal17
ActsSuccession Act, 1925 - Sections 265, 372 and 388(1); ;Calcutta (West Bengal) Civil Rules, 1935 - Rule 317(1); ;Calcutta (West Bengal) Civil Order, 1935; ;Calcutta High Court (Appellate Side) Rules - Rules 7 and 9; ;Code of Civil Procedure (CPC) , 1908 - Section 115
AppellantRadheshyam Basak
RespondentSantosh Kumar Basak and ors.
Appellant AdvocateNirmal Chandra Chakraborty and ;Anil Bandhu Ray, Advs.
Respondent AdvocateAmar Prasad Chakraborty, ;Milan Ch. Bhattacharya and ;Benoy Kr. Banerjee, Advs. for Opposite Party No. 1
DispositionApplication dismissed
Cases ReferredTaylor v. Taylor
Excerpt:
- .....that 'the facts upon which the petition to this court was made, appear from the judgment of the learned district judge, and it was not necessary, therefore, for the petitioner to put in any affidavit in support of this application.'5. mr. chakraborty next refers to a decision reported in (1936) 40 cal wn 1408, (rajballav mandal v. rajendra narain mandal). in this case r. c. mitter, j. relying on (1905) ilr 32 cal 146 and (1908) 8 cal lj 308 held that 'as in the present case all the facts stated in the application are supported by the certified copy of the order-sheet which is attached to the application, no affidavit is necessary'. in this case also the petition of motion was not supported by any affidavit. considering the fact that in the present application the petitioner does not.....
Judgment:

N.C. Mukherji, J.

1. This Rule was issued on an application under Section 115 of the Code of Civil Procedure and is directed against order No. 14 dated December 8, 1973 passed by Sri A. N. Mitra, District Delegate (6th SubordinateJudge), Alipore, in Succession Certificate Case. No. 119 of 1973.

2. The facts of the case, however, cannot be gathered from the application. On going through the order it is seen that the petitioner filed an application under Section 372 of the Indian Succession Act praying for the grant of Succession Certificate in respect of the securities and debts due to the estate of the deceased Gopal Chandra Basak. The opposite parties filed a petition of objection. As such the matter became contested. The learned Court below after examining the oral and documentary evidence on record allowed the objection raised by the opposite parties and consequently the petitioner's application for grant of succession certificate was struck off. Being aggrieved by the aforesaid order, the petitioner has come up before this Court.

3. Mr. Amar Prasad Chakraborty, learned Advocate appearing on behalf of the opposite parties, takes a preliminary point to the effect that the application is not maintainable as the same is not supported by an affidavit. Mr. Chakraborty submits that according to the Appellate Side Rules every application before it is filed in Court will have to be presented before the Commissioner of Affidavits who will report as to the sufficiency of stamp and before whom the petitioner or any one authorised on his behalf will have to swear an affidavit about the correctness of the facts stated in the petition. In this case the application is not supported by an affidavit. It was not presented before the Commissioner of Affidavits. There is an endorsement at the bottom of the application by the learned Advocate to the effect that no affidavit is necessary. Mr. Chakraborty further submits that it was not within the rights of the learned Advocate to say whether an affidavit is necessary or not and as such the granting of the certificate by the learned Advocate cannot improve the matter. As the application has not been filed in accordance with the Appellate Side Rules this application should be rejected summarily.

4. Mr. Nirmal Chandra Chakraborty, learned Advocate appearing on behalf of the petitioner submits that in this application no fact has been stated. It has simply been stated that being aggrieved by the order No. 14 dated 8th December 1973 passed by Shri A. N. Mitra, District Delegate (6th Subordinate Judge), Alipore, in Succession Certificate Case No. 119 of 1973, the petitioner begs to move on the following amongst othergrounds on which the application has been moved. The petitioner has along with the application filed the certified copy of the impugned order in which all the facts of the case have been narrated in details. In such circumstances it is not at all necessary for the petitioner to swear an affidavit. In support of his contention Mr. Chakraborty first refers to a decision reported in (1908) 8 Cal LJ 308, (Mt. Kariman v. A. H. Forbes). In this case an objection was raised on behalf of the opposite party that the Rule ought not to be heard, inasmuch as the petition upon which it had been obtained is not supported by any affidavit. It is a Bench decision and Mukherjee J., who delivered a separate judgment, held 'I do not think that this contention ought to prevail, for, as pointed out by this Court in the case of Zamiran v. Fateh Ali, (1905) ILR 32 Cal 146,' when a petition to the High Court states facts which are matters of record and which are supported by copies of the order passed by the Court below, such a petition need not be supported by an affidavit'. His Lordship further held that 'The facts upon which the petition to this Court was made, appear from the judgment of the learned District Judge, and it was not necessary, therefore, for the petitioner to put in any affidavit in support of this application.'

5. Mr. Chakraborty next refers to a decision reported in (1936) 40 Cal WN 1408, (Rajballav Mandal v. Rajendra Narain Mandal). In this case R. C. Mitter, J. relying on (1905) ILR 32 Cal 146 and (1908) 8 Cal LJ 308 held that 'As in the present case all the facts stated in the application are supported by the certified copy of the order-sheet which is attached to the application, no affidavit is necessary'. In this case also the petition of motion was not supported by any affidavit. Considering the fact that in the present application the petitioner does not challenge any question of fact and that the only challenge is with regard to the jurisdiction of the Court below. We are of the opinion in view of the decisions referred to above, that the application under Section 115 though it is not supported by any affidavit is maintainable.

6. With regard to the merits Mr. Chakraborty submits that as the matter arose on an application under Section 372 of the Indian Succession Act and the matter was a contested one the learned District Delegate had no jurisdiction to dispose of the matter. Section 265 of theIndian Succession Act provides that 'The High Court may appoint such judicial officers within any district as it thinks fit to act for the District Judge as Delegates to grant probate and letters of administration in non-contentious cases, within such local limits as it may prescribe'. Sub-section (2) of the said section states that 'Persons so appointed shall be called District Delegates', The District Delegate has, therefore, no authority to dispose of any application in connection with the Succession Certificate whether it is contested or not. Chapter X of the Act deals with Succession Certificate cases. Section 388 provides that 'The State Government may, by notification in the official Gazette, invest any Court inferior in grade to a District Judge with power to exercise the functions of a District Judge under this Part'. Sub-section (2) of the said Section provides that 'Any inferior Court so invested shall, within the local limits of its jurisdiction, have concurrent jurisdiction with the District Judge in the exercise of all the powers conferred by this Part upon the District Judge, and the provisions of this Part relating to the District Judge shall apply to such an Inferior Court as if it were a District Judge'. Mr. Chakraborty contends with much force that it is only a District Judge or an officer empowered under Section 388 who can deal with the Succession Certificate cases. In the present case, the officer being a District Delegate had no jurisdiction to entertain a Succession Certificate Case. After we heard the case on 8th of July 1976 we felt it necessary to see the lower Court's records and as such we directed the office to call for the records. We further directed the learned District Judge to send a report stating whether on 8th December, 1973 Sri A. N. Mitra, Subordinate Judge. 6th Court, was empowered by any Notification of the State Government to deal with contested Succession Certificate Cases. The report of the District Judge has been obtained and by his letter dated 26th July, 1976 the District Judge writes to say that 'As per Rule 317 (1) of the Civil Rules and Orders--Volume I, two senior Subordinate Judges of 24-Parganas have been invested with the functions of the District Judge under Section 388(1) of the Indian Succession Act, 1925 within the local limits of Sadar Munsif of Alipore under the Government of West Bengal Judicial Department Notification No. 6244-J dated 13th July. 1927. On 8th of December, 1973 Shri A. N. Mitra was the SeniormostSubordinate Judge of the district and by an administrative order he was directed to exercise the function of the District Delegate under Section 388(1) of the Indian Succession Act, 1925 and to deal with the Succession Certificate Cases arising within Alipore Munsifi'. It is further seen from Civil Rules and Orders that 2 senior Subordinate Judges of the district have been empowered by the High Court to grant probate and letters of administration in non-contentious cases. Thus it is seen that this very officer Shri A. N. Mitra was a District Delegate within the meaning of Section 265 and he was also an officer empowered to exercise the functions of the District Judge under Section 388(1) of the Indian Succession Act. Mr. Chakraborty submits that even assuming that the learned Subordinate Judge had power to deal with the Succession Certificate Cases he did not exercise his jurisdiction in that capacity, but he exercised his jurisdiction as a District Delegate, and that being so, the order passed by the learned Subordinate Judge must be considered as having been passed without jurisdiction. Mr. Chakraborty refers to several decisions in support of his contention. The first case referred to has been reported in ILR (1940) 1 Cal 358, (Jhirighat Native Tea Co. Ltd. v. Bipul Chandra Gupta). In this case it has been held that 'If a Court holds that it has no jurisdiction to entertain a case or that the case is not maintainable, then it is not open to that Court to decide any other issue in the case. In such a case the pleading on which the case was started should be returned to the party who filed the same leaving it open to the proper Court to decide the other issues in the case'. We do not follow how the principle enunciated in this case applies to the present case. In the present case the Court was not of opinion that it had no jurisdiction to entertain the case.

7. Mr. Chakraborty next refers to a decision reported in (1885) 13 Ind App 134 (PC), (Ledgard v. Bull). In this case a suit was instituted in the Court of the Subordinate Judge, who was incompetent to try it, the same was transferred by consent of parties to the Court of the District Judge for convenience of trial. It was held that such transference was incompetent, and that such consent did not operate as a waiver of the plea to the jurisdiction which was taken in the defendant's written statement and subsequently insisted upon. This case also does not apply to the facts of the present case. In thepresent case the question of creation of jurisdiction by consent does not arise. The petitioner never raised the question of want of jurisdiction of the Court below.

8. Mr. Chakraborty next refers to a decision reported in (1886) 14 Ind App 160 (PC), (Meenakshi Naidoo v. Subramaniya Sasty). In this case it was held that 'the question of High Court's jurisdiction not having been raised before that Court, the right to raise it had not been waived. There was inherent in-competency in the High Court to deal with the question before it and consent could not confer on the High Court a jurisdiction which it never possessed'. This decision is only relevant in a case where it is found that the Court below had no jurisdiction to dispose of a matter which it did.

9. Mr. Chakraborty next submits that it cannot be said that though the learned Judge described himself as District Delegate and passed the order as such it will be deemed that he passed the order as an officer empowered under Section 388(1) of the Act. In support of his contention he refers to a decision reported in : AIR1974Bom281 , (Shankarrao Ramchandrarao v. Chatrapal Anandrao). It has been held in this case that 'A deeming fiction cannot be introduced by construction and it is the exclusive privilege of the Legislature to apply a deeming fiction in a given case.' We are quite in agreement with the principle laid down in this case.

10. The last case referred to by Mr. Chakraborty has been reported in : [1975]3SCR839 , (Ramachandra Keshav v. Govind Joti). At page 918 it has been held 'A century ago, in Taylor v. Taylor, (1875) 1 Ch D 426 Jessel M. R. adopted the Rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden'. We do not see how this principle applies to the present case. The only point that awaits decision in the present case is whether the officer, who was admittedly empowered under Section 388(1) of the Act to deal with the Succession Certificate Cases, acted without jurisdiction in passing an order, simply because he described himself as a District Delegate. In this case it may be noted that the letter of the District Judge dated 26th July 1976 stated that the Officer was directed to exercise the function of the District Delegate under Section 388(1) of the Indian Succession Act, 1925 and to deal with the Succession Certificate Cases, It should also be remembered that this very officer was also a District Delegate empowered as such under Section 265 of the Indian Succession Act.

11. For all the reasons stated above we have no hesitation to say that the order passed by the learned Court below cannot be said to have been passed without jurisdiction. The contention raised by Mr. Chakraborty fails. In the result, the application fails and the Rule is discharged. There will be however no order as to costs.

B.C. Ray, J.

12. I agree.


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