Orissa High Court

Upendra Kumar Mohapatra And vs Pradip Kumar Mohapatra And Others on 3 June, 2025

Author: B.P. Routray

Bench: B.P. Routray

Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Designation: A.R.-Cum-Sr.Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 03-Jun-2025 15:23:17


                                        IN THE HIGH COURT OF ORISSA AT CUTTACK

                                                           FAO No.395 of 2018

                                 (From the judgment dated 30.1.2018 passed by the learned 2nd Addl.
                                 Senior Civil Judge, Bhubaneswar, Khurda in C.S.No.456/2012(T))


                                  Upendra     Kumar       Mohapatra    and
                                  another                                    ....            Appellants

                                                                         -versus-
                                  Pradip Kumar Mohapatra and others          ....          Respondents


                                 Advocate(s) appeared in this case:-

                                            For Appellants     : Mr. R.Mohanty, Sr. Advocate

                                            For Respondents    : Mr. B.Bhuyan, Sr. Advocate


                                              CORAM: JUSTICE B.P. ROUTRAY
                                                              JUDGMENT

3rd June, 2025

B.P. Routray, J.

1. Present appeal is directed against the order of dismissal passed in Probate Proceeding.

2. The Appellants being the plaintiffs filed Test Case No.16/ 2006

before the Court of learned District Judge, Khurda at Bhubaneswar

praying for Probate of Registered Will No.101 dated 9th November

2004 executed in their favour by their grandfather, late Abhiram

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Moharapatra. Respondent No.2 to 4 are the daughters of Abhiram

Mohapatra and Respondent No.1 is his only son. Plaintiffs are the sons

of Respondent No.1. Abhiram Mohapatra died on 2nd May 2005.

According to the plaintiffs, late Abhiram Mohapatra bequeathed his

entire 1/4th share, which was determined falling in his favour as per the

decree passed in partition suit in O.S.No.24/13 of 1981/1979 between

the four brothers - Abhiram, Parsuram, Abakash and Bijay Ram - sons

of Hrusikesh Mohapatra, in favour of the plaintiffs-Appellants. The

Probate Court, i.e. 2nd Addl. Senior Civil Judge, Bhubaneswar did not

believe the contentions of the plaintiffs and accordingly refused to

Probate the Will in their favour. Said impugned judgment of 2nd Addl.

Senior Civil Judge is under challenge in the present appeal.

3. Before delving into the factual merits of contentions of the

parties, it is important to note here that the Appellants do not question

the impugned judgment on merits but limits their challenge as to the

jurisdiction of learned 2nd Addl. Senior Civil Judge as to his

competency to decide the Probate Proceeding. Mr. Mohanty, learned

Senior Counsel appearing for the Appellants confines his challenge to

this technical aspect only with further submission to reserve his right

regarding challenge of factual merits.

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4. It is submitted on behalf of the Appellants that a Probate

Proceeding instituted before the learned District Judge and delegated to

the Court of Principal Senior Civil Judge cannot be further sub-

delegated to the Court of Addl. Senior Civil Judge by the Principal

Senior Civil Judge. That apart, the District Delegate Court can only

decide the non-contentious Probate Proceedings and as per the

provisions under Section 286 of the Indian Succession Act 1925, the

District Delegate cannot grant Probate when there are contentions as to

the grant of the Probate and in such cases the District Delegate Court

has to proceed in terms of the provisions of Section 288 of Indian

Succession Act 1925 to return the proceeding to the Court of District

Judge. Since in the instant case, Respondent No.2 to 4, who are

daughters of the alleged testator, have entered to contest the very

execution of the Will in question, the District Delegate more less the

Addl. Senior Civil Judge, is ousted of the jurisdiction to decide on the

question of grant of Probate. It is the only District Judge, who is

authorized in such matters of grant of Probate involving contentious

issues, and not the District Delegate.

5. This submission of the Appellants is countered by Respondent

No.2 to 4 on the ground that since the Appellants did not raise their

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objection before the Addl. Senior Civil Judge with regard to his

jurisdiction at the earliest, the Appellants are precluded from raising

such objection before the Appellate Court. To support their contention,

Respondent No.2 to 4 take aid of provisions contained in Section 21 of

the Civil Procedure Code. It is further submitted that as per the

provisions contained in Section 2(b) of the Odisha Civil Courts Act,

the Civil Judge (Senior Division) includes Addl. Civil Judge (Senior

Division). Therefore, the submissions put-forth by the Appellants on

the question of jurisdiction of Addl. Senior Civil Judge, be whatever

may is it, is not sustainable in the eye of law to fault the judgment of

the 2nd Addl. Senior Civil Judge on this aspect at the present stage.

6. As stated earlier, the question raised in the present appeal is with

regard to said technical aspect on the jurisdiction of learned Addl.

Senior Civil Judge to entertain the Probate Proceeding. From the

submissions and counter submissions of the parties, the points fall for

determination, are as follows:

(i) Whether under the provisions of the Indian Succession Act, 1925, the jurisdiction to grant Probate in respect of a Will can be exercised by a Delegate Court when the case becomes contentious and further, whether such District

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Delegate Court has the power to Sub-Delegate it to another Court amid the trial ?

(ii) What is the duty of the Delegate Court when the proceeding turns as contentious as per the provisions of Chapter-IV of the Indian Succession Act, 1925?

(iii) Whether such question of initial jurisdiction can be raised in appeal when such particular contention was not raised before the trial court at the first instance?

7. To get answers, the provisions contained in Chapter IV of Part

IX of the Indian Succession Act, 1925 are to be looked into at the

outset. Chapter IV prescribes the practice and procedure in

granting/revoking Probates and letters of administration.

Section 264 confers jurisdiction on the District Judge in granting

and revoking Probate and Section 266 speaks of powers of District

Judge as to grant of Probate and administration. Section 265 confers

power on the District Judge to appoint delegate to deal with non-

contentious cases. Section 276 speaks of contents of the petition for

Probate and Section 283 delegates the power of the Court. Sections

286 and 288 read as follows:

"286. District Delegate when not to grant probate or administration- 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.

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Explanation.-"Contention' means the appearance of anyone in person, or by his recognized agent, or by a leader duly appointed to act on his behalf, to oppose the proceeding.

xxx xxx xxx

288. Procedure where there is contention, or District Delegate thinks probate or letters of administration should be refused in his Court.- 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 authorized to do. And, in that case, the same shall be sent by him to the District Judge."

8. A thorough analysis of all such provisions contained in Chapter-

IV of Part IX of the Indian Succession Act, gives an unambiguous

theory that when the District Delegate Court has no authority to deal

with the contentious issues raised in the Probate Proceeding and in

such event when the case turns to be a contentious one, it has to be

returned to the Presentor along with all the testimonials in order to

make him present to the District Judge again or in other words, it is to

be returned to the District Judge where the District Judge has to

proceed in terms of the provisions contained in said Chapter.

In P.J.Francis vrs. P.L.Verghese, (1956) 2MLJ 288, it has been

stated that,

"4. This Court, in pursuance of that power, issued a notification in 1939 to the effect that all Subordinate Judges do take cognizance of any proceedings under the Indian Succession Act, 1925 which cannot be disposed of by District Judges, It is

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probably on the strength of this notification that the Subordinate Judge felt that he was clothed with authority. But the difficulty is that it is not open to the High Court to issue any notification which is contrary to the provisions, of Section 265(1). That being the case no notification issued by the High Court could clothe a Subordinate Judge as a delegate of the District Judge to issue letters of administration in contentious matters. There is no doubt whatever that the case in question is a contentious one. Such being the case when once a contest is raised with regard to an application for letters of administration, the duty of the Subordinate Judge was to have returned it for presentation to the proper Court on the ground that he had no jurisdiction. That procedure has not been followed in this case. As Mr.Raghavan says it is due to the fact that, through in vague terms the objection to jurisdiction was taken in the counter, it does not seem to have been made the subject-matter of an issue for decision or argued before the learned Subordinate Judge. But the fact that the parties did not raise the question as to want of jurisdiction or even acquiesced in the jurisdiction of a Court would not confer on the Court a jurisdiction which it has not See the decision of the Privy Council in Ledgard v. Bull I.L.R.(1886) All. 191 (P.C.) and in Minakshi v. Subramaniya MANU/PR/0040/1887."

9. In respect of our High Court, there is a notification dated 22nd

November 1961, which is reproduced below:-

"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/- .. .."

It is to be mentioned here that prior to coming into force of the

Orissa Civil Courts Act 1984, the Bengal, Agra and Assam Civil

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Courts Act, 1887(Act 12 of 1887) was operational and the aforesaid

notification dated 22nd November 1961 is continued to be in force by

virtue of the Savings Clause in Section 23 of the Orissa Civil Court's

Act 1984. This Court in a decision reported in (2008) 105 CLT 844

have held that the Civil Judge (Sr. Division) can grant Probate or

letters 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.

10. The High Court of Himachal Pradesh in Atma Ram Vrs. Janki

and others, AIR 1998 HP 14, have held that bare perusal of Sections

265, 286 and 288 of the Indian Succession Act left no doubt that

whenever there was contention in an application for probate, District

Delegate had no jurisdiction to proceed with matter and he should

return application to applicant for presenting same to the District

Judge.

11. So far as sub-delegation made to the Addl. Senior Civil Judge,

as alleged by the Appellants to be impermissible under the law, it is the

well settled principle that authority cannot be delegated unless

expressly authorized in this behalf. There is no quarrel over this settled

principle (See:Mangulal Chunilal vrs. Manilal Maganlal and others,

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AIR 1968 SC 822). The Supreme Court in Sahni Silk Mills(P) Ltd vs-

Employees State Insurance Corporation, (1994) 5 SCC 346, a matter

relating to imposition of damages under Section 85-B of the

Employees' State Insurance Corporation Act, 1948 have ruled that sub-

delegation of powers in terms of the provisions of Section 94-A of

E.S.I.C.Act to impose damages is not permitted in absence of any

specific power for sub-delegation. It is observed as follows:

"4. The courts are normally rigorous in requiring the power to be exercised by the persons or the bodies authorised by the statutes. It is essential that the delegated power should be exercised by the authority upon whom it is conferred and by no one else. At the same time, in the present administrative set-up extreme judicial aversion to delegation cannot be carried to an extreme. A public authority is at liberty to employ agents to exercise its powers. That is why in many statutes, delegation is authorised either expressly or impliedly. Due to the enormous rise in the nature of the activities to be handled by statutory authorities, the maxim delegatus non potest delegare is not being applied specially when there is question of exercise of administrative discretionary power.

5. By now it is almost settled that the legislature can permit any statutory authority to delegate its power to any other authority, of course, after the policy has been indicated in the statute itself within the framework of which such delegatee is to exercise the power. The real problem or the controversy arises when there is a sub-delegation. It is said that when Parliament has specifically appointed authority to discharge a function, it cannot be readily presumed that it had intended that its delegate should be free to empower another person or body to act in its place. In Barium Chemicals Ltd. v. Company Law Board, this Court said in respect of sub-delegation:

"Bearing in mind that the maxim delegates non protest delegare sets out what is merely a rule of construction, sub-delegation can be sustained if permitted by express provision or by necessary implication."

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Again in Mangulal Chunilal v. Manilal Maganlal, while considering the scope of Section 481(1)(a) of the Bombay Provincial Municipal Corporation Act (59 of 1949) this Court said that Commissioner of the Ahmedabad Municipal Corporation had delegated his power and function under the aforesaid Section to a Municipal Officer to launch proceedings against a person charged with offences under the Act or the rules and that officer to whom such functions were delegated could not further delegate the same to another.

6. In Halsbury's Laws of England, 4th edition, Vol-I, in respect of sub-delegation of powers it has been said:

"In accordance with the maxim delegatus non protest delegare, a statutory power must be exercised only by the body or officer in whom it has been confided, (H. Lavender & Sons Ltd. v. Minister of Housing and Local Government [1970] 3All ER 871 unless sub- delegation of the power is authorised by express words or necessary implication (Customs and Excise Comrs. v. Cure and Deeley Ltd. 1962 (1) QB 340K, [1961] 3aLLer 641 and Mungoni v. A.S.G. of Northern Rhodesia[1960]1 All ER 446 etc. There is a strong presumption against construing a grant of legislative, judicial, or disciplinary power as impliedly authorising sub- delegation and the same may be said of any power to the exercise of which the designated body should address its own mind. Allam & Co. v. Europa Poster Services Ltd.[1968]1 All ER 626...... "

12. It is true that, as per definition enumerated in sub-section 2(b) of

the Orissa Civil Courts Act, the Court of Civil Judge (Sr. Division)

includes the court of Addl. Civil Judge (Sr.Division). But this is for the

purpose of appeal and other provisions relating to suits which can at no

stretch be considered to include the purpose of District Delegate

defined in Section 265 of the Indian Succession Act to sub-delegate the

proceedings under Part-IX of the said Act to Additional Senior Civil

Judge. Admittedly, in the instant case, the District Judge delegated the

proceeding to the Court of Principal Civil Judge (Senior Division) as

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per Section 18 of the Orissa Civil Courts Act and then it was not the

Court of Addl. Senior Civil Judge to deal with the proceeding. Had it

been the case that Probate Proceeding was delegated to the Addl.

Senior Civil Judge by the District Judge himself then it would have

been otherwise to include the Court of Addl. Senior Civil Judge as the

District Delegate. But here it is not so and it is admitted that the

Principal Civil Judge (Sr.Division) has further transferred the

proceeding to Addl. Senior Civil Judge to deal with the same. This, in

my humble opinion, is not permissible in terms of the provisions

contained in Section 265 of the Indian Succession Act read with

Section 18 of the Orissa Civil Courts Act and notification dated 22nd

November 1961.

13. The important question is therefore remains that when the

Probate Proceeding became contentious as admitted by the learned trial

court in the impugned judgment (at Para-6), then it had to be followed

the provisions in Section 286 and 288 of the Indian Succession Act to

return the application to the Presentor to be presented before the

District Judge. Unfortunately, this has not been followed in the instant

case and instead of returning the plaint, learned trial Judge proceeded

on merit to decide the contentious issue, which is in contravention to

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the provisions of the Indian Succession Act as afore-stated.

Considering such irregularity on the part of the learned Addl. Senior

Civil Judge, it is felt appropriate to send back the matter to District

Judge for adjudication.

14. But before that, the point enumerated at paragraph- 6(iii) above,

has to be answered. It is the submission of Respondent No.2 to 4 that

the Appellants have never raised their objection before the learned trial

Judge, more so at the earliest opportunity, and therefore they are

precluded from raising such objection at this stage in the appeal.

Reliance placed to provisions contained in Section 21 of the CPC by

the respondents in this regard is answered by the Appellants that the

same is not applicable to the present case when the question of

jurisdiction is under challenge.

15. Section 21 of the CPC mandates that no objection to the place

suing or to the pecuniary limits of the jurisdiction shall be allowed by

any appellate court unless such objection was taken in the court in the

first instance at the earliest possible opportunity and unless there has

been a consequent failure of justice. Thus the objection to the bar of

jurisdiction as per Section 21 of the CPC is primarily in respect of

place of suing and pecuniary limits. Law is no more res integra to

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settle the principle with regard to objection to jurisdictional factors in

terms of Section 21 of the CPC (See: Koopilan Uneen's daughter

Pathumma and others v. Koopilan Uneen's Son Kuntalan Kuty dead by

Lrs. And others, 1981(3) SCC 589). But it is not the case here as to the

objection with regard to territorial jurisdiction or pecuniary

jurisdiction. It is the case where the very continuation of the

proceeding after it turns to be contentious is found violative of the

statutory provisions under the Indian Succession Act 1925. It is

reiterated here that the proceeding is admittedly a contentious one and

therefore has to be dealt with following provisions in Section 286 and

288 of the Indian Succession Act.

16. It is the fundamental principle that a decree passed by a Court

without jurisdiction is a nullity. This Court in K. Shankar Rao Dora

vrs. T. Boishnab Dora and others, 1986 OnLine Ori 167, while

dealing with related provisions in Section 21(2) of the CPC and

Section 11 of the Suit Valuation Act have observed that, the principle

underline the provision is that when a case has been tried by a Court on

merits and judgment rendered, it should not be liable to be reversed

purely on technical grounds, unless it has resulted in failure of justice

and the policy of legislature has been to treat the objections to

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jurisdiction both territorial and pecuniary as technical and not opened

for consideration by an appellate court unless there has been a

prejudice on the merits.

But as stated above, instant case is where the jurisdiction of the

Addl. Senior Civil Judge is ceased upon raising contentions by the

respondent and the Court is bound to return the plaint to be presented

before the District Judge. Therefore, the provisions regarding territorial

or pecuniary jurisdiction of the Court is not concerned in the case at

hand and rather it involves the question of cessation of jurisdiction

upon such eventuality when contentions are raised by the respondents

in the Probate Proceeding. In Kiran Singh vrs. Chaman Passwan, AIR

1954 SC 340, it is observed that, "it is a fundamental principle well-

established that a decree passed by a court without jurisdiction is a

nullity and that its invalidity could be set up whenever and wherever it

is to sought to be enforced or relied upon, even at the stage of

execution and even in collateral proceedings. A defect of jurisdiction,

whether it is pecuniary or territorial, or whether it is in respect of

subject matter of the action, strikes at the very authority of the Court to

pass any decree, and such a defect cannot be cured even by consent of

the parties".

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17. What is wrong in the instant case is that learned Addl. Senior

Civil Judge proceeded further in the proceeding even by knowing the

same to be in contest ignoring the provisions contained in Sections 286

and 288 of the Indian Succession Act. As per Section 272 of the Indian

Succession Act, Probate may be granted by the District Delegate in any

case where there is no contention. When contentions are raised, it is

imperative on the part of the District Delegate not to grant Probate but

to proceed to return the application to be presented before the District

Judge. Such defect on the part of the Addl. Senior Civil Judge to

proceed further despite contentions are being raised to make the

proceeding contentious in nature is definitely beyond the limits of

Addl. Senior Civil Judge leaving such defect in his own jurisdiction.

Proceeding further in contentious proceedings of Probate to decide the

case on merit is definitely beyond the jurisdiction of Addl. Senior Civil

Judge and the statute mandates that a Probate Proceeding has to be

returned to be presented before the District Judge upon raising of

contentions. It is immaterial here that whether the parties have raised

their objection or not, and when the statute itself makes the Court

(District Delegate) nonfunctional upon raising of contentions further

proceeding of the District Delegate ignoring the mandatory provisions

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of the statute is treated as without jurisdiction touching the very

foundation of the proceeding and thus, renders the decision as a nullity.

It is such a defect that cannot be cured by the consent of the parties and

regardless of the objections raised by the party. The further proceeding

being violative of the statutory mandate envisaged under Section 288

of the Indian Succession Act, the entire adjudication subsequent to the

framing of issue is rendered as a nullity and void form that stage.

Thus, point no.3 is answered accordingly.

18. In the given circumstances discussed above and for the reasons

stated, the impugned judgment is set aside and the matter is sent to the

District Judge at Bhubaneswar to decide the same afresh from the stage

of framing of issues. The entire record shall be transmitted to the