M.G.Mukherji, J. - (1.) - F.M.A. 130 of 1993 is directed against a judgment and order dated 25th September, 1992 passed by the learned District Delegate, Hooghly in Act XXXIX Case No. 149 of 1987. In this case, succession certificate has been granted in favour of the respondent.
(2.) The preliminary question that has been raised by the respondent in this appeal is with regard to the maintainability of this appeal purportedly filed under section 384 of the Indian Succession Act. The appellants contended that by virtue of the provision contained in section 384 of the Indian Succession Act, subject to the provisions of this part viz. part X which deals with succession certificates, an appeal shall lie to the High Court from an order of a District Judge, granting, refusing or revoking a certificate.
(3.) Mr. Shyama Prasanna Roychowdhury, Senior Advocate appearing for the appellants cited before us a Division Bench Judgment of our Court in Hirak Roy v. S. K. Roy & Ors. reported in 95 CalWN 629 for the proposition that proceeding in respect of granting of probate and/or letters of administration is regulated, by virtue of the provision of section 268 of the Indian Succession Act, by the Code of Civil Procedure, so far as circumstances of the case permit. This statutory provision is very wide. The legislature had intended that the Civil Procedure Code should be read with the Indian Succession Act mutatis mutandis and unless a particular provision specifically contained in the Code of Civil Procedure has been departed from in a probate proceeding, that is unless a special procedure is provided for separately under the Indian Succession Act, the provisions of the Code of Civil Procedure would apply. The District Delegate, however, functions within the framework of his delegated authority as conferred by the District Judge and if an order is passed by the District Delegate, such an order is subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure applicable to appeals. Mr. Roychowdhury further drew our attention to Bengal, Agra and Assam Civil Courts Act (Act 12 of 1887) and submitted that since District Delegates were deriving their authority from the District Judge himself, an appeal should lie to High Court. Furthermore even if it is construed that the District Delegate was virtually an Assistant District Judge still then according to the pecuniary jurisdiction an appeal above the value of Rs. 60,000/- would lie to this Court, since appeal only upto Rs. 60,000/- would lie to the District Judge by virtue of section 21 of the Bengal, Agra and Assam Civil Courts Act as it stands amended today.;