The central legal point established in the judgment is that contested probate proceedings acquire the character of a 'suit' and fall within the jurisdiction of the High Court under Clause 13 of the Letters Patent.

JUDGMENT

Sanderson, C.J. - This is an appeal by Pran Kumar Pal Chaudhury against the judgment of my learned brother Mr. Justice Gregory, delivered on the 23rd of March 1926. It appears that certain probate proceedings were pending in the Court of the learned District Judge of Barisal in which the appellant was the plaintiff and the respondent was the defendant.

2. A Rule had bean granted by a learned Judge, sitting on the Original Side of this Court, calling upon the appellant to show cause why the Probate Suit No. 2 of 1925 pending ins the Court of the District Judge of Barisal should not be removed from the said Court at Barisal to this Court for trial of the same by the High Court.

3. The Rule was heard by Mr. Justice Gregory and on the merits, he came to the conclusion that, for the purpose of justice and on considerations of convenience, it was proper that the probate case pending at Barisal should be removed and tried and determined in the High Court He therefore, made the Rule absolute and, in the exercise of the power conferred by Clause 13 of the Letters Patent, he directed that Probate Case No. 2 of 1925 then pending in the Court of the District Judge of Barisal should be removed from that Court and should Court be tried and determined in the High Court.

4. The facts which it is necessary for me to mention are as follows:

The testator died at Faridpur in March 1925, and it was alleged that he made a Will dated the 9th of August 1907. On the 26th of Aagust 1925 the appellant, who had been pointed executor under the Will, applied for probate in the Barisal Court. On the 9th of September 1925 the window of the testator field a caveat objecting to the granting of probate. The respondent, who his the minor son of the testator, field a written statement on the 28th of October 1915, and the ground of his objection to the Will was that the Will was a forgery, and it was alleged that the deceased man had been of unsound mind since the year 1903. The proceedings in the Barisal Court were head "Probate Suit No. 2 of 1925."

5. The ground upon which the learned Judge decided this application have not been investigated in this Court, because the learned advocate, who appeared for the appellant, stated that, if the learned Judge had jurisdiction under Clause 13 of the case should be tried in the High Court on the ground that the proceedings were a "suit" within the meaning of Clause 13 of the Letters Patent, he was bound by the decision of the late Mr. Justice Mookerjee and another learned Judge of this Court in the case of Khatizan v. Sonairam [1920] 47 Cal. 1104, that there was no appeal in such a case.

6. The point on which the learned advocate relied was not taken before the learned Judge on the Original Side. Shortly stated, it was as follows:

The argument was that the learned Judge had no jurisdiction, because the proceedings in the Barisal Court were, not a "suit" within the meaning of Clause 13 of the Letters Patent. Clause 13 is a follows:

And we do further ordain that the said High Court of Judicature at Fort William in Bengal; shall have power to remove, and try and determine, as a Court of extraordinary original jurisdiction, any suit being or falling within the jurisdiction of any Court, whether within or without the Bengal Division of the Presidency of Fort William, subject to its superintendence when the said High Court shall think proper to do so, either on the agreement of the parties to that effect or for purposes of justice, the reasons for so doing being recorded in the proceedings of the said High Court.

7. The argument presented on behalf of the appellant was that the Letters Pattent contemplated an application for a grant of probate and the proceedings in connexion therewith as something different from a civil suit, such as was contemplated by Clause 13 and the main ground for the argument was that Clause 34 of the Letters Patent conferred a jurisdiction! on the High Court

in relation to the granting of probates of las