JUDGMENT

Banerjee and Wilkins, JJ. - This appeal arises out of an application by the respondent, Hem Chunder Lahiri, for probate of the will of the late Jibun Kristo Gossami, uncle of the petitioner's wife's father, by which the petitioner and his wife have been appointed executors.

2. The will propounded by the petitioner is dated the 20th September 1895, that is, about six months before the death of the testator. The application for probate was opposed by the appellants, Kunjo Behari and Debendernath Gossami, two of the nephews of the testator, mainly on the grounds that the testator-was not of sound disposing mind at the time the will propounded is alleged to have been executed, and that he was completely under the influence of the petitioner and his wife; and that the execution of the will should be held to have been brought about by coercion and undue influence.

3. The case was transferred by the District Judge, in whose Court it had been instituted, to the Court of the Subordinate Judge under the provisions; of Section 23, Sub-section 2, Clause (d) of Act XII of 1887. Upon the case being so transferred, an objection was taken on behalf of the defendants to the jurisdiction of the Subordinate Judge to try the case. The learned Subordinate Judge has overruled that objection, and upon the evidence be has held that the will propounded had been duly executed by the testator, and that it was not invalid by reason of any want of mental capacity on his part or by reason of the execution of it having been brought about by coercion and undue influence; and be has accordingly ordered probate to be granted upon security being given by the petitioner u/s 78 of the Probate and Administration Act.

4. In appeal it is contended on behalf of the objectors, first, that the Court below was wrong in holding that it had jurisdiction to try the case; and, secondly, that upon the merits it ought to have held that the will was invalid by reason of want of mental capacity on the part of the testator, and also by reason of the execution of it having been brought about by coercion and undue influence on the part of the petitioner and his wife.

5. It is further contended that the Court below was wrong in making the objectors bear their own costs, and that, having regard to all the circumstances of the case, it ought to have directed that their costs should come out of the estate of the testator.

6. In support of the first contention, it was argued that the provision of Act XII of 1887 that has been relied upon, applies only to incidental proceedings, such as those relating to the testing of security and the like, and that it does not authorize the trial of a probate case by a Subordinate Judge, jurisdiction to hear such cases being vested exclusively in the District Judge, and in the District Delegate where the proceeding is not a contentious one.

7. We are of opinion that this contention is not correct. Section 23, Sub-section 2, Clause (d), enacts that the High Court may, by "general or special order"---we quote only so much of the section as bears upon the present case---"authorize any Subordinate Judge to take cognizance of or any District-Judge to transfer to a Subordinate-Judge under his administrative control, proceedings under the Probate Act, 1881, which cannot be disposed of by District Delegates.

8. The proceeding in the present case is one under the Probate and Administration Act (V of 1881), and is one which the District Delegate cannot dispose of having regard to the provisions of Section 52 of that Act. The case, therefore, comes clearly within the scope of Section 23, Sub-section 2, Clause (d). A slight contention was raised as to whether a probate case, where there is contention, can come within the meaning of the term "proceeding" in Section 23, the argument being that such a case is really a "suit" and not a "proceeding"; but the very section of the Probate and Administration Act (Section 83) which says that a contentious probate case sha