B. J. DIVAN, M. U. SHAH, J.

( 1 ) THIS is Letters Patent Appeal under Clause 15 of the Letters Patent against the order passed by our learned brother V. R. Shah J. in First Appeal No. 377 of 1962 on 5th April 1968 holding that an appeal from the decision of the Assistant Judge in probate proceedings lies to the District Judge as provided under sec. 16 of the Bombay Civil Courts Act 1869 and therefore the memorandum of appeal be returned to the appellant for presentation to the proper Court. The appeal involves a short question relating to the forum of appeal in matters governed under the Indian Succession Act 1925 (39 of 1925 ). The question that falls for our consideration is whether the appeal as against the decision of the Assistant Judge granting probate when the estate is worth less than Rs. 10 0 lies to the High Court or to the Court of the District Judge.

( 2 ) IT appears that the present four respondents filed an application in the Court of the District Judge Surat to obtain probate of the will made by one Bai Jivkor who died on June 28 1959 By the said will she created a public trust in respect of the properties left by her. The application was contested by the present appellant as opponent No. 1 in the proceedings before the trial Court. The application was transferred by the learned District Judge Surat to the Assistant Judge in that Court and the learned Assistant Judge by his order dated June 30 1962 granted probate of the will authorizing the respondents Nos. 1 to 4 to administer the properties mentioned in the will of Bai Jivkor. The properties involved in the application there admittedly worth Rs. 6 139. 36 Against the decision of the learned Assistant Judge Surat the appellant herein filed First Appeal No. 377 of 1962 in this High Court. A preliminary objection was raised at the hearing before the learned Single Judge as regards the maintainability of the appeal before the High Court in so far as the value of the subject-matter involved did not exceed Rs. 10 0 As aforesaid the learned single Judge has upheld the preliminary objection as regards the maintainability of the appeal in this High Court and has taken the view that the appeal lies to the District Judge.

( 3 ) MR. A. M. Joshi learned advocate appearing on behalf of the appellant herein has contended before us that the appeal against the order of the Assistant Judge in the probate proceedings lies to the High Court. In Mr. Joshis submission this legal position would follow from the provision in sec. 299 of the Indian Succession Act 1925 which will hereafter be referred to as the Act. Now sec. 299 reads:-EVERY order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure 1908 applicable to appeals. SEC. 299 of the Act thus confers a right of appeal against the decision in the probate proceedings given by the trial Court. The section obviously deals with appeals from original decrees and it impliedly recognizes that there may be cases in which the appeal from the original decree will not lie to the High Court. The section provides that the appeal lies to the High Court in accordance with the provisions of the Code of Civil Procedure 1908 applicable to appeals Sec. 96 (1) of Civil Pro. Code? 1908 provides:-SAVE where otherwise expressly provided in the body of this Code or by any other law for the time being in force an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. THUS an appeal from a decree passed by the Court exercising original jurisdiction will lie to the Court authorized to hear appeals from the decision of such Court. Sec. 16 of the Bombay Civil Courts Act 1869 provides the forum to which an appeal shall lie. Paragraph 3 of sec. 16 of the said Act provides:-WHERE the Assistant Judges decrees and orders in suc

Click Here to Read the rest of this document