Prashant Kumar, J.

This appeal under Section 299 of Indian Succession Act, 1925 is directed against the judgment dated 1.10.1992 passed in Probate Case No. 52 of 1991 by Judicial Commissioner, Ranchi whereby he granted probate in favour of original respondent no. 1.

2. It appears that original respondent no. 1 filed an application for grant of probate with reference to a will dated 3.9.1990 executed by Rose line Tigga (wife of appellant). It is stated that Rose line Tigga was the daughter of original respondent no. 1 and was married to appellant. It is further stated that Rose line Tigga died on 16.12.1990 in suspicious condition at Tara Nursing Home, Saraidhela, Dhanbad. It is then stated that the said Rose line Tigga executed her last Will on 3.9.1990 in favour of her father in respect of her all movable and immovable property. It is further stated that said Will was executed by her in presence of witnesses Sukhdeo Oraon, Ash Kumar Singh and Anandani Tigga. It is further stated that original respondent no. 1 is the executor of the Will hence he is entitled for probate. It is further stated that appellant filed an application for grant of succession certificate in respect of properties, debt and securities left behind by Rose line Tigga vide Succession Case No. 30/1991 suppressing material facts. It is further stated that he succeeded in getting the succession certificate. However, original respondent no. 1 filed a miscellaneous case vide miscellaneous case no. 44 of 19.91 and the same was disposed of in his favour and the succession certificate granted, was set aside.

3. on the other hand, appellant (O.P. No.1) contested the probate case and contended that the application is not maintainable. It is stated that the parties are Oraon, a scheduled tribe and governed by their customary law. It is further submitted that as per the Notification No. 550 dated 2.5.1913 issued by Home Department, Government of India, tribes, namely, Mundas, Oraons, Santhals, Hos, BhumiJs etc. dwelling in the province of Bihar and Orrisa will be governed by their customary rules of succession and inheritance and the provision of Indian Succession Act not applicable in their •cases. It is stated that in view of the aforesaid legal position, present probate application is not maintainable. It is further stated t'1at signature of Rose line Tigga on the will in question is not genuine. It is also stated that she has not put her signature on the said Will in presence of witnesses as claimed by original respondent no. 1. It is stated that Rose line Tigga was suffering from mental depression for which she was under the treatment of Dr. S. Kumar from 18.12.1989 to 22.10.1990. Accordingly, it is stated that she has not executed the Will out of her full consciousness. Accordingly, it is prayed that probate case be dismissed.

4. It appears that in the learned court below, parties adduced their evidences in support of their cases both oral and documentary. It appears that the learned court below after disbelieving the case of appellant, allowed the probate case and granted probate in favour of original respondent no. 1 by the impugned judgment, against that present appeal filed.

5. It is submitted by Sri Shekhar Prasad Sinha, learned counsel appearing for the appellant that as per the Notification No. 550 dated 3.5.1913, the Governor General in Council is pleased to exempt all Mundas, Oraons, Santhals, Hos, Bhumijs, Khariyas, Ghasis, Gonds, Kandhs, Korwas, Kurmis, Male saurias and Pans dwelling in the province of Bihar and Orissa from the operation of the provisions of the Indian Succession Act. Thus, the probate case tiled under Section 276 of the Indian Succession Act is not maintainable because Rose line Tigga was Oraon a scheduled tribe.

6. On the other hand, Sri A.K. Sahani, learned counsel appearing for the respondents submits that Notification No. 550 dated 3.5.1913 was issued under the Indian Succession Act, 1865. It is submitted that said Act repeal