The capacity in which a judge exercises powers under the Succession Act determines the appropriate court for appeal.

Vivian Bose, J—A preliminary objection is raised to the effect that the appeal in this case does not lie to the High Court. The proceedings out of which the appeal arises are under the Succession Act and are for the grant of a succession certificate. The petition was allowed and the non- applicant has appealed here. The difficulty arises because the learned Judge who granted the petition, Mr. G.S. Dube, is an Additional District Judge sitting at Bilaspur attached to the District Court at Raipur, as well as a Subordinate Judge of the First Class at Bilaspur. The question is whether he granted the certificate in these proceedings in his capacity as Additional Judge to the District Court at Raipur or as a Subordinate Judge of the First Class at Bilaspur. He has signed as Subordinate Judge of the First Class. But I agree that that is not conclusive though of course it is an element to be taken into consideration.

2. Under Section 384(1), Succession Act, appeals from an order of a District Judge granting a certificate under Part 10 of the Act lie to-the High Court, but under Section 388(1) the Local Government is given power to invest, by notification, any Court inferior in grade to a District Judge, with power to exercise the functions of a District Judge under Part 10. Sub-section (2) of Section 388 then states:

Any inferior Court so invested shall, within the local limits of its jurisdiction have concurrent jurisdiction with the District Judge in the exercise of all the powers conferred by this Part upon the District Judge and the provisions of this Farts relating to the District Judge shall apply to such-an inferior Court as if it were a District Judge.

3. Then follows this important proviso which governs the matter now before e:

Provided that an appeal from any such order of an inferior Court as is mentioned in Sub-section (1) of Section 384 shall lie to the District Judge and not to the High Court.

4. The Court of the Subordinate Judge, First Class, at Bilaspur has been invested with the powers referred to in Section 388(1), Succession Act, by the Local Government by Notification No. 1287-1130-V, published in the Central Provinces Gazette of 18th June 1932. It is clear then that the jurisdiction of the Raipur District Court in the Bilaspur area has been taken away by the Notification and conferred upon the Subordinate Judge of the First Class at Bilaspur. In these circumstances no Judge of the Raipur District Court would have jurisdiction to entertain an application under the Succession Act for the grant of a succession certificate in the Bilaspur area. That jurisdiction is conferred, as I have shown, within the Bilaspur area upon the Subordinate Judge of the First Class at Bilaspur. Therefore when Mr. Dube exercised powers under the Succession Act relating to the grant of a succession certificate, it is clear he could only have done so in his capacity as Subordinate Judge First Class and not as an Additional District Judge. As I have said he signed in his capacity as a Subordinate Judge, First Class, and therefore it is clear that he purported to exercise his functions in that capacity. Therefore the appeal lies to the District Court and not here.

5. It is argued on behalf of the appellant that Section 388(2) speaks of an inferior Court, and it is urged that once a Court of the Subordinate Judge, First Class, is invested with the powers of a District Judge it ceases to be an inferior Court. Apart from the fact that this would render the proviso to Section 388(2) meaningless, it is clear from Sub-section (1) that the inferior Court so invested with the powers does not become a District Court but merely exercises certain functions of the District Judge under Part 10, Succession Act. The Court remains the Court of the Subordinate Judge, First Class. This distinguishes the present case from my decision in Zumberlal Chhotelal v. Sitaram, 1937 AIR(Nag) 80 upon which the learned Counsel for the appellant relies. There there was n