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FARAD CONTINUATION SHEET.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR.

MISC.CIVIL APPLICATION

N O.129/2008 (Review).

In

SECOND APPEAL NO.104 OF 2006 (DECIDED).

APPLICANTS:

1) Smt.Kamal wd/o Sahebrao Gawande,

aged about 36 years,

2) Ku.Sneha Sahebrao Gawande,

aged about 6 years.

Applicant no.2 is a minor who is represented

by her natural guardian mother, i.e. appellant

no.1.

Both r/o Wadgaon, C/o Shri Keshavrao,

P.Sable's House, Tq. and Distt.Yavatmal.

..vs..

NON-APPLICANTS: 1) The Executive Engineer,

M.S.E.B.Division Office, Karla Road,

Pusad, Distt.Yavatmal.

2) Ramdas Ramkrushna Gawande,

aged about 52 years, R/o Balaji Ward,

Pusad, Distt.Yavatmal.

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Office Notes, office Memoranda of Coram Court's or Judge's

appearances, Court's orders or directions order

and Registrar's order.

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Mr.M.A.Vaishnav, Adv.for the applicants.

Mr.P.A.Deshmukh, Adv.for the non-applicants

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CORAM: C.L.PANGARKAR,J.

DATE : 13^th AUGUST, 2008.

ORAL ORDER.

1.

This is an application for review of the order

passed by this court, whereby second appeal preferred by

the applicants is dismissed in limine, as not maintenable.

2.

The present applicants are the original non-

applicants in M.J.C. No.28/2000.

The present non-

applicants had filed an application under Section 372 of

the Indian Succession Act, 1925 against the present

applicants.

The application came to be granted.

The

present applicants preferred an appeal before the District

Judge being Reg.Civil Appeal No.47 of 2004. The appeal

came to be dismissed.

Hence, the present applicants

preferred second appeal No.104 of 2006 before this

court. The said appeal came to be dismissed in limine. It

is against this order that this present review application is

preferred.

3.

The undisputed fact is that the application for

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grant of Succession Certificate was

contested by the

present applicants. The valuation of the said application

was more than Rs.3,00,000/-, as can be seen from the

judgment of the trial court. Obviously, for both reasons

the application came to be tried by Civil Judge (Senior

Division). Para 305 of the Civil Manual published by this

High Court reads as follows -

“305. (i) Under Section 265 of the

Indian Succession Act, 1925, the High

Court has appointed all Civil Judges

to

act

for

the

District

Judge

as

delegates to grant probate and letters

of administration in non-contentious

cases arising within the local limits of

their respective jurisdiction.

(ii)

In

exercise

of

the

powers

conferred by Section 28-A(1) of the

Bombay

Civil

Courts

Act

(XIV

of

1869), the High Court has invested all

Civil Judges (Senior Division), with all

the powers of a District Judge to take

cognizance

of

any

contested

proceeding under Indian Succession

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Act, 1925, arising within the local

limits of their respective jurisdiction

that may be transferred to them by

their respective District Judges.

(iii)

In

exercise

of

the

powers

conferred by Section 28-A(1) of the

Bombay

Civil

Courts

Act

(XIV

of

1869), the High Court has invested all

Civil Judges (Junior Division) with all

the powers of a District Judge in the

matter

of

issuing

Succession

Certificate

limited

to

debts

and

securities

to

the

extent

of

their

pecuniary jurisdiction.

4.

It is thus clear that the High Court utilising the

powers under Section 265 of the Indian Succession Act

and

Section 28A of Bombay Civil Courts Act, 1869 has

invested Civil Judges (Senior Division) with power to try

and decide the contested cases under Indian Succession

Act, while non-contentious cases are to be tried by Civil

Judge (Junior Division) to the extent of their pecuniary

jurisdiction.

Thus, all contentious

proceedings u