FAKIRJI NAVROJI TADIVALA Vs. MAHERBAN FAREDOON ALAMSHAW

JUDGEMENT

(1.) THIS is an appeal which the appellant seeks to bring against what he alleges is an order made by the District Judge of Thana under the Indian Succession Act. The respondent is the executor of the will of a gentleman named Tadiwalla, who died in the Broach District on January 18, 1939, leaving property within the jurisdiction both of the Broach district and of the Thana district. The learned District Judge of Thana decided under Section 271 of the Indian Succession Act that he had power to entertain an application for probate of the last will of Tadiwalla, and that it would be convenient for him to do so, and there was no necessity under Section 271 to refuse the application on the ground that it would be more conveniently dealt with by the Broach District Court.

(2.) A preliminary objection was taken, when the case first came before this Court, that no appeal lay, having regard to the provisions of Section 299 of the Indian Succession Act. That section provides that every order made by a District Judge by virtue of the powers conferred upon him by the Act shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure, 1908, applicable to appeals.

(3.) THE view taken in Khettrammi Dasi v. Shyama Churn Kundu (supra) namely, that the only orders appealable under Section 299 of the Indian Successor Act are those made appealable by the Civil Procedure Code, has been followed in other Calcutta cases, including Kalimuddin v. Meharul (1912) I.L.R. 39 Cal. 563 and Manonjan v. Bijoy Kumar [1926] A.I.R. Cal. 180. On the other hand, the opposite view has prevailed in Sara Chandra Pal V. Benode Kumari Dassi (1915) 20 C.W.N. 28 and Uma Charon Das v. Muktakeshi Dasi (1900) I.L.R. 28 Cal. 149 THE latter case was a decision of a bench of three Judges, and it was held that an appeal lay to the High Court against an order passed by a District Judge granting permission to an executor or administrator to dispose of immoveable property under Section 90 of the Probate and Administration Act of 1881. That case seems to me a direct authority for the proposition that all orders made by a District Judge under the Indian Succession Act or the Probate Act, which preceded it, are made appealable. In Kalimuddin v. Meharul (supra) that case was distinguished on the rather curious ground that the effect of the words "under the rules contained in the Code of Civil Procedure" in Section 86 of the Probate Act had not been considered. I do not think one can assume that a Bench of three Judges of the Calcutta High Court would omit to read the whole of the section, which they were engaged in construing. In the result, so far as the Calcutta High Court is concerned, it seems to me that there are authorities in favour of either reading of Section 299 of the Indian Succession Act.