BARODA DEBYA Vs. (SREEMATI) PHUTUMANI

JUDGEMENT

(1.) The only question in this case is one of jurisdiction. The present appellant was an applicant before the District Judge for probate of a Will. The learned District Judge coming to the conclusion that the matter was contentious transferred it to the Subordinate Judge presumably under powers granted by Section 23 of the Act 12 of 1887 (Bengal, North Western Provinces and Assam Civil Courts Act). The learned Subordinate Judge having disposed of the matter in favour of the present appellant, an appeal was preferred by the respondent to the District Judge. It is now contended by the appellant in this Court that the learned District Judge had no jurisdiction to hear the appeal and in that connexion Secs.22, 23 and 24 of the Act of 1887 are referred to.

(2.) Under Ch. 4 dealing with special jurisdiction of the Courts it is provided that the District Judge may transfer to any Subordinate Judge under his administrative control any appeals pending before him from the decrees or orders of Munsifs. Section 23 provides that: The High Court may, by general or special order, authorize any Subordinate Judge or Munsif to take cognizance of, or any District Judge to transfer to a Subordinate Judge or Munsif under his administrative control, any of the proceed in next hereinafter mentioned or any class of those proceedings specified in the order. Clause (d), Sub-section (2), Section 23 is one class of proceedings which may be transferred under the main part of the section which I have read. Clause (d) reads: proceedings under Succession Act, 1865, and the Probate and Administration Act 1881, which cannot be disposed of by District Delegates. It must be presumed--the law demands that it will be presumed--that the learned District Judge had jurisdiction under this section to transfer the matter to the Subordinate Judge; in other words, that the High Court had issued orders under that section. Section 24 provides: Proceedings taken cognizance of by, or transferred to, a Subordinate Judge or Munsif, as the case may be, under the last foregoing section shall be disposed of by him subject to the rules applicable to like proceedings when disposed of by the District Judge.

(3.) Under Section 299, Succession Act, .39 of 1925, it is provided: 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 the case of Sohna V/s. Khalak Singh (1891) 13 All 78, Mahmood, J., construed at p. 82 the expression: subject to the rules applicable to like proceedings when disposed of by the District Judge. in the terms: his judgment states: I am of opinion that the words which I have just quoted and emphasised, include the rules relating to appeals, and since an appeal from a District Judge would lie to this Court, therefore an appeal from an order of the Subordinate Judge, when proceedings under Act 40 of 1858 have been transferred to him, also lies to this Court, and not to the Court of the District Judge.