When appeal will lay before district Judge from order passed by civil judge senior division in probate proceeding

255. (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-continuous 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 Indian Succession Act 1925, within the local limits of their respective jurisdiction that may be transferred to them by their respective District Judges."

6. A bare at the aforesaid paragraphs would make it clear that in case of the contested proceedings, arising under the Indian Succession Act, 1925, the said matters may be adjudicated by the District Judge or the Civil Judge, Senior Division to whom the such proceedings have been transferred. Once the Civil Judge, Senior Division has exercised the jurisdiction over the application field by the petitioner for grant of probate of the will having valuation of Rs. 10,000/-, in view of the provisions contained in Section 28-A of the Bombay Civil Courts Act, 1869, the appeal lay against such order passed by the Civil Judge, Senior Division to the Court of the District Judge. Section 28-A of the Bombay Civil Courts Act, 1869 reads as under:--

"28-A (1) The High Court may by general or special order invest any Civil Judge within such local limits and subject to such pecuniary limitation as may be prescribed in such order with all or any of the powers of a District Judge or a District Court as the case may be under the Indian Succession Act, 1865, the Probate and Administration Act, 1881 or paragraph 5 of Schedule III to the Code of Civil Procedure, 1908.

(2) Every order made by a Civil Judge by virtue of the powers conferred upon him under sub-section (1) shall be subject to appeal to the High Court or the District Court according to the amount or value of the subject-matter exceeds or does not exceed fifty thousand rupees.

(3) Every order of the District Judge passed on appeal under sub-section (2) from the order of a Civil Judge shall be subject to an appeal to the High Court under the rules contained in the Code of Civil Procedure applicable to appeal form the appellate decrees."

7. No doubt is left on careful perusal of the said section that the order passed by the Civil Judge, Senior Division on application under Section 276 of the Indian Succession Act having a valuation of Rs. 10,000/- i.e. less than Rs. 50,000/-, the appeal against the said order lay before the District Court and the appeal filed by the respondents before the Additional District Judge was maintainable and it cannot be said that no appeal lay before him.
IN THE HIGH COURT OF BOMBAY

Civil Rev. Application No. 925 of 1989

Decided On: 08.03.1995

Manohar son of Bapurao Sapre Vs. Bhaurao son of Tukaramji Shirbhate and another

Hon'ble Judges/Coram:
R.M. Lodha, J.

Citation:1995 (2) Mh.L.J. 336, 

Key words
#will
#probate
#appeal