UTTAMLAL JETHALAL SHAH v. BALUCHAND TARACHAND — 1971 DIGILAW 18 (GUJ)

B. J. DIVAN, M. U. SHAH, J. ( 1 ) THIS is Letters Patent Appeal under Clause 15 of the Letters Patent against the order passed by our learned brother V. R. Shah J. in First Appeal No. 377 of 1962 on 5th April 1968 holding that an appeal from the decision of the Assistant Judge in probate proceedings lies to the District Judge as provided under sec. 16 of the Bombay Civil Courts Act 1869 and therefore the memorandum of appeal be returned to the appellant for presentation to the proper Court. The appeal involves a short question relating to the forum of appeal in matters governed under the Indian Succession Act 1925 (39 of 1925 ). The question that falls for our consideration is whether the appeal as against the decision of the Assistant Judge granting probate when the estate is worth less than Rs. 10 0 lies to the High Court or to the Court of the District Judge. ( 2 ) IT appears that the present four respondents filed an application in the Court of the District Judge Surat to obtain probate of the will made by one Bai Jivkor who died on June 28 1959 By the said will she created a public trust in respect of the properties left by her. The application was contested by the present appellant as opponent No. 1 in the proceedings before the trial Court. The application was transferred by the learned District Judge Surat to the Assistant Judge in that Court and the learned Assistant Judge by his order dated June 30 1962 granted probate of the will authorizing the respondents Nos. 1 to 4 to administer the properties mentioned in the will of Bai Jivkor. The properties involved in the application there admittedly worth Rs. 6 139. 36 Against the decision of the learned Assistant Judge Surat the appellant herein filed First Appeal No. 377 of 1962 in this High Court. A preliminary objection was raised at the hearing before the learned Single Judge as regards the maintainability of the appeal before the High Court in so far as the value of the subject-matter involved did not exceed Rs. 10 0 As aforesaid the learned single Judge has upheld the preliminary objection as regards the maintainability of the appeal in this High Court and has taken the view that the appeal lies to the District Judge. 10 0 As aforesaid the learned single Judge has upheld the preliminary objection as regards the maintainability of the appeal in this High Court and has taken the view that the appeal lies to the District Judge. ( 3 ) MR. A. M. Joshi learned advocate appearing on behalf of the appellant herein has contended before us that the appeal against the order of the Assistant Judge in the probate proceedings lies to the High Court. In Mr. Joshis submission this legal position would follow from the provision in sec. 299 of the Indian Succession Act 1925 which will hereafter be referred to as the Act. Now sec. 299 reads:-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 accordance with the provisions of the Code of Civil Procedure 1908 applicable to appeals. SEC. 299 of the Act thus confers a right of appeal against the decision in the probate proceedings given by the trial Court. The section obviously deals with appeals from original decrees and it impliedly recognizes that there may be cases in which the appeal from the original decree will not lie to the High Court. The section provides that the appeal lies to the High Court in accordance with the provisions of the Code of Civil Procedure 1908 applicable to appeals Sec. 96 (1) of Civil Pro. Code? 1908 provides:-SAVE where otherwise expressly provided in the body of this Code or by any other law for the time being in force an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. THUS an appeal from a decree passed by the Court exercising original jurisdiction will lie to the Court authorized to hear appeals from the decision of such Court. Sec. 16 of the Bombay Civil Courts Act 1869 provides the forum to which an appeal shall lie. Paragraph 3 of sec. 16 of the said Act provides:-WHERE the Assistant Judges decrees and orders in such cases are appealable the appeal shall lie to the District Judge or to the High Court according as the amount or value of the subject matter does not exceed or exceeds ten thousand rupees. Paragraph 3 of sec. 16 of the said Act provides:-WHERE the Assistant Judges decrees and orders in such cases are appealable the appeal shall lie to the District Judge or to the High Court according as the amount or value of the subject matter does not exceed or exceeds ten thousand rupees. Paragraph 1 provides:-THE District Judge may refer to any Assistant Judge subordinate to him original suits of which the subject matter does not amount to fifteen thousand rupees in amount or value applications or references under special Acts and miscellaneous applications. Paragraph 2 provides:-THE Assistant Judge shall have jurisdiction to try such suits and to dispose of such applications or references. THUS by virtue of the provisions contained in sec. 16 of the said Act the District Judge may refer an application under a special Act to the Assistant Judge and such Assistant Judge shall have jurisdiction to try such applications. In cases where the Assistant Judges orders are appealable the appeal is provided to the District Judge or to the High Court according as the amount or value of the subject matter does not exceed or exceeds Rs. 10 0 It is clear from these provisions in sec. 16 of the said Act that the valuation of the subject matter will govern the forum of appeal. A clear distinction has to be made between the right to appeal and the forum of appeal. The right of appeal is provided by substantial law and in the instant case such right is provided by sec. 290 of the Act. The forum is provided by the procedural law and the relevant provision is to be found in paragraph 3 of sec. 16 of the Bombay Civil Courts Act. It would follow that the appeal in the instant case lies not to the High Court but to the District Judge as the subject matter of the appeal admittedly does not exceed Rs. 10 0 ( 4 ) IN this view we are supported by two decisions of different Division Benches of the Bombay High Court. The first is the decision in Laxmi Tatya Lugade v. Aba Appaji Lugade X Bom. L. R. 924. 10 0 ( 4 ) IN this view we are supported by two decisions of different Division Benches of the Bombay High Court. The first is the decision in Laxmi Tatya Lugade v. Aba Appaji Lugade X Bom. L. R. 924. The Division Bench of the Bombay High Court consisting of Sir Basil Scott C. J. and Heaton J. had an occasion to consider the relevant provisions of the probate and Administration Act 1881 and the provisions of the Bombay Civil Courts Act 1869 sec. 16. The view taken is that. . . the provision of the Bombay Civil Courts Act (Act XIV of 1869) sec. 16 by which a probate matter can be tried in the first instance by the Assistant Judge and by which the appeal in cases where the amount of the subject matter does not exceed Rs. 5 0 will lie to the District Court is one which the local Legislature was competent to make. Secs. 86 51 52 of the probate and Administration Act (V of 1881) which correspond to sec. 299 264 and 265 respectively of the Indian Succession Act 1925 were considered by the learned Judges and they have come to take the view that the forum of appeal will depend upon the valuation of the subject matter of the probate application and that in cases where the valuation does not exceed Rs. 5 0 the appeal from the decision of trial Court will lie to the District Judge and not to the High Court. The second decision is of a Division Bench of the Bombay High Court consisting of Sir Basil Scott C. J. and Batchelor J. in Ahmedbhoy Habibbhoy v. Waman Dhondu 16 Bom. L. R. 72. The learned Judges were there in dealing with the question of an appeal under Land Acquisition Act (1 of 1894 ). Sec. 54 of that Act provided:- Subject to the provisions of the Code of Civil Procedure applicable to appeals from original decrees an appeal shall lie to the High Court from the award or from any part of the award of the Court in any proceedings under this Act. The view taken is that the section is obviously dealing with appeals from original decrees and impliedly it recognizes that there may be cases in which the appeal from the original decree will not lie to the High Court. The view taken is that the section is obviously dealing with appeals from original decrees and impliedly it recognizes that there may be cases in which the appeal from the original decree will not lie to the High Court. The learned Judges have then considered the provisions of sec. 96 (1) of the Civil Procedure Code and sec. 16 of the Bombay Civil Courts Act and have come to take the view that under sec. 16 of the Bombay Civil Courts Act the Court authorized to hear appeals from the Assistant Judges Court where the value of the subject matter is less than Rs. 5 0 (now Rs. 10 0 is the District Court and not the High Court. The preliminary objection as regards the maintainability of the appeal to the High Court was thus upheld. These two decisions support the view which we are taking in this matter. In our considered opinion the forum of appeal will be governed by the procedural law and sec. 16 paragraph 3 of the Bombay Civil Courts Act 1869 will decide the forum. The appeal shall lie to the District Judge or to the High Court according as the amount or value of the subject matter does not exceed or exceeds Rs. 10 0 ( 5 ) MR. Joshi contended that sec. 299 of the Act makes a clear provision that every order made by a District Judge is appealable to the High Court. Here we must say that the correct position is that the section confers the right of appeal against the decision of the trial Court but the forum is to be governed in accordance with the Code of Civil Procedure 1908 applicable to appeals. The amount or value of the subject matter of the probate application does not exceed Rs. 10 0 and the appeal would therefore lie to the District Judge. Mr. Joshi contended that in Laxmi Tatya Lugade v. Aba Appaji Lugade (supra) the question was of an appeal under the Probate and Administration Act (V of 1881) whereas in the instant case we are governed by the Indian Succession Act 1925 and therefore that decision would not be of any assistance in deciding the present question with which we are concerned. Now as aforesaid secs. 86 51 and 52 of the Probate and Administration Act 1881 correspond respectively to secs. Now as aforesaid secs. 86 51 and 52 of the Probate and Administration Act 1881 correspond respectively to secs. 299 264 and 265 of the Indian Succession Act. As provided by sec. 8 (1) of the General Clauses Act 1897 Where this Act or any Central Act or Regulation made after the commencement of this Act repeals and reenacts with or without modification any provision of a former enactment or in any instrument to the provision so repealed shall unless a different intention appears be construed as references to the provision so reenacted. The principle underlying the section will be applicable in the instant case and the reference to the relevant provisions of the Probate and Administration Act will have to be considered while considering the corresponding sections of the Indian Succession Act. ( 6 ) MR. Joshi relied upon the observations of Mr. Justice P. N. Bhagwati (as he then was) in Dahyabhai Nathubhai v. Suleman Isaji Dadabhai and another III G. L. R. 877 wherein while dealing with a case under the Bombay Public Trusts Act clauses (1) and (2) of Bombay Public Trusts Act 1950 the learned Judge in passing considered the provisions of clause (4) of sec. 16 of the Bombay Civil Courts Act and observed:- There is repugnance between the provisions of clause (3) of sec. 16 of the Bombay Civil Courts Act 1869 and the provisions contained in sec. 72 (4) of the Bombay Public Trusts Act 1950 in so far as applications under sec. 72 (1) of the Bombay Public Trusts Act are concerned the amount or the value of the subject matter of which does not exceed ten thousand rupees. The observation further is:- To this extent the provisions of sec. 72 (4) of the Bombay Public Trusts Act will prevail against the provisions contained in clause (3) of sec. 16 of the Bombay Civil Courts Act. With respect the learned Judge was not concerned with the question of an appeal under sec. 72 (4) of the Bombay Public Trusts Act. Sec. 72 (4) of the Bombay Public Trusts Act provides that An appeal shall lie to the High Court against the decision of the Court under sub-sec. (2) as if such decision was a decree from which an appeal ordinarily lies. As aforesaid the learned Judge was not required to consider the provisions contained ill sec. Sec. 72 (4) of the Bombay Public Trusts Act provides that An appeal shall lie to the High Court against the decision of the Court under sub-sec. (2) as if such decision was a decree from which an appeal ordinarily lies. As aforesaid the learned Judge was not required to consider the provisions contained ill sec. 72 (4) of the Bombay Public Trusts Act 1950 The observations have been rightly considered by our learned brother V. R. Shah J. in First Appeal No. 377 of 1962 out of which this Letters Patent Appeal arises to be obiter. ( 7 ) MR. Joshi tried to rely upon a decision of the Patna High Court in Debva v. Bhutumani A. I. R. 1933 Patna 276. But in that case sec. 23 of the Bengal North Western Provinces and Assam Civil Courts Act (12 of 1887) was under consideration. That section empowered the High Court by general or special order to 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 proceedings mentioned in that section or specified in the order. Sec. 24 of the Act provided that the proceedings taken cognizance of by or transferred to a Subordinate Judge or Munsif as the case may be under the foregoing section shall be disposed of by him subject to the rules applicable to like proceedings when disposed of by the District Judge. It was on a construction of the order of the High Court made under sec. 24 of the said Act of 1887 that the Court came to the conclusion that that order of the High Court provides for an appeal also being filed in the High Court and not to the District Judge. The case is clearly distinguishable in so far as there is no corresponding provision like sec. 24 of that Act in our Act. The decisions in Mr. Laso Devi v. Mr. Jastambha Devi A. I. R. 1936 Lahore 378 and in Durga Dutt v. Chandanu A. I. R. 1956 Himachal Pradesh 58 were also relied upon. The decisions have no applicability on the point. ( 8 ) THUS as aforesaid the right to appeal against the decision of the trial Court is conferred by the substantive law viz. sec. Jastambha Devi A. I. R. 1936 Lahore 378 and in Durga Dutt v. Chandanu A. I. R. 1956 Himachal Pradesh 58 were also relied upon. The decisions have no applicability on the point. ( 8 ) THUS as aforesaid the right to appeal against the decision of the trial Court is conferred by the substantive law viz. sec. 299 of the Indian Succession Act 1925 in the present case and the forum of appeal is provided by paragraph or clause (3) of sec. 16 of the Bombay Civil Courts Act 1869 The view taken in the earlier decisions of the two Division Benches of the Bombay High Court have been consistently followed and it has stood the rest of time. In our opinion the appeal in the instant case lies not to the High Court but to the District Judge. Our learned brother V. R. Shah J. was therefore right in upholding the preliminary contention that was raised before him on behalf of the respondents as regards the maintainability of the appeal in the High Court and in finding that the appeal lies not to the High Court but to the District Judge. He has rightly ordered the return of the memorandum of appeal for presentation to the proper Court. ( 9 ) IN the result the appeal fails and is dismissed with costs. The costs of the respondent No. 5 the Charity Commissioner if not paid by the appellant will be payable out of the funds of the public trust. .