Judgment:
ORDER
A.B. Palkar, J.
1. Respondent No. 1 Kalidas Dnyandeo Patil filed a petition for grant of probate of Will of his deceased uncle Ganpat Laxman Patil executed on 25th April 1978. Deceased Ganpat Laxman Patil father of the original petitioner by name Dnyandeo Laxman Patil were the real brothers and were residing together. The petitioner's mother died when petitioner was a child and he was brought up by deceased Ganpat Laxman Patil (his uncle), and Ganpat's wife Gojabai. Deceased Ganpat being elder brother was looking after the entire family. He was working as a head clerk in the office of the Registrar in Kolhapur State for some years and thereafter, he was working with the Kolhapur Municipal Council. Opponent Nos. 1 to 6 are the daughters of deceased Ganpat. Ganpat did not have son and has left behind the daughters. Even during the life time of Ganpat some of his daughters were trying to get possession of his property, and therefore, deceased Ganpat had filed Regular Civil Suit No. 878 of 1977 against opponent No. 2 Sau Sheela Rohidas Kadam, and therefore, deceased Ganpat was against his daughters and he executed a Will of his property in favour of the petitioner. By the said Will the responsibility of opponent No. 6 was given to the petitioner which he is ready and willing to discharge.
2. The said petition was opposed by some of the daughters of deceased Ganpat, and original opponent Nos. 1, 2, 3 and 5 appeared and filed written statement and contested the claim, and although, contested the application on various grounds it is not material to go into the details of those grounds, as this appeal has to be decided on preliminary point of jurisdiction.
3. The petition was filed in the trial Court on 25-8-1978. The property was valued Rs. 22,000/-. It was valued for the purpose of jurisdiction. This appeal against the order of probate was filed in this Court on 24-2-1983.
4. The only point that was raised in this Court on behalf of the respondent was that since valuation of original petition for the purpose of jurisdiction was less than Rs. 50,000/-, the appeal against that order would lie to the District Court and not the High Court.
5. In this Connection reliance was placed on the judgment of this Court reported in : AIR1996Bom29 . Manohar Bapurao Sapre v. BhauraoTukaramji Shirbhate. In this case the learned Single Judge who delivered the judgment has held that as per paras 254, 255 of the Civil Manual in the cases which are contested and arising under The Indian Succession Act, the matters may be adjudicated by the District Judge or the Civil Judge, Senior Division to whom such proceedings have been transferred. An appeal from an order granting probate of a Will having valuation less than Rs. 50,000/- passed under the Indian Succession Act passed by the Civil Judge, Senior Division lies before the District Court in view of the provisions of section 28-A of the Bombay Civil Courts Act. Section 28-A of the Bombay Civil Courts Act 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 as 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 appeals from the appellate decrees.'
In the aforesaid judgment the learned Single Judge of this Court (R.M. Lodha, J.) has held that no doubt is left on careful perusal of the aforesaid section that the order passed by the Civil Judge, Senior Division on the 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 would 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.
6. On behalf of the appellants my attention was drawn by learned Counsel Mr. Kumbhakoni to section 388(1) of the Indian Succession Act and it was contended that since sub-section (1) of section 388 normally shows that when by notification of the State Government an inferior Court in grade to a District Judge is conferred with power to exercise the function of a District Judge under that Part, then appeal lies to the District Court. Section 388 is in part 10 of the Indian Succession Act which pertains to issuance of the succession certificate and which is applicable to the succession certificate. Whereas the present petition was filed in the District Court and was heard and decided by the Civil Judge, Senior Division on being transferred to that Court which was the petition for grant of probate and was definitely not a petition under the aforesaid part of the Indian Succession Act. However, nothing turns on this aspect of the matter because It is well settled provision of section 28-A of the Bombay Civil Courts Act which would decide the fate of maintainability of this appeal before this Court. I have already quoted section 28-A and sub-section (2) of the said section clearly to the effect that 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 as the amount or value of the subject matter exceeds or does not exceed fifty thousand rupees. According to sub-section (1) of section 28-A the High Court is empowered to invest any Civil Judge by general or special order within such limits and subject to such pecuniary limitation as may be prescribed in such order with all or any of the powers of a Districtthe Probate and Administration Act, 1881 or paragraph 5 of schedule III.
7. This Succession Act has now been replaced by the Indian Succession Act, 1925. However, section 388 is in part 10 of the said Act which pertains to issuance of succession certificate. The learned Counsel may be justified in his arguments to the effect that section 388 sub-section (1) would cover only to the proceedings covered by part 10 of the Act, but I have already pointed out provisions of section 28-A, specifically sub-section (2) being clear enough.There is no escape from the conclusion that valuation of the matter being below Rs. 50,000/-, the appeal would lie to the District Court.
8. The view similar to the one taken by the Hon'ble Justice R.M. Lodha, J., is also taken by another Judge of this Court (Justice Radhakrishna) in unreported judgment in (First Appeal No. 865 of 1984, decided on 28th June, 1996),. The learned Judge has observed in para 6 of the Judgment that no doubt is left on careful perusal of the said section i.e. section 28-A that order passed by the Civil Judge, Senior Division on the application under section 276 of the Indian Succession Act, having a valuation of over Rs. 10,000/- i.e. less than Rs. 50,000/-, the appeal against the said order lay before the District Court and therefore appeal filed before this Court was not maintainable.
9. The legal position being, therefore, clear that the appeal would lie to the District Court and not to the High Court.
10. In view of the above discussion the appeal will have to be returned to the appellant for presentation to the proper Court. Appeal is therefore, returned to the appellant within a period of three weeks from the date of this judgment. The appellant shall receive the memo of appeal, including all the documents filed along with memo of appeal including Court fee stamps, from the office on any date within three weeks and shall present it to the proper Court within two weeks from the date on which he has received the same. Office is also directed to sent the record and proceedings to the Court. In view of this no order as to costs.
11. Appeal referred to appellant.