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Fakirji Navroji Tadivala Vs. Maherban Faredoon Alamshaw - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberFirst Appeal No. 9 of 1941
Judge
Reported inAIR1942Bom276; (1942)44BOMLR603
AppellantFakirji Navroji Tadivala
RespondentMaherban Faredoon Alamshaw
DispositionAppeal dismissed
Excerpt:
indian succession act (xxxix of 1925), sections 299, 271-order passed by district judge-appeal-civil procedufe code (act v of 1908), section. 104.;every order made by a district judge by virtue of powers conferred upon him by the indian succession act, 1925, is subject to an appeal to the high court, under section 299 of the act.;u po hnit v. mg. bo gyi [1929] a.i.r. ran. 109, madhavrav v. nazir (1900) 2 bom. l.r. 798, sarat chandra pal v. benode kumari dassi (1915) 20 c.w n. 28, and uma charan das v. muktakishi dasi (1900) i. l.r. 28 cal. 149, followed.;khettaramoni dasi v. shyama churn kundu (1894) i.l.r. 21 cal. 539 kalimuddin v. meharui (1912) i.l.r. 39 cal. 563, and manoranjan v. bijoy kumar [1926] a.i.r. cal. 180, dissented from.;where, however, a district judge, in the exercise of..........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.....
Judgment:

Beaumont, C.J.

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 learned advocate for the respondent referred us to a decision of the Calcutta High Court in Khettramoni Dasi v. Shyama Churn Kundu (1894) I.L.R. 21 Cal. 539 in support of the view that under Section 299 appeals only lay against orders which were made appealable by the Code of Civil Procedure. The case in question was a decision under Section 86 of the Probate and Administration Act of 1881. The language of that section is not identical with the language of Section 299 of the Indian Succession Act, but it seems to me that the wording of the two sections is substantially identical. Reading Section 299 of the Indian Succession Act in the absence of authority, I should certainly not myself take the view which appealed to the Calcutta High Court in the case to which I have referred. I should read the section as meaning that every order made by a District Judge by virtue of the powers conferred upon him by the Act is subject to appeal, and that the rules of procedure under which the appeal must be brought are those contained in the Code of Civil Procedure applicable to appeals.

4. Section 104 of the Civil Procedure Code, which deals with appeals against orders, allows appeals against certain orders, and prohibits appeals against other orders, except as otherwise expressly provided in the body of the Code-or by any law for the time being in force. So that Section 104 would save an appeal, if sanctioned by the Indian Succession Act. Under the Civil Procedure Code no order made under the Indian Succession Act is appealable, and, therefore, if the view of the Calcutta High Court in the case to which I have referred is correct, it really means that no order made under the Indian Succession Act is appealable, unless it amounts to a decree. That seems to me a very strange result to arrive at from the language used in Section 299 of the Indian Succession Act, which provides that every order made by a District Judge under the Act shall be subject to appeal. However, if Khettramoni Dasi v. Shyama Churn Kundu (supra) had been followed in other High Courts, or even had not been dissented from, I should have followed it, because it is undesirable that an all-India Act should be given different meanings in different High Courts. But we stood the matter over in order that Mr. Shah, who appears for the appellant, might look into the matter and see if he could find any authority in the contrary sense, and he has referred us to a considerable number of cases.

5. 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 I.L.R. (1900) 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.

6. On the other hand the Rangoon High Court in U Po Hnit v. Mg. Bo Gyi A.I.R. [1929] Ran. 109 declined to follow the view expressed in Kalimuddin v. Meharui (supra), and held that an appeal lay against all orders made by a District Judge under the Indian Succession Act. I think that this Court took the same view in Madhavrav V. Nazir (1900) 2 Bom. L.R. 798. It seems to me, therefore, that the balance of authority is in favour of the view, which I should certainly have taken myself on reading Section 299 of the Indian Succession Act, namely, that every order made by a District Judge by virtue of the powers conferred upon him by the Act is subject to an appeal to the High Court.

7. But the question then arises whether in this case any order has been made by the District Judge under the powers conferred upon him by the Act. All that the learned Judge was asked to do was to come to the conclusion that it would be more convenient that this application should be made to the Broach District Court, and the learned Judge refused to exercise his discretion in that sense. I agree with the view expressed by the Allahabad High Court in Bhupendra v. Ashtabhuja : AIR1932All379 that when a District Judge exercises his discretion under Section 271 of the Indian Succession Act, he cannot be said to be making an order under the Act. He is merely deciding to proceed with the application, and that view of the matter is confirmed by the fact that in this case no order has been drawn up. In my opinion, no formal order was really made by the learned Judge. He merely decided in the exercise of his discretion to proceed with the case, and not to direct the application to be made to another Court. I think, therefore, following the view taken by the Allahabad High Court, that in a case of this sort arising under Section 271 no right of appeal is granted by Section 299, because the District Judge has not made anything in the nature of a formal order under the Act.

8. The preliminary objection, therefore, prevails, and the appeal must be dismissed with costs.

Sen, J.

9. I agree.


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