Skip to content


Laxmi Tatya Lugade Vs. Aba Appaji Lugade - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 163 of 1906
Judge
Reported in(1908)10BOMLR924
AppellantLaxmi Tatya Lugade
RespondentAba Appaji Lugade
Excerpt:
.....section 2), section 16-probate and administration act (v of 1881), sections 86, 61, 52 -district judge-assistant judge deciding applications wherein the subject-matter does not exceed rs. 5,000 in value-appeal to district court-no direct appeal to high-court-power of local legislature to amend an act passed by supreme legislative council-india council's act (55 and 56 vic. c. 14), section 5.;the probate and administration act 1881, being a law made by an authority in india, is subject to the powers of repeal or amendment granted to the local legislature by section 5 of the india council's act, lf.92 (55 & 56 vic. c. j4.);hence, the provision of the bombay civil courts act (act xiv of 1869) section 16, by which a probate matter can be tried in the first instance by the assistant.....basil scott, c.j.1. this is an appeal from a decision in a probate matter come to by the assistant judge of satara.2. the appeal is brought directly to this court from that judge and the preliminary objection has been taken on behalf of the respondent that no appeal lies to this court in the first instance by reason of the provisions of section 16 of the bombay civil courts act xiv of 1869, as amended by bombay act i of 1900, section 2. that section as amended runs as follows :-' the district judge may refer to any assistant judge subordinate to him original suits of which the subject-matter does not amount to ten thousand rupees in amount or value, applications or references under special acts and miscellaneous applications not being of 'ya the nature of appeals. the assistant judge.....
Judgment:

Basil Scott, C.J.

1. This is an appeal from a decision in a probate matter come to by the Assistant Judge of Satara.

2. The appeal is brought directly to this Court from that Judge and the preliminary objection has been taken on behalf of the respondent that no appeal lies to this Court in the first instance by reason of the provisions of Section 16 of the Bombay Civil Courts Act XIV of 1869, as amended by Bombay Act I of 1900, Section 2. That section as amended runs as follows :-' The District Judge may refer to any Assistant Judge subordinate to him original suits of which the subject-matter does not amount to ten thousand rupees in amount or value, applications or references under special Acts and miscellaneous applications not being of 'ya the nature of appeals. The Assistant Judge shall have jurisdiction to try such suits and to dispose of such applications or references. Where the Assistant Judge's 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 five thousand rupees.7' It is admitted that the value of the subject-matter, that is, of the estate which is the subject of the probate application in this case, does not exceed Rs. 5,000, so that if the provisions of Section 16 of the Bombay Civil Courts Act have to be applied, the appeal lies from the Assistant Judge to the District Judge and not to the High Court.

3. For the appellant it has been argued that under the Probate and Administration Act V of 1881, Section 86, ' Every order made by a District Judge or District Delegate by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court under the rules contained in the Code of Civil Procedure applicable to appeals; ' and relerence is also made to Sections 51 and 52 of that Act to establish that the District Judge alone had jurisdiction in the granting of probate in this case.

4. We think however that the amendment of Section 16 of the Bombay Civil Courts Act which applied the provisions of that section to applications or references under Special Acts, of which the Probate and Administration Act is one, was within the competence of the Local Legislature; for, it is provided by Section 5 of the India Council's Act of 1892, 55 & 56 Victoria, Chapter 14, that the Local Legislature of any Province in India may with the previous sanction of the Governor-General, repeal or amend as for that Province any law made either before or after the passing of that Act by any authority in India other than that Local Legislature.' Therefore, the Probate and Administration Act, being a law made by an authority in India, was subject to the powers of repeal or amendment granted to the Local Legislature by the section which we have referred to; and the provision of the Bombay Civil Courts Act 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. 5,000, will lie to the District Court, is one which the Local Legislature was competent to make.

5. We, therefore, think that the preliminary objection is a good one, that the appeal in this case lies to the District Judge and not to the High Court in the first instance, and that we must, therefore, return the appeal to be presented to the proper Court,

6. The appellant must pay the costs of this appeal.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //