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Esoof Hasshim Dooply and anr. Vs. Fatima Bibi Alias Mah Poh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in(1897)ILR24Cal30
AppellantEsoof Hasshim Dooply and anr.
RespondentFatima Bibi Alias Mah Poh and ors.
Excerpt:
appeal - lower burmah courts act (xi of 1889), section 40--burmah courts act (xvii of 1875), section 49--probate and administration act (v of 1881), sections 3 and 86--code of civil procedure (act xiv of 1882), sections 595 and 614--final decree passed by the hecorder of rangoon in the exercise of original civil jurisdiction where the value of the subject-matter of the suit is above ten thousand rupees. - .....in council from any final decree passed by the recorder of rangoon in the exercise of original civil jurisdiction.' the lower burmah courts act came into operation on the 30th of may 1889. section 40 of that act provides that, save as otherwise provided by any enactment, for the time being in force, an appeal shall lie to the high court from a decree or order of the recorder in a suit or civil proceeding of which the value of the subject-matter is less than rupees 10,000.4. the case made here on behalf of the appellant is that the recorder disposed of the matter as a district judge, and that an appeal to this court is expressly given in all cases against such a decision by the probate and administration act, whatever may be the value of the subject-matter, and is not taken away by.....
Judgment:

Petheram, C.J., and Rampini, J.

1. This is an appeal from a judgment of the Recorder of Rangoon by which he refused probate of an alleged will of a person named Mahomed Ibrahimji Dooply, whose estate is valued at more than six lakhs of rupees, and the first question we have to consider is whether the appeal lies to this Court or to Her Majesty in Council.

2. The Probate and Administration Act came into operation on the 21st of January 1881. By 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, of that Act every order made by a District Judge under the powers of the Act is subject to appeal to the High Court, and the definition of a District Judge in Section 3 is wide enough to include the Recorder of Rangoon.

3. The Civil Procedure Code came into operation on the 17th of March 1884 Section 614 of that Code enacts that the expression 'High Court' in Section 595 shall include the Recorder of Rangoon, with the result that Section 595 will read: An appeal shall lie to Her Majesty in Council from any final decree passed by the Recorder of Rangoon in the exercise of Original Civil Jurisdiction.' The Lower Burmah Courts Act came into operation on the 30th of May 1889. Section 40 of that Act provides that, save as otherwise provided by any enactment, for the time being in force, an appeal shall lie to the High Court from a decree or order of the Recorder in a suit or civil proceeding of which the value of the subject-matter is less than rupees 10,000.

4. The case made here on behalf of the appellant is that the Recorder disposed of the matter as a District Judge, and that an appeal to this Court is expressly given in all cases against such a decision by the Probate and Administration Act, whatever may be the value of the subject-matter, and is not taken away by the subsequent legislation.

5. Whatever may have been the law on the subject between January 1881 and March 1882, the tribunal to which appeals lay from final decrees passed by the Recorder of Rangoon in the exercise of Original Civil Jurisdiction was between March 1882 and May 1889, regulated by Section 595 of the Civil Procedure Code and Act XVII of 1875, Section 49.

6. If the provisions of the Code are inconsistent with those of the Probate and Administration Act, those of the Code must prevail, as it is the later enactment. That being so, the only question is whether the decree of the Recorder is a final decree passed by him in the exercise of Original Civil Jurisdiction. We think it is. No doubt in some cases, as in the Burmah Courts Act, 1889, Civil Jurisdiction is sub-divided, but where this is not done, we are clearly of opinion that the words Original Civil Jurisdiction are wide enough to include all matters which are not criminal, and therefore to include those which relate to wills. The decision must, we think, be final within the meaning of Section 595, though it is appealable, as the section is dealing with original decrees of High Courts, which are always appealable.

7. Section 40 of the Lower Burmah Courts Act, 1889, does not really touch the present question. That section only deals with matters in which the subject-matter is below the value of Rs. 10,000, which is certainly not the case here.

8. The result is that in our opinion the case is governed by Sections 595 and 614 of the Civil Procedure Code, and that no appeal lies to this Court.

9. This is, of course, enough to dispose of the appeal, but as the case has been argued before us by Mr. Pugh on the merits, and as it may go further, we think it right to say that in our opinion the Recorder was right to refuse probate of this will and to express very shortly our reasons for that opinion.

10. [After considering the evidence their Lordships concluded as follows.]

11. Under these circumstances, bearing in mind that we are sitting here as a Court of First Appeal, and that our decision might be appealed against, we think that we should say that in our opinion the appeal cannot be sustained even on the evidence, but we do not dismiss the appeal on this ground, but we dismiss it inasmuch as we think that we have no jurisdiction to hear it. The appeal is accordingly dismissed with costs.


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