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 Civil P. C. applicable to appeals; " and relerence is also made to Secs.51 and 52 of that Act to establish that the District Judge alone had jurisdiction in the granting of probate in this case.