Chittatosh Mookerjee, Chief Justice - (1.) Both this appeal and C. O. No. 1709 of 1986 are taken up. Satya Prasad Ghose, who is the opposite party No. 1 in the revisional application being aggrieved by the judgment and decree dated 15th July, 1984 passed by the learned Asstt. District Judge, Bankura, in Probate Suit No. 9 of 1974 had originally presented in this Court, Appeal from Original Decree Tender No. 3134 of 1984, Thereafter, by an order of the Division Bench, the Memo of Appeal was directed to be returned with liberty to refile the same before the learned District Judge With respect, the order for the return of the Memo of Appeal was patently erroneous on the face of the record. Because the appeal against the judgment and decree of the probate suit would lie to this Court.
(2.) Irrespective of value of the probate suit, the judgment of the learned Subordinate Judge was subject to appeal to this Court under section 299 of the Indian Succession Act, 1925. The point is concluded by the Division Bench of Sir Gurudas Banerjee and Wilkins, JJ. in the case of Kunjo Behari Gossami and Another v. Hem Chunder Lahiri, I. L. R. 25 Cal 340 While considering the maintainability of the appeal preferred under the corresponding provision of the Probate and Administration Act against the decision of the learned Subordinate Judge rendered in a contentious probate case the Division Bench upheld the maintainability of the appeal in this Court. Similar to the facts of the reported case as in the present one the probate application under section 276 of the Succession Act had been presented to the District Judges Court. After caveat was entered and the case became a contentious one, it was to be heard no longer by the District Delegate but by the District Judge which expression included the court to which the suit in terms of section 25 of the Bengal, Agra, and Assam Civil Courts Act may be transferred. In the instant case, prima facie, the case was transferred under orders of the District Judge to the court of the Subordinate Judge concerned, who ultimately disposed of the suit. In the above view, section 299 of the Indian Succession Act would be attracted and the forum of the appeal would be the High Court and not the District Judges Court. The view we have taken, in this case is also supported by the Division Bench decision of Patna High Court in the case of Baroda v. Phutumani, AIR 1933 Pat 276.
(3.) In the above view, we recall the previous order of this Court returning the Memo of Appeal in F.A T. No. 3134 of 1984 and also set aside all subsequent actions made in pursuance thereof.;