The Judgment of the Court was as follows:—

Sandesson, C.J:— This is an appeal by Pran Kumar Pal Chaudhury against the judgment of my learned brother Mr. Justice Gregory, delivered on the 23rd of March 1926.

It appears that certain probate proceedings were pending in the Court of the learned District Judge of Barisal in which the Appellant was the Plaintiff and the Respondent was the Defendant.

A Rule had been granted by a learned Judge, sitting on the Original Side of this Court, calling upon the Appellant to show cause why the Probate Suit No. 2 of 1925 pending in the Court of the District Judge of Barisal should not be removed from the said Court at Barisal to this Court for trial of the same by the High Court.

That Rule was heard by Mr. Justice Gregory and, on the merits, he came to the conclusion that, for the purpose of justice and on considerations of convenience, it was proper that the probate case pending at Barisal should be removed and tried and determined in the High Court. He, therefore, made the Rule absolute and, in the exercise of the power conferred by cl. 13 of the Letters Patent, he directed that Probate Case No. 2 of 1925 then pending in the Court of the District Judge of Barisal should be removed from that Court and should be tried and determined in the High Court.

The facts which it is necessary for me to mention are as follows:—

The testator died at Faridpur in March 1925, and it was alleged that he made a Will, dated the 9th of August 1907. On the 26th of August 1925 the Appellant, who had been appointed executor under the Will, applied for probate in the Barisal Court. On the 9th of September 1925 the widow of the testator filed a caveat objecting to the granting of probate. The Respondent, who is the minor son of the testator, filed a written statement on the 28th of October 1925, and the ground of his objection to the Will was that the Will was a forgery, and it was alleged that the deceased man had been of unsound mind sines the year 1903. The proceedings in the Barisal Court were headed “Probate Suit No. 2 of 1925.”

The grounds upon which the learned Judge decided this application have not been investigated in this Court, because the learned Advocate, who appeared for the Appellant, stated that, if the learned Judge had jurisdiction under cl. 13 of the Letters Patent to direct that the case should be tried in the High Court on the ground that the proceedings were a “suit” within the meaning of cl. 13 of the Letters Patent, he was bound by the decision of the late Mr. Justice Mookerjee and another learned Judge of this Court in the case of Khatizan v. Sonairam , that there was no appeal in such a case.

The point on which the learned Advocate relied was not taken before the learned Judge on the Original Side. Shortly stated, it was as follows:—

The argument was that the learned Judge had no jurisdiction, because the proceedings in the Barisal Court were not a “suit” within the meaning of cl. 13 of the Letters Patent.

Cl. 13 is as follows:— “And we do further ordain that the said High Court of Judicature at Port William in Bengal shall have power to remove, and try and determine, as a Court of extraordinary original jurisdiction, any suit being or falling within the jurisdiction of any Court, whether within or without the Bengal Division of the Presidency of Fort William, subject to its superintendence when the said High Court shall think proper to do so, either on the agreement of the parties to that effect, or for purposes of justice, the reasons for so doing being recorded in the proceedings of the said High Court.”

The argument presented on behalf of the Appellant was that the Letters Patent contemplated an application for a grant of probate and the proceedings in connection therewith as something different from a civil suit, such as was contemplated by cl. 13, and the main ground for the argument was that cl. 34 of the Letters Patent conferred a jurisdiction on the High Court “in relation to the granting of probates of last Wills and testaments, and letters of administration, of the goods, chattels, credits and all other effects whatsoever of persons dying intestate, whether within or without the said Bengal Division.”

It was argued that cl. 34 was headed “Testamentary and Intestate Jurisdiction” and that it was the intention of the Letters Patent that the proceedings in connection with the grant of probate or letters of administration should be treated as being different from a “suit” which is referred to in cl. 13, which clause was contained in that part of the Letters Patent which related to “Civil Jurisdiction of the High Court.”

In my opinion, the object of cl. 34 was to confer jurisdiction upon the High Court with regard to the matters which are mentioned in that clause, and the fact that probate and administration proceedings were dealt with in a separate clause of the Letters Patent is not sufficient to show that the proceedings in connection therewith could not be a suit within the meaning of cl. 13.

In the first place, I propose to consider what is the nature of the proceedings in connection with an application for a grant of probate. There is no doubt that in such proceedings the question of title to property does not arise. The question is whether one or other of the parties to the proceedings is entitled to represent the estate. But, when the proceedings are contested, as in this case, the Court has to try an issue which arises between the parties and which involves the question whether the Plaintiff is entitled to have a grant of probate or whether the person, who has entered a caveat and who has become a Defendant, has substantiated and proved the defence which he has set up.

I refer to a passage in Sir John Woodroffe's book on the Code of Civil Procedure, 2nd Edition, at page 44, which is as follows:— “Contentious proceedings for the grant of probate were held to be a suit, as an order granting probate, though spoken of in the Probate Act as an order, is for the purposes of the Code a decree, because, so far as the Court granting the probate is concerned, it decides not only a right to have the probate granted, but also the defence set up against the grant.”

The learned Chief Justice in the case of In the goods of Colonel John Shelton, deceased (2), at page 173, described probate proceedings as follows:— “A contest for probate is a suit to try the question of testacy or intestacy, and that administration is a matter of civil right.”

In my opinion, these passages correctly describe the nature of the proceedings for the grant of probate which are contested: and, in the ordinary acceptation of the word, there is no doubt that proceedings for the grant of probate, which are contested, would come within the meaning of the word “suit.”

The Letters Patent of 1865 of this Court were dated the 28th December 1865. In March 1865, an Act which is called the Indian Succession Act (X of 1865) had been passed. Under that Act, jurisdiction was given to District Judges to grant and revoke probates and letters of administration in all cases within their districts. That jurisdiction was given by sec. 235 of the Succession Act of 1865.

Sec. 236 of that Act provided: “The District Judge shall have the like powers and authority in relation to the granting of probate and letters of administration, and all matters connected therewith, as are by law vested in him in relation to any civil suit or proceeding pending in his Court.”

Sec. 238 provided: “The proceedings of the Court of the District Judge in relation to the granting of probate and letters of administration shall, except as hereinafter otherwise provided, be regulated so far as the circumstances of the case will admit by the Code of Civil Procedure;” and sec. 261 provided: “In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, in which the Petitioner for probate or letters of administration, as the case may be, shall be the Plaintiff, and the person who may have appeared as aforesaid to oppose the grant shall be the Defendant.”

Those provisions were in force at the time when the Letters Patent of this Court were issued, and those who were responsible for the Letters Patent must have known of the provisions of the Succession Act of 1865.

It appears from those provisions that proceedings in connection with an application for the grant of probate did not acquire the character of a “suit” until a caveat had been entered: or, to put it in another way, when a caveat had been entered and a written statement had been filed, in my judgment, the probate proceedings reached the stage of a contentious suit: and the words which I quoted from the judgment of the learned Chief Justice in In the goods of Colonel John Shelton, deceased are peculiarly applicable. The proceedings have then become “a suit to try the question of testacy or intestacy and that administration is a matter of civil right.”

The sections of the Indian Succession Act, to which I have referred, have been reproduced in the Probate and Administration Act of 1881. I do not propose to read the sections. The material ones are secs. 51, 53, 55 and sec. 83.

The learned Advocates, who argued this case on behalf of the Appellant, have not convinced me that probate proceedings, which are contested and which have taken the form of a suit by reason of the statutory provisions to which I have referred, do not come within the meaning of the word “suit” in cl. 13 of the Letters Patent.

In my judgment, when my learned brother Mr. Justice Gregory was called upon to adjudicate in respect of the Rule, which had been granted, and had to consider whether the Rule should be made absolute, the proceedings in the Barisal Court had become a “suit” within the meaning of cl. 13 of the Letters Patent and he had jurisdiction to make the transfer.

There is nothing more for me to say except that in an unreported case which was headed, In the goods of Nripendra Chandra Basak, deceased , this point was specifically raised before my learned brother Mr. Justice C.C Ghose and the judgment was delivered on the 1st of June 1925. The learned Judge decided that he had jurisdiction to transfer the proceedings, which were contested testamentary proceedings in a subordinate Court, to the High Court. The matter came on appeal to this Court and was heard by my learned brother Mr. Justice Buckland and me. It was dismissed on the ground that the appeal did not lie, the Court relying upon the decision in Khatizan v. Sonairam . It is only material to notice that the point, which had been taken before the learned Judge (Mr. Justice C.C Ghose) on the Original Side was not raised at the hearing of the appeal in this Court.

For these reasons, in my judgment, this appeal should be dismissed with costs.

Panton, J.:— I agree.

Messrs Dutt & Sen, Solicitors for the Appellant.

Mr. T.B Roy, Solicitor for the Respondent.

P.C