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FA/6619/1991 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 66 of 1991
=========================================================
MOTUBEN
JUGRAJ GUMANMAL & 2 - Appellant(s)
Versus
KANCHANBEN
DAUGHTER OF JATANBEN - Defendant(s)
=========================================================
Appearance
:
MR
SANDIP C SHAH for
Appellant(s) : 1 - 3.
None for Defendant(s) : 1,
MR MRUGEN K
PUROHIT for Defendant(s) : 1.2.1
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 22/08/2008
ORAL
ORDER
1. Present
appeal arises out of a judgment and order passed by Joint Civil Judge
(S.D.) Vadodara on 02.01.1991 in Civil Misc. Application No.202 of
1976. The said application was preferred for obtaining probate in
respect of will of Khamanben dated 02nd July,1974. By
the impugned judgment and order, learned Civil Judge (S.D.) Vadodara
dismissed the said application. Hence, this appeal.
2. The
question that arises for preliminary determination of this Court is,
whether this appeal would be maintainable before this Court. In this
regard, it would be appropriate to record that the judgment and order
under challenge is rendered by learned Civil Judge (S.D.)
Vadodara(now nomenclatured as Senior Civil Judge ).
2.1 By
virtue of coming into force of the Gujarat Civil Courts Act,2005 with
effect from 9th May,2005, appeals from the decree and
orders passed by a Court of Senior Civil Judge in original suits and
proceedings of civil nature, shall lie to the Court of District Judge
of the district when the amount or value of the subject matter of the
original suit or proceedings is less than five lakhs of rupees or
such other sum as the High Court may, from time to time, specify
[Section 15(2)(a)].
3. As
such, by virtue of the new Act coming into force, the matter shall
have to be transferred to District Vadodara for disposal in
accordance with law. However, since the appeal arises out of a Civil
Misc. Application for probate which is under Indian Succession Act
and Section 299 of the Indian Succession Act provides for the forum
of appeal, it would be appropriate to examine the issue from that
angle. The said issue is covered by the decision rendered by this
Court in First Appeal No. 983 of 2005 dated 25.07.2005 and Civil
Reference No. 3 of 2007 dated 23.10.2007.
4. In
light of provisions contained in Section-30(3) of the Gujarat Civil
Courts Act,2005, all suits, appeals and proceedings connected
therewith pending before any Court would stand transferred to such
other Court having jurisdiction as per Section-15 of the said Act.
This appeal, therefore, will have to be transferred to the Court of
District Judge Vadodara for disposal in accordance with law.
5. Registry
is directed to transfer the appeal at the earliest to the District
Court, Vadodara along with R & P of the Trial Court, if lying
before this Court for disposal in accordance with law. For the
purpose of this Court, the appeal stands disposed of. Interim relief
if any shall continue.
(K.S.
JHAVERI, J.)
Divya//
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