JUDGMENT
S.S. Jha, J.
1. This appeal is filed against the order passed hy single Bench in an appeal under Section 299 of Indian Succession Act, 1925 (hereinafter referred to as the ‘Act’), affirming the order dated 2-5-1992, passed by Shri Vikas Jain, Fifth Additional District Judge, Gwalior in Probate Case No. 8/87.
2. An application for grant of probate was tiled by the appellant claiming therein that by Will dated 27-6-77 one Ramdevi has bequeathed her property in favour of appellant. The appellant claimed that he was adopted by Ramdevi. The Will was disputed and probate case was tried in the Court of Additional District Judge. Learned Additional District Judge found that the Will was not executed by Ramdevi, and dismissed the application. The appellate Court has affirmed the finding.
3. Learned counsel for the appellant submitted that the Additional District Judge had no jurisdiction to entertain the probate petition. He submitted that under Section 388 of the Act, notification is issued by the State of Madhya Pradesh, whereby all the powers of District Judge have been invested with Civil Judge Class-1. Therefore, the order passed by the Additional District Judge is null and void. He further submitted that the appeal be allowed and the petition for grant of probate filed by the appellant be returned for presentation to the proper Court.
4. Learned counsel for the appellant has referred to the judgment of the single Bench in Misc. Appeal No. 1439 of 1996, decided on 4-4-1997. This case relates to grant of succession certificate under Section 372 of the Act. Admittedly, the case referred by the counsel for the appellant relates to grant of succession certificate. Learned counsel for the appellant has also referred to the judgment of Letters Patent Appeal No. 36 of 1958 between Satyaprakash v. Jwalaprasad, decided on 4-3 1960 He referred to the followed portion of the judgment:–
“liven if it is taken that the appeal should have been filed in this Court and the District Judge was
not competent to entertain it, it does not advance
any further the appellant’s case, for the order of Shri R. S. Agarwala granting the certificate as an Additional District Judge being wholly without jurisdiction cannot be allowed to stand in these proceedings even if the appeal before the District Judge was incompetent. Under the Succession Act it is the District Judge and any Subordinate Judge invested with the powers of the District Judge under Section 388(1) who has jurisdiction to grant a succession certificate. The expression ‘District Judge’ for this purpose does not include an Additional District Judge. The sole presiding Judge of the principal civil Court of original jurisdiction is competent to grant a succession certificate as the District Judge under the Succession Act.”
The judgment of Letters Patent Appeal was in view of the position as it existed on that date. Later, the Madhya Pradcsh Civil Courts Act was amended.
5. Section 264 of the Act provides that the District Judge shall have jurisdiction in granting and revoking probates and letters of administration in all cases within his district. Section 388 of the Act is reproduced below :–
“3X8. Investiture of inferior Courts with jurisdiction of District Court for. purposes of this Act.– (1) The Stale Government may, by notification in the Official Gazette, invest any Court inferior in grade to a District Judge with power to exercise the functions of a District Judge under this Part.
(2) Any inferior Court so invested shall, within the local limits of its jurisdiction, have concurrent jurisdiction with the District Judge in the exercise of all the powers conferred by this Part upon the District Judge and the provisions of this Part relating to the District Judge shall apply to such an inferior Court as if it were a District Judge:
Provided that an appeal from any such order of an inferior Court as is mentioned in Sub-section (1) of Section 384 shall lie to the District Judge, and not to the High Court, and that the District Judge may, if he thinks fit, by his order on the appeal, make any such declaration and direction as that sub-section authorises the High Court to make by its order on an appeal from an order of a District Judge.
(3) An order of a District Judge on an appeal
from an order of an inferior Court, under the last foregoing sub-section shall, subject to the provisions as to reference to and revision by the High Court and as to review of judgment of the Court of Civil Procedure, 1908, as applied by Section 141 of that Code, be final.
(4) The District Judge may withdraw any proceedings under this Part from an inferior Court, and may either himself dispose of them or transfer them to another such Court established within the local limits of the jurisdiction of the District Judge and having authority to dispose of the proceedings.
(5) A notification under Sub-section (I) may specify any inferior Court specially or any class of such Courts in any local area.
(6) Any Civil Court which for any of the purposes of any enactment is subordinate to, or subject to the control of, a District Judge shall, for the purposes of this Section, be deemed to be a Court interior in grade to a District Judge.”
Sub-section (1) of Section 388 provides that the State Government may, by notification in the Official Gazette, invest any Court inferior in grade to a District Judge with power to exercise the functions of a District Judge under this Part. (Underlining emphasized). Thus, the notification under Section 388 of the Act is applicable to the proceedings under Part X of the Act. Part X relates to grant of succession certificate.
6. Vide notification dated 1-1-1959, No. 11-7375-XXI-B-58, the State Government, in exercise of powers conferred by Sub-section (1) of Section 388 of the Act, had invested all Courts of Civil Judge Class-1 in Madhya Pradesh with the functions of District Judge under Part X of the said Act, with effect from 1-1-1959. Therefore, the application under Part X should be filed before Civil Judge Class-1, as powers have been conferred upon the Civil Judge Class-1.
However, Sub-section (2) of Section 388 provides that any inferior Court so invested shall, within the local limits of its jurisdiction, have concurrent jurisdiction with the District Judge in the exercise of all the powers conferred by this Part upon the District Judge. Thus, by this notification powers of District Judge are not excluded. The inferior Court so invested with the powers of District Judge shall have a concurrent jurisdiction with District Judge. Therefore, power to entertain
the application for grant of probate vests with the District Judge under Section 264 of the Act. Section 264 of the Act is in Part IX of the Act, therefore, notification under Section 388 will not be applicable.
7. “District Judge” is defined in the Act under Section 2(bb). The word “District Judge” means the Judge of principal Civil Court of original jurisdiction. The principal Civil Court of original jurisdiction has been considered by this Court by interpreting the provisions of Madhya Pradesh Civil Courts Act, 1958. In the case of Vinod Kumar Jajodia v Brij Bhushan Agarwal, reported in 1993 Jab LJ 565, it is held that an Additional Judge to the Court of District Judge appointed in any district has the same power as the District Judge has, and is entitled to exercise jurisdiction of the Court of District Judge. He is entitled to exercise functions of principal Civil Court of original jurisdiction like District Judge himself. After substitution of Sub-section (2) of Sections 7 and 8 of the Madhya Pradesh Civil Courts Act, 1958, by Act No. 7 of 1980, there is no substance in the argument that suit of value more than Rs. 20,000/- cannot be originally instituted in the Court of Additional Judge to the Court of District Judge. Under Section 8, the Court of Additional Judge can exercise power of District Judge even in the absence of general and special order. The District Judge, for the purpose of Section 264, is not a persona designata.
8. Since a separate institution is permissible in the Court of Additional District Judge, the Additional District Judge is also a Judge of principal Civil Court of original jurisdiction and has power to entertain the probate proceedings and he will be the District Judge within the meaning of Section 264 of the Act.
9. Learned counsel further submitted that the Additional District Judge is only a District delegate under Section 10 of the Madhya Pradesh Civil Courts Act.
10. There is no notification cither under Section 10 of the Madhya Pradesh Civil Courts Act or under Section 265 of the Act by the High Court. He submitted that the application under Part IX of the Act cannot be disposed of by the district delegate.
11. In the absence of any notification under Section 10 of the Madhya Pradesh Civil Courts
Act, this contention of the counsel for the appellant has no force.
12. The contentions of the learned counsel for the appellant are misconceived and are rejected. The concurrent finding of fact is recorded. Therefore, there is no substance in this appeal. The appeal fails and is dismissed. There shall be no orders as to costs.