Uma Charan Das vs Muktakeshi Dasi on 16 July, 1900

Calcutta High Court
Uma Charan Das vs Muktakeshi Dasi on 16 July, 1900
Equivalent citations: (1901) ILR 28 Cal 149
Author: Maclean
Bench: F W Maclean, K Banerjee, Stevens

JUDGMENT

Maclean, C.J.

1. This appeal music succeed. A preliminary objection has been taken that an appeal does not lie to this Court from an order of the District Judge in a case such as the present. I am unable to accept that view. Section 86 of the Probate and Administration Act says that every order made by a District Judge or District Delegate by virtue of the powers thereby conferred upon him shall be subject to appeal to the High Court. The order now appealed against is an order made by the District Judge, but it is said that an appeal does not lie because the expression “hereby,” only applies to powers conferred under the chapter which contains the section, and this argument rests upon the position in which the section is placed in the Act itself. I am unable to accept that view: there is nothing in the Act to narrow the meaning of the expression “hereby” which to my mind means “by the whole Act” and not merely by the chapter in which the section appears. An appeal, therefore, lies. * * * * * * The appeal must be allowed with costs in both Courts.

Banerjee, J.

2. I am of the same opinion. I only wish to add a few words with reference to the preliminary objection taken that no appeal lies against the order in question. The provision in the Probate and Administration Act in regard to appeals is Section 86, which provides that “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,” &c. It is true that the order appealed against is an order granting the respondent permission to dispose of immoveable property, and the section of the Act which speaks of such permission is Section 90, which is contained in ch. VI of the Act which follows ch. V in which Section 86 occurs. But Section 90 does not say anything about the power of the District Judge to grant permission to dispose of immoveable property, and the power which the District Judge has to grant such permission must be that conferred upon him by Section 51, which precedes Section 86 and which provides that the District Judge shall have jurisdiction in granting and revoking probate and letters of administration in all cases within his district. The power to grant permission to an administrator to dispose of immoveable property must be considered as ancillary to the power vested in the District Judge in granting letters of administration.

Stevens, J.

3. I also think that an appeal lies in this case and that the appeal on the merits should be allowed.

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