Parvathi Pillai Meenakshi Bhai and Another vs Velayudhan Pallai Karunakaran (sic)

Koshi, C.J.—This appeal arises from an interlocutory order passed by the District Judge of Trivandrum in a proceeding to revoke a probate granted by that Court. The order appealed from reads: "Post for evidence." It by implication repelled two preliminary objections raised by the grantees of the probate; one that the forum to revoke the grant was the High Court and not the District Court and the other the Petitioner, had neither ''locus standi'' nor made out "just cause" for revocation. It is unfortunate the learned Judge did not state his reasons for overruling the preliminary objections, but instead passed the laconic order quoted above.

A preliminary point was raised before us that no appeal lies from an interlocutory order like the one before us now. The Appellant himself originally filed this as a revision petition but afterwards got it converted into an appeal. Nevertheless the preliminary point is of substance and we accept it.

It will be creating an intolerable situation to hold that every order passed by a probate Court is subject to an appeal. We are not unaware that a contrary view has been taken by the Chief Court of Oudh but the better view that commends itself to us is that adopted by the Allahabad and Calcutta High Courts that it is only a final order or an order by which there is an adjudication of the rights of the parties that can form the subject of an appeal. See - Bhupendra Narain Singh Vs. Ashtabhuja Ratan Kuer, and - Monmohini Dassi Vs. Taramoni, . Other cases bearing on the point can be found collected on pp 402 and 403 of B.B. Mitra''s Commentaries on the Indian Succession Act (Sixth Edition, 1959).

While however upholding the preliminary objection we would accede to the request made by the Appellant that this may be treated as a revision petition. There is no substance in the preliminary point raised before the lower Court that the proper forum to deal with the application to revoke the probate in the instant case is this Court. No doubt the District Court originally dismissed the Respondent''s application for the grant of the probate, but on that order being vacated by the High Court it was the District Court which actually issued the probate. Besides Section 52, Probate and Administration Act, 2 of 1105 (Travancore), states that the District Judge shall have jurisdiction in granting and revoking probates and letters of administration in all cases within his District.

The second point raised before the lower Court however called for better consideration at the hands of the learned Judge than what it really received. The order before us does not look a judicial order at all. It looks more like an executive fiat. We would therefore vacate it and direct the learned Judge to deal with this preliminary point afresh and pass an order according to law stating his reasons.

In the circumstances of the case we make (sic) order for costs here.