Md.Equbal vs Madina Begum
2021 Latest Caselaw 3836 Jhar

                         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                             (Civil Miscellaneous Appellate Jurisdiction)
                                         F.A. No.186 of 2019
                                                 -----

1. Md.Equbal

2. Md.Nawab

3. Md.Sahajada .............................................................................. Appellants Versus

1. Madina Begum

2. Zooman Begum

3. Sahajaha Begum .........................................................................Respondents

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 CORAM:              HON'BLE THE CHIEF JUSTICE
               HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                                          -----
  For the Appellants           :Mr. Krishanu Ray, Advocate
  For the Respondents          :M/s Rahul Kumar Gupta & Kushal Kumar,
                                Advocate

 C.A.V. on 21.09.2021                                                      Pronounced on 07/10/2021

Per Dr. Ravi Ranjan, C.J.:

1. The questions which have been referred by a learned Single

Judge to the Larger Bench for an authoritative decision is as under:

(i) Whether decree is to be prepared in a probate case?

(ii) Whether a contentious proceeding referred under Section

295 of the Indian Succession Act, 1925 has same meaning

as of a suit filed under Section 26 of the C.P.C.?

2. The answer to the aforesaid questions will be depending upon the

points as to whether a petition filed under Section 272 or Section 273 of

the Indian Successions Act, 1925 (hereinafter referred to as the "Act") can

be treated to be a plaint and its presentation before the competent court

can be treated to be presentation of a plaint so as to consider it to be a

suit instituted under Section 26 r/w Order IV rule 1 of the Code of Civil

Procedure.

3. The instant First Appeal has been preferred by the plaintiffs-

appellants assailing the order dated 28.02.2019 passed by learned District

Judge-I, West Singhbhum at Chaibasa in Original Suit No.03 of 2010.

4. Let it be noted here that decree was signed on 6.3.2019. The

Office of this Court vide its note dated 24.05.2020 raised a question

regarding maintainability of First Appeal in a probate matter under

Section 96 of the Code of Civil Procedure.

5. It was urged on behalf of the appellants that Probate Case No. 02

of 2009 was converted into a regular Title Suit and, as such, as per the

provisions contained in Section 295 of the Act, the procedure to be

adopted in a contentious case would take form of a regular suit in

accordance with the provisions of the Code of Civil Procedure and the

petitioner shall be considered to be a Plaintiff and the person who has

appeared to oppose the grant, shall be the Defendant. At the strength of

this, it was urged before the learned Single Judge that since a suit was

decided in a regular form like original title suit and the judgment/order

was passed on contesting the suit and subsequently, a decree was also

prepared under Order XXII Rule 6 and 7 of the Code of Civil Procedure,

the same has to be treated to be an appeal under Section 96 of the Code,

having been preferred against a decree.

6. Learned counsel for the appellants taking help of Section 2(2) of

the Code of Civil Procedure as well as Section 275 of the Act made an

endeavor to impress upon the learned Single Bench that in view of

conclusiveness of the proceeding and the definition of "decree" since

necessarily means formal expression of adjudication, the same has to be

considered and further in view of Section 295 of the Act which lays down

that procedure to be adopted by the District Judge while granting or

refusing to grant a probate in contentious case shall take 'as nearly as

may be' the form of a regular suit, petitioner becoming the plaintiff and the

objector becoming the defendant. Thus, it would be safe and proper to

hold that a regular suit, since has been decided and a final judgment

having been pronounced, the same would be appealable under Section 96

of the Code of Civil Procedure. The Appellants also took help of Section

299 of the Act which lays down that every order made by a District Judge

shall be subject to appeal to the High Court in accordance with the

provisions of the Code of Civil Procedure as applicable to appeals.

Therefore, there can be no harmonious consideration other than holding

that appeal will lie under Section 96 of the Code of Civil Procedure. It was

further urged that in the present case, since a decree has been prepared,

appeal would not lie under Section 299 of the Act, rather, it has to be

preferred under Section 96 of the Code of Civil Procedure and has to be

named as First Appeal.

To buttress his submissions, learned counsel for the appellants

placed reliance upon a decision of the Division Bench of the Patna High

Court dated 11.8.2017, rendered in Kusheshwar Purbey v. Shri Shri

Ram Janki Jee. The contention of the appellants was that similar

question cropped up before the Division Bench of Patna High Court and

after considering the rival submissions, the Patna High Court considered

the petition filed under Section 272 or 273 of the Act as a plaint and the

proceeding in view of Section 26 r/w Order IV Rule 1 of the Code of Civil

Procedure to be a formal suit in which a decree has been pronounced and,

thus, it will be a First Appeal against the decree prepared under Section

33 read with Order XX11 Rule 6 and 7 of the Code of Civil Procedure.

7. Per contra learned counsel for the respondents had submitted

that the said decision of Division Bench of Patna High Court

[Kusheshwar Purbey v. Shri Shri Ram Janki Jee (supra)] could not

notice earlier Division Bench of Patna High Court in Sidhnath Bharti v

Jai Narayan Bharti, 1994, SCC online Pat 61: AIR 1994 Patna 144 :

1994) I PLJR 644. According to the respondents, there was no

justification for preparation of decree which itself has created confusion.

8. Upon the aforesaid set of facts, reference has been made by the

learned Single Judge to be considered by a Larger Bench.

9. Since, both the issues as referred by the learned Single Judge are

intertwined, they are being taken up together for consideration.

10. As per the scheme under the Act, a proceeding for grant of

probate or issuance of letters of administration is to be initiated under

Section 272 and/or 273 of the Act and for that purpose one is required to

file a petition either under Section 276 or 278 of the Act. Thereafter, the

petitioner is required to make a statement as per Section 279 of the Act.

The petition for probate etc. is, thereafter, verified under Section 281.

There is a provision under Section 284 of the Act envisaging filing of

caveats against the grant of probate or letters of administration. If caveat

is filed and caveatable interest is accepted by the Court then the case

becomes contentious one. Thereafter, the provision contained under

Section 295 of the Act would become relevant, which is quoted as under:-

"295. Procedure in contentious cases.- 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, 1908 (5 of 1908) in which the

petitioner for probate or letters of administration, as the

case may be, shall be the plaintiff, and the person who

has appeared to oppose the grant shall be the

defendant".

11. It would be apparent from the aforesaid provision that once the

case becomes contentious, the proceedings shall take 'as nearly as may

be' the form of a regular suit, in which, according to the provisions of the

Code of Civil Procedure, the petitioner for probate shall become the

plaintiff and the objector after acceptance of caveator's right to oppose the

grant of probate, shall become the defendant. Thereafter, there is a

provision of appeal from the orders of the District Judge as enshrined

under Section 299 of the Act which is reproduced as under for better

appreciation:-

"299. Appeals from orders of District Judge.- Every

order made by a District Judge by virtue of the powers

hereby conferred upon him shall be subject to appeal to

the High Court in accordance with the provisions of the

Code of Civil,1908 (5 of 1908), applicable to appeals".

12. Now the moot question which arises for determination in this

case is as to whether such order or judgment as delivered by the

competent court allowing or refusing to grant probate or letters of

administration under Section 272 or 273 r/w Section 276 of 278 of the

Act and ultimately granting the same under Section 289 of the Act in case

of probate and Section 290 of the Act in case of letters of administration,

can be assailed or any other order passed during the proceeding can be

assailed under Section 299 of the Act in an appeal which lies before the

High Court, in accordance with the provisions of the Code of Civil

Procedure and whether the final orders can be considered to be a decree?

13. The decree has been defined under Section 2(2) of the Code of

Civil Procedure as under:

"2(2) "decree" means the formal expression of an

adjudication which, so far as regards the Court

expressing it, conclusively determines the rights of the

parties with regard to all or any of the matters in

controversy in the suit and may be either preliminary or

final. It shall be deemed to include the rejection of a

plaint and the determination of any question within

section 144, but shall not include - (a) any adjudication

from which an appeal lies as an appeal from an order,

or(b) any order of dismissal for default. I Explanation-A

decree is preliminary when further proceedings have to

be taken before the suit can be completely disposed or.

It is final when such adjudication completely disposes

of the suit, it may be partly preliminary and partly

final;"

14. Section 96 of the Code of Civil Procedure has been provided for

preferring appeal from the original decree, which reads as under:

"96. Appeal from original decree .- (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

[(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed [ten thousand rupees.]"

15. Another provision for preferring appeal lies under Section 104 (1)

of the Code of Civil Procedure, which is being extracted and reproduced as

under:

"104. Orders from which appeal lies.- (1) An appeal

shall lie from the following orders, and save as

otherwise expressly provided in the body of this Code or

by any law for the time being in force, from no other

orders:-

[ * * * * *]

[(ff) an order under section 35A;]

[(ffa) an order under section 91 or section 92 refusing

leave to institute a suit of the nature referred to in

section 91 or section 92, as the case may be;]

(g) an order under section 95;

(h) an order under any of the provisions of this Code

imposing a fine or directing the arrest or detention in the

civil prison of any person except where such arrest or

detention is in execution of a decree;

(i) any order made under rules from which an appeal is

expressly allowed by rules:

[Provided that no appeal shall lie against any order

specified in clause (ff) save on the ground that no order,

or an order for the payment of a less amount, ought to

have been made.]

(2) xxx xxx xxx xxx xxx xxx."

16. Section 26 r/w Order IV Rule 1 of the Code of Civil Procedure

envisages that every suit shall be instituted by the presentation of a plaint

or in such other manner as may be prescribed before the court whereas

Order XLI Rule 1 of the Code of Civil Procedure provides that every appeal

shall be preferred in the form of a memorandum signed by the appellant

or his pleader and presented to the Court or to such officer as is appointed

in this behalf. The memorandum shall be accompanied by a copy of the

judgment.

Let it be noted here that after the amendment brought by the Act

46 of 1999, the word 'judgment' was substituted by the word 'decree' in

Order XLI Rule 1. That apart, as per Section 104(1) of the Code of Civil

Procedure, there are certain orders against which appeal lies before the

appellate forum. Therefore, there are two provisions of appeal from

Original Decree or Order. The first one is appeal from the original decree

as provided under Section 96 read with Order XLI Rule 1 of the Code of

Civil Procedure and another is Section 104(1) of the Code of Civil

Procedure, which is provided for the orders passed by the competent

court, as envisaged under the aforesaid Section r/w Order XLIII Rule 1 of

the Code of Civil Procedure. However, it is further to be noted that Section

104(1) of the Code of Civil Procedure also provides a forum of appeal

against the orders not even provided under the body of Code but by any

other law for the time being in force.

17. Now a question will arise, whether against a final order disposing

of the proceeding when passed in a contentious case under Section 295 of

the Act, appeal would be available under the provisions of Section 96 r/w

Order XLI Rule 1 or Section 104(1) of the Code of Civil Procedure and

whether preparation of a decree is an absolute necessity and the decree,

even if prepared, is required to be accompanied by memorandum of appeal

for a valid presentation of the appeal in the High Court?

18. A learned Single Judge of Patna High Court in the decision

rendered in Nand Kishore Singh Vs. Sri Ram Ahir, 1988 SCC Online

Pat 262 had noticed a Division Bench of Allahabad High Court in the case

of Dr. Mrs. I.S. Bose Vs. Mrs. H.N. Judah, A.I.R. 1958 Allahabad 672

holding that once the proceedings are treated as proceedings in a regular

suit, all the incidents of a suit will fasten to such proceedings. An appeal

against an order passed in such a suit will therefore be an appeal from a

decree and should be treated as such for the purpose of taxation also.

However, the Full Bench of Allahabad High Court in the case of Mrs.

Panzy Fernanda Vs. Mrs. M.P. Queoros, A.I.R. 1963 Allahabad 153

took a view that proceedings for letters of administration under the Act are

not commenced by institution of a plaint rather they are commenced by

filing an application/petition, thus, the decision appealed against, as

described in Section 299 of the Act, would be an order and not a decree.

The learned Single Judge ultimately held in paragraph no.21 as

hereunder:

"I am, accordingly, of the opinion that the memorandum

of appeal filed against the final order in a proceeding for

probate or letters of administration under Section 299 of

the Act to the High Court in accordance with the

provision of the Code of Civil Procedure need not

accompany a formal decree and the appeal cannot be

held to be incompetent for non-accompaniment of such a

formal decree, whether prepared or not prepared. The

provisions of the Code of Civil Procedure relevant to

such an appeal would be section 104(1)"

19. Subsequently a Division Bench of Patna High Court in Sidhnath

Bharti Vs. Jai Narayan Bharti, 1994 SCC Online Pat 61, had already

taken up the issue for determination. The facts of the aforesaid case was

that a First Appeal was filed against a judgment passed by the Additional

District Judge, Saran at Chappra, in a probate case granting probate in

favour of the respondent in respect of a will dated 14.4.1954, on filing of a

petition for grant of probate. The appellant of the aforesaid appeal filed a

caveat and opposed the grant of probate. However, the probate was

ultimately granted against which a First Appeal was preferred. The stamp-

reporter raised an objection that the decree was not filed along with the

memorandum of appeal and, as such, the appeal was incompetent. After

hearing the rival submissions, the learned Single Judge called for a report

from the Additional District Judge, Saran at Chappra, who submitted a

report stating that no formal decree is drawn up in a contentious probate

case and the proceeding is closed after the probate is drawn up, sealed

and signed. On receipt of such report, the matter was referred by the

learned Single Judge to the Division Bench and the Division Bench

noticing several authorities of law, held in paragraph no.18 of the

aforesaid judgment as under:

"Thus, after considering the question from different

angles, I held that the contentious proceeding for grant

or refusal of probate and Letters of Administration is not

a suit in substance and the order in the said proceeding

is not a decree, as it does not fulfil the ingredients of

decree as defined under the Code. There is no

requirement in law that an order in a contentious

proceeding should be followed by a decree. In that view

of the matter, a decree is not required/in law, to be filed

along with the memorandum of appeal under Section

299 of the Act and, as such, the appeal cannot be held

to be incompetent due to not filing of a copy of a decree

along with the memorandum of appeal. Accordingly,

office is directed to proceed with the appeal."

20. It is to be noted here that the decision having been rendered in

the year, 1994 by Patna High Court would be a binding precedent as the

same was referred prior to coming of the Bihar Reorganization Act, 2000

under which a separate High Court for the State of Jharkhand was

created and the same would also be binding upon the Patna High Court

unless until it is distinguished by a Division Bench of the High Court of

Jharkhand or Patna High Court or is overruled by a larger Bench.

21. I must indicate here that no such decision has been brought to

the notice of this Court at the time of hearing of the issue under reference

by the parties in which a Division Bench has distinguished the aforesaid

judgment after due consideration or a Larger Bench has overruled it.

22. A Division Bench of Bombay High Court in the case of Thrity

Sam Shroff Vs. Shiraz Byramji Anklesaria and Anr., 2007(4) Mh.L.J.

56, has held in para 30 as under:

"Considering all the above decisions, it is abundantly

clear that the probate proceeding, though on being

contested, becomes contentious proceeding, and

therefore, it is to be proceeded in the form of a suit, but

that by itself does not transform the proceeding into a

suit under the Code of Civil Procedure. The provisions of

Code of Civil Procedure would apply to such

proceedings to the extent they are not inconsistent with

the provisions of law comprised under the said

Act xxx xxx xxx xxx."

23. A Single Bench of Bombay High Court in Jagdish Mehta Vs.

Sunil Anant Deshpande, 2008(5) Mh.L.J. 866, has also held that a

petition for probate is not a plaint and at no stage becomes plaint. In such

proceeding though the caveator appears on the scene to oppose grant of

probate or letters of administration to the petitioner, the plaintiff can

never seek any relief against the caveator/defendant. He seeks from the

Court only a probate of the last Will and Testament of the deceased.

24. In the aforesaid background of the matter, this Court has heard

learned counsel for the appellants as well as the respondents. Learned

counsel for the appellants had reiterated his stand that once the issue

becomes contentious, in view of the provisions contained in Section 275 of

the Act, the proceeding becomes original suit which has been dismissed

and a decree has been prepared under Order XX Rule 6 and 7 of the Code

of Civil Procedure, mentioning categorically therein Original Suit No. 03 of

2010 arising out of Probate Case No. 02 of 2009 and, as such, the First

Appeal would be maintainable as if an appeal against an original decree

under Section 96 read with Order XLI Rule 1 of the Code of Civil

Procedure. He has further placed reliance upon the decision of a Division

Bench of Patna High Court dated 11.8.2017, rendered in Kusheshwar

Purbey Vs. Shri Shri Ram Janki Jee, wherein it has been held that the

appeal has to be treated as First Appeal since it arises out of a decree

prepared in an original suit under the provisions of the Code of Civil

Procedure, placing heavy reliance upon the decision of Karnataka High

Court in Miss Pressy Pinto Vs. Rony Maxim Pinto, A.I.R. 2009 Kar.

157, holding that by virtue of Section 2 (2), Section 96 r/w Order XLI Rule

1 of the Code of Civil Procedure, such contested matter against the order

in an original suit pertaining to the issue of probate or letters of

administration has to be termed as regular First Appeal. However, another

issue involved in the said case was as to what will happen to the appeal

filed under Section 384(2) of the Act? A Division Bench of Patna High

Court has finally held that appeal filed under Section 299 of the Act would

be registered as First Appeal whereas appeals filed under Section 384(2) of

the Act has to be treated as Misc. Appeal for all purposes. The Division

Bench has distinguished the decision of Full Bench of Patna High Court in

Sunita Kumari vs. Prem Kumar, 2009(3) PLJR 990, holding that it is

difficult to subscribe to the proposition that the law laid down in the case

of Sunita Kumari (supra) shall have a general application to all the

statutory provisions providing for the appeal against an 'order'. However,

at the cost of reiteration it is once again noted that it does not appear from

the judgment of the Division Bench of Patna High Court, rendered in

Kusheshwar Purbey (supra) that the earlier decision of a Division Bench

in Sidhnath Bharti (supra) was noticed and considered.

25. That being the situation, in my considered opinion, the law laid

down by the Division Bench in Sidhnath Bharti (supra) shall have a

binding effect upon this Court also until unless this Court does not agree

with the decision and either distinguish it or refer it to a larger Bench.

26. Suit is not defined under the Code of Civil Procedure but Section

26 Order IV Rule 1 CPC provides that every suit shall be instituted by

presentation of a plaint or in such other manner, as prescribed. Therefore,

it has to be understood that the suit under the Code of Civil Procedure

initiates after presentation of plaint but the proceeding under the Act is

initiated by filing applications/petitions. It is correct that Section 295 of

the Act envisages that after the proceeding for grant of probate or letters of

administration becomes contentious, the proceeding shall take, as nearly

as may be, the form of regular suit, according to the provisions of the

Code of Civil Procedure, in which the petitioner shall become the plaintiff

and the objector would become defendant. However, it is to be noted here

that the said provision only says 'as nearly as may be possible' the

proceeding shall take form of a regular suit. Thus, this Court agrees with

the views of the Division Bench rendered in Sidhnath Bharti (supra) that

the proceeding becomes a suit in form only and not in substance, as the

Legislature by saying 'as nearly as may be' never intended that the

contentious proceeding should exactly be the same as suit. The

contentious proceeding is not a suit under ordinary law though by virtue

of Section 295 of the Act, the proceeding takes the form of a regular suit

for a limited purpose. It would be apt to quote here the views expressed by

a Division Bench of Bombay High Court in Thrity Sam Shroff (supra),

relevant passage of which is extracted and reproduced as under:

"11. Undoubtedly, Section 295 of the said Act is in

relation to procedure that is to be followed in respect of

probate proceedings, once the same becomes

contentious. The petitioner for the probate becomes the

plaintiff whereas the person who opposes the grant of

probate becomes the defendant and the proceedings

proceed in the form of a regular suit according to the

Code of Civil Procedure. The provision of law, however,

nowhere states that the proceeding for grant of probate

would be a suit under the Code of Civil Procedure. The

framers of law, on the contrary, have cautiously used

the expression "take, as nearly as may be, the form of a

regular suit according to the provision of Code of Civil

Procedure". Firstly, it is not stated to be a suit under the

Code of Civil Procedure. Secondly, it is specifically

stated that the proceedings should take the "form of a

regular suit". Thirdly, it is specified to take the form of a

suit "as nearly as may be" and not even full-fledged

form of a suit. If the intention of framers of law was to

give the character of a suit under the Code of Civil

Procedure to such proceeding, then there was no need

to incorporate all those expressions in Section 295 and

it would have been sufficient to specify the proceeding

to be a suit under the Code of Civil Procedure. Instead,

the framers have specifically clarified that the

proceeding shall merely take the form of a suit

according to the Code of Civil Procedure and that too as

nearly as possible, meaning thereby that though the

proceeding is not a suit within the meaning of the said

expression under the Code of Civil Procedure, yet the

provisions of the Code of Civil Procedure, to the extent

they are not inconsistent with those of the said Act, may

be followed bearing in mind the limited jurisdiction and

function of the probate Court. We are fortified in taking

this view by plethora of decisions, including those of the

Apex Court."

27. It would further be pertinent to note the views of the learned

Single Judge of Bombay High Court in Jagdish D. Mehta Vs. Suneel

Anant Deshpande, 2008(5) Mh.L.J. 866, relevant paragraph of which is

as under:

"13. It is true that a petition for probate is not a plaint

and at no stage becomes the plaint as understood in the

manner laid down in the CPC and in any case cannot

be treated as a suit by reason of the provisions of some

other law. In such proceedings though the caveator

appears on the scene to oppose grant of probate or

letters of administration to the petitioner, the plaintiff

can never seek any relief against the

caveator/defendant. He seeks from the court only a

probate of the last Will and Testament of the deceased.

The petitioner in such proceedings, however, does not

get this relief exparte."

28. The Hon'ble Supreme Court in Diwan Brothers Vs. Central

Bank, (1976)3 SCC 800, has considered the manner and scope of the

decree as defined under the Code while considering the question with

regard to the payment of court fees under the provisions of Court Fees Act

against the decision given by the Tribunal under the provisions of

Displaced Persons (Debts Adjustment) Act. The Hon'ble Apex Court has

held that under the definition of decree under Section 2(2) CPC there are

three essential conditions:

      (i)     the adjudication must be in a suit;


      (ii)    the suit must start with a plaint and culminate in a decree; and

(iii) the adjudication must be the formal and final and must be given

by a Civil Court or Revenue Court.

29. I am in respectful agreement with the Division Bench of Patna

High Court in Nand Kishoe Singh(supra) that the appeal under Section

299 of the Act is filed not only in a contentious case but against the other

Order also and, as such, the word " order" used in Section 299 of the Act

cannot be read as a decree.

30. Now, the second question would be as to whether in view of the

provisions of Section 295 of the Act, order passed in the contentious

proceeding should be treated as a decree which provides that as nearly as

may be the proceeding would take form of a suit? However, in this

connection, it has to be seen as to whether the order passed in a

contentious proceeding fulfills the ingredients of a decree, in view of the

essential conditions carved out by the Hon'ble Apex Court in Diwan

Brothers(supra) .

31. In my considered view, since the proceeding is not initiated

by presentation of a plaint, at least two of the conditions laid down in the

decision of the Hon'ble Apex Court [condition nos. (i) & [ii)] are lacking

and, thus, it has to be held that the proceeding culminates in an 'order',

not in 'decree' as two requirements of a decree are lacking. The proceeding

becomes a suit in form only, in view of the provisions contained in Section

295 of the Act, but not in substance, thus, it cannot be said that the

proceeding is a suit and the final order is a judgment of such suit and,

therefore, it should culminate into a decree. An order passed in such a

proceeding is neither a decree nor is there any requirement in law to draw

up a decree after contentious proceeding is decided by passing a final

order.

32. The Hon'ble Apex Court in Subal Paul vs. Malina Paul and

another, (2003)10 SCC 361 has held that an order under Section 299 of

the Act may not stricto sensu be a decree but would be a judgment. The

relevant passage are quoted as under:

10. The provisions referred to hereinbefore clearly go to show that although the contentious proceedings would not be treated as regular suit or upon determinations of the issues raised therein a decree is not to follow the judgment but procedural provisions of the Code of Civil Procedure would be applicable. The words "in accordance with the provisions of the Code of Civil Procedure, 1908" occurring in Section 299 of the Act, therefore, do not refer to any substantive rights of the parties but merely procedural part thereof.

11. A right of appeal of a party in a contentious proceeding is, therefore, to be found in the provisions of Section 299 of the Act itself and not in Section 104 of the Code of Civil Procedure.

17. It is not disputed that Section 299 of the Act expressly provides for an appeal to the High Court. The right of appeal, therefore, is not conferred under Section

104 of the Code of Civil Procedure. The words "save as expressly provided by any other Act" were inserted in the said provisions in 1908 having regard to difference of opinions rendered in the judgments of various High Courts as regards the applicability of letters patent. The High Courts of Calcutta, Madras and Bombay following the decisions of the Privy Council in Hurrish Chunder vs. Kaisunder [(1883) 9 Cal. 482: 10 I.A. 4] held that Section 588 of the Code of Civil Procedure, as it then stood, did not take away the jurisdiction of clause 15 of the Letters Patent whereas the Allahabad High Court in Bannu Bibi vs. Mehdi Hussain [(1889) 11 All. 375] held to the contrary. The said words were, therefore, added in the 1908 Act to give effect to the Calcutta, Madras and Bombay High Court s decisions.

18. Had the intention of the Legislature been that an appeal under Section 299 would be governed by the provisions of the Code of Civil Procedure, the Legislature could have used the language as has been done in Section 28 of the Hindu Marriages Act providing that all decrees and orders passed under the Act "may be appealed from under any law for the time being in force."

24. In Balwant vs. Mainabai s case (supra), a learned Single Judge of the Madhya Pradesh High Court was considered the question as to whether a miscellaneous appeal would be maintainable. It did not decide the question that an appeal shall lie only under Section 104 of the Code of Civil Procedure but merely held that a miscellaneous appeal would be maintainable having regard to the fact that an appeal under Section 299 lies against an order passed by the District Judge.

25. In Jyotrindra Nath Chowdhry's case (supra), a question arose as to whether an order appointing the Administrator would be appealable. Sen, J., as he then was, observed:

"The Indian Succession Act is a law for the time being in force. Section 299 of this Act says that every order made by the District Judge by virtue of the powers conferred upon

him by the Act shall be subject to appeal to the High Court. Though such an order does not fall within any of the clauses of Section 104, C.P.C., still it is appealable because the Indian Succession Act expressly provides otherwise. In other words, such an order falls within the saving clauses of Section 104, C.P.C."

26. This decision cannot be said to be an authority for the proposition that an appeal under Section 299 of the Indian Succession Act would be an appeal expressly provided for under Section 104 of the Code of Civil Procedure.

30. Despite the fact that Section 299 of the Act states that all orders shall be appealable, attention of the High Courts was engaged in laying down the law as to whether even an interlocutory order would be applicable or not and/or the extent of jurisdiction of the appellate court in relation thereto or the procedure applicable therefor.

31. The orders passed under Section 299 of the Act may be an interlocutory order determining the rights of the parties or a final order. When a final order is passed in a contentious suit, as would be evident from the provisions contained in Section 295 of the Act, the procedures of the Code of Civil Procedure are required to be followed. Therefore, a final order passed between the parties adjudicating upon the rights and obligations which are binding between the parties thereto and are enforceable, although may not be, stricto sensu a decree within the meaning of Section 2(2) of the Code of Civil Procedure Code but it is beyond any cavil that the same would be a judgment within the meaning of Section 2(9) thereof."

33. It would be apparent from the decision of the Hon'ble Apex Court

that the order under appeal under Section 299 of the Act may not be a

decree in stricto sensu within the meaning of Section 2(2) of the Code of

Civil Procedure but it is beyond any cavil that the same would be a

judgment within the meaning of Section 2(9) thereof. It would be pertinent

to mention here that, after the amendment of Code of Civil Procedure

made effective from 1.7.2002, now the requirement is to present a

memorandum of appeal signed by the appellant or his pleader and is

presented to the court or such officer as appointed in this behalf. The

memorandum of appeal shall be accompanied by a copy of 'judgment'.

Earlier, it was to be accompanied by a copy of the decree but after the

amendment the word 'decree' has been substituted by the word

'judgment'.

34. It is further to apt to mention here that though the provisions

under Section 295 of the Act envisages that in contentious cases

proceeding should be 'as nearly as possible' of a regular suit. The

petitioner becomes plaintiff and objector would become defendant but at

the same time it does not say that the pleading would become plaint and

written statement. The Division Bench of Patna High Court in

Kusheshwar Purbey (supra) has held that it will be termed as First

Appeal but at the same time, in my considered view, it has laid down

contrary to the earlier Division Bench decision of Patna High Court in

Sidhnath Bharti (supra) and considered the suit as a 'regular suit' and

order passed under Section 299 of the Act to be a 'decree'. In my

considered view, the earlier decision of Division Bench was binding upon

the latter Division Bench of Patna High Court, which could not be

considered by it, so far as the conclusion part of the aforesaid judgment is

concerned. This Court will agree that the appeal can be termed as a First

Appeal because the order assailed would be a "judgment" under Section

2(9) of the C.P.C. but not filed under Section 96 of the Code of Civil

Procedure rather under Section 299 of the Act and also the preparation of

decree and its presentation before the appellate court would also not be

necessary as the proceeding under the Act cannot be termed as "Suit". In

my considered view, placing reliance by the Division Bench of the Patna

High Court upon the decision of Karnatake High Court in Miss Pressy

Pinto (supra) has to be presumed to be erroneous as even the Hon'ble

Apex Court has held that the order to be challenged under Section 299 of

the Act cannot be termed to be a decree in stricto sensu but can be a

judgment. Further, finding of Karnataka High Court in the aforesaid case

that the final decision of a contested case pertaining to issues of probate

or letters of administration ultimately results in the form of a decree if the

case of the plaintiff is approved, would also be erroneous and not

acceptable, in view of the decision of the Division Bench of Patna High

Court in Sidhnath Bharti (supra) as well as Hon'ble Apex Court in Subal

Paul (supra), discussed above.

35. A Full Bench of Patna High Court in case of Sunita Kumari

(supra) in a matter arising out of an appeal filed under Section 19 of the

Family Courts Act has held that the same cannot be treated as appeals

against a decree and Section 19 have a wider ambit so as to cover all

kinds of judgments and orders made appealable by the express provisions

of that Section and not only decrees as defined under Code of Civil

Procedure. However, it has further held that in such case, the appeal

would be termed as Miscellaneous Appeal and not a First Appeal.

36. However, in my considered view, the provisions under Section 19

of the Family Courts Act, 1984 and Section 299 read with Section 295 of

the Act are not pari materia stricto sensu. Section 19 of the Family Courts

Act is extracted and quoted as under:

19. Appeal.- (1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law.

(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties [or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974): Provided

that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991].

(3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court.

[(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and, as to the regularity of such proceeding.] [(5)] Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court.

[(6)] An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges."

It would also be apt to quote the provisions of Section 299 of the

Indian Succession Act, which read thus :

"299. Appeals from orders of District Judge.- Every

order made by a District Judge by virtue of the powers

hereby conferred upon him shall be subject to appeal to

the High Court in accordance with the provisions of the

Code of Civil, 1908 (5 of 1908), applicable to appeals".

37. From the conjoint reading of the aforesaid provisions, it

would be apparent that Section 19 of the Family Courts Act, 1984 begins

with the sentence "save as provided in sub-section (2) and

notwithstanding anything contained in the Code of Civil Procedure, an

appeal shall lie from every judgment or order, not being an interlocutory

order. However Section 299 of the Act lays down that every order made by

a District Judge by virtue of the powers conferred upon him shall be

subject to appeal to the High Court in accordance with the provisions of

the Code of Civil Procedure applicable to appeals. So, the appeal has to be

filed in consonance with the Code of Civil Procedure, which is lacking in

the definition of 'appeal' under Section 19 of the Family Courts Act. That

apart Section 295 of the Act says that in contentious cases, the

proceeding will take form of a regular suit and according to the provisions

of the Code of Civil Procedure in which the petitioner will become plaintiff

and objection will become defendant. Such provision is again lacking in

the Family Courts Act. Of course, under Section 18 of the Family Courts

Act , a provision is there regarding execution of decrees and orders

showing that a decree passed by the Family Courts shall have the same

effect as a decree or order of a civil court and shall be executed in the

same manner as is prescribed by the Code of Civil Procedure for the

execution of decrees and orders but that is for the purpose of execution of

the decrees or orders only. Thus, this Court is in agreement with the

Division Bench of the Patna High Court in Kusheshwar Purbey (supra) to

the extent that it is difficult to subscribe to the proposition that the law

laid down in the case of Sunita Kumari (supra) shall have a general

application to all the statutory provisions providing for the appeal against

an 'order' of all the Special Acts.

38. Having considered the rival submissions and the

discussions made above, the view of this Court is summarized as under:

(I) The proceeding under Sections 272 and 273 read with Section 276

and 278 as well as Section 295 and 299 of the Indian Succession Act,

1925 is not a regular suit in substance, though it may be for procedural

purpose, as the institution of suit is not on presentation of plaint as per

the requirement under Section 26 of the Code of Civil Procedure rather

its presentation is on a petition or application.

(II) The orders passed finally by the competent authority granting

probate or administration or refusing the same in a contentious case,

may be judgment under Section 2(9) of the Code of Civil Procedure but

not a decree stricto sensu.

(III) Therefore, there shall be no requirement of preparation of a decree

in such type of proceeding under Indian Succession Act and even if the

decree is prepared, it would be immaterial as there is no requirement

for doing that.

(IV) In view of the provisions of appeal, the nomenclature would be of

no value, real issue is as to appeal is to be filed under which provisions

of law. Therefore, the nomenclature may remain a First Appeal but to be

filed under Section 299 of the Indian Succession Act and for the

procedural purposes the provisions of Code of Civil Procedure would be

applicable , as is applicable for filing of appeal.

(V) It cannot be termed as an appeal under Section 104(1) of the

Code of Civil Procedure.

39. The reference made by the learned Single Judge stands answered

accordingly. ]

40. Consequently, the matter be placed before the learned Single

Judge to proceed further in the appeal.

Let a copy of this order be circulated to all the Principal District

Judges of the Civil Court.

( Dr. Ravi Ranjan, C.J.)

Sujit Narayan Prasad, J : I agree

(Sujit Narayan Prasad, J.)

Gopal Jha/

A.F.R.