IMPORTANT POINT
Order passed by the learned Single Judge in an appeal under Section 299 of Indian Succession Act, 1925 was appealable to Letters Patent Bench under Clause 15 of Letters Patent.

Headnote:Indian Succession Act, 1925-Sections 276, 295 and 299-CPC 1908-Sections 2(2), 2(a), 96, 104-Letters Patent-Clause 15-Application for probate of a Will under Section 276-Rejected by District Judge in contentious proceeding-Appeal under Section 299 to Single Judge-Allowed, granting probate-LPA to DB of Calcutta High Court under Clause 15-Admitted-Appeal against to Supreme Court-Whether a letters patent appeal would lie against the judgment of a learned Single Judge rendered under Section 299 of Indian Succession Act against application under Section 276? (Yes)-Appeal dismissed-Case law discussed.
       Held : 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. While determining the question as regards clause 15 of the Letters Patent, the court is required to see as to whether the order sought to be appealed against is a judgment within the meaning thereof or not. Once it is held that irrespective of the nature of the order, meaning thereby whether interlocutory or final, a judgment has been rendered, clause 15 of the Letters Patent would be attracted. (Para 31 & 32)
       In Shah Babulal Khimji s case (supra), the Apex Court in no uncertain terms referred to the judgment under the Special Act which confers additional jurisdiction to the High Court even in internal appeals from an order passed by the Trial Judge to a larger Bench. Letters Patent has the force of law. It is no longer res integra. Clause 15 of the Letters Patent confers a right of appeal on a litigant against any judgment passed under any Act unless the same is expressly excluded. Clause 15 may be subject to an Act but when it is not so subject to the special provision the power and jurisdiction of the High Court under Clause 15 to entertain any appeal from a judgment would be effective. (Para 34)
       Held after review of case law : For the aforesaid reasons, we are of the view that the order passed by the Single Judge was appealable to Letters Patent Bench and the objection in regard to maintainability of appeal was rightly overruled by the High Court. Consequently, this appeal falls and is, accordingly, dismissed. We direct the High Court to decide the letters patent appeal expeditiously. (Para 49)

ORDER

The short question that arises for consideration in this appeal is as to whether a letters patent appeal would lie against the judgment of a learned Single Judge of the High Court filed under Section 299 of the Indian Succession Act, 1925 (hereinafter referred to as the Act ).

2. When this matter came up before a Bench of two Judges, the Bench was of the view that the aforesaid question requires to be considered by a Bench of three Judges. It is in this way the matter has come up before us.

3. The facts giving rise to this appeal are that on 8-12-1986 one Srish Chandra Paul executed his last Will. On 17-3-1988 he died. The appellant herein who is a son of Srish Chandra Paul applied for probate before the Additional District Judge, Agartala. The learned Additional District Judge rejected the prayer for issue of probate. Aggrieved, the appellant preferred an appeal under Section 299 of the Act before the Gauhati High Court. A learned Single Judge of the High Court allowed the appeal and granted letters of administration with a copy of the Will annexed thereto. Aggrieved, the respondents preferred a letters patent appeal before a Bench of the High Court. Before the said Bench, the appellant herein raised a preliminary objection that no such appeal is maintainable being barred by Section 104 of the Code of Civil Procedure, 1908. The Bench overruled the objection and directed for hearing of the appeal. It is at this stage the appellant herein filed the present appeal by special leave and by virtue of the interim order passed by this Court the hearing in the letters patent appeal was stayed.

4. Mr. Sanjay Parikh, learned counsel appearing for the appellant reiterated and arguments raised before the High Court. Mr. Parikh submitted that an appeal to the High Court in terms of Section 299 of the Act would be governed by Section 104 of the Code of Civil Procedure. According to the learned counsel, as an order passed by the District Judge in a contentious proceeding is not a decree within the meaning of Section 2(2) of the Code of Civil Procedure, the appeal would not from a decree as provided for under Section 96 of the Code of Civil Procedure. No formal decree is drawn up for such purpose nor the same can be annexed to the memorandum of appeal. In that view of the matter, sub-section (2) of Section 104 of the Code of Civil Procedure is a bar as regards maintainability of appeal under clause 15 of the letters patent of the Calcutta High Court. The learned counsel in support of the said contention strongly relied upon Balwant v. Mainabai [AIR 1991 Madhya Pradesh 11]; Jyotirindra Nath Chowdhury vs. Pratima Rani Debi [ILR (1967) 1 Cal. 278] and Balai Lall Banerjee and Others vs. Debaki Kumar Ganguly and Others [AIR 1984 Cal. 16]. He would further submit that in terms of clause 15 of the Letters Patent, an appeal would be maintainable when an original order is passed by a Single Judge of the High Court and/or when an appellate order is passed in an appeal arising from a decree and not from an order.

5. According to the learned counsel, by virtue of Section 104 of the Code of Civil Procedure, the judgment under challenge in the High Court not being a judgment and decree passed by the learned Single Judge, no letters patent appeal would lie thereagainst. In support of the said contention, strong reliance has been placed on Shah Babulal Khimji vs. Jayaben D. Kania and Another [(1981) 4 SCC 8] and New Kenilworth Hotel (P.) Ltd. vs. Orissa State Finance Corporation and Others [(1997) 3 SCC 462].

6. The learned counsel appearing on behalf of the respondents, on the other hand, would submit that the question is squarely covered by a recent judgment of this Court in Sharda Devi vs. State of Bihar [(2002) 3 SCC 705].

7. It is not disputed that the Indian Succession Act, 1925 is a special Act and Section 299 thereof provides for an appeal against the order passed by the District Judge either refusing or issuing probate, to the High Court in accordan

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2003 Supreme(SC) 176

IMPORTANT POINTOrder passed by the learned Single Judge in an appeal under Section 299 of Indian Succession Act, 1925 was appealable to Letters Patent Bench under Clause 15 of Letters Patent.

Cases Referred (13)

IMPORTANT POINT
Order passed by the learned Single Judge in an appeal under Section 299 of Indian Succession Act, 1925 was appealable to Letters Patent Bench under Clause 15 of Letters Patent.