An appeal under Sec. 299 of the Indian Succession Act does not require a decree to be filed along with the memorandum of appeal.

NAGENDRA RAI, J.

1. The question which has been referred by a learned single Judge to the Division Bench for an authoritative decision is as to whether an appeal, filed under Sec. 299 of the Indian Succession Act (hereinafter referred to as the Act) against the order granting or refusing probate or Letters of Administration in a contentious proceeding should be accompanied by a decree or not. The answer to this question is dependent upon a decision on the paints as to whether the order passed in a contentious proceeding is a decree or not or as to whether a decree is to be drawn up or not after passing the order in a contentious proceedings.

2. This first appeal has been filed by the appellant against the judgment dated 25/01/1991, passed by the Second Additional District Judge, Saran at Chappra, in a Probate Case No. 17/85 granting probate in favour of the respondent in respect of a will dated 14-4-1954 alleged to have been executed by Parshuram Bharti in favour of the respondent with regard to the property mentioned in Schedule-1 of the petition filed for grant of probate. On filing of the said petition for grant of probate the appellant filed a caveat to oppose grant of probate and, thereafter, the proceeding became a contentious one. Both the parties led evidence in support of their cases and, thereafter, probate was granted, as mentioned above.

3. The appellant filed the appeal against the aforesaid judgment and the Stamp Reporter raised an objection that the decree has not been filed along with the memorandum of appeal and, as such, the appeal was incompetent. The matter was placed under the heading "for orders" before a learned single Judge of this Court and before him a statement was made at the bar that as the appeal has been filed under Sec. 299 of the Act, the decree was not required to be filed. The learned single Judge called for a fresh report on this point from the Stamp Reporter, who, relying upon a Division Bench Judgment of the Calcutta High Court, in the case of Hemchandra Buxi V/s. Janu Chandra Buxi reported in (1912) 17 Indian Cases 99, reported that the memorandum of appeal should be accompanied by a decree.

4. Thereafter, again the matter was placed under the heading for orders. Learned counsel for the appellant pointed out that though he had applied for a certified copy of the decree, but the office of the court below has informed that no decree is drawn up in probate case. The learned single Judge of this Court, thereafter, called for a report from the Additional District Judge, Saran at Chhapra, who submitted the report 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 singned. On receipt of the said report, the learned single Judge of this Court referred the case to a Division Bench for a decision on the point, mentioned above, by order dated 27-7-1993 and that is how the matter has been placed before us for decision.

5. Learned counsel for the appellant contended that the proceeding for grant or refusal of probate or Letters of Administration is not a suit and as such the final order passed therein granting or refusing probate or Letters of Administration is not a decree. The final order in a contentious proceeding is not required to be followed by a decree and as such the decree is not required, in law to be filed along with the memorandum of appeal under Sec. 299 of the Act.

6. Chapter VI of Part IX of the Act deals with the practice in granting and revoking probates and Letters of Administration. Sec. 268 provides that the proceedings of the court of the District Judge in relation to grant of probate and Letters of Administration shall, save as hereinafter otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908. In other words, according to the said section, the procedural provisions of the Civil Procedure Code are applicable in relation to gr