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HIGH COURT OF PATNA
S. B. Sanyal, J.
Nand Kishore Singh - Appellant
Vs.
Sri Ram Ahir - Respondent
First Appeal No. 481 of 1987
Decided On : 3.11.1988
PROBATE - APPEAL - MEMORANDUM OF APPEAL - ACCOMPANIMENT OF DECREE - WHETHER NECESSARY - INDIAN SUCCESSION ACT, 1925, SECTIONS 272, 273, 286, 295, 299 - CODE OF CIVIL PROCEDURE, 1908, SECTIONS 2(2), 96, 104(1), ORDER 41, RULE 1.
Fact of the Case:
In a proceeding initiated for grant of probate or letters of administration under Section 272 and/or 273 of the Indian Succession Act, 1925 (hereinafter referred to as the 'Act'), which is contested, the issue arose whether the memorandum of appeal to the High Court should accompany a decree against the final order disposing of the Proceeding.
Finding of the Court:
1. A contentious proceeding under the Act is deemed to be a regular suit and is required to be disposed of under the provisions of the Code of Civil Procedure, 1908 (CPC). 2. An appeal under Section 299 of the Act against such an order is akin to the provisions of Section 96 of the CPC and would be incompetent if not accompanied by a copy of the decree. 3. However, a contentious case, even though it may take the form of a regular suit for the purpose of classification of the proceeding, the character of the proceeding is not changed, and the order passed in such a proceeding, even though it may have the force of a decree, is not a decree having been passed in a suit. 4. The final order passed in a contentious proceeding is not a decree in the real sense of the term and a formal decree does not seem to be required to be drawn up following an order of grant. 5. 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 CPC 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.
Issues: 1. Whether a memorandum of appeal to the High Court in a contested proceeding for grant of probate or letters of administration under the Act should be accompanied by a decree against the final order disposing of the Proceeding. 2. Whether a contentious proceeding under the Act is deemed to be a regular suit and is required to be disposed of under the provisions of the CPC. 3. Whether an appeal under Section 299 of the Act against such an order is akin to the provisions of Section 96 of the CPC and would be incompetent if not accompanied by a copy of the decree. 4. Whether a contentious case, even though it may take the form of a regular suit for the purpose of classification of the proceeding, the character of the proceeding is changed, and the order passed in such a proceeding, even though it may have the force of a decree, is a decree having been passed in a suit. 5. Whether the final order passed in a contentious proceeding is a decree in the real sense of the term and a formal decree is required to be drawn up following an order of grant. 6. Whether 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 CPC 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.
Ratio Decidendi: 1. Section 295 of the Act classifies the proceeding as a regular suit without changing its character, and even though the order passed in such a proceeding may have the force of a decree, but strictly speaking, it is not a decree within the meaning of the CPC, having not been passed in a suit instituted by filing of a plaint and written statement. 2. Section 299 of the Act speaks about order subject to appeal; and not a decree subject to appeal. It makes no distinction between order or orders or final order. 3. A legal fiction should operate only for the purpose for which it was created, and should not be extended beyond its legitimate field. 4. The provisions of the CPC relevant to such an appeal would be Section 104(1).
Final Decision: 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 CPC 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 moot question for decision in this case is whether in a proceeding initiated for grant of probate or letters of administration under Section 272 and/or 273 of Indian Succession Act, 1925 (hereinafter referred to as the 'Act'), which is contested the' memorandum of appeal to the High Court should accompany a decree against the final order disposing of the Proceeding.
2. A regular First Appeal No. 481 of 1987 under section 299 of the Act has been filed by the appellant against a contested final order allowing probate on the basis of a will. The stamps reporter raised an objection that a "contentious proceeding" under the Act will be deemed to be a regular suit and is required to be disposed of under the provisions of the Code of Civil Procedure, in which the petitioner for probate or letters of administration shall be the plaintiff and the person who opposes the grant shall be defendant. Therefore, for all purposes, an appeal under section 299 of the Act against such an order is akin to the provisions of section 96 of the Code of Civil Procedure and the appeal would be incompetent if it is not accompanied by a copy of the decree. The very first line of the judgment reads:
"This is a suit for grant of probate....."
As a matter of fact, a decree has been prepared and the same has also been filed at a later date which is at Flag 'M', The stamp reporter has relied on a Division Bench decision of the Calcutta High Court in the case of Hem Chandra Buxi vs. Jadub Chandra Buxi reported in 17 Indian Cases, page 99, where in a similar situation, the Court held that the memoramdum of appeal having not been accompanied by the decree, it cannot be treated to be valid presentation of appeal. The subsequent filing of the decree beyond the period of limitation in the said case, without praying for the condonation of the delay under section 5 of the Limitation Act, led to the dismissal of the appeal itself.
3. Mr. Dhrub Narain, learned counsel appearing on behalf of the appellant, contended that a contentious case, even though may take the form of regular suit for the purpose of classification of the proceeding, but the character of the proceeding is not changed and the order passed in such a proceeding, even though may have force of decree but it is not a decree having been passed in a suit. Learned counsel in support of his submission relied on a decision of the Calcutta High Court in case of Bolai Lal Banerji and others vs. Devoki Kumar Ganguly (A. I. R. 1984 Calcutta page 16), a Division Bench decision of the Calcutta High Court.
4. I may at the very outset observe that Bolai Lal Banerji's case did notice the earlier Division Bench decision of that Court and there being no direct Patna decision on this point, the Court is called upon to decide the matter afresh, independent of the two contra}y Division Bench decisions of the Calcutta High Court.
5. To initiate a proceeding under section 272 and/or 273 of the Act, one is required to file a petition under section 276 of the Act, requiring various statements as enumerated therein. Similar is the provision for the grant of letters of administration under section 278 of the Act by filing a petition therefor enumerating the various facts required to be stated in the said petition. Section 279 of the Act requires that if such probate or letters of administration is intended to have the effect throughout India, the petitioner is required to further state that no such application has been made to any other Court for a probate of the same will or for grant of letters of administration of the said estate. The petition for both shall be verified by the petitioner as required under section 280 of the Act. Section 284 of the Act envisages the filing of a caveat on citation under section 283 of the Act. After entry of a caveat, the proceeding becomes contentious under section 286 of the Act. The Explanation to Section 286 of the Act defines "contention" as meaning; the appearance of any one in person, o
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