Jitendra Kumar, J.—The matter has been received by this Bench upon reference by Ld. Single Judge. The reference has been made in the background of the fact that the present appeal has been filed by the Appellants under Section 299 of the Indian Succession Act, 1925, impugning the final order dated 22.02.2022 passed by Ld. Additional District and Sessions Judge-V, Saran at Chhapra in non-contentious probate proceeding bearing Probate Case No. 37 of 2017 whereby probate petition filed by the Appellant has been dismissed. The office has raised objection regarding maintainability of the present appeal noting that against the impugned order, proper remedy seems to lie by way of filing Miscellaneous Appeal under Section 299 of the Indian Succession Act, 1925 in view of the ruling of Ld. Division Bench in Kusheshwar Purbey vs. Shri. Shri. 108 Ram Janki Jee. S and Ors. (First Appeal- 633 of 1998) as reported in 2017 (3) PLJR 791.

2. Ld. Single Judge is of the view that Ld. Division Bench in Kusheshwar Purbey case (supra), has not thrown light on the procedure of appeal filed against an order passed in non-contentious probate proceeding. Hence, the reference has been made for clarification regarding the procedure.

3. In view of the aforesaid facts and circumstances, the following question arises for our consideration:—

(i) Whether the appeal filed under Section 299 of the Indian Succession Act against the final order passed in non-contentious probate proceeding should be treated as regular First Appeal under Section 96 read with Order XLI or as Miscellaneous Appeal under Section 104 read with Order XLIII of the Civil Procedure Code.

4. We heard Ld. counsel for the Appellants.

5. Ld. counsel for the Appellants submits that in view of the statutory provisions of the Indian Succession Act, 1925 and Civil Procedure Code, 1908 the appeal under Section 299 of the Indian Succession Act against final order passed in non-contentious probate proceeding should also be treated as regular First Appeal. He also refers to Kusheshwar Purbey case (supra) whereby Ld. Division Bench has not given any ruling regarding procedure which is to be followed in case of such appeal filed under Section 299 of the Indian Succession Act against the final order passed in non-contentious probate proceeding.

6. We considered the submissions advanced by Ld. counsel for the Appellants and perused the material on record.

7. We find that the matter was referred to Ld. Division Bench in Kusheshwar Purbey case (supra) in the light of doubt expressed by Ld. Single Judge in Most. Kewala Devi and Anr. vs. Sri Krishna Devi and Anr. [2013 (1) PLJR 176], in regard to classification of appeal filed before this Court under Section 299 of the Indian Succession Act and under Section 384(2) of the Act.

8. The aforesaid doubt was expressed by Ld. Single Judge in Most. Kewala Devi Case (supra) in the light of ruling of Full Bench of this Court in Sunita Kumari vs. Prem Kumar [2009 (3) PLJR 990] wherein Ld. Full Bench, after discussing the Family Courts Act and the procedure provided therein and the provision of appeal under Section 19 of the Family Courts Act, held that the appeal filed under Section 19 of the Family Courts should not be treated as appeals against the decree. Hence, they should be registered as Miscellaneous Appeal and not First Appeal. However, Ld. Single Judge, in view of the ruling of Sunita Kumari Case (supra) expressed his view that appeals filed under Section 299 of the Indian Succession Act should also be treated as Miscellaneous Appeal. After perusal of the Kusheshwar Purbey case, we find that Ld. Division Bench after discussing the statutory provisions and case laws including Miss. Pressy Pinto vs. Rony Maxim Pinto and Ors. (2008 SCC Online Kar 409) held as follows:—

“14. It is manifest, however, that the controversy which came up for consideration by the Full Bench in Sunita Kumari related to the nature of an order passed under the Family Courts Act, 1984 which has been