An order for the grant of Probate or Letters of Administration is not a decree in the strict and legal sense of the term and, therefore, a formal decree is not required to be drawn up.

( 1 ) THESE two matters arising out of two memoranda of appeal -- one against an order for the grant of Letters of Administration and the other against an order for the grant of Probate, have been referred to us in view of a report of the Stamp Reporter regarding the maintainability of the appeals without a certified copy of decree accompanying the judgments appealed against The question that falls for our consideration is whether a decree is at all required to be drawn up after the passing of an order for the grant of Probate or Letters of Administration as the case may be.

( 2 ) THE provision of appeal is contain-ed in Section 299 of the Succession Act The section reads as follows:--"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 Civil P. C. , 1908, applicable to appeals. "

( 3 ) ALTHOUGH the section makes it clear that the appeal is against the order made on an application, the Stamp Reporter is of the view that copy of decree is required to be filed along with the Memorandum of Appeal in view of a provision contained in Rule 10, Chap. IV of the Rules of Business of the Judicial Department, Appellate Side, High Court, Calcutta. The rule in question relates/to classification of appeals. The relevant portion of the Rule is to the following effect :"classification of Appeals. 10. It is the duty of the Stamp Reporter to classify appeals before making them over to the Appeal Sections concerned for registration. Under the existing practice of thia Court, appeals are classified in the manner indicated below:--APPEALS FROM ORIGINAL DECREES, (1) to (3 ). . . . . (4) Appeals against the grant of refusal to grant or revocation or refusal of revocation of probate or letters of administration. "

( 4 ) THE attention of the learned Advocates being drawn to the report of the Stamp Reporter the appellant in F. A. T. No. 1491 of 1978 applied for a certified copy of the decree on 30-11-1978. The decree was drawn up on 1-12-1978 and filed before this Court on 8-12-1978. Thereupon the Stamp Reporter reported that calculating the period of limitation with reference to the date of filing of the certified copy of the decree, the appeal was out of time by 175 days.

( 5 ) IN the other appeal no certified copy of decree was filed and upon a reference being made to the court against whose order the appeal hag been preferred, it was reported by the learned Judge that as per practice of the court no formal decree was drawn up in the Probate case and the case was closed after the Probate was drawn up, sealed and signed.

( 6 ) MR. Saktinath Mukherjee appeared in support of F. A. T. 1491 and Mr, Samir Mukherjee appeared in the other matter, Mr. Saktinath Mukherjee contended that in the matter of an order for the grant of Letters of Administration no formal decree is required to be drawn up either under the provisions of the Indian Succession Act or the Civil P. C. In support of his contention reliance was placed on several provisions of the Indian Succession Act. Section 266 of the Act provides that the District Judge shall have, in relation to the granting of Probate and Letters of Administration, all the powers and authority as are vested in him in relation to any civil suit.

( 7 ) SECTION 288 lays down that the proceedings of the Court of the District Judge shall, save as otherwise provided, be regulated, so far as the circumstances of the case permit, by the Civil P. C. A proceeding for probate is initiated by the presentation of an application in that behalf. What such application should contain is provided in Section 276. Similarly, a proceeding for Letters of Administration is initiated by an application as provided in Section 278.

( 8 ) SECTION 295 lays down that in any case before the District Judge in which there is contention, the proceedings shall