IMPORTANT POINTS
• Quantum of court fee may not be a determinative factor. Payment of court fee is a matter between the State and litigant. If the relevant Statutes clearly indicate the scope and effect of conversion of such a proceedings to a regular suit when it becomes contentious, change of its status as a suit cannot be doubted for non-payment of ad-valorem court fee. It can only be presumed that the legislature in its wisdom has exonerated the plaintiff from paying ad-valorem court fee, payable in a regular suit.
• A proceedings for grant of probate or letters of administration is not strictly a suit, though in some cases where the grant is opposed it is deemed as such.

ORDER :

A. HARIPRASAD, J.

1. In this unnumbered appeal, boarded before us on a reference by a learned single Judge, the questions to be answered are three fold -

(i) Whether a contentious proceedings under Section 295 of the Indian Succession Act, 1925 (in short, "the Act') could be regarded as a full-fledged suit?

(ii) Whether a final adjudication in such a proceedings be regarded as a decree as defined in Section 2(2) of the Code of Civil Procedure, 1908 (in short, "the Code")?

(iii) If the final adjudication amounts to a decree, can an appeal be filed invoking the provisions under Section 96 and Order XLI of the Code?

2. Short facts leading to the reference order are as follows: Learned District Judge, Ernakulam disposed of two suits, viz., O.S.Nos.28 of 2008 and 20 of 2009, by a common judgment. O.S.No.28 of 2008 was originally laid before the trial court as L.A.O.P.No.305 of 2005 under Section 278 of the Act read with Rule 8 of the Indian Succession Rules (Kerala), 1968 (in short, "the Rules") by the appellant, who is the son of late M.V.Chacko, along with his mother for issuance of letters of administration in respect of a Will said to have been executed by deceased M.V.Chacko. When the respondents (other legal heirs of deceased M.V.Chacko) disputed genuineness of the Will propounded by the appellant, the original petition was converted into a suit by the learned District Judge in accordance with Section 295 of the Act. Thereafter, the appellant's suit and another suit, filed by the respondents seeking partition of the properties which belonged to M.V.Chacko, were tried together and disposed of by a common judgment. District Judge dismissed the suit laid by the appellant and his mother finding that the Will in dispute was not properly proved. Consequently, the suit for partition was decreed. There is no dispute in respect of the fact that a regular first appeal could be laid against the judgment and decree in the partition suit. The objection raised by the Registry is that the appellant should have filed a Miscellaneous First Appeal (MFA) against the judgment and decree in O.S.No.28 of 2008 disposed by the District Court, Ernakulam and he has no right to file a Regular First Appeal (RFA) under Section 96 read with Order XLI of the Code.

3. The objection raised by the Registry was considered by a learned single Judge. Registry, relying on Fr.V.M.Skaria v. K.T.George (AIR 1999 Kerala 320), takes a position that RFA is not maintainable against the final adjudication in O.S.No.28 of 2008 and the appellant could have laid only MFA. Learned single Judge, doubting correctness of the ratio in Skaria's case, referred the matter to a Division Bench as per order dated 03.12.2014. When the matter was placed before a Division Bench on 18.06.2015 an order was passed appointing Advocate Sri.P.B.Krishnan as Amicus Curiae.

4. Heard the learned counsel for the appellant and contesting respondents. Learned Amicus Curiae also ably assisted us in approaching the legal questions from different perspectives.

5. We shall examine the relevant provisions under the Act and the Rules for effectively answering the reference. Section 278 of the Act is the provision relating to filing a petition for letters of administration. It specifies the details to be shown in the application. Section 295 of the Act prescribes the procedure when a petition for probate or letters of administration becomes contentious. The Section reads as follows:

"Procedure in contentious cases.- In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 (5 of 1908) in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant."

In the matter of contentious cases, referred to in Section 295 of the Act, it is highly essent