JUDGMENT :

Ravi Ranjan, J.

1. The questions which have been referred by a learned Single Judge to the Larger Bench for an authoritative decision is as under:

(i) Whether decree is to be prepared in a probate case?

(ii) Whether a contentious proceeding referred under Section 295 of the Indian Succession Act, 1925 has same meaning as of a suit filed under Section 26 of the C.P.C.?

2. The answer to the aforesaid questions will be depending upon the points as to whether a petition filed under Section 272 or Section 273 of the Indian Successions Act, 1925 (hereinafter referred to as the “Act”) can be treated to be a plaint and its presentation before the competent court can be treated to be presentation of a plaint so as to consider it to be a suit instituted under Section 26 r/w Order IV rule 1 of the Code of Civil Procedure.

3. The instant First Appeal has been preferred by the plaintiffs-appellants assailing the order dated 28.02.2019 passed by learned District Judge-I, West Singhbhum at Chaibasa in Original Suit No.03 of 2010.

4. Let it be noted here that decree was signed on 6.3.2019. The Office of this Court vide its note dated 24.05.2020 raised a question regarding maintainability of First Appeal in a probate matter under Section 96 of the Code of Civil Procedure.

5. It was urged on behalf of the appellants that Probate Case No. 02 of 2009 was converted into a regular Title Suit and, as such, as per the provisions contained in Section 295 of the Act, the procedure to be adopted in a contentious case would take form of a regular suit in accordance with the provisions of the Code of Civil Procedure and the petitioner shall be considered to be a Plaintiff and the person who has appeared to oppose the grant, shall be the Defendant. At the strength of this, it was urged before the learned Single Judge that since a suit was decided in a regular form like original title suit and the judgment/order was passed on contesting the suit and subsequently, a decree was also prepared under Order XXII Rule 6 and 7 of the Code of Civil Procedure, the same has to be treated to be an appeal under Section 96 of the Code, having been preferred against a decree.

6. Learned counsel for the appellants taking help of Section 2(2) of the Code of Civil Procedure as well as Section 275 of the Act made an endeavor to impress upon the learned Single Bench that in view of conclusiveness of the proceeding and the definition of “decree” since necessarily means formal expression of adjudication, the same has to be considered and further in view of Section 295 of the Act which lays down that procedure to be adopted by the District Judge while granting or refusing to grant a probate in contentious case shall take ‘as nearly as may be’ the form of a regular suit, petitioner becoming the plaintiff and the objector becoming the defendant. Thus, it would be safe and proper to hold that a regular suit, since has been decided and a final judgment having been pronounced, the same would be appealable under Section 96 of the Code of Civil Procedure. The Appellants also took help of Section 299 of the Act which lays down that every order made by a District Judge shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure as applicable to appeals. Therefore, there can be no harmonious consideration other than holding that appeal will lie under Section 96 of the Code of Civil Procedure. It was further urged that in the present case, since a decree has been prepared, appeal would not lie under Section 299 of the Act, rather, it has to be preferred under Section 96 of the Code of Civil Procedure and has to be named as First Appeal.

To buttress his submissions, learned counsel for the appellants placed reliance upon a decision of the Division Bench of the Patna High Court dated 11.8.2017, rendered in Kusheshwar Purbey v. Shri Shri Ram Janki Jee. The contention of the appellants was that similar question cropped up before the Division B