This civil miscellaneous appeal has been filed against the grant of probate by the District Court, Kanyakumari in O.P.No.82 of 1989 filed by the first respondent herein.

2. A preliminary objection was raised as regards the maintainability of the civil miscellaneous appeal. The learned counsel referred to a number of decisions in support of his contention that only a civil miscellaneous appeal would lie and they are:

(i) Mrs.Panzy Fernandas v. M.F.Queoros and others Mrs.Panzy Fernandas v. M.F.Queoros and others Mrs.Panzy Fernandas v. M.F.Queoros and others A.I.R. 1963 All. 153; (ii) Philo Peter and another v. Divyanathan Philo Peter and another v. Divyanathan Philo Peter and another v. Divyanathan A.I.R. 1989 Mad. 111; (iii) Fr. V.M.Skaria and others v. T.George and others Fr. V.M.Skaria and others v. T.George and others Fr. V.M.Skaria and others v. T.George and others A.I.R. 1999 Ker. 320;

As against these decisions, the decisions for the contra position are:

(i) Perumal Chetty v. W.Kandasamy Chetty Perumal Chetty v. W.Kandasamy Chetty Perumal Chetty v. W.Kandasamy Chetty 44 MLJ. 146; (ii) Noor Mohammad and another v. Mohammad Kareem and another Noor Mohammad and another