Civil miscellaneous appeal against order granting probate is not maintainable.

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 v. Mohammad Kareem and another Noor Mohammad and another v. Mohammad Kareem and another (1938)1 MLJ. 443:A.I.R. 1938 Mad. 502; (iii) Florence Chelliah v. Soundararaj Peter and others Florence Chelliah v. Soundararaj Peter and others Florence Chelliah v. Soundararaj Peter and others (1966)2 MLJ. 33; (iv) R.Rama Subbarayalu Reddiar v. Rengammal R.Rama Subbarayalu Reddiar v. Rengammal R.Rama Subbarayalu Reddiar v. Rengammal A.I.R. 1962 Mad. 450.

3. The appeal has been filed under Sec.299 of the Indian Succession Act (hereinafter referred to as the Act) Sec.299 of the Act runs as follows:

“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 Code of Civil Procedure, 1908 (5 of 1908) applicable to appeals.”

4. In 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 - Full Bench, it has been held that,

“The order on a petition for letters of administration under Sec.278 of the Succession Act is not a decree as the order is not passed in a suit. Proceedings for letters of administration under the Succession Act are not commenced by the institution of a plaint. On the other hand, as Sec.278 of the said Act shows, they are commenced by an” application or a petition“. The decision appealed against is described in Sec.299 as an” Order“, and not a decree. Thus the decision of a Court in proceedings for letters of administration cannot be described as a decree. The Full Bench of the Allahabad High Court also relied on a decision of the Privy Council in Hansraj Gupta and others v. Dehra Dun-Mussorie Electric Tramway Co. Ltd. Hansraj Gupta and others v. Dehra Dun-Mussorie Electric Tramway Co. Ltd. Hansraj Gupta and others v. Dehra Dun-Mussorie Electric Tramway Co. Ltd. A.I.R. 1933 P.C. 63 wherein it was observed as follows:

“The word “suit” ordinarily means, and apart from some context must be taken to mean, a civil proceeding instituted by the presentation of a plaint or an order to qualify to be a decree, it should have the force of a decree. It should be a final adjudication of the rights of the parties”.

5. In Mst.Puinbasi Majhiani v. Shiba Bhue and another Mst.Puinbasi Majhiani v. Shiba Bhue and another Mst.Puinbasi Majhiani v. Shiba Bhue and another A.I.R. 1967 Ori. 41 it has been held by the Orissa High Court that,

“A proceeding to obtain probate of a Will cannot be said to be instituted on a plaint nor can be appeal against an order made in such proceeding be said to arise out of any suit.”

6. In Philo Peter and another v. Divyanaihan and others Philo Peter and another v. Divyanaihan and others Philo Peter and another v. Divyanaihan