Not every order made by a District Judge in probate proceedings is appealable under Section 299 of the Succession Act, especially if the order is not made by virtue of the powers conferred by the Act.

JUDGMENT :

1. Heard Sri Arvind Kumar Kushwaha, learned counsel for the appellants.

2. This is a first appeal filed under Section 299 of the Succession Act, 1925[the Act] read with Section 96 of the Code of Civil Procedure, 1908[the Code], directed against an order dated 15.07.2023 passed by the Additional District Judge, Court No. 13, Varanasi, in Probate Case No. 73 of 2019, rejecting the application 34C dated 16.05.2022, in terms of which the appellants herein had sought deletion of Issue No. 2, which had been framed earlier.

3. The aforesaid order dated 16.05.2022 rejecting the application for deletion of the issue would be referable to the provisions of Order XIV Rule 5 C.P.C, and in view of the same a question would arise as to whether the said order can be held to be amenable to an appeal under Section 299 of the Act read with Section 96 of the Code.

4. Counsel for the appellants has sought to contend that every order made by a District Judge in probate proceedings would be appealable under Section 299 of the Act.

5. The question which therefore requires consideration is, as to whether every order made by a District Judge during the course of probate proceedings, would be amenable to an appeal before this Court under Section 299. The relevant provisions of the Act, are being extracted below:

“268. Proceedings of District Judge’s Court in relation to probate and administration.—The proceeding of the Court of the District Judge in relation to the granting of probate and letters of administration shall, save as hereinafter otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908.

295. 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, 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.

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 Code of Civil Procedure, 1908, applicable to appeals.”

6. There is no dispute with regard to the fact that the Succession Act, 1925 is a special Act and Section 299 of the said Act provides a forum of appeal against every order made by a District Judge by virtue of the powers thereby conferred upon him, before the High Court, in accordance with provisions of the Code, as applicable to appeals.

7. Section 268 provides that the proceedings of the court of the District Judge in relation to the granting of probate proceedings and letters of administration, shall be regulated by the Code so far as the circumstances of the case permits.

8. The provisions under Section 295 goes to show that in contentious cases, the proceedings shall take as nearly as may be the form of a regular suit, according to the provisions of the Code.

9. In a case where a probate proceeding is registered, and is treated as a suit after it becomes contentious and the Court is required to proceed for settlement of issues, a question would arise as to what would be the procedure to be followed. The Act being silent on the procedure to be followed, as of necessity, and in view of Section 268, the provisions under Order XIV of the Code with regard to settlement of issues, would become applicable.

10. In the case at hand, in terms of the order dated 16.05.2022, passed by the Additional District Judge in the probate proceedings, which is sought to be made subject matter of the present appeal, the application (34C) seeking deletion of issue no.2, as had been framed earlier by the Court, has been rejected.

11.The appellants herein having chosen to invoke the remedy of appeal under Section 299 against t