Patna High Court - Orders
Kusheshwar Purbey vs Shri Shri 108 Ram Janaki Jee S on 11 August, 2017
Author: Kishore Kumar Mandal
Bench: Kishore Kumar Mandal, V. Nath
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.633 of 1998
======================================================
Kusheshwar Purbey
.... .... Appellant/s
Versus
Shri Shri 108 Ram Janaki Jee S
.... .... Respondent/s
======================================================
with
Miscellaneous Appeal No.508 of 1998
======================================================
Kusheshwar Purbey
.... .... Appellant/s
Versus
Mohan Nayak & Ors
.... .... Respondent/s
======================================================
with
First Appeal No.270 of 1998
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Jibachh Pradhan
.... .... Appellant/s
Versus
Most.Radha Devi
.... .... Respondent/s
======================================================
with
First Appeal No.276 of 2008
======================================================
Thakur Shambhu Prasad Singh @ Thakur Pd. Sinha & Ors
.... .... Appellant/s
Versus
Krishna Kumar Singh & Ors
.... .... Respondent/s
======================================================
with
First Appeal No.114 of 2013
======================================================
Kusum Devi Wife Of Uma Kant Pandey Resident Of Village- Gaderia,
P.S.- Imamganj, Dist.- Gaya
.... .... Appellant/s
Versus
Pallavi Kumari D/O Late Brajesh Kumar Pandey Alias Brajesh Pandey R/O
Village- Babhandi (Gaiwalganj), P.S. And Anchal- Imamganj, Dist.- Gaya
.... .... Respondent/s
======================================================
with
Patna High Court FA No.633 of 1998 (52) dt.11-08-2017
2
First Appeal No.450 of 2001
======================================================
Ram Ekbal Dubey @ Nathuni Dube
.... .... Appellant/s
Versus
Deo Kumar Dubey & Anr
.... .... Respondent/s
======================================================
with
First Appeal No.98 of 1991
======================================================
Indri Kuer & Ors
.... .... Appellant/s
Versus
Krishna Kant Singh & Ors
.... .... Respondent/s
======================================================
Appearance :
(In FA No.633 of 1998)
For the Appellant/s : Mr. Ganpati Trivedi, Sr. Adv.
Mr. R.K. Sinha no. 2, Adv.
Mr. Madan Mohan, Adv.
Mrs. Pallavi Pandey, Adv.
For the Respondent/s : Mr. Jitendra Kishore Verma, Adv.
Mr. Anjani Kumar, Adv.
Mr. Abhishek Anand, Adv.
Mr. Gautam Sinha, Adv.
(In MA No.508 of 1998)
For the Appellant/s : Mr. Sukumar Sinha
For the Respondent/s : Mr. Nirmal Kumar Sinha-3
Mr. Arun Kumar
Mr. Nawal Kishore Prasad
(In FA No.270 of 1998)
For the Appellant/s : Mr. Ray Shivaji Nath, Sr. Adv.
Mr. Ray Saurabh Nath, Adv.
Mrs. Manjari Nath, Adv.
Mr. Chandan Jha, Adv.
Mr. Alok Anand, Adv.
For the Respondent/s : Mr. Subhro Sanyal
Mr. Sanjiv Kumar
Patna High Court FA No.633 of 1998 (52) dt.11-08-2017
3
Mr. S.Kashyap
(In FA No.276 of 2008)
For the Appellant/s : Mr. Ratan Kumar, Adv.
For the Respondent/s : Mr.
(In FA No.114 of 2013)
For the Appellant/s : Mr.
For the Respondent/s : Mr.
(In FA No.450 of 2001)
For the Appellant/s : Mr. Kamal Nayan Choubey, Adv.
Mr. Ambuj Nayan Choubey, Adv.
Mr. Yogendra Kumar Dwiwedi, Adv.
Mr. Nagendra Dubey
For the Respondent/s : Mr. Shrinandan Singh, Adv.
Mr. Ram Nath Sharma, Adv.
(In FA No.98 of 1991)
For the Appellant/s : Mr. Kalyan Kr.Ghosh
Mr. Binay Kr.Ambastha
For the Respondent/s : Mr. Madan Singh
Mr. Hari Nr.Singh
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CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR
MANDAL
and
HONOURABLE MR. JUSTICE V. NATH
CAV ORDER
(Per: HONOURABLE MR. JUSTICE KISHORE KUMAR
MANDAL)
52 11-08-2017The order on the reference of the learned single judge.
The irksome issue pertaining to the classification of the appeals filed before this Court under Section 299 of the Indian Succession Act (for short 'the Act') and under section 384(2) of the Act has been placed for determination upon reference Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 4 expressing doubts over the decision by a learned single judge in Most. Kewala Devi Vs. Smt. Krishna Devi, 2013 (1) PLJR
176. The reasons for making the reference has been mentioned, in detail, in the order dated 03.11.2015, and the authoritative pronouncements by the Apex Court and other courts have also been elaborately taken into notice which require no repetition in this order. Suffice it to state that some of the appeals have been filed under Section 299 of the Act as First Appeals against the order of grant or refusal of probate or letters of administration and some of the appeals have been filed under Section 384 (2) of the Act against the order of grant or refusal of succession certificate.
The main plank of submissions of Mr. Trivedi, learned senior counsel for the appellant in F.A. No. 633 of 1998 and M.A. No. 504 of 1998 is based upon the proposition that in view of the use of the word 'order' in Section 299 of the Act, an appeal filed against such 'order' would be governed by Section 104 of C.P.C. providing for an appeal against an order passed in the suit and would be further regulated by the procedure prescribed therefor. Pyramiding his contentions, learned senior counsel has relied upon general rules of statutory interpretations Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 5 frowning upon import of external aid for providing meaning to unambiguous words or provisions in a statute. Placing decisions galore, it has been propounded that an order passed in a proceeding for grant of probate or letters of administration of a Will or a proceeding for grant of succession certificate shall be subject to the procedure envisaged in the Code of Civil Procedure for an appeal against an order. Lastly, it has also been submitted that the Constitution Bench decision in P.S. Sathappan vs. Andhra Bank Ltd., A.I.R. 2004 S.C. 5152 has settled the controversy finally holding that an appeal against the orders in controversy at present would be an appeal under Section 104 C.P.C. Learned senior counsel, in addition, has also referred to the provisions in part-X of the Indian Succession Act for contending that an order passed in a proceeding for grant of succession certificate has also been declared conclusive but according to the practice and procedure of this Court, a Misc. Appeal is filed and entertained against such an order.
Mr. Verma, learned counsel appearing on behalf of the respondents in F.A. No. 633 of 1998 and M.A. No. 508 of 1998, however, has taken an entirely different stand by coming out with the proposition that taking a literal meaning of the word 'order' in a statutory provision would not be only a determinative Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 6 factor, and the context in which certain order has been passed and its effect on the rights and liabilities of the parties in the proceeding have to be given primacy. It has been propounded that an adjudication in a proceeding shall be a 'decree' if the statute so provides directly or by deeming fiction but there is another classification also where such adjudication has been conferred the status of a decree under certain circumstances, by authoritative pronouncements. It has been argued that in a proceeding for grant of probate or letters of administration there is definitely a final adjudication on the rights and liabilities of the parties and an order under Section 299 of the Indian Succession act will have to be given the status of a 'decree' and an appeal against such order will be regulated by the procedure prescribed for an appeal against a decree. Making a frontal attack on the submissions on behalf of the appellants in first two appeals regarding statutory conclusiveness of the order passed in a proceeding for grant of probate or letters of administration and the proceeding of grant of succession certificate, it has been pointed out that there is substantial difference in the provision under Section 275 and the provision under Section 381 pertaining to the element of conclusiveness inasmuch as a certificate granted under part-X of the Indian Succession Act, as Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 7 envisaged in Section 381, has been expressly made subject to the other provision of said part which includes Section 373 as well but no such condition has been mentioned while declaring the conclusiveness of the order passed in a proceeding for grant of probate or letters of administration.
Learned counsel for the parties in other appeals, however, have supported the reference by submitting that a regular First Appeal would lie against the final order passed in a proceeding for grant of probate or letters of administration and a Misc. Appeal would lie against the final order in a proceeding for grant of succession certificate.
Learned counsel for the parties have relied upon large number of decisions which shall be taken into notice in this order appropriately hereinafter.
After considering the submissions on behalf of the parties, it is quite limpid that the adjudication in a proceeding for grant of probate or letters of administration involves determination of certain rights of the parties. This is also the view expressed by the Full Bench of the Allahabad High Court in Mrs. Panzy Fernandas Vs. Mrs. M.F. Queoros, A.I.R. 1963 All. 153 observing that an order passed in an application for probate or letters of administration does adjudicate on certain Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 8 rights of the parties conclusively. This facet has been now finally settled by the Apex Court in Subal Paul Vs. Malina Paul, (2003) 10 SCC 361 where their lordships have observed as follows:-
"31..........The order passed under Section 299 of the Act may be an interlocutory order determining the rights of the parties or a final order. When a final order is passed in a contentious suit, as would be evident from the provisions contained in Section 295 of the Act, the procedures of the Code of Civil Procedure are required to be followed. Therefore, a final order passed between the parties adjudicating upon the rights and obligations which are binding between the parties thereto and are enforceable, although may not be stricto sensu a decree within the meaning of section 2 (2) of the Code of Civil Procedure Code but it is beyond any cavil that the same would be a judgment within a meaning of Section 2 (9) thereof........"
The controversy pertaining to the nature and legal effect of a final adjudicatory order in a proceeding for grant of probate or letters of administration has been also highlighted by the Apex Court in Smt. Rukmani Devi vs. Narendra Lal Gupta, A.I.R. 1984 SC 1866 where their lordships have opined Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 9 as follows:-
"2...........It is well-settled that the decision of the probate court is a judgment in rem. The High Court rightly held that till the order granting probate remains in force it is conclusive as to the execution and validity of the will till the grant of probate is revoked. Apart from the fact that a decision of the probate court would be a judgment in rem not only binding on the parties to the probate proceedings but it will be binding on the whole world. Therefore, a solemn duty is cast on the probate court. Section 41 of the Indian Evidence Act, 1872 provides that a final judgment or order of a competent court in the exercise of probate jurisdiction is conclusive proof of what is decided therein that is about the genuineness of the will. To be precise, a probate granted by a competent court is conclusive of the validity of such will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate..................."
We are inclined to align with the submission of Mr. Verma, learned counsel for the respondents that taking a literal meaning and connotation of the word 'order' in a statutory Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 10 provision would not be sufficient for determination of the nature and import of such order. In this context, it would be condign to notice the distinctive feature of the definition of a decree and an order in section 2 (2) and Section 2 (14) of the Code of Civil Procedure. In the former the emphasis is on an adjudication conclusively determining the rights of the parties whereas in the later it is any decision of the civil court which is not a decree. The attempt on behalf of the appellants to wriggle out of the implications flowing from the observations of their lordships in Subal Paul (supra) on the basis of the contention that the issue in the said decision mainly pertained to the connotation of 'judgement', has failed to enthuse this Court because in view of the definition of 'judgment' in the Code of Civil Procedure, there would have to be a judgment in both the cases when there is a 'decree' or 'order'. The crucial test, therefore, for determination of the question whether an order can be raised to the level of the decree is only the consideration whether it finally adjudicates the rights of the parties in the proceeding.
In the case of M/s Ram Chand Spg. And Wvg.
Mills Vs. M/s Bijli Cotton Mills (p) Ltd., Hathras, A.I.R. 1967 S.C. 1344, a three judge Bench of the Apex Court has laid down the test to adjudge the nature of an 'order' being final order as Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 11 follows:-
"12....... As to what is a final order was stated by this Court in Jethanand and Sons Vs. State of Uttar Pradesh, A.I.R. 1961 SC 794, in the following terms:-
"An order is final if it amounts to a final decision relating to the rights of the parties in dispute in the civil proceeding. If after the order the civil proceeding still remains to be tried and the rights in dispute between the parties had to be determined, the order is not a final order within the meaning of Art.
133."
Similarly in Abdul Rahman Vs. D.K. Kassim and Sons, 60 Ind App 76: (A.I.R. 1933 PC 58), Sir George Lowndes observed:
"The finality must be finality in relation to the suit. If after the order the suit is still alive in which rights of the parties have still to be determined no appeal lies against it. The fact that the order decides an important and even a vital issue is by itself not material. If the decision on an issue puts an end to the suit, the order will undoubtedly be a final one."
13. In deciding the question whether the order is a final order determining the rights of parties and, therefore, falling within the definition of a decree in S. 2 (2), it would often become necessary to view it from the Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 12 point of view of both the parties-in the present case-the judgment-debtor and the auction-purchaser...... ............................" The dictum of the Apex Court in Rajni Rani Vs. Khairati Lal, (2015) 2 SCC 682, in the context of the present controversy, is relevant to be noticed where their lordships, keeping in view the principles laid down in Jethanand (supra) in detail, has ruled as follows:-
"16.........We have referred to the aforesaid decisions to highlight that there may be situations where an order can get the status of a decree. A court may draw up a formal decree or may not, but if by virtue of the order of the court, the rights have finally been adjudicated, irrefutably it would assume the status of a decree................................................."
Learned senior counsel for the appellant in the first two appeals has led emphasis that though the right to appeal against an order in the proceeding for grant of probate or letters of administration has been conferred by Section 299 of the Indian Succession Act but such an appeal, having been expressly noticed/saved in Section 104 C.P.C., would nonetheless be an appeal under the said section of the C.P.C. Strong reliance has been placed on the Constitution Bench decision in P.S. Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 13 Sathappan (supra). However, the decision in P.S. Sathappan (supra) came up for consideration by the Apex Court, later on, in Fuerst Day Lawson Limited Vs. Jindal Exports Limited (2011) 8 SCC 333 where after referring to earlier decisions including the decision in Sublal Paul (supra), it has been held as follows:-
"29. P.S. Sathappan is actually an authority on the interplay of Section 104 of the Code of Civil Procedure and the Letters Patent jurisdiction of the High Court.................................................."
30. Having, thus, put the controversy in the historical perspective, the Court in P.S. Sathappan case referred to sections, 4 and 104 of the Code and made the following observation in para 6 of the judgment.
"6......To be immediately notice that now the legislature provides that the provision of this code will not affect or limit special law unless specifically excluded. The legislature also simultaneously saves, in Section 104 (1), appeals under „any law for the time being in force‟. These would include letters patent appeals."
The above is really the kernel of the decision in P.S. Sathappan and the rest of the judgment is only an elucidation of this Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 14 point....................."
(emphasis supplied) In view of the interpretation to the Constitution Bench decision in P.S. Sathappan (supra) as given above by the Apex Court in Fuerst Day Lawson (supra), we do not find force in the submission by learned senior counsel for the appellant that an appeal filed under Section 299 of the Indian Succession Act is an appeal under Section 104 C.P.C. and governed by the procedure prescribed for such appeal.
The decision in Most. Kewala Devi (supra) has been rendered expressly relying upon the decision of the Full Bench of this Court in Sunita Kumari Vs. Prem Kumar, 2009 (3) PLJR
990. It is manifest, however, that the controversy which came up for consideration by the Full Bench in Sunita Kumari related to the nature of an order passed under the Family Courts Act, 1984 which has been enacted for adjudication of specified disputes mentioned therein and also prescribing the procedure for determination of such dispute/matter. This aspect has also been taken into notice by the Full Bench in Sunita Kumari (supra). We, therefore, find it difficult to subscribe to the proposition that the law laid down in Sunita Kumari (supra) shall have general application to all the statutory provisions providing for the Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 15 appeal against an 'order'.
The fact has been accepted by learned counsel for the parties that in this court, prior to the decision in Most. Kewala Devi (supra) an appeal filed under Section 299 of the Act was treated as First Appeal and regulated by the procedure prescribed for a First Appeal and the appeal filed under Section 384 (2) of the Act was treated as Misc. Appeal and regulated by the procedure prescribed for Misc. Appeal. In the order of reference, notice has been taken to the provisions in the Patna High Court Rules having bearing upon the present issue relating to classification of the appeal (s). Even in Fuerst Dau Lawson (supra) their lordships have observed that 'normally, once an appeal reaches the High court it has to be determined according to the rules of practice and procedure of the High Court'.
The conclusive nature of an order passed in a proceeding for grant of probate or letters of administration has been envisaged in section 275 of the Indian Succession Act but while prescribing the conclusive nature of the order in a proceeding for grant of succession certificate the provision of Section 381 has been made subject to the other provisions of part-X of the Act. Noticeably, Section 373 (3) falling in part-X of the Act dilutes the conclusive nature of the order in the Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 16 proceeding for grant of succession certificate when such proceeding has been stated to be a summary proceeding and the Court has been authorized to grant certificate to the applicant having prima facie the best title. Learned senior counsel on behalf of the appellant in the first two appeals is, therefore, not sound in his submission that the appeal under Section 299 and section 384 (2) can be treated at par so far as the conclusiveness of the orders therein is concerned.
At this juncture, it would be fruitful to refer to a bench decision of Karnatka High Court in Miss Pressy Pinto Vs. Rony Maxim Pinto, A.I.R. 2009 Kar. 157 where the same issue came up for consideration and decided. It has been held as follows:-
"4. The question posed before us is whether such appeal could be termed as misc. first appeal or regular first appeal. If it is a misc. first appeal, S. 104 and O. 43, Rr. 1 and 2 of C.P.C. are applicable and if it is a regular first appeal S. 96, O.41, Rr. 1 and 2 of C.P.C. are applicable.............................."
".........When a decision is made determining the rights of the parties with regard to the matters in controversy, genuineness or otherwise of the Will, etc., such a final decision of the Court would Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 17 become a decree. Once the petition under Indian Succession Act becomes a contentious one, it shall be treated as a suit and even the case is numbered as original suit. The Court shall frame issues, allow the parties to lead evidence and then finally proceed to pronounce the judgment decreeing or dismissing the suit as the case may be. As per sub-section (14) of S. 2 "orders" also means formal expression of any decision of a Civil Court which is not a decree. When once the P and SC takes the form of an original suit, all the stages of suit have to be proceeded with and the ultimate result would be either decreeing the suit or dismissing the suit. The final decision of a contested matter pertaining to issues of probate or letters of administration ultimately results in the form of a decree if the case of the plaintiff is approved.
5. In other words, by virtue of S. 295 of Indian Succession Act and the definitions referred to above, the contested matter in respect of a petition for probate or letters of administration becomes a suit and by virtue of S. 299 the appeal shall be in accordance with the provisions of Code of Civil Procedure. By virtue of sub-section (2) of S. 2, S. 96, O. XLI, R.1, such contested matter Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 18 against the orders in a original suit pertaining to issue of probate or letters of administration has to be termed as regular First Appeal...................................."
We have not been persuaded to take a different view than that taken in Pressy Pinto (supra). We respectfully agree to the view expressed by the Bench in the said case. Thus we come to the conclusion that the issue in Most. Kewala Devi (supra) regarding classification of an appeal under Section 299 of the Indian Succession Act has not been correctly decided. Accordingly, we answer the reference by holding that an appeal under Section 299 of the Indian Succession Act finally disposing of a contentious proceeding, as envisaged under Section 295, shall be treaded as regular First Appeal and would be governed by the procedure prescribed for such an appeal. It is further held that an appeal filed under Section 384 (2) of the Indian Succession Act shall be treated as Misc. Appeal and would be governed by the procedure prescribed for such an appeal.
As the issue decided in Most. Kewala Devi (supra) has held the field since 27.02.2012, in the interest of justice and to avoid complication and harassment to the litigants, it is directed that the appeals filed under Section 299 of the Indian Succession Act in a contentious proceeding as envisaged under Patna High Court FA No.633 of 1998 (52) dt.11-08-2017 19 Section 295 of the Indian Succession Act after 27.02.2012 shall be treated for all purposes as First Appeals and similarly the appeals filed under Section 384 (2) of the Indian Succession Act shall be treated as Misc. Appeals for all purposes.
The reference is answered, accordingly.
(Kishore Kumar Mandal, J.) V. Nath, J: I agree.
:
(V. Nath, J.) Devendra/-
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