Patna High Court
Sidhnath Bharti (Objector) vs Jai Narayan Bharti on 23 February, 1994
Equivalent citations: AIR1994PAT144, AIR 1994 PATNA 144, (1994) 2 HINDULR 472, (1994) 1 PAT LJR 644, (1994) 1 BLJ 669, (1994) 2 CIVLJ 774, (1994) 2 CURCC 421
JUDGMENT Nagendra Rai, J.
1. The question which has been referred by a learned single Judge to the Division Bench for an authoritative decision is as to whether an appeal filed under Section 299 of the Indian Succession Act (hereinafter referred to as 'the Act') against the order granting or refusing probate or Letters of Administration in a contentious proceeding should be accompanied by a decree or not. The answer to this question is dependent upon a decision on the points as to whether the order passed in a contentious proceeding is a decree or not or as to whether a decree is to be drawn up or not after passing the order in a contentious proceedings.
2. This first appeal has been filed by the appellant against the judgment dated 25th January, 1991, passed by the Second Additional District Judge, Saran at Chappra, in a Probate Case No. 17/85 granting probate in favour of the respondent in respect of a will dated 14-4-1954 alleged to have been executed by Parshuram Bharti in favour of the respondent with regard to the property mentioned in Schedule-I of the petition filed for grant of probate. On filing of the said petition for grant of probate the appellant filed a caveat to oppose grant of probate and, thereafter, the proceeding became a conten-
tious one. Both the parties led evidence in support of their cases and, thereafter, probate was granted, as mentioned above.
3. The appellant filed the appeal against the aforesaid judgment and the Stamp Reporter raised an objection that the decree has not been filed along with the memorandum of appeal and, as such, the appeal was incompetent. The matter was placed under the heading "for orders" before a learned single Judge of this Court and before him a statement was made at the bar that as the appeal has been filed under Section 299 of the Act. the decree was not required to be filed. The learned single Judge called for a fresh report on this point from the Stamp Reporter, who, relying upon a Division Bench Judgment of the Calcutta High Court, in the case of Hem-chandra Buxi v. Janu Chandra Buxi reported in (1912) 17 Indian Cases 99, reported that the memorandum of appeal should be accompanied by a decree.
4. Thereafter, again the matter was placed under the heading 'for orders'. Learned counsel for the appellant pointed out that though be had applied for a certified copy of the decree, but the office of the court below has informed that no decree is drawn up in probate case. The learned single Judge of this Court, thereafter, called for a report from the Additional District Judge, Saran at Chhapra, who submitted the report that no formal decree is drawn up in a contentious probate case and the proceeding is closed after the probate is drawn up, sealed and singned. On receipt of the said report, the learned single Judge of this Court referred the case to a Division Bench for a decision on the point, mentioned above, by order dated 27-7-1993 and that is how the matter has been placed before us for decision.
5. Learned counsel for the appellant contended that the proceeding for grant or refusal of probate or Letters of Administration is not a suit and as such the final order passed therein granting or refusing probate or Letters of Administration is not a decree. The final order in a contentious proceeding is not required to be followed by a decree and as such the decree is not required, in law to be filed along with the memorandum of appeal under Section 299 of the Act.
6. Chapter VI of Part IX of the Act deals with the practice in granting and revoking probates and Letters of Administration. Section 268 provides that the proceedings of the court of the District Judge in relation to grant 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 Codeof Civil Procedure, 1908. In other words, according to the said section, the procedural provisions of the Civil Procedure Code are applicable in relation to grant or revocation of probate and Letters of Administration, as the circumstances of the case permit.
7. The proceeding for grant of probate is initiated by filing an application under Section 276 of the Act. The details which are required to be stated in the said application are mentioned in the said section. Similarly, the proceeding for Letters of Administration is initiated by filing an application under Section 278 of the Act giving the details, as mentioned therein. Section 280 of the Act provides with regard to verification of petition for probate or Letters of Administration. Sub-section (1)(c) of Section 282 empowers the District Judge to issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceeding after issuance of citations. Section 284 provides for lodging of caveats against the grant of probate or Letters of Administration by the persons who want to oppose the proceeding. After lodging of caveats the proceeding becomes contentious. Section 295 of the Act provides the procedure, to be followed in a contentious procecding and Section 299 provides for an appeal from orders passed by the District Judge in the proceeding. The provisions of Sections 295 and 299 of the Act have an important bearing on the question referred to the Division Bench and as such it is apt to quote these two provisions, which run as follows :-
"Section 295. Procedure in contentious cases : In any case before the District Judge in which there is contention, the proceeding 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.
Section 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.
8. The question for determination in this case is as to whether after the proceeding becomes contentious it takes the form of a suit or it still remains a proceeding. From the aforesaid provisions, extracted above, it is clear that the proceedings for grant of probate or Letters of Administration is initiated by filing a petition/ application and not by filing a plaint. Suit is not defined under the Code of Civil Procedure, but Section 26 of the Code of Civil Procedure provides that every suit shall be instituted by the presentation of a plaint or in such other manner as prescribed. Order IV Rule 1 of the Code of Civil Procedure provides that every suit shall be instituted by presenting a plaint to the court or such officer as it appoints in this behalf. As such, it is clear that under the Code of Civil Procedure, presentation of a plaint is the institution of the suit; whereas, under the Act the proceeding is initiated by filing applications/petitions. Section 295 of the Act only says that after proceeding for grant of probate or letters of administration becomes contentious, the proceeding shall take, as nearly as may be, the form of a regular suit according to the provisions of the Civil Procedure Code, 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. Nowhere the aforesaid provision says that once the proceeding becomes contentious, the proceeding will be treated as a regular suit, it only says as nearly as may be the proceeding shall take the form of a regular suit. The proceeding becomes a suit in form only and not in substance. The use of words "as nearly as may be" in the section clearly shows that the legislature never intended that the contentious proceeding should exactly be the same as the suit. The contentious proceeding is not a suit under the ordinary law. By virtue of Section 295 the said proceeding takes the form of a regular suit for the limited purpose of applying to it the provisions of the Code of Civil Procedure. The proceeding retains its character as proceeding and does not in point of fact becomes a regular suit.
9. So far as the suit is concerned, there is no dispute that it culminates into a judgment following by a decree as required by Section 33 of the Code. The contentious proceeding under the Act is not a suit in point of fact and as such final orders passed in such proceeding is not a decree. Section 299 of the Act provides an appeal from every orders, which includes the order passed in contentious case also. Though meaning of a word 'order' is not decisive of the factor, it has to be considered as to whether an order in a contentious case is to be treated as a decree or not for the purpose of an appeal. Sub-section (2) of Section 2 of the Civil Procedure Code defines 'decree' which means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. The Supreme Court has considered the meaning and scope of a decree as defined under the Code while considering the question with regard to payment of court fee under the provisions of the Court-fees Act against the decision given by the Tribunal under the provisions of the Displaced Person Debts Adjustment Act. It was held that under the definition of 'decree' Under Section 2(2) of the Civil Procedure Code, three essential conditions are necessary - (1) adjudication must be given in a suit; (2) suit must start with a plaint and culminate in a decree and (3) the adjudication must be formal and final and must be given by a Civil or Revenue Court.
10. The appeal under section 299 of the Act is filed not only against the order passed in a contentious case but against other orders also and, as such, the word 'order' used in Section 299 of the Act cannot be read as a decree. The question is as to whether the order passed in a contentious proceeding will be treated as decree by virtue of the provisions of Section 295, which provides that as nearly as may be the proceeding takes the the form of a suit. In this connection, it has to be seen as to whether the order passed in a contentious proceeding fulfils the ingredients of the decree. As stated above, the proceeding is not a suit and as such adjudication is not given in a suit. The proceeding culminates in an order and not in a decree and, as such, the two of the requirements of a decree are lacking and, in that view of the matter, an order passed in a contentious proceeding under the Act cannot be treated as a decree. There is no provision under the Act which requires for drawing up a decree after passing an order in a contentious proceeding.
11. Thus, in my considered opinion, contentious proceeding is not a suit in the point of fact and substance. On the other hand, for the purpose of classification of the proceeding after it becomes contentious, it is treated as suit in form only. An order passed in such a proceeding is not a decree nor there is any requirement in law to draw up a decree after a contentious proceeding is decided by passing a final order.
12. Let us consider the precedents on the point in controversy. A Division Bench of the Calcutta High Court in the case of Hem-chandra Buxi (supra) while interpreting the provisions of Secton 541 read with section 590 of the Code of Civil Procedure, 1882 and Section 86 of the Probate and Letters of Administration Act held that as memorandum of appeal was not accompanied by a copy of the decree appealed against, the appea! was not maintainable. However, this judgment was not followed by a Division Bench of the same High Court in the case of Balai Lall Banerjee v. Debaki Kumar Ganguly, AIR 1984 Cal 16. In that case it was held as follows at page 19: -
"Therefore, upon reading the relevant pro-
visions of the Succession Act and the authorities referred to above, we are of the view that a proceeding for grant of probate or Letters of Administration is not strictly a suit though in some cases where the grant is opposed it is deemed as such. That, in our view, is only for the purpose of classification of the proceeding without changing its character. The order passed in such a proceeding may have the force of a decree but strictly it is not a decree not having been passed in a suit. Therefore, in our view a formal decree does not seem to be required to be drawn up following an order of grant,"
13. There was a divergence of opinion on the point in controversy in the Allahabad High Court, but the same has been set at rest by a Full Bench decision of the Allahabad High Court in the case of Panzy Ferondes v. M. F. Queoros, AIR 1963 All 153 : (1962 All LJ 1135). The question for consideration in the said case was with regard to payment of court fees on a memorandum of appeal filed Under Section 299 of the Act. Dealing with the said question it was held by the Full Bench that "the order on a petition for Letters of Administration Under Section 278 of the Act is not adecree as the order is not passed in a suit. Proceedings for Letters of Administration under the Act are not commenced by institution of a plaint. On the other hand, as section 278 of the Act shows, they are commenced by an "application" or a "petition". The decision appealed against is described in Sectin 299 as an 'order' and not a decree. Thus, the decision of a court in a proceeding for Letters of Administration cannot be described as a "decree".
14. In the case of Sundrabai Saheb v. The Collector of Belgaum, 1909 ILR (Vol. XXXIII page 256 a Division Bench of the Bombay High Court considered the question of taxation of pleader's fees in appeal from probate proceeding. While dealing with the said question Section 83 of the Probate Act (V of 1881) which is equivalent to Section 295 of the present Indian Succession Act was considered and it was held therein that "the section does not say that proceedings for probate are "a regular suit" or that they shall be treated as such for all purposes. It provides that "they shall take as nearly as may be the form of a suit, according to the provisions of the Code of Civil Procedure'. This would show that probate proceedings do not, under the ordinary law, fall within the description of a "regular suit", it is by virtue of Section 83 that they arc brought within that category; and they are so brought, not in point of fact but only in point of form, for the limited purpose of applying to them "as nearly as may be" the provisions of the Code of Civil Procedure. These restrictions leave still a difference between "a regular suit" and a "testementary suit."
15. Rajasthan High Court in the case of Mst. Bhonri v. Suwalal, AIR 1956 Raj 119, Orissa High Court in the case of Mst. Puinbasi Majhiani v. Shiba Bhue, AIR 1967 Orisssa 41 and Madras High Court in the case of Philo Peter v. Divyanathan, AIR 1989 Mad 111 have taken a similar view that the contentious proceeding for grant of probate or Leters of Administration is not a regular suit and the order passed in the said proceedings is not a decree.
16. So far as this High Court is concerned, this question has been considered by a learned single Judge of this Court in the case of Nand Kishore Singh v. Sri Ram Ahir, reported in 1989 PLJR 256, who relying upon the judgment given in the case of Balai Lall Banerjee (supra) has held that a decree is not required to be drawn up following an order of grant of probate and a copy of decree is not required to be filed along with the memo-randuam of appeal.
17. This question was also considered by a Full Bench of Sindh High Court in a case of Ganga Bai and J. Kishun Das, AIR 1938 Sindh 36 wherein it was held that an appeal against the order passed in a contentions proceeding under the Act is filed under Order 41, Rule 1 of the Code of Civil Procedure and not under Section 104 of the Code, hence the appeal against the order in a contentious proceeding granting probate or Letters of Administration will be incompetent without production of a copy of the formal decree prepared in terms of such order. Such contentious proceeding should be registered as a suit and a formal decree should be prepared. From the perusal of the aforesaid judgment, it appears that the said question was not decided by referring to the relevant provisions of the Act. On the other hand, the Registrar of the said Court called for an information from the Registrars' of the different High Courts as to the procedure adopted by those Courts in a contentious proceeding. It appears that the information was supplied by the Allahabad, Bombay, Madras, Rajasthan and Patna High Courts that a decree is always prepared in a con--tentious proceeding. Relying upon the said information the Full Bench came the aforesaid conclusion. For the reasons, as already mentioned above, I find myself unable to agree with the law laid down by the Sindh High Court. I am in respectful agreement with the law laid down by Calcutta High Court in the case of Balai Lall Banerjee (supra) and the other High Courts, referred to above, which have taken the view that the contentious proceeding for grant of probate and Letters of Administration is not a suit and the order passed in the said proceeding is not a decree. The decision rendered by a learned single Judge of this Court in the case of Nand Kishore Singh (supra) lays down correct law on the point.
18. Thus, after considering the question from different angles, I held that the contentious proceeding for grant or refusal of probate and Letters of Administration is not a suit in substance and the order in the said proceeding is not a decree, as it does not fulfil the ingredients of decree as defined under the Code. There is no requirement in law that an order in a contentious proceeding should be followed by a decree. In that view of the matter, a decree is not required/in law, to be filed along with the memorandum of appeal under Section 299 of the Act and, as such, the appeal cannot be held to be incompetent due to not filing of a copy of a decree along with the memorandum of appeal. Accordingly, office is directed to proceed with the appeal.
Gurusharan Sharma, J.
19. I agree.