Hridayananda Kumar T.K. @ Anand vs Premsudha Rajan @ Sudha

Thottathil B. Radhakrishnan, J.—Registry has objected to this appeal being instituted u/s 96 of the CPC and by showing its nomenclature as "R.F.A." - Regular First Appeal. Heard Adv. P.B. Ajoy for the appellant.

This appeal is against an order passed on a petition for probate filed u/s 276 of the Indian Succession Act, 1925, for short, the ''Act''.

Section 299 of the Act provides that every order made by a District Judge by virtue of the powers conferred under the Act shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure, applicable to appeals. Therefore, the right of appeal is conferred by Section 299 of the Act, and such appeal will be regulated in accordance with the provisions of the Code of Civil Procedure. The provisions in Chapter IV of the Act show that in a contentious proceeding, the application will be treated as a plaint and the caveat will be treated as a written statement. The resultant decision of that adjudication will be nothing but an order under the Act. If it is a grant or refusal of probate, that would fall u/s 289 of the Act and if it is a grant or refusal of letters of administration, that would fall u/s 290 of the Act.

The provisions of the Act which enjoin that in contentious proceedings, the application will be treated as a plaint and the caveat will be treated as a written statement, and the further provision that the proceedings for trial of suit in terms of CPC shall be followed as far as possible, would not make the resultant order a decree u/s 2(2) of the Code of Civil Procedure. Nor is there provision in the Act or any other law for the time being in force, directing or authorising that an order on a petition for probate or letters of administration would be treated or deemed to be a decree for the purpose of CPC.

That being so, an appeal u/s 96 of CPC does not lie against an order made by a District Judge under the provisions of the Act, independent of Section 299 of the Act. The appeal will lie, surely, only u/s 299 of the Act. This position would also stand substantiated by the decision of the Honourable Supreme Court in Subal Paul Vs. Malina Paul and Another, as pointed out to us by the learned counsel for the appellant. The provisions of the rules framed by the High Court of Kerala as the Indian Succession Rules (Kerala), 1968 under the provisions of the Indian Succession Act, 1925, make no difference in this regard.

Therefore, the Registry is justified in relying on the decision of this Court in Fr. V.M. Skaria and Others Vs. K.T. George and Others, to insist that the appeal will be treated as only u/s 299 of the Act and that it is to be numbered as M.F.A. Hence, the objection of the Registry is sustained and the appeal is ordered to be numbered as M.F.A.

Before parting, we record our appreciation for the earnest efforts taken by Adv. P.B. Ajoy, the learned counsel for the appellant in presenting the different views generated in relation to the objections raised by the Registry.