Citation Codes

Equivalent Citations

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Case Number

M.F.A No. 2495 of 2007

Attorney(S)

For the Appellant: K. Chandranath Ariga, Advocate.
For the Respondent: R1, Pundikai Ishwar Bhat, R3 & R4, K. Kanaka Raju Advocates.

Judges

Manjula Chellur
Arali Nagaraj, JJ.

Acts

RFA 324/02.3. Sections 295, 299 of Indian Succession Act, 1925
S. 24 of the Hindu Marriage Act, 1955.Order XLIII, Rules 1
provisions of Indian Succession Act
S. 295 of the Indian Succession Act.
sub-section (14) of S. 2 of the CPC
S. 295 of Indian Succession Act
sub-rule (1) of R. 106 of O. XXI,
Suits Valuation Act, Division
sub-section (2) of S. 2, S. 96, O.
Indian Succession Act
sub-section (14) of S. 2
Rule 4 of Order XL;(t)
sub-section (2) of S. 2
sub-rule (1) of R. 105
Rule 10, Order VII

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Smart Summary

Case Summary — Orders on the Reference of the Learned Single Judge (Mrs. Manjula Chellur, J.)

Factual and Procedural Background

The registry of the High Court raised an objection as to the maintainability of a miscellaneous appeal filed against a decree arising out of probate/letters of administration proceedings converted into a suit. This prompted a learned Single Judge to refer the question to a Division Bench for clarification because another learned Single Judge in R.F.A. No. 324/02 had held that a Regular First Appeal (RFA) would be maintainable against a decree in O.S. 2/91 (converted from P and SC 6/89), relying on the Division Bench decision in Anthony Swamy v. Chowramma, ILR 1989 Kar 1294.

The specific matter before the Court involved P and SC 91/2000 filed by the 1st respondent against the appellant; that petition was contested and converted into O.S. 14/02 under Section 295 of the Indian Succession Act. A decree was passed in that suit, and a miscellaneous appeal was then presented to the High Court. The office raised an objection that a Regular First Appeal would be maintainable in view of the earlier decision in RFA 324/02.

Legal Issues Presented

Whether an appeal against a decree or order arising from contested probate or letters of administration proceedings (converted into a suit under S. 295, Indian Succession Act) should be treated as a Miscellaneous First Appeal or as a Regular First Appeal.
Which provisions of the Code of Civil Procedure apply to such an appeal: S. 104 and Order XLIII, Rules 1 & 2 (for miscellaneous first appeal) or S. 96 and Order XLI, Rules 1 & 2 (for regular first appeal)?

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Anthony Swamy v. Chowramma, ILR 1989 Kar 1294	Addressed the treatment of contested probate/letters of administration matters (and the Court-fee implications) and was relied upon by a learned Single Judge (RFA 324/02) to hold that an RFA is maintainable.	The Court referenced this Division Bench decision and the earlier Single Judge opinion that relied on it to explain how court-fee is to be paid for contested probate/letters of administration matters, and to support the conclusion that when a petition under the Indian Succession Act becomes contentious and is treated as an original suit, an appeal from the final decision is a Regular First Appeal. The court used the precedent as part of its reasoning on classification of appeals and court-fee consequences.

Court's Reasoning and Analysis

The Court's analysis proceeded in a step-by-step statutory and definitional manner, applying the provisions of the Indian Succession Act and the Code of Civil Procedure (CPC) as follows:

The Court examined Section 295 of the Indian Succession Act, which provides that in any contested case before the District Judge the proceeding shall, as nearly as may be, take the form of a regular suit under the provisions of the CPC, with the petitioner for probate/letters as plaintiff and the opponent as defendant. From the plain language the Court concluded that a contested petition becomes a suit and proceeds through normal suit stages (issues, evidence, judgment).
Section 299 of the Indian Succession Act was noted to make every order of the District Judge under the Act subject to appeal to the High Court in accordance with the provisions of the CPC applicable to appeals. Thus appeals from decisions under the Succession Act must follow CPC appeal procedures.
The Court contrasted the provisions applicable to appeals from original decrees (Section 96 CPC and Order XLI) with those applicable to appeals from orders (Section 104 CPC and Order XLIII). It examined the statutory definitions of "decree" and "order" in Section 2(2) and Section 2(14) of the CPC to determine whether the final decision in a contested probate/letters matter is a decree or an order.
Because a final decision determining the parties' rights on the controversies in a contested P & SC (petition for probate/letters) proceeding is a formal adjudication that conclusively determines rights on those matters, the Court held that such a final decision is a "decree" within the meaning of the CPC when the petition has been converted into an original suit under Section 295.
Given that the contested probate/letters matter becomes an original suit and its final determination constitutes a decree, appeals against such a decree must follow the provisions applicable to appeals from original decrees. Consequently, Section 96 and the provisions for Regular First Appeal (including Order XLI) apply.
The Court also referred to the earlier Division Bench decision in Anthony Swamy and the Single Judge's reliance thereon regarding how Court-fee is to be assessed on contested probate/letters matters; that decision reinforced the statutory construction that contested petitions are to be treated as suits for procedural and fee purposes.
Finally, the Court clarified the converse position: where a petition under the Indian Succession Act is not contested (i.e., no contentious proceedings that convert it into a suit), an appeal against orders in such non-contested proceedings would be a miscellaneous first appeal under Section 104 and Order XLIII.

Holding and Implications

Holding: The reference is answered by holding that a Regular First Appeal would lie against a judgment/decree passed in a suit which is converted from P and SC proceedings under Section 295 of the Indian Succession Act.

Implications:

Direct effect on the parties: Where a petition for probate or letters of administration is contested and thereby converted into an original suit under S. 295, any final decision determining the rights of the parties in that suit is a decree and an appeal from that decree must be filed as a Regular First Appeal under the CPC provisions applicable to appeals from original decrees (e.g., S. 96 and Order XLI).
Where the petition under the Indian Succession Act is not contested (i.e., does not assume the form of an original suit), appeals against orders in such non-contested matters remain miscellaneous first appeals under S. 104 and Order XLIII.
The opinion does not purport to lay down any broader new principle beyond clarifying which category of appeal applies in contested-versus-uncontested probate/letters proceedings; the decision applies the statutes and existing authority to the reference before the Court.

Order accordingly.

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Miss Pressy Pinto v. Rony Maxim Pinto & Ors.

1. Mrs. Manjula Chellur, J.:— ORDERS ON THE REFERENCE OF THE LEARNED SINGLE JUDGE

When the registry of the High Court, raised objection with regard to maintainability of misc. appeal the occasion arose for reference of the matter to Division Bench to clarify the position. As a matter of fact, the reference by the learned single Judge was because of opinion of another learned single Judge in R.F.A No. 324/02 holding that the Regular First Appeal was maintainable against the decree in O.S 2/91 (converted from P and SC 6/89). In the said RFA 324/02 by making reference to the decision of Anthony Swamy v. Chowramma*, ILR 1989 Kar 1294 the learned Judge held that the RFA would be maintainable.

2. The facts that led to the filing of miscellaneous appeal before this Court in brief as under:

P and SC 91/2000 came to be filed by the 1st respondent herein against the appellant herein and the said matter came to be contested by the appellant/respondent. Therefore, the P and SC came to be converted as O.S 14/02 in view of S. 295 of the Indian Succession Act. When the decree in the said suit came to be challenged by filing miscellaneous appeal, the office raised objection that RFA would be maintainable in view of the observation of learned single Judge on earlier occasion in RFA 324/02.

3. Sections 295, 299 of Indian Succession Act, 1925 and so also Ss. 96, 104 and O. 43, Rr. 1 and 2 of the C.P.C are relevant for the purpose of appreciating the above matter in the right perspective.

Section 295 of the Indian Succession Act reads as under:

“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.”

The very reading of the section makes it clear that whenever an application for grant of probate or letters of administration is contested, the said application would automatically turn to be a regular suit as contemplated under the provisions of the Civil Procedure Code. It further connotes that even the parties referred to therein shall take the form of plaintiff who seeks probate or letter of administration and the party who opposes the grant of such probate or letters of administration shall become the defendant.

Section 299 of the Act reads as under:

“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.”

A plain reading of the above section would simply indicate that the order made by a District Judge under the provisions of Indian Succession Act shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure applicable to appeals.

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.

Section 96 reads as under:

“Appeal from original decree.— (1) Save where otherwise expressly provided in the body of this Code or by any bther law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decision of such Court.

(2) An appeal may lie from an Original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed (ten thousand rupees.)”

The very heading of the said section indicates “Appeal from original decree.” The section contemplates that whenever a Court passes a decree exercising original jurisdiction vested with the said Court, an appeal shall lie to the Court authorised to hear such appeals.

Section 104 reads as under:

“Orders from which appeal lies.— (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:—

[******]

(ff) an order under S. 35-A;

(ffa) an order under S. 91 or S. 92 refusing leave to institute a suit of the nature referred to in S. 91 or 92, as the case may be;]

(g) an order under S. 95;

(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;

(i) any order made under rules from which an appeal is expressly allowed by rules:

Provided that no appeal shall lie against any order specified in Cl. (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.

(2) No appeal shall lie from any order passed in, appeal under this S. 24 of the Hindu Marriage Act, 1955.”

Order XLIII, Rules 1 and 2 read as under

“1. Appeals from orders.—An appeal shall lie from the following orders under the provisions of S. 104, namely:—

(a) an order under Rule 10, Order VII returning a plaint to be presented to the proper Court (except where the procedure specified in 10A of O. VII has been followed;)

(b) [x x x]

(c) an order under R. 9 of O. IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

(d) an order under R. 13 of O. IX rejecting an application (in case open to appeal) for an order to set aside a decree passed ex parte;

(e)[x x x]

(f) an order under Rule 2 L of O. XI;

(g and (h) [x x x]

(i) an order under R. 34 of O. XXI on an objection to the draft of a document or of an endorsement;

(j) an order under R. 72 or R. 92 of O. XXI setting aside or refusing to set aside a sale;

(ja) an order rejecting an application made under sub-rule (1) of R. 106 of O. XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of R. 105 of that order is appealable;)

(k) an order under R. 9 or O. XXII refusing to set aside the abatement or dismissal of a suit;

(l) an order under R. 10 of O. XXII giving or refusing to give leave;

(m) [x x x]

(n) an order under R. 2 of O. XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

(na) an order under R. 5 or R. 7 of O. XXXIII rejecting an application for permission to sue as an indigent person;

(o) [x x x]

(p) orders in interpleader-suit under R. 3, R. 4 or R. 6 of O. XXXV;

(q) an order under R. 2, R. 3 or R. 6 of O. XXXVII;

(r) an order under R. 1, R. 2, R. 2-A, R. 4 or R. 10 of O. XXXIX;

(s) an order under R. 1 or Rule 4 of Order XL;

(t) an order of refusal under R. 19 of O. XLI to re-admit, or under R. 21 of O. XLI to rehear, an appeal;

(u) an order under R. 23 or R. 23A or O. XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;

(v) [x x x]

(w) an order under R. 4 of O. XLVII granting an application for review.”

It is also necessary to refer to the definition “decree” under sub-section (2) of S. 2 and also definition of “order” under sub-section (14) of S. 2 of the CPC which reads as under:

“decree” 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. It shall be deemed to include the rejection of a plaint and the determination of any question within S. 144, but shall not include—

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default,

“order” means the formal expression of any decision of a Civil Court which is not a decree;”

From the reading of the above provisions of law and the decision of the Division Bench of this Court in the case of Anthony Swamy referred to above it is made clear that S. 295 clearly contemplates conversion of a petition for grant of probate or letters of administration automatically into a suit and even the parties to the proceedings get transformed as plaintiff and defendant automatically. 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 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 against the orders in a original suit pertaining to issue of probate or letters of administration has to be termed as Regular First Appeal. As already stated above, after referring to the provisions of the Karnataka Court-Fee and Suits Valuation Act, Division Bench of this Court in Anthony Swamy's case has said how Court-fee has to be paid on a contested matter pertaining to issuance of letters of administration or probate. Whenever an occasion arises to challenge the orders of the Court pertaining to P and SC which is not contested, then such appeal shall be miscellaneous first appeal.

6. Accordingly, we answer the reference by holding that a Regular First Appeal would lie against a judgment/decree passed in a suit which is converted from P and SC proceedings, as contemplated under S. 295 of the Indian Succession Act.

Order accordingly.

Miss Pressy Pinto v. Rony Maxim Pinto & Ors.

Case Summary — Orders on the Reference of the Learned Single Judge (Mrs. Manjula Chellur, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Miss Pressy Pinto v. Rony Maxim Pinto & Ors.

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