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Case Number

A.S 243/97

Advocates

K.K.Sathish
P.Sukumaran Nair
P.G.P.Panicker
N.Subramaniam
N.Manoj Kumar

Judges

S. Marimuthu, J.

Acts

Orissa Act (5 of 1939) (Paras 5 and 6)The language of S. 295 of Succession Act
Section 278 of the Indian Succession Act, 1925 (for short the Act)
Order XXI, Rule 58, CPC. So far as Order XXI, Rule 58, CPC
Code of Civil Procedure and Kerala Court-fees Act.
Art. 11 and not Art. 17-A of Court-fees Act
Schedule II, Art. 11 of the Court-fees Act
II, Art. 11 of the Court-fees Act
Persons (Debts Adjustment) Act
S. 278 of the Succession Act
Rule 58(3) of Order XXI, CPC
Order XXI, Rule 58, CPC
COURT FEES ACT

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Smart Summary

Summary of the Opinion

Factual and Procedural Background

An original petition was filed as L.A (O.P) No. 159 of 1988 under Section 278 of the Indian Succession Act, 1925 before the IInd Additional District Judge, Ernakulam, seeking letters of administration for the plaintiffs. The matter was later converted into O.S No. 2 of 1990. After hearing both sides, the District Court passed a decree granting letters of administration to the plaintiffs. Defendants 13 to 15 appealed against that decree. A question arose in this Court about the proper mode of registration of the appeal — whether it should be registered as an Appeal Suit (A.S) or as a Miscellaneous First Appeal (MFA).

Legal Issues Presented

Whether a decision rendered in proceedings under Section 278 of the Indian Succession Act (petition for letters of administration) constitutes a "decree" within the meaning of Section 2(2) of the Civil Procedure Code and the Court-fees Act, or whether it is an "order".
Accordingly, whether an appeal from such a decision should be registered as an Appeal Suit or as a Miscellaneous First Appeal before the High Court.

Arguments of the Parties

Respondents' Arguments (as presented by Mr. P. Sukumaran Nayar)

The order passed under Section 278 of the Succession Act is not based on a suit instituted by plaint and written statement.
Such an order is therefore not a "decree" as defined in the Code of Civil Procedure and the Kerala Court-fees Act.
Consequently, an appeal against that order must be registered only as a Miscellaneous First Appeal.

Appellants' Arguments (as presented by Mr. N. Subramaniam)

Although the proceeding began under Section 278 as an application/petition, it was converted into a suit in the trial Court; the petition and counter were treated as plaint and written statement.
The order passed is therefore a decree, and in similar matters trial Courts have drafted decrees; appeals in such matters have been registered and treated as Appeal Suits in practice.
On that basis, the present appeal can be registered as an Appeal Suit rather than a Miscellaneous First Appeal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hansraj Gupta v. Dehra Dun-Mussoorie Electric Transway Co. Ltd., AIR 1933 PC 63	Authority followed by the Allahabad Full Bench for the proposition that proceedings for letters of administration under S.278 are commenced by petition and the decision is an "order" and not a "decree".	Used as antecedent authority (via the Allahabad Full Bench decision) to support that a decision under S.278 is an order, not a decree.
Panzy Fernandas v. M.F Queoros, AIR 1963 All 153 (FB)	The Full Bench held that an order on a petition for letters of administration under S.278 of the Succession Act is not a decree because the proceedings are not commenced by plaint.	Relied upon to conclude that decisions under S.278 cannot be described as decrees and therefore appeals from them are appeals from orders.
Puinabasi Majhiani v. Shiba Bhue, AIR 1967 Orissa 41	Held that probate/proceedings under the Succession Act, even if contentious and made to assume the form of a suit, are not in substance suits under the Civil P.C.; unless there is a suit under the CPC there can be no decree.	Applied to reinforce that probate/letters proceedings are not true suits and their decisions are not decrees; supports MFA registration.
Diwan Bros. v. Central Bank, AIR 1976 SC 1503	Supreme Court approved the Allahabad Full Bench and held that the term "decree" in Court-fees Act must be understood as in Section 2(2) CPC; a decision described as a decree in another statute does not necessarily become a "decree" for Court-fees Act purposes.	Relied upon to show that mere drafting or statutory description as a decree does not alter the character of the decision; supports classifying S.278 decisions as orders for appeal-registration and fee purposes.
B.L Banerjee v. D.K Ganguly, AIR 1984 Cal 16	Calcutta High Court: proceedings for probate or letters of administration are not strictly suits; orders may have force of a decree but strictly are not decrees as not passed in a suit.	Quoted and applied to support the proposition that even if a decree is drafted for convenience, the underlying proceeding under the Succession Act remains not a suit and its decision is not a decree.
Anto Mamkootam v. Peruvanthanam S.C.B, 1996 (2) KLT 962	Held that the order under Rule 58(3) of Order XXI, CPC can be challenged only as an Appeal Suit under Section 96, CPC (because that rule itself deems adjudication as a decree).	The Court distinguished this authority: it does not apply to S.278 Succession Act proceedings because Order XXI, Rule 58 contains a specific deeming provision which S.278 lacks.
Ali v. Muhammadali, 1995 (2) KLT 225 (1996 AIHC 2004)	Similar view as Anto Mamkootam with respect to challenges under Order XXI, Rule 58, CPC being by appeal under Section 96.	Distinguished on the basis that Order XXI, Rule 58 has a deeming provision making such orders capable of being treated as decrees; not analogous to S.278 proceedings.

Court's Reasoning and Analysis

The Court examined the submissions of counsel and an office note regarding the filing practice of this Court. The office note recorded that: when a matter is enquired into and disposed of as an original petition before the trial Court, the appeal is registered as a Miscellaneous First Appeal (MFA); when the trial Court disposes of it as an original suit, it is numbered as an Appeal Suit (A.S). The office further observed that Section 299 of the Succession Act provides appeals to the High Court in accordance with the provisions of the CPC and that Section 96 CPC does not provide for an appeal from an order; consequently, when a decree is produced the appeal is numbered as an Appeal Suit, and when an order is produced it is numbered as an MFA.

The Court analyzed Section 278 of the Succession Act, which mandates that applications for letters of administration be made by petition and does not require filing a plaint. It reviewed the definition of "decree" (the formal expression of an adjudication in a suit) and then considered binding and persuasive authorities (the Allahabad Full Bench, the Privy Council decision it followed, the Orissa and Calcutta High Courts, and the Supreme Court in Diwan Bros.) that uniformly held: proceedings under the Succession Act (probate/letters of administration) are commenced by petition and are not suits in the strict sense; therefore their decisions are orders and not decrees, even though they may, in some cases, have the force of a decree.

The Court noted that even where a trial Court drafts a document titled "decree" for convenience, that does not convert the character of the petition or application under Section 278 into a suit. The Court distinguished earlier decisions of this Court that treat certain orders under Order XXI, Rule 58 CPC as decrees on the ground that Order XXI, Rule 58 contains a specific deeming provision which S.278 lacks. On the cumulative basis of the statutory wording, the office practice note, and the cited authorities, the Court concluded that appeals from decisions under Section 278 must be registered as Miscellaneous First Appeals.

On that basis the Court directed the office to register the present matter as a Miscellaneous First Appeal and to place the papers before the Division Bench for admission.

Holding and Implications

APPEAL DISMISSED; the appeal is to be registered as a Miscellaneous First Appeal.

Implications:

The immediate, direct effect is that the present appeal must be registered and treated as a Miscellaneous First Appeal (MFA) rather than as an Appeal Suit; the office was directed to take that step and place the papers before the Division Bench for admission.
The decision follows and applies existing authorities (Privy Council, Allahabad Full Bench, Orissa and Calcutta High Courts, and the Supreme Court) on the nature of probate/letters proceedings under the Succession Act and does not purport to create a novel precedent beyond clarifying registration practice in accordance with those authorities.

Order communicated in the opinion: "Appeal dismissed."

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Fr. V.M Skaria And Others v. K.T George And Others

An original petition was filed as L.A (O.P) No. 159 of 1988 under Section 278 of the Indian Succession Act, 1925 (for short “the Act”) before the IInd Additional District Judge, Emakulam, to grant letters of administration to the plaintiffs. Later on, it was converted into O.S No. 2 of 1990. On examining both the sides, the District Court passed a decree granting letters of administration to the plaintiffs. Aggrieved by it, defendants 13 to 15 in the suit have filed this appeal. In registering the appeal, whether as an Appeal Suit or as a Miscellaneous First Appeal, a doubt has arisen.

2. Mr. P. Sukumaran Nayar, learned senior counsel appearing for the respondents submitted that the order passed under Section 278 of the Act is not based on a suit, on filing the plaint and written statement. Therefore, such order is not at all termed as a decree as defined in the Code of Civil Procedure and Kerala Court-fees Act. When that be so, this appeal has to be registered only as a Miscellaneous First Appeal. On the other hand, Mr. N. Subramaniam, learned counsel appearing for the appellants would contend that though the order is based on an application or petition filed under Section 278 of the Act, the proceeding was then converted into a suit and the petition and the counter filed therein were considered as plaint and written statement and therefore the order passed in the proceeding is only a decree and in similar matters filed under Section 278 of the Act decrees have been drafted by the trial Courts and in appeal they have been registered as Appeal Suits and such practice is being followed in this Court and hence this matter can be registered as an Appeal Suit and not as a Miscellaneous First Appeal.

3. In view of the above submissions of both the learned counsel, the filing section of this Court was directed to submit a report as to the mode of registration of such matters in appeals. The office note would be to the effect that when the matter is enquired and disposed of as an original petition before the trial Court, then in appeal it is registered as a MFA and when it is disposed of by the trial Court as an Original suit here it is numbered as A.S The office note further indicates that Section 299 of the Act provides that appeals lie to the High Court in accordance with the provisions of the CPC. And Section 96, CPC does not provide for an appeal from an order. Thus, when the decree is produced by the appellant, it is numbered as Appeal Suit and when the order is produced along with the appeal, it is numbered as Miscellaneous First Appeal. In the above premises, the submissions of both the learned counsel, the office note and the law in this aspect can be thoroughly examined.

4. Section 278 of the Act provides that only an application for letters of administration shall be made by a petition distinctly written. And it does not indicate that a plaint ought to be filed. The “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 Section 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”

The Full Bench of the Allahabad High Court (following the decision of the Privy Council reported in Hansraj Gupta v. Dehra Dun-Mussoorie Electric Transway Co. Ltd., AIR 1933 PC 63 in Panzy Fernandas v. M.F Queoros, AIR 1963 All 153 (FB): (1962 All LJ 1135) has laid down as follows (Paras 3, 4, 5):

“The order on a petition for letters of administration under S. 278 of the Succession Act is not a decree as the order is not passed in a suit. Proceedings for letters of administration under the Succession Act are not commenced by the institution of a plaint. On the other hand, as Section 278 of the said Act shows, they are commenced by an “application” or a “petition”. The decision appealed against is described in S. 299 as an “order”, and not a decree. Thus the decision of a Court in proceedings for letters of administration cannot be described as a decree.”

As per the above decision, the decision in an application filed under Section 278 of the Act is only an order and not a decree. Following the principle laid down by the Full Bench of the Allahabad High Court referred to above, the Orissa High Court in Puinabasi Majhiani v. Shiba Bhue, AIR 1967 Orissa 41 has held thus (Para 10):

“An appeal against an order refusing to grant probate of will is governed by Art. 11 and not Art. 17-A of Court-fees Act (as amended by the Orissa Act (5 of 1939) (Paras 5 and 6)

The language of S. 295 of Succession Act is not precise enough to convert an appeal against such an order into a regular suit. In view of the words “as nearly as may be” and “form of a regular suit” in S. 295, even where the probate proceedings become contentions, they are merely to assume the form of a regular suit though in reality they are not in the nature of a regular suit under the Civil P.C Unless there is a suit as provided under the Civil P.C there can be no decree, Further, the word ‘prescribed’ in S. 26, Civil P.C means prescribed by rule. The word ‘suit’ in the section ordinarily means and apart from the context must be taken to mean a civil proceeding instituted by a plaint……”

Following the principle laid down by the Privy Council (supra) and Allahabad High Court (supra) and also the principle laid down by the Supreme Court in Diwan Bros. v. Central Bank, AIR 1976 SC 1503, the ratio of the judgment of the Calcutta High Court in B.L Banerjee v. D.K Ganguly, AIR 1984 Cal 16 is as follows (at page 19):

“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 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………..”

In fact the Supreme Court in Diwan Bros. v. Central Bank, AIR 1976 SC 1503 has approved the earlier Full Bench decision of The Allahabad High Court, stated (supra). And the words of the Supreme Court in laying down the principle are thus (at page 1514):

“The term “decree” used in Schedule II, Art. 11 of the Court-fees Act is referable to a decree as defined in Section 2(2) of the Civil P.C The decision of the Tribunal constituted under Displaced Persons (Debts Adjustment) Act either allowing a claim or rejecting a claim, though described as a decree in the Act, does not make it a decree within the meaning of the Court-fees Act. The decision does not fulfil the requirements of a decree within the meaning of Schedule II, Art. 11 of the Court-fees Act. Therefore, the memorandum of appeal filed by a person aggrieved by the decision of the Tribunal squarely falls within the ambit of Sch. II, Art. 11 of the Court-fees Act and ad valorem Court-fees under Schedule I, Article 1 are not payable.”

5. On account of the above principles laid down by the High Court of Allahabad, Calcutta and Orissa and the Supreme Court, it is obviously clear that a decision taken under Section 278 of the Act is only an order and not a decree. Even in case a decree is drafted, in reality it is not a decree. And it is for some other purpose of convenience, a decree is drafted and that will not change the character of the petition or application filed under Section 278 of the Act into a suit. In this situation two other decisions of this Court were placed before me. In one of the decisions of this Court reported in Anto Mamkootam v. Peruvanthanam S.C.B, 1996 (2) KLT 962 it is held that the order passed under Rule 58(3) of Order XXI, CPC can be challenged only as an Appeal Suit under Section 96, CPC. The same view has also been taken in an earlier decision of this Court reported in Ali v. Muhammadali, 1995 (2) KLT 225: (1996 AIHC 2004) in respect of the claim filed under Order XXI, Rule 58, CPC. So far as Order XXI, Rule 58, CPC is concerned, a specific provision has been made in that Rule itself that adjudication thereunder has to be deemed as a decree in a suit. In the above situation, in the above two judgments this Court has held that the order passed under Order XXI, Rule 58, CPC can be questioned as an appeal under Section 96, CPC. Hence that principle, in my view, does not apply to the present case on hand. For, as I have pointed out above, the present case on hand is covered by the principle laid down by the High Courts of Allahabad, Calcutta, Orissa and me Supreme Court. Under the above circumstances, I make it clear that when an appeal is taken questioning the decision arrived at in an application filed under Section 278 of the Act, whether it was tried as a suit or an application in the trial Court, that has to be registered only as a Miscellaneous First Appeal before this Court.

Office is, therefore, directed to register the present matter as Miscellaneous First Appeal and the papers shall be placed before the Division Bench for admission.

Appeal dismissed.

Fr. V.M Skaria And Others v. K.T George And Others

Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Respondents' Arguments (as presented by Mr. P. Sukumaran Nayar)

Appellants' Arguments (as presented by Mr. N. Subramaniam)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Fr. V.M Skaria And Others v. K.T George And Others

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