SUBAL PAULE Vs. MALINA PAUL

JUDGEMENT

(1.) The short question that arises for consideration in this appeal is as to whether a letters patent appeal would lie against the judgment of a learned single Judge of the High Court filed under S. 299 of the Indian Succession Act, 1925 (hereinafter referred to as 'the Act').

(2.) When this matter came up before a Bench of two Judges, the Bench was of the view that the aforesaid question requires to be considered by a Bench of three Judges. It is in this way the matter has come up before us.

(3.) The facts giving rise to this appeal are that on 8-12-1986 one Srish Chandra Paul executed his last Will. On 17-3-1988 he died. The appellant herein who is a son of Srish Chandra Paul applied for probate before the Additional District Judge, Agartala. The learned Additional District Judge rejected the prayer for issue of probate. Aggrieved, the appellant preferred an appeal under Section 299 of the Act before the Gauhati High Court. A learned single Judge of the High Court allowed the appeal and granted letters of administration with a copy of the Will annexed thereto. Aggrieved the respondents preferred a letters patent appeal before a Bench of the High Court. Before the said Bench, the appellant herein raised a preliminary objection that no such appeal is maintainable being barred by Section 104 of the Code of Civil Procedure, 1908. The Bench overruled the objection and directed for hearing of the appeal. It is at this stage the appellant herein filed the present appeal by special leave and by virtue of the interim order passed by this Court the hearing in the letters patent appeal was stayed.