JOSE Vs. MAGY JOHN

JUDGEMENT

(1.) In this unnumbered appeal, boarded before us on a reference by a learned Single Judge, the questions to be answered are three fold-

(2.) Short facts leading to the reference order are as follows: Learned District Judge, Ernakulam disposed of two suits, viz., O.S. Nos. 28 of 2008 and 20 of 2009, by a common judgment. O.S. No. 28 of 2008 was originally laid before the Trial Court as L.A.O.P. No. 305 of 2005 under Section 278 of the Act read with Rule 8 of the Indian Succession Rules (Kerala), 1968 (In short, "the Rules") by the appellant, who is the son of late M.V. Chacko, along with his mother for issuance of letters of administration in respect of a Will said to have been executed by deceased M.V. Chacko. When the respondents (other legal heirs of deceased M.V. Chacko) disputed genuineness of the Will propounded by the appellant, the original petition was converted into a suit by the learned District Judge in accordance with Section 295 of the Act. Thereafter, the appellant's suit and another suit, filed by the respondents seeking partition of the properties which belonged to M.V. Chacko, were tried together and disposed of by a common judgment. District Judge dismissed the suit laid by the appellant and his mother finding that the Will in dispute was not properly proved. Consequently, the suit for partition was decreed. There is no dispute in respect of the fact that a regular first appeal could be laid against the judgment and decree in the partition suit. The objection raised by the Registry is that the appellant should have filed a Miscellaneous First Appeal (MFA) against the judgment and decree in O.S. No. 28 of 2008 disposed by the District Court, Ernakulam and he has no right to file a Regular First Appeal (RFA) under Section 96 read with Order XLI of the Code.

(3.) The objection raised by the Registry was considered by a learned Single Judge. Registry, relying on Fr. V.M. Skaria v. K.T. George 1999 KHC 369 : AIR 1999 Ker. 320 : 1999 (2) KLT 527 : 1999 (1) KLJ 756 : ILR 1999 (2) Ker. 637, takes a position that RFA is not maintainable against the final adjudication in O.S. No. 28 of 2008 and the appellant could have laid only MFA. Learned Single Judge, doubting correctness of the ratio in Skaria's case, referred the matter to a Division Bench as per order dated 03/12/2014. When the matter was placed before a Division Bench on 18/06/2015 an order was passed appointing Advocate Sri. P.B. Krishnan as Amicus Curiae.