SIDHNATH BHARTI Vs. JAI NARAYAN BHARTI

JUDGEMENT

(1.) The question which has been referred by a learned single Judge to the Division Bench for an authoritative decision is as to whether an appeal, filed under Section 299 of the Indian Succession Act (hereinafter referred to as 'the Act) against the order granting or refusing probate or Letters of Administration in a contentious proceeding should be accompanied by a decree or not. The answer to this question is dependent upon a decision on the p6ints as to whether the order passed in a contentious proceeding is a decree or not or as to whether a decree is to be drawn up or not after passing the order in a contentious proceedings.

(2.) This first appeal has been filed by the appellant against the judgment dated 25/01/1991, passed by the Second Additional District Judge, Saran at Chappra, in a Probate Case No. 17/85 granting probate in favour of the respondent in respect of a will dated 14-4-1954 alleged to have been executed by Parshuram Bharti in favour of the respondent with regard to the property mentioned in Schedule-1 of the petition filed for grant of probate. On filing of the said petition for grant of probate the appellant filed a caveat to oppose grant of probate and, thereafter, the proceeding became a contentious one. Both the parties led evidence in support of their cases and, thereafter, probate was granted, as mentioned above.

(3.) The appellant filed the appeal against the aforesaid judgment and the Stamp Reporter raised an objection that the decree has not been filed along with the memorandum of appeal and, as such, the appeal was incompetent. The matter was placed under the heading "for orders" before a learned single Judge of this Court and before him a statement was made at the bar that as the appeal has been filed under Section 299 of the Act, the decree was not required to be filed. The learned single Judge called for a fresh report on this point from the Stamp Reporter, who, relying upon a Division Bench Judgment of the Calcutta High Court, in the case of Hemchandra Buxi v. Janu Chandra Buxi reported in (1912) 17 Indian Cases 99, reported that the memorandum of appeal should be accompanied by a decree.