# Anil Yadav & Anr v. Smt. Puttul Devi @ Dulari Devi & Ors

- **Citation:** (2024) 1 ILRA 1114
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-05
- **Case number:** First Appeal No. 922 of 2023
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-yadav-anr-v-smt-puttul-devi-dulari-devi-ors-50833
- **Pages:** 5

## Headnote

A. Civil Law - Civil Procedure Code,1908Section
96-
The
Indian
Succession
Act,1925-Section
299-rejectionapplication for deletion of the issue no. 2
which had been framed earlier-whether
said order made by District Judge during
1 All. Anil Yadav & Anr. Vs. Smt. Puttul Devi @ Dulari Devi & Ors.
1115
the course of probate proceedings, would
be amenable to an appeal before this Court
under section 299-any order of interlocutory
nature passed by the District Judge during
course of probate proceedings or letters of
administration, cannot be held to be an
adjudication of a nature which conclusively
determines the right of the parties and
therefore would not be a 'decree' therefore
the same cannot be held to be appealable
under section 299 nor it would attract the
provisions of section 96 of the code-the
appeal
is
not
maintainable-
hence,
dismissed.

The appeal is dismissed. (E-6)

## Text

1114 INDIAN LAW REPORTS ALLAHABAD SERIES
admission in Brahmand Gyan Ashram, Vasi
Circle Girwa, District Banda was also
shown to be taken on 08.07.2010 in class 1
that is the same date on which his
admission was shown to be taken in
Government
Primary
School
Devarar,
Circle Mahua, District Banda

11. It shows that first admission of the
opposite party no. 2 was made on
08.07.2010 in Government Primary School
Devrar where his date of birth was entered
as 10.07.2003 and after passing class 1st
examination, he was admitted in class 2nd
on 1.07.2011 and then without taking
school leaving certificate from aforesaid
Government Primary School, he again took
admission in Brahmand Gyan Ashram, Vasi
Circle Girwa, District Banda in class 1st
showing the same date of admission i.e.
08.07.2010 and changing his date of birth
from
10.07.2003
to
02.04.2005.
Accordingly he continued his subsequent
studies in Brahmand Gyan Ashram, Purva
Madhyamik Vidhyalaya, Vasi Circle Girwa,
District Banda and Pt. Jawaharlal Nehru
Inter College, Girwa. It is clear from the
above that first attending school of the
opposite party no. 2 was Government
Primary School Devrar, Circle Mahua but
this fact was concealed by him while taking
admission in Brahmand Gyan Ashram, Vasi
Circle Girwa, District Banda and showing
the admission on the same date got the date
of birth entered as 02.04.2005. In such a
situation this Court is of the considered
view that the first attending school of
opposite party no. 2 was Government
Primary School Devrar where he took
admission on 08.07.2010 in class 1st and
date of birth was mentioned as 10.07.2003,
on the basis of which his age comes on the
date of occurrence i.e. 23.06.2022, 19
years, 3 months and 19 days i.e. more than
18 years and he was major.

12. Learned J.J. Board as well as
learned Appellate Court did not consider all
these facts while deciding the claim of
juvenility of the opposite party no. 2 but
based its order on subsequent academic
record which cannot be said to be based on
material on record and in conformity with
law, therefore, it warrants interference by
this Court.

13. Accordingly, this criminal revision
has force and is hereby allowed. The orders
passed by learned J.J. Board dated
28.09.2022 and learned Appellate Court
dated 24.11.2022 are set aside.

14. Copy of this order be transmitted
to the Court concerned for necessary
compliance.
----------
(2024) 1 ILRA 1114
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.12.2023

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

First Appeal No. 922 of 2023

Anil Yadav & Anr. ...Appellants
Versus
Smt. Puttul Devi @ Dulari Devi & Ors.
 ...Respondents

Counsel for the Appellants:
Sri Arvind Kumar Kushwaha, Ms. Pooja

Counsel for the Respondents:

A. Civil Law - Civil Procedure Code,1908Section
96-
The
Indian
Succession
Act,1925-Section
299-rejectionapplication for deletion of the issue no. 2
which had been framed earlier-whether
said order made by District Judge during
1 All. Anil Yadav & Anr. Vs. Smt. Puttul Devi @ Dulari Devi & Ors.
1115
the course of probate proceedings, would
be amenable to an appeal before this Court
under section 299-any order of interlocutory
nature passed by the District Judge during
course of probate proceedings or letters of
administration, cannot be held to be an
adjudication of a nature which conclusively
determines the right of the parties and
therefore would not be a 'decree' therefore
the same cannot be held to be appealable
under section 299 nor it would attract the
provisions of section 96 of the code-the
appeal
is
not
maintainable-
hence,
dismissed.

The appeal is dismissed. (E-6)

(Delivered by Hon'ble Dr. Yogendra Kumar
Srivastava, J.)

1. Heard Sri Arvind Kumar Kushwaha,
learned counsel for the appellants.

2. This is a first appeal filed under
Section 299 of the Succession Act, 19251
read with Section 96 of the Code of Civil
Procedure, 19082, directed against an order
dated 15.07.2023 passed by the Additional
District Judge, Court No. 13, Varanasi, in
Probate Case No. 73 of 2019, rejecting the
application 34C dated 16.05.2022, in terms of
which the appellants herein had sought
deletion of Issue No. 2, which had been
framed earlier.

3. The aforesaid order dated 16.05.2022
rejecting the application for deletion of the
issue would be referable to the provisions of
Order XIV Rule 5 C.P.C, and in view of the
same a question would arise as to whether the
said order can be held to be amenable to an
appeal under Section 299 of the Act read
with Section 96 of the Code.

4. Counsel for the appellants has
sought to contend that every order made by
a District Judge in probate proceedings
would be appealable under Section 299 of
the Act.

5. The question which therefore
requires consideration is, as to whether every
order made by a District Judge during the
course of probate proceedings, would be
amenable to an appeal before this Court
under Section 299. The relevant provisions of
the Act, are being extracted below:

"268. Proceedings of District
Judge's Court in relation to probate and
administration.-The proceeding of the
Court of the District Judge in relation to the
granting
of
probate
and
letters
of
administration shall, save as hereinafter
otherwise provided, be regulated, so far as the
circumstances of the case permit, by the Code
of Civil Procedure, 1908.

295. Procedure in contentious
cases.-In any case before the District Judge
in which there is contention, the proceedings
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.

299. 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."

6. There is no dispute with regard to the
fact that the Succession Act, 1925 is a special
Act and Section 299 of the said Act provides
a forum of appeal against every order made
by a District Judge by virtue of the powers
thereby conferred upon him, before the
High Court, in accordance with provisions
of the Code, as applicable to appeals.
1116 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Section 268 provides that the
proceedings of the court of the District
Judge in relation to the granting of probate
proceedings and letters of administration,
shall be regulated by the Code so far as the
circumstances of the case permits.

8. The provisions under Section 295
goes to show that in contentious cases, the
proceedings shall take as nearly as may be
the form of a regular suit, according to the
provisions of the Code.

9. In a case where a probate
proceeding is registered, and is treated as a
suit after it becomes contentious and the
Court is required to proceed for settlement
of issues, a question would arise as to what
would be the procedure to be followed. The
Act being silent on the procedure to be
followed, as of necessity, and in view of
Section 268, the provisions under Order
XIV of the Code with regard to settlement
of issues, would become applicable.

10. In the case at hand, in terms of the
order dated 16.05.2022, passed by the
Additional District Judge in the probate
proceedings, which is sought to be made
subject matter of the present appeal, the
application (34C) seeking deletion of issue
no.2, as had been framed earlier by the
Court, has been rejected.

11. The appellants herein having
chosen to invoke the remedy of appeal
under Section 299 against the aforesaid
order rejecting the application seeking
deletion of an issue, it would be required to
be seen as to whether the remedy of appeal
under Section 299 would be available in the
given circumstances.

12. Counsel for the appellants has
sought to lay emphasis on the expression
'every order' under Section 299, to urge
that in terms of the section every order
made by a District Judge is subject to an
appeal, and therefore the order rejecting the
application for deletion of an issue would
also be appealable under the said provision.

13. The aforesaid contention, would
have to be tested in terms of the conditions
laid down under Section 299 of the Act for
exercise of the appellate powers.

14. A close reading of the language
under Section 299 would indicate that the
word 'every' does not govern the word
'order', but it qualifies the entire phrase
'order made by a District Judge by virtue of
the powers hereby conferred upon him'.
The consequence that follows would be
that not every order made by a District
Judge would be amenable to appeal under
Section 299; only an order made by a
District Judge by virtue of the powers
conferred by the provisions of the Act shall
be subject to an appeal under the section.

15. The expression 'hereby conferred'
used would have to be understood as
meaning 'conferred by the provisions of the
Act'. Applying this construction, the words
'made by virtue of the powers hereby
conferred', would have to be necessarily
held to mean by virtue of the powers
conferred by the express provisions under
the Act.

16. For testing the appealability of an
order under Section 299, the order in
question must be traceable to a provision
under the Act. Only in a situation where the
order can be traced to a specific provision
under the Act, it would be held to be
appealable under the section. In other
words, there must be a provision under the
Act conferring power to make the order;
1 All. Anil Yadav & Anr. Vs. Smt. Puttul Devi @ Dulari Devi & Ors.
1117
otherwise the said order would not be
appealable.

17. It would not be sufficient to show
that the order which is sought to be
appealed against, has some legal sanction
or authority; the authority must be
traceable to some provision under the
Act.

18. An order which has been made
not under any provision under the
Succession Act, but draws its authority
from some other statute, the provisions of
which have been made applicable to
proceedings under the Succession Act,
would not be an order made by virtue of
the powers conferred by the Act. It would
be an order exercisable under the
provisions of another Act, which in a
given set of circumstances, have been
made applicable to proceedings under the
Succession Act.

19. The proceedings for grant of
probate or letters of administration is
governed by the provisions of Succession
Act, and in a situation where the case is
contentious, Section 295 gets attracted in
terms whereof it is provided that that
proceedings shall take, as nearly as may
be, the form of a regular suit, according
to the provisions of the Code. The
District Judge, in such circumstances,
may be called upon to make various kinds
of orders, which may not be traceable to
any power under the Succession Act but
would be referable to powers under the
Code.

20. An order made not in exercise of
a power conferred by the Succession Act,
but by a power referable to another
statute the provisions of which have been
made applicable in the proceedings,
would not be an order made by virtue of
the powers conferred by the Succession
Act, simply because a provision under it
makes the other statute applicable. The
order passed in such a situation would be
by virtue of powers conferred only by the
other statute.

21. The proceedings for grant of
probate and letters of administration being
governed by the provisions of the Code, in
certain situations, which confer powers for
making of various kinds of orders; any of
such orders when made by the District
Judge may be said to be an order made by
virtue of the powers conferred by the Code
but cannot be said to be an order made by
virtue of the powers conferred by the
Succession Act.

22. The Succession Act being a
special Act, an order made thereunder may
be said to be an order made under the
Code, in a situation where the Code
regulates the proceedings under the special
Act but the converse situation cannot be
readily inferred and an order made
exercising powers under the Code cannot
be held to have been made by virtue of the
powers under the Succession Act.

23. Section 268 which provides that
the proceedings of the court of the District
Judge in relation to granting of probate or
letters of administration shall be regulated
by the Code, cannot lead to an inference
that an order passed by the District Judge,
referable to the provisions under the Code,
would be appealable under Section 299.

24. The language of the statute makes
it clear that the legislature did not intend to
make every order made by the District
Judge appealable under Section 299, the
restriction
having
been
provided
by
1118 INDIAN LAW REPORTS ALLAHABAD SERIES
employing the words 'made by a District
Judge by virtue of the powers hereby
conferred'.

25. The right of an appeal under
Section 299 of the Act provided against
every order made by District Judge by
virtue of powers conferred, would therefore
have to be held, to be available only against
orders made by the District Judge by virtue
of powers conferred under the Act and the
said right of an appeal would not be
available against an order which has been
passed not in exercise of powers conferred
by the Succession Act, but in exercise of
powers made available under the provisions
of the Code.

26. It may also be noted that in a
contentious case although the procedural
provisions of the Code have been made
applicable, the proceedings are not to be
treated as a regular suit and upon
determination of the issues raised therein, a
decree is not to follow. The expression 'in
accordance with the provisions of Code of
Civil Procedure, 1908' finding place in
Section 299 of the Act, is not indicative of
substantive rights of the parties, but only
refers to the procedural aspect.

27. Any order of interlocutory nature
passed by the District Judge during the
course of proceedings in a case seeking
grant
of
Probate
or
Letters
of
Administration, cannot be held to be an
adjudication of a nature which conclusively
determines the rights of the parties and
therefore would not be a 'decree', so as to
be amenable to an appeal under Section 96
of the Code.

28. The order against which the
appeal has been preferred having been
passed by the District Judge exercising
powers referable to Order 14 Rule 5 of
Code, the said order cannot be said to be an
order made by the District Judge by virtue
of powers conferred upon him under the
Succession Act and therefore the same
cannot be held to be appealable under
Section 299 thereof. The order would also
not be covered under the description of the
term 'decree' so as to attract the provisions
of Section 96 of the Code, and be subject to
an appeal under the said provision.

29. The present appeal having
therefore been held to be not maintainable,
stands dismissed.

30. It would be open to the appellants
to seek appropriate legal remedy, as they
may be advised.
----------
(2024) 1 ILRA 1118
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.10.2023

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

First Appeal From Order No. 1083 of 2006

The New India Assurance Co. Ltd.
 ...Appellant
Versus
Arjun Gaur & Ors. ...Respondents

Counsel for the Appellant:
Sri Rakesh Bahadur

Counsel for the Respondents:
Sri Vashistha Tewari

First Appeal From Order - Dismissal of
Insurance Company's Challenge - The
appellant-insurance company challenged the
Motor Accident Claims Tribunal's award dated
06.01.2006, granting Rs.7,25,404/- with 7.5%
interest for the death of Indravati Devi in a