Finding on a Will in final-decree proceedings is appealable as a decree, not under Article 227, rules Karnataka HC

The petitioner claimed to be the legatee under a Will allegedly executed by his grandmother, who had been allotted a 1/50th share in a partition suit under the preliminary decree.

During the final decree proceedings, the petitioner sought recognition of his entitlement to that share on the basis of the Will and led evidence, including the evidence of an attesting witness.

The Final Decree Proceedings Court held that the Will had not been proved in accordance with law and rejected the petitioner’s testamentary claim.

The petitioner challenged that determination under Article 227 of the Constitution, contending that it was merely an interlocutory order and not an appealable decree.

1. Whether an adjudication by the Final Decree Proceedings Court on the proof of a Will propounded by a legatee constitutes a “decree” under Section 2(2) of the Code of Civil Procedure, 1908, despite being made during final decree proceedings?

2. Whether the petitioner’s challenge to the rejection of his testamentary claim was maintainable under Article 227 of the Constitution, or whether he was required to pursue a regular appeal under Section 96 CPC?

Section 2(2) CPC defines a “decree” as the formal expression of an adjudication which conclusively determines the rights of the parties regarding all or any of the matters in controversy in the suit; an adjudication need not dispose of the entire suit if it conclusively determines a substantive matter in controversy.

Final decree proceedings are a continuation of the original suit and give effect to the rights declared in the preliminary decree, although every order passed during such proceedings is not necessarily a decree.

A judicial determination that conclusively affects a party’s substantive entitlement, rather than merely regulating procedure, may constitute a decree in substance regardless of its form or nomenclature.

Proof of a Will must satisfy Section 63 of the Indian Succession Act, 1925, read with Section 68 of the Indian Evidence Act, 1872.

Since the adjudication was held to be a decree, the appropriate remedy was a regular appeal under Section 96 CPC, and Article 227 could not be invoked as an alternative to that statutory remedy.

The time spent before the High Court could be excluded under Section 14 of the Limitation Act, 1963, subject to the conditions specified by the Court.

The Court held that the petitioner’s claim was not collateral or procedural because his entire entitlement to participate in the final decree proceedings depended upon the alleged Will and his succession to the 1/50th share allotted to the testator.

The Final Decree Proceedings Court had permitted the petitioner to propound the Will and had adjudicated, on the evidence led, whether it was duly proved under the applicable statutory requirements.

Its finding that the Will was unproved conclusively extinguished the foundation of the petitioner’s testamentary claim, leaving no further question regarding that claim to be determined in the final decree proceedings.

Applying the substance-and-effect test under Section 2(2) CPC, the Court concluded that the determination involved a judicial adjudication of a substantive right and therefore had the essential attributes of a decree, notwithstanding that it was not formally drawn up as one.

Consequently, the petitioner could not use Article 227 supervisory jurisdiction to challenge the merits of that adjudication when a statutory appeal under Section 96 CPC was available.

The writ petition under Article 227 was therefore held to be not maintainable.

The petition was disposed of with liberty to the petitioner to file a regular appeal under Section 96 CPC.

If filed within four weeks from receipt of the certified copy of the order, the appellate court was directed to consider limitation and exclude the time spent before the High Court under Section 14 of the Limitation Act, 1963.