ORDER : A. HARIPRASAD, J. 1. In this unnumbered appeal, boarded before us on a reference by a learned single Judge, the questions to be answered are three fold - (i) Whether a contentious proceedings under Section 295 of the Indian Succession Act, 1925 (in short, "the Act') could be regarded as a full-fledged suit? (ii) Whether a final adjudication in such a proceedings be regarded as a decree as defined in Section 2(2) of the Code of Civil Procedure, 1908 (in short, "the Code")? (iii) If the final adjudication amounts to a decree, can an appeal be filed invoking the provisions under Section 96 and Order XLI of the Code? 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 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 (AIR 1999 Kerala 320), 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. 4. Heard the learned counsel for the appellant and contesting respondents. Learned Amicus Curiae also ably assisted us in approaching the legal questions from different perspectives. 5. We shall examine the relevant provisions under the Act and the Rules for effectively answering the reference. Section 278 of the Act is the provision relating to filing a petition for letters of administration. It specifies the details to be shown in the application. Section 295 of the Act prescribes the procedure when a petition for probate or letters of administration becomes contentious. The Section reads as follows: "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 (5 of 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." In the matter of contentious cases, referred to in Section 295 of the Act, it is highly essential to consider that part of the above Rules dealing with contentious proceedings, viz., Rules 22 to 28. Among the above Rules, Rule 26 is very important. It reads as follows: "Conversion of application into suit.- Upon the affidavit in support of the caveat being filed, notice whereof shall simultaneously be given by the caveator to the petitioner. Among the above Rules, Rule 26 is very important. It reads as follows: "Conversion of application into suit.- Upon the affidavit in support of the caveat being filed, notice whereof shall simultaneously be given by the caveator to the petitioner. The proceedings shall be ordered by the Court to be numbered as a suit in which the petitioner for probate or Letters of Administration shall be the plaintiff and the caveator shall be the defendant, the petition for probate or Letters of Administration being registered as and deemed as a plaint filed against the caveator, and the affidavit filed by the caveator being treated as his written statement in the suit. The procedure in such suit shall, as nearly as may be, be according to the provisions of the Code." 6. Now, we shall deal with the facts and legal issues in Skaria's case. An original petition was filed under Section 278 of the Act before the District Judge concerned for granting letters of administration to the plaintiffs in the above case. It was later converted into a regular suit. After taking evidence, the District Judge passed a decree granting letters of administration. Aggrieved by the decision, the defendants preferred an appeal before this Court. Then also a similar question was raised regarding the manner of registering the appeal, that is whether it is to be regarded as an Appellate suit (A.S.) or MFA. Learned single Judge after referring to Hansraj v. Dehra Dun M.E.T. Co.( AIR 1933 PC 63 ); Panzy Fernandas v. M.F.Queoros ( AIR 1963 All. 153 (FB)); Puinbasi Majhiani v. Shiba Bhue (AIR 1967 Orissa 41); Diwan Brothers v. Central Bank of India, Bombay ( AIR 1976 SC 1503 ); Balai Lal Banerjee v. Debaki Kumar Ganguly (AIR 1984 Cal.16); Ali v. Muhammadali ( 1995 (2) KLT 225 ) and Anto Mamkootam v. Peruvanthanam S.C.B. ( 1996 (2) KLT 962 ) held that a decision taken under Section 278 of the Act is only an order and not a decree. Further, even in a case where a decree has been drafted, in reality it is not a decree. Drafting a decree will not change the character of a petition or an application filed under Section 278 of the Act. 7. Learned single Judge found it difficult to agree with the above propositions and wrote an exhaustive reference order. Further, even in a case where a decree has been drafted, in reality it is not a decree. Drafting a decree will not change the character of a petition or an application filed under Section 278 of the Act. 7. Learned single Judge found it difficult to agree with the above propositions and wrote an exhaustive reference order. We agree with the learned single Judge that Skaria's case does not lay down the correct principles in law. The observation in Skaria's case that there is no decree in a contentious case for issuance of letters of administration is legally incorrect. View taken by the learned single Judge that even after conversion of a petition into a regular suit, the character of the petition will be retained is also an incorrect statement. Hence, we overrule the ratio in Skaria's case for the reasons mentioned hereunder. 8. First of all, let us go through the decisions relied on by the learned single Judge in Skaria's case. In Panzy Fernandes (supra), decided by the Allahabad High Court, the sole question raised for consideration by a Full Bench was relating to the amount of court fee payable on a memorandum of appeal filed under Section 299 of the Act. In fact, while examining what was the court fee payable in an appeal under Section 299 of the Act arising from a proceedings under Section 278 of the Act, some related questions were elaborately considered. It is all the more important to note that a provision akin to Rule 26 of the Rules was not scrutinised by the court, either because of the fact that such a provision may be absent in that State or nobody must have brought such an aspect to the notice of the court. In that context, it was held that an order granting letters of administration should be considered to be an order having the force of a decree. 9. In Puinbasi Majhiani (supra), a learned single Judge considered the question relating to quantum of court fee payable in an appeal challenging the order refusing to grant probate of a Will. With reference to the Court Fees Act prevailing in the State and Section 295 of the Act, it was held that the proceedings are not regular suits, but assumed such a form under Section 295 of the Act. With reference to the Court Fees Act prevailing in the State and Section 295 of the Act, it was held that the proceedings are not regular suits, but assumed such a form under Section 295 of the Act. Having regard to the relevant State law, it was held that when a proceedings for probate becomes contentious, it shall take, as nearly as may be, the form of a regular suit and for a limited purpose only such a contentious case will be treated as a suit. Ultimate finding therein is that there is no provision in the Court Fees Act for paying additional court fee in such a situation. 10. In Balai Lal Banerjee (supra), the question came up for consideration was whether failure to supply a copy of decree along with the memorandum of appeal against an order of grant of probate or letters of administration could render the appeal itself incompetent. After referring to Sections 276, 278 and 299 of the Act, the Court held that a proceedings for grant of probate or letters of administration is not strictly a suit, though in some cases where the grant is opposed it is deemed as such. We notice that in the above case also no provision similar to Rule 26 of the Rules was considered. Therefore the ratio therein cannot be applied to cases arising in the State of Kerala. 11. In Skaria's case reliance is placed on Diwan Brothers (supra). The Supreme Court was considering a case relating to Displaced Persons (Debts Adjustment) Act, 1951. An appeal was taken to the Supreme Court against the judgment of a learned single Judge of Allahabad High Court for deciding as to what is the court fee payable in connection with the memorandum of appeal against a decree passed by a Tribunal appointed under the above mentioned Act. It was observed that the term "decree" occurring in Schedule II, Article 11 of the Court Fees Act is referable to a decree as defined in Section 2(2) of the Code. The decision of the Tribunal, constituted under the above Act, either allowing or rejecting a claim, though described as a decree in the Act, does not make it a decree within the meaning of the Court Fees Act. With these observations, the Supreme Court disposed of the case. The decision of the Tribunal, constituted under the above Act, either allowing or rejecting a claim, though described as a decree in the Act, does not make it a decree within the meaning of the Court Fees Act. With these observations, the Supreme Court disposed of the case. Here, in our case, it is to be remembered that a contentious case is disposed of by a principal civil court of original jurisdiction, viz., the District Court. All provisions in the Code are applicable to a proceedings before that court. We find no reason to adopt the ratio decidendi in the above case to decide the question whether a final adjudication of a contentious proceedings for letters of administration could be called a decree as defined under Section 2(2) of the Code. Hence the principle laid down in Diwan Brothers has no application here. 12. We have gone through the decision in Hansraj's case, wherein it was decided in the context of Section 3 of the Limitation Act, 1908 that the word "suit" ordinarily means, and apart from some context must be taken to mean, a civil proceedings instituted by the presentation of a plaint. It was held that a claim against a company in liquidation not made by a proceedings instituted by the presentation of a plaint cannot be considered to be a "suit instituted" within the Section. We find it difficult to rely on the principles laid down in the above decision to the facts in this case. Therefore, the principle in Hansraj has no application in resolving this issue, especially when Section 295 of the Act and Rule 26 of the Rules say otherwise. 13. The ratio in Ali's case is also of no application to this case when we reckon the legal questions and facts involved in both the cases. 14. In Anto Mamkootam, a Division Bench of this Court held that orders passed under Order XXI Rule 58(3) of the Code are appealable under Section 96 treating such orders as deemed decrees. No appeal under Order XLIII Rule 1 of the Code is maintainable in those matters. While discussing the principles, the Division Bench observed that difference in treating the appeal filed under Section 96 and numbering it as A.S. is not only of formal or procedural, but one of substance. No appeal under Order XLIII Rule 1 of the Code is maintainable in those matters. While discussing the principles, the Division Bench observed that difference in treating the appeal filed under Section 96 and numbering it as A.S. is not only of formal or procedural, but one of substance. If we carefully read the decision, it will go against the reasoning of the learned single Judge in Skaria's case. 15. In the reference order, the learned single Judge has placed reliance on certain decisions, apart from the provisions in the Statute and subordinate legislation mentioned above. Division Bench of the Karnataka High Court in Miss Pressy Pinto v. Rony Maxim Pinto and others (AIR 2009 Karnataka 157) considered a similar question on a reference, pertaining to the numbering an appeal against an order passed in a contentious proceedings for issuance of probate. After referring to various provisions in the Code and the Act, the Bench came to a conclusion that a Regular First Appeal would lie against a judgment/decree passed in a contentious suit contemplated under Section 295 of the Act. 16. We are of the opinion that merely because there is no need to pay additional court fee, when a contentious proceedings for letters of administration is converted to a regular suit, it cannot be taken as a reason to hold that the proceedings could not attain the status of a suit contemplated under the Code. Quantum of court fee may not be a determinative factor. Payment of court fee is a matter between the State and litigant. If the relevant Statutes clearly indicate the scope and effect of conversion of such a proceedings to a regular suit when it becomes contentious, change of its status as a suit cannot be doubted for non-payment of ad-valorem court fee. It can only be presumed that the legislature in its wisdom has exonerated the plaintiff from paying ad-valorem court fee, payable in a regular suit. 17. Another reason for our view is that conversion of an original proceeding into a regular suit under some circumstances, like Section 92 or Order XXXIII of the Code, is not unknown to law. Hence, we find no reason to support the view in Skaria's case. 17. Another reason for our view is that conversion of an original proceeding into a regular suit under some circumstances, like Section 92 or Order XXXIII of the Code, is not unknown to law. Hence, we find no reason to support the view in Skaria's case. After hearing the learned counsel and the Amicus Curiae, we find no reason to hold-that a contentious proceedings under Section 295 of the Act could not be regarded as a full-fledged suit and the final adjudication in such proceedings should not be regarded as a decree as defined in Section 2(2) of the Code for the purpose of filing an appeal under Section 96 read with Order XLI of the Code. Since Skaria's case is not correctly decided, we overrule the same. According to the existing provisions, the appeal has to be numbered as R.F.A. Reference is answered accordingly. Registry shall take the follow up action for disposal of the case.