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PETITIONER: TEJ KAUR & ANR.

       Vs.

RESPONDENT: KIRPAL SINGH & ANR.

DATE OF JUDGMENT10/05/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1995 AIR 1681            1995 SCC  (5) 119  JT 1995 (5)   200        1995 SCALE  (3)596

ACT:

HEADNOTE:

JUDGMENT:           THE 10TH DAY OF MAY, 1995 Present:           Hon’ble Mr. Justice K. Ramaswamy           Hon’ble Mr. Justice B. L.Hansaria Mr. A. B. Rohtagi and Mr. Har Dev Singh, Sr. Advs. Ms. Madhu Mool Chandani, Adv. with them for the Respondent No.2.                             J U D G M E N T The following Judgment of the Court was delivered:           IN THE SUPREME COURT OF INDIA           CIVIL APPELLATE JURISDICTION           CIVIL APPEAL NO.88 OF 1979 TejKaur & Anr. Vs. Kirpal Singh & Anr.                            J U D G M E N T K. RAMASWAMY, J.:      This appeal by special leave arise from the judgment of the Division  Bench dated  May 16, 1977 in R.S.A. No. 117 of 1971 of  Punjab &  Haryana High Court.  The appellant is the first defendant.  Kirpal Singh,  first respondent,  laid the suit for  possession of  agriculture  lands,  buildings  and movable properties  from  the  appellant  and  another  with certain declarations.  Kirpal Singh is a step brother of one Kartar Singh,  husband of  Harbant Kaur.  She succeeded to a limited widow  estate in  the year  1922  on  her  husband’s demise and she executed a will Ex.-D.1 dated August 12, 1967 in favour  of the  appellant,  daughter  of  Harbant  Kaur’s sister to an extent of 36 acres etc. The trial court decreed the suit  holding that  the will was not proved to have been validly executed and in consequence the respondent/plaintiff became entitled  to the  estate of  Kirpal Singh. On appeal, the Sub-Judge, Ist Class, Rajpura in his decree and judgment dated January  21, 1971 confirmed the same agreeing that the will has  not been proved. When the appeal was posted before

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the Division Bench, one learned Judge held that the will has not been  proved while another learned Judge held it to have been proved.  Since no majority opinion of division bench on proof of  the will  emerged decree  of the  court below  was confirmed. Thus this appeal by special leave.      It is  vehemently contended  for the  appellant and the second respondent  that the  learned Judge who held that the will was  not proved  had not  taken relevant  factors  into consideration, while  the other  learned Judge  had gone  in greater detail  of the  circumstances in which the will came to be validly executed and proved, the onus of proof of will in that  behalf has  been discharged.  The disputed question should have  been referred to a third Judge for his opinion. In any  case, the  bar engrafted  in sub-s.(2)  of s.98, CPC applies only  to the  Division Bench  of the  High Court who heard the  appeal; and  its constraint  is inapplicable when this Court hears the appeal under Art.136. This Court should examine in  detail whether  the finding  of non-proof of the will is  vitiated by  errors of law. The power of this Court is very  wide to independently reappreciate the evidence and come to  its conclusion.  In that  behalf he  placed  strong reliance in  Dr. Prem  Chand Tandon v. Krishna Chand Kapoor, 1973 (2) SCC 366.      The question,  therefore, is whether the finding of the court below  that the  will has not been proved is a finding of fact?  If so,  whether in the absence of majority opinion of the  Division Bench,  the confirmation  of the  decree of civil court is valid in law? Thirdly, whether this Court can examine the  case on  merits to find whether will is validly proved, in  which event  would  sub-s.(2)  of  s.98  be  not rendered otiose or inefective?      It is  fairly agreed  across the  bar that  one learned Judge of the Bench recorded a finding that will has not been proved and  another learned  Judge recorded  contra finding, namely, will  has been  proved: The  grounds  on  which  the conclusion is  reached are  not material  for the purpose of deciding  the   controversy  in   this  appeal.  It  is  not controverted across the bar that the question whether a will is proved  or not  proved is  a question  of  fact.  In  the absence of  majority opinion  in that  behalf, sub-s.(2)  of s.98 mandates  that the  decree of the court below should be confirmed. Whether  this Court  could enlarge this scope and independently examine  the merits  to come  to a  conclusion either agreeing  or disagreeing  with either  of the learned Judges who constituted the Division Bench? In that behalf it is necessary  to look  into the  language of  s.98  of  CPC. Section 98(1)  adumbrates that where an appeal is heard by a Bench of  two or more Judges, the appeal shall be decided in accordance with  the  opinion  of  such  judges  or  of  the majority (if  any) of such Judges. Sub-s.(2) seems to design a situation  where no  majority opinion  agreeing  with  the judgment of  the trial  court emerges.  It says that: "Where there is  no such  majority  which  concurs  in  a  judgment varying or  reversing the  decree appealed from, such decree shall be confirmed". Proviso to sub-s.(2) reads:      "Where the  Bench hearing  the appeal is      composed of  two or other even number of      Judges including  to a  Court consisting      of more Judges than those consisting the      Bench,  and  the  Judges  composing  the      Bench differ  in opinion  shall than  be      heard upon  that point  only by  one  or      more of  the other Judges,and such point      shall  be   decided  according   to  the      opinion of the majority (if any ) of the

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    Judges  who   have  heard   the  appeal,      including those  who  have  first  heard      it."      Sub-s.(3) provide that nothing in this section shall be deemed to  alter or  otherwise affect  any provision  of the Letters Patent of any High Court.      In other  words,  the  difference  of  opinion  between Judges, who  constitute the  Bench hearing  the appeal, on a point of  law alone  would be  referred to  a third or other Judges according  to  the  rules  of  that  High  Court.  By implication, on  question of fact, when there is no majority opinion varying  or reversing the decree appealed from, such decree should be confirmed.      In Mulla’s  Code of  Civil Procedure, 14 Edn., Vol.I at p.587, it  is stated  thus: "no  reference can be made under this section if the Judges differ on a question of fact. The power  to  refer  can  only  be  exercised  if  there  is  a difference of opinion on a point of law". In Rajagopal Naidu v. Subbammal,  AIR 1928  Madras 180, in a suit for accounts, the Judges  partly differed  and partly agreed; and question arose as to what extent the decree of the court below stands confirmed or  reversed. The  Bench held that where an appeal is heard  by two  Judges and  both agreed upon reversing the decree appealed  from only as to one portion but differed as to the  rest, the  decree will be reversed as to the portion with respect  to which  the Judges  have agreed on reversal, and will  be confirmed  as to the rest, namely, with respect to which  they have differed. The same view was expressed by a Division  Bench of  the Allahabad  High  Court  in  Harakh Narain v. Babban, AIR 1933 Allahabad 473. Therein, in a suit based on  mortgage  its  validity  and  binding  nature  was assailed by  a member  of the  coparcenary. A  learned Judge held that  a large  part, namely, that a sum of Rs.2,000 was not supported  by valid  consideration  and  the  rest  was. Another learned  judge upheld  the decree of the trial court except as  regards Rs.340  of the  principal amount.  It was held that  the decree  to the  extent of  concurrence stands confirmed and  the rest  is not  a decree  of the High Court within the  meaning of  ss.2(2) and 2(9) of CPC. It was held that where  the Judges  composing a  Bench do  not agree  in confirming the  adjudication made  by  the  lower  court  in respect of  one item such decree or adjudication relating to that item shall be confirmed. At the same time if they agree in reversing  the decree or adjudication by the lower court, as regards another item in dispute, the decree in respect of such item  shall be  varied. In Baboo Ram v. Ishrat Ali, AIR 1975 Allahabad. 180, the second appeal under s.100 CPC arose from the  suit for  ejectment and the trial court, accepting the plea  of the tenant, dismissed the suit finding that the tenant did  not commit  default in  the payment  of rent. On first appeal,  it was  reversed holding  otherwise.  In  the second appeal,  there was  difference of opinion between the Judges constituting the Bench. It was held that by operation of sub-s.(2)  of s.98, the finding in respect of which there was a  difference of opinion, would stand confirmed, and the opinion of  the third Judge on the legal point was severable from his  opinon  on  the  finding  of  fact,  which  became conclusive by the application of s.98(2) irrespective of the opinion recorded by the third Judge.      The ratio in Jayanti Devi v. Chand Mal, 1984 BBCJ, 561, which has  been referred  by Shri  Bagga, is inapplicable to the point  in issue.  Therein,  because  of  what  has  been provided in  sub-s.(3) of  s.98 CPC, the Letter Patent power was taken  aid of  and it  was held  that the  Letter Patent Court was  not confined  to the hearing of the appeal by the

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third Judge on the question of law only, on which the Judges hearing the  appeal  had  differed.  Such  a  difference  of opinion could  be on  a question  of fact as well. It could, thus, be seen that the reference there was under the Letters Patent which power has been expressly preserved by sub-s.(3) of s.98.  But in  the case at hand, the Letters Patent power was not  available and  therefore, by operation of sub-s.(2) of s.98, the decree of the court below stands affirmed.      The question  then is  whether this Court could nullify the scheme of s.98(2) by examining the dispute on merits and by implication render sub-s.(2) surplusage or otiose. In our considered view  the contention  of the  appellant cannot be accepted.  It  is  true  that  in  a  case  where  there  is difference of  opinion among  the Judges  of the High Court, the power  of this Court under Article 136 is wide enough to test the  correctness  of  the  conclusion  reached  by  the differing learned Judges as pointed out by this Court in Dr. Prem  Chand  Tandon’s  case  (supra).  This  proposition  is unexceptionable but  this Court had no occasion in that case to consider  the scope  of sub-s.(2)  is imperative  and  in mandatory terms. The object appears to be that on a question of fact  when there  is a  difference of  opinion, the  view expressed by  the court  below, in the absence of a majority opinion, needs  to be given primacy and confirmed. When such is the animation, this Court cannot enlarge the scope of the controversy by  itself  examining  the  correctness  of  the finding of fact and decide which view of the two is correct. This would  be in direct negation of the legislative mandate expressed in sub-s.(2) of s.98 of the CPC.      When  leave   was  granted,   it  was  to  examine  the correctness of  the legal  position; and  not to examine the controversy on merits. While exercising power under Art.136, we may  not do  anything  which  would  violate  legislative mandate. In that view, we decline to interfere.      The  appeal   is  accordingly   dismissed  but  in  the circumstances parties  are directed  to bear their own costs throughout.