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CASE NO.: Appeal (civil)  398 of 2008

PETITIONER: GAUDIYA MISSION

RESPONDENT: SHOBHA BOSE & ANR.

DATE OF JUDGMENT: 15/01/2008

BENCH: C.K. THAKKER & ALTAMAS KABIR

JUDGMENT: J U D G M E N T ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 12465 OF 2006

C.K. THAKKER, J.

1.              Leave granted. 2.              The present appeal is directed against  summary dismissal of Special Appeal No. 527 of  2006 by a Division Bench of the High Court of  Judicature at Allahabad on May 24, 2006. By the  said order, the Division Bench of the High  Court confirmed the judgment and order dated  March 28, 2006 passed by a Single Judge of that  Court in Testamentary Case No. 8 of 2000 on the  Original Side of Testamentary and Intestate  Jurisdiction. 3.              Brief facts of the case are that one  Narendra Nath Bose, resident of Allahabad and  working as Lecturer, Government Girls\022 Inter  College, Gonda (U.P.) was having his family  consisting of his wife Radha Rani Bose and  three daughters, (i) Asha Bose, (ii) Uma Bose  and (iii) Shobha Bose (respondent herein). All  the three sisters (daughters of deceased  Narendra Nath) decided not to marry. Kum. Asha  Bose died on June 9, 1990. 4.              Kum. Uma Bose was serving as a  Lecturer in Government Girls College, Gonda,  U.P. and was a disciple of \021Gaudia Mission\022  (hereinafter referred to as \021the Mission\022) a  Society, registered under the Societies\022  Registration Act, 1860 (appellant herein). She  was closely associated with the activities of  the Mission and also got printed various  religious books and literature for the Mission  by spending considerable amount. It is the case  of the appellant that after her retirement from  the College, she was living in Vrindaban and  not with her sister Kum. Shobha Bose-respondent  at Allahabad. She continued to take interest in  the activities of the Mission. Because of her  attachment and dedication towards work of the  Mission, she executed a Will on December 28,  1994 bequeathing her properties in favour of  the Mission. The Will was duly registered. On  September 09, 1996, said Kum. Uma Bose executed  a Codicil in favour of the appellant Mission in  relation to certain further sums and movable  properties which had come to her share and also

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her share in immovable properties at Vrindaban.  The Codicil was also registered on September  19, 1996. On November 18, 1996, Kum. Uma Bose  died in Vrindaban. 5.              According to the appellant Mission,  Kum. Shobha Bose-respondent No.1 herein-real  sister of late Uma Bose, never kept any  relation with her and never looked after her  and continued to stay at Allahabad only. It is  the case of the appellant that in 1997,  respondent No. 1 Kum. Shobha Bose applied for a  Letter of Administration to the estate of  deceased Kum. Uma Bose concealing real facts of  Will and Codicil in favour of appellant- Mission. The Letter of Administration was  granted to her on September 26, 1997 but on  application at the instance of the appellant  Mission, the certificate was cancelled. The  appellant-Mission applied for Probate for the  Will executed by deceased Kum. Uma Bose by  filing Probate Case No. 174 of 1997 before the  Division Bench of Allahabad High Court. The  application was, however, withdrawn by the  appellant with liberty to file fresh  proceedings. Respondent No. 1-Kum. Shobha Bose  filed Testamentary Suit for the estate of  deceased Kum. Uma Bose. The appellant-Mission  filed its objections to the said suit and  claimed that it was the appellant who was  entitled to the property of deceased Uma Bose  and Kum. Shobha Bose had no right, title or  interest in the estate of late Kum. Uma Bose.  Issues were framed by the Court and witnesses  were examined. Respondent No.1-Kum. Shobha Bose  produced a sale deed said to have been executed  by Kum. Uma Bose long back and contended that  signature on the sale deed and that in the Will  did not tally. The appellant-Mission applied to  the High Court that the signatures be examined  by hand-writing expert. But the prayer was not  granted by the Court.  6.              The matter was then heard by a Single  Judge of the High Court and by judgment and  order dated March 28, 2006, the learned Judge  himself compared the hand-writing of deceased  Kum. Uma Bose in sale deed and in the Will and  held that the Will was surrounded by suspicious  circumstances. He also observed that the  deceased was not living in Vrindaban and was  not being looked after by the Mission as  claimed by the Mission. He held that Kum.  Shobha Bose was the real sister of deceased  Kum. Uma Bose.  In that capacity, she was  entitled to a Letter of Administration of the  estate and credits of late Kum. Uma Bose.  The  Court consequently ordered payment of amount  received from the Bank by the deceased to Kum.  Shobha Bose holding that she was entitled to  the said amount. She was also held to be the  owner of the house. The learned Judge also  imposed cost of Rs.25,000/- on the Mission- appellant herein.  7.              Being aggrieved by the order passed by  the trial Court (Single Judge), Special Appeal  was filed by the appellant herein before the

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Division Bench of the High Court which, as  stated above, was dismissed in limine by the  Division Bench holding that the view taken by  the Single Judge was correct and appeal did not  require admission.  Hence, the present appeal  has been preferred by the appellant-Mission 8.              Notice was issued by this Court on  August 11, 2006. Interim stay of recovery was  also granted. Affidavit in reply and affidavit  in rejoinder were thereafter filed. The matter  was ordered to be posted for final hearing and  that is how the matter has been placed before  us. 9.              We have heard learned counsel for the  parties. 10.             The learned counsel for the appellant  Mission has raised several contentions. He  submitted that an appeal filed before Division  Bench of the High Court was a regular statutory  appeal. It was in the nature of First Appeal  and all questions\027questions of fact as well as  of law\027could be agitated. It was, therefore,  incumbent on the Division Bench of the High  Court to admit the appeal and to decide it  after appreciating the evidence on record by a  detailed and reasoned judgment. Dismissal of  appeal in limine by the Division Bench was  improper and on that ground alone, the impugned  order deserves to be set aside. It was also  urged that even if the appeal is considered to  be an intra-court appeal, all questions of fact  and of law could be argued and the Division  Bench cannot refuse to admit the appeal by  dismissing it at the threshold observing that  it agrees with the finding recorded by the  trial Court. It was also urged that as many as  thirteen issues were framed by the trial Court  and all those issues were required to be  considered by the Division Bench. They raised  disputed questions of fact which necessitated  appreciation of evidence, application of mind  by the Division Bench and a reasoned judgment.  The counsel argued that from the facts, it was  clearly established that there was a Will  executed by the deceased Kum. Uma Bose in 1994  which was duly registered. Similarly, there was  a Codicil of 1996 which was also registered.  They ought to have been considered but they  were not considered by the Division Bench in  their proper perspective. According to the  counsel, if respondent No.1 challenged legality  and validity of the Will, the proceedings  initiated on the Original Side of the High  Court were not maintainable and the only Court  which had jurisdiction to decide such question  was a competent Civil Court which had exclusive  jurisdiction in such matters. Testamentary Suit  instituted by the respondent No. 1 before the  learned Single Judge on the Original Side of  the High Court was, therefore, not  maintainable. The counsel made serious  grievance against the order passed by the  learned Single Judge and confirmed by the  Division Bench on the ground that they had  committed grave error in comparing signatures

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and hand-writings of deceased Kum. Uma Bose on  sale deed and in the Will and in coming to the  conclusion that the signatures and the hand- writings differed and they were not of one and  the same person. The counsel urged that this  Court has held in several cases that no  comparison of hand-writing should be made by a  Court as it is the function of an expert. It is  dangerous, hazardous and risky to record a  finding on comparison of hand-writings on  different documents and it should be avoided.  In the instant case, though the said objection  was taken before the trial Court by the  appellant and an application was also made to  send the hand-writings to experts, the prayer  was rejected and the Court proceeded to  undertake the exercise which was not warranted.  But, even otherwise, the appellant contended  that the Court was in error in comparing  handwritings of Kum. Uma Bose in the Will on  the one hand and in the sale deed on the other  hand. So far as sale deed is concerned, it was  said to have been executed in 1987 whereas Will  was executed in 1994.  There was thus  substantial time lag between the sale deed and  the Will and the said important and vital fact  had not been considered properly by the learned  Single Judge. On all these grounds, it was  submitted that the appeal deserves to be  allowed by setting aside the orders passed by  both the Courts or in any case by the Division  Bench of the High Court by remitting the matter  to the appellate Court and directing it to  admit the appeal and to decide it by a reasoned  judgment. 11.             The learned counsel for the  respondent, on the other hand, supported the  order passed by the Division Bench of the High  Court. According to him, the Division Bench did  not think it fit to admit the appeal since it  agreed with the reasons recorded and  conclusions reached by the learned Single Judge  who had considered all points and no fault can  be found against such order. It was argued that  on the basis of the evidence on record, the  learned Single Judge held that as a sole  surviving member of the family of Narendra Nath  Bose, respondent No.1-Kum. Shoba Bose was  entitled to the property of her elder sister  late Kum. Uma Bose and no disputed questions of  fact were involved in the suit. On the basis of  evidence adduced by the parties, the learned  Single Judge held that there was nothing to  show that the appellant-Mission was entitled to  any relief and the respondent No. 1 had right  to apply for Letter of Administration who could  get the said relief and the Division Bench  agreed with the said conclusion. Regarding  comparison of signature and hand-writings, it  was submitted by the counsel that it is open to  a Court of Law to compare hand-writings and  reliance in this connection was placed on  Section 73 of the Evidence Act, 1872. It was  submitted that the law enables a Court to make  comparison of hand-writings and if the

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statutory power was exercised by the learned  Single Judge, it cannot be contended that the  Court was wrong.  The appeal, hence, deserves  to be dismissed. 12.             Having heard learned counsel for the  parties, in our opinion, on a short ground, the  appeal deserves to be allowed. From the facts,  it is clear that great many questions were  involved in the Testamentary Suit instituted by  the respondent No. 1. Several issues were  framed by the trial Court and the suit was  decided by a detailed judgment entering into  merits of the matter. In our opinion,  therefore, the learned counsel for the  appellants is right in submitting that the  Division Bench of the High Court ought to have  admitted the appeal. It was not right in  dismissing statutory appeal in limine. No  doubt, an order dismissing the appeal is a  speaking order containing few pages.  But, in  our opinion, the appeal instituted by the  appellant before the Division Bench was a  statutory appeal under Section 384 of the  Indian Succession Act, 1925.  13.             Section 384 reads thus: 384. Appeal.-(1) Subject to the other  provisions of this Part, an appeal  shall lie to the High Court from an  order of a District Judge granting,  refusing or revoking a certificate  under this Part, and the High Court  may, if it thinks fit, by its order on  the appeal, declare the person to whom  the certificate should be granted and  direct the District Judge, on  application being made therefor, to  grant it accordingly, in supersession  of the certificate, if any, already  granted. (2) An appeal under sub-section (1)  must be preferred within the time  allowed for an appeal under the Code  of Civil Procedure, 1908. (5 of 1908). (3) Subject to the provisions of sub- section (1) and to the provisions as  to reference to and revision by the  High Court and as to review of  judgment of the Code of Civil  Procedure, 1908, (5 of 1908) as  applied by section 141 of that Code,  an order of a District Judge under  this Part shall be final. 14.             Bare reading of the aforesaid  provision leaves no room for doubt that it is a  regular appeal and all questions i.e. questions  of fact and of law are open to urge before the  appellate Court. In the circumstances, it was  expected of the Division Bench to consider all  submissions and contentions of the parties. We  are also of the view that the argument of the  learned counsel for the appellants that the  Will as well as Codicil were executed in 1994  and 1996 and both were duly registered, was one  of the relevant factors which ought to have  been kept in mind by the Division Bench.  

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Again, even if it is held that a Court of law  has power, authority and jurisdiction to  compare hand-writings under Section 73 of the  Evidence Act, the point raised as to whether on  the facts and in the circumstances of the case  and in the light of an application made by the  appellant-Mission that they may be sent to  hand-writing expert, the Court should have  undertaken the exercise of comparison of hand- writings was a relevant issue. This is coupled  with the fact that the sale deed said to have  been executed by deceased Kum. Uma Bose was of  1987 and Will and Codicil were of 1994 and 1996  respectively. 15.             We are not prepared to agree with the  learned counsel for the respondent that the  scope of appeal before the Division Bench was  very much limited. Even in an appeal from a  decision of a Single Judge of the High Court in  First Appeal, a Division Bench of the High  Court has power to consider all questions,  whether of facts or of law, which could be  raised before a Single Judge.  In other words,  the party aggrieved before the Division Bench  in Intra-Court/Letters Patent Appeal can raise  all those questions which could be raised  before a Single Judge of the High Court in  First Appeal.  16.             In Asha Devo v. Dukhi Sao, (1975) 1  SCR  611: AIR 1974 SC 2048, a similar question  came up for consideration before this Court.  There, a First Appeal came up for hearing  before a Single Judge of the High Court and was  disposed of. Against the said order, a Letters  Patent Appeal was filed. A preliminary  objection was raised on behalf of the  respondents that since it was an appeal from an  order passed by a Single Judge of the High  Court in First Appeal, the appeal before the  Division Bench was really in the nature of  Second Appeal and questions of law only could  be agitated in such Letters Patent Appeal. 17.             Negativing the contention and holding  that the scope of appeal before the Division  Bench was similar to one before a Single Judge,  this Court stated:      \023There is no dispute that an  appeal lies to a Division Bench of  the High Court from the judgment of a  Single Judge of that Court in appeal  from a judgment and decree of a court  subject to the superintendence of the  High Court. The only question is  whether the power of a Division Bench  hearing a Letters Patent appeal under  Clause 10 of the Letters Patent of  Patna High Court or under the  analogous provisions in the Letters  Patent of other High Courts is  limited only to a question of law  under Section 100 of the CPC or has  it the same power which the Single  Judge has as a first Appellate Court  in respect of both questions of fact  and of law. The limitations on the

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power of the Court imposed by  Sections 100 and 101 of the CPC  cannot be made applicable to an  Appellate Court hearing a Letters  Patent appeal from the judgment of a  Single Judge of that High Court in a  first appeal from the judgment and  decree of the court subordinate to  the High Court, for the simple reason  that a Single Judge to the High Court  is not a Court subordinate, to the  High Court\024.

18.             From what has been observed by this  Court in Asha Devi and considering the fact  that an appeal under Section 384 of the Indian  Succession Act is a regular appeal, we are of  the view that arguable points had been raised  by the appellant-Mission in the appeal which  ought to have been admitted by the Division  Bench.   19.             On overall considerations, in our  judgment, the appeal deserves to be allowed by  setting aside the order passed by the Division  Bench and by ordering admission of appeal  remitting it to the Division Bench of the High  Court to be decided in accordance with law  after recording reasons. 20.             For the foregoing reasons, the appeal  is allowed. The order passed by the Division  Bench in Gaudiya Mission v. Km. Shobha Bose &  Anr. is set aside. The appeal will stand  admitted.  The Division Bench will now hear the  parties on merits and decide the case in  accordance with law by a reasoned judgment. On  the facts and in the circumstances of the case,  however, there shall be no order as to costs. 21.             Before parting with the matter, we may  clarify that we have not expressed any opinion  on merits of the matter one way or the other.  All the observations made by us hereinabove  have been made only for the purpose of deciding  the present appeal and as and when the matter  will be placed for hearing before the Division  Bench, the same will be decided strictly on its  own merits without being influenced by the  above observations. 22.             The appeal is accordingly allowed.