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CASE NO.: Appeal (civil)  5838 of 2006

PETITIONER: Kamla Devi                      \005Appellant

RESPONDENT: Khushal Kanwar & Anr.   \005Respondents

DATE OF JUDGMENT: 15/12/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T [Arising out of SLP (Civil) No. 236 of 2006]

S.B. SINHA,  J :

       Leave granted.

                Application of Section 100-A of the Code of Civil Procedure, 1908  (for short, ’the Code’) is involved in this appeal which arises out of a  judgment and order dated 19.09.2005 passed by a Division Bench of the  High Court of Rajasthan, Jaipur Bench, Jaipur in D.B. Special Appeal No.   22 of 1992.

       The father of Appellant indisputably was the owner of the property.   He died on 03.07.1973 leaving behind his widow Smt. Anandi Devi and the  parties hereto.  He allegedly gifted a portion of the house known as ’Anand  Vihar’ in favour of the appellant.  On 22.02.1977, Smt. Anandi Devi died.   She is said to have executed a Will on 28.01.1977 in favour of  Respondent  No. 1 herein.  An application for grant of probate in respect of the said Will  came to be filed by her in favour of  Respondent No.1 herein.  Appellant  entered into caveat in the said proceeding.  The application for grant of  probate was registered as Probate Case No. 31 of 1978 which was converted  into a suit.  Appellant herein raised the objections, inter alia, on the  following grounds :     

"1.     That Shrimati Anandi Devi Upadhyaya neither  executued any Will and Testament dated 28th January,  1977, nor was she physically and mentally fit to execute  any Will and Testament as she had been suffering from  Cancer since January, 1976 and had been confined to bed  in a very critical and serious condition since December,  1976 until her death.  Moreover, Shrimati Anandi Devi  had been mentally and physically handicapped and was  not of sound disposing state of mind.  Hence the  execution of the alleged Will and Testament is  emphatically denied and the petitioner be put to strict  proof of it.  Moreover Shrimati Anandi Devi had no right  or title to execute any will and Testament of the  proportion described in the annexed affidavit due to the  reasons below :

(A)     That late Shri Ganeshi Lal Upadhyaya had three  daughters namely Shrimati Kamla Devi, Shrimati  Nihal Kanwar and Shrimati Kushal Kanwar and a  wife Shrimati Anandi Devi and Shri Ganesh Lal  Upadhyaya expired on July 3, 1973, at Jhansi  (UP).

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(B)     That Shri Ganeshi Lal Upadhyaya gifted to  Shrimati Kamla Devi a portion of open plot  bearing area 34 ft. x 25 < fit. of Anand Bihar now  bearing AMC No. 258 / 1 on the eve of her  marriage in Kanyadan and he had made a note of  the abovesaid gift in his daily diary dated 6th May,  1956, which is in the possession of the petitioner  and also mentioned in an application to the  Municipal Council, Ajmer, dated November 11,  1970.  Shrimati Kamla Devi got construction  erected by her and her husband’s means in  December, 1963.

(C)     That except the property of Shrimati Kamla Devi  described in para No. 2 above, late Shri Ganeshi  Lal had the property namely Anand Bihar bearing  AMC 258 situated at Rajendrapura, Hathi Bhata,  Ajmer in his own exclusive possession and  ownership as the said property was got constructed  by late Shri Ganeshi Lal by his own means on the  land purchased by him in his own name.

(D)     That the late Shri Ganeshilal was survived by three  daughters namely Shrimati Kamla Devi, Shrimati  Nihal Kanwar and Shrimati Kushal Kanwar and  his wife Shrimati Anandi Devi.

(E)     That on February 22, 1977, Shrimati Anandi Devi  died at Ajmer and thus three daughters, being the  only survivors, jointly inherited the property AMC  12/258 Anand Bihar, Ajmer and movable property  including gold and silver ornaments, two motor  cars, utensils etc.

(F)     That after the death of late Shri Ganeshi Lal the  said immovable and movable properties were  inherited by four survivors namely his wife  Shrimati Anandi Devi and his three daughters.   Consequently, Shrimati Anandi Devi, if ever  wished to execute any Will although she never did,  never execute the Will of her only < share in the  immovable property.  But as she did not execute  so, the property has been inherited by her three  surviving daughters."

       The said suit was dismissed by a judgment and order dated  29.08.1987 passed by the learned District Judge, Ajmer, opining that  although Respondent No.1 had proved that the Will had duly been executed,  the map annexed  thereto was changed after execution of the Will and, thus,  the propounded Will was tampered.  A First Appeal preferred thereagainst  by Respondent No.1 was dismissed by a learned Single Judge of the High  Court of Judicature at Rajasthan by a judgment and order dated 13.02.1992,  holding that the execution of the Will was doubtful inasmuch as the map  which was said to have been annexed therewith was not the same which was  found to have been attached at the time of  its registration.   

       An intra-court appeal was preferred thereagainst.  By reason of the  impugned judgment, the judgment and order passed by the learned Single  Judge was set aside.  An application for review filed thereagainst was also  dismissed.

       Parliament inserted Section 100A in the Code of Civil Procedure by  Section 38 of Act No. 104 of 1976, which was substituted by Section 4 of

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Act No.22 of 2002,   which came into force with effect from. 01.07.2002.

       The core question which arises for consideration in this appeal is as to  whether the Special Appeal filed by Respondent No.1 herein before a  Division Bench of the Rajasthan High Court was maintainable.

       Submission of the learned counsel appearing on behalf of the  appellant is that Section 100A not only bars filing of an appeal, but would   be attracted even in a pending appeal.   

       Constitutionality of Section 100A of the Code of Civil Procedure  came to be questioned before this Court in Salem Advocate Bar Association,   T.N. etc. v. Union of India \026 (2003) 1 SCC 49], wherein this Court upheld  the validity thereof, stating :

       "14. Section 100A deals with two types of cases  which are decided by a Single Judge. One is where the  Single Judge hears an appeal from an appellate decree or  order. The question of there being any further appeal in  such a case cannot and should not be contemplated.  Where, however, an appeal is filed before the High Court  against the decree of a trial court, a question may arise  whether any further appeal should be permitted or not.  Even at present depending upon the value of the case, the  appeal from the original decree is either heard by a  Single Judge or by a Division Bench of the High Court.  Where the regular first appeal so filed is heard by a  Division Bench, the question of there being an intra-court  appeal does not arise. It is only in cases where the value  is not substantial that the rules of the High Court may  provide for the regular first appeal to be heard by a  Single Judge. 15. In Such a case to give a further right of appeal where  the amount involved is nominal to a Division Bench will  really be increasing the workload unnecessarily. We do  not find that any prejudice would be caused to the  litigants by not providing for intra-court appeal, even  where the value involved is large. In such a case, the  High Court by Rules, can provide that the Division  Bench will hear the regular first appeal. No fault can,  thus, be found with the amended provision Section  100A."

       However, it was opined that the modalities were required to be  formulated in respect of the manner in which Section 89 of the Code and for  that matter, the other provisions which have been introduced  by way of  amendments, may have to be operated.  For the said purpose, a  Committee  headed by the Chairman, Law Commission of India, was constituted  so as  to ensure that the amendments become effective and result in quicker  dispensation of justice.  It submitted a report.  We are, however, not  concerned therewith herein.

       A right of appeal under the Code is statutory.  Such right of appeal is  also conferred under the Letters Patent of the High Court or the statutes  creating the High Court.

       An appeal, as is well known, is the right of  entering a superior court  invoking its aid and interposition to redress an error of the Court below.  The  central idea behind filing of an appeal revolves round the right as contra- distinguished from the procedure laid down therefor.   

       This Court in Messrs. Hoosein Kasam Dada (India) Ltd. v. The State  of Madhya Pradesh and Others [AIR 1953 SC 221], opined :         "11. The above decisions quite firmly establish and  our decisions in Janardan Reddy v. The State and in

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Ganpat Rai v. Agarwal Chamber of Commerce Ltd.,  uphold the principle that a right of appeal is not merely a  matter of procedure. It is matter of substantive right. This  right of appeal from the decision of an inferior tribunal to  a superior tribunal becomes vested in a party when  proceedings are first initiated in, and before a decision is  given by, the inferior court. In the language of Jenkins  C.J. in Nana v. Shaikh (supra) to disturb an existing right  of appeal is not a mere alteration in procedure. Such a  vested right cannot be taken away except by express  enactment or necessary intendment. An intention to  interfere with or to impair or imperil such a vested right  cannot be presumed unless such intention be clearly  manifested by express words or necessary implication."  

       Whether Section 100A takes away such a right is the question.  In our  opinion, it does not.  An appeal, as is well known, is a continuation of the  original proceedings.         In Shiv Shakti Co-op. Housing Sociedty, Nagpur v. M/s Swaraj  Developers and Others  [AIR 2003 SC 2434], this Court held :         "17. Right of appeal is statutory. Right of appeal  inherits in no one. When conferred by statute it becomes  a vested right. In this regard there is essential distinction  between right of appeal and right of suit. Where there is  inherent right in every person to file a suit and for its  maintainability it requires no authority of law, appeal  requires so. As was observed in The State of Kerala v.  K.M. Charia Abdulla and Co., the distinction between  right appeal and revision is based on differences implicit  in the two expressions. An appeal is continuation of the  proceedings; in effect the entire proceedings are before  the appellate authority and it has power to review the  evidence subject to statutory limitations prescribed. But  in the case of revision, whatever powers the revisional  authority may or may not have, it has no power to review  the evidence, unless the statute expressly confers on it  that power. It was noted by the four-Judges Bench in  Hari Shankar and Ors. v. Rao Girdhari Lal Chowdhury   that the distinction between the appeal and a revision is a  real one. A right of appeal carries with it a right of re- hearing on law as well as fact, unless the statute  conferring the right of appeal limits the re-hearing in  some way, as has been done in second appeals arising  under the Code. The power of hearing revision is  generally given to a superior Court so that it may satisfy  itself that a particular case has been decided according to  law. Reference was made to Section 115 of the Code to  hold that the High Court’s powers under the said  provision are limited to certain particular categories of  cases. The right there is confined to jurisdiction and  jurisdiction alone."

       A question in relation to maintainability of a Letters Patent Appeal  under the Indian Succession Act came up for consideration before this Court  in Subal Paul v. Malina Paul and Another [(2003) 10 SCC 361], wherein this  Court opined :         "17. It is not disputed that Section 299 of the Act  expressly provides for an appeal to the High Court. The  right of appeal, therefore, is not conferred under Section  104 of the Code of Civil Procedure. The words "save as  expressly provided by any other Act" were inserted in the  said provisions in 1908 having regard to difference of  opinions rendered in the judgments of various High  Courts as regards the applicability of letters patent. The  High Courts of Calcutta, Madras and Bombay following

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the decisions of the Privy Council in Hurrish Chunder  Chowdhry v. Kalisunderi Devi [(1883) 9 Cal. 482 : 10  I.A. 4] held that Section 588 of the Code of Civil  Procedure, as it then stood, did not take away the  jurisdiction of Clause 15 of the Letters Patent whereas  the Allahabad High Court in Bannu Bibi v. Mehdi  Husain [(1889) 11 All. 375] held to the contrary. The  said words were, therefore, added in the 1908 Act to give  effect to the Calcutta, Madras and Bombay High Courts’  decisions."

       It was further held : "21. If a right of appeal is provided for under the Act, the  limitation thereof must also be provided therein. A right  of appeal which is provided under the Letters Patent  cannot be said to be restricted. Limitation of a right of  appeal in absence of any provision in a statute cannot be  readily inferred. It is now well-settled that the appellate  jurisdiction of a superior court is not taken as excluded  simply because subordinate court exercises its special  jurisdiction. In G.P. Singh’s ’Principles of Statutory  Interpretation’, it is stated: "The appellate and revisional jurisdiction of  superior courts is not taken as excluded simply  because the subordinate court exercises a special  jurisdiction. The reason is that when a special Act  on matters governed by that Act confers a  jurisdiction to an established court, as  distinguished from a persona designata, without  any words of limitation then, the ordinary incident  of procedure of that court including any general  right of appeal or revision against its decision is  attracted." 22. But an exception to the aforementioned rule is on  matters where the special Act sets out it a self-contained  Code the applicability of the general law procedure  would be impliedly excluded. [See Upadhyaya  Hargovind Devshanker v. Dhirendrasinh  Virbhadrasinnhji Solanki and Ors."                                 In   Municipal Corporation of Brihanmumbai and Another v. State  Bank of India  [(1999) 1 SCC 123], this Court held: "This section has been introduced to minimize the delay  in the finality of a decision. Prior to the enactment of the  above provision, under the letters patent, an appeal  against the decision of a Single Judge in a second appeal  was in certain cases, held competent, though under  Section 100 of the Code of Civil Procedure, there was  some inhibition against interference with the findings of  fact. The right of taking recourse to such an appeal has  now been taken away by Section 100-A of the Code of  Civil Procedure\005"

       In P.S. Sathappan (Dead) by L.Rs. v. Andhra Bank Ltd. and Others  [(2004) 11 SCC 672], a Constitution Bench of this Court, albeit in reference  to Section 104 of the Code, held :

"It is thus to be seen that when the Legislature wanted to  exclude a Letters Patent Appeal it specifically did so. The  words used in Section 100A are not by way of abundant  caution. By the Amendment Acts of 1976 and 2002 a  specific exclusion is provided as the Legislature knew  that in the absence of such words a Letters Patent Appeal  would not be barred. The Legislature was aware that it  had incorporated the saving clause in Section 104(1) and

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incorporated Section 4 C.P.C. Thus now a specific  exclusion was provided. After 2002, Section 100A reads  as follows: "100A. No further appeal in certain cases.- Notwithstanding anything contained in any Letters  Patent for any High Court or in any instrument  having the force of law or in any other law for the  time being in force, where any appeal from an  original or appellate decree or order is heard and  decided by a single Judge of a High Court, no  further appeal shall lie from the judgment and  decree of such single Judge." To be noted that here again the Legislature has provided  for a specific exclusion. It must be stated that now by  virtue of Section 100A no Letters Patent Appeal would  be maintainable. However, it is an admitted position that  the law which would prevail would be the law at the  relevant time. At the relevant time neither Section 100A  nor Section 104(2) barred a Letters Patent Appeal."

       It was furthermore observed :

"\005We may notice that when a first appeal or second  appeal was disposed of by a Single Judge, a Letters  Patent Appeal had been held to be maintainable  therefrom only because there existed no bar in relation  thereto. Such a bar has now been created by reason of  Section 100-A of the Code. No appeal would, therefore,  be maintainable when there exists a statutory bar. When  the Parliament enacts a law it is presumed to know the  existence of other statutes. Thus, in a given case, bar  created for preferring an appeal expressly cannot be  circumscribed by making a claim by finding out a source  thereof in another statute."                  In Kamal Kumar Dutta and Another v. Ruby General Hospital Ltd. &  Ors., [2006 (7) SCALE 668], it was observed :

"So far as the general proposition of law is concerned  that the appeal is a vested right there is no quarrel with  the proposition but it is clarified that such right can be  taken away by a subsequent enactment either expressly  or by necessary intendment. The Parliament while  amending Section 100A of the Code of Civil Procedure,  by amending Act 22 of 2002 with effect from 1.7.2002,  took away the Letters Patent power of the High Court in  the matter of appeal against an order of learned single  Judge to the Division Bench..."                                         [Emphasis supplied]

       Keeping in view the principles of law as enunciated in the  aforementioned decisions of this Court, it is evident that a letters patent  appeal, which was filed prior to coming into force of the 2002 Act would be  maintainable.           Our attention has, furthermore, been drawn to the two decisions of  this Court in Bento De Souza Egipsy (Dead) by LRs. v. Yvette Alvares  Colaco and Others [(2004) 13 SCC 438] and Sanjay Z. Rane and Others v.  Saibai S. Dubaxi (Dead) Through LRs. [(2004) 13 SCC 439], wherein this  Court opined that Section 100A of the Code has no retrospective effect.         We, therefore, are unable to accept the contentions of the learned  counsel for the appellant that Section 100A of the Code will have  retrospective effect so as to bring within its fold even the appeals preferred  prior to coming into force of the said Act.   The appeal is dismissed.  No  costs.