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CASE NO.: Appeal (civil) 1287  of  1990

PETITIONER: KULWANT KAUR & ORS.

       Vs.

RESPONDENT: GURDIAL SINGH MANN (DEAD) BY LRS & ORS.

DATE OF JUDGMENT:       21/03/2001

BENCH: A.P. Misra & Umesh C. Banerjee

JUDGMENT:

WITH CIVIL APPEAL NO.1288 OF 1990

JUDGMENT L...I...T.......T.......T.......T.......T.......T.......T..J

BANERJEE, J.

   The  core  issue  in  these appeals  centres  round  the applicability  of  Section 100 vis-Ã -vis Section 41  of         the Punjab  Courts  Act  1918.  This Court in  Banarsi  Dass  v. Brig.   Maharaja  Sukhjit Singh & Another (1998 (2) SCC  81) was  faced with an identical situation and answered the same that  there  is no impediment in the matter of  exercise  of jurisdiction  of  the High Court in entertaining the  second appeal  in view of clause ( c) of sub-section (1) of Section 41  of the Punjab Act.  The situation would have been rather easier  for us in view of the pronouncement of this Court in Benarasi Das (supra), but Mr.  Mehta appearing in support of the  Appeal  drew our attention to the observations of  this Court  in paragraph 13 of the Report to the effect that  the decision  of  this  Court in its entirety proceeded  on  the basis  of a concession that the second appeal under  section 41  of  the  Punjab  Courts Act  was  maintainable  and  the objection  pertaining to the amended Section 100 of the Code was  not  pressed and it is on this count that  the  learned Advocate  in  support of the appeal very strongly  contended that  applicability  of Section 41 of the Punjab Act on  the wake of the amendment to the Code of Civil Procedure, and in particular,  Section 100 thereof was not considered  neither the  decision  of this Court in Banarsi Dass (supra) can  be ascribed  to be an authority therefor.  Having regard to the concession  and for proper appreciation, paragraph 13 is set out herein below:

    13.   Mr.  Bhagat conceded that the second appeal under Section  41 of the Punjab Courts Act was maintainable and he did not press his objection based on the amended Section 100 of  the Code.  We, therefore, need not examine the  question if  Section  4 of the Code would save the  applicability  of Section  41 of the Punjab Courts Act in view of Section  101 of  the  Code  which says that no second  appeal  shall  lie

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except  on the grounds mentioned in Section 100 and Entry 13 of  List  III (Concurrent List) of Seventh Schedule  of  the Constitution which reads:

   13.   Civil Procedure, including all matters included in the  Code  of  Civil Procedure at the commencement  of  this Constitution, limitation and arbitration.

   The  concession thus recorded in Banarsi Dasss case  as noticed  above  obviously  renders the  submissions  of  Mr. Mehta  of  some substance.  Concession, if made and  in  the event  the Court proceeds on the basis of such a concession, the decision cannot by any stretch be termed to be a binding precedent  and  as such the previous decision (1998 (2)  SCC 81) does not and cannot have the sanctity and solemnity of a binding precedent.  On the wake of the aforesaid, Mr.  Mehta in  support of the Appeal, contended that the High Court was clearly  in error in entertaining the second appeal  without any  substantial question of law being involved therein  and in any event, the second Appeal was entertained in violation of the procedure prescribed under Section 100 of the Code of Civil  Procedure.  It is at this juncture Section 100 as was existing  prior  to  the Amendment Act, 1976,  ought  to  be noticed.

   Section 100 read as below:

   100.  (1) Save where otherwise expressly provided in the body  of this Code or by any other law for the time being in force,  an  appeal  shall lie to the High Court  from  every decree passed in appeal by any court subordinate to the High Court on any of the following grounds, namely:

   (a)  the decision being contrary to law or to some usage having the force of law;

   (b)  the  decision  having   failed  to  determine  some material issue of law or usage having the force of law;

   (c)  a  substantial  error or defect  in  the  procedure provided by this Code or by any other law for the time being in  force, which may possibly have produced error or  defect in the decision of the case upon merits.

   (2)  An  appeal  may  lie under  this  section  from  an appellate decree passed ex parte.

   Section  100  of  the  Code as  stands  amended  by  the Amendment Act and as is presently prevalent ought also to be noticed presently and the same reads as below:

   100.(1) Save as otherwise expressly provided in the body of  this  Code  or by any other law for the  time  being  in force,  an  appeal shall lie to the High Court,  from  every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

   (2)  An  appeal  may  lie under  this  section  from  an appellate decree passed ex parte.

   (3)  In an appeal under this section, the memorandum  of appeal shall precisely state the substantial question of law involved in the appeal.

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   (4) Where the High Court is satisfied that a substantial question  of law is involved in any case, it shall formulate that question.

   (5)  The  appeal  shall  be heard  on  the  question  so formulated  and the respondent shall, at the hearing of  the appeal,  be allowed to argue that the case does not  involve such question:

   Provided  that  nothing  in this  sub-section  shall  be deemed  to  take away or abridge the power of the  Court  to hear,  for  reasons to be recorded, the appeal on any  other substantial  question of law, not formulated by it, if it is satisfied that the case involves such question.

   Mr.   Swaroop  for  the  Respondent on  the  other  hand contended   rather  emphatically  that  by  reason  of   the provisions  of  Section 41 of the Punjab Courts  Act,  1918, there  is neither any requirement nor any scope for  framing of  any  substantial  question  of  law.   The   Respondents contended that compliance and adaptation of the procedure as prescribed  under Section 100 of the Code of Civil Procedure as  is in the Code presently, can not by any stretch be said or termed to be a requirement having regard to Section 41 of the Punjab Courts Act which reads as below:

   41.  Second appeals- (1) an appeal shall lie to the High Court  from  every  decree  passed in appeal  by  any  court subordinate  to  the  High  Court on any  of  the  following grounds, namely:

   (a) The decision being contrary to law or to some custom or usage having the force of law;

   (b)  The  decision  having   failed  to  determine  some material issue of law or custom or usage having the force of law;

   (c)  A  substantial  error or defect  in  the  procedure provided by the Code of Civil Procedure, 1908 (V of 1908) or by  any  other  law for the time being in  force  which  may possibly  have  produced error or defect in the decision  of the case upon the merits.

   Explanation  -  A question relating to the existence  or validity  of  a  custom  or usage shall be deemed  to  be  a question of law within the meaning of this section.

   (2)  An  appeal  may  lie under  this  section  from  an appellate decree passed ex parte.

   Admittedly  the  above  noted three  provisions,  as  in Section  41 (a), (b) & (c) (as above) stand in pari  materia with  Section  100 prior to the amendment,  though  however, substantially  different from the existing Section 100 which stands  engrafted in the statute book by the Amendment  Act, 1976.   The applicability of Section 41 of the Punjab Act in the  State  of  Punjab  as  of   date  and  even  after  the introduction  of the Amendment Act as stated by Mr.  Swaroop stands  affirmed  by a full Bench judgment of the  Punjab  & Haryana High Court in the case of Ganpat v.  Shri Ram Devi & Others  (AIR  1978  P & H 137) wherein the  High  Court  has categorically  recorded a finding that a reading of Sections 4(1)  and  100  (1)  of  the   Code  together  leads  to  an irresistible  conclusion that the legislature wished to save

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and  leave  all special or local laws as also any other  law for  the  time  being  in force on  the  subject  of  second appeals.   The High Court further stated that Section 41  of the Punjab Courts Act which clearly falls in such a category would  thus  not  be,  in any way  stands  affected  by  the provisions  of  Section 100 even on a plain construction  of these  statutory provisions.  In paragraph 15 of the report, the High Court stated the situation as below:

   15.   Even  excluding out of consideration the  specific provisions  of  Section  4(1) and 100 of the Code  the  same result  would seem to follow upon larger principles as well. There  can  hardly be any doubt that the Civil P.C.  is  the general law of the land on the subject.  On the contrary the Punjab  Courts  Act operates in a narrow and  limited  field both as regards the area to which it applies and the subject matter  with  which  it deals.  It is a settled law  that  a special provision or a special power would normally override a  general  one.  On this general principle, the  particular provisions  of  section  41  of the Punjab  Courts  Act  are entitled to exclude the general provisions of S.  100 of the Code  in the same field.  If authority was at all  necessary for  so established a proposition, reference may be made  to the recent Full Bench decision reported in 78 Punjab LR 726: (AIR 1976 Punjab 310) (FB) Chanan Singh v.  Smt.  Majo.

   The  Full  Bench  decision of the High Court,  in  fact, however,   placed   a  far  too   literal  a   meaning   and interpretation  of Section 4 of the Civil Procedure Code and it  is  on this statutory interpretation, the High Court  in paragraph 9 of the report stated as below:

   9.  It is manifest from the above that the saving clause aforesaid  has  been couched in terms of  widest  amplitude. The  plain  intention of the legislature appears to be  that unless there is specific provision to the contrary, the Code shall  not  affect any special or local law or  any  special jurisdiction  or  power conferred by any other law.  At  the very  outset we may point out that no specific provision  to the  contrary  in this context has been or could  have  even remotely  pointed  out.  It is equally plain, and indeed  it was not disputed before us, that the Punjab Courts Act would squarely fall within the terminology of any special or local law.   This  being  so it is unnecessary to dissert  at  any great  length on the true nuance to be attached to the terms special  law or local law in this context.  On this admitted position,  therefore,  it follows that by virtue of  Section 4(1)  the provisions of the Punjab Courts Act are in no  way limited or otherwise affected by the provisions contained in the  Code.  A fortiori the provisions of Section 100 of  the Code,  therefore, do not affect the corresponding provisions of Section 41 of the Punjab Courts Act either.

   The  High Court further observed that Section 41 of  the Punjab Courts Act equally provides a special jurisdiction to the  High Court as regards the Second Appeal and cannot  but be  said  to be thus saved from being affected by  the  Code and,  in fine, came to a conclusion that Section 4(1) of the Code  has otherwise saved Section 41 of the Punjab Act  from being in any way overridden or affected by the provisions of the  Code even after introduction of the Amendment Act, 1976 in the Statute Book and Section 100 in particular.

   The  entire  submission of Mr.  Swaroop as  regards  the applicability  of  Section 41 being saved of the rigours  of

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Section  100,  admittedly, stands corroborated by  the  Full Bench  Judgment.   Let us however, analyse the situation  in slightly   more  greater  detail   and  consider  the   true perspective  of Section 4(1) having regard to Section 97  of the  Code of Civil Procedure (Amendment) Act, 1976.  Section 97 (1) of the Amendment Act reads as below:

   Any  amendment  made, or any provision inserted  in  the principal  Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment  or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed.

   On  the  score  as above, we may  profitably  quote  the decision  of this Court in Ganpat Giri v.  Second Additional District  Judge,  Ballia  and  Others (1986  (1)  SCC  615). Paragraph 3 of the decision noticed above reads as below:

    3.   The  above  provision is however subject  to  sub- section (2) of Section 97 of the Amending Act which provides that notwithstanding that the provisions of the Amending Act have  come into force or the repeal under sub-section (1) of Section 97 of the Amending Act has taken effect, and without prejudice  to the generality of the provisions of Section  6 of  the general Clauses Act, 1897, the provisions in clauses (a)  to (zb) of that sub-section would prevail.  Sub-section (3)  of Section 97 of the Amending Act provides that save as otherwise provided in sub-section (2), the provisions of the principal  Act, as amended by the Amending Act, shall  apply to  every suit, proceeding, appeal or application pending at the  commencement of the Amending Act or instituted or filed after  such commencement, notwithstanding the fact that  the right,  or cause of action, in pursuance of which such suit, proceeding,  appeal  or application is instituted or  filed, had been acquired or had accrued before such commencement.

   Section  97 (1) thus has an overriding effect as against any  amendment  or  provision being  inconsistent  with  the provisions  of  the  principal  Act and  the  principal  Act referred  to  in Section 97 is the Code of Civil  Procedure. It  is on this score that Article 254 of the Constitution of India  also  have  a bearing and as such the same  is  noted hereinbelow for its field of operation and scope.

   254.   Inconsistency between laws made by Parliament and laws  made  by  the Legislatures of States.    (1)  If  any provision  of  a law made by the Legislature of a  State  is repugnant  to  any  provisions of a law made  by  Parliament which  Parliament is competent to enact, or to any provision of  an  existing  law  with respect to one  of  the  matters enumerated  in  the  Concurrent List, then, subject  to  the provisions  of  clause  (2),  the law  made  by  Parliament, whether  passed  before  or  after   the  law  made  by  the Legislature  of  such  State, or, as the case  may  be,  the existing  law,  shall  prevail  and  the  law  made  by  the Legislature  of  the  State  shall, to  the  extent  of  the repugnancy, be void.

   (2)  Where a law made by the Legislature of a State with respect  to one of the matters enumerated in the  Concurrent List  contains any provision repugnant to the provisions  of an  earlier  law made by Parliament or an existing law  with respect  to  that  matter,  then, the law  so  made  by  the

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Legislature of such State shall, if it has been reserved for the  consideration  of  the President and has  received  his assent, prevail in that State:

   Provided  that  nothing  in this  clause  shall  prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or  repealing  the  law so made by the  Legislature  of  the State.

   Article  254  thus maintains Parliamentary supremacy  in matters  under  List I and List III (List I Union  List  and List III Concurrent List).  And It is on this score that Mr. Mehta was very eloquent that doctrine of implied repeal will have  its true impact on the situation and thus  resultantly negatived the effect of Section 41 of the Punjab courts Act. Mr.   Mehta  contended  that  Section 100 of  the  Code  and Section 41 of the Punjab Act without any pale of controversy have  a common objective viz.  authority and jurisdiction to hear  Second Appeals and thus both operate on the same field and  by  reason  of  the  factum of  the  Punjab  Act  being non-complimentary  to Section 100 of the Code, it cannot but be said to be repugnant and hence the doctrine of repugnancy will  have its full play in the matter of declaration of the Punjab Act being void.

   On  the doctrine of implied repeal, Mr.  Mehta contended that  procedural  law must be having a meaningful  existence without  being in conflict with a parliamentary legislation. Undoubtedly,  the  doctrine of implied repeal is not  to  be favoured but where a particular provision cannot co-exist or intended  to  subsist  in  the  event  of  there  being  the repugnancy  between central and State Legislature the courts cannot  but  declare it to be so on the ground of repeal  by implication.    Uniformity   of  law,    being   the   basic characteristics  of Indian jurisprudence cannot be termed to be at sufferance by reason of a State Legislation which runs counter  to  the Central Legislation.  It is  not  necessary that  one legislation should be on the positive side whereas the other one in the negative:  Such a stringent requirement is  not the requirement in order to bring home the issue  of repugnancy,  but all the same it might result when both  the legislations  cover  the same field.  This observation  find support from the decision of this Court in Zaverbhai Amaidas v.   The  State  of Bombay [1955 (1) SCR 799]  wherein  this Court observed:

   It  is true, as already pointed out, that on a  question under  Article 254 (1) whether an Act of Parliament prevails against  a  law of the State, no question of repeal  arises; but the principle on which the rule of implied repeal rests, namely,  that if the subject-matter of the later legislation is  identical with that of the earlier, so that they  cannot both  stand  together;  then the earlier is repealed by  the later  enactment,  will be equally applicable to a  question under  Article  254 (2) whether the further  legislation  by Parliament  is in respect of the same matter as that of  the State  law.   We  must accordingly hold that  section  2  of Bombay  Act  NO.XXXVI  of  1947 cannot  prevail  as  against section  7 of the Essential Supplies (Temporary Powers)  Act No.XXIV  of  1946 as amended by Act No.LII of  1950.  (vide page 809)

   In  Zaverbhais case (supra) this Court in no  uncertain terms  laid  down  that the important thing to  consider  is

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whether the legislation is in respect of the same matter and it  is on this score true effect of Article 254 (2) has been said  to  the effect that if both the Centre and  the  State though  competent  to enact the same, the law of the  Centre should  prevail over that of the State.  There cannot be any divergence of views on this score having regard the language of  the  Article 254 and this is irrespective of the  factum that constitutionality of a statute being always presumed in affirmative  rather  than  in the negative.  It is  in  this context  that  a  Constitution Bench of this  Court  in  the decision  in Karunanidhi [M.  Karunanidhi v.  Union of India &  Anr.  (1979) 3 SCC 431] stated that before any repugnancy can arise the following conditions must be satisfied:

   (a) That there is clear and direct inconsistency between the Central Act and the State Act;

   (b)   That   such  an    inconsistency   is   absolutely irreconcilable;

   (c) That the inconsistency between the provisions of the two  Acts is of such a nature as to bring the two Acts  into direct  collision with each other and a situation is reached where  it  is impossible to obey the one without  disobeying the other.

   The   requirement   is   thus   a   clear   and   direct irreconcilable inconsistency between the Central Act and the State  Act and the inconsistency would be of such an  extent that  it  would  be  otherwise impossible to  obey  the  one without  disobeying the other.  Needless to record here that prior  to  the  Amendment  Act of 1976,  through  which  the amendment  to  Section 100 was brought in the statute  book, the  question of Section 100 being inconsistent with Section 41  of the Punjab Act did not arise, since the Punjab Act is in consonance with unamended Section 100 without there being any  differentiation and are compatable to each other  being pari  materia.  Since the relevant statutory provisions have already been noticed herein before in this judgment, we need not  recapitulate  the same, and suffice however, to  notice what stands noticed already.  The situation, however, stands differently on the incorporation of the amendment to Section 100.   With  the amendment, the power to entertain a  Second Appeal  by  the  High Court stands restricted only  on  such occasions  when the High Court is otherwise satisfied  about the  involvement  of  a substantial question  of  law.   The addition of this new concept of substantial question was not available  in  the  Code  of Civil Procedure  prior  to  the amendment  or  in  the  Punjab   Act.   What  however  is  a substantial question we need not go into the same neither we are  called upon to note in extenso the true purport of  the expression.   The issue stands concluded since the  decision in  Chunilals case [Sir Chunilal V.  Mehta & Sons Ltd.  vs. Century  Spinning and Manufacturing Co.  Ltd.  :AIR 1962  SC 1314]  and  subsequently  in the decision of this  Court  in Pankaj  Bhargavas  case  [  Pankaj   Bhargava  &  Anr.   V. Mohinder  Nath & Anr.  :  (1991) 1 SCC 556] We are concerned with a much narrower issue as to whether the two acts can be termed  to be inconsistent with each other as stated by  the Punjab  Full  Bench (supra).  The learned Advocate  for  the Respondents  responded  in the negative by placing  reliance upon  amended Section 100 and in particular the saving  part of  Section  100(1) which according to the submission  saves the  Punjab  statute.  The same however, needs to be  delved

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into  some detail.  With reference to this submission,  i.e. the  saving provision, intention of the legislature seems to be  that  any  other law for the time being in  force  (e.g. Punjab  Act)  shall stand saved  This in short is the  case made  out  for  the respondents.  As a matter  of  fact  the respondents  reiterated  the  reasonings as adopted  by  the Punjab  Full  Bench  and  contended that by  reason  of  the express  saving,  question  of  Punjab  Act  being  declared repugnant to the Section 100 does not and cannot arise.  The respondents  contended that the manifestation in the earlier Section  100 so far as protection of State Law is  concerned is  still  maintained  and  there   is  identity  with  such manifestation  in  the pre amended and post amended  Section 100  of  the  Code of Civil Procedure and  in  this  context reference  to  Section 4 of the Code under which special  or local  law even special form of procedural law stands saved. A  look at section 4 of the Code would thus be relevant  and the  same  reads as below:- 4.  (1) in the absence  of  any specific  provision  to the contrary, nothing in  this  Code shall  be deemed to limit or otherwise affect any special or local  law now in force or any special jurisdiction or power conferred,  or any special form of procedure prescribed,  by or under any other law for the time being in force.

   (2)   In  particular  and   without  prejudice  to   the generality  of the proposition contained in sub-section (1), nothing  in this Code shall be deemed to limit or  otherwise affect  any  remedy which a landholder or landlord may  have under  any law for the time being in force for the  recovery of rent of agricultural land from the produce of such land.

   The  submission for the Respondent further proceeded  to the  effect  that  on  a plain reading of  this  Section  it depicts  that in the event of there being any inconsistency, the  special or local laws will have the precedence over the Code but in the event, there is no inconsistency between the two, the Code will prevail  rather an attractive submission but on a closer scrutiny the same pales into insignificance. As  aforesaid  the  special  or local law  as  contained  in Section  41  of  the Punjab Code was in  pari  materia  with unamended  Section  100 so then there was no  inconsistency. It  is  only  after  the  amendment  could  be  said  to  an inconsistency  have  developed between the  two  provisions, which  is submitted to be saved by the aforesaid Section  4. While  it is true, on its plain reading at the first  glance local  law  seems to have been saved but we have to  examine this  in  the  light of Article 254 of the  Constitution  of India and the doctrine of repugnancy read with Section 97 of the  Amending  Act  as noticed in the earlier part  of  this judgment.   Incorporation  of  the   Civil  Procedure   Code Amendment Act in the statute book is by virtue of conferment of  power under Entry 13 of List III of the Seventh Schedule of  the  Constitution.   The   Constitution  is  the  parent document  and  is supreme which has a binding effect on  all and  by  virtue  of  the  provisions  of  the  Constitution, parliamentary  supremacy in regard to the adaptation of laws if  within the area of operation as provided under List I or List III is recognised.

   Article 254 makes it unequivocal of the supremacy of the Parliament in the matter of repugnancy of any matter falling under  List  I or List III.  There is one  exception  carved under  Clause  (2) to a matter falling under the  Concurrent List  III.   This  supremacy is further  reinforced  by  the

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proviso of this Clause (2), which records;

   Provided  that  nothing  in this  clause  shall  prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or  repealing  the  law so made by the  Legislature  of  the State.  (Noticed again for convenience).

   Thus even in cases falling under Clause (2), where State law  prevail, such law could be amended, varied or  repealed by  the  Parliament  by enacting law  subsequently  both  by virtue of Clause (1) or proviso to Clause (2).

   It  is in this context a decision of this Court  (I.T.C. &  Ors.  v.  State of Karnataka & Ors :1985 (Suppl) SCC 476) may also be noted, wherein this Court in paragraph 18 of the judgment (see page 496) had the following to state:

   Thus, in my opinion, the five principles have to be read and construed together and not in isolation  where however, the  Central and the State legislation cover the same  field then the Central legislation would prevail.  It is also well settled  that  where two Acts, one passed by the  Parliament and  the other by a State Legislature, collide and there  is no   question   of  harmonising   them,  then  the   Central legislation must prevail.

   Needless  to record that since the decision in Tullochs case  [State  of Orissa v.  MA Tulloch & Co.  :1964 (4)  SCR 461]  the  law seems to be rather firmly settled  viz.a.viz. the  Central and the State Act.  In the decision last  noted it  has  been stated that if the Central and the State  Acts collide  with  each other the inevitable  consequence  would have  to be that the Central Act will prevail over the State Act  and the latter will have to yield.  This Court  further went on to observe:

   Repugnancy  arises when two enactments both within  the competence  of  the  two Legislatures collide and  when  the Constitution  expressly or by necessary implication provides that  the enactment of one Legislature has superiority  over the  other  then  to the extent of the  repugnancy  the  one supersedes  the  other..   the  test  of  two  legislations containing  contradictory  provisions is not,  however,  the only criterion of repugnancy, for if a competent Legislature with  a superior efficacy expressly or impliedly evinces  by its  legislation an intention to cover the whole field,  the enactments of the other Legislature whether passed before or after would be overborne on the ground of repugnance.

                                   (Emphasis supplied)

   Subsequent  to  the  decision as noticed  herein  before there  is  another decision of this Court in Sudhir  Chandra Nawn  v.   Wealth Tax Officer, Calcutta & Ors [1969 (1)  SCR 108] wherein Shah, J.  observed:

   Exclusive  power to legislate conferred upon  Parliament is   exercisable,  notwithstanding   anything  contained  in clauses  (2) & (3), that is made more emphatic by  providing in  clause  (3)  that  the  Legislature  of  any  State  has exclusive  power  to  make laws for such State or  any  part

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thereof  with  respect to any of the matters  enumerated  in List  II in the Seventh Schedule, but subject to clauses (1) and  (2).   Exclusive  power of the  State  Legislature  has therefore  to  be exercised subject to clause (1) i.e.   the exclusive  power which the Parliament has in respect of  the matters  enumerated  in  List I.  Assuming that there  is  a conflict between Entry 86 List I and Entry 49 List II, which is not capable of reconciliation, the power of Parliament to legislate  in  respect  of  a matter  which  is  exclusively entrusted  to  it must supersede pro tanto the  exercise  of power of the State Legislature.

   Let  us examine to what extent Section 4 or language  of Section 100 saves the special or local law after coming into force  of the aforesaid 1976 amendment.  Section 4(1) of the Code records:

   In  the  absence  of  any  specific  provision  to  the contrary,  nothing  in the Code shall be deemed to limit  or otherwise affect any special or local law now in force

   By  this,  special or local laws are protected and  thus not to be effective in the absence of any specific provision to  the  contrary.   In other words, special or  local  laws would  be  functional  till any specific  provision  to  the contrary  stands engrafted.  Since Section 100 CPC unamended was in pari materia with Section 41 of the Punjab Act, there was  no  conflict  and  Section 41 continued  in  its  field unaffected.  This is reinforced by the language of unamended Section 100 C.P.Code viz:

    Save  where otherwise expressly provided in the body of this  Code  or  by  any  other law for  the  time  being  in force..

   Thus  the wording of this Section 100 qualified  Section 41  Punjab  Act to be the other law for the time  being  in force,  as its Section 41 expressly provided second  appeal as  Section 100 provides.  So, thus for Section 41 of Punjab Act held its field.

   Now we proceed to examine Section 97 (1) of the Amending Act  and  the amendment of Section 100 CPC by the said  1976 Act.   Through this amendment right to Second Appeal further restricted  only  to  lie  where,   the  case  involves   a substantial  question of law.  This introduction definitely is  in conflict with Section 41 of the Punjab Act which  was pari  materia with unamended Section 100 CPC.  Thus so  long there was no specific provision to the contrary in this Code Section  4  CPC  saved special or local law.  But  after  it comes  in  conflict  Section 4 CPC would not  save,  on  the contrary  its  language implied would makes such special  or local law applicable.  We may examine now the submission for the respondent based on language of Section 100 (1) CPC even after  the said amendment.  The reliance is on the following words:

   ..Save  as otherwise expressly providedby any  other law for the time being in force

   These  words existed even prior to the amendment and  is unaffected  by  the  amendment.   Thus   so  far  it   could legitimately  be  submitted that, reading this part  of  the

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Section  in isolation it saves the local law.  But this  has to  be  read with Section 97(1) of the Amending  Act,  which reads:

   any  amendment  made, or any provision inserted in  the principal Act by a State Legislature before the commencement of  this  Act shall, except in so far as such  amendment  or provision  is consistent with the provision of the principal Act  as amended by this Act, stands repealed.(Noticed again for convenience).

   This  clearly  reveals  true intend of  the  legislature viz.,  any provision of the State legislature existing prior to  the  amending Act which becomes in consistence  to  this amending  Act is in consonance with both sub-clause (1)  and proviso to sub-clause (2) of Article 254 of the Constitution of  India.   Thus language of Section 97(1) of the  Amending Act clearly spells out that any local law in consistent goes but  what is not in consistence, it could be said the  local would still continue to occupy its field.

   But  so  far the present case Section 41 of  the  Punjab Act,  it  is  expressly in conflict with the  amending  law, viz., Section 100 amended which would be deemed to have been repealed.   Thus  we  have  no hesitation to  hold  the  law declared  by the Full Bench of the High Court in the case of Ganpat (supra) cannot be sustained and is overruled.

   Having discussed the law on the subject in the manner as herein before and turning attention on to the factual matrix of  the  matter, it appears that the plaintiffs in the  suit prayed  for partition and rendition of accounts against  the defendants,  which  stands  decreed by the  lower  Appellate Court.   In  the  second appeal the High Court  allowed  the appeal  and  set  aside the decree of  the  lower  appellate Court.   Interestingly,  the  subject  matter  of  the  suit centres  round the two several wills of one Saheb Singh Mann since deceased.  Whereas the will dated 30th March, 1968 has been  said to be shredded with suspicious circumstances, the plaintiffs claimed the will dated 2nd February, 1972, being the  last will and testament of the above noted Saheb  Singh Mann.   It is significant to record that the will dated 30th March,1968   was  executed  in   favour  of  the  defendants excluding the plaintiffs.  The High Court while dealing with the  issue  has probed deep in the matter dealing  with  all necessary  evidence concerning both the wills noticed above, and  in  fine  the learned Judge, dealing  with  the  second appeal analysed the factual aspect regarding the genuineness of the will to the following effect:-

   (a)  An attempt has been made by the testator to  ensure that  nobody stakes claim to the property transferred to the daughters-in-law;

   (b)  Admittedly,  the deceased lived for more  than  six years after the execution of the will;

   (c)  No  reference was made to the will in a  subsequent alleged  will  having  been  executed   in  favour  of   the plaintiffs;

   (d)  Testator wanted to keep secret from his  daughters,

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bequeathed the property to the sons alone;

   (e)  There  is  nothing  abnormal in this  part  of  the country  to deprive the daughters of the ancestral  property and  the  wills are generally executed in order to keep  the estate of the family amongst the male descendants;

   (f)  No son has been deprived of his equal share to  the property  though  two of them were not even present  in  the village  or  near about.  It is on the considerations  above and examination of totality of the circumstances the learned Single Judge came to the conclusion that the will dated 30th March, 1968 has duly been executed by a sound disposing mind and  there were existing no reasonable grounds to decline to act  on  it.   The learned Judge, thus set aside  the  lower Appellate  Courts judgment and decreed as regards the  will dated  30th March, 1968.  The appellants herein by reason of the  reversal  of  the judgment, are before  this  Court  in appeal  by  the grant of special leave.  On the validity  of the  will Mr.  Mehta strongly contended that the will  dated 30th  March,  1968 recites that Rs.5,000/- shall be paid  to each  of the daughters of Saheb Singh Mann.  Such recital is itself  suggestive of suspicious circumstances by reason  of the  largeness  of  the estate of Saheb  Singh  Mann,  since deceased.   Since the daughters are also very well-to-do and the  testamentary  disposition  of Rs.5,000/-  by  the  will cannot but be ascribed to be totally illusory.

   Though  this  Court  is not really  concerned  with  the details  of  the circumstances under which the will  can  be said  to  be  otherwise  an invalid piece  of  document  but strenuous submissions with factual details have been made by both  the  parties  in  order to bring  home  the  point  of justification or otherwise for such a finding of the learned Single  Judge  and it is by reason therefore  these  factual details  are being introduced though not very significant in the  present  context.  Be that as it may another aspect  on the  factual  score stands highlighted by Mr.   Mehta,  that only  two  witnesses out of three attesting  witnesses  have been  examined  and an independent witness, namely, Shri  GS Banga,  Advocate,  has  not   been  examined  who,  however, happened to be one of the attesting witnesses to the will.

   Referring  to  the above conspectus of the  matter,  Mr. Mehta  contended  that  the  High Court could  not,  in  the absence  of a substantial question of law interfere with the findings  of  the lower Appellate Court which has  otherwise the  authority  and jurisdiction to scrutinise and  appraise the evidence.  Mr.  Mehta contended that suspicious features of  the  will, are mere questions of fact which can be  gone into  upto  the stage of first appellate court only and  not beyond  and  the High Court in the absence of a  substantial question of law framed by the parties or if not so framed by the  Court  itself,  had no jurisdiction  to  entertain  the appeal  far less allowing it and it is an interference which is  totally  unauthorised  or in excess of  jurisdiction  or having  no jurisdiction whatsoever.  We are however not in a position  to lend concurrence to such a broad proposition as enunciated  by Mr.  Mehta.  Judicial approach being  justice oriented,  exclusion of jurisdiction of the High Court under the  circumstances as contended by Mr.  Mehta, would lead to an  incongruous  situation being opposed to the  concept  of justice.   Technicality alone by itself ought not to  permit the  High  Court to decide the issue since justice  oriented

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approach,  is  the call of the day presently.   The  learned Single  Judge  in the matter under consideration has  delved into  the issue as to whether in fact the evidence on record warrant such a conclusion  whether the High Court was right in  such appreciation or not - that is entirely a  different issue.   But the fact remains that scrutiny of evidence will be  totally  prohibited  in  the   matter  of  exercise   of jurisdiction  in  second  appeal  would   be  too  broad   a proposition  and  too  rigid an interpretation  of  law  not worthy of acceptance.  If the concept of justice so warrant, we  do  not  see any reason why such an  exercise  would  be depricated.   This  is  however, without expression  of  any opinion  pertaining  to Section 100 of the  Civil  Procedure Code.

   Admittedly,  Section  100  has   introduced  a  definite restriction  on to the exercise of jurisdiction in a  second appeal  so far as the High Court is concerned.  Needless  to record  that the Code of Civil Procedure Amendment Act, 1976 introduced  such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true  that  in  a second appeal a finding of  fact  even  if erroneous  will  generally not be disturbed but where it  is found that the findings stands vitiated on wrong test and on the  basis  of assumptions and conjectures  and  resultantly there is an element of perversity involved therein, the High Court  in our view will be within its jurisdiction to  dealt with  the issue.  This is, however, only in the event such a fact  is  brought to light by the High Court explicitly  and the  judgment should also be categorical as to the issue  of perversity  vis-Ã -vis  the Concept of justice. Needless  to say  however,  that  perversity   itself  is  a  substantial question  worth  adjudication    what   is  required  is  a categorical  finding  on  the part of the High Court  as  to perversity.  In this context reference be had to Section 103 of the Code which reads as below:

   103.   In any second appeal, the High Court may, if the evidence  on  the record is sufficient, determine any  issue necessary for the disposal of the appeal-

   (a) which has not been determined by the lower Appellate Court  or by both the Court of first instance and the  lower Appellate Court, or

   (b) which has been wrongly determined by such Court or

   (c)  Courts by reason of a decision on such question  of law as is referred to in the Section 100.

   The  requirements  stand  specified in Section  103  and nothing  short  of  it  will bring it within  the  ambit  of Section  100  since the issue of perversity will  also  come within  the ambit of substantial question of law as  noticed above.  The legality of finding of fact cannot but be termed to  be  a question of law.  We reiterate however, but  there must be a definite finding to that effect in the judgment of the  High Court so as to make it evident that Section 100 of the Code stands complied with.

   The learned Single Judge of the High Court obviously had the  Punjab Full Bench judgment in mind and having regard to Section  41  and without any reference to Section 100  dealt the  issue.  The mandatory requirement of Section 100 cannot

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be  obliterated  by reason of a State legislature where  the requirement is not such.

   On  the  wake of the aforesaid we do find  ourselves  in agreement  with the contention of Mr.  Mehta that Section 41 of  the  Punjab Act cannot but be termed to be repugnant  to Section100  and  as  such  cannot  have  its  effect,  since parliamentary  supremacy  renders Section 41 the Punjab  Act devoid  of any effect.  Neither the saving clause in Section 100 (1) or Section 4 of the Code can come into the rescue of the respondents in view of Section97(1) of the amending Act.

   More  so by reason of the clarification rendered by  the legislature  in Section 101 of the Code which provides  that no second appeal shall lie except on the ground mentioned in Section  100 indicating thereby the further reinforcement to the  legislative  intent to be obtained from Section 101  as regards  the  issue  of substantial question of  law.   This refers  to substantial question of law having regard to  the language of Section 103 cannot however be said to even imply a contra note apart from what is stated herein before.  This is  so however by reason of the provisions of Section 97  of the Amending Act.

   By  reason  of the aforesaid these appeals succeed,  the order  of  the  High Court in Second Appeal No.762  of  1986 stands  set  aside  and that of the  lower  Appellate  Court restored.  Each party however to pay and bear its own costs.