REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 201 OF 2005

Pankajakshi (dead)  through LRs & others .. Appellants

-versus-

Chandrika & others               ..    Respondents

J U D G M E N T

Markandey Katju, J.

1. Heard learned counsel for the parties.

2. The facts of the case are that the respondent herein  

Chandrika   filed  a  suit  before  the  Sub  Judge,  Kottayam,  

Kerala, alleging  that her father Raghavan died intestate on  

18.06.1984.   The plaintiff alleged that the defendants were

relying  on  the  will  dated  14.06.1984  which  was  not  a  

genuine will of Raghvan.  On the other hand, the defendants  

alleged that the will  was genuine.   The Trial  Court by its  

judgment dated 07.09.1994 held that the defendants failed  

to prove that the will in question was a true and genuine will  

of Raghavan.

3. Consequently,  the  trial  court  decreed  the  suit  of  

Chandrika.  The appellant herein challenged the judgment of  

the trial court in an appeal which came up before a Division  

Bench of the Kerala High Court.  One of the Hon’ble Judges  

who heard the appeal was of the view  that the will  was  

genuine while the other held that it was not.  Consequently  

the  Division  Bench  by  its  judgment  and  order  dated  

20.08.2004 dismissed the appeal relying on Section 98 (2)  

CPC.   It  is  this  judgment  and  order  which  is  challenged  

before us.  

4.  Learned counsel for the appellant submitted that since  

there was a difference of opinion between the two Hon’ble

Judges  of  the  High  Court,  the  appeal  should  have  been  

referred to the Hon’ble the Chief Justice for placing it before  

one or more other Judges.  However, learned counsel for the  

respondent submitted that in view of the proviso to Section  

98 (2) the reference to one or more other Judges can only  

be made when there is  difference of opinion between the  

two Judges on a point of law.  He submitted that since the  

difference of opinion was on a question of fact no reference  

could have been made to one or more other Judges, and the  

appeal should have been dismissed in view of the main part  

of Section 98 (2) CPC.  Section 98 CPC reads as follows:-

“98.  Decision where appeal heard by two or  more Judges.- (1) 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.

(2)  Where there  is  no such majority  which  concurs  in  a  judgment  varying  or  reversing  the  decree  appealed  from,  such  decree  shall  be  confirmed :

     Provided  that where the  Bench hearing the  appeal is

a[composed  of  two  or  other  even  number  of  Judges  belonging  to  a  Court  consisting  of  more  Judges than those constituting the Bench] and the  Judges composing the Bench differ in opinion on a  point of law, they may state the point of law upon  which they differ  and the  appeal  shall  then 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 Judges who have heard the appeal, including  those who first heard it.

(3) Nothing in this section shall be deemed to  alter  or  otherwise  affect  any  provision  of  the  Letters Patent of any High Court.”   

5.   In  Tej Kaur and Another  vs.  Kirpal Singh and  

Another  1995 (5)  SCC 119,  a two Judge Bench of  this  

Court   has  held  that  when  there  is  difference  of  opinion  

between  the  two  High  Court  Judges  in  a  Division  Bench  

hearing an appeal on a question of fact, the decree of the  

trial court must be confirmed in view of the Section 98 (2)  

CPC.    This Court observed:  

…………..”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 case.  This proposition is unexceptionable but  this Court had no occasion in that case  to consider the scope of sub-section (2)  of Section 98.  The language employed  in sub-section (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 facts and decide which view of  the  two  is  correct.   This  would  be  in  direct  negation  of  the  legislative  mandate expressed in sub-section (2) of  Section 98 of the CPC.”    

6. The  above  view was  followed  by  three  Judge  Bench  

Court  in  P.V.  Hemalatha  vs.   Kattamkandi  Puthiya  

Maliackal Saheeda and Anr. AIR 2002 SC 2445. That  was  

a case in which the High Court of Kerala had, relying upon  

Section  98  of  CPC,  confirmed  the  decree  under  appeal  

despite  difference  of  opinion  between  the  two  Judges  

comprising the Bench on a question of fact.  This Court held  

that while Section 23 of the Travancore-Cochin High Court

Act is the general law, Section 98(2) is a special provision.  

Section 23 of the Travancore-Cochin High Court Act reads as  

under:      

“23.  Reference by Chief Justice.—Where two  Judges forming a Division Bench agree as to  the decree, order or sentence to be passed,  their  decision  shall  be  final.  But  if  they  disagree,  they  shall  deliver  separate  judgments  and  thereupon  the  Chief  Justice  shall refer, for the opinion of another Judge,  the  matter  or  matters  on  which  such  disagreement  exists,  and the decree,  order  or  sentence  shall  follow  the  opinion  of  the  Judges hearing the case.”

7. Section 9 of the Kerala High Court Act by which the  

Travancore-Cochin  High  Court  Act  was  repealed  to  the  

extent of its repugnance may also be extracted. It reads:

“9.  Repeal.—The  provisions  of  the  Travancore-Cochin  High Court  Act,  1125 (5  of  1125),  insofar  as  they relate  to matters  provided in this Act, shall stand repealed.”

8. In our opinion Section 23 of the Travancore-Cochin Act  

is in the nature of a special provision while Section 98(2) is  

in the nature of general law. As between the two, the former  

would apply in preference to the latter. The decision of this  

Court  in  P.V.  Hemlatha’s v.  Kattamkandi  Puthiya

Maliackal Saheeda and Anr.   2005 (5) SCC 548 to the  

extent it takes a contrary view, in our opinion, requires to be  

reconsidered.  

9. That apart, the question whether in an appeal arising  

out of an order passed by the High Court to which Section  

98(2) of the CPC applies, this Court can in exercise of its  

power under Article 136 of the Constitution direct the matter  

to  be  placed  before  a  third  Judge  to  resolve  the  conflict  

arising  from  two  differing  judgments,  has  not  been  

examined either in  P.V. Hemlatha’s  or Tej Kaur’s  case.  

We, therefore,  consider it  appropriate to refer to a larger  

Bench for consideration and an authoritative pronouncement  

the following two questions:  

(1) Whether  Section  23  of  the  Travancore-Cochin  Act  

remains  unaffected  by  the  repealing  provisions  of  

Section 9 of the Kerala High Court Act. If so, whether  

Section 23 is in the nature of a special provision vis-à-

vis Section 98(2) of CPC.

(2) Whether this Court can under Articles 136 and 142 of  

the  Constitution  direct  in  any  appropriate  case  a  

reference to a third judge to resolve the conflict arising  

between  two  judges  of  the  High  Court  hearing  an  

appeal, on a question of fact.       

Let the papers of this case be placed before Hon'ble the  

Chief Justice for constituting a larger Bench.    

…………………………….J. [MARKANDEY KATJU]

………………………………J. [T. S. THAKUR

NEW DELHI; OCTOBER 08, 2010