Full Judgment Text
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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.