Kamaladevi v. Khushal Kanwar

## KAMLADEVI _v._ KHUSHAL KANWAR AND ANR. DECEMBER 15, 2006 [S.B. SINHA AND MARKANDEY KA TJU, JJ.] ## _Code of Civil Procedure, J 908:_ _s. 100-A_ - _Decision of Single Judge of High Court in appeal_ - _Further appeal before Division Bench_ - _Held, a Letters Patent appeal filed prior to_ C _coming into force of CPC (Amendment) Act No. 22 of 2002, would be maintainable._ A special appeal against the decision of a Single Judge of the High Court in an appeal was filed before the Division Bench of the High Court in the D year 1992. The special appeal was decided by the judgment dated 19.9.2005. Meanwhile CPC (Amendment) Act No. 22 of2002 substituting s.100-A came into force. In the present appeal it was contended for the appellant that s.100-A of the Code not only barred filing of an appeal but would be attracted even in a E pending appeal. Dismissing the appeal, the Court HELD: Keeping in view the principles of law enunciated in the decision of this Court, it is evident that a letters patent appeal, which was filed prior to p coming into force of the 2002 Act would be maintainable. It cannot be said that s.100-A of the Code of Civil Procedure, 1908 will have retrospective effect so as to bring within its fold even the appeals preferred prior to coming into force of the said Act. [1155-H; 1156-A-BI _P.S. Sathappan (dead) by Lrs._ v. _Andhra Bank Ltd. And Ors.,_ [2004) l 1 G sec 672, followed. _Bento De Souza £gipsy (dead) by Lrs._ v. _Yvette Alvares Colaco and Ors.,_ [2004] 13 sec 438, relied on. H • 1147 1148 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R. A _Salem Advocate Bar Association, T.N. etc._ v. _Union of India,_ [20031 1 SCC 49; _Mis. Hoosein Kasam Dada (India) Ltd._ v. _The State of Madhya Pradesh and Ors.,_ AIR (1953) SC 221; _Shiv Shakti Co-op. Housing Society, Nagpur_ v. _Mis. Swaraj Developers and Ors.,_ AIR (2003) SC 2434; _Subal Paul_ v. _Malina Paul and Anr.,_ [2003) 10 SCC 361; _Municipal Corporation of_ B _Brihanmumbai and Anr._ v. _State Bank of India,_ (199911SCC123; and _Kamal Kumar Dutta and Anr._ v. _Ruby General Hospital Ltd. And Ors.,_ (2006) 7 SCALE 668, referred to. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5838 of2006. From the Final Judgment and order dated 19.9.2005 of the High Court C of Judicature for Rajasthan at Jaipur in D.B. Special Appeal (Civil) No. 22/ 1992. Ajay Choudhary, Nimish Gupta, Karola Jain, Rajat Mahajan for the Appellant. D Praveen Swamp for the Respondents. The Judgment of the Court was delivered by S.B. SINHA, J. Leave granted. E Application of Section 100-A ofthe 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 l 992. The father of Appellant indisputably was the owner of the property. He F 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 28.0 l .1977 in favour of Respondent No. 1 herein. An application for grant of probate in respect of the said Will came to be filed G by her in favour of Respondent No. I 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 : _r_ "1. That Shrimati Anandi Devi Upadhyaya neither executued any Will H and Testament dated 28th January, 1977, nor was she physically and • 1149 KAMLA DEVI _v._ KHUSHAL KANWAR [S.B. SINHA, J.] 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 Karola Devi, Shrimati Nihal Kanwar and Shrimati Kushal Kanwar and a wife Shrimati Anandi Devi and Shri Ganeshi Lal Upadhyaya expired on July 3, 1973, at Jhansi (UP). - (B) That Shri Ganeshi Lal Upadhyaya gifted to Shrimati Karola Devi a portion of open plot bearing area 34 ft. x 25 _Yi_ fit. of Anand Bihar now bearing AMC No. 258 _I_ 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 Karola Devi got construction erected by her and her husband's means in December, 1963. - (C) That except the property of Shrimati Karola 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 G 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 H movable property including gold and silver ornaments, two motor 1150 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R. A cars, utensils etc. B - (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 _Y._ 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 C passed by the learned District Judge, Ajmer, opining that although Respondent No. I 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. I was dismissed by a learned Single Judge of the High Court of Judicature D 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 E 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 I OOA in the Code of Civil Procedure by p· Section 38 of Act No. 104 of 1976, which was substituted by Section 4 of Act No.22 of2002, 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. I herein before a Division Bench of the Rajasthan High Court was maintainable. G Submission of the learned counsel appearing on behalf of the appellant is that Section 1 OOA not only bars filing of an appeal, but would be attracted even in a pending appeal. Constitutionality of Section 1 OOA of the Code of Civil Procedure came H to be questioned before this Court in _Salem Advocate Bar Association, TN. etc._ v. _Union of India,_ [2003] I SCC 49, wherein this Court upheld the validity 1151 KAMLA DEVI _v._ KHUSHAL KANWAR (S.B. SINHA, J.] A thereof, stating : "14. Section I OOA 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 ordP.r. 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 B 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 C 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 D 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 prevision Section I OOA." E 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 F 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 G 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 contradistinguished from the procedure laid down therefor. H 1152 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R. A B c D This Court in _Messrs. Hoosein Kasam Dada (India) Ltd_ v. _The State of Madhya Pradesh and Ors.,_ AIR (1953) SC 221, opined: "I I. The above decisions quite finnly establish and our decisions in _Janardan Reddy_ v. _The State and in Ganpat Rai_ v. _Agarwal Chamber of Commerce Ltd,_ uphold the principle that a right of appeal is not merely a matter of procedure. I! 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 CJ. 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 manifest~d by express words or necessary implication." Whether Section I OOA 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 Society, Nagpur_ v. _Mis Swaraj Developers and Ors.,_ AIR (2003) SC 2434, this Court held: E F G H "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 Kera/av. 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 c:ase 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 Girdharilal 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 1153 KAMLA DEVI v. KHUSHAL KANWAR [S.B. SINHA, J.] the right of appeal limits the re-hearing in some way, as has been done A 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 Paulv. Malina Paul and Anr.,_ [2003] IO SCC 361, wherein this Court C 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 D 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 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, E 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." p p ## 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. G 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: H ,. .. ~ 1154 SUPREME COURT REPORTS (2006] SUPP. JO S.C.R. A B "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." c 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 Anr._ v. _State Bank of India,_ [1999] 1 SCC I23, this Court held: D E "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 100A of the Code of Civil Procedure .... " In _P.S. Sathappan (Dead) by L.Rs._ v. _Andhra Bank Ltd and Ors.,_ [2004] I I SCC 672, a Constitution Bench of this Court, albeit in reference to Section F I 04 of the Code, held : G "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 1 OOA 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 incorporated Section 4 C.P.C. Thus now a specific exclusion was provided. After 2002, Section 1 OOA reads as follows: H "lOOA. _No further appeal in certain_ cases.-Notwithstanding ~' KAMLA DEVI v. KI-IUSI-IAL KANWAR [S.B. SINHA, J.) 1155 _-r_ .. --.j anything contained in any Letters Patent for any High Court or A 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." B To be noted that here again the Legislature has provided for a specific exclusion. It must be stated that now by virtue of Section I OOA 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 I OOA nor Section c 104(2) barred a Letters Patent Appeal." ## It was furtbennore observed : " ... We 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 D 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 E circumscribed by making a claim by finding out a source thereof in another statute." In _Kamal Kumar Dutta and Anr._ 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[F ] 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 JOOA of the Code of Civil Procedure, by amending Act 22of2002 with effect from I. 7.2002,_ took away the Letters Patent G power of the High Court in the matter of appeal against an order of learned single Judge to the Division Bench ... " [Emphasis suppliedl Keeping in view the principles of law as enunciated in the aforementioned H / SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R. 1156 A 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 Ors.,_ [2004] 13 SCC 438 and _Sanjay Z. Rane and Ors._ v. _Saibai S. Dubaxi_ B _(Dead) Through LRs.,_ [2004] 13 SCC 439, wherein this Court opined that Section l OOA of the Code has no retrospective effect. We, therefore, are unable to accept the contentions of the learned counsel for the appellant that Section J OOA of the Code will have retrospective C 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. Appeal dismissed. RP. i- _i_