Holding

Section 41 of the Punjab Courts Act, 1918 is repugnant to the amended Section 100 of the CPC and cannot be invoked, rendering the High Court's second appeal invalid.

Summary

The appellants filed a suit for partition and rendition of accounts which was decreed by the lower appellate court. The Punjab and Haryana High Court entertained a second appeal under Section 41 of the Punjab Courts Act, 1918, set aside the decree, and did so without framing a substantial question of law as required by the amended Section 100 of the Code of Civil Procedure (1976). The Supreme Court held that Section 41 is repugnant to the amended Section 100, and consequently cannot be invoked; the High Court therefore erred in entertaining the appeal without a substantial question of law. Applying Article 254 of the Constitution and the doctrine of implied repeal under Section 97 of the Amendment Act, the Court declared the Punjab Act provision void to the extent of the inconsistency. The appeal was allowed, the High Court order set aside and the lower appellate decree restored.

Issues considered

Whether Section 41 of the Punjab Courts Act, 1918 is repugnant to Section 100 (as amended in 1976) of the Code of Civil Procedure.
Whether a second appeal under Section 41 can be entertained without framing a substantial question of law as mandated by Section 100.
Whether the saving provisions of Section 4 CPC or Section 100(1) protect Section 41 from being overridden.
Whether the doctrine of implied repeal and Article 254 of the Constitution render Section 41 void to the extent of inconsistency.

Legislation cited

Code of Civil Procedure (Amendment) Act, 1976s. 100, s. 101, s. 103, s. 4, s. 97
Constitution of Indias. 141, s. 254
Punjab Courts Act, 1918s. 41

Subjects

Second appealSection 41 Punjab Courts ActSection 100 CPCSubstantial question of lawRepugnancyParliamentary supremacyImplied repealArticle 254Civil ProcedurePartition suit

Judgment

r

KULWANT KAUR AND ORS. A
v.
GURDIAL SINGH MANN (DEAD) BY LRS. AND ORS.

MARCH 21, 2001

[A.P. MISRA AND U.C. BANERJEE, JJ.] B

Punjab Couns Act, 1918 : Section 41.

Second Appeal-Entenaining of-Substantial question oflaw-Framing
of-Requirement-Held: S. 41 is repugnant to S. JOO CPC (as amended in c
1976)-Hence, High Coun erred in ente11aining second appeal under S. 41
without framing a substantial question of law as required under S. I 00 CPC (as
amended in 1976)-Code of Civil Procedure (Amendment) Act, 1976, S. JOO.

Constitution of India, 1950: Anicle 141.
D
Precedent-Judgment based on a concession-Binding nature of-Held,
cannot be tenned to be a binding pre~dent and does not have the sanctity and
solemnity of a binding precedent.

The appellants-plaintiffs filed a suit for partition and rendition of E
accounts against the respondents-defendants, which stood decreed by the
lower Appellant Court. However, the High Court entertained the second
appeal under Section41 of the Punjab Courts Act, 1918, without framing a
substantial question of law, and set aside the decree of the lower Appellate
Court. Hence this appeal.
F
On behalf of the appellants it was contended that the High Court
erred in entertaining the second appeal without framing a substantial
question of law thereby violating Section 100 of the Code of Civil Proce-
dure (Am<;J1dment) Act, 1976.
G
On behalf of the respondents it was contended that under Section 41
of the PunJab Courts Act there was neither any requirement nor any scope
for framing of any substantial question of law.

Allowing the appeal, the Court H
525
526 SUPREME COURT REPORTS [2001] 2 S.C.R.
A HELD : 1. Section 41 of the Punjab Courts Act, 1918 cannot but be ,
termed to be r'pugnant to Section 100 of the Code of Civil Procedure
(Amendment) Act, 1976 and as such cannot have its effect, since Parlia-
mentary supremacy renders Section 41 of the Punjab Act devoid of any
effect. Neither the saving clause in Section 100(1) or Section 4 of the Code
can come to the rescue of the respondents in view of Section 97(1) of the
B
Code of Civil Procedure (Amendment) Act, 1976. [543-G-H]

Ganpat v. Shri Ram Dev~ AIR (1978) P & H 137 (FB), overruled.

2. This will be all the more so by reason of the clarification rendered
c 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 and callllot, however, he said to even imply a contra note. This
D is so, however, by reason of the provisions of Section 97 of the Amending
Act. [543-H; 544-A-B]

•
Ganpat Giri v. Second Additional District Judge, Ballia, [1986] l SCC
615; Zaverbhai Amaidas v. The State of Bombay, [1955] l SCR 799; M.
E Karunanidhi v. Union of India, [1979] 3 SCC 431; Sir Chunilal V. Mehta v.
Century Spinning and Manufacturing Co. Ltd, AIR (1962) SC 1314; Pankaj
Bhargava v. V. Mohinder Nath, [1991] l SCC 556; ITCv. State ofthe Kamataka,
[1985] Supp. SCC 476; State ofOrissa v. M.A. Tulloch & Co., [1964] 4 SCR
461 and Sudhir Chandra Nawn v. Wealth Tax Officer, Calcutta, [1969] 1 SCR
108, referred to.
F
Chanan Singh v. Smt. Majo, AIR (1976) Pun. 310 (FB), cited.

3. 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 does not and
G
cannot have the sanctity and solemnity of a binding precedent. [528-C]

Banarsi Dass v. Brig. Maharaja Sukhjit Singh, [1998] 2 SCC 81, re-
ferred to.

H CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1287 of 1990.
r

KULWANT KAUR v. GURD!AL SINGH [BANERJEE, J.] 527
From the Judgment and Order dated 6.2.89 of the Punjab and Haryana A
High Court in R.S.A. No. 1335 of 1986.

WITH

Civil Appeal No. 1288 of 1990.
B
Dhruv Mehta, Dr. Meera Aggarwal, R.C. Mishra, Manoj Swarup, Hiren
Dasan, Nitin Bhardwaj, Jayant Bhushan, Uma Dutta and V.D. Khanna for the
appearing parties.

The Judgment of the Court was delivered by
c
BANERJEE, J. The core issue in these appeals centres round the
applicability of Section 100 vis-a-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 jwisdiction of the
High Court in entertaining the second appeal in view of clause ( c) of sub-
D
section (!) 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 Banarsi
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 E
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 leamed
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 F
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 G
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 H
1
-
528 SUPREME COURT REPORTS [2001] 2 S.C.R.

A shall lie except on the grounds mentioned in Section 100 and Entty
Jr
13 of List Ill (Concurrent List) of Seventh Schedule of the Consti-
tution which reads:

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

The concession thus recorded in Banarsi Dass's case as noticed above
obviously renders the submissions of Mr. Mehta of some substance. Conces-
sion, 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
c 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
D 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.
-)'-
E Section 100 read as below:
•
"100. (1) Save where otherwise exp~essly 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,
F
namely:

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

(b) the decision having failed to detennine some material issue of!aw
G
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
H upon merits.
KULWANT KAUR R GURDIAL SINGH [BANERJEE, J.] 529
(2) An appeal may lie under this section from an appellate decree A
--t passed ex pane."

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:
B
"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.
c
(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.
D
(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 he.ard 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: E

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."
F
----1 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 compli-
ance and adaptation of the procedure as prescribed under Section 100 of the G
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 H
530 SUPREME COURT REPORTS [2001] 2 S.C.R.
A Court on any of the following grounds, namely : r
(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
B or custom or usage having the force of law;.

(c) A substantial erroror defect in the procedure provided by the Code '4
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.
c
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
D 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 statnte book by the Amendmi:nt Act, 1976.
E 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 &
Haryaha 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
F finding that a reading of Sections 4(1) and 100 (1) of the Code together leads
to an irresistible conclusion that the)egislature wished to save 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
G
plain construction of these statntory 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
H follow upon larger principles as well. There can hardly be any doubt
KULWANT KAUR v. GURDIAL SINGH [BANERJEE, J.] 531
that the C.P.C. is the general law of the land on the subject. On the A
- -{
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
B
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."
c
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 D
been couched in terms of widest amplitode. 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 01 power conferred by any other law. At the very
outset we may point out that no specific provision to the contrary in
E
~
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 tl1e terminology of any special
or local law. This being so it is unoecessary 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 F
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." G
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 ciinnot 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 H
532 SUPREME COURT REPORTS [2001] 2 S.C.R.
A overridden or affected by the provisions of the Code even after introduction
of the Amendment Act, 1976 in the Statute Book and Section JOO in
particular.
,.. -
The entire submission of Mr. Swaroop as regards the applicability of
Section 41 being saved of the rigours of Section 100, admittedly, stands
B 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 (I) of the Amendment Act reads as
below:
c "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."
D
On the score as above, we may profitably quote the decision of this
Court in Ganpat Giri v. Second Additional District Judge, Ba!lia 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
E 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 (I) 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)
F 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 pmding at the commencement of the Amending
Act or instituted or filed after snch commencement, notwithstanding
G 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
H the principal Act referred to in Section 97 is the Code of Civil Procedure.
·.ir-

KULWANT KAUR v. GURDIAL SINGH [BANERJEE, J.] 533

- A
It is on this score that Article 254 of the Constitution of India also have a
bearing and as such the same is noted hereinhelow for its field of operation
i and scope.

"254. Inconsistency between laws made by Parliament and laws
made by the Legislatures of States. · (I) If any provision of a law
made by the Legislature of a State is repugnant to any provisions of B
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 c
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 D
Parliament or an existing law with respect to that matter, then, the law
so made by the Legislature of such State shall, if it has been reserved
for the consideration of the President and has received his assent,
prevail in thal State:

Provided that nothing in this clause shall prevent Parliament from E
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
F
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 JOO of the Code and Section 41 of the Punjab Act without any pale
of controversy have a common objective viz. authority and jurisdiction to G
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 JOO of
the Code, it cannot but be said to be repugnant and hence the doctrine of
repngnancy will have its full play in the matter of declaration of the Punjab
Act being void.
H
534 SUPREME COURT REPORTS [2001] 2 S.C.R.
A 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
B
repeal by implication. Uniformity of law, being the basic characteristic 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
c 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 7.averbhai Amaidas v. 1he Stale of Bombay,
[1955] 1 SCR 799, wherein this Court observed:

"It is true, as already pointed out, that on a question under Article 254
D
(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 enactmen~ will
E 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 (remporary Powers) Act No.XXIV of
F 1946 as amended by Act No.Lil of 1950." (vide page 809)

In 7.averbhai's case (supra) this Court in no uncertain terms laid down
that the important thing to consider is 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
G 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 facnun that
constitntionality of a statute being always presumed in affirmative rather than
in the negative. It is in this context that a Constitntion Bench of this Court
H in the decision in Karunanidbi M. Karunanidhi v. Union of India & Anr.,
KULWANT KAUR v. GURDIAL SINGH [BANERJEE, J.] 535
[1979) 3 sec 431 stated that before any repugnancy can arise the following A
conditions must be satisfied:

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

- (b)
Act and the State Act;

That such an inconsistency is absolutely irreconcilable; B
(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.
c
The requirement is thus a clear and direct irreconcilable inconsistency be-
tween 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, D
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 ma!eria. Since the relevant statutory provisions have E
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
F
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 issne stands concluded since the decision in Chunilal' s case G
Sir Chunilal V. Mehta & Sons lJd. v. Century Spinning and Manufacturing
Co. lJd., AIR (1962) SC 1314 and subsequently in the decision of this Court
in Pankaj Bhargava's case Pankaj Bhargava & Anr. v. Mohinder Na!h & 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
H
536 SUPREME COURT REPORTS (2001] 2 S.C.R.
A by the Punjab Full Bench (supra). The learned Advocate for the Respondents
responded in the negative by placing reliance upon amended Section JOO 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
into some detail. With reference to Ibis submission, i.e. the saving provision, ...
intention of the legislature seems to be that any other law for the time being
B
in force (e.g. Punjab Act) shall 3tand saved - This in short is tbe case made
out for the respondents. As a matter of fact the respondents reiterated the
reasonings as adopted by tbe Punjab Full Bench and contended that by reason
of tbe express saving, question of Punjab Act being declared repugnant to
the Section 100 does not and cannot arise. The respondents contended that
c 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 tbe 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 tl1e Code would thus be relevant and the same reads as below:-
D
"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
E any other Jaw for the time being in force.

(2) In particular and without pr"judice 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
F 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
G Code but in tbe 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 Jaw 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 tbe
H amendment could an inconsistency be said to have developed between the
KULWANT KAUR v. GURDIAL SINGH [BANERJEE, J.] 537
two provisions, which is submitted to be saved by the aforesaid Section 4. A
While it is true, on its plain reading at the first glaoce local law seems to
have been saved but we have to examine this in the light of Article 254 of
the Constitution of India aod the doctrine of repugnaocy read with Section
97 of the Amendment Act as noticed in the earlier part of this judgment.
Incorporation of the Civil Procedure Code Amendment Act in the statute
B
book is by virtue of conferment of power under Entry 13 of List Ill of the
Seventh Schedule of the Constitutior:. The Constitution is the parent docu-
ment aod 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. c
Article 254 makes unequivocal the supremacy of the Parliament in the
matter of repugnaocy of aoy matter falling under List I or List III. There is
one exception carved under Clause (2) to a matter falling under the Concur-
rent List III. This supremacy· is further reinforced by the proviso of this
Clause (2), which records; D

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). E

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 p
Karnataka & Ors, (1985] Suppl SCC 476 may ~!so be noted, wherein this
Court in paragraph 18 of the judgment (see page 496) had the following to
state:

"Thus, in my oprmon, the five principles have to be read aod
construed together aod not in isolation - where however, the Central G
aod 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 aod the other by a State Legislature,
collide aod there is no question of harmonising them, then the Central
legislation must prevail." H
538 SUPREME COURT REPORTS [2001] 2 S.C.R
A Needless to record that since the decision in Tulloch's 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.
B
This Court further went on to observe:

"Repugnancy arises when two enactments both within the compe-
tence of the two Legislatures collide and when the Constitution
c 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 superredes 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
D the whole field, the enactments of the other Legislature whether
passed before or after would be overborne on the ground of repug-
nance."

(Emphasis supplied)

E 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 exercis-
able, notwithstanding anything contained in clauses (2) & (3), that is
F
made more emphatic by providing in clause (3) that the Legislature
of any State has exclusive power to make Jaws for such State or any
part thereof with respect to any of the matters enumerated in List II
in the Seventh Schedule, but subject to clauses (I) and (2). Exclusive
power of the State Legislature has therefore to be exercised subject
G to clause (!) 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 tan to the exercise of power of the State Legislature."
H
KULWANT KAUR v. GURDIAL SINGH [BANERJEE, J.] 539
'( Let us examine to what extent Section 4 or language of Section 100 A
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 ......... " B
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~ 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 c
41 continued in its field unaffected. This is reinforced by the language of
mamended 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 ........ " ·
D
Thus the wording of this Section 100 qualified Section 41 of the 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 (!) of the Amending Act and E
the amendment of Section 100 CPC by the said 1976 Act. Through this
amendment, right to Second Appeal stands 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
F
to the contrary in this Code Section 4 CPC saved special or" local law. But
after it comes in c~nflict Section 4 CPC would not save, on the contrary its
language implied would make such special or local law in applicable. We may
examine now the submission for the respondent based on language of Section
100 (!) CPC even after the said amendillent. The reliance is on the following
words: G
" ..... Save as otherwise expressly provided ...... by any other law for the
time being in force ...... "

These words existed even prior to the ameutlment and is unaffected by the
amendment. Thus so far it could legitimately be submitted that, reading this H
540 SUPREME COURT REPORTS [2001] 2 S.C.R.
A part of the Section in isolation it saves the local law. But this has to be read _)-
with Section 97(1) of the Amending Act, which reads:
r
"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
B the provision of the principal Act as amended by this Act, stands
repealed."(Noticed again for convenience).

Thus language of Section 97(1) of the Amending Act clearly spells out
that any local Jaw which can be tenned to be inconsistent perishes, but if it
is not so, the local law would continue to occupy its field.
c
Since, Section 41 of the Punjab Act, is expressly in conflict with the
amending Jaw, viz., Section 100 amended it would be deemed to have been
repealed. Thus we have no hesitation to hold the Jaw declared by the Full
Bench of the High Court in the case of Ganpat (supra) cannot be sustained
and is thus overruled.
D
Having discussed the Jaw 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
E 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 shrouded 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.
F 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 factnal aspect regarding
G 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 Jived for more than six years after the
H execution of the will;
KULWANT KAUR v. GURDIAL SINGH [BANERJEE, J.] 541

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

(d) Testator wanted to keep secret from his daughters, bequeathed
the property to the sons alone;

(e) There is nothing abnormal in this part of the country to deprive B
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 c
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 execnted by a sound disposing mind
and there were existing no reasonable grounds to decline to act on it. The D
learned Judge, thns set aside the lower Appellate Court's 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
E
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.
F
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 fmding of the learned Single Judge and it is by reason
therefore these factual details are being introduced though not very significant
G

.,. 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. H
542 SUPREME COURT REPORTS [2001] 2 S.C.R.
A Refening 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
B
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
c concurrence to such a broad proposition as enunciated by Mr. Mehta.
Judic.ial 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. y
Technicality alone by itself ought not io permit the High Court to decide
the issue since justice oriented approach, is the call of the day presently.
D
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
E in second appeal would be too broad a proposition and too rigid an
interpretation of law not worthy of acceptance. lf 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.
F
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,
G but the fact remains that while it is true that in a second appeal a finding
offact 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 deal with
H the issue. This is, however, only in the event such a fact is brought to light
., KULWANT KAUR v. GURDIAL SINGH [BANERJEE, J.] 543
by the High Court explicitly and the judgment should also be categorical as A
~ to the issue of perversity vis-a-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:
B
"I 03. In any second appeal, the High Court may, if the evidence on
the record is sufficient, detennine 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
c
(b) which has been wrongly detennined by such Court or

(c) Courts by reason of a decision on such question of law as is
referred to in Section JOO."
D
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 tenned to be a question of law. We
~ reiterate however, that there must be a definite finding to that effect in the E
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 with the issue. The mandatory requirement F
of Section 100 cannot 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 tenned to be repugnant to Section 100 and as such cannot have its effect, G
since parliamentary supremacy renders Section 41 the Puajab Act devoid of
any effect. Neither the saving clause in Section JOO (1) or Section 4 of the
'Jot-
Code can come into the rescue of the respondents in view of Section 97(1)
of the amending Act. More so by reason of the clarification rendered by the
legislature in Section IOI of the Code which provides that no second appeal H
,
544 SUPREME COURT REPORTS [2001] 2 S.C.R.
A 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 reference 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
B
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.
c v.s.s. Appeals allowed.

y

J