TEJ KAUR AND ANR.versusKIRPAL SINGH AND ANR.

                            TEJ KAUR AND ANR.                                       A
                                    v.
                          KIRPAL SINGH AND ANR.

                                  MAY 10, 1995

                [K. RAMASWAMY AND B.L. HANSARIA, JJ.]                               B

          Code of Civil Procedure, 1908 :

           S.98-Executive of Will-Proof of-Whether a finding of facr-Dif-
    fere11ce of opinion among the judges in the Bench-Confinnation of decree        C
    in the absence of majo1ity opinion-,.-Validity of-Examination Oil merits by
    Supreme Cowt to find the validity of the will-Whether s.98(2) rendered
     otiose or ineffective.

           The first respondent is a step brother of one K, whose widow suc-
    ceeded to a limited estate in 1922 on her husband's demise. She executed a      D
    will in 1967, to the extent of about 36 acres in favour of the appellant, who
    is her sister's daughter. On a suit filed by the first respondent, the trial
    court held that the will was not proved to have been validly executed and in
    consequence the respondent-plaintiff became entitled to estate. The Sub-
    Judge confirmed the same. In appeal before the High Court one Judge held        E
    that the will was not proved while the other judge held it to have been
    proved. In the absence of majority opinion on proof of the will, the decree
    of the lower court was confirmed. Hence this appeal.

          It was, inter alia, contended that the disputed question should have
'   been referred to a third Judge for his opinion.                                 F
          Dismissing the appeal, this Conrt

          HELD: 1. The difference of opinion between Judges, who constitute
    the Bench hearing the appeal, on a point of law alone would be referred to
    a third or other Judges according to the rules of that High Court. By           G
    implication, on question of fact, when there is no majority opinion varying
    or reversing the decree appealed from, such decree should be confirmed.
      '                                                                (386-H]
          2. In the instant case, the Letters Patent power was not available and
    therefore, by operation of sub-s.(2) of s.98, the decree of the court below     H
                                        383
    384                     SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A stands affirmed. (388-C]

            Jai•anti Devi v.Ownd Mal, (1984) BBCJ, 561, held inapplicable.

          Rajgvpala Naidu v. Subbammal, AIR (1928) Madras 180, Harakh
    Narain v. Babban, AIR (1933) Allahabad 473 and Babvo Ram v. lshrat Ali,
B   AIR (1975) Allahabad 180, referred to.

            Mu/la's Code of Civil Procedure, 14 Edn. Vol. I, P.587, referred to.

          3.1. It is true that in a case were there is difference of opinion among
    the Judges of the High Court, the power of this Court under Article 136 is
c   wide enough to test the correctness of the conclusion reached by the differ-
    ing Judges. This proposition is unexceptionable but this Court had no
    occasion in Dr: Pre111 Chand Tandon and 01:\·., case to consider the scope of
    sub-s. (2) of s.98. The language employed in sub-s. (2) is imperative and in
    mandatory terms. TI1e object appears to be that on a question of fact when
D   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 tl1e scope of the
    controversy by itself examining the correctness of the finding of fact and
    decide which view of the two is correct. This would be in direct negation of
    the legislative mandate expressed in sub-s. (2) ofs.98 of the CPC. (388-D-F]
E
          3.2. While exercising power under Art. 136, this Court not to do
    anything which would violate legislative mandate, and hence it declined to
    interfere. [388-G]

          Dr. Prem Chand Tandon v. lVishna Chand Kapoor, [1973] 2 SCC 366,
F
    referred to.

            CIVIL APPELLATE JURISDICTION                 Civil Appeal No. 88 of
    1979.

G        From the Judgment and Order dated 16.5.77 of the Punjab and
    Haryana High Court in R.F. No. 117 of 1971.

          A.B. Rohtagi and Har Dev Singh and Ms. Madhu Mool Chandani
    for the Respondent No. 2.

H           The Judgment uf the High Court was delivered by
           TEJKAUR v. KIRPALSINGH[K.RAMASWAMY,J.]                     385

      K. RAMASWAMY, J. This appeal by special leave arise from the A
judgment of the Division Bench dated May 16, 1977 in R.S.A. No.117 of
1971 of Punjab & Haryana High Court. The appellant is the first defendant.
Kirpal Singh, first respondent, laid the suit for possession of agriculture
lands, buildings and movable properties from the appellant and another
with certain declarations. Kirpal .Singh is a step brother of one Kartar B
Singh, husband of Harbant Kaur. She succeeded to a limited widow estate
in the year 1922 on her husband's demise and she executed a will Ex.-D.1
dated August 12, 1967 in favour of the appellan~ daughter of Harbant
Kaur's sister to an extent of 36 acres etc. The trial court decreed the suit
holding that the will was not proved to have been validly executed and in
consequence the respondent/plaintiff ~came entitled to the estate of C
Kirpal Singh. On appeal, the Sub-Judg , !st Class, Rajpura in his decree
and _judgment dated January 21, 1971 onfirmed the same agreeing that
the will has not been proved. When the appeal was posted before the
Division Bench, one learned Judge held that the will has not been proved
while another learned Judge held it to have been proved. Since no majority D
opinion of division bench on proof of the will emerged decree of the court
below was confirmed. Thus this appeal by special leave.

       It is vehemently contended for the appellant and the second respon-
dent that the learned Judge who held that the will was not proved had not
taken relevant factors into consideration, while the other learned Judge had E
gone in greater detail of the circumstances in which the will came to be
validly executed and proved, the onus of proof of will in that behalf has
been discharged. The disputed question should have been referred to a
third Judge for his opinion. In any case, the bar engrafted in sub-s. (2) of
s.98, CPC applies only to the Division Bench of the High Court who heard F
the appeal; and its constraint is inapplicable when this Court hears the
appeal under Art. 136. This Court should examine in detail whether the
finding of non- proof of the will is vitiated by errors of law. The power of
this Court is very wide to independently reappreciate the evidence and
come to its conclusion. In that behalf he placed strong reliance in Dr. Prem
Chand Ta11don v. /Vis/ma Cha11d Kapoor, (1973] 2 SCC 366.                    G

       The question, therefore, is whether the finding of the court below
that the will has not been proved is a finding of fact? If so, whether in the
absence of majority opinion of the Division Bench, the confirmation of the
decree of civil court is valid in law? Thirdly, whether this Court can H
    386                   SUPREME COURT RFPORTS [1995] SUPP. I S.C.R.

A   examine the case on merits to find whether will is validly proved, in which
    event would sub-s. (2) of s.98 be not rendered otiose or ineffective?

          It is fairly agreed across the bar that one learned Judge of the Bench
    recorded a finding that will has not been proved and another learned Judge
    recorded contra finding, namely, will has been proved. The ground on
B   which the conclusion is reached are not material for the purpose of
    deciding the controversy in this appeal. It is not controverted across the
    bar that the question whether a will is proved or not proved is a question
    of fact. In the absence of majority opinion in that behalf, sub-s.(2) of s.98
    mandates that the decree of the court below should be confirmed. Whether
C   this Court could enlarge this scope and independently examine the merits
    to come to a conclu~ion either agreeing or disagreeing with either of the
    learned Judges who constituted the Division Bench? In that behalf it is
    necessary to look into the language of s.98 of CPC. Section 98(1)
    adumbrates that 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
D   judges or of the majority (if any) or such Judges. Sub-s.(2) seems to design
    a situation where no majority opinion agreeing with the judgment of the
    trial court emerges. It says that: "Where there is no such majority which
    concurs in a judgment varying or reversing the decree appealed from, such
     decree shall be confirmed". Proviso to sub-s.(2) reads:
E
             "Where the Bench hearing the appeal is composed of two or other
             even number of judges including to a Court consisting of more
             Judges than those constituting the Bench, and the Judges compos-
             ing the Bench differ in opinion shall than be heard upon that point
             only by one or more of the other Judges, and such point shall be
F            decided according to the opinion of the majority (if any) of the
             Judges who have heard the appeal, including those who have first
             heard it."

          Sub-s.(3) provide that nothing in this section shall be deemed to alter
G   or otherwise affect any provision of the Letters Patent of any High Court.

          In other words, the difference of opinion between Judges, who
    constitute the Bench hearing the appeal, on a point of a law alone would
    be referred to a third or other Judges according to the rules of that High
    Court. By implication, on question of fact, when there is no majority
H   opinion varying or reversing the decree appealed from, such decree should
           TEJKAUR v. KIRPALSINGH [K. RAMASWAMY,J.]                      387

be confirmed.                                                                    A

       In Mulla's Code of Civil Procedure, 14 Edn., Vol. I at P. 587, it is
stated tbus: " no reference can be made under this section if the Judges
differ on a question of fact. The power to refer can only be exercised if
there is a difference of opinion on a point of law". In Rajagopala Naidu v.      B
Subbammal, AIR (1928) Madras 180, in a suit for accounts, the Judges
partly differed and partly agreed; and question arose as to what extent the
decree of the court below stands confirmed or reversed. The Bench held
that where an appeal is heard by two Judges and both agreed upon
reversing the decree appealed from only as to one portion but differed as
to the rest, the decree will be reversed as to the portion with respect to       C
which the Judges have agreed on reversal, and will be confirmed as to the
rest, namely with respect to which they have differed. The same view was
expressed by a Division Bench of the Allahabad High Court in Harakh
Narain v. Babban, AIR 1933 Allahabad 473. Therein, in a suit based on
mortgage its validity and binding nature was assailed by a member of the         D
coparcenary. A learned Judge held that a large part, namely, that a sum of
Rs. 2000 was not supported by valid consideration and the rest was.
Another learned judge upheld the decree of the trial court except as
regards Rs. 340 of the principal amount. It was held that the decree to the
extent of concurrence stands confirmed and the rest is not a decree of the
High Court within the meaning of ss.2(2) and 2(9) of of C.P.C. It was held       E
that where the Judges composing a Bench do not agree in confirming the
adjudication made by the lower court in respect one item such decree or
adjudication relating to that item shall be confirmed. At the same time if
they agree in reversing the decree or adjudication by the lower court, as
regarding another item in dispute, the decree in respect of such item shall      F
be varied. In Baboo Ram v. Jshrat Ali, AIR (1975) Allahabad. 180, the
second appeal under s.100 CPC arose from the suit for ejectment and the
trial court, accepting the plea of the tenant, dismissed the suit finding that
the tenant did not commit default in the payment of rent. On first appeal,
it was reversed holding otherwise. In the second appeal, there was dif-
ference of opinion between the Judges constituting the Bench. It was held        G
that by operation of sub-s. (2) of s.98, the finding in respect of which there
was a difference of opinion, would stand confirmed, and the opinion of the
third Judge on the legal point was severable from his opinion on the finding
of fact, which become conclusive by the application of s.98(2) irrespective
of the opinion recorded by the third Judge.                                      H
    388                   SUPREME COURT REPORTS (1995] SUPP. 1 S.C.R.

A         The ratio in Jayanti Devi v. Chand Mal, (1984) BBO, 561, which has
    been referred by Shri Bagga, is inapplicable to the point in issue. Therein,
    because of what has been provided in sub-s.(3) of s.98 CPC, the Letter
    Patent power was taken aid of and it was held that the Letter Patent Court
    was not confirmed to the hearing of the appeal by the third Judge on the
B   question of law only, on which the Judges hearing the appeal had differed.
    Such a difference of opinion could be on a question of fact as well. It could,
    thus, be seen that the reference there was under the Letters Patent which
    power has been expressly preserved by sub-s.(3) of s.98. But in the case at
    hand, the Letters Patent power was not available and therefore, by opera-
    tion of sub-s.(2) of s.98, the decree of the court below stands affirmed.
c
        The question then is whether this Court could nullify the scheme of
  s.98(2) by examining the dispute on merits and by implication render
  sub-s.(2) surplusage or otiose. In our considered view the contention of the
  appellant cannot be accepted. It is true that in a case where there is
  difference of opinion among the Judges of the High Court, the power of
D 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's (supra). This proposition is unexcep-
  tionable but this Court had no occasion in that case to consider the scope
  of sub-s.(2) of s.98. The language employed in sub-s.(2) is imperative and
E 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 fact and decide which view of the two is correct. This would be in direct
F negation of the legislative mandate expressed in sub-s.(2) of s.98 of the
  CPC.

           When leave was granted, it was to examine the correctness of the
    legal position; and not to examine the controversy on merits. While exer-
G   cising power under Art. 136, we may not do anything which would violate
    l~gislative mandate. In that view, we decline to interfere.

          The appeal is accordingly dismissed but in the circumstances parties
    are directed to bear their own costs throughout.

    G.N.                                                       Appeal dismissed.