Pankajakshi (dead) through
LRS & Others Vs Chandrika & Others
Markandey Katju, J.
learned counsel for the parties.
facts of the case are that the respondent herein Chandrika filed a suit before the
Sub Judge, Kottayam, Kerala, alleging that her father Raghavan died intestate on18.06.1984.
The plaintiff alleged that the defendants were relying on the will dated 14.06.1984
which was not a genuine will of Raghvan. On the other hand, the defendants alleged
that the will was genuine. The Trial Court by its judgment dated 07.09.1994 held
that the defendants failed to prove that the will in question was a true and genuine
will of Raghavan.
the trial court decreed the suit of Chandrika. The appellant herein challenged the
judgment of the trial court in an appeal which came up before a Division Bench of
the Kerala High Court. One of the Hon'ble Judges who heard the appeal was of the
view that the will was genuine while the other held that it was not. Consequently
the Division Bench by its judgment and order dated20.08.2004 dismissed the appeal
relying on Section 98 (2)CPC. It is this judgment and order which is challenged
counsel for the appellant submitted that since there was a difference of opinion
between the two Hon'ble Judges of the High Court, the appeal should have been referred
to the Hon'ble the Chief Justice for placing it before one or more other Judges.
However, learned counsel for the respondent submitted that in view of the proviso
to Section98 (2) the reference to one or more other Judges can only be made when
there is difference of opinion between the two Judges on a point of law. He submitted
that since the difference of opinion was on a question of fact no reference could
have been made to one or more other Judges, and the appeal should have been dismissed
in view of the main part of Section 98 (2) CPC. Section 98 CPC reads as follows:-
"98. Decision where appeal heard by two or more Judges.- (1) Where an appeal
is heard by a Bench of two or more Judges, the appeal shall be decided in accordance
with the opinion of such Judges or of the majority (if any) of such Judges. (2)
Where there is no such majority which concurs in a judgment varying or reversing
the decree appealed from, such decree shall be confirmed : Provided that where the
Bench hearing the appeal is [composed of two or other even number of a Judges
belonging to a Court consisting of more Judges than those constituting the Bench]
and the Judges composing the Bench differ in opinion on a point of law, they may
state the point of law upon which they differ and the appeal shall then be heard
upon that point only by one or more of the other Judges, and such point shall be
decided according to the opinion of the majority (if any) of the Judges who have
heard the appeal, including those who first heard it. (3) Nothing in this section
shall be deemed to alter or otherwise affect any provision of the Letters Patent
of any High Court."
Tej Kaur and Another vs. Kirpal Singh and Another 1995 (5) SCC 119, a two Judge
Bench of this Court has held that when there is difference of opinion between the
two High Court Judges in a Division Bench hearing an appeal on a question of fact,
the decree of the trial court must be confirmed in view of the Section 98 (2)CPC.
This Court observed: .............."It is true that in a case where there is
difference of opinion among the Judges of the High Court, the power of this Court
under Article 136 is wide enough to test the correctness of the conclusion reached
by the differing learned Judges as pointed out by this Court in Dr. Prem Chand Tandon
case. This proposition is unexceptionable but this Court had no occasion in that
case to consider the scope of sub-section (2) of Section 98. The language employed
in sub-section (2) is imperative and in mandatory terms. The object appears to be
that on a question of fact when there is a difference of opinion, the view expressed
by the court below, in the absence of a majority opinion, needs to be given primacy
and confirmed. When such is the animation, this Court cannot enlarge the scope of
the controversy by itself examining the correctness of the finding of facts and
decide which view of the two is correct. This would be in direct negation of the
legislative mandate expressed in sub-section (2) of Section 98 of the CPC."
above view was followed by three Judge Bench Court in P.V. Hemalatha vs. Kattamkandi
PuthiyaMaliackal Saheeda and Anr. AIR 2002 SC 2445. That was a case in which the
High Court of Kerala had, relying upon Section 98 of CPC, confirmed the decree under
appeal despite difference of opinion between the two Judges comprising the Bench
on a question of fact. This Court held that while Section 23 of the Travancore-Cochin
High Court Act is the general law, Section 98(2) is a special provision. Section
23 of the Travancore-Cochin High Court Act reads asunder: "23. Reference by
Chief Justice.--Where two Judges forming a Division Bench agree as to the decree,
order or sentence to be passed, their decision shall be final. But if they disagree,
they shall deliver separate judgments and thereupon the Chief Justice shall refer,
for the opinion of another Judge, the matter or matters on which such disagreement
exists, and the decree, order or sentence shall follow the opinion of the Judges
hearing the case."
9 of the Kerala High Court Act by which the Travancore-Cochin High Court Act was
repealed to the extent of its repugnance may also be extracted. It reads: "Repeal.--The
provisions of the Travancore-Cochin High Court Act, 1125 (5 of 1125), insofar as
they relate to matters provided in this Act, shall stand repealed."
our opinion Section 23 of the Travancore-Cochin Act is in the nature of a special
provision while Section 98(2) is in the nature of general law. As between the two,
the former would apply in preference to the latter. The decision of this Court in
P.V. Hemlatha's v. Kattamkandi Puthiya Maliackal Saheeda and Anr. 2005 (5) SCC 548
to the extent it takes a contrary view, in our opinion, requires to be reconsidered.
apart, the question whether in an appeal arising out of an order passed by the High
Court to which Section98(2) of the CPC applies, this Court can in exercise of its
power under Article 136 of the Constitution direct the matter to be placed before
a third Judge to resolve the conflict arising from two differing judgments, has
not been examined either in P.V. Hemlatha's or Tej Kaur's case.We, therefore, consider
it appropriate to refer to a larger Bench for consideration and an authoritative
pronouncement the following two questions:(1) Whether Section 23 of the Travancore-Cochin
Act remains unaffected by the repealing provisions of Section 9 of the Kerala High
Court Act. If so, whether Section 23 is in the nature of a special provision vis-`-
vis Section 98(2) of CPC.
(2) Whether this Court
can under Articles 136 and 142 of the Constitution direct in any appropriate case
a reference to a third judge to resolve the conflict arising between two judges
of the High Court hearing an appeal, on a question of fact. Let the papers of this
case be placed before Hon'ble the Chief Justice for constituting a larger Bench.
[T. S. THAKUR