Case Note & Summary
The dispute arose from a civil suit for possession of agricultural lands, buildings, and movable properties with declarations filed by respondent Kirpal Singh against appellant Tej Kaur and another. Kirpal Singh was the step-brother of Kartar Singh, whose widow Harbant Kaur had succeeded to a limited widow estate in 1922. Harbant Kaur executed a will dated August 12, 1967 in favour of Tej Kaur, who was the daughter of Harbant Kaur's sister. The trial court decreed the suit, holding that the will was not proved and that the respondent became entitled to the estate. The first appellate court, the Sub-Judge Ist Class, Rajpura, affirmed this finding by judgment dated January 21, 1971. In second appeal before the Punjab & Haryana High Court, a Division Bench was split: one judge held the will not proved, the other held it proved. Because no majority opinion emerged, the decree of the court below was confirmed by judgment dated May 16, 1977. The appellant then appealed to the Supreme Court by special leave. The core legal issues were whether the finding on proof of will is a question of fact, whether confirmation of the decree under Section 98(2) CPC was valid, and whether the Supreme Court under Article 136 could examine the merits to decide the correctness of the will's proof. The appellant and second respondent contended that the judge adverse to the will did not consider relevant factors, that the onus of proof had been discharged, that the matter should have been referred to a third judge, and that Section 98(2) did not bind the Supreme Court under Article 136. They relied on Dr. Prem Chand Tandon v. Krishna Chand Kapoor to argue for wide appellate reappreciation. The Supreme Court examined Section 98 CPC and held that sub-section (2) is mandatory: where there is no majority opinion varying or reversing the decree appealed from, the decree shall be confirmed. The proviso to Section 98(2) permits reference to other judges only on a point of law, not on a question of fact. Section 98(3) preserves Letters Patent powers, but such power was not available in the present case. The Court distinguished Dr. Prem Chand Tandon as not having considered Section 98(2). It held that allowing re-examination of facts would nullify the legislative mandate and render Section 98(2) otiose. The Court clarified that leave was granted only to examine the correctness of the legal position, not to re-examine the factual controversy. Consequently, the Supreme Court dismissed the appeal and directed parties to bear their own costs throughout.
Headnote
A) Civil Procedure - Difference of Opinion on Fact - Section 98(2) CPC - Confirmation of Lower Court Decree - Code of Civil Procedure, 1908, Section 98(2) - Where a Division Bench of the High Court hearing a second appeal was equally divided on the question whether a will was proved, a question of fact, no majority opinion varying or reversing the decree appealed from emerged. The Supreme Court held that Section 98(2) CPC is imperative and mandatory and the decree of the court below must be confirmed; the proviso to Section 98(2) permits reference to a third judge only on a point of law, not on a question of fact. Held that the High Court's confirmation of the trial court decree was valid. (Paras: Not mentioned) B) Civil Procedure - Scope of Reference to Third Judge - Section 98(2) Proviso and Section 98(3) CPC - Difference of Opinion on Point of Law Only - Code of Civil Procedure, 1908, Sections 98(2) proviso, 98(3) - The court explained that under Section 98(2) proviso a reference can be made to other judges only when the difference of opinion is on a point of law; questions of fact cannot be referred. However, Section 98(3) preserves Letters Patent powers, which may allow reference on questions of fact as held in Jayanti Devi v. Chand Mal, but such Letters Patent power was not available in the present Punjab and Haryana High Court appeal. Held that since the difference was on a question of fact, no reference was permissible. (Paras: Not mentioned) C) Supreme Court - Jurisdiction under Article 136 - Scope of Review of Findings of Fact in Division Bench Split - Constitution of India, Article 136; Code of Civil Procedure, 1908, Section 98(2) - The appellant argued that the Supreme Court under Article 136 has wide power to independently reappreciate evidence and decide which view is correct, relying on Dr. Prem Chand Tandon v. Krishna Chand Kapoor. The court distinguished that case as not considering Section 98(2), and held that doing so would nullify the legislative mandate of Section 98(2). Held that the Supreme Court cannot enlarge the scope to examine the merits of a factual dispute when the High Court bench was evenly divided, as that would render Section 98(2) otiose; the leave was granted only to examine the correctness of the legal position, not to re-examine facts. (Paras: Not mentioned)
Issue of Consideration
Whether the finding that a will has not been proved is a question of fact; whether confirmation of the decree of the court below is valid in law in the absence of a majority opinion of the Division Bench under Section 98(2) CPC; and whether this Court under Article 136 can examine the case on merits to determine whether the will was validly proved without rendering Section 98(2) otiose.
Final Decision
The Supreme Court dismissed the appeal, holding that the question whether a will is proved is a question of fact, that Section 98(2) CPC requires confirmation of the lower court decree when the Division Bench is evenly divided on a question of fact, and that the Supreme Court under Article 136 cannot re-examine the merits in such a situation without violating the legislative mandate. The appeal was dismissed and parties were directed to bear their own costs throughout.
Law Points
- Section 98(2) CPC mandates confirmation of lower court decree when Division Bench evenly divided on question of fact
- proviso to Section 98(2) allows reference to third judge only on point of law
- Section 98(3) preserves Letters Patent powers
- question of proof of will is a question of fact
- Supreme Court under Article 136 cannot override legislative mandate of Section 98(2) by re-examining factual findings
