PANKAJAKSHI (DEAD) THROUGH LRS. AND ORS.versusCHANDRIKA AND ORS.

                    [201 O] 12 S.C.R. 989


   PANKAJAKSHI (DEAD) THROUGH LRS. AND ORS.                       A
                              v.
                  CHANDRIKA AND ORS.
               (Civil Appeal No. 201 of 2005)

                    NOVEMBER 8, 2010
                                                                  B
     [MARKANDEY KAT JU AND T.S. THAKUR, JJ.]

    CODE OF CIVIL PROCEDURE, 1908:

     s. 98(2) - Decision by Division Bench of High Court -        c
Difference of opinion between the two Judges comprising the
Bench - Procedure to be adopted - Matter referred to larger
Bench for consideration on the questions: (i) whether s. 23 of
Travancore-Cochin High Court Act remains unaffected by tfJe
repealing provisions of s. 9 of Kera/a High Court Act? If so,     D
whether s. 23 is in the nature of a special provision vis-a-vis
s. 98 (2) CPC? and (ii) whether the Supreme Court under
Articles 136 and 142 of the Constitution can direct in an
appropriate case a reference to a third Judge to resoleve the
conflict arising between two Judges of the High Court hearing     E
an appeal, on a question of fact? - Travancore-Cochin High
Court Act - s. 23 - Kera/a High Court Act - s. 9 - Constitution
of India, 1950 - Articles 136 and 142.

      The instant appeal was filed challenging the order
passed by the Division Bench of the Kerala High Court             F
dismissing an appeal against the decree passed by the
trial court, as there was difference of opinion between the
two Judges comprising the Bench, as regards
genuineness of the will. It was contended for the
appellant that since there was difference of opinion              G
between the two Judges of the High Court, the appeal
should have been referred to the Chief Justice for placing
it before one or more other Judges.

                             989                                  H
    990      SUPREME COURT REPORTS            [2010] 12 S.C.R.


A       The Court noticed the decision of a two Judge Bench
    in Tej Kaur* to the effect that in the case of difference of
    opinion between the two Judges in a Division Bench of
    the High Court hearing an appeal on a question of fact,
    the decree of the trial court must be confirmed in view of
s   s. 98 (2) CPC. The Court also noticed the three Judge
    Bench decision in P. V. Hemlatha** wherein it was further
    held that while s. 23 of the Travancore-Cochin High Court
    Act was the general law, s. 98 (2) CPC was a special
    provision.
c         Referring the matter to a larger Bench, the Court

       HELD: 1.1. Section 23 of the Travancore-Cochin Act
  is in the nature of a special provision while s. 98 (2) CPC
  is in the nature of a general law. As between the two, the
D former would apply in preference to the latter. The
  decision of this Court in P. V. Hem/atha** to the extent it
  takes a contrary view, requires to be reconsidered. [para
  8] [994-H; 995-A-B]

E       *Tej Kaur and Anr vs Kirpa/ Singh and Anr. [1995] SCR
    385=1995 (5) SCC 119 and ** P. V. Hemlatha vs Kattamkandi
    Puthiva Maliackal Saheeda and Anr 2002 ( 3 ) SCR 1098 =
    AIR 2002 SC 2445 - referred to.

       1.2. That apart, the question whether in an appeal
F arising out of an order passed by the High Court to which
  s. 98 (2) CPC applies, this Court can, in exercise of its
  power under Article 136 of the Constitution of India direct
  the matter to be placed before a third Judge to resolve
  the conflict arising from two differing judgments, has not
G been examined either in P. V. Hemlatha or Tej Kaur. This
  Court, therefore, considers it appropriate to refer to a
  larger Bench for consideration and an authoritative
  pronouncement, the following two questions:

H
 PANKAJAKSHI (DEAD) THROUGH LRS. AND ORS.                     991
          v. CHANDRIKA AND ORS.
     (i) Whether s. 23 of the Travancore-Cochin Act                  A
     remains unaffected by the repealing provisions of s.
     9 of the kerala High Court Act? If so, whether s. 23 is
     in the nature of a special provision is-a-vis s. 98 (2)
     CPC?
                                                                     B
     (ii) 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? (para 9] [995-B-F]
                                                                     c
                       Case Law Reference:
     2002 (3) SCR 1098            referred to           para 5
     (1995] SCR 385               referred to           para 6
                                                                     D
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 201
of 2005.

    From the Judgment & Order dated 20.8.2004 of the High
Court of Kerala at Ernakulam in A.S. No. 686 of 1995 (C).
                                                                     E
     V. Giri, T.G. Narayanan Nair, Mohammed Sadique T.A.,
K.N. Madhusoodhanan for the Appellants.

    Jayaprakash Sen, Malini Poduval, Babita Sant, M.T.
GeoFge for the Respondents.
                                                                     F
     TherJudgment of the Court was delivered by

     MARKANDEY KATJU, J. 1. Heard learned counsel for
the parties.
                                                                     G
     2. The 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 on 18.06.1984.
The plaintiff alleged that the defendants were relying on the will
                                                                     H
    992      SUPREME COURT REPORTS                (2010] 12 S.C.R.


A   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.
B
        3. Consequently, 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
C other held that it was not. Consequently the Division Bench by
  its judgment and order dated 20.08.2004 dismissed the appeal
  relying on Section 98 (2) CPC. It is this judgment and order
  which is challenged before us.

D      4. Learned 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
E respondent submitted that in view of the proviso to Section 98
  (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 cou~d have
F 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
G         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
H
PANKAJAKSHl.(DEAD) THROUGH LRS. AND ORS. 993
v. CHANDRIKA AND ORS. [MAR KAN DEY KAT JU, J.]

   in a judgment varying or reversing the decree appealed            A
   from, such decree shall be confirmed :

         Provided that where the Bench hearing the appeal
   is

   •[composed of two· or other even number of Judges                 B
   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          C
   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           D
   otherwise affect any provision of the Letters Patent of any
   High Court."

   5. In 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         E
   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:
                                                                     F
    .............. "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 G
   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 H
    994       SUPREME COURT REPORTS                 [2010] 12 S.C.R.


A         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
B         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."

       6. The above view was followed by three Judge Bench
C Court in P. V. Hemalatha vs. Kattamkandi Puthiya Maliackal
  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
D 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 as under:

          "23. Reference by Chief Justice.-Where two Judges
E         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
F         disagreement exists, and the decree, order or sentence
          shall follow the opinion of the Judges hearing the case."

          7. Section 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:
G
          "9. ·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."

          8. In our opinion Section 23 of the Travancore-Cochin Act
H
 PANKAJAKSHI (DEAD) THROUGH LRS. AND ORS. 995
 v. CHANDRIKA AND ORS. [MARKANDEY KAT JU, J.]

is in the nature of a special provision while Section 98(2) is in     A
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 Maliacka/ Saheeda
and Anr. (Supra) to the extent it takes a contrary view, in our
opinion, requires to be reconsidered.                                 B

     9. That apart, the question whether in an appeal arising
out of an order passed by the High Court to which Section 98(2)
of the CPC applies, this Court can in exercise of its povVer
under Article 136 of the Constitution direct the matter to be
placed before a third Judge to resolve the conflict arising from
                                                                      c
two differing judgments, has not been examined either in P. V.
1-femlatha'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:
                                                                      D
       (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-a-vis Section
       98(2) of CPC.                                                  E
       (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.
                                                                      F

    Let the papers of this case be placed before Hon'ble the
Chief Justice for constituting a larger Bench.

R.P.                                            Matter adjourned.     G