KAMLA DEVI versus KHUSHAL KANWAR AND ANR.

Citation: [2006] SUPP. 10 S.C.R. 1147 · Decided: 15-12-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed
Open in Lexace · Ask the AI about this case
Judgment (excerpt)

• 
KAMLADEVI 
A 
v. 
KHUSHAL KANWAR AND ANR. 
DECEMBER 15, 2006 
[S.B. SINHA AND MARKANDEY KA TJU, JJ.] 
B 
Code of Civil Procedure, J 908: 
s. 100-A - Decision of Single Judge of High Court in appeal - Further 
appeal before Division Bench - Held, a Letters Patent appeal filed prior to C 
coming into force of CPC (Amendment) Act No. 22 of 2002, would be 
maintainable. 
A special appeal against the decision of a Single Judge of the High Court 
in an appeal was filed before the Division Bench of the High Court in the D 
year 1992. The special appeal was decided by the judgment dated 19.9.2005. 
Meanwhile CPC (Amendment) Act No. 22 of2002 substituting s.100-A came 
into force. 
In the present appeal it was contended for the appellant that s.100-A of 
the Code not only barred filing of an appeal but would be attracted even in a E 
pending appeal. 
Dismissing the appeal, the Court 
HELD: Keeping in view the principles of law enunciated in the decision 
of this Court, it is evident that a letters patent appeal, which was filed prior to p 
coming into force of the 2002 Act would be maintainable. It cannot be said 
that s.100-A of the Code of Civil Procedure, 1908 will have retrospective effect 
so as to bring within its fold even the appeals preferred prior to coming into 
force of the said Act. [1155-H; 1156-A-BI 
P.S. Sathappan (dead) by Lrs. v. Andhra Bank Ltd. And Ors., [2004) l 1 G 
sec 672, followed. 
Bento De Souza £gipsy (dead) by Lrs. v. Yvette Alvares Colaco and Ors., 
[2004] 13 sec 438, relied on. 
1147 
H 
1148 
SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R. 
A 
Salem Advocate Bar Association, T.N. etc. v. Union of India, [20031 1 
SCC 49; Mis. Hoosein Kasam Dada (India) Ltd. v. The State of Madhya 
Pradesh and Ors., AIR (1953) SC 221; Shiv Shakti Co-op. Housing Society, 
Nagpur v. Mis. Swaraj Developers and Ors., AIR (2003) SC 2434; Subal Paul 
v. Malina Paul and Anr., [2003) 10 SCC 361; Municipal Corporation of 
B Brihanmumbai and Anr. v. State Bank of India, (199911SCC123; and Kamal 
Kumar Dutta and Anr. v. Ruby General Hospital Ltd. And Ors., (2006) 7 
SCALE 668, referred to. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5838 of2006. 
From the Final Judgment and order dated 19.9.2005 of the High Court 
C of Judicature for Rajasthan at Jaipur in D.B. Special Appeal (Civil) No. 22/ 
1992. 
D 
Ajay Choudhary, Nimish Gupta, Karola Jain, Rajat Mahajan for the 
Appellant. 
Praveen Swamp for the Respondents. 
The Judgment of the Court was delivered by 
S.B. SINHA, J. Leave granted. 
E 
Application of Section 100-A ofthe Code of Civil Procedure, 1908 (for 
short, 'the Code') is involved in this appeal which arises out of a judgment 
and order dated 19.09.2005 passed by a Division Bench of the High Court of 
Rajasthan, Jaipur Bench, Jaipur in D.B. Special Appeal No. 22 of l 992. 
The father of Appellant indisputably was the owner of the property. He 
F died on 03.07.1973 leaving behind his widow Smt. Anandi Devi and the parties 
hereto. He allegedly gifted a portion of the house known as 'Anand Vihar' 
in favour of the appellant. On 22.02.1977, Smt. Anandi Devi died. She is said 
to have executed a Will on 28.0 l .1977 in favour of Respondent No. 1 herein. 
An application for grant of probate in respect of the said Will came to be filed 
G by her in favour of Respondent No. I herein. Appellant entered into caveat 
in the said proceeding. The application for grant of probate was registered 
as Probate Case No. 31 of 1978 which was converted into a suit. Appellant 
herein raised the objections, inter alia, on the following grounds : 
"1. That Shrimati Anandi Devi Upadhyaya neither executued any Will 
H 
and Testament dated 28th January, 1977, nor was she physically and 
r 
• 
KAMLA DEVI v. KHUSHAL KANWAR [S.B. SINHA, J.] 
1149 
mentally fit to execute any Will and Testament as she had been A 
suffering from Cancer since January, 1976 and had been confined to 
bed in a very critical and serious condition since December, 1976 until 
her death. Moreover, Shrimati Anandi Devi had been mentally and 
physically handicapped and was not of sound disposing state of 
mind. 
Hence the execution of the alleged Will and Testament is B 
emphatically denied and the petitioner be put to strict proof of it. 
Moreover Shrimati Anandi Devi had no right or title to execute any 
will and Testament of the proportion described in the annexed affidavit 
due to the reasons below : 
(A) That late Shri Ganeshi Lal Upadhyaya had three daughters
Excerpt shown. Read the full judgment & AI analysis in Lexace.