TEJ KAUR AND ANR. versus KIRPAL SINGH AND ANR.

Citation: [1995] SUPP. 1 S.C.R. 383 · Decided: 10-05-1995 · Supreme Court of India · Bench: K. RAMASWAMY, B.L. HANSARIA · Disposal: Dismissed
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Judgment (excerpt)

' 
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. 
c 
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 
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 
F 
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, 
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~ daughte
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