JUDGMENT

K. RAMASWAMY, J. :—This appeal by special leave arise from the judgment of the Division Bench dated May 16, 1977 in R. S. A. No. 117 of 1971 of Punjab and 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 Singh, husband of Harbant Kaur. She succeeded to a limited widow estate in the year 1922 on her husbands demise and she executed a will Ex. D.1 dated August 12, 1967 in favour of the appellant, daughter of Harbant Kaurs sister to an extent of 36 acres etc. The trial Court decreed the suit holding that the will was not proved to have been validly executed and in consequence the respondent/plaintiff became entitled to the estate of Kirpal Singh. On appeal, the Sub-Judge, Ist Class, Rajpura in his decree and judgment dated January 21, 1971 confirmed the same agreeing that the will has not been proved. When the appeal was posted before the Division Bench, one learned Judge held that the will have not been proved while another learned Judge held it to have been proved. Since no majority opinion of Division Bench on proof of the will emerged decree of the Court below was confirmed. Thus this appeal by special leave.

2. It vehemently contended for the appellant and the second respondent that the learned Judge who held that the will was not proved had not taken relevant factors into consideration, while the other learned Judge had gone in greater detail of the circumstances in which the will came to be validly executed and proved, the onus of proof of will in that behalf has been discharged. The disputed question should have been referred to a third Judge for his opinion. In any case, the bar engrafted in sub-s. (2) of S. 98, C.P.C. applies only to the Division Bench of the High Court who heard the appeal; and its constraint is inapplicable when this Court hears the appeal under Art. 136. This Court should examine in detail whether the finding of non-proof of the will is vitiated by errors of law. The power of this Court is very wide to independently reappreciate the evidence and come to its conclusion. In that behalf he placed strong reliance in Dr. Prem Chand Tandon v. Krishna Chand Kapoor, (1973) 2 SCC 366.

3. The question, therefore, is whether the finding of the Court below that the will has not been proved is a finding of fact? If so, whether in the absence of majority opinion of the Division Bench, the confirmation of the decree of civil Court is valid in law? Thirdly, whether this Court can examine the case on merits to find whether will is validly proved, in which event would sub-s. (2), of S. 98, be not rendered otiose or ineffective?

4. It is fairly agreed across the bar that one learned Judge of the Bench recorded a finding that will has not been proved and another learned Judge recorded contra finding, namely, will has been proved : The grounds on which the conclusion is reached are not material for the purpose of deciding the controversy in this appeal. It is not controverted across the bar that the question whether a will is proved or not proved is a question of fact. In the absence of majority opinion in that behalf, sub-s. (2), of S. 98, mandates that the decree of the Court below should be confirmed. Whether this Court could enlarge this scope and independently examine the merits to come to a conclusion either agreeing or disagreeing with either of the learned Judges who constituted the Division Bench? In that behalf it is necessary to look into the language of S. 98, of C.P.C. Section 98(1), adumbrates that 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. Sub-s. (2), seems to design a situation where no majority opinion agreeing with the judgment of the trial