JUDGMENT

Markandey Katju, J.

1. Heard learned counsel for the parties.

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 wererelying on the will dated 14.06.1984 which was not agenuine 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.

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 other held that it was not. Consequently the Division Bench by its judgment and order dated20.08.2004 dismissed the appeal relying on Section 98 (2)CPC.It is this judgment and order which is challenged before us.

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 respondent submitted that in view of the proviso to Section98 (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 could have 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 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 in a judgment varying or reversing the decree appealed from, such decree shall be confirmed :Provided that where the Bench hearing the appeal is composed of two or other even number of a Judges 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 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 toalter or otherwise affect any provision of the Letters Patent of any High Court."

5.In Tej Kaur and Another vs. Kirpal Singh andAnother1995 (5) SCC 119, a two Judge Bench of this Court has held that when there is difference of opinion between the 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:.............."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 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 when there is a difference of opinion, the view expressed by the court below, in the absence of a majority opinion, needs to b