JUDGMENT

MANMOHAN, ACJ: (ORAL)

CM APPL. 18951/2024 (for exemption)

Allowed, subject to all just exceptions.

Accordingly, the present application stands disposed of.

LPA 253/2024 & CM APPL. 18952/2024 (for stay)

1. The present Letters Patent Appeal has been filed under Clause X of the Letters Patent of the then High Court of Judicature at Lahore, which stands extended to the High Court of Delhi, challenging the impugned judgment dated 05th February, 2024, passed in FAO No. 523/2018, whereby the learned Single Judge has set aside the judgment dated 26th April, 2018 passed by the learned ADJ, Saket Court, New Delhi (‘Trial Court’) in Probate Case No. 5972/2016.

2. The Respondent No. 2 i.e., Vijender Singh filed a Probate Case No. 5972/2016 under Section 276 of the Indian Succession Act, 1925 for grant of probate in respect of the Will dated 04th April, 2007 executed by the mother of the parties i.e., Smt. Lado. The said probate case along with the objections of the Appellant was dismissed by the Trial Court vide judgment dated 26th April, 2018.

3. The Respondent No.2 thereafter preferred an appeal under Section 299 of the Indian Succession Act, 1925 against the judgment of the Trial Court, which was allowed by the learned Single Judge of this Court vide judgment dated 05th February, 2024 and the impugned judgment of the Trial Court was dismissed. Therefore, the Appellant has preferred the present appeal, challenging the impugned judgment dated 5th February, 2024, of the learned Single Judge.

4. We are of the considered opinion that the present Letters Patent Appeal filed against the judgment of the learned Single Judge of this Court passed in first appeal is not maintainable as the same would amount to a second appeal which is expressly barred by Section 100A of the Code of Civil Procedure, 1908, substituted by Act 22 of 2002. In this regard it would be apposite to refer to the judgment of Full Bench of this Court in Avtar Narain Behal v. Subhash Chander Behal1, whereby this Court authoritatively held that no Letters Patent Appeal is maintainable is maintainable against the judgment of Single Judge in a first appeal arising

1 2008 SCC OnLine Del 1154.

out of a special enactment such as Indian Succession Act, 1925. The relevant paragraph of the said judgment reads as under:

“1. A family dispute and the consequent challenge to the Will dated 19.10.1972 and Codicil dated 25.4.1990 executed by late Shri Gopal Das Belial has given rise to the present proceedings. The respondent filed a petition for grant of probate/letters of administration which came to be allowed by the learned District Judge, Delhi, who by judgment dated 16.10.2003 issued the letters of administration to the respondent. The appellant aggrieved by the same preferred an appeal being FAO No. 420/2003 under Section 299 of the Indian Succession Act, 1925 which was also dismissed by the learned single Judge on 31.03.2008 and the present Letters Patent Appeal has been filed aggrieved by the same order….

…

3. In our view, in the light of the submissions made at the Bar, the question referred needs to be reframed. The question is:

“Whether after insertion of the amended Section 100A in the Code of Civil Procedure a Letters Patent Appeal is maintainable against the judgment rendered by a single Judge in an appeal, arising out of a special enactment like the Indian Succession Act?”

22. A plain reading of the provisions of Section 100A of the Code of Civil Procedure makes it very clear that there is complete prohibition of filing a further appeal against a decree and order of a single Judge. The said legislative declaration prohibits preferring a further appeal against the judgment and decree of a single Judge if an appeal is provided in any other law for the time being in force. Thus, as prohibited by Section 100A, preferring a further appeal to a Division Bench against the judgment and decree of a single Judge is barred, not only under the Letters Patent of any High Court but also under an