2006 Supreme(SC) 360

2006(3) Supreme 631
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
Mrs. Ruma Pal and Dalveer Bhandari, JJ.
Gurdev Kaur & Ors.—Appellants
versus
Kaki & Ors.—Respondents
Civil Appeal No. 2083 of 2006
(Arising out of SLP (C) No. 20797 of 2003)
Decided on 18-4-2006
Counsel for the Parties :
For the Appellants : A.S. Jattana, Dinesh Verma, A.P. Mohanty, Advocates.
For the Respondents : Sudhir Walia, Mahinder Singh Dahiya, Advocates.

IMPORTANT POINTS
1. Now, after 1976 Amendment, the scope of Section 100, Civil Procedure Code, has been drastically curtailed and narrowed down. The High Court would have jurisdiction of interfering under Section 100 C.P.C. only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal.
2. If a Will appears on the face of it to have been duly executed and attested in accordance with the requirements of the Statute, a presumption of due execution and attestation applies.
3. The Court does not sit in appeal over the right and wrong to the testator’s decision. It is only for the purpose of examining the authenticity or otherwise of the instrument propounded on the last Will, that the Court looks into the nature of the bequest.
4. Indiscriminate and frequent interference under Section 100 C.P.C. in cases which are totally devoid of any substantial question of law is not only against the legislative intention but is also the main cause of huge pendency of second appeals in the High Courts leading to colossal delay in the administration of justice in civil cases in our country.

Headnote:(i) Civil Procedure Code, 1908—Section 100—Second Appeal—Scope—Indiscriminate and frequent interference u/s 100 of the Code in cases which are totally devoid of any substantial question of law is not only against the legislative intention but is also the main cause of huge pendency of second appeals leading to colossal delay in administration of justice.

       Held : Judges must administer law according to the provisions of law. It is the bounden duty of judges to discern legislative intention in the process of adjudication. Justice administered according to individual’s whim, desire, inclination and notion of justice would lead to confusion, disorder and chaos. Indiscriminate and frequent interference under Section 100 C.P.C. in cases which are totally devoid of any substantial question of law is not only against the legislative intention but is also the main cause of huge pendency of second appeals in the High Courts leading to colossal delay in the administration of justice in civil cases in our country.(Paras 2 and 3)

       The primary cause of the accumulation of arrears of second appeals in the High Court is the laxity with which second appeals are admitted without serious scrutiny of the provisions of Section 100 C.P.C. It is the bounden duty of the High Court to entertain second appeal within the ambit and scope of Section 100 C.P.C. The question which is often asked that why a litigant should have the right of two appeals even on questions of law. The answer to this query is that in every State there are number of District Courts and courts in the District cannot be final arbiters on questions of law. If the law is to be uniformly interpreted and applied, questions of law must be decided by the highest Court in the State whose decisions are binding on all subordinate courts.(Paras 48 and 49)

       (ii) Civil Procedure Code, 1908—Section 100—Second Appeal—Rationale behind permitting second appeal on question of law.

       Held : The rationale behind allowing a second appeal on a question of law is, that there ought to be some tribunal having a jurisdiction that will enable it to maintain, and, where necessary, re-establish, uniformity throughout the State on important legal issues, so that within the area of the State, the law, in so far as it is not enacted law, should be laid down, or capable of being laid down, by one court whose rulings will be binding on all courts, tribunals and authorities within the area over which it has jurisdiction. This is implicit in any legal system where the higher courts have authority to make binding decisions on question of law.(Para 50)

       (iii) Civil Procedure Code, 1908—Section 100—Second Appeal—Scope of interference—Important judicial decisions decided before and after 1976 amendment in Section 100 CPC—Even prior to amendment, consistent position has been that the Courts should not interfere with concurrent findings of facts—After 1976 amendment, scope of Section 100 has been drastically curtailed and narrowed down.

       Held : The analysis of cases decided by the Privy Council and this Court prior to 1976 clearly indicated the scope of interference under Section 100 C.P.C. by this Court. Even prior to amendment, the consistent position has been that the Courts should not interfere with the concurrent findings of facts. Now, after 1976 Amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 C.P.C. only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble”. The effect of the amendment mainly, according to the amended section, was:

       (i)The High Court would be justified in admitting the second appeal only when a substantial question of law is involved;

       (ii)The substantial question of law to precisely state such question;

       (iii)A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal;

       (iv)Another part of the Section is that the appeal shall be heard only on that question.

       The fact that, in a series of cases, this Court was compelled to interfere was because the true legislative intendment and scope of Section 100 C.P.C. have neither been appreciated nor applied. A class of judges while administering law honestly believe that, if they are satisfied that, in any second appeal brought before them evidence has been grossly misappreciated either by the lower appellate court or by both the courts below, it is their duty to interfere, because they seem to feel that a decree following upon a gross misappreciation of evidence involves injustice and it is the duty of the High Court to redress such injustice. We would like to reiterate that the justice has to be administered in accordance with law.(Paras 50 to 52)

       When Section 100 C.P.C. is critically examined then, according to the legislative mandate, the interference by the High Court is permissible only in cases involving substantial questions of law. The Judicial Committee of the Privy Council as early as in 1890 stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross or inexcusable the error may seem to be and they added a note of warning that no Court in India has power to add to, or enlarge, the grounds specified in Section 100.(Paras 53 and 54)

       (iv) Civil Procedure Code, 1908—Section 100—Second Appeal—Scope to interfere with concurrent findings—Case relating to validity of Will of deceased—Deceased who died on 6.2.1969 had two wives, first wife died before death of deceased and second wife was BK, having three daughters Respondent, daughter of first wife filed a suit for joint possession of property of deceased—According to plaintiffs, deceased did not execute any Will out of his free will—Plaintiffs claiming entitlement to 1/3rd share in inheritance of deceased—Defendants admitting relationship of plaintiffs with the deceased, alleged her ownership on basis of Will dated 18.1.1969 executed by her husband in her favour—Trial Court after evaluating the entire evidence on record held that the Will was duly executed by deceased in favour of his second wife, defendant and was a natural document—Will was not challenged for a period of 11 years since its execution in 1969—First Appellate Court also held that the Will was a genuine and valid document and the mutation attested on its basis was unexceptionable—In second appeal, High Court set aside the concurrent findings of facts arrived at by the Courts below—Whether findings recorded by the High Court are justified—(No)—High Court was not justified in interfering with the concurrent findings of fact.

       Held : The learned Single Judge of the High Court set aside the concurrent findings of facts arrived at by the Courts below predominantly on the ground that, in the normal circumstances, a prudent man would have bequeathed the property in favour of his legal heirs. However, in the present case, the testator has disinherited the plaintiffs. The findings arrived at by the High Court are totally erroneous. The Court does not sit in appeal over the testator’s decision. The Court’s role is limited to examining whether the instrument propounded as the last Will of the deceased is or is not that by the testator and whether it is the product of the free and sound disposing mind.(Paras 27 and 28)

       The High Court has clearly deviated from the settled principle of interpretation of the Will. The Court does not sit in appeal over the right or wrong of the testator’s decision. The Court’s role is limited to examining whether the instrument propounded as the last Will of the deceased is or is not that by the testator and whether it is the product of the free and sound disposing mind. It is only for the purpose of examining the authenticity or otherwise of the instrument propounded as the last Will, that the Court looks into the nature of the bequest. The learned Single Judge of the High Court has not even properly appreciated the context of the circumstances. The contents of the Will have to be appreciated in the context of his circumstances, and not vis-a-vis the rules for intestate succession. It is only for this limited purpose that the Court examines the nature of bequest. The Court does not substitute its own opinion for what was the testator’s Will or intention as manifested from a reading of the written instrument. After all, a Will is meant to be an expression of his desire and therefore, may result in disinheritance of some and grant to another. In the instant case, wife of the testator Bhagwan Kaur alone had lived with the deceased and only she had looked after him throughout his life. The other daughters were all happily married a long time ago and in their weddings the testator had spent huge amount of money. In his own words, he had spent more than what they would have got in their respective shares out of testator’s property. If a Will appears on the face of it to have been duly executed and attested in accordance with the requirements of the Statute, a presumption of due execution and attestation applies. It may be pertinent to mention that in the memorandum of second appeal filed before the High Court no substantial question of law was formulated. Similarly, the High Court in its judgment has not formulated question of law before hearing the appeal. Despite repeated declarations of law by the judgments of this Court and Privy Council for over a century, still the scope of Section 100 has not been correctly appreciated and applied by the High Courts in a large number of cases. In the facts and circumstances of this case the High Court interfered with the pure findings of fact even after the amendment of Section 100 C.P.C. in 1976. The High Court would not have been justified in interfering with the concurrent findings of fact in this case even prior to the amendment of Section 100 C.P.C. The judgment of the High Court is clearly against the provisions of Section 100 and in no uncertain terms clearly violates the legislative intention. In view of the clear legislative mandate crystallized by a series of judgments of the Privy Council and this Court ranging from 1890 to 2006, the High Court in law could not have interfered with pure findings of facts arrived at by the courts below.(Paras 58 to 63)