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CASE NO.:

Appeal (civil) 1287 of 1990

PETITIONER:

KULWANT KAUR & ORS.

Vs.

RESPONDENT:

GURDIAL SINGH MANN (DEAD) BY LRS & ORS.

DATE OF JUDGMENT: 21/03/2001

BENCH:

A.P. Misra & Umesh C. Banerjee

JUDGMENT:

WITH

CIVIL APPEAL NO.1288 OF 1990

JUDGMENT

L...I...T.......T.......T.......T.......T.......T.......T..J

BANERJEE, J.

The core issue in these appeals centres round the

applicability of Section 100 vis-à-vis Section 41 of the

Punjab Courts Act 1918. This Court in Banarsi Dass v.

Brig. Maharaja Sukhjit Singh & Another (1998 (2) SCC 81)

was faced with an identical situation and answered the same

that there is no impediment in the matter of exercise of

jurisdiction of the High Court in entertaining the second

appeal in view of clause ( c) of sub-section (1) of Section

41 of the Punjab Act. The situation would have been rather

easier for us in view of the pronouncement of this Court in

Benarasi Das (supra), but Mr. Mehta appearing in support of

the Appeal drew our attention to the observations of this

Court in paragraph 13 of the Report to the effect that the

decision of this Court in its entirety proceeded on the

basis of a concession that the second appeal under section

41 of the Punjab Courts Act was maintainable and the

objection pertaining to the amended Section 100 of the Code

was not pressed and it is on this count that the learned

Advocate in support of the appeal very strongly contended

that applicability of Section 41 of the Punjab Act on the

wake of the amendment to the Code of Civil Procedure, and in

particular, Section 100 thereof was not considered neither

the decision of this Court in Banarsi Dass (supra) can be

ascribed to be an authority therefor. Having regard to the

concession and for proper appreciation, paragraph 13 is set

out herein below:

13. Mr. Bhagat conceded that the second appeal under

Section 41 of the Punjab Courts Act was maintainable and he

did not press his objection based on the amended Section 100

of the Code. We, therefore, need not examine the question

if Section 4 of the Code would save the applicability of

Section 41 of the Punjab Courts Act in view of Section 101

of the Code which says that no second appeal shall lie

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except on the grounds mentioned in Section 100 and Entry 13

of List III (Concurrent List) of Seventh Schedule of the

Constitution which reads:

13. Civil Procedure, including all matters included in

the Code of Civil Procedure at the commencement of this

Constitution, limitation and arbitration.

The concession thus recorded in Banarsi Dasss case as

noticed above obviously renders the submissions of Mr.

Mehta of some substance. Concession, if made and in the

event the Court proceeds on the basis of such a concession,

the decision cannot by any stretch be termed to be a binding

precedent and as such the previous decision (1998 (2) SCC

81) does not and cannot have the sanctity and solemnity of a

binding precedent. On the wake of the aforesaid, Mr. Mehta

in support of the Appeal, contended that the High Court was

clearly in error in entertaining the second appeal without

any substantial question of law being involved therein and

in any event, the second Appeal was entertained in violation

of the procedure prescribed under Section 100 of the Code of

Civil Procedure. It is at this juncture Section 100 as was

existing prior to the Amendment Act, 1976, ought to be

noticed.

Section 100 read as below:

100. (1) Save where otherwise expressly provided in the

body of this Code or by any other law for the time being in

force, an appeal shall lie to the High Court from every

decree passed in appeal by any court subordinate to the High

Court on any of the following grounds, namely:

(a) the decision being contrary to law or to some usage

having the force of law;

(b) the decision having failed to determine some

material issue of law or usage having the force of law;

(c) a substantial error or defect in the procedure

provided by this Code or by any other law for the time being

in force, which may possibly have produced error or defect

in the decision of the case upon merits.

(2) An appeal may lie under this section from an

appellate decree passed ex parte.

Section 100 of the Code as stands amended by the

Amendment Act and as is presently prevalent ought also to be

noticed presently and the same reads as below:

100.(1) Save as otherwise expressly provided in the body

of this Code or by any other law for the time being in

force, an appeal shall lie to the High Court, from every

decree passed in appeal by any Court subordinate to the High

Court, if the High Court is satisfied that the case involves

a substantial question of law.

(2) An appeal may lie under this section from an

appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum of

appeal shall precisely state the substantial question of law

involved in the appeal.

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(4) Where the High Court is satisfied that a substantial

question of law is involved in any case, it shall formulate

that question.

(5) The appeal shall be heard on the question so

formulated and the respondent shall, at the hearing of the

appeal, be allowed to argue that the case does not involve

such question:

Provided that nothing in this sub-section shall be

deemed to take away or abridge the power of the Court to

hear, for reasons to be recorded, the appeal on any other

substantial question of law, not formulated by it, if it is

satisfied that the case involves such question.

Mr. Swaroop for the Respondent on the other hand

contended rather emphatically that by reason of the

provisions of Section 41 of the Punjab Courts Act, 1918,

there is neither any requirement nor any scope for framing

of any substantial question of law. The Respondents

contended that compliance and adaptation of the procedure as

prescribed under Section 100 of the Code of Civil Procedure

as is in the Code presently, can not by any stretch be said

or termed to be a requirement having regard to Section 41 of

the Punjab Courts Act which reads as below:

41. Second appeals- (1) an appeal shall lie to the High

Court from every decree passed in appeal by any court

subordinate to the High Court on any of the following

grounds, namely:

(a) The decision being contrary to law or to some custom

or usage having the force of law;

(b) The decision having failed to determine some

material issue of law or custom or usage having the force of

law;

(c) A substantial error or defect in the procedure

provided by the Code of Civil Procedure, 1908 (V of 1908) or

by any other law for the time being in force which may

possibly have produced error or defect in the decision of

the case upon the merits.

Explanation - A question relating to the existence or

validity of a custom or usage shall be deemed to be a

question of law within the meaning of this section.

(2) An appeal may lie under this section from an

appellate decree passed ex parte.

Admittedly the above noted three provisions, as in

Section 41 (a), (b) & (c) (as above) stand in pari materia

with Section 100 prior to the amendment, though however,

substantially different from the existing Section 100 which

stands engrafted in the statute book by the Amendment Act,

1976. The applicability of Section 41 of the Punjab Act in

the State of Punjab as of date and even after the

introduction of the Amendment Act as stated by Mr. Swaroop

stands affirmed by a full Bench judgment of the Punjab &

Haryana High Court in the case of Ganpat v. Shri Ram Devi &

Others (AIR 1978 P & H 137) wherein the High Court has

categorically recorded a finding that a reading of Sections

4(1) and 100 (1) of the Code together leads to an

irresistible conclusion that the legislature wished to save

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and leave all special or local laws as also any other law

for the time being in force on the subject of second

appeals. The High Court further stated that Section 41 of

the Punjab Courts Act which clearly falls in such a category

would thus not be, in any way stands affected by the

provisions of Section 100 even on a plain construction of

these statutory provisions. In paragraph 15 of the report,

the High Court stated the situation as below:

15. Even excluding out of consideration the specific

provisions of Section 4(1) and 100 of the Code the same

result would seem to follow upon larger principles as well.

There can hardly be any doubt that the Civil P.C. is the

general law of the land on the subject. On the contrary the

Punjab Courts Act operates in a narrow and limited field

both as regards the area to which it applies and the subject

matter with which it deals. It is a settled law that a

special provision or a special power would normally override

a general one. On this general principle, the particular

provisions of section 41 of the Punjab Courts Act are

entitled to exclude the general provisions of S. 100 of the

Code in the same field. If authority was at all necessary

for so established a proposition, reference may be made to

the recent Full Bench decision reported in 78 Punjab LR 726:

(AIR 1976 Punjab 310) (FB) Chanan Singh v. Smt. Majo.

The Full Bench decision of the High Court, in fact,

however, placed a far too literal a meaning and

interpretation of Section 4 of the Civil Procedure Code and

it is on this statutory interpretation, the High Court in

paragraph 9 of the report stated as below:

9. It is manifest from the above that the saving clause

aforesaid has been couched in terms of widest amplitude.

The plain intention of the legislature appears to be that

unless there is specific provision to the contrary, the Code

shall not affect any special or local law or any special

jurisdiction or power conferred by any other law. At the

very outset we may point out that no specific provision to

the contrary in this context has been or could have even

remotely pointed out. It is equally plain, and indeed it

was not disputed before us, that the Punjab Courts Act would

squarely fall within the terminology of any special or local

law. This being so it is unnecessary to dissert at any

great length on the true nuance to be attached to the terms

special law or local law in this context. On this admitted

position, therefore, it follows that by virtue of Section

4(1) the provisions of the Punjab Courts Act are in no way

limited or otherwise affected by the provisions contained in

the Code. A fortiori the provisions of Section 100 of the

Code, therefore, do not affect the corresponding provisions

of Section 41 of the Punjab Courts Act either.

The High Court further observed that Section 41 of the

Punjab Courts Act equally provides a special jurisdiction to

the High Court as regards the Second Appeal and cannot but

be said to be thus saved from being affected by the Code

and, in fine, came to a conclusion that Section 4(1) of the

Code has otherwise saved Section 41 of the Punjab Act from

being in any way overridden or affected by the provisions of

the Code even after introduction of the Amendment Act, 1976

in the Statute Book and Section 100 in particular.

The entire submission of Mr. Swaroop as regards the

applicability of Section 41 being saved of the rigours of

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Section 100, admittedly, stands corroborated by the Full

Bench Judgment. Let us however, analyse the situation in

slightly more greater detail and consider the true

perspective of Section 4(1) having regard to Section 97 of

the Code of Civil Procedure (Amendment) Act, 1976. Section

97 (1) of the Amendment Act reads as below:

Any amendment made, or any provision inserted in the

principal Act by a State Legislature or a High Court before

the commencement of this Act shall, except in so far as such

amendment or provision is consistent with the provisions of

the principal Act as amended by this Act, stand repealed.

On the score as above, we may profitably quote the

decision of this Court in Ganpat Giri v. Second Additional

District Judge, Ballia and Others (1986 (1) SCC 615).

Paragraph 3 of the decision noticed above reads as below:

3. The above provision is however subject to sub-

section (2) of Section 97 of the Amending Act which provides

that notwithstanding that the provisions of the Amending Act

have come into force or the repeal under sub-section (1) of

Section 97 of the Amending Act has taken effect, and without

prejudice to the generality of the provisions of Section 6

of the general Clauses Act, 1897, the provisions in clauses

(a) to (zb) of that sub-section would prevail. Sub-section

(3) of Section 97 of the Amending Act provides that save as

otherwise provided in sub-section (2), the provisions of the

principal Act, as amended by the Amending Act, shall apply

to every suit, proceeding, appeal or application pending at

the commencement of the Amending Act or instituted or filed

after such commencement, notwithstanding the fact that the

right, or cause of action, in pursuance of which such suit,

proceeding, appeal or application is instituted or filed,

had been acquired or had accrued before such commencement.

Section 97 (1) thus has an overriding effect as against

any amendment or provision being inconsistent with the

provisions of the principal Act and the principal Act

referred to in Section 97 is the Code of Civil Procedure.

It is on this score that Article 254 of the Constitution of

India also have a bearing and as such the same is noted

hereinbelow for its field of operation and scope.

254. Inconsistency between laws made by Parliament and

laws made by the Legislatures of States. (1) If any

provision of a law made by the Legislature of a State is

repugnant to any provisions of a law made by Parliament

which Parliament is competent to enact, or to any provision

of an existing law with respect to one of the matters

enumerated in the Concurrent List, then, subject to the

provisions of clause (2), the law made by Parliament,

whether passed before or after the law made by the

Legislature of such State, or, as the case may be, the

existing law, shall prevail and the law made by the

Legislature of the State shall, to the extent of the

repugnancy, be void.

(2) Where a law made by the Legislature of a State with

respect to one of the matters enumerated in the Concurrent

List contains any provision repugnant to the provisions of

an earlier law made by Parliament or an existing law with

respect to that matter, then, the law so made by the

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Legislature of such State shall, if it has been reserved for

the consideration of the President and has received his

assent, prevail in that State:

Provided that nothing in this clause shall prevent

Parliament from enacting at any time any law with respect to

the same matter including a law adding to, amending, varying

or repealing the law so made by the Legislature of the

State.

Article 254 thus maintains Parliamentary supremacy in

matters under List I and List III (List I Union List and

List III Concurrent List). And It is on this score that Mr.

Mehta was very eloquent that doctrine of implied repeal will

have its true impact on the situation and thus resultantly

negatived the effect of Section 41 of the Punjab courts Act.

Mr. Mehta contended that Section 100 of the Code and

Section 41 of the Punjab Act without any pale of controversy

have a common objective viz. authority and jurisdiction to

hear Second Appeals and thus both operate on the same field

and by reason of the factum of the Punjab Act being

non-complimentary to Section 100 of the Code, it cannot but

be said to be repugnant and hence the doctrine of repugnancy

will have its full play in the matter of declaration of the

Punjab Act being void.

On the doctrine of implied repeal, Mr. Mehta contended

that procedural law must be having a meaningful existence

without being in conflict with a parliamentary legislation.

Undoubtedly, the doctrine of implied repeal is not to be

favoured but where a particular provision cannot co-exist or

intended to subsist in the event of there being the

repugnancy between central and State Legislature the courts

cannot but declare it to be so on the ground of repeal by

implication. Uniformity of law, being the basic

characteristics of Indian jurisprudence cannot be termed to

be at sufferance by reason of a State Legislation which runs

counter to the Central Legislation. It is not necessary

that one legislation should be on the positive side whereas

the other one in the negative: Such a stringent requirement

is not the requirement in order to bring home the issue of

repugnancy, but all the same it might result when both the

legislations cover the same field. This observation find

support from the decision of this Court in Zaverbhai Amaidas

v. The State of Bombay [1955 (1) SCR 799] wherein this

Court observed:

It is true, as already pointed out, that on a question

under Article 254 (1) whether an Act of Parliament prevails

against a law of the State, no question of repeal arises;

but the principle on which the rule of implied repeal rests,

namely, that if the subject-matter of the later legislation

is identical with that of the earlier, so that they cannot

both stand together; then the earlier is repealed by the

later enactment, will be equally applicable to a question

under Article 254 (2) whether the further legislation by

Parliament is in respect of the same matter as that of the

State law. We must accordingly hold that section 2 of

Bombay Act NO.XXXVI of 1947 cannot prevail as against

section 7 of the Essential Supplies (Temporary Powers) Act

No.XXIV of 1946 as amended by Act No.LII of 1950. (vide

page 809)

In Zaverbhais case (supra) this Court in no uncertain

terms laid down that the important thing to consider is

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whether the legislation is in respect of the same matter and

it is on this score true effect of Article 254 (2) has been

said to the effect that if both the Centre and the State

though competent to enact the same, the law of the Centre

should prevail over that of the State. There cannot be any

divergence of views on this score having regard the language

of the Article 254 and this is irrespective of the factum

that constitutionality of a statute being always presumed in

affirmative rather than in the negative. It is in this

context that a Constitution Bench of this Court in the

decision in Karunanidhi [M. Karunanidhi v. Union of India

& Anr. (1979) 3 SCC 431] stated that before any repugnancy

can arise the following conditions must be satisfied:

(a) That there is clear and direct inconsistency between

the Central Act and the State Act;

(b) That such an inconsistency is absolutely

irreconcilable;

(c) That the inconsistency between the provisions of the

two Acts is of such a nature as to bring the two Acts into

direct collision with each other and a situation is reached

where it is impossible to obey the one without disobeying

the other.

The requirement is thus a clear and direct

irreconcilable inconsistency between the Central Act and the

State Act and the inconsistency would be of such an extent

that it would be otherwise impossible to obey the one

without disobeying the other. Needless to record here that

prior to the Amendment Act of 1976, through which the

amendment to Section 100 was brought in the statute book,

the question of Section 100 being inconsistent with Section

41 of the Punjab Act did not arise, since the Punjab Act is

in consonance with unamended Section 100 without there being

any differentiation and are compatable to each other being

pari materia. Since the relevant statutory provisions have

already been noticed herein before in this judgment, we need

not recapitulate the same, and suffice however, to notice

what stands noticed already. The situation, however, stands

differently on the incorporation of the amendment to Section

100. With the amendment, the power to entertain a Second

Appeal by the High Court stands restricted only on such

occasions when the High Court is otherwise satisfied about

the involvement of a substantial question of law. The

addition of this new concept of substantial question was not

available in the Code of Civil Procedure prior to the

amendment or in the Punjab Act. What however is a

substantial question we need not go into the same neither we

are called upon to note in extenso the true purport of the

expression. The issue stands concluded since the decision

in Chunilals case [Sir Chunilal V. Mehta & Sons Ltd. vs.

Century Spinning and Manufacturing Co. Ltd. :AIR 1962 SC

1314] and subsequently in the decision of this Court in

Pankaj Bhargavas case [ Pankaj Bhargava & Anr. V.

Mohinder Nath & Anr. : (1991) 1 SCC 556] We are concerned

with a much narrower issue as to whether the two acts can be

termed to be inconsistent with each other as stated by the

Punjab Full Bench (supra). The learned Advocate for the

Respondents responded in the negative by placing reliance

upon amended Section 100 and in particular the saving part

of Section 100(1) which according to the submission saves

the Punjab statute. The same however, needs to be delved

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into some detail. With reference to this submission, i.e.

the saving provision, intention of the legislature seems to

be that any other law for the time being in force (e.g.

Punjab Act) shall stand saved This in short is the case

made out for the respondents. As a matter of fact the

respondents reiterated the reasonings as adopted by the

Punjab Full Bench and contended that by reason of the

express saving, question of Punjab Act being declared

repugnant to the Section 100 does not and cannot arise. The

respondents contended that the manifestation in the earlier

Section 100 so far as protection of State Law is concerned

is still maintained and there is identity with such

manifestation in the pre amended and post amended Section

100 of the Code of Civil Procedure and in this context

reference to Section 4 of the Code under which special or

local law even special form of procedural law stands saved.

A look at section 4 of the Code would thus be relevant and

the same reads as below:- 4. (1) in the absence of any

specific provision to the contrary, nothing in this Code

shall be deemed to limit or otherwise affect any special or

local law now in force or any special jurisdiction or power

conferred, or any special form of procedure prescribed, by

or under any other law for the time being in force.

(2) In particular and without prejudice to the

generality of the proposition contained in sub-section (1),

nothing in this Code shall be deemed to limit or otherwise

affect any remedy which a landholder or landlord may have

under any law for the time being in force for the recovery

of rent of agricultural land from the produce of such land.

The submission for the Respondent further proceeded to

the effect that on a plain reading of this Section it

depicts that in the event of there being any inconsistency,

the special or local laws will have the precedence over the

Code but in the event, there is no inconsistency between the

two, the Code will prevail rather an attractive submission

but on a closer scrutiny the same pales into insignificance.

As aforesaid the special or local law as contained in

Section 41 of the Punjab Code was in pari materia with

unamended Section 100 so then there was no inconsistency.

It is only after the amendment could be said to an

inconsistency have developed between the two provisions,

which is submitted to be saved by the aforesaid Section 4.

While it is true, on its plain reading at the first glance

local law seems to have been saved but we have to examine

this in the light of Article 254 of the Constitution of

India and the doctrine of repugnancy read with Section 97 of

the Amending Act as noticed in the earlier part of this

judgment. Incorporation of the Civil Procedure Code

Amendment Act in the statute book is by virtue of conferment

of power under Entry 13 of List III of the Seventh Schedule

of the Constitution. The Constitution is the parent

document and is supreme which has a binding effect on all

and by virtue of the provisions of the Constitution,

parliamentary supremacy in regard to the adaptation of laws

if within the area of operation as provided under List I or

List III is recognised.

Article 254 makes it unequivocal of the supremacy of the

Parliament in the matter of repugnancy of any matter falling

under List I or List III. There is one exception carved

under Clause (2) to a matter falling under the Concurrent

List III. This supremacy is further reinforced by the

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proviso of this Clause (2), which records;

Provided that nothing in this clause shall prevent

Parliament from enacting at any time any law with respect to

the same matter including a law adding to, amending, varying

or repealing the law so made by the Legislature of the

State. (Noticed again for convenience).

Thus even in cases falling under Clause (2), where State

law prevail, such law could be amended, varied or repealed

by the Parliament by enacting law subsequently both by

virtue of Clause (1) or proviso to Clause (2).

It is in this context a decision of this Court (I.T.C.

& Ors. v. State of Karnataka & Ors :1985 (Suppl) SCC 476)

may also be noted, wherein this Court in paragraph 18 of the

judgment (see page 496) had the following to state:

Thus, in my opinion, the five principles have to be read

and construed together and not in isolation where however,

the Central and the State legislation cover the same field

then the Central legislation would prevail. It is also well

settled that where two Acts, one passed by the Parliament

and the other by a State Legislature, collide and there is

no question of harmonising them, then the Central

legislation must prevail.

Needless to record that since the decision in Tullochs

case [State of Orissa v. MA Tulloch & Co. :1964 (4) SCR

461] the law seems to be rather firmly settled viz.a.viz.

the Central and the State Act. In the decision last noted

it has been stated that if the Central and the State Acts

collide with each other the inevitable consequence would

have to be that the Central Act will prevail over the State

Act and the latter will have to yield. This Court further

went on to observe:

Repugnancy arises when two enactments both within the

competence of the two Legislatures collide and when the

Constitution expressly or by necessary implication provides

that the enactment of one Legislature has superiority over

the other then to the extent of the repugnancy the one

supersedes the other.. the test of two legislations

containing contradictory provisions is not, however, the

only criterion of repugnancy, for if a competent Legislature

with a superior efficacy expressly or impliedly evinces by

its legislation an intention to cover the whole field, the

enactments of the other Legislature whether passed before or

after would be overborne on the ground of repugnance.

(Emphasis supplied)

Subsequent to the decision as noticed herein before

there is another decision of this Court in Sudhir Chandra

Nawn v. Wealth Tax Officer, Calcutta & Ors [1969 (1) SCR

108] wherein Shah, J. observed:

Exclusive power to legislate conferred upon Parliament

is exercisable, notwithstanding anything contained in

clauses (2) & (3), that is made more emphatic by providing

in clause (3) that the Legislature of any State has

exclusive power to make laws for such State or any part

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thereof with respect to any of the matters enumerated in

List II in the Seventh Schedule, but subject to clauses (1)

and (2). Exclusive power of the State Legislature has

therefore to be exercised subject to clause (1) i.e. the

exclusive power which the Parliament has in respect of the

matters enumerated in List I. Assuming that there is a

conflict between Entry 86 List I and Entry 49 List II, which

is not capable of reconciliation, the power of Parliament to

legislate in respect of a matter which is exclusively

entrusted to it must supersede pro tanto the exercise of

power of the State Legislature.

Let us examine to what extent Section 4 or language of

Section 100 saves the special or local law after coming into

force of the aforesaid 1976 amendment. Section 4(1) of the

Code records:

In the absence of any specific provision to the

contrary, nothing in the Code shall be deemed to limit or

otherwise affect any special or local law now in force

By this, special or local laws are protected and thus

not to be effective in the absence of any specific provision

to the contrary. In other words, special or local laws

would be functional till any specific provision to the

contrary stands engrafted. Since Section 100 CPC unamended

was in pari materia with Section 41 of the Punjab Act, there

was no conflict and Section 41 continued in its field

unaffected. This is reinforced by the language of unamended

Section 100 C.P.Code viz:

Save where otherwise expressly provided in the body of

this Code or by any other law for the time being in

force..

Thus the wording of this Section 100 qualified Section

41 Punjab Act to be the other law for the time being in

force, as its Section 41 expressly provided second appeal

as Section 100 provides. So, thus for Section 41 of Punjab

Act held its field.

Now we proceed to examine Section 97 (1) of the Amending

Act and the amendment of Section 100 CPC by the said 1976

Act. Through this amendment right to Second Appeal further

restricted only to lie where, the case involves a

substantial question of law. This introduction definitely

is in conflict with Section 41 of the Punjab Act which was

pari materia with unamended Section 100 CPC. Thus so long

there was no specific provision to the contrary in this Code

Section 4 CPC saved special or local law. But after it

comes in conflict Section 4 CPC would not save, on the

contrary its language implied would makes such special or

local law applicable. We may examine now the submission for

the respondent based on language of Section 100 (1) CPC even

after the said amendment. The reliance is on the following

words:

..Save as otherwise expressly providedby any other

law for the time being in force

These words existed even prior to the amendment and is

unaffected by the amendment. Thus so far it could

legitimately be submitted that, reading this part of the

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Section in isolation it saves the local law. But this has

to be read with Section 97(1) of the Amending Act, which

reads:

any amendment made, or any provision inserted in the

principal Act by a State Legislature before the commencement

of this Act shall, except in so far as such amendment or

provision is consistent with the provision of the principal

Act as amended by this Act, stands repealed.(Noticed again

for convenience).

This clearly reveals true intend of the legislature

viz., any provision of the State legislature existing prior

to the amending Act which becomes in consistence to this

amending Act is in consonance with both sub-clause (1) and

proviso to sub-clause (2) of Article 254 of the Constitution

of India. Thus language of Section 97(1) of the Amending

Act clearly spells out that any local law in consistent goes

but what is not in consistence, it could be said the local

would still continue to occupy its field.

But so far the present case Section 41 of the Punjab

Act, it is expressly in conflict with the amending law,

viz., Section 100 amended which would be deemed to have been

repealed. Thus we have no hesitation to hold the law

declared by the Full Bench of the High Court in the case of

Ganpat (supra) cannot be sustained and is overruled.

Having discussed the law on the subject in the manner as

herein before and turning attention on to the factual matrix

of the matter, it appears that the plaintiffs in the suit

prayed for partition and rendition of accounts against the

defendants, which stands decreed by the lower Appellate

Court. In the second appeal the High Court allowed the

appeal and set aside the decree of the lower appellate

Court. Interestingly, the subject matter of the suit

centres round the two several wills of one Saheb Singh Mann

since deceased. Whereas the will dated 30th March, 1968 has

been said to be shredded with suspicious circumstances, the

plaintiffs claimed the will dated 2nd February, 1972, being

the last will and testament of the above noted Saheb Singh

Mann. It is significant to record that the will dated 30th

March,1968 was executed in favour of the defendants

excluding the plaintiffs. The High Court while dealing with

the issue has probed deep in the matter dealing with all

necessary evidence concerning both the wills noticed above,

and in fine the learned Judge, dealing with the second

appeal analysed the factual aspect regarding the genuineness

of the will to the following effect:-

(a) An attempt has been made by the testator to ensure

that nobody stakes claim to the property transferred to the

daughters-in-law;

(b) Admittedly, the deceased lived for more than six

years after the execution of the will;

(c) No reference was made to the will in a subsequent

alleged will having been executed in favour of the

plaintiffs;

(d) Testator wanted to keep secret from his daughters,

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bequeathed the property to the sons alone;

(e) There is nothing abnormal in this part of the

country to deprive the daughters of the ancestral property

and the wills are generally executed in order to keep the

estate of the family amongst the male descendants;

(f) No son has been deprived of his equal share to the

property though two of them were not even present in the

village or near about. It is on the considerations above

and examination of totality of the circumstances the learned

Single Judge came to the conclusion that the will dated 30th

March, 1968 has duly been executed by a sound disposing mind

and there were existing no reasonable grounds to decline to

act on it. The learned Judge, thus set aside the lower

Appellate Courts judgment and decreed as regards the will

dated 30th March, 1968. The appellants herein by reason of

the reversal of the judgment, are before this Court in

appeal by the grant of special leave. On the validity of

the will Mr. Mehta strongly contended that the will dated

30th March, 1968 recites that Rs.5,000/- shall be paid to

each of the daughters of Saheb Singh Mann. Such recital is

itself suggestive of suspicious circumstances by reason of

the largeness of the estate of Saheb Singh Mann, since

deceased. Since the daughters are also very well-to-do and

the testamentary disposition of Rs.5,000/- by the will

cannot but be ascribed to be totally illusory.

Though this Court is not really concerned with the

details of the circumstances under which the will can be

said to be otherwise an invalid piece of document but

strenuous submissions with factual details have been made by

both the parties in order to bring home the point of

justification or otherwise for such a finding of the learned

Single Judge and it is by reason therefore these factual

details are being introduced though not very significant in

the present context. Be that as it may another aspect on

the factual score stands highlighted by Mr. Mehta, that

only two witnesses out of three attesting witnesses have

been examined and an independent witness, namely, Shri GS

Banga, Advocate, has not been examined who, however,

happened to be one of the attesting witnesses to the will.

Referring to the above conspectus of the matter, Mr.

Mehta contended that the High Court could not, in the

absence of a substantial question of law interfere with the

findings of the lower Appellate Court which has otherwise

the authority and jurisdiction to scrutinise and appraise

the evidence. Mr. Mehta contended that suspicious features

of the will, are mere questions of fact which can be gone

into upto the stage of first appellate court only and not

beyond and the High Court in the absence of a substantial

question of law framed by the parties or if not so framed by

the Court itself, had no jurisdiction to entertain the

appeal far less allowing it and it is an interference which

is totally unauthorised or in excess of jurisdiction or

having no jurisdiction whatsoever. We are however not in a

position to lend concurrence to such a broad proposition as

enunciated by Mr. Mehta. Judicial approach being justice

oriented, exclusion of jurisdiction of the High Court under

the circumstances as contended by Mr. Mehta, would lead to

an incongruous situation being opposed to the concept of

justice. Technicality alone by itself ought not to permit

the High Court to decide the issue since justice oriented

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approach, is the call of the day presently. The learned

Single Judge in the matter under consideration has delved

into the issue as to whether in fact the evidence on record

warrant such a conclusion whether the High Court was right

in such appreciation or not - that is entirely a different

issue. But the fact remains that scrutiny of evidence will

be totally prohibited in the matter of exercise of

jurisdiction in second appeal would be too broad a

proposition and too rigid an interpretation of law not

worthy of acceptance. If the concept of justice so warrant,

we do not see any reason why such an exercise would be

depricated. This is however, without expression of any

opinion pertaining to Section 100 of the Civil Procedure

Code.

Admittedly, Section 100 has introduced a definite

restriction on to the exercise of jurisdiction in a second

appeal so far as the High Court is concerned. Needless to

record that the Code of Civil Procedure Amendment Act, 1976

introduced such an embargo for such definite objectives and

since we are not required to further probe on that score, we

are not detailing out, but the fact remains that while it is

true that in a second appeal a finding of fact even if

erroneous will generally not be disturbed but where it is

found that the findings stands vitiated on wrong test and on

the basis of assumptions and conjectures and resultantly

there is an element of perversity involved therein, the High

Court in our view will be within its jurisdiction to dealt

with the issue. This is, however, only in the event such a

fact is brought to light by the High Court explicitly and

the judgment should also be categorical as to the issue of

perversity vis-à-vis the Concept of justice. Needless to

say however, that perversity itself is a substantial

question worth adjudication what is required is a

categorical finding on the part of the High Court as to

perversity. In this context reference be had to Section 103

of the Code which reads as below:

103. In any second appeal, the High Court may, if the

evidence on the record is sufficient, determine any issue

necessary for the disposal of the appeal-

(a) which has not been determined by the lower Appellate

Court or by both the Court of first instance and the lower

Appellate Court, or

(b) which has been wrongly determined by such Court or

(c) Courts by reason of a decision on such question of

law as is referred to in the Section 100.

The requirements stand specified in Section 103 and

nothing short of it will bring it within the ambit of

Section 100 since the issue of perversity will also come

within the ambit of substantial question of law as noticed

above. The legality of finding of fact cannot but be termed

to be a question of law. We reiterate however, but there

must be a definite finding to that effect in the judgment of

the High Court so as to make it evident that Section 100 of

the Code stands complied with.

The learned Single Judge of the High Court obviously had

the Punjab Full Bench judgment in mind and having regard to

Section 41 and without any reference to Section 100 dealt

the issue. The mandatory requirement of Section 100 cannot

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be obliterated by reason of a State legislature where the

requirement is not such.

On the wake of the aforesaid we do find ourselves in

agreement with the contention of Mr. Mehta that Section 41

of the Punjab Act cannot but be termed to be repugnant to

Section100 and as such cannot have its effect, since

parliamentary supremacy renders Section 41 the Punjab Act

devoid of any effect. Neither the saving clause in Section

100 (1) or Section 4 of the Code can come into the rescue of

the respondents in view of Section97(1) of the amending Act.

More so by reason of the clarification rendered by the

legislature in Section 101 of the Code which provides that

no second appeal shall lie except on the ground mentioned in

Section 100 indicating thereby the further reinforcement to

the legislative intent to be obtained from Section 101 as

regards the issue of substantial question of law. This

refers to substantial question of law having regard to the

language of Section 103 cannot however be said to even imply

a contra note apart from what is stated herein before. This

is so however by reason of the provisions of Section 97 of

the Amending Act.

By reason of the aforesaid these appeals succeed, the

order of the High Court in Second Appeal No.762 of 1986

stands set aside and that of the lower Appellate Court

restored. Each party however to pay and bear its own costs.