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Jharkhand High Court

Sri Jitendra Deo Sinha Aged About 77 ... vs Shambhu Nath Sahay on 17 January, 2024

Author: Anubha Rawat Choudhary

Bench: Anubha Rawat Choudhary

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  (Letters Patent Appellate Jurisdiction)

                              LPA No. 552 of 2023

Sri Jitendra Deo Sinha aged about 77 years, son of late Kameshwar Prasad,
resident of Boddom Bazar, PO and PS Hazaribag, District Hazaribag
                                                            .... Appellant
                                        Versus
1.Shambhu Nath Sahay, son of late Balmukund Sahay
2.Sanjay Nath Sahay, son of late Balmukund Sahay
3.Lucky Sahay, son of late Rabindra Nath Sahay
4.Vicky Sahay, son of late Rabindra Nath Sahay
All residents of Boddom Bazar, near Bara Akhara, PO and PS Hazaribag,
District Hazaribag                                        ... Respondents
                              ---------------
CORAM: HON'BLE THE ACTING CHIEF JUSTICE
     HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

For the Appellant        : Mr. Sushant Kumar Sinha, Advocate
For the Respondents      : None
                       ---------------
                                                     17th January 2024

Per, Anubha Rawat Choudhary, J.

The learned counsel for the appellant submits that an interlocutory application under section 5 of the Limitation Act has been filed seeking condonation of delay of 79 days in preferring the present appeal.

2. We are satisfied with the cause shown by the appellant in this application and, therefore, the delay of 79 days in preferring this Letters Patent Appeal is hereby condoned.

3. I.A. No. 9290 of 2023 is, accordingly, allowed.

4. The present appeal has been filed against the order dated 1 st May 2023 passed in MA No. 337 of 2016 by the learned Single Judge who has been pleased to dismiss the appeal filed against the judgment dated 31 st March 2016 passed in Probate Case No. 4 of 2003 by the learned District and Additional Sessions Judge-XIV Hazaribag. The probate case was filed by the appellant for grant of probate in his favor on the basis of the purported Will dated 2nd August 1979 said to have been executed by one 2 LPA No. 552 of 2023 Parmeshwar Dayal in his favor.

5. The learned District and Additional Sessions Judge-XIV Hazaribag dismissed the Probate Case No. 4 of 2003 and the operative portion of the judgment is quoted as under: -

"11. Having regards to the entire fact and circumstances as narrated above, I am of the convinced view that the petition filed by petitioner u/s 276 of the Indian Succession Act 1925 is not fit to be allowed in his favour. Consequently, I refused grant the probate of WILL dated 2nd August, 1979 executed by Parmeshwar Dayal in favour of Petitioner Jitendra Deo Sinha with respect to the property as disclosed in the aforesaid WILL and also the property fully described in Schedule of this petition. Accordingly, Probate case is hereby dismissed."

6. The learned single Judge has recorded the following findings in paragraph no. 16 onwards which are quoted as under:

"16. Admittedly the delay of 25 years has not been explained and execution of will is also silent and not explained in the Probate Case. The manner in which the Will was executed is alien to any of the provisions of the Indian Succession Act. Since the requirements of provisions of Section 63 and 68 are lacking therefore, rightly the Court below considering the aforesaid aspects, has restrained itself from allowing the petition and has dismissed the Probate Case.

17. The contention of learned counsel appearing for the appellant and the reasons assigned that the natural heirs were not taking care of the testator and as such the will was executed in favour of the appellant debaring the legal heirs, is not at all acceptable to this Court. The Judgment relied upon by the appellant is not at all applicable in the instant case.

18. In view of the above findings and discussions and more particularly in view of the above oral & documentary evidences discussed here-in-above, Section 63 of the Indian Evidence Act as well as the Judgments relied upon by the parties, this Court is in full agreement with the findings of the Court below and as such I find no merits in the instant appeal. This appeal is accordingly dismissed......"

7. The learned counsel for the appellant has submitted that an office objection has been raised regarding the maintainability of the present appeal and reference has been made to the order dated 16 th March 2012 passed in LPA No. 208 of 2011 by the Division Bench holding that an appeal does not lie against the judgment passed in Miscellaneous Appeal arising out of adjudication under section 299 of the Indian Succession Act. The learned counsel has fairly referred to the order dated 4th September 2023 passed in LPA No. 422 of 2022 wherein a similar view has been taken by this Court by referring to the order passed in LPA No. 208 of 2011.

8. In "Subal Paul v. Malina Paul" (2003) 10 SCC 361 the Hon'ble Supreme Court referred to the provisions under the Indian Succession Act, 1925 and held that the provisions under section 299 are not akin to section 104 of the Code of Civil Procedure. However, having regard to the procedural aspect, the Hon'ble Supreme Court held that the High Court exercises appellate jurisdiction by virtue of the provisions under section 299 of the Indian Succession Act, 1925 and, therefore, intra-Court appeal under the Letters Patent shall lie.

9. By the amendment Act 22 of 2002, section 100-A has been incorporated in the Code of Civil Procedure which reads as under:

"100-A. No further appeal in certain cases.--Notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie from the judgment and decree of such Single Judge."

10. In LPA No. 208 of 2011, a coordinate Bench of this Court has held that after incorporation of section 100-A, intra-court appeal against the order of a learned Single Judge passed under section 299 of the Indian Succession Act shall not lie and, that, the judgment in "Subal Paul" shall not apply to the proceedings under section 299 of the Indian Succession Act after the amendment in the Code of Civil Procedure.

11. In LPA No. 208 of 2011, this Court has held as under:

"This was a case under special statute where the proceeding originated under a special act and appeal was also provided in that wherein no further appeal was provided and objection was that instead of approaching the Supreme Court the party should approach first to the Division Bench of the High Court by preferring an appeal as LPA which objection has been rejected by the Hon'ble Supreme Court for the reason mentioned above which we have narrated indicating that in special statute where appeal is provided by that very statute to the Single Bench of the High Court and the provision of intra court appeal in Letters Patent remains, by virtue of Section 100A C.P.C., the right of appeal under Letters Patent has been taken away. In view of the above legal position, the argument of the learned counsel for the appellant that only appeals which have been provided by the C.P.C. under the provisions of Section 96, 100 or 43 Rule 1 etc. are the matters where the L.P.A. is not maintainable, has no force.

The same view has been taken by the Hon'ble Supreme Court in the case of Geeta Devi & Anr. (Supra) wherein appeal arising out of the Award passed by the Motor Accident Claims Tribunal under Special Statute, the Motor Vehicles Act Hon'ble Supreme Court held that the Division Bench of the High Court rightly dismissed the appeal holding it not maintainable.

In the case of Mohd. Saud and Another (Supra) also the Hon'ble Supreme Court has considered the scope of 100A C.P.C.. However, that was matter arising out of an order passed under section 4 LPA No. 552 of 2023 43 Rule 1 CPC subject to appeal under order and C.P.C. against which the L.P.A. was preferred and in that situation the Hon'ble Supreme Court held that the appeal was barred. However, this judgement is not relevant for our purpose because of the reason that learned counsel for the appellant has not disputed nor this is a controversy involved in this case where any order which is appealable under the Code of Civil Procedure before the High Court then the intra court appeal is not maintainable because of the bar u/s 100A C.P.C.

In view of the above reasons, we are of the considered opinion that the appeal preferred by the appellant is not maintainable, hence dismissed."

12. In "Mohd. Saud and Another v. Dr. (Maj.) Shaikh Mahfooz and Others" (2010) 13 SCC 517 section 100-A of the Code of Civil Procedure has been considered. The Hon'ble Supreme Court has held as under:

"7. The Full Bench by the impugned judgment has held that after the introduction of Section 100-A with effect from 1-7-2002, no letters patent appeal shall lie against the judgment or order passed by a learned Single Judge in an appeal. The Full Bench has held that the decision of the Division Bench of the High Court in Birat Chandra Dagra v. Taurian Exim (P) Ltd. [(2006) 11 Ori LR 344 (Ori)] (vide p.

5) does not lay down good law while the decision of the Division Bench in V.N.N. Panicker v. Narayan Patil [(2006) 102 CLT 479 (Cut) : (2006) 2 Ori LR 349 (Ori)] lays down the correct law. The Full Bench has further held that after the amendment of Section 100-A w.e.f. 1-7-2002, no LPA shall lie against the order or judgment passed by a learned Single Judge even in an appeal arising out of a proceeding under a special Act."

13. The aforesaid judgment in LPA No. 208 of 2011 is binding on us and our attention has not been drawn to any contra judgment of this Court to refer this matter to a larger Bench for an authoritative pronouncement on this question. Moreover, the issue of whether or not the present Letters Patent Appeal shall lie is covered by the judgment of the Hon'ble Supreme Court in "Mohd. Saud".

14. Accordingly, LPA No. 552 of 2023 is held not maintainable and, accordingly, dismissed as such.

(Shree Chandrashekhar, A.C.J.) (Anubha Rawat Choudhary, J.) Jharkhand High Court, Ranchi Dated 17th January 2024 Tanuj/N.A.F.R