Jharkhand High Court
Pradeep Kumar Lal Aged About 55 Years vs Sharwan Kumar Gupta on 4 September, 2023
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar, Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Letters Patent Appellate Jurisdiction)
LPA No. 422 of 2022
1.Pradeep Kumar Lal aged about 55 years, s/o late Mangal Sao
2.Abhijit Kumar Lal aged about 24 years
3.Akshit Tilak Lal aged about 22 years
4.Ankit Kumar Lal aged about 20 years
5.Ankush Kumar Lal aged about 16 years
Nos. 2 to 5 are sons of Pradeep Kumar Lal
6.Mani Meghle Mahajan aged about 27 years daughter of Pradeep Kumar Lal
All residents of Chairman Road, Hamidganj, Daltonganj, PO and PS
Daltonganj, District Palamu ......Appellants
Versus
1.Sharwan Kumar Gupta
2.Manoj Kumar Gupta
3.Rajesh Kumar Gupta
All sons of Bhagwan Sao
All residents of village and PO Narsinghpur Pathara, PS Chainpur, District
Palamau ... Respondents
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
For the Appellants : Mr. Rakesh Kumar Singh, Advocate
For the Respondents : Mr. Tirtha Nandan Jha, Advocate
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ORDER
th 04 September 2023 This Letters Patent Appeal has been filed by Pradeep Kumar Lal, Abhijit Kumar Lal, Akshit Tilak Lal, Ankit Kumar Lal, Ankush Kumar Lal and Mani Meghle Mahajan to challenge the order passed in M.A No. 54 of 2012. Pradeep Kumar Lal is the son-in-law of Bishwanath Sao who was the son of the Testator Sita Ram Sao @ Sita Sao.
2. The writ Court in its order dated 18th August 2022 passed in M.A No. 54 of 2012 has held as under:
"27. In view of the above stated position of law there was a presumption in favour of due execution of the registered will which has been duly proved by the two witnesses as discussed above. It is an admitted position that the testator had suffered a paralytic attack which is the circumstance that explains why the WILL was not signed by him but thumb impression was affixed on it. It has also 2 LPA No. 422 of 2022 come in evidence that the testator was on a litigating term with both R-6 and his wife (since dead) which explains why the testator decided for testamentary disposition of his property in complete exclusion of the respondents. I do not find any suspicious circumstance to refuse the petition for grant (probate).
The judgment and order of the court below is set aside. However, since no executor has been appointed in the WILL, therefore a letter of administration to be granted with certified photo copy of the WILL annexed is granted. The formal letters of administration as per Schedule VII of the Indian Succession Act, shall be issued by the Court below. The original WILL shall remain in the safe custody of the learned Court below till all formalities for administration of the estate have been completed and the estate distributed. The matter is sent back to the Court below for completing of all formalities according to law. Deficiency if any in Court fees shall be made up."
3. Sharwan Kumar Gupta, Manoj Kumar Gupta and Rajesh Kumar Gupta are sons of Bhagwan Sao who was the real brother of Sita Ram Sao.
4. Sharwan Kumar Gupta and others instituted Probate Case No. 06 of 2006 for grant of probate/letter of administration in respect of the registered Will bearing no. 8029 dated 02nd August 2005. By virtue of the order dated 25th February 2012 passed by the Principal District Judge, Palamau at Daltonganj, the probate case was converted into and renumbered as Title Suit No. 03 of 2007.
5. In Title Suit No. 3 of 2007 the Principal District Judge, Palamau at Daltonganj has held as under:
"32. On the consideration of all these facts and circumstances and the authoritative pronouncement of the Hon'be Court, as also the suspicious circumstances appearing on the record it can be said that the WILL which has been propounded by the plaintiffs has not been legally proved according to the mandatory requirement of section 63 and 68 nor the suspicious circumstances attached with the WILL has been property dispelled and explained. Thus these issues are decided accordingly against the plaintiffs.
33. Issues Nos. 1&2 : In view of the findings above, it can be said that the suit as framed is not maintainable and plaintiffs do not have any cause of action for the suit. Thus, both these issues are decided accordingly.
34.Issues No. 6 : In view of the findings above, the plaintiffs since has not proved due execution and due attestation, as also that as held that the WILL has not been proved to be properly executed by the said testator and in view of the findings of others issues particularly issues no. 3 to 5, the plaintiffs are not entitled for grant.
35. It is, therefore, ORDERED that the plaintiffs are not entitled for a grant of probate or letters of administration because of the facts enumerated above. In the result the suit is dismissed on contest, but, 3 LPA No. 422 of 2022 however, in the circumstances no cost be awarded and party will bear their own cost."
6. Mr. Tirtha Nandan Jha, the learned counsel for the respondents has raised a question of maintainability of the present Letters Patent Appeal.
7. On the other hand, Mr. Rakesh Kumar Singh, the learned counsel appearing for the appellants referred to the judgment in "Subal Paul v. Malina Paul" (2003) 10 SCC 361 to submit that against the order passed by the learned Single Judge of this Court intra-Court Appeal shall lie.
8. In "Subal Paul" 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. In LPA No. 208 of 2011 wherein 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.
10. 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 4 LPA No. 422 of 2022 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 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."
11. 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."
12. In "Mohd. Saud and Another v. Dr. (Maj.) Shaikh Mahfooz and Others" (2010) 13 SCC 517 wherein 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 so as to refer this matter to a larger Bench for an authoritative pronouncement on this question. Moreover, the issue whether or not the present Letters Patent Appeal shall lie is covered by the judgment of the Hon'ble Supreme Court in 5 LPA No. 422 of 2022 "Mohd. Saud".
14. Accordingly, LPA No. 422 of 2022 is held not maintainable and, accordingly, dismissed as such.
15. I.A. No. 4411 of 2023 stands disposed of.
(Shree Chandrashekhar, J.) (Anubha Rawat Choudhary, J.) Jharkhand High Court, Ranchi Dated 04th September 2023 Tanuj/N.A.F.R