AVTAR NARAIN Vs. SUBHASH CHANDER BEHAL

JUDGEMENT

(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 Behal 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. When a question arose as to maintainability of the Letters Patent Appeal in view of Section 100 A of the Code of Civil Procedure, 1908 (CPC) the learned Judges of the Division Bench were of the view that the reasons given by another Division Bench of this Court in Satish Chander Sabharwal and Anr. v. State and Ors. 122 (2005) DLT 170. on the basis of which the judgment of the Supreme Court in Subal Paul v. Malina Paul and Anr., AIR 2003 SC 1928 has been distinguished were not correct and, therefore, the matter requires consideration by a larger Bench. The learned Judges accordingly referred the following question of law for consideration by a larger Bench :

(2.) MR . Arvind Nigam, learned counsel appearing for the appellant submitted that in almost identical facts the Supreme Court in the case of Subal Paul v. Malina Paul(supra) has held that a Letters Patent Appeal challenging the decision of a single Judge passed under Section 299 of the Indian Succession Act would be maintainable. Learned counsel cited several other judgments in support of this contention. The submission of the learned counsel was that Section 10 of the Delhi High Court Act, 1966 is an independent source of appeal for the matters arising under different enactments, including the CPC, and an amendment in the CPC cannot regulate the maintainability of appeals arising out of other local or special enactments. According to him a Letters Patent Appeal would be maintainable, unless expressly excluded by a special statute, in the instant case, the Indian Succession Act. He placed reliance on the decision of the Supreme Court in the case of National Sewing Thread Co. v. James Chadwick and Bros., AIR 1953 SC 357.which has been followed in Subal Paul s case. He also placed reliance on the decision of the Constitution Bench in P.S. Sathappan v. Andhra Bank Ltd., AIR 2004 SC 5152. in order to show that the view expressed in Subal Paul s case has been approved by the Constitution Bench. Learned counsel further contended that the right of appeal is not merely procedural, but is a substantive right and it is vested in a party on the date of institution of suit. Such a right could be taken away only by a subsequent enactment either expressly or by necessary intendment. In this regard, he referred to a judgment of the Privy Council in the case of Colonial Sugar Refinery Company Ltd. v. Irving, (1905) AC 369. and also the judgment of the Constitution Bench in the matter of Garikapatti Veeraya v. N. Subbiah Choudhury, AIR 1957 SC 540. According to him it is evident that Section 100A, as amended in 2002, has not been made retrospective and would not be applicable to pending cases.

(3.) IN order to answer this question it would be necessary to refer to the relevant provisions of the Delhi High Court Act, 1966. Section 10(1) of the Act provides for a Letters Patent Appeal against the judgment of a single Judge in exercise of original jurisdiction which is also known as intra court appeal and the said provision reads as follows :