Letters Patent Appeal against dismissal of an appeal from refusal of probate based on a 1979 Will. The Division Bench held the appeal not maintainable, following its earlier ruling that after section 100-A CPC no intra-court appeal lies against a Single Judge's decision under section 299 of the Indian Succession Act.
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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
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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
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Per, Anubha Rawat Choudhary, J.
I.A. No. 9290 of 2023
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.
LPA No. 552 of 2023
2 LPA No. 552 of 2023
Parmeshwar Dayal in his favor.
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.”
“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.
3 LPA No. 552 of 2023
“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.”
“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.”
“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.”
(Shree Chandrashekhar, A.C.J.)
(Anubha Rawat Choudhary, J.)
Jharkhand High Court, Ranchi Dated 17th January 2024 Tanuj/N.A.F.R
1 issue framed by the court
Whether a Letters Patent Appeal lies against a Single Judge's order in a miscellaneous appeal arising under section 299 of the Indian Succession Act after insertion of section 100-A CPC.
Colour shows how this judgement treated each authority
Subal Paul v. Malina PaulReferred¶8
(2003) 10 SCC 361 · Who else cites this
Mohd. Saud and Another v. Dr. (Maj.) Shaikh Mahfooz and OthersRelied on¶13
(2010) 13 SCC 517 · Who else cites this
5 provisions across 4 enactments
Sri Jitendra Deo Sinha
Shambhu Nath Sahay
Sanjay Nath Sahay
Lucky Sahay
Vicky Sahay
Shree Chandrashekhar
Anubha Rawat Choudhary
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
