TaxTMI 
TaxTMI 
2006 (12) TMI 568
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.... respect of the said Will came to be filed by her in favour of Respondent No. 1 herein. Appellant entered into caveat in the said proceeding. The application for grant of probate was registered as Probate Case No. 31 of 1978 which was converted into a suit. Appellant herein raised the objections, inter alia, on the following grounds: 1. That Shrimati Anandi Devi Upadhyaya neither executed any Will and Testament dated 28th January, 1977, nor was she physically and mentally fit to execute any Will and Testam ent as she had been suffering from Cancer since January, 1976 and had been confined to bed in a very critical and serious condition since December, 1976 until her death. Moreover, Shrimati Anandi Devi had been mentally and physically handicapped and was not of sound disposing state of mind. Hence the execution of the alleged Will and Testament is emphatically denied and the petitioner be put to strict proof of it. Moreover Shrimati Anandi Devi had no right or title to execute any will and Testament of the proportion described in the annexed affidavit due to the reasons below: (A) That late Shri Ganeshi Lal Upadhyaya had three daughters namely Shrimati Kamla Devi, Shrimati Nih....
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....by a judgment and order dated 13.02.1992, holding that the execution of the Will was doubtful inasmuch as the map which was said to have been annexed therewith was not the same which was found to have been attached at the time of its registration. An intra-court appeal was preferred there against. By reason of the impugned judgment, the judgment and order passed by the learned Single Judge was set aside. An application for review filed there against was also dismissed. Parliament inserted Section 100A in the Code of Civil Procedure by Section 38 of Act No. 104 of 1976, which was substituted by Section 4 of Act No. 22 of 2002, which came into force with effect from. 01.07.2002. 4. The core question which arises for consideration in this appeal is as to whether the Special Appeal filed by Respondent No. 1 herein before a Division Bench of the Rajasthan High Court was maintainable. Submission of the learned Counsel appearing on behalf of the appellant is that Section 100A not only bars filing of an appeal, but would be attracted even in a pending appeal. 5. Constitutionality of Section 100A of the Code of Civil Procedure came to be questioned before this Court in Salem Advocate Ba....
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....ves round the right as contra- distinguished from the procedure laid down therefore. 7. This Court in Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh and Ors. 1983(13)ELT1277(SC) , opined: 11. The above decisions quite firmly establish and our decisions in Janardan Reddy v. The State and in Ganpat Rai v. Agarwal Chamber of Commerce Ltd., uphold the principle that a right of appeal is not merely a matter of procedure. It is matter of substantive right. This right of appeal from the decision of an inferior tribunal to a superior tribunal becomes vested in a party when proceedings are first initiated in, and before a decision is given by, the inferior court. In the language of Jenkins C.J. in Nana v. Shaikh (supra) to disturb an existing right of appeal is not a mere alteration in procedure. Such a vested right cannot be taken away except by express enactment or necessary intendment. An intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication. Whether Section 100A takes away such a right is the question. In our opinion, it does not. An appeal, as i....
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....ted in the said provisions in 1908 having regard to difference of opinions rendered in the judgments of various High Courts as regards the applicability of letters patent. The High Courts of Calcutta, Madras and Bombay following the decisions of the Privy Council in Hurrish Chunder Chowdhry v. Kalisunderi Devi (1883) 9 Cal. 482 : 10 I.A. 4 held that Section 588 of the Code of Civil Procedure, as it then stood, did not take away the jurisdiction of Clause 15 of the Letters Patent whereas the Allahabad High Court in Bannu Bibi v. Mehdi Husain (1889) 11 All. 375 held to the contrary. The said words were, therefore, added in the 1908 Act to give effect to the Calcutta, Madras and Bombay High Courts' decisions. It was further held: "21. If a right of appeal is provided for under the Act, the limitation thereof must also be provided therein. A right of appeal which is provided under the Letters Patent cannot be said to be restricted. Limitation of a right of appeal in absence of any provision in a statute cannot be readily inferred. It is now well-settled that the appellate jurisdiction of a superior court is not taken as excluded simply because subordinate court exercises i....
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....ent 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. To be noted that here again the Legislature has provided for a specific exclusion. It must be stated that now by virtue of Section 100A no Letters Patent Appeal would be maintainable. However, it is an admitted position that the law which would prevail would be the law at the relevant time. At the relevant time neither Section 100A nor Section 104(2) barred a Letters Patent Appeal. It was furthermore observed: We may notice that when a first appeal or second appeal was disposed of by a Single Judge, a Letters Patent Appeal had been held to be maintainable therefrom only because there existed no bar in relation thereto. Such a bar has now been created by reason of Section 100A of the Code. No appeal would, therefore, be maintainable when there exists a statutory bar. When the Parliament enacts a law it is presumed to know the existence of other statutes. Thus, in a given case, bar created for preferring an ....