K. Ramaswamy, J.— This appeal by special leave arises from the judgment of the Division Bench dated 16-5-1977 in RSA No. 117 of 1971 of Punjab and Haryana High Court. The appellant is the first defendant. Kirpal Singh, first respondent, laid the suit for possession of agricultural lands, buildings and moveable properties from the appellant and another with certain declarations. Kirpal Singh is a stepbrother of one Kartar Singh, husband of Harbant Kaur. She succeeded to a limited widow estate in the year 1922 on her husband's demise and she executed a will Ex. D-1 dated 12-8-1967 in favour of the appellant, daughter of Harbant Kaur's sister to an extent of 36 acres etc. The trial court decreed the suit holding that the will was not proved to have been validly executed and in consequence the respondent/plaintiff became entitled to the estate of Kirpal Singh. On appeal, the Sub-Judge, Ist Class, Rajpura in his decree and judgment dated 21-1-1971 confirmed the same agreeing that the will has not been proved. When the appeal was posted before the Division Bench, one learned Judge held that the will has not been proved while another learned Judge held it to have been proved. Since no majority opinion of Division Bench on proof of the will emerged decree of the court below was confirmed. Thus this appeal by special leave.
2. It is vehemently contended for the appellant and the second respondent that the learned Judge who held that the will was not proved had not taken relevant factors into consideration, while the other learned Judge had gone in greater detail of the circumstances in which the will came to be validly executed and proved, the onus of proof of will in that behalf has been discharged. The disputed question should have been referred to a third Judge for his opinion. In any case, the bar engrafted in sub-section (2) of Section 98 CPC applies only to the Division Bench of the High Court which heard the appeal; and its constraint is inapplicable when this Court hears the appeal under Article 136. This Court should examine in detail whether the finding of non-proof of the will is vitiated by errors of law. The power of this Court is very wide to independently reappreciate the evidence and come to its conclusion. In that behalf he placed strong reliance in Prem Chand Tandon (Dr) v. Krishna Chand Kapoor (1973) 2 SCC 366.
3. The question, therefore, is whether the finding of the court below that the will has not been proved is a finding of fact? If so, whether in the absence of majority opinion of the Division Bench, the confirmation of the decree of civil court is valid in law? Thirdly, whether this Court can examine the case on merits to find whether the will is validly proved, in which event would sub-section (2) of Section 98 be not rendered otiose or ineffective?
4. It is fairly agreed across the bar that one learned Judge of the Bench recorded a finding that will has not been proved and another learned Judge recorded contra finding, namely, the will has been proved. The grounds on which the conclusion is reached are not material for the purpose of deciding the controversy in this appeal. It is not controverted across the bar that the question whether a will is proved or not proved is a question of fact. In the absence of majority opinion in that behalf, sub-section (2) of Section 98 mandates that the decree of the court below should be confirmed. Whether this Court could enlarge this scope and independently examine the merits to come to a conclusion either agreeing or disagreeing with either of the learned Judges who constituted the Division Bench? In that behalf it is necessary to look into the language of Section 98 of CPC. Section 98(1) adumbrates that where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of such Judges. Sub-section (2) seems to design a situation where no majority opinion agreeing with the judgment of the trial court emerges. It says that:
“Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed.”
Proviso to sub-section (2) reads:
“… where the Bench hearing the appeal is composed of two or other even number of Judges belonging to a Court consisting of more Judges than those constituting the Bench, and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal, including those who have first heard it.”
5. Sub-section (3) provides that nothing in this section shall be deemed to alter or otherwise affect any provision of the letters patent of any High Court.
6. In other words, the difference of opinion between Judges, who constitute the Bench hearing the appeal, on a point of law alone would be referred to a third or other Judges according to the rules of that High Court. By implication, on question of fact, when there is no majority opinion varying or reversing the decree appealed from, such decree should be confirmed.
7. In Mulla's Code of Civil Procedure, 14th Edn., Vol. I at p. 587, it is stated thus:
“No reference can be made under this section if the Judges differ on a question of fact. The power to refer can only be exercised if there is a difference of opinion on a point of law.”
In Rajagopala Naidu v. Subbammal AIR 1928 Mad 180, in a suit for accounts, the Judges partly differed and partly agreed; and question arose as to what extent the decree of the court below stands confirmed or reversed. The Bench held that where an appeal is heard by two Judges and both agreed upon reversing the decree appealed from only as to one portion but differed as to the rest, the decree will be reversed as to the portion with respect to which the Judges have agreed on reversal, and will be confirmed as to the rest, namely, with respect to which they have differed. The same view was expressed by a Division Bench of the Allahabad High Court in Harakh Narain Singh v. Babban AIR 1933 All 473, 1933 All LJ 1425. Therein, in a suit based on mortgage its validity and binding nature was assailed by a member of the coparcenary. A learned Judge held that a large part, namely, that a sum of Rs 2000 was not supported by valid consideration and the rest was. Another learned Judge upheld the decree of the trial court except as regards Rs 340 of the principal amount. It was held that the decree to the extent of concurrence stands confirmed and the rest is not a decree of the High Court within the meaning of Sections 2(2) and 2(9) of CPC. It was held that where the Judges composing a Bench do not agree in confirming the adjudication made by the lower court in respect of one item such decree or adjudication relating to that item shall be confirmed. At the same time if they agree in reversing the decree or adjudication by the lower court, as regards another item in dispute, the decree in respect of such item shall be varied. In Baboo Ram v. Ishrat Ali AIR 1975 All 180 the second appeal under Section 100 CPC arose from the suit for ejectment and the trial court, accepting the plea of the tenant, dismissed the suit finding that the tenant did not commit default in the payment of rent. On first appeal, it was reversed holding otherwise. In the second appeal, there was difference of opinion between the Judges constituting the Bench. It was held that by operation of sub-section (2) of Section 98, the finding in respect of which there was a difference of opinion, would stand confirmed, and the opinion of the third Judge on the legal point was severable from his opinion on the finding of fact, which became conclusive by the application of Section 98(2) irrespective of the opinion recorded by the third Judge.
8. The ratio in Jayanti Devi v. Chand Mal Agrawal 1984 BBCJ 561 which has been referred by Shri Bagga, is inapplicable to the point in issue. Therein, because of what has been provided in sub-section (3) of Section 98 CPC, the letter patent power was taken aid of and it was held that the letter patent court was not confined to the hearing of the appeal by the third Judge on the question of law only, on which the Judges hearing the appeal had differed. Such a difference of opinion could be on a question of fact as well. It could, thus, be seen that the reference there was under the letters patent which power has been expressly preserved by sub-section (3) of Section 98. But in the case at hand, the letters patent power was not available and therefore, by operation of sub-section (2) of Section 98, the decree of the court below stands affirmed.
9. The question then is whether this Court could nullify the scheme of Section 98(2) by examining the dispute on merits and by implication render sub-section (2) surplusage or otiose. In our considered view the contention of the appellant cannot be accepted. It is true that in a case where there is difference of opinion among the Judges of the High Court, the power of this Court under Article 136 is wide enough to test the correctness of the conclusion reached by the differing learned Judges as pointed out by this Court in Dr Prem Chand Tandon case (1973) 2 SCC 366. This proposition is unexceptionable but this Court had no occasion in that case to consider the scope of sub-section (2) of Section 98. The language employed in sub-section (2) is imperative and in mandatory terms. The object appears to be that on a question of fact when there is a difference of opinion, the view expressed by the court below, in the absence of a majority opinion, needs to be given primacy and confirmed. When such is the animation, this Court cannot enlarge the scope of the controversy by itself examining the correctness of the finding of fact and decide which view of the two is correct. This would be in direct negation of the legislative mandate expressed in sub-section (2) of Section 98 of the CPC.
10. When leave was granted, it was to examine the correctness of the legal position; and not to examine the controversy on merits. While exercising power under Article 136, we may not do anything which would violate legislative mandate. In that view, we decline to interfere.
11. The appeal is accordingly dismissed but in the circumstances parties are directed to bear their own costs throughout.