#ConstitutionBench: Travancore-Cochin HC Act will override S. 98(2) of CPC, SC overrules Hemalatha

One of the Constitution Benches constituted by the new Chief Justice of India, Justice TS Thakur, has recently delivered a judgment. The Supreme Court today held that the Travancore-Cochin High Court Act will override Section 98(2) of the Code of Civil Procedure..The Bench which delivered the judgment comprised of Justices Anil R Dave, Kurian Joseph, Shiva Kirti Singh, AK Goel and Rohinton Fali Nariman. Senior Advocate V Giri appeared for the appellants while Senior Advocate KV Viswanathan represented the respondents..Background.The matter has its origin in a will executed by one Raghavan, a cancer patient who died immediately after executing the will. As per the will, Raghavan did not leave any property or money for his two daughters. The genuineness of the will was called in question by one of the daughters and the trial court held in her favour..In the appeal filed by the wife and sons of the deceased before the High Court, one of the judges in the Division Bench, Justice Sankarasubban, upheld the findings of the trial court and dismissed the appeal. The other judge, justice AK Basheer, examined the matter in detail and concluded that the will is a genuine one and set aside the judgment of the trial court..However, applying Section 98(2) of the CPC, the decree of the trial court was confirmed since the difference of opinion between the two judges was on fact and not law. Hence, the matter was not sent to a third judge. The wife and the sons approached the Supreme Court..The Issue: Section 98(2) of CPC and Hemalatha.As per the S.98(2), if two or more even number of judges hearing an appeal differ on question of law, then the matter can be heard by another judge/s decided as per the majority. However, the matter will not be sent to a third judge if the difference of opinion was on question of fact. In such an event, the judgment rendered by the lower court would be confirmed. Section 98(2) reads as follows:.“Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed:.Provided that where the Bench hearing the appeal is 1[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 first heard it.”.The question of law involved was whether Section 98(2) of the CPC should be applied or the Travancore – Cochin High Court Act, 1925 which had been repealed by the Kerala High Court Act, 1958 can be made applicable. The Travancore-Cochin Act had a provision (Section 23) which squarely covered the scenario when judges differed on questions of fact..However, there were two roadblocks for application of the Travancore Cochin Act. Firstly, the Kerala High Court Act, it was argued, had repealed the Travancore Cochin Act. Secondly, even if the Travancore-Cochin Act was deemed to be applicable with respect to matters not provided by the Kerala High Court Act, Section 98(2) of the CPC would apply due to a 3-judge Bench decision to that effect by the Supreme Court in PV Hemalatha v. Kattamkandi Puthiya Maliackal Saheeda and Anr. .In Hemalatha, a 3-judge Bench had held that even if the Travancore Cochin Act was considered as saved by Section 9 of the Kerala High Court Act, nonetheless Section 98(2) of CPC would prevail since it is a special law as compared to the general law contained in Section 23 of the Travancore -Cochin Act read with Section 9 of the Kerala Act Section 9..“assuming for the sake of argument that provisions of Section 23 of the Travancore – Cochin Act are saved by section 9 of the kerala Act and are applicable to the High Court of new State of Kerala, in our considered opinion since provisions contained in Section 98 of the Code is a Special law as compared to the general law contained in Section 23 of the Travancore -Cochin Act read with Section 9 of the Kerala Act. The ‘Special Law’ will prevail over the general law and the provisions of Section 98 of the Code in all its terms will have to be applied to civil appeals arising from civil suits which are regulated by the Code.”.In Supreme Court: Doubts on the correctness .The case was first heard by a Division Bench of Justicse Markandey Katju and TS Thakur which referred the case to a 3-judge Bench since it doubted the correctness of Hemalatha’s case. The 3-judge Bench of Justices RM Lodha, Kurian Joseph and Rohinton Fali Nariman referred the matter to a Constitution Bench..Pronouncement today.The Court today overruled Hemalatha’s case and held that the provision in Travancore-Cochin Act will override Section 98(2) of the Code of Civil Procedure. [More details awaited].Lawyers.Senior Advocate V Giri appeared for the appellants along with advocates TG Narayanan Nair, Mohammed Sadiq, Svadha Sankar, Jaimon Andrews and Manav Vhora among others. Senior Advocate KV Viswanathan represented the respondents..Interestingly, one of the judges on the Bench, Justice Rohinton Nariman had argued in Hemalatha’s case before the Supreme Court.