Shri Chakraram Samal and anr. Vs. Radhamani Palaka and ors. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that 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. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 3. the suit was filed by the appellants for declaration that they are entitled to the service benefits as well as the amount under the l. however, the court below while finding that the decree of divorce is a valid decree as well as the will executed by late raghunath in favour of the plaintiffs vide ext.m.m. das, j.1. the appellants as plaintiffs filed t.s. no. 32 of 2002 before the civil judge (senior division), rayagada, inter alia, praying for a declaration that the plaintiffs are entitled under the will to receive the service benefits of late raghunath samal, i.e. c.p.f. accumulations, gratuity and other benefits payable by the f.c.i, and the life insurance corporation. the suit has been decreed in part by the learned trial court ordering that the plaintiff-appellants are entitled to the properties bequeathed under the will dated 11.6.2001, ext. 2, except the testator's insurance claim to which the defendant no. 2-smt. sasirekha samal is entitled as nominee. this appeal has been preferred against the part of the suit claimed, which has been dismissed.2. the respondent no. 2-defendant no. 2 is stated to be dead by the learned counsel for the appellants and her name has been deleted from the cause title page of the appeal memo pursuant to the order dated 25.2.2009. a cross appeal was preferred by the said deceased-respondent no. 2. after her death, she having not been substituted by her legal heirs, the said cross appeal has abated.3. the suit was filed by the appellants for declaration that they are entitled to the service benefits as well as the amount under the l.i.c. policy of the deceased raghunath, who was the brother of the plaintiffs. in the said l.i.c. policy, the respondent no. 2, being the wife of the said deceased raghunath, was named as 'nominee'. it was the case of the plaintiffs that the plaintiffs succeeded to the estate of late raghunath by virtue of a will executed by him. the will has been accepted by the court below as genuine, which do not require a probate. it was also the case of the plaintiffs that there was a divorce decree between raghunath and the respondent no. 2 prior to filing of the suit. however, the court below while finding that the decree of divorce is a valid decree as well as the will executed by late raghunath in favour of the plaintiffs vide ext. 3 is a valid and binding document, recorded a finding that the nominee often taken precedence over a successor. admittedly, the appellants are the successors to the interest in the estate of the deceased raghunath. it is a settled position of law that a nominee holds the property of the person concerned in trust on behalf of the true owners and the nominee can have no right over the said property unless he or she is the successor to the said property under law. the supreme court in the case of smt. sarbati devi and anr. v. smt. usha devi : air 1984 sc 346 while considering the question whether a nominee of a life insurance policy under section 39 of the insurance act, 1938 (act no. iv of 1938) on the assured dying intestate, would become entitled to the beneficial interest in the amount received under the policy, to the exclusion of the heirs of the assured, referring to various earlier decisions and analysing section 39 of the insurance act, laid down that a mere nomination made under section 39 of the act does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. the nomination only indicates the hand which is authorized to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. the amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them.4. in the instant case, in view of the finding that there was a divorce decree between the deceased respondent no. 2 and late raghunath, she could not be held to be a successor having interest over the money available under l.i.c. policy of late raghunath. this court, therefore, finds that the court below was in error in holding that the plaintiffs are not entitled to the amount under the l.i.c. policy and dismissing the suit in respect of the said amount. the appeal is, therefore, allowed and the judgment of the trial court is modified to the extent that the suit is decreed in whole and the plaintiffs are also entitled to the amount under the l.i.c. policy of late raghunath along with the other service benefits as already decreed. the respondent no. 6, who was the defendant no. 6 in the court below, shall disburse the amount under the l.i.c. policy of late raghunath to the plaintiffs.