Controller of Estate Duty Vs. Homojit Singh - 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. ashok bhan, j. 1. at the instance of the controller of estate duty, jalandhar (hereinafter referred to as 'the revenue'), the following question of law along with the statement of the case has been referred by the income-tax appellate tribunal, amritsar (hereinafter referred to as 'the tribunal'), for the opinion of this court :' whether, on the facts and in the circumstances of the case, the tribunal is right in law in holding that the jat sikhs in punjab are not governed by customary law but are governed by hindu law and that the deceased constituted a hindu undivided family ?'2. one gurcharan singh died on august 25, 1967. the estate of thedeceased mainly comprised agricultural lands. the accountable person claimed that the lands being ancestral, belonged to the hindu undivided family of the deceased and on his death only a 1/6th share which belonged to the deceased in these lands passed to the accountable person and not the entire lands. the assistant controller of estate duty rejected this contention and held that jat agriculturists are governed by the customary law of punjab and, therefore, the ownership of agricultural land vested in the deceased till his death and the value of the whole of the land will be taken into consideration for determining the estate duty.3. the accountable person went up in appeal to the appellate controller of estate duly. the appellate authority held that hindu law was applicable in the case of jat sikhs and determined that only a 1/6th share in the value of the agricultural lands passed on the death of the deceased which was includible in his estate for estate duty purposes. in accordance with the same, the appellate authority reduced the value of the estate for the estate duty assessment to rs. 41,003 as against rs. 2,05,014 assessed by the assistant controller of estate duty.4. the revenue filed an appeal before the tribunal which was dismissed in view of a full bench decision of this court in pritam singh. v. asst. ced [1976] 105 itr 661 in which it has been held that jat sikhs can constitute a joint hindu family.5. in our opinion, the question referred to us stands concluded by pritam singh's case in that case a similar question as to whether a jat sikh can form a hindu undivided family was under examination. in view of the authoritative decision of this court in pritam singh's case the question referred to us is answered in the affirmative, i.e., against the revenue and in favour of the accountable person. no costs.