& Anr Vs. Muthamma  Insc 222 (17 April 2001)
Mohapatra & Brijesh Kumar Brijesh Kumar, J.
appeal arises out of a judgment and order passed by the Madras High Court,
dated January 30, 1992 in Second Appeal NO. 291/1982. A
suit filed by the Predecessor-in-Interest of the present appellants, claiming
one- half share in the property in question, was dismissed by the Trial Court
but in First Appeal the order of the Trial Court was set aside and a
preliminary decree for redemption of the property, as prayed for, was passed
and the plaintiff was held to be entitled for the relief claimed. Aggrieved by
that order the respondent preferred the Second Appeal in the High Court which has
been allowed and the said order has been impugned in the present appeal.
main question which has been raised in the present appeal is whether the High
Court was justified in interfering with the findings of fact recorded by the
First Appellate Court, by re-appraising the evidence in violation of provisions
contained in Section 100 CPC. A perusal of the judgment passed by the High
Court also shows that the Court had not framed any substantial question of law
while entertaining and deciding the Second Appeal.
brief facts are that one Anthony Ummini owned certain properties and created
two mortgages in respect thereof on June 20, 1948. The mortgage was in favour of one Ananthan.
Anthony died later as a bachelor. His another brother Ponnu who pre-deceased
him, was also as a bachelor.
two sisters namely, Muthamma and Kannamma. Muthamma paid the mortgage money on
14.3.1960 and obtained a document of release of the property from Ananthan. In
the year 1978, a suit was filed by Kannamma impleading Muthamma as defendant
with a prayer for redemption of plaint schedule properties, basing her claim on
the facts that on the death of Anthony Ummini her brother, the two sisters
namely, the plaintiff and the defendant would inherit his property. At the time
of his death Anthony Ummini had none of his parents living nor any other
brothers or sisters except the plaintiff and the defendant.
paragraph 5 of the plaint, it is averred that plaintiff and the defendant are
sisters and that the plaintiff is entitled to one-half of the property, whereas
defendant is entitled to the other half. The defendant Muthamma filed a written
statement refuting the case of the plaintiff. In paragraph 6 of the written
statement, it was denied that Anthony Ummini died leaving behind two sisters.
averred that he left behind only one sister namely, the defendant in the suit.
It is also specifically averred that plaintiff is not the sister of Anthony Ummini.
She is also said not to be the daughter of Anpudayan Anthony. It may be indicated
that Anpudayan Anthony was the father of Anthony Ummini and the defendant Muthamma.
averments made in paragraph 5 of the plaint have been denied. It is to be
noticed that in the plaint the plaintiff has described the title of the case as
Kannamma , the daughter of Valliamma and defendant has also to be described as Muthamma
daughter of Valliamma. Fathers name has not been given. In the written
statement, it has not been denied that the plaintiff and the defendant both are
daughters of Valliamma. The case, however, is that the plaintiff Kannamma was
daughter of Valliamma from her previous husband and not out of the wedlock
between Anpudayan Anthony and Valliamma. The Trial Court as indicated earlier
dismissed the suit recording a finding that the plaintiff was one of the
daughters of Valliamma but the plaintiff and the defendant are not sisters born
to the same father. According to defendant, she and Anthony Ummini are from the
same father viz. Anpudayan Anthony.
also to be noticed here that under the Hindu Succession Act, sisters fall in
Class II heirs but a note appended to the provision clarifies that sisters do
not include uterine sisters. That is to say, according to the said provision an
uterine sister will not be an heir of such brothers property. In appeal, the
judgment of the Trial Court was set aside and the suit was decreed.
First Appellate Court has referred to a number of documents for arriving at the
findings as recorded by it.
the reasons indicated in the order passed by the First appellate Court is that
it was not specifically pleaded that the plaintiff was daughter of first
husband of Valliamma nor name of the first husband of Valliamma was given by
the defendant. The First Appellate Court also observed strong and mature
evidence has to be adduced to reject the case of the plaintiff that she is
daughter of Anthony. It is also observed that the plaintiff was not asked to
meet the case that she was the daughter of first husband of Valliamma. We, as a
matter of fact, may point out that the plaint does not indicate anywhere that plaintiffs
case was that she is daughter of Anpudayan Anthony. She has described herself
as daughter of Valliamma. She does not give fathers name.The High Court in
Second Appeal set aside the order passed by the First Appellate Court and also
referred to the documents exhibited in the case. The Second Appellate Court
observed that the burden was on the plaintiff to establish that she is the
daughter of Valliamma and Anpudayan Anthony. It is also observed that the First
Appellate Court had wrongly thrown the burden of proof upon the defendant in
respect to the facts indicated above. Yet another observation to be found is
that the First Appellate Court totally misled itself in not appreciating the facts
in proper perspective. It is also found that at several places in the judgment
rendered by the First Appellate Court, the facts stated therein are different
from what is contained in the respective documents. With the above findings,
the order of the First Appellate Court was reversed.
attention has been rightly drawn by the learned counsel for the parties that
Second Appeal under Section 100 CPC lies to the High Court if the Court is
satisfied that the case involves a substantial question of law. It would be
appropriate to reproduce Section 100 CPC which reads as under:
Save as otherwise expressly provided in the body of this Code or by any other
law for the time being in force, an appeal shall lie to the High Court from every
decree passed in appeal by any Court subordinate to the High Court, if the High
Court is satisfied that the case involves a substantial question of law.
appeal may lie under this section from an appellate decree passed ex parte.
an appeal under this section the memorandum of appeal shall precisely state the
substantial question of law involving in the appeal.
Where the High Court is satisfied that a substantial question of law is
involved in any case, it shall formulate that question.
The appeal shall be heard on the question so formulated and the respondent
shall at the hearing of the appeal, be allowed to argue that the case does not
involve such question.
that nothing in this sub-section shall be deemed to take away or abridge the
power of the Court to hear, for reasons to be recorded, the appeal on any other
substantial question of law, not formulated by it, if it is satisfied that the
case involves such question.
to the above provision, the substantial questions of law as may be involved in
the appeal are to be precisely stated in the memorandum of appeal itself. If
the High Court feels satisfied about existence of substantial question of law,
it is for the High Court to formulate that question and the appeal is generally
to be heard on the questions so formulated.
been observed by this Court in several decisions that the High Court must
conform to the requirements laid down in sub-section 4 of Section 100 CPC.
Formulation of such questions of law gives proper direction in which arguments
have to be advanced by the parties. The facts and the questions of law are also
appreciated in correct perspective . Such provisions as made under sub-sections
3 and 4 of Section 100 CPC are meant to be acted upon and complied with. It
appears that the High Court did not advert to the said requirement of law and
without addressing itself to that aspect of the matter heard the appeal and
disposed of the same.
decisions on the point may be referred to, namely, 1999 (6) SCC 35). It has
been held that it is mandatory to formulate a substantial question of law while
entertaining the appeal in absence of which the judgment is to be set aside.
The Court relied upon a decision of this Court in 723), it has been held that
High Court cannot proceed to hear a second appeal without formulating the
substantial question of law.
submitted that prima facie some question of law should be involved in the case
, then alone the case need be remanded to the High Court to consider that aspect
of the matter. A case where no such question arises at all, it would not serve
any purpose to remand the case. In connection with this submission, the
findings as recorded in the Second Appeal, may be seen. It has been found that
burden of proof was wrongly shifted on certain questions by the First Appellate
Court. Yet another finding which has been recorded is that documents relied
upon by the First Appellate Court actually do not contain, what has been
indicated in the judgment of the First Appellate Court. It may perhaps then
amount to mis- reading of the documents or wrong interpretation of the
documents. We have also noticed that in the plaint the plaintiff has described
herself and the defendant only as daughters of Vallliamma. Fathers name in respect
of none has been disclosed. It has also been averred that the plaintiff and the
defendant are sisters of Anthony Ummini. Disclosure of the name of the father
may perhaps be more relevant and of special importance while property of the
deceased brother is claimed by a sister since the expression sister does not
mean an `uterine sister as provided under the note to the schedule of
inheritance in the Hindu Succession Act. An averment of a general description,
`sister may perhaps fall short of entitlement to inherit the property of the
deceased brother as all categories of sisters would not be heir to the brothers
property. This seems to be an important aspect of the matter which emerges
regarding the framing of the pleadings, fulfillment of requirements to be heir
to the property of the deceased brother and as to who has to prove these facts.
Perhaps, these are the matters which are to be considered by the High Court to
come to a conclusion as to whether any substantial question of law is involved
or not in the Second Appeal and a decision to that effect has to be taken by
the court concerned namely, the High Court. In the present case, we find that
the High Court has not only made any effort to find out whether any substantial
question of law is involved or not, it has also totally failed to address
itself to that aspect of the matter in utter dis-regard of the provisions
contained under sub-section 4 of Section 100 CPC which has been held to be
mandatory in nature. In such facts and circumstances of the case, it would be a
fit case for remand to the High Court to consider this aspect of the matter and
to find out itself if any substantial question of law is involved or not. In
case, such a question or questions arise, the same should be formulated and the
appeal be heard thereafter in accordance with law.
would however particularly take care to observe that none of the observations
made by us in this order would prejudice the case of the parties while being
heard by the High Court after remand. The High Court may take any view of the
matter on its merit.
result, the appeal is allowed, the judgment and order passed by the High Court
in Second Appeal is set aside and the case is remanded back to the High Court
to consider the same in the light of the observations made above. Since the
matter is pending for long, it is requested that the High Court may dispose of
the case expeditiously as far as possible within six months of receipt of the
record from this Court.
facts and circumstances of the case, there would however be no order as to