Govindaraju
Vs. Mariamman [2005] Insc 84 (4 February 2005)
Ashok
Bhan & A.K. Mathur Bhan, J.
This
appeal by special leave is preferred by the original defendant appellant
herein, against the judgment and decree of the High Court of Madras granting
declaration and permanent injunction to the original plaintiff respondent
herein, with respect to the suit property setting aside the judgment and decree
of the Trial Court as well as of the First Appellate Court wherein aforesaid
relief was denied to the respondent.
Facts:-
Appellant
claims to be the purchaser of suit property from descendants of Muthuswamy Moopanar,
brother of Veeramuthu Moopanar and the respondent claims to be the purchaser of
the same property from descendants of Veeramuthu Moopanar.
Respondent
filed a suit for declaration of title and permanent injunction restraining the
appellant from disturbing his possession and causing any inconvenience in the
peaceful enjoyment of the suit property. In the plaint it was averred that the
suit property belonged to one Veeramuthu Moopanar. He had two daughters viz. Sivamalai
Ammal and Thayarammal. Veeramuthu Moopanar sold his entire property to his two
daughters through a sale deed dated 1.7.1940 for Rs. 300/-. Veeramuthu Moopanar
died and soon after his widowed daughter Sivamalai Ammal also died issueless.
Property of Sivamalai Ammal came to the share of Thayarammal.
Thayarammal
was married to one Sengamalai Moopanar as his second wife. Sengamalai Moopanar
died in the year 1973 and in 1976 Thayarammal also died issueless. Ganapathy Moopanar,
son of the first wife of Sengamalai Moopanar, succeeded to the estate of Thayarammal
by virtue of Section 15(1)(b) of the Hindu Succession Act, 1955 (for short 'the
Act') being heir of her husband. Ganapathy Moopanar sold the property to the
respondent temple on 25.5.1980.
That
appellant was obstructing and interfering in the peaceful enjoyment of the
property by the respondent. It was prayed that the respondent be declared to be
the owner being the vendee from the lawful owner and the appellant be injuncted
from interfering with the possession and peaceful enjoyment of the suit
property by the respondent.
In the
written statement filed by the appellant it was contended that the entire
property belonged to the father of Veeramuthu Moopanar and Muthuswamy Moopanar
and after the death of their father, partition took place between the brothers
in the year 1927 and the suit property fell to the share of Muthuswamy Moopanar.
Veeramuthu Moopanar managed the property and took care of small children of Muthuswamy
Moopanar. To prevent the property from falling into the hands of the creditors
of his deceased brother Muthuswamy Moopanar, Veeramuthu Moopanar executed a
sham and nominal sale deed dated 1.7.1940 in favour of his two daughters. That
the suit property was always in possession and enjoyment of the children of Muthuswamy
Moopanar and the appellant purchased the property from Sornathammal and Nallathambi,
daughter and grandson respectively of Muthuswamy Moopanar on 1.4.1980. That
marriage between Thayarammal and Sengamalai Moopanar was dissolved under custom
by Village Panchayat prior to 1950. That Ganapathy Moopanar was not the son of Sengamalai
Moopanar from his first wife and in turn was not the heir of Sengamalai Moopanar.
That the suit was not maintainable for non-joinder of necessary parties as
well. According to the appellant, he was the owner in possession of the suit
property. That respondent was not entitled to the declaration and injunction
prayed for. The suit being frivolous deserves to be dismissed with costs.
Trial
Court dismissed the suit of the respondent with costs. It was held that both
the parties had failed to adduce satisfactory evidence to prove the title of
their respective vendors to the suit property. That the sale deed executed in favour
of the respondent was not valid and the sale made in favour of the appellant
was also not proved.
That
respondent failed to prove that Ganapathy Moopanar was the son of Sengamalai Moopanar
from his first wife. That Ganapathy Moopanar was neither in possession of the
suit property nor had any title over the same. That no divorce had taken place
between Thayarammal and Sengamalai Moopanar as had been pleaded by the
appellant. That sale deed dated 1.7.1940 executed by Veeramuthu Moopanar in favour
of his daughters was valid. That the suit was barred for non-joinder of
necessary parties.
Being
aggrieved, respondent preferred first appeal. Appellate Court upheld the
judgment and decree of the Trial Court and dismissed the appeal holding that
the respondent was not entitled to the declaration of title and permanent
injunction as prayed for. It was held that the title in the suit property did
not pass to Veeramuthu Moopanar and the sale deed executed by him in favour of
his daughters on 1.7.1940 was sham and nominal. That the marriage between Thayarammal
and Sengamalai Moopanar was dissolved under custom and the respondent had also
failed to prove that Ganapathy Moopanar was the son of Sengamalai Moopanar.
Since Ganapathy Moopanar was not the son of Sengamalai Moopanar, he could not
inherit the estate of Thayarammal as the heir of the husband of Thayarammal
under Section 15(1)(b) of the Act. In view of the findings that Thayarammal
succeeded to the estate of her father by way of inheritance being the daughter
and not as a vendee by way of sale from her father, by virtue of Section 15(2)(a)
of the Act, in the absence of any direct heir, the property of Thayarammal
devolved upon the heirs of her father i.e. the family members of the brother of
her father. The family members of Muthuswamy Moopanar had the title and right
over the suit property and the sale deeds executed by the daughter and grandson
of Muthuswamy Moopanar in favour of the appellant were valid and those executed
by Ganapathy Moopanar in favour of the respondent did not convey any title as
their vendor did not have the title to the property.
Respondent,
being aggrieved, filed Second Appeal No. 595 of 1984 against the judgment and
decree of the First Appellate Court in the High Court. The \High Court while
admitting the appeal formulated the following substantial questions of law said
to be arising in the appeal :-
"1)
Whether the lower appellate court having upheld the sale deed executed by Thayarammal
in favour of a third party in relation to the properties said to have been
obtained by her through her father Veeramuthu Moopanar could held
inconsistently that Thayarammal did not get any property validly from Veeramuthu
Moopanar?
2) If Thayarammal
can be taken to have acquired title to the suit property whether the plaintiff
could be non-suited on the ground that Ganapathy, who sold the property as step
son of Thayarammal should be proved by plaintiff as the legitimate son of Thayarammal's
husband by another wife, when there is no specific allegations made in the
written statement that Ganapathy is the illegitimate son of Sengamalai, husband
of Thayarammal?"
High
Court on reappraising the entire evidence reversed the findings of both the
courts below and decreed the suit of the respondent granting declaration and
permanent injunction as prayed for in the suit. It was held that sale deed
dated 1.7.1940 executed by Veeramuthu Moopanar in favour of his daughters was
not sham and nominal. That no divorce took place between Thayarammal and Sengamalai
Moopanar and Ganapathy Moopanar was the son of Sengamalai Moopanar. That by
virtue of Section 15(1)(b) of the Act Ganapathy Moopanar succeeded to the
estate of Thayarammal and completely excluded the branch of Muthuswamy Moopanar
from inheritance to the estate of Thayarammal. That after the death of Thayarammal,
her step-son Ganapathy Moopanar inherited the property as heir of her husband
and, therefore, had a conveyable title to the suit property. Sale made by him in favour of the respondent was upheld
and the suit decreed.
Counsel
for the appellant strenuously contended that the High Court has committed
jurisdictional error in setting aside the findings of fact recorded by the
courts below on re-appreciation of evidence in the Second Appeal in exercise of
its jurisdiction under Section 100 of the Code of Civil Procedure (hereinafter
referred to as 'the Code'). According to him, the questions of law formulated
by the High Court at the time of admission of the appeal did not arise either
from the pleadings of the parties, evidence led or the findings recorded by the
courts below. That the High Court after referring to the questions of law which
had been formulated at the time of admission failed to determine any one of
them. That the High Court erroneously assumed that once the questions of law
have been framed then it gets the jurisdiction to decide the appeal on re-
appreciation of evidence without determining the questions of law.
Per
contra, counsel for the respondent did not dispute the proposition of law that
the jurisdiction of the High Court under Section 100 of the Code is limited to
the substantial questions of law framed at the time of admission of the appeal
or further substantial questions which the High Court can frame during the
course of hearing of the appeal after recording reasons for the same. He could
not seriously dispute the fact that the questions of law formulated at the time
of admission of the appeal are not substantial questions of law involved in the
case. He submitted that the case be remitted back to the High Court for a fresh
decision leaving it open to the High Court to frame additional substantial
questions of law, if any, arising in the appeal in order to do substantial
justice between the parties.
A
perusal of Section 100 of the Code makes it clear that the High Court cannot
proceed to hear a Second Appeal without formulating the substantial questions
of law involved in the appeal. It reads :-
"100.
Second Appeal
(1)
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.
(2) An
appeal may lie under this section from an appellate decree passed ex-parte.
(3) In
an appeal under this section, the memorandum of appeal shall precisely state
the substantial question of law involved in the appeal.
(4)
Where the High Court is satisfied that a substantial question of law is
involved in any case, it shall formulate that question.
(5)
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:
Provided
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." Section 100 provides that the second appeal
would lie to the High Court from a 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". It further provides that
the memorandum of appeal shall precisely state the substantial question of law
involved in the appeal and the High Court on being satisfied that the
substantial question of law is involved in a case formulate the said question.
Sub-section (5) provides that the "appeal shall be heard on the question
so formulated". It reserves the liberty with the respondent against whom
the appeal was admitted ex-parte and the questions of law had been framed in
his absence to argue that the case did not involve the questions of law framed.
Proviso to sub-section (5) states that the questions of law framed at the time
of admission would not take away or abridge the power of the court to frame any
other substantial question of law which was not formulated earlier, if the
court is satisfied that the case involved such additional questions after
recording reasons for doing so. It is abundantly clear from the analysis of
Section 100 that if the appeal is entertained without framing the substantial
questions of law, then it would be illegal and would amount to failure or
abdication of the duty cast on the court. The existence of substantial
questions of law is the sine qua non for the exercise of jurisdiction under
Section 100 of the Code. { Refer to Kshitish Chandra Purkait v. Santosh Kumar Purkait
& Ors. [(1997) 5 SCC 438], Panchugopal Barua v. Umesh Chandra Goswami
[(1997) 4 SCC 413], Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [(1999) 3
SCC 722] } A three Judge Bench of this Court in Santosh Hazari v. Purushottam Tiwari
(Deceased) By LRs. [(2001) 3 SCC 179] after tracing the history of Section 100,
the purpose which necessitated and persuaded the Law Commission of India to
recommend for amendment of Section 100, concluded that scope of hearing of
Second Appeal by the High Court is circumscribed by the questions formulated by
the High Court at the time of admission of the appeal and the High Court has to
hear the appeal on substantial questions of law involved in the case only. That
the High Court would be at liberty to hear the appeal on any other substantial
question of law, not earlier formulated by it, if the court is satisfied of two
conditions i.e.
(i) the
High Court feels satisfied that the case involves such question, and
(ii) the
High Court records reasons for its such satisfaction."
It was
observed in para 10 as under :-
"At
the very outset we may point out that the memo of second appeal filed by the
plaintiff- appellant before the High Court suffered from a serious infirmity.
Section 100 of the Code, as amended in 1976, restricts the jurisdiction of the
High Court to hear a second appeal only on "substantial question of law
involved in the case". An obligation is cast on the appellant to precisely
state in the memorandum of appeal the substantial question of law involved in
the appeal and which the appellant proposes to urge before the High Court. The
High Court must be satisfied that a substantial question of law is involved in
the case and such question has then to be formulated by the High Court. Such
questions or question may be the one proposed by the appellant or may be any
other question which though not proposed by the appellant yet in the opinion of
the High Court arises as involved in the case and is substantial in nature. At
the hearing of the appeal, the scope of hearing is circumscribed by the
question so formulated by the High Court. The respondent is at liberty to show
that the question formulated by the High Court was not involved in the case. In
spite of a substantial question of law determining the scope of hearing of
second appeal having been formulated by the High Court, its power to hear the
appeal on any other substantial question of law, not earlier formulated by it,
is not taken away subject to the twin conditions being satisfied :
(i) the
High Court feels satisfied that the case involves such question, and
(ii) the
High Court records reasons for its such satisfaction." {Emphasis supplied}
As to which would constitute a substantial question of law, it was observed :-
"A point of law which admits of no two opinions may be a proposition of
law but cannot be a substantial question of law. To be "substantial"
a question of law must be debatable, not previously settled by law of the land
or a binding precedent, and must have a material bearing on the decision of the
case, if answered either way, insofar as the rights of the parties before it
are concerned.
To be
a question of law "involving in the case" there must be first a
foundation for it laid in the pleadings and the question should emerge from the
sustainable findings of fact arrived at by court of facts and it must be
necessary to decide that question of law for a just and proper decision of the
case. An entirely new point raised for the first time before the High Court is
not a question involved in the case unless it goes to the root of the matter.
It will, therefore, depend on the facts and circumstance of each case whether a
question of law is a substantial one and involved in the case, or not; the
paramount overall consideration being the need for striking a judicious balance
between the indispensable obligation to do justice at all stages and impelling
necessity of avoiding prolongation in the life of any lis." {Emphasis
supplied} This judgment has been followed in a number of decisions including
the latest on the point Thiagarajan & Ors. v. Sri Venugopalaswamay B. Koil
& Ors. [(2004) 5 SCC 762].
As per
settled law, the scope of exercise of the jurisdiction by the High Court in
Second Appeal under Section 100 is limited to the substantial questions of law
framed at the time of admission of the appeal or additional substantial
questions of law framed at a later date after recording reasons for the same.
It was observed in Santosh Hazari's case (supra) that a point of law which
admits of no two opinions may be a proposition of law but cannot be a
substantial question of law. To be a 'substantial' question of law must be
debatable, not previously settled by law of the land or a binding precedent and
answer to the same will have a material bearing as to the rights of the parties
before the Court. As to what would be the question of law "involving in
the case", it was observed that to be a question of law 'involving in the
case' there must be first a foundation for it laid in the pleadings and the
question should emerge from the sustainable findings of fact arrived at by the
court of facts and it must be necessary to decide that question of law for a
just and proper decision between the parties.
After
perusal of the findings recorded by the courts below and the High Court, we are
of the opinion that the questions of law framed at the time of admission of the
appeal were not questions of substance arising from the findings record\ed by
the courts of fact. The court of fact recorded the finding that the title in
the suit property did not pass to Veeramuthu Moopanar and the sale deed dated
1.7.1940 executed by him in favour of his two daughters was a nominal and a
sham transaction. The court of fact had also come to the conclusion that there
was a divorce between Thayarammal and Sengamalai Moopanar under custom and the
respondent herein had failed to prove that Ganapathy Moopanar was the son of Sengamalai
Moopanar from his first wife. After recording this finding of fact, the court
of fact held that since Ganapathy Moopanar was not proved to be the son of Sengamalai
Moopanar and that a divorce had taken place between Thayarammal and Sengamalai Moopanar,
Ganapathy Moopanar could not succeed to the estate of Thayarammal being the
heir of her husband under Section 15(1)(b) of the Act. That in the absence of
any direct heir, the property of Thayarammal reverted back to the heirs of her
father i.e. the family members of the brother of her father. The sale effected
by Ganapathy Moopanar in favour of the respondent did not convey any title as Ganapathy
Moopanar was not proved to be the owner of the property.
The
High Court on re-appreciation of evidence recorded a finding to the contrary
and held that the marriage between Thayarammal and Sengamalai Moopanar had not
been dissolved. It further held that Ganapathy Moopanar was the son of Sengamalai
Moopanar from his previous wife. That the sale executed by Veeramuthu Moopanar
dated 1.7.1940 in favour of his two daughters was not a nominal and sham
transaction. That it conveyed a valid title of the suit property to his two
daughters. As the daughters had not inherited the property but purchased the
same from their father, they became the absolute owners of the same. Thayarammal
had inherited the share of her sister after her death.
As Thayarammal
had died issueless and had a step-son Ganapathy Moopanar from her husband, Ganapathy
Moopanar inherited the suit property being the heir of her husband under
Section 15(1)(b) of the Act and succeeded to the estate of Thayarammal. That Ganapathy
Moopanar had a conveyable title in the suit property and the sale made by him
in favour of the respondent was valid and decreed the suit. This was done on re-appreciation
of evidence present on record. Questions of law which had been framed at the
time of admission and were referred and reproduced in the judgment were not
adverted to while deciding the appeal. No finding was recorded on those
questions. After reproducing the questions of law, the learned Single Judge did
not advert to either of them or record findings on them. The learned Single
Judge proceeded to decide the appeal thereafter as if after framing the
questions of law the High Court gets the jurisdiction to re- appreciate the
evidence and come to a conclusion other than the one recorded by the courts of
fact.
As
observed by this Court in Santosh Hazari's case (supra) for the question of law
to be involved in the case, first a foundation for it has to be laid in the
pleadings and the question should emerge from the sustainable findings of facts
arrived at by the court of fact and it must be necessary to decide that
question of law for a just and proper decision of the case. In the present
case, the learned Single Judge proceeded to re-appreciate the evidence and on
re-appreciating the same, set aside the findings referred to above on facts. On
reversal of the findings referred to above on facts, the High Court came to the
conclusion that Ganapathy Moopanar would inherit the property under Section
15(1)(b) being the heir of the husband of Thayarammal and not under Section
15(2)(a) under which property was to revert back to the heirs of her father.
The questions of law which were framed at the time of admission of the appeal
were not decided by the High Court.
Even
if the High Court was of the view that the findings of fact recorded by the
courts below were wrong, in our opinion, these findings of fact could not be
disturbed without coming to the conclusion that the findings recorded were
perverse i.e. based on misreading of evidence or based on no evidence.
The
High Court did not come to such a conclusion.
The
learned Singh Judge also did not come to the conclusion that the appeal
involved other substantial questions of law or formulate the same.
Counsel
for the respondent submitted that the case be remitted back to the High Court
for a fresh decision. We are not inclined to do so as, in our opinion, a
substantial question of law does not arise in the appeal. Counsel for the
respondent could not formulate a question of law which could be said to be
arising in the second appeal.
For
the reasons stated above, this appeal is accepted, the judgment and decree
passed by the High Court is set aside and that of the courts below is restored.
No order as to costs.
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