Manicka
Poosali & Others Vs. Anjalai Ammal & Another [2005] Insc 188 (17 March 2005)
Ashok
Bhan & A.K. Mathur Bhan, J.
This
appeal by grant of leave has been filed by the original defendants-the
appellants herein, against the judgment and decree of the High Court at Madras
granting preliminary decree of partition and separate possession to
plaintiffs-the respondents herein, with respect to certain suit properties
setting aside the judgment and decree of Trial Court as well as that of Lower
Appellate Court, wherein aforesaid decree with respect to same properties had
been denied to respondents.
Facts
necessary for the disposal of this appeal are as follows:
One Thandavaraya
Poosali had three sons Mottaya Poosali, Ayyasamy Poosali and Ammasi Poosali. In
the present case, the dispute is between the children of Mottaya Poosali over
the division of property inherited by them. Mottaya Poosali had two sons Manicka
Poosali, Sadaya Poosali and a dauthter, Ellammal. Sadaya Poosali died on
9.5.1962 leaving behind his widow and daughter respondent nos.1 and 2
respectively. Appellants are Manicka Poosali, appellant No.1(since deceased and
now represented through his LRs., his wife Mahalakshmi, appellant No.3 and Ellammal,
his sister and appellant No.2 herein. They would be referred to as the
'appellants' herein.
Through
a registered partition deed dated 19.07.1970 between Mottaya Poosali and his
brothers, Plaint A Schedule item Nos.11 to 21 and 28 were allotted to Mottaya Poosali
out of their joint family properties. Mottaya Poosali executed a settlement
deed dated 22.03.1977 in favour of Manicka Poosali conveying his share in
Plaint A Schedule item nos.11 to 14, 17 to 20 and 28 allotted to him in
partition dated 19.07.1970. Further Mottaya Poosali executed a registered will
dated 23.03.1977 bequeathing his share in Plaint A Schedule item nos.15, 16 and
his self acquired properties item nos. 22 to 26 and 29 in favour of Manicka Poosali.
Mottaya Poosali died on 01.11.1978.
In
1980, respondents instituted original suit no.806/1980 against appellants for
partition and separate possession of their share in respect of whole Plaint A
and B Schedule items.
In the
plaint, it was averred that Plaint A Schedule item nos.1 to 9 were joint family
properties of Mottaya Poosali and Plaint A Schedule item nos.10 to 29 were
allotted to Mottaya Poosali in partition dated 19.07.1970 and after his death
they are entitled to a share in those properties.
It was
further averred that settlement deed dated 22.03.1977 executed by Mottaya Poosali
in favour of Manicka Poosali is valid only to extent of 1/3 share of Mottaya Poosali
and will dated 23.03.1977 executed by Mottaya Poosali in favour of Manicka Poosali
is not valid and at best could be valid with respect to 1/3 share of Mottaya Poosali
since the said properties were joint family properties. Respondents prayed for
a decree of partition and separate possession of 4/9 share in Plaint A Schedule
item nos.1 to 14, 17 to 21 and 27 to 29 and Plaint B Schedule items and to an
extent of 1/3 share in Plaint A Schedule item nos.15, 16, 22 to 26 and 29 alongwith
future income and costs of suit.
In the
written statement, filed by appellant no.1 and adopted by appellant no.3, wife
of appellant no. 1, it was averred that all the properties included in Plaint A
and B Schedules were not joint family properties and respondents are entitled
to claim a share only with respect to Plaint A Schedule item nos.11 to 21 and
28 which were allotted to Mottaya Poosali under partition deed dated 19.07.1970
and respondents are in joint possession with respect to these properties only.
That
Plaint A Schedule item nos.1 to 9 were self acquired properties of appellant
no.1 and 3 purchased out of their own funds prior to 1970 and not out of joint
family funds. The same were not a part of larger Joint Hindu Family properties
and for this reason they were not included in partition dated 19.07.1970. That
Plaint A Schedule item nos.22 to 26 and 29 were the self acquired properties of
Mottaya Poosali purchased prior to 1970 out of his separate funds earned by
purchasing the produce of tamarind trees on highway roads and selling them in
the open market. These items were also not included in the partition dated
19.07.1970.
That
settlement deed dated 22.03.1977 and registered will dated 23.03.1977 executed
by Mottaya Poosali in favour of appellant no.1 are true and valid, executed by Mottaya
Poosali in sound disposing mind on his own after understanding the contents of
the same. That respondents cannot claim any share in Plaint B Schedule items
and Plaint A Schedule item nos. 10 and 27 are not owned by family now and were
wrongly claimed in Plaint.
Trial
Court on appraisal of evidence partly decreed the suit of respondents. Trial
Court held that Plaint A Schedule item nos. 1 to 9 were self acquired
properties of appellant nos.1 and 3 and Plaint A Schedule item nos. 22 to 26
& 29 were self acquired properties of Mottaya Poosali. That settlement deed
dated 22.03.1977 and will dated 23.03.1977 executed by Mottaya Poosali in favour
of Manicka Poosali were valid and genuine and respondents are not entitled to
any share in properties included in both the deeds. That respondents were
entitled to preliminary decree for partition and separate possession of 7/27
share only in Plaint A Schedule i\tem nos.11 to 21 and 28 which were allotted
to Mottaya Poosali vide partition dated 19.07.1970 and also to the extent of
7/27 share in Plaint B Schedule items.
Being
aggrieved, respondents preferred Appeal Suit no. 162/1983, wherein issue as to
the right of respondents to claim share in Plaint A Schedule i\tem nos. 1 to 9,
18, 22 to 26 and 29 was raised.
Appellate
Court partly allowed the appeal of respondents upholding the findings of Trial
Court with respect to all properties, except Plaint A Schedule i\tem no 10.
Plaint A Schedule i\tem no. 10 was also found by Appellate Court to be forming
part of the joint family property of Mottaya Poosali along with Plaint A
Schedule i\tem nos. 11 to 21 and 28 allotted to him vide partition dated
19.07.1970.
Appellate
Court observed that Plaint A Schedule i\tem nos. 1 to 9 were self acquired
properties of appellant nos. 1 and 3 and Plaint A Schedule i\tem nos. 22 to 26
and 29 were self acquired properties of Mottaya Poosali and settlement deed
dated 22.03.1977 and will dated 23.03.1977 executed by Mottaya Poosali in favour
of Manicka Poosali were valid. Further it was observed that though respondents
were entitled to
Respondents
preferred Second Appeal no. 1017/1985 against judgment and decree of Appellate
Court. High Court, while admitting the appeal, framed following substantial
question of law:
Whether
the lower appellate Court was right in holding that the appellants are not
entitled to any share in items 1 to 9, 22 to 26 and 29 of the plaint
"A" schedule properties on the footing that they were not joint
family properties available for partition? High Court partly allowed the second
appeal filed by respondents with costs. High Court granted preliminary decree
of partition to respondents to the extent of 4/9 share with respect to Plaint A
Schedule i\tem nos. 10 to 29. It was held that Plaint A Schedule i\tem nos. 22
to 26 and 29 were purchased by Mottaya Poosali out of joint family nucleus and
thus were not his self acquired properties. That the settlement deed dated
22.03.1977 was void in law as the items mentioned therein formed coparcenary
property and no coparcener, like Mottaya Poosali, could dispose of his
undivided interest by way of gift. It was also held that Plaint A Schedule i\tem
nos. 1 to 9 were self acquired properties of appellants 1 and 3 and thus not
amenable to partition. High Court though found the will dated 23.03.1977 to be
duly executed and proved but observed that the same was not genuine and valid
as it was surrounded by numerous suspicious circumstances and appellants failed
to wipe off the clouds of suspicion, surrounding the will.
Being
aggrieved by the findings of High Court with respect to settlement deed, will
and Plaint A Schedule i\tem nos. 22 to 26 and 29, this appeal has been preferred
by original defendants.
Learned
Counsel for appellants has put forth his two fold contentions before us in the
following terms:
1)
High Court has exceeded its jurisdiction while sitting as Second Appellate
Court by reversing the concurrent finding of fact recorded by both the Courts
below after reappraising the entire evidence and holding that Plaint A Schedule
i\tem nos. 22 to 26 and 29 were not the self acquired properties of Mottaya Poosali
and were purchased by him out of joint family nucleus.
2)
High Court has gone beyond the mandate of S. 100 Civil Procedure Code, 1908 by
needlessly addressing the questions of genuineness and validity of settlement
deed and will of Mottaya Poosali despite the fact that no substantial question
of law, with respect to same, was framed either at the time of admission or at
the time of hearing of the Second Appeal.
Section
100 of the Code of Civil Procedure provides that the second appeal would lie to
the High Court from a decree passed in an appeal by any court subordinate to
the High Court, if the High Court is satisfied that the case "involves a
substantial question of law". Bare 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 question of law involved in the appeal.
Section 100 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." Clause 3 of Section 100 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 question of law was framed in his
absence to argue that the case did not involve the question of law so framed.
Proviso to sub-section (5) states that the question of law framed at the time
of admission would not take away or abridge the power of High 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. A reading of Section 100 makes it abundantly
clear that if the appeal is entertained without framing the substantial
question of law, then it would be illegal and would amount to failure or
abdication of the duty cast on the court. In a number of judgments it has been
held by this Court that the existence of the substantial question of law is the
sine qua non for the exercise of jurisdiction under Section 100 of the Code of
Civil Procedure. { 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], Santosh Hazari v. Purushottam Tiwari (Deceased) By LRs. [(2001) 3 SCC
179], Thiagarajan & Ors. v. Sri Venugopalaswamay B. Koil & Ors. [(2004)
5 SCC 762]}.
In Santosh
Hazari's case (supra) a three Judge Bench of this court after examining the
provision of Section 100 exhaustively has concluded that the scope of hearing
of the second appeal by the High Court is circumscribed by the questions
formulated by the High Court at the time of the admission of the appeal and
that the High Court has to hear the appeal on the substantial questions of law
so framed. 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.
This
judgment was followed by this Court in Mariamman, (2005) 2 SCC 500] decided on 4th February, 2005. In Govindaraju's case (supra) it
has been held that the High Court while exercising its powers under Section 100
of the Code of Civil Procedure on re-appreciation of the evidence cannot set
aside the findings of the fact recorded by the first appellate court unless the
High Court comes to the conclusion that the findings recorded by the first
appellate court were perverse i.e. based on misreading of evidence or based on
no evidence.
Coming
to the facts of the present case, we find that the two courts on appreciation
of the entire evidence came to the conclusion that the Plaint A Schedule
properties at item nos.22 to 26 and 29 were self acquired properties of Mottaya
Poosali and were not purchased with the funds of the Joint Hindu Family. The
High Court, on re- appreciation of evidence has held that these properties were
not the self acquired properties of Mottaya Poosali and were purchased with the
funds of the Joint Hindu Family. Apart from the fact that the High Court on
re-appreciation of evidence could not set aside the findings recorded by the
courts below on facts, the fact that these properties were the self acquired
properties is demonstrated by the fact that the properties at item nos.22 to 26
and 29 were purchased by Mottaya Poosali between 29th April, 1953 to 19th
January, 1956. Item nos.23 & 24 were purchased vide sale deed (Ex.B-12)
dated 04.06.1952, item no.22 was purchased vide sale deed (Ex.B-13) dated
29.4.1953, item no.26 was purchased vide sale deed (Ex.B-14) dated 20.01.1955
and item nos. 25 & 29 were purchased vide sale deed (Ex.B-15) dated 19.01.1956.
During this period Mottaya Poosali was a member of the Joint Hindu Family
consisting of himself and his two brothers Ayyaswamy Poosali and Ammasi Poosali.
The partition between Mottaya Poosali, Ayyaswamy Poosali and Ammasi Poosali
took place in the year 1970. Had these properties been purchased with the funds
of the Hindu Joint Family property, then the same would have formed part of the
Joint Hindu Family consisting of Mottaya Poosali, Ayyaswamy Poosali and Ammasi Poosali.
In the registered partition deed dated 19th July, 1970 between Mottaya Poosali,
Ayyaswamy Poosali and Ammasi Poosali these properties were treated to be the
self acquired properties of Mottaya Poosali and were not subjected to the
partition. Mottaya Poosali in partition was allotted properties item nos.11 to
21 and 28 only.
This
clearly demonstrates that the properties item nos.22 to 26 and 29 were the self
acquired properties of Mottaya Poosali and were treated by him as such
throughout. Being the self acquired property, Mottaya Poosali had the absolute
right to dispose them of in any manner he liked i.e. by way of sale, gift or
will. The findings recorded by the High Court that these properties were
acquired with the funds of Joint Hindu Family is factually incorrect and the
finding recorded by the courts below on facts were correct and the High Court
has clearly erred in reversing the same. The counsel for the appellants is
right in his submission that the High Court has overstepped in the exercise of
its jurisdiction in reversing the concurrent findings of fact recorded by the
courts below in a second appeal filed under Section 100 CPC.
Coming
to the second point raised by the counsel for the appellants, it may be stated
that the trial court as well as the first appellate court on appreciation of
oral and documentary evidence rendered a finding that the settlement deed dated
22.03.1977 and the will dated 23.03.1973 were genuine and had been duly
executed. The respondents either in their pleadings or in their evidence or in
the memorandum of grounds of second appeal did not question the genuineness or
due execution of the settlement deed and the will. No substantial question of
law was framed at the time of admission of the appeal or at a subsequent stage
regarding the due execution and the validity of the settlement deed and the
will. The High Court could not go into the questions which had not been raised
by the respondents either in their pleadings or in the evidence or in the
memorandum of grounds of second appeal. Jurisdiction of the High Court under
Section 100 CPC is limited to a substantial question of law framed at the time
of admission of the appeal or at a subsequent stage if the High Court is
satisfied that such a question of law arises from the facts found by the courts
below. The High Court could not go into the question regarding the due
execution and the validity of the settlement deed or the genuineness of the
will which had not been challenged by the respondents either in their pleadings
or in their evidence or in the memorandum of grounds of second appeal. As has
been pointed out earlier in Clause 3 of Section 100 the person preferring the
second appeal is required to precisely state the substantial question of law
involved in the case and the High Court being satisfied that a substantial
question of law is involved in the case shall formulate the said question. The
appeal can be heard on the questions so formulated or on any additional
question of law which may be framed later on if the Court is satisfied that the
case involves such question. The only question of law framed in this appeal
was, as to whether the properties at item nos.1 to 9, 22 to 26 and 29 of the
Plaint A Schedule properties were Joint Hindu Family properties available for
partition or not. The High Court could hear the appeal on the question of law
formulated and not on any other point without framing additional substantial
question of law which it did not do.
Since
there was no substantial question of law framed either at the time of the
admission or later regarding the validity and genuineness of the settlement
deed and the will the High Court did not have the jurisdiction to set aside the
findings recorded by the courts below regarding the validity or the genuineness
of the will executed by Mottaya Poosali. The findings recorded by the High
Court regarding the validity and genuineness of the will are thus vitiated and
cannot be sustained.
For
the reasons stated above, this appeal is allowed and the judgment under appeal
is set aside and that of the first appellate court is restored.
There
shall be no order as to costs.
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