Kaur & Ors Vs. Kaki & Ors  Insc 214 (18 April 2006)
Pal & Dalveer Bhandari
out of SLP (C) No. 20797 of 2003] Dalveer Bhandari, J.
must administer law according to the provisions of law. It is the bounden duty
of judges to discern legislative intention in the process of adjudication.
Justice administered according to individual's whim, desire, inclination and
notion of justice would lead to confusion, disorder and chaos.
and frequent interference under Section 100 C.P.C. in cases which are totally
devoid of any substantial question of law is not only against the legislative
intention but is also the main cause of huge pendency of second appeals in the
High Courts leading to colossal delay in the administration of justice in civil
cases in our country.
declaration of law in numerous judgments, it is evident that the scope and
ambit of Section 100 C.P.C. has not been properly appreciated and applied in a
large number of cases. We are, once again making a serious endeavour to discern
legislative intention, ambit and scope of interference under Section 100
C.P.C.. We plan to carry out this exercise by critically examining important
judgments decided before and after 1976 amendment in the Section 100 C.P.C..
This effort is made with the hope that in future the High Courts would decide
according to the scope of Section 100 C.P.C. and this Court may not be
compelled to interfere with the judgments delivered under Section 100 C.P.C..
factual background This appeal is directed against the judgment of the Punjab
& Haryana High Court dated 1.8.2003 passed in Civil Regular Second Appeal
885 of 1983. By this judgment the High Court has set aside the concurrent
findings of facts of the Courts below. The High Court consequently cancelled
the mutation of the property belonging to the deceased Chanan Singh in favour
of his wife Bhagwan Kaur and directed that the property be mutated in favour of
the heirs of the deceased Chanan Singh in accordance with the Hindu Succession
Act, 1956. This Court on 3.11.2003, while issuing notice on the Special Leave
Petition, directed the status-quo be maintained in the meantime. Now this
appeal has been placed before us for final adjudication.
facts, which are necessary to dispose of this appeal, are recapitulated as
case relates to the validity of the Will of the deceased, Chanan Singh. The
relationship between the parties is as follows. The deceased Chanan Singh, s/o Hira
Singh died on 6.2.1969. He had two wives. The first wife was Sham Kaur, who
died before Chanan Singh and the second wife was Bhagwan Kaur. From the first
wife Sham Kaur he had two daughters Kaki and Har Kaur. Har Kaur also died on
29.9.1984. Kaki and Har Kaur are the plaintiffs in the Civil Suit filed before
the Subordinate Judge, 1st Class, Barnala Bhagwan Kaur also had three daughters
- Dalip Kaur, Gurdev Kaur and Mukhtiar Kaur. Chanan Singh deceased did not have
a son either from Bhagwan Kaur or from Sham Kaur.
plaintiffs Kaki and Har Kaur filed a suit for joint possession of the property
of deceased Chanan Singh. It is not disputed that the deceased Chanan Singh had
two wives Bhagwan Kaur and Sham Kaur. According to the plaintiffs Kaki and Har Kaur,
the deceased Chanan Singh did not execute any Will out of his free will because
he was not in a position to protect his own welfare and in fact he was not in a
position to execute any Will at all.
Singh died on 6.2.1969 in Barnala and the defendant Bhagwan Kaur got the mutation
of inheritance of Chanan Singh sanctioned from the concerned authority on the
basis of the alleged Will dated 18.1.1969. The case of the plaintiffs is that
they never received any notice about the sanctioning of mutation and this has
been carried out by defendant Bhagwan Kaur in connivance with the revenue
to the plaintiffs, the parties are governed by the Hindu Succession Act. The
plaintiffs were entitled to 1/3rd share in the inheritance of Chanan Singh.
According to the plaintiffs, the defendants are in illegal possession of the
suit land and that the defendants had threatened to alienate the suit land on
defendants in the written statement had admitted the relationship of the
plaintiffs with the deceased Chanan Singh. The defendant Bhagwan Kaur alleged
that she is the owner and in possession of the suit land on the basis of the
Will dated 18.1.1969 executed by her husband in her favour.
defendant Bhagwan Kaur also alleged that she was the only one who all through
stayed and looked after the deceased Chanan Singh during his life time. She
further stated that Chanan Singh had got his all daughters married after
spending huge amount of money in their marriages. She also alleged that the
daughters of Chanan Singh never served him during his lifetime. In fact the
plaintiffs had never even visited him. The deceased Chanan Singh had executed a
valid Will in her favour out of his free will on 18.1.1969 because of the life
long service rendered by her. She prayed that the suit filed by the plaintiffs
Trial Court, on the basis of the pleadings of the parties and documents on
record, framed eleven issues. The plaintiffs produced five witnesses and the
defendants produced three witnesses in support of their respective stands
before the Trial Court. The plaintiffs had also examined K.C. Jaidka,
Handwriting Expert. In the cross-examination he stated that the Will bears the
thumb impression of the right hand of the deceased, but the usual practice is
of obtaining the thumb impression of left hand on the Will.
to the plaintiffs the Will is alleged to have been attested by three witnesses
and only one attesting witness was examined by the defendants and even that
witness had not fully supported the case of the defendants. The Will is not a
registered document and is written at the house of the deceased Chanan Singh.
He was about 70 years of age at the time of execution of the Will and,
according to the plaintiffs, he could not protect his own interest and welfare.
The propounder of the Will was present at the time of the execution of the
Will. According to the plaintiffs, the defendants had failed to discharge the
onus regarding execution of the Will by leading cogent evidence.
contrary, it was argued by the defendants that Exhibit D-1 is a natural
document and had been executed by the deceased Chanan Singh in favour of his
wife Bhagwan Kaur. It is an admitted case of the parties that the deceased Chanan
Singh had no son and all his daughters were married long ago. In order to
protect the interest of his wife Bhagwan Kaur and to ensure that she does not
have to depend on anyone for her maintenance and welfare the deceased Chanan
Singh had executed the Will in favour of his wife Bhagwan Kaur. The deceased Chanan
Singh had put left hand thumb impression on the Will. The defendants had
examined Amar Singh D.W. 1 and Mittar Singh, D.W.2 who is the scribe of the
Will, deposed that the Will was scribed by him at the instance of Chanan Singh.
Amar Singh D.W.1 and other attesting witnesses of the Will did not fully
support the defendant Bhagwan Kaur as she had filed a suit against one Jangir
Singh and the attesting witnesses had resiled at the instance of the said Jangir
mutation on the basis of the Will was entered immediately after the death of Chanan
Singh and, according to the defendants, the Will was shown to the plaintiffs at
that time. It is further submitted that the plaintiffs have filed this suit at
the instance of the said Jangir Singh. It was submitted by the defendants that,
in these circumstances, the Court could rely on that part of the statement
which seemed to be true. According to the defendants they have proved execution
of the Will beyond doubt and the plaintiffs' suit deserves to be dismissed.
Will, the deceased, Chanan Singh had recited that he has had five daughters and
all of them were married. He has further recited that he had spent huge amount
in their marriages, even more than the share which the daughters could have got
in the inheritance of the deceased Chanan Singh. It is also mentioned that his
wife defendant Bhagwan Kaur alone used to reside with him and dutifully served
her husband. Whereas, the plaintiffs Kaki & Har Kaur never visited the
deceased, Chanan Singh.
to the Trial Court, in this background, it has to be seen whether the deceased
had in fact executed the Will out of his free will or not? It is mentioned that
in the ordinary course when a person has no son and all his daughters are happily
married, the normal anxiety is to ensure the future of his wife, particularly
when she alone had stayed with him all his life and look after him till the
last. The Trial Court did mention in the judgment that Amar Singh D.W.1 did not
support the case of the defendant. He was declared hostile.
for the defendants sought permission to cross- examine him. In the
cross-examination it is clearly stated that Bhagwan Kaur used to take care of
the deceased, Chanan Singh. He also stated that the deceased Chanan Singh might
have executed the Will giving the entire property to his wife, Bhagwan Kaur. He
also stated that the deceased Chanan Singh had put his thumb impression in his
presence on the Will. He also stated in his statement that the testator Chanan
Singh could converse at the time of the execution of the said Will meaning
thereby that he was in sound disposing mind at the time of the execution of the
Trial Court stated that the other attesting witness of the Will Pundit Raghbar Dayal
was also present when he had put a thumb mark in the Will. He further stated
that Pundit Raghbar Dayal was present at the time of execution of the Will.
This witness has stated that Bhagwan Kaur was present at the time of execution
of the Will but she had not uttered any word and Chanan Singh was sitting at
the time of the execution of the Will. According to the Trial Court,
requirement of law is that for the purpose of proving the attesting document,
at least one attesting witness is required to be examined by the party. It is
not the requirement of the law that the attesting witness must also support him
on every aspect. The requirement of law is that the testator should put his
mark on the Will in the presence of the attesting witnesses and the attesting
witnesses should attest the Will in the presence of the testator, has been
fulfilled in the present case, as is evident from the statement of Amar Singh
plaintiffs argued before the Trial Court that the deceased Chanan Singh was
under the influence of the defendant Bhagwan Kaur, but according to the Trial
Court it was not the pleaded case of the plaintiffs in the plaint.
no significance was attached to this submission.
Trial Court also stated that the Will in the present case was immediately
produced before the revenue authorities and was not kept secretly. The
plaintiffs have admitted that this Will was shown to the daughters of Chanan
Singh immediately after his death, but the plaintiffs have alleged that the
Will was in favour of the daughters. It was also not the pleaded case of the
plaintiffs in the plaint. Thus, the Trial Court after evaluating the entire
evidence on record held that the Will Exhibit D-1 was duly executed by the
deceased Chanan Singh in favour of his wife Bhagwan Kaur and was a natural
relevant part of the Will reads as under:
have already incurred expenditure on the marriages, Chhaks (presents given to
the bride by her maternal uncles or grand parents) and Chhuchaks (articles
given on the birth of daughter's child) ceremonies of my five daughters, more
than the value of their share in the property. All of them are Abad (Happy) in
their respective matrimonial houses.
wife Smt. Bhagwan Kaur takes care of me. I, having been pleased with her
services, want to devolve my entire property upon my wife Smt. Bhagwan Kaur."
When execution of the Will is fully proved then in order to ascertain the
wishes of the testator we have to look to the text of the Will. The intention
of the testator has to be discerned from the language used in the Will. In view
of such clear and unambiguous language used in this Will perhaps, no other
interpretation was possible. The Trial Court clearly arrived at a conclusion
that the deceased Chanan Singh had executed the Will in favour of his wife, Bhagwan
by the order of the Subordinate Judge, Grade II, Barnala, the appellants filed
an appeal before the learned Additional District Judge, Barnala. After hearing
counsel for the parties, the learned Additional District Judge dismissed the
appeal on the following reasons:
The Trial Court
correctly came to a definite finding that the propounder of the Will proved
that the testator was in a sound disposing mind when he had executed the Will
Court observed that if the conscience of the Court is satisfied on the point of
due execution of the Will because the testator was in a sound disposing mind,
in that event even if the Will is not registered, the same has to be upheld as
a valid and genuine document.
Court also observed that in the case in hand, Bindraban, the scribe and Amar
Singh, D.W.1, attesting witness examined by Bhagwan Kaur defendant, have amply
proved that Chanan Singh, (who was about 70 years of age), was in sound
disposing mind when he dictated the terms of the Will and after admitting its
contents to be correct, had affixed his thumb impression in their presence.
Additional District Judge also stated that there is nothing on record to show
that the appellants (who were plaintiffs in the Trial Court) ever visited the
deceased Chanan Singh or rendered any service to him during his life time. In
the said judgment, it is also noted that the Will was not challenged for a
period of 11 years since its execution in 1969.
also stated that it is evident from the mutation order that Bhagwan Kaur, after
the death of Chanan Singh promptly produced the Will before the revenue
authorities and on that basis they sanctioned the mutation in respect of the
land in dispute in her favour. According to the Appellate Court, it is
unbelievable that the appellants remained ignorant of the attestation of the
mutation or the attestation of the Will set up by Bhagwan Kaur.
Appellate Court's judgment, it is also mentioned that Bhagwan Kaur
uninterruptedly remained in peaceful possession of the entire suit land since
the death of the deceased Chanan Singh in 1969 till this date. It is also
mentioned in the judgment that Bhagwan Kaur, as is evident from the certified copy
of the judicial record of this case, remained interlocked in civil proceedings
with Jangir Singh, tenant, which are still pending and in all probability the
present suit was got instituted at the behest of Jangir Singh.
Appellate Court also observed that, in view of the facts and circumstances of
the case, the learned Trial Court was fully justified in upholding the Will as
a genuine and valid document and the mutation attested on its basis was
unexceptionable. The learned Additional District Judge, by a comprehensive
judgment, affirmed all the findings of the Trial Court and dismissed the appeal
appellants, aggrieved by the judgment of the Trial Court and the Appellate
Court, preferred second appeal under Section 100 C.P.C. before the High Court
of Punjab and Haryana.
learned Single Judge of the High Court set aside the concurrent findings of
facts arrived at by the Courts below predominantly on the ground that, in the
normal circumstances, a prudent man would have bequeathed the property in favour
of his legal heirs. However, in the present case, the testator has disinherited
findings arrived at by the High Court are totally erroneous. The Court does not
sit in appeal over the testator's decision. The Court's role is limited to
examining whether the instrument propounded as the last Will of the deceased is
or is not that by the testator and whether it is the product of the free and
sound disposing mind.
Singh D.W.1, in the examination-in-chief, did not support the case of the
defendants. He was declared hostile and the counsel for the defendants sought
permission to cross-examine him. In the cross-examination, he clearly stated
that Bhagwan Kaur used to take care of the deceased Chanan Singh. He also stated
that the deceased Chanan Singh might have executed the will giving the entire
property to his wife Bhagwan Kaur. He also stated that the deceased Chanan
Singh had put his thumb mark on the Will in his presence. He also stated in his
statement that the testator Chanan Singh could converse at the time of
execution of the will, meaning thereby that he was in sound disposing mind at
the time of execution of the will.
learned Single Judge of the High Court did not take into consideration the
entire statement of Amar Singh D.W.1 in proper perspective while setting aside
the concurrent findings of the Courts below. The findings of the High Court are
erroneous and contrary to record.
question which now arises for our adjudication is whether, according to the
true delineated scope of Section 100 of the Code of Civil Procedure, the High
Court was justified in interfering with the concurrent findings of fact.
deem it appropriate to reproduce Section 100 C.P.C. before amendment. Section
100 of the Code of Civil Procedure, 1908 (for short, C.P.C.) corresponds to
Section 584 of the old Civil Procedure Code of 1882. The Section 100 (prior to
1976 amendment) reads as under :
otherwise 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 a High Court on any of the following
grounds, namely :
being contrary to law or to some usage having the force of law;
having failed to determine some material issue of law or usage having the force
error or defect in the procedure provided by this Code or by any other law for
the time being in force, which may possibly have produced error or defect in
the decision of the case upon the merits.
An appeal may
lie under this section from an appellate decree passed ex parte." A
reference of series of cases decided by the Privy Council and this Court would
reveal true import, scope and ambit of Section 100 C.P.C..
decided prior to 1976 amendment both by the Privy Council and the Supreme Court
dealing with the scope of Section 100 C.P.C.
Privy Council, in Luchman v. Puna [(1889) 16 Calcutta 753 (P.C.)], observed
that a second appeal can lie only on one or the other grounds specified in the
Privy Council, in another case Pratap Chunder v. Mohandranath [(1890) ILR 17
Calcutta 291 (P.C.)], the limitation as to the power of the court imposed by
sections 100 and 101 in a second appeal ought to be attended to, and an
appellant ought not to be allowed to question the finding of the first
appellate court upon a matter of fact.
Chowdharani v. Jawahar Singh (1891) 18 Cal 23 (PC), the Privy Council held that
the High Court had no jurisdiction to entertain a second appeal on the ground
of erroneous finding of fact, however gross or inexcusable the error may seem
to be. The clear declaration of law was made in the said judgment as early as in
1891. This judgment was followed in the case of Ramratan Shukul v. Mussumat Nandu
(1892) 19 Cal 249 (252) (PC) and many others. The
Court observed :
has now been conclusively settled that the third court...cannot entertain an
appeal upon question as to the soundness of findings of fact by the second
court, if there is evidence to be considered, the decision of the second court,
however unsatisfactory it might be if examined, must stand final." In the
case of Ram Gopal v. Shakshaton [(1893) ILR 20 Calcutta 93 (P.C.)], the Court
emphasized that a court of second appeal is not competent to entertain
questions as to the soundness of a finding of facts by the courts below.
same principle has been reiterated in Rudr Prasad v. Baij Nath [(1893) ILR 15 Allahabad 367]. The Court observed that a
judge to whom a memorandum of second appeal is presented for admission is
entitled to consider whether any of the grounds specified in this section exist
and apply to the case, and if they do not, to reject the appeal summarily.
before amendment in 1976, this Court also had an occasion to examine the scope
of Section 100 C.P.C.. In Deity Pattabhiramaswamy v. S. Hanymayya and Others
[AIR 1959 SC 57], the High Court of Madras set aside the findings of the District
Judge, Guntur, while deciding the second appeal. This Court observed that
notwithstanding the clear and authoritative pronouncement of the Privy Council
on the limits and the scope of the High Court's jurisdiction under section 100,
Civil Procedure Code, "some learned Judges of the High Courts are
disposing of Second Appeals as if they were first appeals. This introduces,
apart from the fact that the High Court assumes and exercises a jurisdiction
which it does not possess, a gambling element in the litigation and confusion
in the mind of the litigant public. This case affords a typical illustration of
such interference by a Judge of the High Court in excess of his jurisdiction
under Section 100, Civil Procedure Code. We have, therefore, no alternative but
to set aside the judgment of the High Court which had no jurisdiction to
interfere in second appeal with the findings of fact arrived at by the first
appellate Court based upon an appreciation of the relevant evidence.
In M. Ramappa
v. M. Bojjappa [(1963) SCR 673], the Andhra Pradesh High Court interfered with
the finding recorded by the Appellate Court which, in turn, had itself reversed
the Trial Court's finding on the same question of fact.
setting aside the decree of the second Appellate Court, this Court observed :
may be that in some cases, the High Court dealing with the second appeal is
inclined to take the view that what it regards to be justice or equity of the
case has not been served by the findings of fact recorded by courts of fact,
but on such occasions it is necessary to remember that what is administered in
courts is justice according to law and considerations of fair play and equity
however important they may be, must yield to clear and express provisions of
the law. If in reaching its decisions in second appeals, the High Court
contravenes the express provisions of section 100, it would inevitably
introduce in such decisions an element of disconcerting unpredictability which
is usually associated with gambling; and that is a reproach which judicial
process must constantly and scrupulously endeavour to avoid." It may be
pertinent to mention that as early as in 1890 the Judicial Committee of the
Privy Council stated that there is no jurisdiction to entertain a second appeal
on the ground of an erroneous finding of fact, however, gross or inexcusable
the error may seem to be and they added a note of warning that no Court in
India has power to add, or enlarge, the grounds specified in Section 100 of the
Code of Civil Procedure.
before the amendment, interference under Section 100 C.P.C. was limited, which
has now been further curtailed, which we would be dealing in cases decided by
this Court after the amendment.
have given reference of a large number of cases decided by the Privy Council
and this Court to clearly understand the ambit and scope of Section 100 before
Amendment Act of 1976 has introduced drastic changes in the scope and ambit of
Section 100 C.P.C. A second appeal under Section 100 C.P.C. is now confined to
cases where a question of law is involved and such question must be a
substantial one. Section 100, as amended, reads as under:
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.
An appeal may
lie under this section from an appellate decree passed ex parte.
In an appeal
under this section, the memorandum of appeal shall precisely state the
substantial question of law involved 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
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." Cases decided after 1976 amendment In Bholaram
v. Amirchand (1981) 2 SCC 414 a three- Judge Bench of this Court reiterated the
statement of law.
High Court, however, seems to have justified its interference in second appeal
mainly on the ground that the judgments of the courts below were perverse and
were given in utter disregard of the important materials on the record
particularly misconstruction of the rent note. Even if we accept the main
reason given by the High Court the utmost that could be said was that the
findings of fact by the courts below were wrong or grossly inexcusable but that
by itself would not entitle the High Court to interfere in the absence of a
clear error of law.
Chandra Purkait v. Santosh Kumar Purkait [(1997) 5 SCC 438], a three judge
Bench of this Court held:
that the High
Court should be satisfied that the case involved a substantial question of law
and not mere question of law;
permitting the plea to be raised should also be recorded;
it has the duty
to formulate the substantial questions of law and to put the opposite party on
notice and give fair and proper opportunity to meet the point.
Court also held that it is the duty cast upon the High Court to formulate
substantial question of law involved in the case even at the initial stage.
Court had occasion to determine the same issue in Dnyanoba Bhaurao Shemade v. Maroti
Bhaurao Marnor (1999) 2 SCC 471. The Court stated that the High Court can
exercise its jurisdiction under Section 100 C.P.C. only on the basis of
substantial questions of law which are to be framed at the time of admission of
the second appeal and the second appeal has to be heard and decided only on the
basis of the such duly framed substantial questions of law.
look at the said provision shows that the High Court can exercise its
jurisdiction under Section 100 C.P.C. only on the basis of substantial
questions of law which are to be framed at the time of admission of the second
appeal and the second appeal has to be heard and decided only on the basis of
such duly framed substantial questions of law. The impugned judgment shows that
no such procedure was followed by the learned Single Judge. It is held by a
catena of judgments by this Court, some of them being, Kshitish Chandra Purkait
v. Santosh Kumar Purkait (1997) 5 SCC 438 and Sheel Chand v. Prakash Chand
(1998) 6 SCC 683 that the judgment rendered by the High Court under Section 100
C.P.C. without following the aforesaid procedure cannot be sustained. On this short
ground alone, this appeal is required to be allowed.
Kanai Lal Garari v. Murari Ganguly (1999) 6 SCC 35 the Court has observed that
it is mandatory to formulate the substantial question of law while entertaining
the appeal in absence of which the judgment is to be set aside. In Panchugopal Barua
v. Umesh Chandra Goswami (1997) 4 SCC 713 and Santosh Hazari v. Purushottam Tiwari
(2001) 3 SCC 179 the Court reiterated the statement of law that the High Court
cannot proceed to hear a second appeal without formulating the substantial
question of law. These judgments have been referred to in the later judgment of
K. Raj and Anr. v. Muthamma (2001) 6 SCC 279. A statement of law has been
reiterated regarding the scope and interference of the Court in second appeal
under Section 100 of the Code of Civil Procedure.
in Santosh Hazari v. Purushottam Tiwari (deceased) by Lrs. (2001) 3 SCC 179,
another three-Judge Bench of this Court correctly delineated the scope of
Section 100 C.P.C.. The Court observed that 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 Court. In the said judgment, it was further mentioned that 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. According
to the Court the word substantial, as qualifying "question of law",
means of having substance, essential, real, of sound worth, important or
considerable. It is to be understood as something in contradistinction with technical,
of no substance or consequence, or academic merely. However, it is clear that
the legislature has chosen not to qualify the scope of "substantial
question of law" by suffixing the words "of general importance"
as has been done in many other provisions such as Section 109 of the Code of
Article 133(1) (a) of the Constitution.
Devi (Smt.) and Anr. v. Poshi Ram (2001) 5 SCC 311 the Court came to the
conclusion that the finding thus reached by the first appellate court cannot be
interfered with in a second appeal as no substantial question of law would have
flowed out of such a finding.
v. Sri Venugopalaswamy B. Koil [(2004) 5 SCC 762], this Court has held that the
High Court in its jurisdiction under Section 100 C.P.C. was not justified in
interfering with the findings of fact. The Court observed that to say the least
the approach of the High Court was not proper. It is the obligation of the
Courts of law to further the clear intendment of the legislature and not
frustrate it by excluding the same. This Court in a catena of decisions held
that where findings of fact by the lower appellate Court are based on evidence,
the High Court in second appeal cannot substitute its own findings on reappreciation
of evidence merely on the ground that another view was possible.
same case, this Court observed that in a case where special leave petition was filed
against a judgment of the High Court interfering with findings of fact of the
lower Appellate Court. This Court observed that to say the least the approach
of the High Court was not proper. It is the obligation of the Courts of law to
further the clear intendment of the legislature and not frustrate it by
excluding the same.
Court further observed that the High Court in second appeal cannot substitute
its own findings on reappreciation of evidence merely on the ground that
another view was possible.
Court again reminded the High Court in Commissioner, Hindu Religious &
Charitable Endowments v. P. Shanmugama [(2005) 9 SCC 232] that the High Court
has no jurisdiction in second appeal to interfere with the finding of facts.
this Court in the case of State of Kerala v. Mohd. Kunhi [(2005) 10 SCC 139] has reiterated the same principle
that the High Court is not justified in interfering with the concurrent
findings of fact. This Court observed that, in doing so, the High Court has
gone beyond the scope of Section 100 of the Code of Civil Procedure.
in the case of Madhavan Nair v. Bhaskar Pillai [(2005) 10 SCC 553], this Court
observed that the High Court was not justified in interfering with the
concurrent findings of fact. This Court observed that it is well settled that
even if the first appellate court commits an error in recording a finding of
fact, that itself will not be a ground for the High Court to upset the same.
in the case of Harjeet Singh v. Amrik Singh [(2005) 12 SCC 270], this Court
with anguish has mentioned that the High Court has no jurisdiction to interfere
with the findings of fact arrived at by the first appellate court. In this
case, the findings of the Trial Court and the lower Appellate Court regarding readiness
and willingness to perform their part of contract was set aside by the High
Court in its jurisdiction under Section 100 C.P.C.. This Court, while setting
aside the judgment of the High Court, observed that the High Court was not
justified in interfering with the concurrent findings of fact arrived at by the
case of H. P. Pyarejan v. Dasappa [(2006) 2 SCC 496] delivered on 6.2.2006,
this Court found serious infirmity in the judgment of the High Court. This
Court observed that it suffers from the vice of exercise of jurisdiction which
did not vest in the High Court. Under Section 100 of the Code (as amended in
1976) the jurisdiction of the Court to interfere with the judgments of the
Courts below is confined to hearing of substantial questions of law.
Interference with the finding of fact by the High Court is not warranted if it
invokes reappreciation of evidence. This Court found that the impugned judgment
of the High Court was vulnerable and needed to be set aside.
Background in the 54th Report of the Law Commission of India submitted in 1973
The comprehensive 54th Report of the Law Commission of India submitted to the
Government of India in 1973 gives historical background regarding ambit and
scope of Section 100 C.P.C.. According to the said report, any rational system
of administration of civil law should recognize that litigation in civil cases
should have two hearings on facts one by the Trial Court and one by the Court
54th Report of the Law Commission of India, it is incorporated that it may be
permissible to point out that a search for absolute truth in the administration
of justice, however, laudable, must in the very nature of things be put under
some reasonable restraint. In other words, a search for truth has to be
reconciled with the doctrine of finality. In judicial hierarchy finality is
absolutely important because that gives certainty to the law. Even in the
interest of litigants themselves it may not be unreasonable to draw a line in
respect of the two different categories of litigation where procedure will say
at a certain stage that questions of fact have been decided by the lower courts
and the matter should be allowed to rest where it lies without any further
may be somewhat harsh to an individual litigant; but, in the larger interest of
the administration of justice, this view seems to us to be juristically sound
and pragmatically wise. It is in the light of this basic approach that we will
now proceed to consider some of the cases which were decided more than a
question could perhaps be asked, why the litigant who wishes to have justice
from the highest Court of the State should be denied the opportunity to do so,
at least where there is a flaw in the conclusion on facts reached by the trial
Court or by the Court of first appeal. The answer is obvious that even
litigants have to be protected against too persistent a pursuit of their goal
of perfectly satisfactory justice. An unqualified right of first appeal may be
necessary for the satisfaction of the defeated litigant; but a wide right of
second appeal is more in the nature of a luxury.
rational behind allowing a second appeal on a question of law is, that there
ought to be some tribunal having jurisdiction that will enable it to maintain,
and, where necessary, re-establish, uniformity throughout the State on
important legal issues, so that within the area of the State, the law, in so
far as it is not enacted law, should be laid down, or capable of being laid
down, by one court whose rulings will be binding on all courts, tribunals and
authorities within the area over which it has jurisdiction. This is implicit in
any legal system where the higher courts have authority to make binding decisions
on questions of law.
be relevant to recall the statement of Douglas Payne on "Appeals on
Questions of Fact" reported in (1958) Current Legal Problem 181. He
observed that the real justification for appeals on questions of this sort is
not so much that the law laid down by the appeal court is likely to be superior
to that laid down by a lower court as that there should be a final rule laid
down which binds all future courts and so facilitates the prediction of the
law. In such a case the individual litigants are sacrificed, with some
justification, on the altar of law-making and must find such consolation as
they can in the monument of a leading case.
perspective The predecessors of the High Courts in their Civil appellate
jurisdiction were the Sadar Divani Adalats. The right of appeal to the Sadar Divani
Adalat was very wide initially, but came to be severely curtailed in the course
of time. The "Conwallis Scheme", for example, made provision for two
appeals in every category of cases, irrespective of its value. By 1814, this
was reduced to one appeal only. Only in cases of Rs.5,000 or over, there could
be two appeals; one to the Provincial Court of Appeal and second to the Sadar Divani
Adalat. As Lord Hastings observed, - "The facility of appeal is founded on
a most laudable principle of securing, by double and treble checks, the proper
decision of all suits, but the utopian idea, in its attempt to prevent
individual injury from a wrong decision, has been productive of general
injustice by withholding redress, and general inconvenience, by perpetuating
The primary cause of the accumulation of arrears of second appeal in the High
Court is the laxity with which second appeals are admitted without serious
scrutiny of the provisions of Section 100 C.P.C. It is the bounden duty of the
High Court to entertain second appeal within the ambit and scope of Section 100
question which is often asked that why a litigant should have the right of two
appeals even on questions of law.
answer to this query is that in every State there are number of District Courts
and courts in the District cannot be final arbiters on questions of law. If the
law is to be uniformly interpreted and applied, questions of law must be decided
by the highest Court in the State whose decisions are binding on all
behind permitting second appeal on question of law The rationale behind
allowing a second appeal on a question of law is, that there ought to be some
tribunal having a jurisdiction that will enable it to maintain, and, where
necessary, re-establish, uniformity throughout the State on important legal
issues, so that within the area of the State, the law, in so far as it is not
enacted law, should be laid down, or capable of being laid down, by one court
whose rulings will be binding on all courts, tribunals and authorities within
the area over which it has jurisdiction. This is implicit in any legal system
where the higher courts have authority to make binding decisions on question of
analysis of cases decided by the Privy Council and this Court prior to 1976
clearly indicated the scope of interference under Section 100 C.P.C. by this
Court. Even prior to amendment, the consistent position has been that the
Courts should not interfere with the concurrent findings of facts.
after 1976 Amendment, the scope of Section 100 has been drastically curtailed
and narrowed down. The High Courts would have jurisdiction of interfering under
Section 100 C.P.C. only in a case where substantial questions of law are
involved and those questions have been clearly formulated in the memorandum of
appeal. At the time of admission of the second appeal, it is the bounden duty
and obligation of the High Court to formulate substantial questions of law and
then only the High Court is permitted to proceed with the case to decide those
questions of law. The language used in the amended section specifically
incorporates the words as "substantial question of law" which is indicative
of the legislative intention. It must be clearly understood that the
legislative intention was very clear that legislature never wanted second
appeal to become "third trial on facts" or "one more dice in the
gamble". The effect of the amendment mainly, according to the amended
The High Court
would be justified in admitting the second appeal only when a substantial
question of law is involved;
question of law to precisely state such question;
A duty has been
cast on the High Court to formulate substantial question of law before hearing
Another part of
the Section is that the appeal shall be heard only on that question.
fact that, in a series of cases, this Court was compelled to interfere was
because the true legislative intendment and scope of Section 100 C.P.C. have
neither been appreciated nor applied. A class of judges while administering law
honestly believe that, if they are satisfied that, in any second appeal brought
before them evidence has been grossly misappreciated either by the lower
appellate court or by both the courts below, it is their duty to interfere,
because they seem to feel that a decree following upon a gross misappreciation
of evidence involves injustice and it is the duty of the High Court to redress
such injustice. We would like to reiterate that the justice has to be
administered in accordance with law.
Section 100 C.P.C. is critically examined then, according to the legislative
mandate, the interference by the High Court is permissible only in cases
involving substantial questions of law.
Judicial Committee of the Privy Council as early as in 1890 stated that there
is no jurisdiction to entertain a second appeal on the ground of an erroneous
finding of fact, however, gross or inexcusable the error may seem to be and
they added a note of warning that no Court in India has power to add to, or
enlarge, the grounds specified in Section 100.
High Court seriously erred in interfering with the findings of facts arrived at
by the Trial Court and affirmed by the first Appellate Court.
High Court in the impugned judgment has observed as under :- "In the
normal circumstances a prudent man would have bequeathed the property in favour
of his legal heirs. However, in the present case, the testator has disinherited
the plaintiffs." The High Court also observed that "no father in
normal circumstances would like to disinherit the daughters." The High
Court has clearly deviated from the settled principle of interpretation of the
Will. The Court does not sit in appeal over the right or wrong of the
Court's role is limited to examining whether the instrument propounded as the
last Will of the deceased is or is not that by the testator and whether it is
the product of the free and sound disposing mind. It is only for the purpose of
examining the authenticity or otherwise of the instrument propounded as the
last Will, that the Court looks into the nature of the bequest.
learned Single Judge of the High Court has not even properly appreciated the
context of the circumstances. The contents of the Will have to be appreciated
in the context of his circumstances, and not vis-`-vis the rules for intestate
succession. It is only for this limited purpose that the Court examines the
nature of bequest. The Court does not substitute its own opinion for what was
the testator's Will or intention as manifested from a reading of the written
instrument. After all, a Will is meant to be an expression of his desire and therefore,
may result in disinheritance of some and grant to another. In the instant case,
wife of the testator Bhagwan Kaur alone had lived with the deceased and only
she had looked after him throughout his life. The other daughters were all
happily married a long time ago and in their weddings the testator had spent
huge amount of money. In his own words, he had spent more than what they would
have got in their respective shares out of testator's property.
Will appears on the face of it to have been duly executed and attested in
accordance with the requirements of the Statute, a presumption of due execution
and attestation applies.
be pertinent to mention that in the memorandum of second appeal filed before
the High Court no substantial question of law was formulated. Similarly, the
High Court in its judgment has not formulated question of law before hearing
repeated declarations of law by the judgments of this Court and the Privy
Council for over a century, still the scope of Section 100 has not been
correctly appreciated and applied by the High Courts in a large number of
cases. In the facts and circumstances of this case the High Court interfered
with the pure findings of fact even after the amendment of Section 100 C.P.C. in
1976. The High Court would not have been justified in interfering with the
concurrent findings of fact in this case even prior to the amendment of Section
100 C.P.C.. The judgment of the High Court is clearly against the provisions of
Section 100 and in no uncertain terms clearly violates the legislative
view of the clear legislative mandate crystallized by a series of judgments of
the Privy Council and this Court ranging from 1890 to 2006, the High Court in
law could not have interfered with pure findings of facts arrived at by the
courts below. Consequently, the impugned judgment is set aside and this appeal
is allowed with costs.