“23. 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. (See Santosh Hazari v.
Purushottam Tiwari.)
24. The principles relating to Section 100 CPC
relevant for this case may be summarised thus:
(i) …
(ii) The High Court should be satisfied that the
case involves a substantial question of law,
and not a mere question of law. A question
of law having a material bearing on the
decision of the case (that is, a question,
answer to which affects the rights of parties
to the suit) will be a substantial question of
law, if it is not covered by any specific
provisions of law or settled legal principle
emerging from binding precedents, and,
involves a debatable legal issue. A
substantial question of law will also arise in
a contrary situation, where the legal position
is clear, either on account of express
provisions of law or binding precedents, but
the court below has decided the matter,
either ignoring or acting contrary to such
legal principle. In the second type of cases,
the substantial question of law arises not
because the law is still debatable, but
because the decision rendered on a material
question, violates the settled position of
law.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7346 OF 2008
(Arising out of SLP (C) No. 11785 OF 2007)
U.R. Virupakshaiah V Sarvamma & Anr.
Citation; (2009)2SCC177, AIR2009SC1481,2009(4)MhLJ337(SC),
S.B. Sinha, J.
1. Leave granted.
2. Whether the High Court, while exercising its jurisdiction under
Section 100 of the Code of Civil Procedure, could, while dictating the
judgment, frame an additional question of law and allow the same without
even referring to the questions of law formulated at the time of admission
thereof, arises for consideration herein.
3. Before, however, adverting to the said question, we may notice the
factual matrix involved in the matter.
One Nanjappa was the owner of the property. The admitted
genealogical table of the family is as under:
4. Virupakashappa filed a suit for partition claiming share in Survey
No.197/2 measuring 11 acres 22 guntas, Survey No.203/3 measuring 3.2
acres, Survey No.203/6 measuring 2 acres 21 guntas and a house property
situated at Chikkathotulkere, Tumkur Taluk, District Tumkur in the year
1996. Defendants-Respondents, inter alia, in their written statements denied
and disputed the said genealogical table. It is profitable to refer thereto :
“It is false to state that land bearing survey
No.197/3 measures 11-22 guntas, schedule
properties are not appropriate with the existing
one. The plaintiff with a mala fide intention filed
this suit. Plaintiff has not got any kind of blood
relationship with the defendants. The defendant’s
grand father was enjoying the properties since
long days back in the year 1946 when the grand
father was died the revenue entries were changed
into defendant’s father’s name, since 1956 the
defendant is enjoying the entire schedule
properties together with other properties as the
absolute owner with title and possession. The
2
Nanjappa
(Propositus)
Channapasappa Mallappa Revanna
Revanns Siddappa
(Dead)
Chikkasiddappa Shetty
(Dead)
Dead and unmarried
and issueless
Virupakashappa
Plaintiff/Petitioner
T.C. Nanjappa
(Original Defendant-
Dead
Sarvamangala
(Widow) (D.1)(a)/
Present Respondent
No.1
Kathayni
D.1(b)/Present
Respondent No.2
defendant has sold piece of land for family
maintenance. He has improved the said lands and
he raised coconut trees with water supply some
time he has raised loans by mortgaging the
schedule properties.
Plaintiff is utter stranger and he has no
relationship with this defendant. He has filed this
suit to gain by an unlawful way.”
It was furthermore contended that revenue entries throughout stood in
the name of the father of the defendant and they have been exercising
ownership rights over the lands in suit since time immemorial.
5. The learned Trial Judge, in view of the abovenoted rival contentions
of the parties, inter alia, framed the following issues :
“1. Whether the plaintiff proves that the suit
schedule properties are the ancestral and
joint family properties of the plaintiff and
defendants and they are in joint possession
of the same?
2. Whether the plaintiff further proves that the
defendant has unlawfully got the revenue
entries of the suit schedule property to his
own name, with ulterior motive and refused
to allot the half share to the plaintiff in the
suit schedule property?
3. Whether the plaintiff further proves that he
is entitled for half share in the suit schedule
property and mesne profits?”
3
Parties not only adduced oral evidence before the learned Trial Judge
but placed on record a large number of documents to prove their respective
cases. Before the learned Trial Judge a Deed of Mortgage purported to have
been executed by Chennapasappa and Revenna was brought on record to
show that they had been entering into separate transactions in regard to
portions of the purported joint family property. The learned Trial Judge
opined that the plaintiff is entitled to a decree for partition against the
defendants except the property mortgaged by his father to one Krishnappa.
It was held that there was no evidence regarding any further transaction.
6. An appeal preferred thereagainst by the respondent was dismissed
holding that the plaintiff was not able to prove that the properties in suit
continued to be the joint family property.
7. A second appeal was preferred thereagainst by the respondent. Two
substantial questions of law were framed at the time of admission of the
appeal :
“1. Whether the Courts below were justified in
holding that the recital in the mortgage deed
Ex.D1 which is one of the year 1922 which
came into existence at an undisputed point
of time, do not establish the partition
between Channabasappa, Mallappa and
Revenna, sons of Nanjappa?
4
2. Whether the First Appellate Court was
justified in rejecting the application filed
under Order 41 Rule 27 and also application
for amendment of written statement setting
up the plea of prior partition?”
However, the High Court, after hearing the counsel for the parties and
at the time of dictating a judgment, sought to frame a new question of law
which reads as under :
“Whether the Courts below are justified in holding
that there exists a joint family and the suit
schedule properties are joint family properties in
the light of the admitted fact that the plaintiff and
defendant belonged to 4th generation and the
plaintiff has admitted in categorical terms in his
evidence that there was a partition in the family 80
years back and in the absence of any material
placed by the plaintiff to show either the existence
of the joint family or that the schedule properties
are joint family properties.?”
8. So as to enable the appellant herein to make submissions on the said
additional substantial question of law, an opportunity was sought to be
granted. Appellant sought for eight days’ time which, having been found to
be unreasonable, was declined. The learned Judge proceeded with the
judgment and allowed the respondent’s appeal.
5
9. Mr. S.B. Sanyal, learned senior counsel appearing on behalf of the
appellant, urged :
1. The additional substantial question of law having been framed during
the course of the judgment without recording reasons, therefore, must
be held to be impermissible in law and as no reasonable opportunity
was given to the appellant to show that no such question of law arose
for consideration before the High Court, the impugned judgment
cannot be sustained.
2. A new issue and/or point cannot be allowed to be urged for the first
time before the High Court, particularly when, by reason thereof, it
would be entering into the forbidden arena of appreciation of
evidence for the purpose of reversal of the concurrent findings of fact
arrived at by two courts.
3. The question as to whether there had been a previous partition or not
being a pure question of fact, the High Court could not have entered
into evidences adduced by the parties to hold that the predecessors, in
interest of the parties, had partitioned the properties.
6
4. The High Court proceeded to determine the issue as regards jointness
of the property on a wrong premise that the parties belong to fourth
generation of the properties.
10. Mr. G.V. Chandrasekhar, learned counsel appearing on behalf of the
respondent, on the other hand, would contend that the learned Trial Judge as
also the First Appellate Court having not taken into consideration the vital
admission of the plaintiff as regards previous partition as also other
evidences brought on record which clearly show that the parties had been in
separate possession for a long time, the impugned judgment should not be
interfered with.
11. It is well settled that the presumption in regard to existence of joint
family gets weaker and weaker from descendant to descendant and such
weak presumption can be rebutted by adduction of slight evidence of
separate possession of the properties in which even the burden would shift
to the plaintiff to prove that the family was a joint family.
The High Court’s jurisdiction to interfere with a finding of fact may
not be limited in a case of this nature where the finding of fact had been
arrived at upon taking into consideration inadmissible evidence and based
on presumptions which could not have been raised.
7
12. The Code of Civil Procedure was amended in the year 1976 by reason
of Code of Civil Procedure (Amendment) Act, 1976. In terms of the said
amendment, it is now essential for the High Court to formulate a substantial
question of law. The judgments of the Trial Court and the First Appellate
Court can be interfered with only upon formulation of a substantial question
of law, if any, which has arisen for its consideration by the High Court. It,
furthermore, should not ordinarily frame a substantial question of law at a
subsequent stage without assigning any reason therefor and without giving a
reasonable opportunity of hearing to the respondents. {See Nune Prasad &
Ors. v. Nune Ramakrishna [2008 (10) SCALE 523]; Panchugopal Barua &
Ors. v. Umesh Chandra Goswami & Ors. [(1997) 4 SCC 713 paras 8 and 9];
and Kshitish Chandra Purkait v. Santosh Kumar Purkait & Ors. [(1997) 5
SCC 438 paras 10 and 12]}.
13. The High Court, in this case, however, formulated a substantial
question of law while dictating the judgment in open court. Before such a
substantial question of law could be formulated, the parties should have
been put to notice. They should have been given an opportunity to meet the
same. Although the court has the requisite jurisdiction to formulate a
substantial question of law at a subsequent stage which was not formulated
at the time of admission of the second appeal but the requirements laid
8
down in the proviso appended to Section 100 of the Code of Civil
Procedures were required to be met. The High Court did not record any
reason for formulating the additional question. The prayer of the appellant
to grant some time to deal with the said question was declined. The High
Court failed to take into consideration the fact that by framing the additional
substantial question of law, a new case is sought to be made out.
14. Principal contention raised on behalf of the defendant-respondent, in
their written statement, as noticed hereinbefore, was non-existence of any
relationship between the parties. We, however, do not mean to suggest that
defendants cannot raise inconsistent pleas but the same should have been
kept in mind by the High Court. It might or might not have been possible
for the High Court to consider the question of law raised on the basis of the
facts found by the courts below, but, indisputably, the High Court without
recording sufficient reasons, could not allow the appellant to raise
absolutely a new contention which was beyond the pleadings of the parties.
15. The High Court furthermore proceeded on the presumption that the
plaintiff and the defendants belong to the fourth generation of Nanjappa. In
holding so, the High Court wrongly included the propositors as the first
generation. The plaintiff and the defendants were the third generation of the
propositors.
9
In Mulla’s Hindu Law (17th Edn) Article 212(2), 213, it is stated :
“§ 212. Joint Hindu family – (1) …
(2) The joint and undivided family is the
normal condition of Hindu society. An undivided
Hindu family is ordinarily joint not only in estate
but also in food and worship. The existence of
joint estate is not an essential requisite to
constitute a joint family and a family, which does
not own any property, may nevertheless be joint.
Where there is joint estates, and the members of
the family become separate in estate, the family
ceases to be joint. Mere severance in food and
worship does not operate as a separation.
Possession of joint family property is not a
necessary requisite for the constitution of a joint
Hindu family. Hindus get a joint family status by
birth, and the joint family property is only an
adjunct of the joint family.”
XXX XXX XXX
§ 213. Hindu coparcenary – A Hindu
coparcenary is a much narrower body than the
joint family. It includes only those persons who
acquire by birth an interest in the joint or
coparcenary property. These are the sons,
grandsons and great-grandsons of the holder of the
joint property for the time being, in other words,
the three generations next to the holder in
unbroken male descent. See § 217. The above
propositions must be read in the light of what has
been stated in the note at the top of this chapter.
To understand the formation of a coparcenary, it is
important to note the distinction between ancestral
property and separate property. Property inherited
by a Hindu from his father, father’s father or
father’s fathers’ father, is ancestral property.
10
Property inherited by him from other relations is
his separate property. The essential feature of
ancestral property is that if the person inheriting it
has sons, grandsons or great-grandsons, they
become joint owner’s coparceners with him. They
become entitled to it due to their birth. These
propositions also must be read in the light of what
has been stated in the note at the top of this
chapter.”
16. The premise on which, therefore, the High Court reversed the
judgment of the courts below was non-existent.
Mr. Chandrasekhar may be right in his submission that the
presumption with regard to the existence of joint family gets weaker and
weaker from descendant to descendant. It has been so held by this Court in
Bhagwan Dayal (since deceased) and thereafter his heirs and legal
representatives Bansgopal Dubey & Anr. V. Mst. Reoti Devi (deceased) and
after her death, Mst. Dayavati, her daughter [AIR 1962 SC 287] in the
following terms :
“16. The general principle is that every Hindu
family is presumed to be joint unless the contrary
is proved; but this presumption can be rebutted by
direct evidence or by course of conduct. It is also
settled that there is no presumption that when one
member separates from others that the latter
remain united; whether the latter remain united or
not must be decided on the facts of each case. To
these it may be added that in the case of old
11
transactions when no contemporaneous documents
are maintained and when most of the active
participants in the transactions have passed away,
though the burden still remains on the person who
asserts that there was a partition, it is permissible
to fill up gaps more readily by reasonable
inferences than in a case where the evidence is not
obliterated by passage of time.”
[See also Bhagwati Prasad v. Shri Chandramaul [(1966) 2 SCR 286].
But it is evident that no such contention was raised. No substantial
question of law in this behalf was framed.
17. Mr. Chandrasekhar would contend that the jurisdiction of the High
Court to interfere with the findings of fact is not limited. Reliance has been
placed on Hero Vinoth (Minor) v. Sheshammal [(2006) 5 SCC 545],
wherein it was held :
“19. It is not within the domain of the High Court
to investigate the grounds on which the findings
were arrived at, by the last court of fact, being the
first appellate court. It is true that the lower
appellate court should not ordinarily reject
witnesses accepted by the trial court in respect of
credibility but even where it has rejected the
witnesses accepted by the trial court, the same is
no ground for interference in second appeal when
it is found that the appellate court has given
satisfactory reasons for doing so. In a case where
from a given set of circumstances two inferences
of fact are possible, the one drawn by the lower
appellate court will not be interfered by the High
12
Court in second appeal. Adopting any other
approach is not permissible. The High Court will,
however, interfere where it is found that the
conclusions drawn by the lower appellate court
were erroneous being contrary to the mandatory
provisions of law applicable or its settled position
on the basis of pronouncements made by the Apex
Court, or was based upon inadmissible evidence or
arrived at by ignoring material evidence.”
It was furthermore held :
“23. 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. (See Santosh Hazari v.
Purushottam Tiwari.)
13
24. The principles relating to Section 100 CPC
relevant for this case may be summarised thus:
(i) …
(ii) The High Court should be satisfied that the
case involves a substantial question of law,
and not a mere question of law. A question
of law having a material bearing on the
decision of the case (that is, a question,
answer to which affects the rights of parties
to the suit) will be a substantial question of
law, if it is not covered by any specific
provisions of law or settled legal principle
emerging from binding precedents, and,
involves a debatable legal issue. A
substantial question of law will also arise in
a contrary situation, where the legal position
is clear, either on account of express
provisions of law or binding precedents, but
the court below has decided the matter,
either ignoring or acting contrary to such
legal principle. In the second type of cases,
the substantial question of law arises not
because the law is still debatable, but
because the decision rendered on a material
question, violates the settled position of
law.”
The principles laid down therein do not advance the case of the
respondents as the High Court did not arrive at any finding which could
involve their application to the facts of the present case.
14
In Makhan Singh (Dead) By Lrs. V. Kulwant Singh [(2007) 10 SCC
602] whereupon again reliance has been placed by Mr. Chandrasekhar, this
Court held :
“9. The High Court has also rightly observed that
there was no presumption that the property owned
by the members of the joint Hindu family could a
fortiori be deemed to be of the same character and
to prove such a status it had to be established by
the propounder that a nucleus of joint Hindu
family income was available and that the said
property had been purchased from the said nucleus
and that the burden to prove such a situation lay
on the party, who so asserted it. The ratio of K.V.
Narayanaswami Iyer case2 is thus clearly
applicable to the facts of the case. We are
therefore in full agreement with the High Court on
this aspect as well. From the above, it would be
evident that the High Court has not made a
simpliciter reappraisal of the evidence to arrive at
conclusions different from those of the courts
below, but has corrected an error as to the onus of
proof on the existence or otherwise of a joint
Hindu family property.”
18. The instant case does not come within the purview of the
aforementioned dicta. The High Court did not deal with the substantial
questions of law formulated at the time of admission at all. We, therefore,
are of the opinion that the impugned judgment cannot be sustained. It is set
aside accordingly and the matter is remitted to the High Court for
15
consideration of the matter afresh. In the event, the High Court opines that
any substantial question of law should be framed suo motu or at the instance
of the appellant before it, viz., respondent herein, it shall give an
opportunity of hearing to appellant.
19. Appeal is allowed on the aforementioned terms. In the facts and
circumstance of the case, however, there shall be no order as to costs.
……………….…..………….J.
[S.B. Sinha]
..………………..……………J.
[Cyriac Joseph]
New Delhi;
December 17, 2008
16
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. (See Santosh Hazari v.
Purushottam Tiwari.)
24. The principles relating to Section 100 CPC
relevant for this case may be summarised thus:
(i) …
(ii) The High Court should be satisfied that the
case involves a substantial question of law,
and not a mere question of law. A question
of law having a material bearing on the
decision of the case (that is, a question,
answer to which affects the rights of parties
to the suit) will be a substantial question of
law, if it is not covered by any specific
provisions of law or settled legal principle
emerging from binding precedents, and,
involves a debatable legal issue. A
substantial question of law will also arise in
a contrary situation, where the legal position
is clear, either on account of express
provisions of law or binding precedents, but
the court below has decided the matter,
either ignoring or acting contrary to such
legal principle. In the second type of cases,
the substantial question of law arises not
because the law is still debatable, but
because the decision rendered on a material
question, violates the settled position of
law.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7346 OF 2008
(Arising out of SLP (C) No. 11785 OF 2007)
U.R. Virupakshaiah V Sarvamma & Anr.
Citation; (2009)2SCC177, AIR2009SC1481,2009(4)MhLJ337(SC),
S.B. Sinha, J.
1. Leave granted.
2. Whether the High Court, while exercising its jurisdiction under
Section 100 of the Code of Civil Procedure, could, while dictating the
judgment, frame an additional question of law and allow the same without
even referring to the questions of law formulated at the time of admission
thereof, arises for consideration herein.
3. Before, however, adverting to the said question, we may notice the
factual matrix involved in the matter.
One Nanjappa was the owner of the property. The admitted
genealogical table of the family is as under:
4. Virupakashappa filed a suit for partition claiming share in Survey
No.197/2 measuring 11 acres 22 guntas, Survey No.203/3 measuring 3.2
acres, Survey No.203/6 measuring 2 acres 21 guntas and a house property
situated at Chikkathotulkere, Tumkur Taluk, District Tumkur in the year
1996. Defendants-Respondents, inter alia, in their written statements denied
and disputed the said genealogical table. It is profitable to refer thereto :
“It is false to state that land bearing survey
No.197/3 measures 11-22 guntas, schedule
properties are not appropriate with the existing
one. The plaintiff with a mala fide intention filed
this suit. Plaintiff has not got any kind of blood
relationship with the defendants. The defendant’s
grand father was enjoying the properties since
long days back in the year 1946 when the grand
father was died the revenue entries were changed
into defendant’s father’s name, since 1956 the
defendant is enjoying the entire schedule
properties together with other properties as the
absolute owner with title and possession. The
2
Nanjappa
(Propositus)
Channapasappa Mallappa Revanna
Revanns Siddappa
(Dead)
Chikkasiddappa Shetty
(Dead)
Dead and unmarried
and issueless
Virupakashappa
Plaintiff/Petitioner
T.C. Nanjappa
(Original Defendant-
Dead
Sarvamangala
(Widow) (D.1)(a)/
Present Respondent
No.1
Kathayni
D.1(b)/Present
Respondent No.2
defendant has sold piece of land for family
maintenance. He has improved the said lands and
he raised coconut trees with water supply some
time he has raised loans by mortgaging the
schedule properties.
Plaintiff is utter stranger and he has no
relationship with this defendant. He has filed this
suit to gain by an unlawful way.”
It was furthermore contended that revenue entries throughout stood in
the name of the father of the defendant and they have been exercising
ownership rights over the lands in suit since time immemorial.
5. The learned Trial Judge, in view of the abovenoted rival contentions
of the parties, inter alia, framed the following issues :
“1. Whether the plaintiff proves that the suit
schedule properties are the ancestral and
joint family properties of the plaintiff and
defendants and they are in joint possession
of the same?
2. Whether the plaintiff further proves that the
defendant has unlawfully got the revenue
entries of the suit schedule property to his
own name, with ulterior motive and refused
to allot the half share to the plaintiff in the
suit schedule property?
3. Whether the plaintiff further proves that he
is entitled for half share in the suit schedule
property and mesne profits?”
3
Parties not only adduced oral evidence before the learned Trial Judge
but placed on record a large number of documents to prove their respective
cases. Before the learned Trial Judge a Deed of Mortgage purported to have
been executed by Chennapasappa and Revenna was brought on record to
show that they had been entering into separate transactions in regard to
portions of the purported joint family property. The learned Trial Judge
opined that the plaintiff is entitled to a decree for partition against the
defendants except the property mortgaged by his father to one Krishnappa.
It was held that there was no evidence regarding any further transaction.
6. An appeal preferred thereagainst by the respondent was dismissed
holding that the plaintiff was not able to prove that the properties in suit
continued to be the joint family property.
7. A second appeal was preferred thereagainst by the respondent. Two
substantial questions of law were framed at the time of admission of the
appeal :
“1. Whether the Courts below were justified in
holding that the recital in the mortgage deed
Ex.D1 which is one of the year 1922 which
came into existence at an undisputed point
of time, do not establish the partition
between Channabasappa, Mallappa and
Revenna, sons of Nanjappa?
4
2. Whether the First Appellate Court was
justified in rejecting the application filed
under Order 41 Rule 27 and also application
for amendment of written statement setting
up the plea of prior partition?”
However, the High Court, after hearing the counsel for the parties and
at the time of dictating a judgment, sought to frame a new question of law
which reads as under :
“Whether the Courts below are justified in holding
that there exists a joint family and the suit
schedule properties are joint family properties in
the light of the admitted fact that the plaintiff and
defendant belonged to 4th generation and the
plaintiff has admitted in categorical terms in his
evidence that there was a partition in the family 80
years back and in the absence of any material
placed by the plaintiff to show either the existence
of the joint family or that the schedule properties
are joint family properties.?”
8. So as to enable the appellant herein to make submissions on the said
additional substantial question of law, an opportunity was sought to be
granted. Appellant sought for eight days’ time which, having been found to
be unreasonable, was declined. The learned Judge proceeded with the
judgment and allowed the respondent’s appeal.
5
9. Mr. S.B. Sanyal, learned senior counsel appearing on behalf of the
appellant, urged :
1. The additional substantial question of law having been framed during
the course of the judgment without recording reasons, therefore, must
be held to be impermissible in law and as no reasonable opportunity
was given to the appellant to show that no such question of law arose
for consideration before the High Court, the impugned judgment
cannot be sustained.
2. A new issue and/or point cannot be allowed to be urged for the first
time before the High Court, particularly when, by reason thereof, it
would be entering into the forbidden arena of appreciation of
evidence for the purpose of reversal of the concurrent findings of fact
arrived at by two courts.
3. The question as to whether there had been a previous partition or not
being a pure question of fact, the High Court could not have entered
into evidences adduced by the parties to hold that the predecessors, in
interest of the parties, had partitioned the properties.
6
4. The High Court proceeded to determine the issue as regards jointness
of the property on a wrong premise that the parties belong to fourth
generation of the properties.
10. Mr. G.V. Chandrasekhar, learned counsel appearing on behalf of the
respondent, on the other hand, would contend that the learned Trial Judge as
also the First Appellate Court having not taken into consideration the vital
admission of the plaintiff as regards previous partition as also other
evidences brought on record which clearly show that the parties had been in
separate possession for a long time, the impugned judgment should not be
interfered with.
11. It is well settled that the presumption in regard to existence of joint
family gets weaker and weaker from descendant to descendant and such
weak presumption can be rebutted by adduction of slight evidence of
separate possession of the properties in which even the burden would shift
to the plaintiff to prove that the family was a joint family.
The High Court’s jurisdiction to interfere with a finding of fact may
not be limited in a case of this nature where the finding of fact had been
arrived at upon taking into consideration inadmissible evidence and based
on presumptions which could not have been raised.
7
12. The Code of Civil Procedure was amended in the year 1976 by reason
of Code of Civil Procedure (Amendment) Act, 1976. In terms of the said
amendment, it is now essential for the High Court to formulate a substantial
question of law. The judgments of the Trial Court and the First Appellate
Court can be interfered with only upon formulation of a substantial question
of law, if any, which has arisen for its consideration by the High Court. It,
furthermore, should not ordinarily frame a substantial question of law at a
subsequent stage without assigning any reason therefor and without giving a
reasonable opportunity of hearing to the respondents. {See Nune Prasad &
Ors. v. Nune Ramakrishna [2008 (10) SCALE 523]; Panchugopal Barua &
Ors. v. Umesh Chandra Goswami & Ors. [(1997) 4 SCC 713 paras 8 and 9];
and Kshitish Chandra Purkait v. Santosh Kumar Purkait & Ors. [(1997) 5
SCC 438 paras 10 and 12]}.
13. The High Court, in this case, however, formulated a substantial
question of law while dictating the judgment in open court. Before such a
substantial question of law could be formulated, the parties should have
been put to notice. They should have been given an opportunity to meet the
same. Although the court has the requisite jurisdiction to formulate a
substantial question of law at a subsequent stage which was not formulated
at the time of admission of the second appeal but the requirements laid
8
down in the proviso appended to Section 100 of the Code of Civil
Procedures were required to be met. The High Court did not record any
reason for formulating the additional question. The prayer of the appellant
to grant some time to deal with the said question was declined. The High
Court failed to take into consideration the fact that by framing the additional
substantial question of law, a new case is sought to be made out.
14. Principal contention raised on behalf of the defendant-respondent, in
their written statement, as noticed hereinbefore, was non-existence of any
relationship between the parties. We, however, do not mean to suggest that
defendants cannot raise inconsistent pleas but the same should have been
kept in mind by the High Court. It might or might not have been possible
for the High Court to consider the question of law raised on the basis of the
facts found by the courts below, but, indisputably, the High Court without
recording sufficient reasons, could not allow the appellant to raise
absolutely a new contention which was beyond the pleadings of the parties.
15. The High Court furthermore proceeded on the presumption that the
plaintiff and the defendants belong to the fourth generation of Nanjappa. In
holding so, the High Court wrongly included the propositors as the first
generation. The plaintiff and the defendants were the third generation of the
propositors.
9
In Mulla’s Hindu Law (17th Edn) Article 212(2), 213, it is stated :
“§ 212. Joint Hindu family – (1) …
(2) The joint and undivided family is the
normal condition of Hindu society. An undivided
Hindu family is ordinarily joint not only in estate
but also in food and worship. The existence of
joint estate is not an essential requisite to
constitute a joint family and a family, which does
not own any property, may nevertheless be joint.
Where there is joint estates, and the members of
the family become separate in estate, the family
ceases to be joint. Mere severance in food and
worship does not operate as a separation.
Possession of joint family property is not a
necessary requisite for the constitution of a joint
Hindu family. Hindus get a joint family status by
birth, and the joint family property is only an
adjunct of the joint family.”
XXX XXX XXX
§ 213. Hindu coparcenary – A Hindu
coparcenary is a much narrower body than the
joint family. It includes only those persons who
acquire by birth an interest in the joint or
coparcenary property. These are the sons,
grandsons and great-grandsons of the holder of the
joint property for the time being, in other words,
the three generations next to the holder in
unbroken male descent. See § 217. The above
propositions must be read in the light of what has
been stated in the note at the top of this chapter.
To understand the formation of a coparcenary, it is
important to note the distinction between ancestral
property and separate property. Property inherited
by a Hindu from his father, father’s father or
father’s fathers’ father, is ancestral property.
10
Property inherited by him from other relations is
his separate property. The essential feature of
ancestral property is that if the person inheriting it
has sons, grandsons or great-grandsons, they
become joint owner’s coparceners with him. They
become entitled to it due to their birth. These
propositions also must be read in the light of what
has been stated in the note at the top of this
chapter.”
16. The premise on which, therefore, the High Court reversed the
judgment of the courts below was non-existent.
Mr. Chandrasekhar may be right in his submission that the
presumption with regard to the existence of joint family gets weaker and
weaker from descendant to descendant. It has been so held by this Court in
Bhagwan Dayal (since deceased) and thereafter his heirs and legal
representatives Bansgopal Dubey & Anr. V. Mst. Reoti Devi (deceased) and
after her death, Mst. Dayavati, her daughter [AIR 1962 SC 287] in the
following terms :
“16. The general principle is that every Hindu
family is presumed to be joint unless the contrary
is proved; but this presumption can be rebutted by
direct evidence or by course of conduct. It is also
settled that there is no presumption that when one
member separates from others that the latter
remain united; whether the latter remain united or
not must be decided on the facts of each case. To
these it may be added that in the case of old
11
transactions when no contemporaneous documents
are maintained and when most of the active
participants in the transactions have passed away,
though the burden still remains on the person who
asserts that there was a partition, it is permissible
to fill up gaps more readily by reasonable
inferences than in a case where the evidence is not
obliterated by passage of time.”
[See also Bhagwati Prasad v. Shri Chandramaul [(1966) 2 SCR 286].
But it is evident that no such contention was raised. No substantial
question of law in this behalf was framed.
17. Mr. Chandrasekhar would contend that the jurisdiction of the High
Court to interfere with the findings of fact is not limited. Reliance has been
placed on Hero Vinoth (Minor) v. Sheshammal [(2006) 5 SCC 545],
wherein it was held :
“19. It is not within the domain of the High Court
to investigate the grounds on which the findings
were arrived at, by the last court of fact, being the
first appellate court. It is true that the lower
appellate court should not ordinarily reject
witnesses accepted by the trial court in respect of
credibility but even where it has rejected the
witnesses accepted by the trial court, the same is
no ground for interference in second appeal when
it is found that the appellate court has given
satisfactory reasons for doing so. In a case where
from a given set of circumstances two inferences
of fact are possible, the one drawn by the lower
appellate court will not be interfered by the High
12
Court in second appeal. Adopting any other
approach is not permissible. The High Court will,
however, interfere where it is found that the
conclusions drawn by the lower appellate court
were erroneous being contrary to the mandatory
provisions of law applicable or its settled position
on the basis of pronouncements made by the Apex
Court, or was based upon inadmissible evidence or
arrived at by ignoring material evidence.”
It was furthermore held :
“23. 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. (See Santosh Hazari v.
Purushottam Tiwari.)
13
24. The principles relating to Section 100 CPC
relevant for this case may be summarised thus:
(i) …
(ii) The High Court should be satisfied that the
case involves a substantial question of law,
and not a mere question of law. A question
of law having a material bearing on the
decision of the case (that is, a question,
answer to which affects the rights of parties
to the suit) will be a substantial question of
law, if it is not covered by any specific
provisions of law or settled legal principle
emerging from binding precedents, and,
involves a debatable legal issue. A
substantial question of law will also arise in
a contrary situation, where the legal position
is clear, either on account of express
provisions of law or binding precedents, but
the court below has decided the matter,
either ignoring or acting contrary to such
legal principle. In the second type of cases,
the substantial question of law arises not
because the law is still debatable, but
because the decision rendered on a material
question, violates the settled position of
law.”
The principles laid down therein do not advance the case of the
respondents as the High Court did not arrive at any finding which could
involve their application to the facts of the present case.
14
In Makhan Singh (Dead) By Lrs. V. Kulwant Singh [(2007) 10 SCC
602] whereupon again reliance has been placed by Mr. Chandrasekhar, this
Court held :
“9. The High Court has also rightly observed that
there was no presumption that the property owned
by the members of the joint Hindu family could a
fortiori be deemed to be of the same character and
to prove such a status it had to be established by
the propounder that a nucleus of joint Hindu
family income was available and that the said
property had been purchased from the said nucleus
and that the burden to prove such a situation lay
on the party, who so asserted it. The ratio of K.V.
Narayanaswami Iyer case2 is thus clearly
applicable to the facts of the case. We are
therefore in full agreement with the High Court on
this aspect as well. From the above, it would be
evident that the High Court has not made a
simpliciter reappraisal of the evidence to arrive at
conclusions different from those of the courts
below, but has corrected an error as to the onus of
proof on the existence or otherwise of a joint
Hindu family property.”
18. The instant case does not come within the purview of the
aforementioned dicta. The High Court did not deal with the substantial
questions of law formulated at the time of admission at all. We, therefore,
are of the opinion that the impugned judgment cannot be sustained. It is set
aside accordingly and the matter is remitted to the High Court for
15
consideration of the matter afresh. In the event, the High Court opines that
any substantial question of law should be framed suo motu or at the instance
of the appellant before it, viz., respondent herein, it shall give an
opportunity of hearing to appellant.
19. Appeal is allowed on the aforementioned terms. In the facts and
circumstance of the case, however, there shall be no order as to costs.
……………….…..………….J.
[S.B. Sinha]
..………………..……………J.
[Cyriac Joseph]
New Delhi;
December 17, 2008
16
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