Saturday, 23 June 2018

Whether decree can be reversed on ground that appellate court has failed to frame points?

 This Court in the case of Vatsalabai wd/o
Vishwanath Nakhate & Others Vs. Madhaorao Laxmanrao
Thakare & Another, 2005(1) Mh.L.J. 980 has held that failure
of the first Appellate Court to formulate the questions, as
required under Order XLI, Rule 31 of CPC, would in deed
constitute a substantial question of law. However, when the
appeal is heard on merits and the High Court is required to
examine the question of reversal of the decree, on any such
grounds, the Court has to examine as to whether, the failure of
the first Appellate Court to formulate the question, as required
under Order XLI, Rule 31 of CPC, has resulted into miscarriage
of justice. This Court has further found that in a situation of the
present nature, the provisions of Section 99 of CPC cannot be
lost sight of. Section 99 of CPC inter alia provides that no decree
shall be reversed or substantially varied, nor shall any case be
remanded in appeal on account of any error, not affecting the
merits of the case or the jurisdiction of the Court. Now the
question whether the failure to frame such points or proper
points, has resulted into any miscarriage of justice or has
affected the merits of the case, would depend upon facts and
circumstances of each case. In the present case, I do not find
that there is any miscarriage of justice, which has resulted,
affecting the merits of the case, within the meaning of Section 99
of CPC.
IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO. 127 OF 2017

Shablo Govind Gaude  Vs  Kashinath Govind Gaude 

Coram : C.V. BHADANG, J.
Date : 14 th JUNE 2018




The challenge in this appeal, is to the concurrent
findings of the Courts below, decreeing the suit of the
respondents/plaintiffs.
2. The respondents filed Regular Civil Suit No.
56/2009/A, before the learned Senior Civil Judge at Ponda,
against the appellants, for declaration and consequential reliefs.
The respondents sought declaration that the Deed of Gift dated
09.11.2004, the Will dated 25.11.2002 and the decree dated
03.11.2007, passed by the learned Senior Civil Judge, Ponda in
Regular Civil Suit No. 87/2005/A, is null and void and for a
consequential direction to the registration authority to cancel
the said documents namely, the Deed of Gift and the Will.

3. Respondent No. 1-Kashinath Gaude and the appellant
no. 1-Shablo Gaude, are the sons of Govind Gaude and his wife
Smt. Yamuna Gaude. Govind Gaude died on 27.04.2006, while
his wife, Yamuna Gaude died on 18.04.1995. Respondent no. 2 is
the wife of respondent no. 1. The appellant no. 2 is the son of
appellant no. 1, while the appellant no. 3 is the wife of the
appellant no. 2. The appellant no. 1 and the respondent no. 1
had a brother by name Vithal Gaude. Admittedly, Vithal Gaude
was not made a party to the suit filed by the respondents.
4. The material case made out in the plaint was that the
appellants, taking undue advantage of old age of Govind Gaude,
fraudulently got executed the two documents, namely, the Gift
Deed and the Will. Insofar as the decree is concerned, the same
was obtained on the basis of the Deed of Gift. Admittedly, in
Regular Civil Suit No. 87/2005/A (in which the decree is passed),
the respondents were not made parties. Admittedly, the said suit
was filed against some third parties.
5. Be that as it may, the respondents resisted the suit,
claiming that the Deed of Gift and the Will, have not been
voluntarily executed by Govind Gaude and the suit as framed and
filed, was not maintainable.

6. On the basis of the rival pleadings, the learned Trial
Court framed as many as eight issues, apart from an additional
issue pertaining to the Deed of Gift. The parties led oral and
documentary evidence. On behalf of the respondents, Kashinath
Gaude examined himself as (PW-1) along with one Tilu Borkar
(PW-2), Ramdas Gaude (PW-3) and Santosh Madkaikar (PW-4).
The appellant no. 2, Rajendra Gaude examined himself as DW-1.
7. The learned Trial Court on appreciation of the
evidence, decreed the suit by judgment and decree dated
28.07.2015. The appellants, feeling aggrieved, challenged the
same before the learned District Judge in Regular Civil Appeal
No. 116/2015. The learned District Judge framed the following
points for determination:
1. Whether late Govind Vithu Gaude could give
entire undivided property by executing a Will in
favour of defendant no. 2 ?
2. Whether late Govind Vithu Gaude could gift entire
undivided property by way of a Deed of Gift in
favour of defendant no. 1 ?
3. Whether the defendants no. 1 and 2 could enter
their names in survey records in respect of
property bearing survey no. 186/0 of village
Gaune, Bandora, Ponda, Goa on the basis of a
judgment and decree obtained in Regular Civil
Suit No.87/2005/A ?
4. Whether the impugned judgment and decree
passed by the learned Trial Judge is arbitrary and
perverse and is required to be quashed and set
aside ?

8. The learned District Judge answered all the points in
the negative and dismissed the appeal vide judgment and decree
dated 31.05.2016. Hence, this appeal.
9. I have heard Shri Nagvenker, the learned Counsel for
the appellants and Shri Bhobe, the learned Counsel for the
respondents. With the assistance of the learned Counsel for the
parties, I have gone through the impugned judgment of the
Courts below.
10. Shri Nagvenker, the learned Counsel for the
appellants has raised three contentions. Firstly, it is submitted
that Vithal Gaude, the third son of Govind Gaude, not being
made a party to the suit, the suit could not have been decreed. It
is submitted that the respondents had sought a declaratory
relief, in which, Vithal Gaude was one of the co-owners, as such,
he was a necessary party. Secondly, it is contended that the
Appellate Court has not framed proper points, which is, in
breach of Order XLI, Rule 31 of the Code of Civil Procedure
(CPC, for short). Lastly, it is submitted that the Courts below
could not have declared the Gift Deed, the Will and the decree
(passed in some other suit), as null and void. It is also submitted

that if, it was found that the Gift and the Will was in excess of
disposable quota, it could have been restricted to such
disposable quota of the testator/donor.
11. Shri Bhobe, the learned Counsel for the respondents
has supported the impugned order. It is submitted that the
ground about Vithal Gaude, being a necessary party was not
raised before the Trial Court and the judgment of the Appellate
Court also does not show that it was raised in appeal, during the
course of hearing. It is submitted that Vithal Gaude cannot be
said to be a necessary party, in as much as, he was not a party to
the Gift Deed, the Will or the decree in Regular Civil Suit No.
87/2005.
12. It is submitted by the learned Counsel for the
respondents that the Courts below have rightly decreed the suit
on appreciation of evidence and the concurrent findings of fact
so reached, cannot be interfered with in a second appeal. It is
submitted that the Appellate Court has framed the necessary
points and the appellants have not demonstrated any prejudice,
on account of failure to frame any particular point by the first
Appellate Court.

13. I have carefully considered the rival circumstances
and the submissions made and I do not find that the appeal
raises any substantial question of law.
14. At the outset, it is necessary to note that the ground
about non-joinder of Vithal Gaude, as party defendant in the suit,
was not raised before the Courts below. Even otherwise, the suit
was for declaration of the Deed of Gift, the Will and the decree
as null and void, which were entirely in the favour of the
appellants, to which, Vithal Gaude was not a party. Thus, in my
considered view, it cannot be accepted that Vithal Gaude could
be said to be a necessary party to the suit.
15. Even insofar as the points, which are framed by the
first Appellate Court, are concerned, the points as set out above,
would show that the necessary issues/points have been framed
by the Appellate Court.
16. This Court in the case of Vatsalabai wd/o
Vishwanath Nakhate & Others Vs. Madhaorao Laxmanrao
Thakare & Another, 2005(1) Mh.L.J. 980 has held that failure
of the first Appellate Court to formulate the questions, as
required under Order XLI, Rule 31 of CPC, would in deed
constitute a substantial question of law. However, when the
appeal is heard on merits and the High Court is required to
examine the question of reversal of the decree, on any such
grounds, the Court has to examine as to whether, the failure of
the first Appellate Court to formulate the question, as required
under Order XLI, Rule 31 of CPC, has resulted into miscarriage
of justice. This Court has further found that in a situation of the
present nature, the provisions of Section 99 of CPC cannot be
lost sight of. Section 99 of CPC inter alia provides that no decree
shall be reversed or substantially varied, nor shall any case be
remanded in appeal on account of any error, not affecting the
merits of the case or the jurisdiction of the Court. Now the
question whether the failure to frame such points or proper
points, has resulted into any miscarriage of justice or has
affected the merits of the case, would depend upon facts and
circumstances of each case. In the present case, I do not find
that there is any miscarriage of justice, which has resulted,
affecting the merits of the case, within the meaning of Section 99
of CPC.
17. Coming to the last ground, I have carefully gone
through the compilation of the evidence produced by the learned
Counsel for the appellants and the findings recorded by the

Courts below and I do not find that they suffer from any infirmity
and they cannot be said to be perverse, so as to require
interference with in a second appeal.
18. The contention that the Gift Deed and the Will could
be restricted to the disposable quota, cannot be accepted. This
is for the reason that the Gift Deed or the Will, could be
restricted to the disposable quota (if in excess of disposable
quota), if such Will or Gift Deed is found to be genuine. It will
not apply to a case where they have been found to be null and
void. To put it otherwise, if a disposition by the Gift Deed or the
Will is found to be otherwise valid, but, in excess of the
disposable quota, then such Gift or Will can be restricted to such
disposable quota and not otherwise. Therefore, the contention in
this regard, in my considered view, cannot be accepted. The
appeal is without any merit and is accordingly dismissed with no
order as to costs.
C.V. BHADANG, J.

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