Kaunto & Anr. vs Bhindro

1.

Whether defendant no.1 was the wife of the deceased Shiridhar and there was a divorce on 21.5.1976 as alleged? OPP.

2.

Whether there was a second marriage by the defendant with Shiv Ram and out of that wedlock she gave birth to defendant no.2 as alleged? OPP

3.

Whether the defendants no.1 and 2 are not the legal heirs of deceased Shiridhar as alleged? OPP (re-cast on 29.06.2006)

4.

Whether a valid will was executed by Shiridhar in favour of the plaintiff qua the suit land as alleged, and after the death of Shiridhar, the plaintiff is coming into possession of the suit land and property as alleged? OPP

5.

Whether the mutation has wrongly been attested in favour of the defendants after the death of Shiridhar and thereby the defendant has got no right or title over the suit property as alleged? OPP

6.

Whether the mutation attested in favour of the defendant is wrong as alleged? OPP

7.

Whether the plaintiff is entitled to the relief of permanent prohibitory injunction as alleged?OPP.

8.

Whether the defendants had abandoned deceased Siridhar during his life time, if so, its effect? OPP

9.

8A. Whether counter claimant/defendant no.1 is entitled for recovery of maintenance @600/-P.M. from the plaintiff as alleged? OPD/Counter Claimant. (framed on 25.04.2006).

10.

Relief.

1.

Whether the alleged divorce deed PW-5/A, as relied upon by the plaintiff/respondent, alleged to have been written on a stamp paper in Panchayat, can be considered to be a valid document of divorce, when the parties are Hindus and governed by the Hindu Marriage Act, where under Section 13 of the Hindu Marriage Act the divorce is recognised until some custom allowed?

2.

Whether the learned District Judge could have granted the relief, which has not been pleaded under Order 6 Rule 4?

3.

Whether the alleged Will PW-7/A executed, which does not cover the ingredients of Section 63-C of the Hindu Succession Act, can be considered a valid will?

Substantial question of law No. 1:

“7.

In the view that we are inclined to take in this appeal, we do not think it is necessary for us to go into the contentions advanced by the learned counsel for the parties in this case, because we find that the courts below have erroneously proceeded on the basis that the divorce deed relied upon by the parties in question was a document which is acceptable in law. It is to be noted that the deed in question is purported to be a document which is claimed to be in conformity with the customs applicable for divorce in the community to which the parties to this litigation belong. As per the Hindu law administered by courts in India, divorce was not recognised as a means to put an end to marriage, which was always considered to be a sacrament, with the only exception where it is recognised by custom. Public policy, good morals and the interests of society were considered to require and ensure that, if at all, severance should be allowed only in the manner and for the reason or cause specified in law. Thus, such a custom being an exception to the general law of divorce ought to have been specially pleaded and established by the party propounding such custom since the said custom of divorce is contrary to the law of the land and which, if not proved, will be a practice opposed to public policy. Therefore, there was an obligation on the trial court to have framed an issue whether there was proper pleadings by the party contending the existence of a customary divorce in the community to which the parties belonged and whether such customary divorce and compliance with the manner or formalities attendant thereto was in fact established in the case on hand to the satisfaction of the court. In the instant case, we have perused the pleadings of the parties before the trial court, and we do not find any material to show that prevalence of any such customary divorce in the community, based on which the document of divorce was brought into existence, was ever pleaded by the defendant as required by law or any evidence was led in this case to substantiate the same. It is true that in the courts below the parties did not specifically join issue in regard to this question and the lawyers appearing for the parties did orally agree that the document in question was in fact in accordance with the customary divorce prevailing in the community to which the parties belonged but this consensus on the part of the counsel or lack of sufficient pleading in the plaint or in the written statement would not, in our opinion, permit the court to countenance the plea of customary divorce unless and until such customary divorce is properly established in a court of law. In our opinion, even though the plaintiff might not have questioned the validity of the customary divorce, the court ought to have appreciated the consequences of there not being a customary divorce based on which the document of divorce has come into existence, bearing in mind that a divorce by consent is also not recognisable by a court unless specifically permitted by law. Therefore, we are of the opinion that, to do complete justice in this case, it is necessary that the trial court be directed to frame a specific issue in regard to customary divorce based on which the divorce deed dated 26-6-1982 has come into existence and which is the subject-matter of the suit in question. In this regard, we permit the parties to amend the pleadings, if they so desire and also to lead evidence to the limited extent of proving the existence of a provision for customary divorce (otherwise through the process of or outside court) in their community and then test the validity of the divorce deed dated 26-6-1982 based on the finding arrived at in deciding the new issue.”

“9.

It is not disputed before us that as per Hindu law divorce was not recognised as a means to put an end to marriage which was always considered to be a sacrament with only exception where it is recognised by custom. Hindus, after the coming into force of the Hindu Marriage Act, 1955 (for short “the Act”), can seek to put an end to their marriage by either obtaining a declaration that the marriage between them was a nullity on the grounds specified in Section 11 or to dissolve the marriage between them on any of the grounds mentioned in Section 13 of the Act. Section 29 of the Act saves the rights recognised by custom or conferred by special enactment to obtain the dissolution of marriage, whether solemnised before or after commencement of the Act. Section 29(2) of the Act reads:

“29.

(2) Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnised before or after the commencement of this Act.”

10.

It is well established by a long chain of authorities that prevalence of customary divorce in the community to which parties belong, contrary to general law of divorce, must be specifically pleaded and established by the person propounding such custom. The High Court came to the conclusion that the appellants failed to either plead the existence of a custom in their community to dissolve the marriage by mutual consent or to prove the same by leading cogent evidence.”

Substantial question of law number 2:

“12.

A plaintiff may rely upon different rights alternatively, and there is nothing in the Civil Procedure Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether, in the absence of any such alternative case in the plaint, it is open to the court to give him relief on that basis. The rule undoubtedly is that the court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter, and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a separate suit. 13. As an illustration of this principle, reference may be made to the pronouncement of the Judicial Committee in Babu Raja Mohan Manucha v. Babu Manzoor Ahmad Khan [Babu Raja Mohan Manucha v. Babu Manzoor Ahmad Khan, (1942-43) 70 IA 1: 1942 SCC OnLine PC 30]. This appeal arose out of a suit commenced by the appellant-plaintiff to enforce a mortgage security. The plea of the defendant was that the mortgage was void. This plea was given effect by both the lower courts as well as by the Privy Council. But the Privy Council held that it was open in such circumstances to the plaintiff to repudiate the transaction altogether and claim a relief outside it in the form of restitution under Section 65 of the Contract Act. Although no such alternative claim was made in the plaint, the Privy Council allowed it to be advanced and gave a decree on the ground that the respondent could not be prejudiced by such a claim at all and the matter ought not to be left to a separate suit. It may be noted that this relief was allowed to the appellant even though the appeal was heard ex parte in the absence of the respondent.”

Substantial question of law no.3:

“10.1.

The court has to consider two aspects: firstly, that the will is executed by the testator, and secondly, that it was the last will executed by him.

10.2.

It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.

10.3.

A will is required to fulfil all the formalities required under Section 63 of the Succession Act, that is to say:

(a)

The testator shall sign or affix his mark to the will, or it shall be signed by some other person in his presence and by his direction, and the said signature or affixation shall show that it was intended to give effect to the writing as a will;

(b)

It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary;

(c)

Each of the attesting witnesses must have seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of such signatures;

(d)

Each of the attesting witnesses shall sign the will in the presence of the testator; however, the presence of all witnesses at the same time is not required.

10.4.

For the purpose of proving the execution of the will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;

10.5.

The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of the testator;

10.6.

If one attesting witness can prove the execution of the will, the examination of other attesting witnesses can be dispensed with;

10.7.

Where one attesting witness examined to prove the will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence;

10.8.

Whenever there exists any suspicion as to the execution of the will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last will. In such cases, the initial onus on the propounder becomes heavier;

10.9.

The test of judicial conscience has evolved for dealing with those cases where the execution of the will is surrounded by suspicious circumstances. It requires consideration of factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the will; a sound, certain and disposing state of mind and memory of the testator at the time of execution; the testator executed the will while acting on his own free will;

10.10.

One who alleges fraud, fabrication, undue influence, etc., has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation.

10.11.

Suspicious circumstances must be “real, germane and valid” and not merely “the fantasy of the doubting mind [Shivakumar v. Sharanabasappa, (2021) 11 SCC 277]”. Whether a particular feature would qualify as “suspicious” would depend on the facts and circumstances of each case. Any circumstance raising suspicion, legitimate in nature, would qualify as a suspicious circumstance, for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit, etc.”

“11.

A Will has to be proved like any other document subject to the requirements of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, that is, examination of at least one of the attesting witnesses. However, unlike other documents, when a Will is propounded, its maker is no longer in the land of the living. This casts a solemn duty on the Court to ascertain whether the Will propounded had been duly proved. The onus lies on the propounder not only to prove due execution but to dispel from the mind of the court all suspicious circumstances which cast doubt on the free disposing mind of the testator. Only when the propounder dispels the suspicious circumstances and satisfies the conscience of the court that the testator had duly executed the Will of his free volition without coercion or undue influence, would the Will be accepted as genuine. In Smt. Jaswant Kaur v. Smt. Amrit Kaur (1977) 1 SCC 369, this Court, referring to H. Venkatachala Iyengar v. B.N. Thimmajamma 1959 Supp (1) SCR 426^, enumerated the principles relating to proof of Will:—

“10.

***** **** **** ****

“1.

Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.

2.

Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.

3.

Unlike other documents, the will speaks from the death of the testator, and therefore, the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.

4.

Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and, therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.

5.

It is in connection with wills, the execution of which is surrounded by suspicious circumstances, that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question, and by reason of suspicious circumstances, the court has to be satisfied fully that the will has been validly executed by the testator.

6.

If a caveator alleges fraud, undue influence, coercion, etc., in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.”

“9.

In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, an adversary proceeding becomes in such cases a matter of the court's conscience, and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party that sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will.”

12.

Similarly, in Ram Piari v. Bhagwant (1993) 3 SCC 364, this Court held that when suspicious circumstances exist, Courts should not be swayed by the due execution of the Will alone:

“3.

……………….Unfortunately, none of the courts paid any attention to these, probably because they were swayed by due execution even when this Court in Venkatachaliah case [AIR 1959 SC 443: 1959 Supp (1) SCR 426] had held that proof of signature raises a presumption about knowledge, but the existence of suspicious circumstances rebuts it…………….

13.

There is no cavil when suspicious circumstances exist and have not been repelled to the satisfaction of the Court; the Court would not be justified in holding that the Will is genuine since the signatures have been duly proved and the Will is registered. (AIR 1962 SC 567).

“20.

In the case of Ryali Kameswara Rao v. Bendapudi Suryaprakasarao AIR 1962 AP 178, the Court, while discussing the provisions of Section 63 of the Succession Act, 1925, has held that the suspicion alleged must be one inherent in the transaction itself and not the doubt that may arise from a conflict of testimony which becomes apparent on an investigation of the transaction. That suspicious circumstances cannot be defined precisely. They cannot be enumerated exhaustively. They must depend upon the facts of each case. When a question arises as to whether a will is genuine or forged, normally the fact that nothing can be said against the reasonable nature of its provisions will be a strong and material element in favour of the probabilities of the will. Whether a will has been executed by the testator in a sound and disposing state of mind is purely a question of fact, which will have to be decided in each case on the circumstances disclosed and the nature and quality of the evidence adduced. When the will is alleged to have been executed under undue influence, the onus of proving undue influence is upon the person making such allegation and the mere presence of motive and opportunity are not enough.”

“23.

The District Judge has relied heavily on the contradictions appearing in the depositions of DW.1 Satya Devi, DW. 2 Keshav Ram, DW. 3 Sher Singh and DW.4 Amar Singh with regard to the execution of the Will. Such contradictions, which are of a minor nature, will not be a suspicious circumstance. The memory fades away with the passage of time, and when evidence is being given after a lapse of six years, the witnesses cannot be expected to make a parrot-like statement on each and every minor aspect of the case. Therefore, the District Judge has erred in relying upon such minor contradictions coming in the statements of various witnesses.”

Kartar Singh (D.W.3) also stated in his cross-examination that when they started from the village, he, Tirath Singh, Ralla, Harbhajan Singh, and Karnail Singh were together. According to the learned counsel for the respondent, it clearly goes to show that Tirath Singh and Karnail Singh, the appellants, had taken an active part in getting the Will executed from Ralla in their favour. There is no substance in this contention. It was not elicited from Gobind Parshad (D.W.2) and Kartar Singh (D.W.3) as to how and in what manner Tirath Singh and Karnail Singh had taken an active part in the execution of the Will or that Ralla was influenced by them to execute that Will in their favour. The mere fact that at the time of scribing the Will, they were present or that they had accompanied Ralla from the village to the Court compound where the Will was scribed, is not sufficient to draw an inference that they had exercised any undue influence on Ralla and under the influence, Ralla had executed the Will in their favour.

“Otherwise, also, the presence of the beneficiary or such beneficiary accompanying the testator for the execution of a Will, would not show that undue influence was exercised by the beneficiary in the execution of the Will. The Will was registered on the same day, and the endorsement of the Sub-Registrar shows that the contents of the Will were read over and explained to Shri Dilu by the Sub-Registrar, who admitted the contents to be correct. It is now well settled that the mere presence of the beneficiary or their accompanying the testator would not show the exercise of undue influence in the execution of the Will (See Tirath Singh v. Sajjan Singh (Died) through his L.Rs. 1998 (1) SLJ 232). In Gun Parkash v. Bhola Nath, AIR 1997 Him Pra 27, the Will was scribed in the presence of family members of the beneficiary. The testator was an old lady, and natural heirs were deprived of it. In this context, it was observed : "No doubt, the presence of the family members of the defendants has been stated to be there by the plaintiff's witnesses, but that by itself will not make the Will suspicious unless something more than that is established. The Will in question in the instant case is registered, and the deceased was identified by an Advocate before the Sub-Registrar. Simply because the testator was an old lady and natural heirs have been deprived by her is not, by itself, a suspicious circumstance to discard the same......."

23.

It may be remembered that deceased testator Shri Dilu was living at the relevant time with defendant No. 1 and there is nothing unnatural in the defendant, the beneficiary, being present at the time of execution of the Will.

10.

This Court in Smt. Leela alias Bali Devi (supra), relying upon Tirath Singh and others v. Sajjan Singh (Died) through his L.Rs. and others, 1998(1) S.LJ. 232 and Gun Parkash and another v. Bhola Nath, AIR 1997 H.P 27, held that the fact that the beneficiary accompanied the testator for the execution of a Will would not show that undue influence was exercised by the beneficiary in the execution of the Will. The presence of the family members of the beneficiary in itself will not make the Will suspicious unless something more than that is established. Simply because the testatrix was an old lady, suffering from tuberculosis, and the fact that her natural heirs were deprived in itself will not be a suspicious circumstance to discard the Will.

“10.

I am in agreement with the contention of Mr Mariaputham that suspicious circumstances ought to have been pleaded and urged. Those cannot be pleaded or urged for the first time before the appellate Court specially when the foundation of such a suspicious circumstance was not laid before the Probate Court nor pleaded otherwise Supreme Court in the case of P.P.K. Gopalan Nambiar v. Balakrishnan Nambiar reported in 1995 Supp (2) SCC 664 : (AIR 1995 SC 1852) observed that any suspicious circumstance ought to be urged by the objector should be pleaded and proved. Without such pleading and proof, it cannot be taken into consideration. A similar view was expressed by the Apex Court in the case of Trojan and Co. Ltd. v. Nagappa Chettiar reported in 1953 SCR 789 : (AIR 1953 SC 235), as well as in the case of Srivenkataramana Devaru v. State of Mysore reported in 1958 SCR 895 : (AIR 1958 SC 255 at p. 263, para 14) where the Apex Court laid down the law as such : "The object of requiring a party to put forward his pleas in the pleadings is to enable the opposite party to controvert them and to adduce evidence in support of his case. And it would be neither legal nor just to refer to evidence adduced with reference to a matter which was actually in issue and on the basis of that evidence, to come to a finding on a matter which was not in issue, and decide the rights of the parties on the basis of that finding. We have accordingly declined to entertain this contention."

11.

In this view of the matter, this Court is not inclined to entertain such suspicious circumstances, which were neither pleaded nor proved before the probate Court…”

“11..…. In the present case, the trial court, after a scrutiny and analysis of the evidence of Defendant 1, Smt. Parvati Bai, Vir Bhadra, Sheikh Nabi, Shivraj and Gyanoba Patil, who are witnesses to the Will, recorded the finding that none of them deposed that Lachiram had signed the said Will before them and they had attested it. None of them, except Sheikh Nabi, even deposed as to when the talk about the execution of the Will was held. The witness, Sheikh Nabi, however, deposed that the talk about the Will also took place at the time of the talk about the adoption. But this witness too did not depose that deceased Lachiram had signed the alleged Will in his presence. In the absence of such evidence, it is difficult to accept that the execution of the alleged Will was proved in accordance with law as required by Section 68 of the Evidence Act, read with Section 63 of the Indian Succession Act and Section 3 of the Transfer of Property Act. It may be true, as observed by the High Court, that the law does not emphasise that the witness must use the language of the section to prove the requisite merits thereof, but it is also not permissible to assume something which is required by law to be specifically proved. The High Court simply assumed that Lachiram must have put his signature on the Will Deed in the presence of the attesting witness, Sheikh Nabi, simply because the Deed of Adoption is admitted by the witness to have been executed on the same day. The High Court committed a serious error in making the observations that the broad parameters of Nabi's evidence would show that Lachiram executed the Will in his presence, that he signed the Will, being part of the execution of the testament, and this evidence, in its correct background would go to show that what was required under Section 63 has been carried out in the execution of the Will. With respect to the High Court, we may say that these findings of the High Court are clearly based on assumptions and surmises and are totally against the weight of the evidence on record. The trial court, on a close and thorough analysis of the entire evidence came to a proper conclusion that the Will has not been proved in accordance with the law which finding has been further affirmed by the lower appellate court after an independent reappraisal of the entire evidence with which we find ourselves in agreement as there was hardly any scope or a valid reason for the High Court to interfere with.

12.

Further, it may not be out of place to mention that sub-section (1) of Section 100 of the Code of Civil Procedure explicitly provides that 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. Sub-section (4) of Section 100 provides that when the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. But surprisingly enough, the High Court seems to have ignored these provisions and proposed to reappreciate the evidence and interfere with the findings of fact without even formulating any question of law. It has been the consistent view of this Court that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, based on an appreciation of the relevant evidence. There is a catena of decisions in support of this view. Having regard to all the facts and circumstances of the present case discussed above, we are satisfied that there was no justification for the High Court to interfere with the well-reasoned findings of the two courts below. Consequently, this appeal must succeed.” (Emphasis supplied).

“15.

Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has erred in reappreciating the evidence on record in the second appeal under Section 100 CPC. The High Court has materially erred in interfering with the findings recorded by the first appellate court, which were on reappreciation of evidence, which was permissible by the first appellate court in the exercise of powers under Section 96 CPC. Cogent reasons, on appreciation of the evidence, were given by the first appellate court. The first appellate court dealt with, in detail, the so-called suspicious circumstances which weighed with the learned trial court, and thereafter it came to the conclusion that the will, which as such was a registered will, was genuine and did not suffer from any suspicious circumstances. The findings recorded by the first appellate court are reproduced hereinabove. Therefore, while passing the impugned judgment and order [Lehna Singh v. Gurnam Singh, Civil Regular Second Appeal No. 2191 of 1985, order dated 27-11-2007 (P&H)], the High Court has exceeded its jurisdiction while deciding the second appeal under Section 100 CPC.”

“25.

The question as to whether a substantial question of law arises has been a subject matter of interpretation by this Court. In the judgment in Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan [Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan, (1999) 6 SCC 343], it was held that findings of fact could not have been interfered with in the second appeal. This Court held as under : (SCC pp. 347-48, paras 12-15)

“12.

This Court had repeatedly held that the power of the High Court to interfere in a second appeal under Section 100 CPC is limited solely to deciding a substantial question of law if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below, without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.

13.

In Ramanuja Naidu v. V. Kanniah Naidu [Ramanuja Naidu v. V. Kanniah Naidu, (1996) 3 SCC 392], this Court held : (SCC p. 393)

‘It is now well settled that concurrent findings of fact of the trial court and the first appellate court cannot be interfered with by the High Court in the exercise of its jurisdiction under Section 100 of the Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did.’

14.

In Navaneethammal v. Arjuna Chetty [Navaneethammal v. Arjuna Chetty, (1996) 6 SCC 166], this Court held: (SCC p. 166)

‘Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. … Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material.’

15.

And again, in Taliparamba Education Society v. Moothedath Mallisseri Illath M.N. [Taliparamba Education Society v. Moothedath Mallisseri Illath M.N., (1997) 4 SCC 484], this Court held: (SCC p. 486, para 5)

5.

… The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording a reverse finding of fact, which is impermissible.”

“32.3.

The general rule is that the High Court will not interfere with findings of fact arrived at by the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to “decision based on no evidence”, it not only refers to cases where there is a total dearth of evidence, but also refers to any case where the evidence, taken as a whole, is not reasonably capable of supporting the finding.”

Additional submissions

2.

The aforesaid paragraph indicates that at the time of admitting the second appeal under Section 100CPC, substantial questions of law were not formulated. Unless substantial questions of law are formulated at the time of admission of the appeal or at any time subsequent thereto, a second appeal cannot be finally heard. The reason is that a second appeal can be finally heard only on a substantial question of law formulated earlier. In fact, the act of finally hearing a second appeal without framing any substantial question of law is itself illegal.

3.

There is nothing on record to show that the High Court formulated the substantial questions of law and gave an opportunity to the parties to argue on the basis of those substantial questions of law. All that the High Court says is that the Court has confined itself to three substantial questions of law.

4.

The High Court did not put the rival advocates to notice before the commencement of the hearing that it was proposing to hear the appeal on specific substantial questions of law. The High Court could have framed substantial questions of law and heard the appeal after a few days, so that the advocates had notice that the appeal would be heard on specific substantial questions of law.

5.

Therefore, the procedure followed by the High Court is completely illegal and contrary to Section 100CPC….

7.

As per Section 100, a High Court can proceed to hear a second appeal only if the case involves a substantial question of law, implying that when the appeal is taken up for admission, it must satisfy itself that a substantial question of law is involved. Thereafter, the High Court must frame such a question and direct the parties to submit their arguments on such a question. The scheme of the Code also enables the High Court to hear the parties on any other substantial question of law, not framed by it at the first hearing, but during the course of the hearing, for the reasons to be recorded. Again, if the Court is not satisfied at the first hearing that the case does not involve a substantial question of law, it cannot proceed further. Once such an additional question of law is framed during the course of hearing, the parties must be given the opportunity to submit their arguments on the other substantial question of law(s).

Final order