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Judgment
A. Badharudeen, J
This appeal has been filed under Section 100 r/w Order XLII Rule 2 of the Code of Civil Procedure (for short, ‘the C.P.C.’ hereinafter) against the judgment and decree in O.S.No.22/2013, dated 9.11.2015 on the files of the Sub Court, Kannur and also against the judgment and decree in A.S.No.26/2016, dated 5.10.2018 on the files of the District Court, Thalassery.
Heard the learned counsel for the appellants as well as the learned counsel for the respondents, on admission.
I shall refer the parties in this appeal as ‘plaintiffs’ and ‘defendants 1 and 2’ for convenience.
Originally, a suit for partition was filed by the plaintiffs, who are the children of one Valappil Manikkam, on the assertion that the plaint schedule property was owned by Manikkam and she died intestate. It was contended that though one gift deed was executed in favour of defendants 1 and 2, the same has no legal effect. Accordingly, ignoring the said deed, partition of the plaint schedule property was sought for.
Defendants 1 and 2 entered appearance and claimed absolute title upon the plaint schedule property, relying on Gift deed No.1674/2008 of Kalliassery SRO, executed by Manikkam, in favour of them.
The trial Court ventured the matter and recorded evidence. PW1 and PW2 were examined and Exts.A1 to A4 were marked on the side of the plaintiffs. DW1 to DW4 were examined and Exts.B1 to B4 were marked on the side of the defendants. Finally, the trial court found that, as per Ext.B1 gift deed, the title is vested with the defendants 1 and 2 and accordingly, plea for partition was disallowed. The said verdict was appealed before the District Court, Thalassery and as per decree and judgment in A.S.No.26/2016, dated 5.10.2018, the learned District Judge also confirmed the finding of the trial court.
The learned counsel for the plaintiffs, while pressing for admission of this appeal by raising substantial question of law, argued at length to convince this Court that, Ext.B1 got executed by defendants 1 and 2 in their favour when the mother Manikkam was in a bad mental state and when she was not aware of the acts and deeds done by her. Therefore, Ext.B1, executed by the mother in the said circumstances, is only to be ignored and the property is available for partition.
Dispelling this argument, the learned counsel for the defendants 1 and 2 submitted that Manikkam voluntarily executed Ext.B1, in favour of defendants 1 and 2. According to him, there is no challenge as against Ext.B1 in the plaint and therefore, the plaint itself is defective. It is argued further that, DW3, a document writer was examined to prove the execution of Ext.B1 and as such, Ext.B1 conferred absolute title upon the defendants 1 and 2. Therefore, the trial court as well as the appellate court rightly negatived the plea for partition, at the option of the plaintiffs.
To be on the crux of this matter, on perusal of the plaint, there is no specific plea to declare Ext.B1 either as non-est or as not binding upon the plaintiffs and partition was sought for, ignoring the gift deed. In the decision reported in Fathima Beevi v. Abdul Rahman reported in [2023 (6) KHC 500], this Court considered somewhat similar case and held as under:
“13. In the decision in Suhrid Singh @ Sardool Singh v. Randhir Singh and Others, reported in [2010 KHC 4216], the Apex Court considered the question as to payment of court fee when the prayer is one for declaration that the deeds do not bind the plaintiff or his right on the plaint schedule property and it was held that, where the executant of a deed wanted to annul a deed, he had to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he had to seek a declaration that the deed is invalid or non-est or illegal or that it is not binding on him. The following explanation also was given by the Apex Court to make the position more vivid and the same is as under:
“The difference between a prayer for cancellation and declaration in regard to a deed of transfer / conveyance, can be brought out by the following illustration relating to 'A' and 'B' two brothers. 'A' executes a sale deed in favour of 'C'. Subsequently 'A' wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if 'B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by 'A is invalid / void and nonest / illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non binding. But the form is different and court fee is also different. If 'A', the executant of the deed, seeks cancellation of the deed, he has to pay advalorem court fee on the consideration stated in the sale deed. If 'B', who is a non executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs 19.50 under Art 17(iii) of Second Schedule of the Act. But if 'B', a non executant, is not in possession and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an advalorem court fee as provided under S. 7(iv)(c) of the Act. S.7(iv)(c) provides that in suits for a declaratory decree with consequential relief the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of S7.”
It was held further in paragraph No. 9 as under:
“9. In this case, there is no prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the "coparcenery” and for joint possession. The plaintiff in the suit was not the executant of the sale deeds. Therefore, the court fee was computable under S.7(iv)(c) of the Act. The trial court and the High Court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that therefore court fee had to be paid on the sale consideration mentioned in the sale deeds.”
In view of the legal position, a suit filed without seeking declaration that Ext.B1 is invalid, non-est or illegal or not binding on the plaintiffs, could not succeed.
Ignoring the said anomaly, if it is assumed that the plaint is one filed properly with the above prayers, then the question is, how far Ext.B1 could be found as one, not binding on the plaintiffs, in any manner. In this case, the case of the plaintiffs is that, Manikkam executed the document at the time when Manikkam was not in a healthy mental state of affairs, so as to understand the acts and deeds she had done. However, no positive evidence adduced to substantiate the said contention. PW1, the 3rd plaintiff alone deposed in support of the contention and a neighbour also given evidence as PW2. In fact, no medical evidence tendered to prove that Manikkam was not in a good mental state of affairs at the time of execution of Ext.B1. Whereas, in order to prove Ext.B1 and its genuineness, apart from the evidence of DW1, DW3, a scribe also was examined and he had given candid evidence, supporting execution of Ext.B1, in a convincing manner, and his evidence not at all shaken during cross-examination.
In the said circumstances, the trial court dismissed the suit, holding that Ext.B1 conferred title upon the defendants 1 and 2. The appellate court also, on re-appreciation of evidence, concurred the said finding.
Thus, it is established by evidence that, in view of Ext.B1, defendants 1 and 2 perfected title over the entire plaint schedule property and therefore, nothing available in the name of Manikkam, at the time of her death, for partition, as contended by the plaintiffs. Therefore, the courts below rightly dismissed the suit and the said verdicts do not require any interference, in any manner.
In this case, in fact, the learned counsel for the appellants/plaintiffs failed to raise any substantial question of law warranting admission of the second appeal. Order XLII Rule 2 provides thus:
“2. Power of Court to direct that the appeal be heard on the question formulated by it.-At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.”
Section 100 of the C.P.C. provides that, (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso says that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.
In the decision in Nazir Mohamed v. J. Kamala and Others reported in [2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168], the Apex Court held that:
The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law referring Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722].
In a latest decision of the Apex Court in Government of Kerala v. Joseph, reported in [2023 (5) KHC 264 : 2023 (5) KLT 74 SC], it was held, after referring Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179] (three – Judge Bench), as under:
For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well – established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court.
The legal position is no more res-integra on the point that in order to admit and maintain a second appeal under Section 100 of the C.P.C., the Court shall formulate substantial question/s of law, and the said procedure is mandatory. Although the phrase 'substantial question of law' is not defined in the Code, 'substantial question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal.
In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal.
In the result, this appeal is found to be meritless and the same is dismissed without being admitted.
All interlocutory applications pending in this second appeal, stand dismissed.
Registry shall inform this matter to the trial court as well as the appellate court, forthwith.