K.Raveendran vs K.Premachandran @ Unnipilla

A. Badharudeen, J

This regular second appeal has been filed under Section 100 r/w Order XLII Rule 1 of the Code of Civil Procedure, 1908, challenging the preliminary decree of partition passed in O.S.No.112/2007, on the files of the Principal Munsiff's Court, Neyyattinkara and also the judgment and decree dated 04.04.2008 in A.S.No.555/2014 on the files of the Additional District Judge-IV, Thiruvananthapuram, confirming the verdict of the trial court.

The appellant herein is the plaintiff in O.S.No.112/2007 and the respondents herein are the defendants in the above Suit.

Heard the learned counsel for the appellant as well as the learned counsel for the respondents. Perused the available materials. At the time of admission hearing, the learned counsel for the appellant raised a specific contention disputing the partiable nature of plaint F schedule property, though he did not dispute the partiable nature of the other items of properties.

I shall refer the parties in this regular second appeal as 'plaintiff' and 'defendants' for convenience.

K.Raveendran, the plaintiff, filed O.S.No.112/2007, seeking partition of plaint A to F schedule properties, raising contention that the properties originally belonged to Kuttan Nadar, who is the father of the plaintiff and the defendants by virtue of an Oodukoor settlement award passed in the year 1952 dated 26.01.1952. While so, Kuttan Nadar died and Gouri, the wife of Kuttan Nadar, also died. Accordingly, the plaintiff sought partition of the plaint A to F schedule properties in between the plaintiff and defendants 1 to 4 and to allot 1/5th share out of the plaint schedule properties to the plaintiff and the defendants.

Contesting defendants resisted partition sought for by the plaintiff. Accordingly, the trial court ventured the matter and recorded evidence. On evaluation of the available evidence, the trial court excluded the properties covered by Exts.B1 to B3 as well as Exts.A3 and B6 from partition while allowing partition of the remaining portion of the properties.

Even though the learned counsel for the plaintiff pointed out anomaly in the matter of partition granted in respect of plaint F schedule, it is to be noted that plaint F schedule is the property, having an extent of 15 cents and the same was owned by Gouri, admittedly, the mother of the parties. As per Exts.A4 and A5 sale deeds, Gouri obtained total 13 cents of property, i.e, 9 cents + 4 cents. Later, Gouri executed Exts.B1 to B3 and transferred 6 cents (Ext.B1), 6 cents (Ext.B2) and 3 cents (Ext.B3).

According to the plaintiff, Exts.B6 and A3 are sham documents and therefore, the same do not bind the plaintiff. The contention raised by the plaintiff disputing Exts.B6 and A3 were found against by the trial court for want of evidence and accordingly, preliminary decree of partition passed as under:

In the result a preliminary decree is passed on the following terms.

(1) That, the plaintiff shall be entitled to get 1/5 shares over the plaint A to F schedule subject to the general directions contained below.

(2) While the F schedule is partitioned, in the final decree stage, the properties described in Ext.A4 and A5 documents with excess lands if any shall be fixed first. From those properties, the properties covered under Ext.B1 to B3 documents shall be exempted.

(3) The properties covered under Ext.B6 and A3 documents shall be exempted from partition.

(4) Plaintiff shall apply for passing a final decree in tune with the above directions within 60 days from today.

(5) Suit is adjourned Sine die

(6) No cost.”

On appeal, the appellate court also confirmed the same. In this matter, on perusal of the verdicts under challenge, it is emphatically clear that there is no dispute as to the partiable nature of properties excluding the properties covered by Exts.B1 to B3 and Exts.B6 and A3 documents. It is discernible that plaint F schedule property is the property independently owned by Gouri. Since Gouri died, plaintiff and defendants are the legal heirs of Gouri. But their right of succession shall be subject to the rights of the persons who obtained properties on the strength of Exts.B1 to B3 documents. That is to say, the properties transferred by Exts.B6 and A3 also cannot be partitioned, since no challenge either raised by seeking the relief of declaration that the said documents did not bind the plaintiff nor no evidence adduced to hold Exts.B6 and A3 as void documents not binding on the plaintiff. Similarly, no evidence let in to prove that Ext.B6 document, whereby ten cents of property was transferred in the name of D4 and Exts.A3, whereby 15 cents of property was transferred in the name of Kamaraj Service Charitable Society, are void documents and the same shall not bind the plaintiff. In fact, in the case at hand, the transfers effected as per Exts.B1 to B3 as well as Exts.B6 and A3 are in order. As such, the respective title holders would get title in respect of the properties covered by the above title deeds. Therefore, the trial court rightly excluded the portion of the properties covered by Exts.B1 to B3 and Exts.B6 and A3 from the purview of partition after protecting the rights of the title holders as per Exts.B1 to B3 as well as Exts.B6 and A3.

In this case, involving the above factual aspects, the learned counsel for the appellant failed to justify 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. In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722], the Apex Court held that:

"After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of the hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence."

"It has been noticed time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under S.100 of the Code of Civil Procedure. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this section. The substantial question of law has to be distinguished from a substantial question of fact."

"If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal."

When no substantial question of law is formulated, but a Second Appeal is decided by the High Court, the judgment of the High Court is vitiated in law, as held by this Court in Biswanath Ghosh v.Gobinda Ghose, AIR 2014 SC 152. Formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal can not satisfy the mandate of S.100 of the CPC.

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 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. We may only refer to Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179]  (three  –  Judge  Bench)  wherein  this Court observed as follows:

The phrase “substantial question of law”, as occurring in the amended S.100 is not defined in the Code. The word substantial, as qualifying “question of law”, means – of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as 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.

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.

At the time of admission, nothing suggested in this matter in the form of substantial question of law to admit the second appeal. Therefore, this second appeal cannot be admitted without formulating substantial question of law and the same is liable to be dismissed.

In the result, this appeal is dismissed without being admitted.

All interlocutory orders stand vacated and all interlocutory applications pending in this regular second appeal stand dismissed.

Registry shall inform this matter to the trial court as well as the appellate court forthwith.