T. Viswanathan vs Devaraj and Others

G. Rajasuria, J.—This second appeal has been filed by the plaintiff, animadverting upon the judgement and decree dated 31.7.2008 passed

by the learned Subordinate Judge, Vellore, in A.S. No. 70 of 2007, confirming the judgement and decree dated 26.7.2007 passed by the learned

Principal District Munsif, Vellore, in O.S. No. 859 of 1997. For convenience sake, the parties are referred to here under according to their

litigative status before the trial Court.

A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this second appeal, would

run thus:

(i) The appellant/plaintiff filed the suit O.S. No. 859 of 1997 as against as many as five defendants, seeking the following reliefs:

a) to direct the defendants 1 to 4 herein to effect division of the schedule properties into 25 equal shares and slot six such shares to the plaintiff

having regard to the good and bed qualities of the soil and by metes and bounds and order delivery of possession of such separated share to the

plaintiff. b) to appoint an Advocate Commissioner for the said purpose if necessary.

(extract as found in the memorandum of second appeal)

(ii) During enquiry, the trial Court framed the relevant issues. The plaintiff examined herself as P.W.1 along with three others and Exs.A1 to A.6

were marked. The 4th defendant examined himself as D.W.1, the 6th defendant examined herself as D.W.2 and the 5th defendant examined

herself as D.W.3 and Exs.B1 to B12 were marked.

(iii) Ultimately the trial Court dismissed the suit, as against which, the plaintiff filed the A.S. No. 70 of 2007, for nothing but to be dismissed by the

first appellate Court, confirming the judgement and decree of the trial Court.

(iv) Being disconcerted and aggrieved by the judgements of both the Courts below, this second appeal has been focussed by the plaintiff on

various grounds suggesting the following substantial questions of law, which are extracted here under:

i) Have not the Courts below erred in law in mis-appreciating the entire oral and documentary evidences in this case which has resulted in

miscarriage of justice to the appellant/plaintiff herein?

ii) Have not the Courts below erred in law in not drawing adverse inference over the aspect that defendants 2 to 3 never got into the box to speak

about their case?

iii) Have not the Courts below erred in law in not drawing adverse inference over the collusive sale of a portion of 2nd item by 5th defendant

mother in favour of her own daughter-in-law (2nd defendant''s wife)?

(iv) Have not the Courts below erred in law in relying on vague defence taken by the defendants, without considering the probable circumstances

that the appellant/plaintiff as eldest son of 1st and 5th defendants, contributed substantially for purchase of 1st item and also for purchase of 2nd

item the 5th defendant being only a house wife?

(extract as found in the memorandum of second appeal)

Heard the learned Counsel appearing for the plaintiff/appellant.

A poring over and perusal of the typed set of papers, including the certified copies of the judgements and decrees of both the Courts below,

would highlight that the plaintiff filed the suit for partition on the main ground that the plaintiff and the defendants constituted Hindu joint family and

the deceased D1 was the ''kartha'' of the said joint family; the plaintiff and D2 to D4 are the sons and D5 is the widow of D1 and D6 is the wife of

D2; the properties described in the schedule of the plaint are all joint family properties and accordingly, the plaintiff prayed for partition.

Whereas, the defendants disputed the claim of the plaintiff on the ground that the first item of the suit property was purchased by D2 to D4 from

out of their own earnings as per Ex.B6-the sale deed dated 17.10.1994; the suit items 2 and 3 are the exclusive properties of D5, as she

purchased those items as per Ex.B8-the sale deed dated 10.6.1977 and she also alienated a part of her self-acquired property.

D6 would contend that D5 alienated a part of her self-acquired property in her favour so to say the item No. 2(d) for valuable consideration as

per Ex.B9-the sale deed dated 17.6.1997.

The deceased D1, during his life time, filed the written statement, pointing out that the plaintiff is having nothing to do with the suit properties.

Both the Courts below, after considering the evidence on record held that absolutely there was no infinitesimal or miniscule extent of evidence to

demonstrate and evince that the suit properties are the joint family properties. There is absolutely nothing to highlight that any ancestral income

yielding property was in possession of the deceased D1. There is also no indication that from out of the joint earnings of the plaintiff and the

defendants 1 to 4, the properties were purchased.

The pertinent question arises as to why the plaintiff was not one of the purchasers in any one of those sale deeds referred to supra, under which

the suit items 1 to 5 were acquired by D2 to D5. If at all the plaintiff also contributed for the purchase of those items, at that relevant time itself, he

should have insisted for including his name or otherwise he should not have allegedly contributed for such acquisition of those properties.

Both the Courts below considered the preponderance of probabilities and also the precedents and rendered the judgements, warranting no

interference.

The learned Counsel for the plaintiff would submit that the very fact that D5 sold in favour of her daughter-in-law-D6 a part of item No. 2

would speak volumes about the collusive nature of the transaction. From the bare fact of the sale of item No. 2(d) by D5 in favour of D6, the joint

family nature of the property cannot be inferred as alleged by the plaintiff.

The learned Counsel for the plaintiff would submit that D5 is only a house wife and she could not have acquired those properties concerned.

The fundamental question that remains to be answered by the plaintiff is as to whether there was any income yielding joint family nucleus at all.

It is quite obvious from the available evidence that absolutely nothing has been pointed out that there was any ancestral property and there is

also no evidence to show that there was any income yielding ancestral nucleus for acquisition of the suit properties.

To the risk of repetition without being tautologous, I would like to point out that on the plaintiff''s side there is nothing to indicate and

exemploify that he contributed for the purchase of the suit properties and furthermore, as already highlighted supra, the very fact that his name is

not found in any of the sale deeds under which D2 to D6 acquired the properties, bespeaks that his pleas are borne out of fabulous and

phantasmagorical thoughts and nothing else.

Both the Courts below considered the oral and documentary evidence on the plaintiff''s side and held that the evidence on the plaintiff''s side

were far from proving the claim of the plaintiff.

The learned Counsel for the plaintiff would submit that as per Ex.A2-the pro-note dated 11.4.1977 executed by the plaintiff in favour of

Thanjiammal it could be inferred that he also contributed for purchasing the suit properties. At the most, the discharged pro-note would show that

the plaintiff was in penury and cash trapped situation and nothing more. Accordingly, I could see no merit in the second appeal and the suggested

substantial questions of law are not at all in stricto sensu could be taken as substantial questions of law.

At this juncture my mind is reminiscent and redolent of the following decisions of the Hon''ble Apex Court.

(i) Hero Vinoth (minor) Vs. Seshammal, , certain excerpts from its would run thus:

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....

...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 or to enlarge those grounds. The second appeal cannot be decided

on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section.

Further, a substantial question of law has to be distinguished from a substantial question of fact....

...However, it is clear that the legislature has chosen not to qualify the scope of ""substantial question of law"" by sufficing the words ""of general

importance"" as has been done in many other provisions such as Section 109 of the Code or Article 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. In Guran

Ditta v. Ram Ditta the phrase ""substantial question of law'' as it was employed in the last Clause of the then existing Section 100 CPC (since

omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general

importance but a substantial question of law which was involved in the case. In Sir Chunilal case the Constitution Bench expressed agreement with

the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju (Sir Chunilal case, SCR p.557)

When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with

that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the

question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well

settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law.

This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:(Sir Chunilal case,

SCR pp.557-58)

The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public

importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is

not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or call for discussion of alternative

views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a

mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.

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 his 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).

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(iii) The general rule is that High Court will not interfere with the concurrent findings of 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.

(ii) Kashmir Singh Vs. Harnam Singh and Another,

(iii) 2009 1 L.W.1 - State Bank of India and Ors. v. S.N. Goyal

A plain reading of those precedents would reveal and demonstrate that u/s 100 of the Code of Civil Procedure, Second Appeal cannot be

entertained, unless there is substantial question of law involved. Here as held supra, there is no substantial question of law is found exemplified.

Accordingly, the second appeal is dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition

is closed.