2004 Supreme(SC) 733

2004(5) Supreme 559
SUPREME COURT OF INDIA
(From Karnataka High Court)
Ashok Bhan & S.H. Kapadia, JJ.
K.G. Shivalingappa (dead) by Lrs. & Others -Appellants
versus
G.S. Eswarappa & Ors. -Respondents
Civil Appeal No. 1363 of 1999
With
Civil Appeal No. 4350 of 2004
(Arising out of SLP (C) No. 1111 of 2000)
Decided on 23-7-2004
Counsel for the Parties :
For the Appearing Parties : S.S. Javali, Sr. Advocate, P.R. Ramasesh, K.P. Bindu Kumar, Ms. Vandana Jain, Mohan V. Katarki, Ashok Kumar Sharma, R.S. Hegde, Ms. Savitri Pandey and P.P. Singh, Advocates.

IMPORTANT POINTS
1. In regular second appeal the High Court can interfere with the concurrent findings recorded by the courts below only on the substantial question of law either framed at the time of admission of appeal or reframed or substituted later on at the time of arguments.
2. Partition deed though unregistered could be relied upon to establish the severance of status in the joint family.

Headnote:(i) Civil Procedure Code, 1908-Section 100-Second Appeal-Scope-While setting aside the judgment in second appeal of the Courts below which is limited to substantial questions of law, the High Court should have recorded proper reasons without setting aside the other findings the High Court could not reverse the judgment and decree of the Courts below.

       Held : The least what can be said about the judgment under appeal is that it is cryptic and bereft of any reason whatsoever. It is abrupt in the sense that after noting the contentions raised by the learned counsel appearing for the parties the learned Judge hearing the second appeal has set aside the judgments and decrees of the courts below only because in his opinion Ex. D-101 (Partition Deed) required to be registered. While setting aside the judgment in second appeal of the courts below which is limited to substantial questions of law, the High Court should have recorded proper reasons. Plaintiffs-respondents, as noted in the judgment under appeal, did not claim that any other question of law arises from the findings recorded by the first appellate court. Without setting aside the other findings the High Court could not reverse the judgment and the decree of the courts below. (Para 11)

       In regular second appeal the High Court can interfere with the concurrent findings recorded by the courts below only on the substantial question of law either framed at the time of admission of appeal or re-framed or substituted later on at the time of arguments. Learned Single Judge without adverting to the other findings recorded by the first Appellate Court (to which a reference has been made) has set aside the entire judgment and decree of the wrong presumption and premise that the fate of the appeal was dependant only on the fact as to whether the partition deed of 1916 was required to be registered or not. (Para 12)

       (ii) HINDU LAW-PARTITION-Suit for partition and separate possession-There was a prior partition of joint family property-The document though unregistered could be relied upon to establish severance of status in the joint family-Parties were having separate possession of properties over several decades and were in enjoyment of properties that had fallen to the shares of three branches by their respective owners-Three branches had been disposing of properties which had fallen to their shares and had purchased separate properties-Trial Court dismissed the suit accepting appellant s case to the effect that there was a partition in year 1916 and that plaintiffs respondents were not entitled to seek division of properties-Appeal-First Appellate Court rejected the appeal-Second Appeal-High Court set aside judgments and decrees of Courts below by observing that partition deed for prior partition cannot be received in evidence without its being registered-Other findings recorded by first Appellate Court were neither adverted to nor set aside-Whether High Court could reverse judgment and decree of the Courts below-(No)-Registration Act-Section 17(1)(b).

       Held : We have gone through the judgment of the first Appellate Court with the help of the learned counsel for the parties. The first Appellate Court came to the firm finding of fact that there was a prior partition of the joint family property amongst the three branches of Shivalingappa-(III), Rangappa and Mahadevappa. The document Exh. D-101 though unregistered could be relied upon to establish the severance of status in the joint family. The parties were having separate possession of the properties over several decades and were enjoyment of the properties that had fallen to the shares of three branches by their respective owners. The branches of Mahadevappa and Rangappa were cultivating equal portions by paying taxes and they had also divided the house which had come to their shares and were living in two portions separately. For the lands acquired the branches of Rangappa and Mahadevappa had received compensation which was distributed by them amongst themselves to the exclusion of the branch of Shivalingappa-(II), thus, evidencing the fact that the properties were partitioned and the respective branches were enjoying the properties and its usufruct separately. The three branches had been disposing of the properties which had fallen to their shares and had purchased separate properties. The khata entries also indicated that the properties were standing in their names separately. The learned Single Judge has not adverted to or set aside any of the findings recorded by the first Appellate Court. The learned Single Judge has clearly fell in error in reversing the judgment without disturbing any of the findings referred to above. (Para 14)