2005 Supreme(SC) 199

2005(1) Supreme 838
Supreme Court of India
(From Madras High Court)
Ashok Bhan & A.K. Mathur, JJ.
Govindaraju —Appellant
versus
Mariamman —Respondent
Civil Appeal No. 2292 of 1999
Decided on 4-2-2005
Counsel for the Parties :
For the Appellant : A.T.M. Sampath, Advocate.
For the Respondent : K.K. Mani and K.B. Sandeep, Advocates.

Important pointThe existence of substantial questions of law is the sine qua non for the exercise of jurisdiction under Section 100 of the Code of Civil Procedure and if the second appeal is entertained without framing the substantial questions of law, then it would be illegal and would amount to failure or abdication of the duty cast on the Court.

Headnote:(i) Hindu Marriage Act, 1955—Section 15—Civil Procedure Code, 1908—Section 100—Succession to share of female to heir of her husband—Suit for declaration of title and permanent injunction restraining appellant from disturbing his possession of suit pro­perty —Respondent’s case that suit property belonged to one ‘VM’ who had sold his entire property to his two daughters ‘SA’ and ‘T’—After the death of ‘VM’, ‘SA’, widowed daughter died issueless—Property of ‘SA’ came to share of her sister ‘T’—‘T’ was married to one ‘SM’ as his second wife—‘SM’ and ‘T’ also died issueless—Respondent’s case that ‘GM’, son of first wife of ‘SM’ succeeded to estate of ‘T’ by virtue of Section 15(1)(b) of the Act—Respondent claimed to be the purchaser of property from ‘GM’—Court of fact recorded the finding that title in the suit property did not pass to ‘VM’ and sale deed executed by him in favour of his two daughters was a nominal and a sham transaction—It was held that respondent had failed to prove that ‘GM’ was son of ‘SM’ from his first wife—Trial Court dismissed suit of respondent—Appellate Court upheld the judgment and decree of the trial Court and dismissed the appeal—Second Appeal—Whether High Court was justified in reappreciating the entire evidence and reversing findings of both the Courts below—(No)—A substantial question of law does not arise in the appeal.

       Held : After perusal of the findings recorded by the courts below and the High Court, we are of the opinion that the questions of law framed at the time of admission of the appeal were not questions of substance arising from the findings recorded by the courts of fact. The court of fact recorded the finding that the title in the suit property did not pass to Veeramuthu Moopanar and the sale deed dated 1.7.1940 executed by him in favour of his two daughters was a nominal and a sham transaction. The court of fact had also come to the conclusion that there was a divorce between Thayarammal and Sengamalai Moopanar under custom and the respondent herein had failed to prove that Ganapathy Moopanar was the son of Sengamalai Moopanar from his first wife. After recording this finding of fact, the court of fact held that since Ganapathy Moopanar was not proved to be the son of Sengamalai Moopanar and that a divorce had taken place between Thayarammal and Sengamalai Moopanar. Ganapathy Moopanar could not succeed to the estate of Thayarammal being the heir of her husband under Section 15(1)(b) of the Act. That in the absence of any direct heir, the property of Thayarammal reverted back to the heirs of her father i.e. the family members of the brother of her father. The sale effected by Ganapathy Moopanar in favour of the respondent did not convey any title as Ganapathy Moopanar was not proved to be the owner of the property. The High Court on re-appreciation of evidence recorded a finding to the contrary and held that the marriage between Thayarammal and Sengamalai Moopanar had not been dissolved. It further held that Ganapathy Moopanar was the son of Sengamalai Moopanar from his previous wife. That the sale executed by Veeramuthu Moopanar dated 1.7.1940 in favour of his two daughters was not a nominal and sham transaction. That it conveyed a valid title of the suit property to his two daughters. As the daughters had not inherited the property but purchased the same from their father, they became the absolute owners of the same. Thayarammal had inherited the share of her sister after her death. As Thayarammal had died issueless and had a step-son Ganapathy Moopanar from her husband. Ganapathy Moopanar inherited the suit property being the heir of her husband under Section 15(1)(b) of the Act and succeeded to the estate of Thayarammal. That Ganapathy Moopanar had a conveyable title in the suit property and the sale made by him in favour of the respondent was valid and decreed the suit. This was done on re-appreciation of evidence present on record. Questions of law which had been framed at the time of admission and were referred and reproduced in the judgment were not adverted to while deciding the appeal. No finding was recorded on those questions. After reproducing the questions of law, the learned Single Judge did not advert to either of them or record findings on them. The learned Single Judge proceeded to decide the appeal thereafter as if after framing the questions of law the High Court gets the jurisdiction to re-appreciate the evidence and come to a conclusion other than the one recorded by the courts of fact. (Paras 17 and 18)

       On reversal of the findings referred to above on facts, the High Court came to the conclusion that Ganapathy Moopanar would inherit the property under Section 15(1)(b) being the heir of the husband of Thayarammal and not under Section 15(2)(a) under which property was to revert back to the heirs of her father. The questions of law which were framed at the time of admission of the appeal were not decided by the High Court. Even if the High Court was of the view that the findings of fact recorded by the courts below were wrong, in our opinion, these findings of fact could not be disturbed without coming to the conclusion that the findings recorded were perverse i.e. based on misreading of evidence or based on no evidence. The High Court did not come to such a conclusion. The learned Single Judge also did not come to the conclusion that the appeal involved other substantial questions of law or formulate the same. (Paras 18 and 19)

       (ii) Civil Procedure Code, 1908—Section 100—Second Appeal—High Court cannot proceed to hear a Second Appeal without formulating substantial questions of law involved in the appeal—Memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

       Held : Section 100 provides that the second appeal would lie to the High Court from a 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”. It further provides that the memorandum of appeal shall precisely state the substantial question of law involved in the appeal and the High Court on being satisfied that the substantial question of law is involved in a case formulate the said question. Sub-section (5) provides that the “appeal shall be heard on the question so formulated”. It reserves the liberty with the respondent against whom the appeal was admitted ex-parte and the questions of law had been framed in his absence to argue that the case did not involve the questions of law framed. Proviso to sub-section (5) states that the questions of law framed at the time of admission would not take away or abridge the power of the court to frame any other substantial question of law which was not formulated earlier, if the court is satisfied that the case involved such additional questions after recording reasons for doing so. It is abundantly clear from the analysis of Section 100 that if the appeal is entertained without framing the substantial questions of law, then it would be illegal and would amount to failure or abdication of the duty cast on the court. The existence of substantial questions of law is the sine qua non for the exercise of jurisdiction under Section 100 of the Code. (Para 12)