Important point
Substantial question of law is the sine qua non for the exercise of jurisdiction u/s 100 of Civil Procedure Code.

Headnote:Civil Procedure Code, 1908—Section 100—Second appeal—Existence of substantial question of law is sine qua non for exercise of jurisdiction—High Court cannot proceed to hear a second appeal without formulating substantial question of law involved in appeal—Suit for partition and separate possession—Trial Court decreed suit holding plaintiff respondents entitled to preliminary decree of 7/27 share only in Plaint ‘A’ Schedule item Nos. 11 to 21 and 28 which had been allotted to their predecessor vide partition deed dt. 19-7-1970 and also to extent of 7/27 share in Plaint B Schedule items—1st appellate Court in appeal filed by plaintiff found item No.10 Plaint A Schedule also forming part of joint family property but items Nos. 1 to 9 were self acquired properties of defendant-appellants—Respondents-Plaintiff preferred second appeal—High Court found that Plaint A Schedule item Nos. 10 to 29 as joint family properties holding plaintiff entitled to partition thereof —Appeal—Two Courts below on evidence concluded that item Nos. 22 to 26 and 29 were self acquired properties of predecessor of parties—High Court on re-appreciation of evidence held those properties not self acquired —In regd. partition deed dt. 19-7-1970 those properties were treated to be self acquired and were not subjected to partition—No substantial question of law regarding due execution and validity of settlement deed was framed—High Court did not have jurisdiction to set aside findings recorded by Courts below—Impugned judgment was liable to be set aside.
Held : Section 100 of the Code makes it clear that the High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal. (Para 14)
Clause 3 of Section 100 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 question of law was framed in his absence to argue that the case did not involve the question of law so framed. Proviso to sub-section (5) states that the question of law framed at the time of admission would not take away or abridge the power of High 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. A reading of Section 100 makes it abundantly clear that if the appeal is entertained without framing the substantial question of law, then it would be illegal and would amount to failure or abdication of the duty cast on the court. In a number of judgments it has been held by this Court that the existence of the substantial question of law is the sine qua non for the exercise of jurisdiction under Section 100 of the Code of Civil Procedure. (Para 15)

Judgment

Bhan, J.—This appeal by grant of leave has been filed by the original defendants-the appellants herein, against the judgment and decree of the High Court at Madras granting preliminary decree of partition and separate possession to plaintiffs-the respondents herein, with respect to certain suit properties setting aside the judgment and decree of Trial Court as well as that of Lower Appellate Court, wherein aforesaid decree with respect to same properties had been denied to respondents.

Facts necessary for the disposal of this appeal are as follows:

2. One Thandavaraya Poosali had three sons Mottaya Poosali, Ayyasamy Poosali and Ammasi Poosali. In the present case, the dispute is between the children of Mottaya Poosali over the division of property inherited by them. Mottaya Poosali had two sons Manicka Poosali, Sadaya Poosali and a daughter, Ellammal. Sadaya Poosali died on 9.5.1962 leaving behind his widow and daughter respondent Nos.1 and 2 respectively. Appellants are Manicka Poosali, appellant No.1 (since deceased and now represented through his LRs., his wife Mahalakshmi, appellant No.3 and Ellammal, his sister and appellant No.2 herein. They would be referred to as the appellants’ herein.

3. Through a registered partition deed dated 19.07.1970 between Mottaya Poosali and his brothers, Plaint A Schedule item Nos.11 to 21 and 28 were allotted to Mottaya Poosali out of their joint family properties. Mottaya Poosali executed a settlement deed dated 22.03.1977 in favour of Manicka Poosali conveying his share in Plaint A Schedule item Nos. 11 to 14, 17 to 20 and 28 allotted to him in partition dated 19.07.1970. Further Mottaya Poosali executed a registered will dated 23.03.1977 bequeathing his share in Plaint A Schedule item Nos. 15, 16 and his self acquired properties item Nos. 22 to 26 and 29 in favour of Manicka Poosali, Mottaya Poosali died on 01.11.1978.

4. In 1980, respondents instituted original suit No. 806/1980 against appellants for partition and separate possession of their share in respect of whole Plaint A and B Schedule items.

5. In the plaint, it was averred that Plaint A Schedule item Nos. 1 to 9 were joint family properties of Mottaya Poosali and Plaint A Schedule item Nos. 10 to 29 were allotted to Mottaya Poosali in partition dated 19.07.1970 and after his death they are entitled to a share in those properties. It was further averred that settlement deed dated 22.03.1977 executed by Mottaya Poosali in favour of Manicka Poosali is valid only to extent of 1/3 share of Mottaya Poosali and will dated 23.03.1977 executed by Mottaya Poosali in favour of Manicka Poosali is not valid and at best could be valid with respect to 1/3 share of Mottaya Poosali since the said properties were joint family properties. Respondents prayed for a decree of partition and separate possession of 4/9 share in Plaint A Schedule item Nos. 1 to 14, 17 to 21 and 27 to 29 and Plaint B Schedule items and to an extent of 1/3 share in Plaint A Schedule item Nos. 15, 16, 22 to 26 and 29 alongwith future income and costs of suit.

6. In the written statement, filed by appellant No.1 and adopted by appellant No.3, wife of appellant No.1, it was averred that all the properties included in Plaint A and B Schedules were not joint family properties and respondents are entitled to claim a share only with respect to Plaint A Schedule item Nos.11 to 21 and 28 which were allotted to Mottaya Poosali under partition deed dated 19.07.1970 and respondents are in joint possession with respect to these properties only. That Plaint A Schedule item Nos. 1 to 9 were self acquired properties of appellant No.1 and 3 purchased out of their own funds prior to 1970 and not out of joint family funds. The same were not a part of larger Joint Hindu Family properties and for this reason they were not included in partition dated 19.07.1970. That Plaint A Schedule item Nos. 22 to 26 and 29 were the self acquired properties of Mottaya Poosali purchased prior to 1970 ou

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2005 Supreme(SC) 499

Important pointSubstantial question of law is the sine qua non for the exercise of jurisdiction u/s 100 of Civil Procedure Code.

Cases Referred (6)

Important point
Substantial question of law is the sine qua non for the exercise of jurisdiction u/s 100 of Civil Procedure Code.