1. Dispute regarding the validity and proof of a Will — Second appeal proceedings. (Para 3 )
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1999 Supreme(SC) 302
SUPREME COURT OF INDIA
S.B.Majmudar : V.N.Khare
Nailnakshi N.Rai
Versus
Indira Shetty
Case No. : 2239 of 1999
Date of Decision : 3/12/99
A second appeal under Section 100 of the Civil Procedure Code must be based on a substantial question of law. A question concerning whether a Will is believable is a question of fact and cannot sustain a second appeal.
Headnote:(A) Civil Procedure Code, 1908 - Section 100 - Second Appeal - Substantial question of law - Question of whether a Will can be believed or not - Such a question is a question of fact and not a substantial question of law - High Court cannot treat proceedings of a second appeal as a first appeal - Decision must be within the limited jurisdiction of Section 100. (Paras 4 and 5)
Facts of the case:
A dispute arose regarding the validity of a Will. The Trial Court held the Will not legally proved, whereas the Appellate Court, upon review of evidence, held the document to be a genuine Will. In a second appeal, the High Court set aside the order of the Appellate Court, framing the issue as whether the Will executed in favor of a party could be believed or not.
Findings of Court:
The High Court erred in framing a question of fact as the basis for a second appeal. The reasoning of the High Court cannot be sustained as it decided the appeal under Section 100 of the Civil Procedure Code by treating the proceedings as if it were a first appeal.
Issues: Whether the question of the believability of a Will constitutes a substantial question of law required for entertaining a second appeal under Section 100 of the Civil Procedure Code.
Ratio Decidendi: A second appeal under Section 100 of the Civil Procedure Code is limited to substantial questions of law; a question regarding whether a document is believable is a question of fact and does not satisfy the jurisdictional requirements of a second appeal.
Result: Civil Appeal allowed.
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Table of Contents
2. Whether the Will executed in favor of a party is believable and genuine. (Para 3 )
3. The High Court erroneously treated a second appeal as a first appeal by framing a question of fact instead of a substantial question of law. (Para 3 , 4 , 5 )
4. Second appeals under Section 100, Civil Procedure Code, must be decided strictly within the limited jurisdiction of substantial questions of law. (Para 4 , 5 )
5. High Court order set aside and Second Appeal restored for re-decision under Section 100, Civil Procedure Code. (Para 5 , 7 )
6. What is the jurisdictional requirement for a second appeal under Section 100 of the Civil Procedure Code?
A second appeal under Section 100, Civil Procedure Code, must be decided strictly within the parameters of its limited jurisdiction, which requires the framing and determination of a substantial question of law. (Para 4 , 5 )
7. Does the believability of a Will constitute a substantial question of law?
No, a question regarding whether a Will can be believed is a question of fact and does not qualify as a question of law or a substantial question of law. (Para 4 )
(1) LEAVE granted.
(2) WE have heard learned counsel for the parties finally in this appeal.
(3) THE disputed Will Ex. D. 1 was held not legally proved by the Trial Court. But the Appellate Court on review of evidence look a contrary view and held that there cannot be any doubt in accepting this document as a genuine will. The High Court in second appeal without framing substantial question of law and treating the proceedings to be like a first appeal set aside the order of the Appellate Court and held the will not to be believable. The question framed for consideration in Second Appeal by the learned Judge read as under.
"THE question that is involved in the second appeal is whether the Will executed by Babu Shetty in favour of Narayana of his 1/4th share under Ex. D. 1 can be believed or not."
(4) SUCH a question is not a question of law, much less a substantial question of law.
(5) THIS reasoning of the High Court cannot be sustained as it was deciding a second appeal under Section 100, Civil Procedure Code. The impugned order of the High Court is set aside and the Second Appeal is restored to its file with a request to re-decide the Second Appeal strictly within the parameters of the limited jurisdiction under Section 100, Civil Procedure Code.
(6) WE express no opinion on the merits of the controversy between the parties.
(7) THE Civil Appeal is allowed.
(8) NO costs.
