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1904 Supreme(SC) 25
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD DAVEY, LORD ROBERTSON, AND SIR ARTHUR WILSON.
SHIVABASAVA KOM AMINGAVDA - Appellant
Versus
SANGAPPA BIN AMINGAVDA - Respondents
On Appeal from the High Court of Bombay.
Decided On : July 1, 5, 29, 1904.
Solicitors for appellant:Holman, Birdwooa & Co. Solicitors for respondent: T. L. Wilson & Co.
A second appellate court may interfere with a lower appellate court's finding of fact if the decision is based on a case not pleaded or if there is no evidence to support the finding, as these constitute substantial procedural errors or questions of law.
Headnote:(A) Civil Procedure Code - Sections 584 and 585 - Second Appeal - Jurisdiction to interfere with findings of fact - A court of second appeal has jurisdiction to interfere with and reverse the finding of a lower appellate court if the decision resulted from a substantial error or defect in procedure, specifically where the lower court disposed of the suit upon a case not raised by the parties and not warranted by the pleadings and evidence. (Paras 12-13)
(B) Findings of Fact - Absence of evidence - It is within the jurisdiction of a second appeal court to reverse a finding of fact if it is satisfied that there is no evidence to support the conclusion, as the absence of evidence transforms a question of fact into a question of law for the consideration of the judge. (Paras 13-14)
Facts of the case:
A widow filed a suit against her adopted son seeking a declaration that the adoption was not legally performed or was invalid due to fraud and misrepresentation. The trial court found the adoption to be real and valid. On first appeal, the appellate court reversed this finding, concluding that the adoption was not real and was invalid. The second appellate court set aside the first appellate court's finding, restored the trial court's decision, and eventually dismissed the suit. The matter was then appealed to the highest court on the ground that the second appellate court lacked jurisdiction to interfere with the findings of fact of the first appellate court.
Findings of Court:
The court found that the first appellate court had decided the case on a basis not raised by the parties and not supported by the evidence provided. This constituted a substantial error or defect in procedure within the meaning of the applicable code. Furthermore, there was no evidence upon which the first appellate court could have properly arrived at its conclusion of fact.
Issues: Whether the second appellate court had jurisdiction under the Civil Procedure Code to interfere with the finding of fact made by the lower appellate court.
Ratio Decidendi: The court ruled that while a finding of fact by a first appellate court is generally final if supported by proper evidence, the second appellate court may interfere if there is a substantial procedural error—such as deciding the case on a basis not pleaded—or if there is no evidence to support the finding, which renders the issue a question of law.
Result: Appeal dismissed.
Legal Category Hierarchy
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family law
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adoption
- validity of adoption
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adoption
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practice and procedure
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civil procedure code
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second appeal
- jurisdiction
- pleadings
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second appeal
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civil procedure code
Judgement
Appeal from an interlocutory judgment of the High Court (Dec. 2, 1896) setting aside a finding in first appeal of the District Court of Sholapur Bijapur and from a final decree of the High Court (Aug. 11, 1897) dismissing the appellants suit.
The appellant, the widow, and as such sole heiress of Amingavda Desai, who died while a minor in 1876, sued the respondent, her adopted son, under the guardianship of his natural father Ramappa, praying for a declaration that he was not properly and legally adopted; for a further declaration that the ceremony of adoption of the defendant did not take place; otherwise, that the said adoption was ineffectual and invalid, inasmuch as misrepresentations were made to the plaintiff, and she was deceived and was prevented from getting proper information and proper advice.
The Subordinate Judge of Bagalkote found that the adoption of the respondent was real and valid so
Law Rep. 31 Ind. App. 154 ( 1903- 1904) Shivabasava Kom Amingavda V. Sangappa Bin Amingavda 59
far as certain property called the Desgat Watan was concerned, but that the appellant was entitled to a declaration that as regards property not being Desgat Watan the adoption would take effect only after the appellants death.
The District Court found on the facts that there was no real adoption of the respondent by the appellant, and that the appellant was entitled to the declaration which she claimed, and passed a decree in accordance with such finding.
The High Court in second appeal passed an interlocutory judgment on December 2, 1896, by which it set aside the judgment of the District Court on the question whether the adoption of the respondent was real and restored the judgment of the Subordinate Judge on that point, and remitted the case to have the second issue raised in the District Court (namely, whether the adoption, if real, was binding on the appellant) determined by the District Court, and passed no decree.
The District Court thereupon found that the adoption of the respondent, if real, was binding on the appellant.
Accordingly the High Court reversed the District Courts decree, and dismissed the suit with costs.
Cave, K.C., and A. F. C. Luxmoore, for the appellant, contended that the High Court had no jurisdiction under s. 584 of the Civil Procedure Code to interfere with the finding of the District Court on first appeal, more especially as there was evidence to support it. Reference was made to Anangamanjari Chowdhrani v. Tripura Soondari Chowdhrani (L. R. 14 Ind. Ap. 101,110.) ; Mussummat Durga Choudhrain v. Jawahir Singh Choudhri . (( 1890) L. R. 17 Ind. Ap. 122, 127.)
The evidence shewed that no real and binding adoption took place, or at least that the adoption, if it purported to have been made, was conditional, and consequently invalid. Mere execution of deeds is insufficient to effect an adoption. There must be an actual giving and taking of the child; ceremonies also were necessary, while those deposed to in this case were manifestly insufficient see Shosinath Ghose v. Krishna Soondari Dasi (( 1880) L. R. 7 Ind. Ap. 250.); Collector of Madura v. Ramalinga Sathupathy (( 1868) 12 Moores Ind. Ap. Ca. 397, 440.); Sri Raghunadha Deo v. Sri Brozokishoro Patta Deo (( 1876) L. R. 3 Ind. Ap. 154.) ; Vellanki Venkata Krishna Row
v. Venkata Rama Lakshmi (( 1876) L. R. 4 Ind. Ap. 1.); Ramchandra Bhagavan v. Mulji Nanabhai (( 1896) Ind. L. R. 22 Bomb. 558.); Mahableshvar Fondba v. Durgabai . (( 1896) Ind. L. R. 22 Bomb. 199.) The purdanashin in this case did not have that degree of advice and protection which was necessary to give validity to her deeds, nor was there any proof of her intention to adopt, or of her understanding the nature and effect of the ceremony performed see Bayabai v. Balaurf Venkatesh Ramakant . (( 1866) 7 Bomb. H. C. R. Ap. 1, 21.) There are English cases in which even marriage has been declared to be void when there was a want of understanding as to the effect of the ceremony Scott v. Sebr
