Back
2006 Supreme(AP) 1026
2006 (6) ALT 733
IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH ATHYDERABAD
P .S. NARAYANA, J.
Mallannagari Mallareddy and another - Appellants.
v.
Mallannagari Susheela and another - Respondents.
Second Appeal Nos. 456 of 1994 and 22 of 1996
Decided on 12-9-2006.
Advocates Appeared
Mr. J. Prabhakar Reddy, Counsel for Appellants in S.A. No.456/1994 and Respondents in S.A.22/1996.
Mr. C.R. Pratap Reddy, Counsel for Respondents in S.A.456/1994 and Appellants in S.A.22/1996.
Headnote:
Indian Evidence Act – Section 63 – Indian Succession Act – Sections 2(h) and 68 – Code of Civil Procedure – Section 100 – Will – Partition – Whether a document the recitals of which speak of a transfer inter vivos can be treated as a Will – Whether the properties belonging to the parents of the deceased wife are available for partition at the instance of the alleged second wife, even after the plea of the husband being the illatom son-in-law is rejected – Whether the plaintiff who comes forward with the case of a settlement in the pleadings and the evidence adduced therein, can later on lay his claim claiming the document to be a Will – Whether in the absence of a specific pleading as to the nature and nomenclature of EX.A-5 as Will, was it open to the trial Court and the first appellate Court to characterize the said document as a Will and decree the suit on the strength of such finding – Whether it is open to civil Court to decree a suit on its own basis and conclusions de hors the pleadings and evidence – Whether the customary mode of illatom adoption in a particular caste/ community is not required to be established by pleadings and evidence – Whether in the absence of satisfaction of the provisions of Sections 2(h) and 68 of the Indian Succession Act and Section 63 of Indian Evidence Act, were the Courts justified in terming Ex.A-5 as a Will and decree the suit accordingly – Whether the earlier recitals in Ex.A-5 will not prevail over the subsequent recitals – Held, It is pertinent to point out that the unsuccessful plaintiffs in relation to the negativing the relief to the plaint B schedule property, thought it fit to question only that portion and hence, this Court is not inclined to disturb the other findings recorded by the appellate Court in this regard – Appellate Court, having taken into consideration both the concept of illatom adoption and Ex.A-5 and after recording findings, had modified the relief in relation to the plaint A schedule and negatived the relief in relation to plaint B schedule – Court is of considered opinion that the appellate Court had arrived at the just and proper conclusion in granting the modified decree and therefore, the findings recorded by the appellate Court are hereby confirmed – It is needles to say that the appeals, the appeal filed by the plaintiffs as well as the appeal filed by the defendants are bound to fail – Second Appeals Dismissed
These two Second Appeals are filed as against the judgment and decree made in A.S. No.3D of 1988, dated 16-6-1994 on the file of Additional District Judge, Nizamabad. The appellants in A.S.No.3D 1988 aforesaid had preferred Second Appeal NoA56 of 1994 aggrieved by the relief granted substantially confirming the findings of the Court of first instance made in O.S. No.123 of 1979 on the file of District Munsif, Kamareddy, and the plaintiffs being aggrieved of partly reversing certain findings of the Court of first instance preferred Second Appeal No.22 of 1996 in particular questioning negativing of the relief in relation to the plaint B schedule property.
2. On 28-9-1994 this Court made the following order:
"Admit. Ground Nos. a, b, c, are the substantial questions of law raised in the appeal."
The said grounds a, b, c, read as hereunder
(a) Whether a document (Ex.A-5) the recitals of which speak of a transfer inter vivos can be treated as a Will?
(b) Whether the properties belonging to the parents of the deceased wife are available for partition at the instance of the alleged second wife, even after the plea of the husband being the illatom son-in-law is rejected?
(c) Whether in a suit for partition, the Courts below can in effect enforce a Will?
3. On 12-2-1996 in Second Appeal No.22 of 1996 this Court made the following order:
"Admit in view of the fact that the respondents filed an appeal SA 456 of 1994 which was already admitted as dealing of both the matters together would be convinced (sic. convenient) and would serve the ends of justice to arrive at a proper decision. Post along with S.A.No.456 of 1994. Issue notice to the respondents retumable in four weeks."
Hence, from the record, it is clear that in Second Appeal No.22 of 1996 the Court formulated no specific substantial questions of law at the time of admission of the appeal. However, in ground No.2 (i) and (ii) the following substantial questions of law have been specified.
(i) The suit filed by the plaintiffs was decreed in respect of the agricultural lands except the status of wife and daughter of the deceased Ramreddy, who was the illatom son-in-law of late Balram. The same status cannot be denied in respect of the other joint family properties, namely, B schedule properties just because of the defendants mischievous plea of denial.
(ii) The Court below did not examine the evidence in the right perspective and did not apply the principles of succession in the face of the admitted facts of the case. The judgment under appeal is not sustainable and liable to be set aside.
4. Section 100 of the Code of Civil Procedure (hereinafter in short referred to as the Code) dealing with Second Appeals reads as hereunder:
"Second Appeals:
(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court against every 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.
(2) An appeal may lie under this Section from an appellate decree passed ex parte.
(3) In an appeal under this Section the Memorandum of Appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question.
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, formulated by it, if it is satisfied that the case involves such question."
Strong reliance was placed on the decision of the Apex Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others1.
5. It is needless to
