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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.M.Modak, J.
Namdeo Shivram Redij – Appellant
Versus
Vishwanath Shivram Redij – Respondent
Second Appeal No. 840 of 2019
Decided On : 13-01-2023
Joint Family Properties - Evidence - CPC - [Sec. 100 of CPC, 1908] - The court discussed the scope of Sec. 100 of the Code of Civil Procedure, 1908 and established that the formulation of substantial questions of law arises only if there are some questions of law and not in the absence of any substantial question of law. The High Court is not obliged to frame substantial question of law if it finds no error in the findings recorded by the First Appellate Court. The law is settled that it is not always mandatory to formulate the substantial question of law. The Appeal can be dismissed without formulating the substantial questions of law if the judgment of the First Appellate Court is to be confirmed on the background of concurrent findings.
Fact of the Case:
The case involved a dispute over joint family properties and shares among the descendants of a common ancestor. The trial court decreed the suit and declared the shares in the scheduled properties. The defendants appealed the decision, arguing that the properties were not joint family properties.
Finding of the Court:
The court found that the trial court's conclusion regarding the nature of the properties as joint family properties was not erroneous. It noted that the plaintiffs had discharged their burden to prove the nature of the properties as joint family properties, and the defendants' failure to challenge the evidence led to an adverse inference. The court dismissed the appeal at the admission stage as no substantial question of law was involved.
Issues: The main issues were whether the properties were joint family properties, whether the defendants' failure to give evidence affected their challenge to the plaintiffs' case, and whether the appeal raised any substantial question of law.
Ratio Decidendi: The court held that the plaintiffs had proved the nature of the properties as joint family properties and that the defendants' failure to challenge the evidence led to an adverse inference. It also established that the appeal did not raise any substantial question of law and could be dismissed without formulating such questions.
Final Decision: The court dismissed the appeal at the admission stage as no substantial question of law was involved, and ordered the parties to bear their own costs.
JUDGMENT
S.M.MODAK, J. - Heard learned Senior Advocate Shri.Atul Damle instructed by learned Advocate Shri.S.S.Kanetkar for the Appellants and learned Advocate Shri.Sanjiv Sawant a/w learned Advocate Shri.Abhishek Matkar for Respondent Nos. 1(B) to 1(F).
2. The substantial questions of law raised in this Appeal are ;
Whether the Appellants have discharged the burden of proving the suit properties as joint family properties and ; whether for not giving evidence by these Appellants, debars them from challenging the case put up by the Plaintiffs.
3. There are concurrent findings that suit properties are joint family properties and shares have been declared by the Courts below. So additionally, this Court has to see ; whether those concurrent findings can be upset by this Court.
4. According to learned Senior Advocate Shri.Damale, even though the Appellants have not given evidence, it will not relieve the Plaintiffs from discharging their burden. Whereas, according to learned Advocate Shri.Sawant, the scope of Second Appeal is limited when there are concurrent findings. He relied upon the following judgments :-
(i) C. Coddanarayana Reddy (Dead) by LRS. and Ors. V/s. C. Jayarama Reddy (Dead) by LRS. and Ors. [Civil Appeal No. 2165 of 2009 : 14/2/2020 : Supreme Court of India]
(ii) Kirpa Ram (Deceased) Through Legal Representatives and Ors. V/s. Surendra Deo Gaur and Ors. [Civil Appeal No. 8971 of 2010 : 16/11/2020 : Supreme Court of India]
I have perused them very minutely.
5. In case of Kirpa Ram, the High Court dismissed the Second Appeal without framing the substantial questions of law. (Para No.14). The Hon'ble Supreme Court has discussed the scope of Sec. 100 of the Code of Civil Procedure, 1908 ("CPC"). The relevant observations are as follows :-
"Therefore, if the substantial question of law framed by the appellants are found to be arising in the case only then the High Court is required to formulate the same for consideration. If no such question arises, it is not necessary for the High Court to frame any substantial question of law. The formulation of substantial question of law or reformulation of the same in terms of the proviso arises only if there are some questions of law and not in the absence of any substantial question of law. The High Court is not obliged to frame substantial question of law, in case, it finds no error in the findings recorded by the First Appellate Court." (Para No.23).
Whereas, in case of C. Coddanarayana Reddy, the Hon'ble Supreme Court observed that :-
"29. The learned High Court has not satisfied the tests laid down in the aforesaid judgements. Both the Courts, the trial Court and the learned First Appellate Court, have examined the School Leaving Certificate and returned a finding that the date of birth does not stand proved from such certificate. May be the High Court could have taken a different view acting as a trial court but once, two courts have returned a finding which is not based upon any misreading of material documents, nor is recorded against any provision of law, and neither can it be said that any judge acting judicially and reasonably could not have reached such a finding, then, the High Court cannot be said to have erred. Resultantly, no substantial question of law arose for consideration before the High Court."
6. So, the law is settled. It is not always mandatory to formulate the substantial question of law. They are necessary to be formulated only when the Court is satisfied. Otherwise, this Court is entitled to dismiss the Appeal at pre-admission stage. If the judgment of the First Appellate Court is to be reversed, then it is better to formulate the substantial questions of law first. But, if the judgment of the First Appellate Court is to be confirmed on the background of concurrent findings, the Appeal can be dismissed without formulating the substantial questions of
AI
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The burden of proof lies with the plaintiff to establish that the properties are ancestral, and evidence must be pleaded and proved through evidence.
The plaintiff must prove the existence of a joint family nucleus to establish claims over joint family properties; mere relation does not imply entitlement.
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