The High Court's jurisdiction in second appeals is limited to substantial questions of law without re-evaluating the evidentiary findings of the trial courts.

Headnote:(A) Civil Procedure Code - Section 100 - Second Appeal - Jurisdiction of High Court - The appeal is strictly confined to cases involving substantial questions of law and not mere re-appreciation of evidence - No substantial question of law identified by the appellate Court. (Paras 3, 4, 23)

(B) Partition and Benami Transactions - The plaintiff claimed that properties acquired in mother's name were benami for her father - Defendants countered that properties were legitimately acquired by their mother - No credible evidence from plaintiff to support allegations of benami ownership. (Paras 7, 11, 21)

(C) Mohammedan Law - Hiba - Essentials of Hiba under Muslim Law were discussed, emphasizing validity requires declaration, acceptance, and delivery of possession - Court ruled that settlement deed executed is valid based on proper adherence to legal standards. (Paras 15, 16)

Facts of the case:
The plaintiff filed for a partition of properties claimed to have been wrongfully retained by her mother and siblings. The properties were registered in the mother's name, who had been claimed to have no source of income. The trial court and first appellate court dismissed the claims made by the plaintiff.

Findings of Court:
The courts below found the properties legally owned by the mother under self-acquired circumstances and dismissed the plaintiff's claims for partition.

Issues: Whether the properties were benami, and the validity of the settlement deed executed by the plaintiff’s mother were key issues.

Ratio Decidendi: The court upheld lower courts' findings based on the lack of evidence from the plaintiff regarding claims of benami ownership and acknowledged the validity of the settlement deed as per Mohammedan Law.

Result: The Second Appeal is dismissed, confirming the judgments and decrees of the lower courts.

Table of Content
1. second appeal process overview (Para 1 , 2)
2. limitation of high court's jurisdiction in second appeals (Para 3 , 4 , 22 , 23)
3. background of the parties and property claims (Para 6 , 7 , 11)
4. defendants' claims and counterarguments (Para 8 , 9 , 10)
5. plaintiff's burden of proof (Para 12 , 13 , 21)
6. requirements for a valid hiba under mohamedan law (Para 14 , 15)
7. final disposition of the appeal (Para 24)

JUDGMENT :

K.MURALI SHANKAR, J.

The Second appeal is directed against the judgment and decree passed in A.S.No.121 of 2018, dated 18.03.2022 on the file of the II Additional District cum Sessions Court, Thanjavur confirming the judgment and decree made in O.S.No.28 of 2008, dated 25.06.2018 on the file of the learned Principal Subordinate Judge, Thanjavur.

2. The appellant is the plaintiff. The plaintiff filed a suit in O.S.No.28 of2008 on the file of the Principal Subordinate Court, Thanjavur, claiming partition and allotment of 1/5 share in the suit properties. The defendants 1 to 3 have filed written statement and contested the suit. The fourth defendant remained ex-parte. The learned Principal Subordinate Judge, after framing necessary issues and after full trial, passed the judgment and decree, dated 25.06.2018, dismissing the suit. Aggrieved by the dismissal of the said suit, the plaintiff filed an appeal in A.S.No. 121 of 2018 and the learned II Additional District Judge, Thanjavur, upon considering the materials available on record and on hearing the arguments of both the sides, passed the impugned judgment and decree, dated 18.03.2022, dismissing the appeal and thereby confirming the judgment and decree of the trial Court. Challenging the dismissal of the appeal, the fourth plaintiff has preferred the present second appeal.

3. At the out set, it is necessary to refer the mandate of Hon'ble Supreme Court for High Courts in deciding the second appeal under Section 100 of the Civil Procedure Code , given in the case of Gurnam Singh (dead) by LRs., and others Vs. Lehna Singh (dead) by LRs., reported in AIR 2019 SC 1441 , that the jurisdiction of the High Court in an appeal under Section 100 of the Code of Civil Procedure is strictly confined to the case involving substantial question of law and the relevant passage is extracted hereunder:

“18. Before parting with the present judgment, we remind the High Courts that the jurisdiction of the High Court, in an appeal under Section 100 of the CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 of the CPC, it is not permissible for the High Court to re-appreciate the evidence on record and interfere with the findings recorded by the Courts below and/or the First Appellate Court and if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. We have noticed and even as repeatedly observed by this Court and even in the case of Narayanan Rajendran v. Lekshmy Sarojini , (2009) 5 SCC 264 , despite the catena of decisions of this Court and even the mandate under Section 100 of the CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the First Appellate Court, either without formulating the substantial question of law or on framing erroneous substantial question of law.”

4. The Hon'ble Supreme Court in the case of Chandrabhan Vs. Saraswati and others reported in 2022 SCC OnLine SC 1273 has specifically held that right of appeal is not automatic and right of appeal is conferred by statute and when statute confers a limited right of appeal restricted only to cases which involve substantial questions of law, it is not open to the High Court to sit in appeal over the factual findings arrived at by the First Appellate Court and the Hon'ble Supreme Court summarized the prin