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CASE NO.:

Appeal (civil) 2083 of 2006

PETITIONER:

Gurdev Kaur & Ors.

RESPONDENT:

Kaki & Ors.

DATE OF JUDGMENT: 18/04/2006

BENCH:

Ruma Pal & Dalveer Bhandari

JUDGMENT:

J U D G M E N T

[Arising out of SLP (C) No. 20797 of 2003]

Dalveer Bhandari, J.

Leave granted.

Judges must administer law according to the provisions

of law. It is the bounden duty of judges to discern legislative

intention in the process of adjudication. Justice administered

according to individual's whim, desire, inclination and notion

of justice would lead to confusion, disorder and chaos.

Indiscriminate and frequent interference under Section

100 C.P.C. in cases which are totally devoid of any substantial

question of law is not only against the legislative intention but

is also the main cause of huge pendency of second appeals in

the High Courts leading to colossal delay in the administration

of justice in civil cases in our country.

Despite declaration of law in numerous judgments, it is

evident that the scope and ambit of Section 100 C.P.C. has not

been properly appreciated and applied in a large number of

cases. We are, once again making a serious endeavour to

discern legislative intention, ambit and scope of interference

under Section 100 C.P.C.. We plan to carry out this exercise

by critically examining important judgments decided before

and after 1976 amendment in the Section 100 C.P.C.. This

effort is made with the hope that in future the High Courts

would decide according to the scope of Section 100 C.P.C. and

this Court may not be compelled to interfere with the

judgments delivered under Section 100 C.P.C..

Brief factual background

This appeal is directed against the judgment of the

Punjab & Haryana High Court dated 1.8.2003 passed in Civil

Regular Second Appeal 885 of 1983. By this judgment the

High Court has set aside the concurrent findings of facts of the

Courts below. The High Court consequently cancelled the

mutation of the property belonging to the deceased Chanan

Singh in favour of his wife Bhagwan Kaur and directed that

the property be mutated in favour of the heirs of the deceased

Chanan Singh in accordance with the Hindu Succession Act,

1956. This Court on 3.11.2003, while issuing notice on the

Special Leave Petition, directed the status-quo be maintained

in the meantime. Now this appeal has been placed before us

for final adjudication.

Brief facts, which are necessary to dispose of this appeal,

are recapitulated as under:

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The case relates to the validity of the Will of the deceased,

Chanan Singh. The relationship between the parties is as

follows. The deceased Chanan Singh, s/o Hira Singh died on

6.2.1969. He had two wives. The first wife was Sham Kaur,

who died before Chanan Singh and the second wife was

Bhagwan Kaur. From the first wife Sham Kaur he had two

daughters Kaki and Har Kaur. Har Kaur also died on

29.9.1984. Kaki and Har Kaur are the plaintiffs in the Civil

Suit filed before the Subordinate Judge, 1st Class, Barnala

Bhagwan Kaur also had three daughters - Dalip Kaur,

Gurdev Kaur and Mukhtiar Kaur. Chanan Singh deceased did

not have a son either from Bhagwan Kaur or from Sham Kaur.

The plaintiffs Kaki and Har Kaur filed a suit for joint

possession of the property of deceased Chanan Singh. It is not

disputed that the deceased Chanan Singh had two wives

Bhagwan Kaur and Sham Kaur. According to the plaintiffs

Kaki and Har Kaur, the deceased Chanan Singh did not

execute any Will out of his free will because he was not in a

position to protect his own welfare and in fact he was not in a

position to execute any Will at all.

Chanan Singh died on 6.2.1969 in Barnala and the

defendant Bhagwan Kaur got the mutation of inheritance of

Chanan Singh sanctioned from the concerned authority on the

basis of the alleged Will dated 18.1.1969. The case of the

plaintiffs is that they never received any notice about the

sanctioning of mutation and this has been carried out by

defendant Bhagwan Kaur in connivance with the revenue

authorities.

According to the plaintiffs, the parties are governed by

the Hindu Succession Act. The plaintiffs were entitled to 1/3rd

share in the inheritance of Chanan Singh. According to the

plaintiffs, the defendants are in illegal possession of the suit

land and that the defendants had threatened to alienate the

suit land on 6.3.1980.

The defendants in the written statement had admitted

the relationship of the plaintiffs with the deceased Chanan

Singh. The defendant Bhagwan Kaur alleged that she is the

owner and in possession of the suit land on the basis of the

Will dated 18.1.1969 executed by her husband in her favour.

The defendant Bhagwan Kaur also alleged that she was

the only one who all through stayed and looked after the

deceased Chanan Singh during his life time. She further

stated that Chanan Singh had got his all daughters married

after spending huge amount of money in their marriages. She

also alleged that the daughters of Chanan Singh never served

him during his lifetime. In fact the plaintiffs had never even

visited him. The deceased Chanan Singh had executed a

valid Will in her favour out of his free will on 18.1.1969

because of the life long service rendered by her. She prayed

that the suit filed by the plaintiffs be dismissed.

The Trial Court, on the basis of the pleadings of the

parties and documents on record, framed eleven issues. The

plaintiffs produced five witnesses and the defendants

produced three witnesses in support of their respective stands

before the Trial Court. The plaintiffs had also examined K.C.

Jaidka, Handwriting Expert. In the cross-examination he

stated that the Will bears the thumb impression of the right

hand of the deceased, but the usual practice is of obtaining

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the thumb impression of left hand on the Will.

According to the plaintiffs the Will is alleged to have been

attested by three witnesses and only one attesting witness was

examined by the defendants and even that witness had not

fully supported the case of the defendants. The Will is not a

registered document and is written at the house of the

deceased Chanan Singh. He was about 70 years of age at the

time of execution of the Will and, according to the plaintiffs, he

could not protect his own interest and welfare. The

propounder of the Will was present at the time of the

execution of the Will. According to the plaintiffs, the

defendants had failed to discharge the onus regarding

execution of the Will by leading cogent evidence.

On the contrary, it was argued by the defendants that

Exhibit D-1 is a natural document and had been executed by

the deceased Chanan Singh in favour of his wife Bhagwan

Kaur. It is an admitted case of the parties that the deceased

Chanan Singh had no son and all his daughters were married

long ago. In order to protect the interest of his wife Bhagwan

Kaur and to ensure that she does not have to depend on

anyone for her maintenance and welfare the deceased Chanan

Singh had executed the Will in favour of his wife Bhagwan

Kaur. The deceased Chanan Singh had put left hand thumb

impression on the Will. The defendants had examined Amar

Singh D.W. 1 and Mittar Singh, D.W.2 who is the scribe of the

Will, deposed that the Will was scribed by him at the instance

of Chanan Singh. Amar Singh D.W.1 and other attesting

witnesses of the Will did not fully support the defendant

Bhagwan Kaur as she had filed a suit against one Jangir

Singh and the attesting witnesses had resiled at the instance

of the said Jangir Singh.

The mutation on the basis of the Will was entered

immediately after the death of Chanan Singh and, according to

the defendants, the Will was shown to the plaintiffs at that

time. It is further submitted that the plaintiffs have filed this

suit at the instance of the said Jangir Singh. It was submitted

by the defendants that, in these circumstances, the Court

could rely on that part of the statement which seemed to be

true. According to the defendants they have proved execution

of the Will beyond doubt and the plaintiffs' suit deserves to be

dismissed.

In the Will, the deceased, Chanan Singh had recited that

he has had five daughters and all of them were married. He

has further recited that he had spent huge amount in their

marriages, even more than the share which the daughters

could have got in the inheritance of the deceased Chanan

Singh. It is also mentioned that his wife defendant Bhagwan

Kaur alone used to reside with him and dutifully served her

husband. Whereas, the plaintiffs Kaki & Har Kaur never

visited the deceased, Chanan Singh.

According to the Trial Court, in this background, it has to

be seen whether the deceased had in fact executed the Will out

of his free will or not? It is mentioned that in the ordinary

course when a person has no son and all his daughters are

happily married, the normal anxiety is to ensure the future of

his wife, particularly when she alone had stayed with him all

his life and look after him till the last. The Trial Court did

mention in the judgment that Amar Singh D.W.1 did not

support the case of the defendant. He was declared hostile.

The counsel for the defendants sought permission to cross-

examine him. In the cross-examination it is clearly stated that

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Bhagwan Kaur used to take care of the deceased, Chanan

Singh. He also stated that the deceased Chanan Singh might

have executed the Will giving the entire property to his wife,

Bhagwan Kaur. He also stated that the deceased Chanan

Singh had put his thumb impression in his presence on the

Will. He also stated in his statement that the testator Chanan

Singh could converse at the time of the execution of the said

Will meaning thereby that he was in sound disposing mind at

the time of the execution of the Will.

The Trial Court stated that the other attesting witness of

the Will Pundit Raghbar Dayal was also present when he had

put a thumb mark in the Will. He further stated that Pundit

Raghbar Dayal was present at the time of execution of the

Will. This witness has stated that Bhagwan Kaur was present

at the time of execution of the Will but she had not uttered

any word and Chanan Singh was sitting at the time of the

execution of the Will. According to the Trial Court,

requirement of law is that for the purpose of proving the

attesting document, at least one attesting witness is required

to be examined by the party. It is not the requirement of the

law that the attesting witness must also support him on every

aspect. The requirement of law is that the testator should put

his mark on the Will in the presence of the attesting witnesses

and the attesting witnesses should attest the Will in the

presence of the testator, has been fulfilled in the present case,

as is evident from the statement of Amar Singh D.W.1.

The plaintiffs argued before the Trial Court that the

deceased Chanan Singh was under the influence of the

defendant Bhagwan Kaur, but according to the Trial Court it

was not the pleaded case of the plaintiffs in the plaint.

Therefore, no significance was attached to this submission.

The Trial Court also stated that the Will in the present case

was immediately produced before the revenue authorities and

was not kept secretly. The plaintiffs have admitted that this

Will was shown to the daughters of Chanan Singh immediately

after his death, but the plaintiffs have alleged that the Will was

in favour of the daughters. It was also not the pleaded case of

the plaintiffs in the plaint. Thus, the Trial Court after

evaluating the entire evidence on record held that the Will

Exhibit D-1 was duly executed by the deceased Chanan Singh

in favour of his wife Bhagwan Kaur and was a natural

document.

The relevant part of the Will reads as under:

"I have already incurred expenditure on

the marriages, Chhaks (presents given to

the bride by her maternal uncles or grand

parents) and Chhuchaks (articles given

on the birth of daughter's child)

ceremonies of my five daughters, more

than the value of their share in the

property. All of them are Abad (Happy) in

their respective matrimonial houses.

Now my wife Smt. Bhagwan Kaur takes

care of me. I, having been pleased with

her services, want to devolve my entire

property upon my wife Smt. Bhagwan

Kaur."

When execution of the Will is fully proved then in order to

ascertain the wishes of the testator we have to look to the text

of the Will. The intention of the testator has to be discerned

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from the language used in the Will. In view of such clear and

unambiguous language used in this Will perhaps, no other

interpretation was possible. The Trial Court clearly arrived at

a conclusion that the deceased Chanan Singh had executed

the Will in favour of his wife, Bhagwan Kaur.

Aggrieved by the order of the Subordinate Judge, Grade

II, Barnala, the appellants filed an appeal before the learned

Additional District Judge, Barnala. After hearing counsel for

the parties, the learned Additional District Judge dismissed

the appeal on the following reasons:

1. The Trial Court correctly came to a definite finding that

the propounder of the Will proved that the testator was in

a sound disposing mind when he had executed the Will

in question.

2. The Appellate Court observed that if the conscience of the

Court is satisfied on the point of due execution of the Will

because the testator was in a sound disposing mind, in

that event even if the Will is not registered, the same has

to be upheld as a valid and genuine document.

3. The Appellate Court also observed that in the case in

hand, Bindraban, the scribe and Amar Singh, D.W.1,

attesting witness examined by Bhagwan Kaur defendant,

have amply proved that Chanan Singh, (who was about

70 years of age), was in sound disposing mind when he

dictated the terms of the Will and after admitting its

contents to be correct, had affixed his thumb impression

in their presence.

The Additional District Judge also stated that there is

nothing on record to show that the appellants (who were

plaintiffs in the Trial Court) ever visited the deceased Chanan

Singh or rendered any service to him during his life time. In

the said judgment, it is also noted that the Will was not

challenged for a period of 11 years since its execution in 1969.

He also stated that it is evident from the mutation order that

Bhagwan Kaur, after the death of Chanan Singh promptly

produced the Will before the revenue authorities and on that

basis they sanctioned the mutation in respect of the land in

dispute in her favour. According to the Appellate Court, it is

unbelievable that the appellants remained ignorant of the

attestation of the mutation or the attestation of the Will set up

by Bhagwan Kaur.

In the Appellate Court's judgment, it is also mentioned

that Bhagwan Kaur uninterruptedly remained in peaceful

possession of the entire suit land since the death of the

deceased Chanan Singh in 1969 till this date. It is also

mentioned in the judgment that Bhagwan Kaur, as is evident

from the certified copy of the judicial record of this case,

remained interlocked in civil proceedings with Jangir Singh,

tenant, which are still pending and in all probability the

present suit was got instituted at the behest of Jangir Singh.

The Appellate Court also observed that, in view of the

facts and circumstances of the case, the learned Trial Court

was fully justified in upholding the Will as a genuine and valid

document and the mutation attested on its basis was

unexceptionable. The learned Additional District Judge, by a

comprehensive judgment, affirmed all the findings of the Trial

Court and dismissed the appeal with costs.

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The appellants, aggrieved by the judgment of the Trial

Court and the Appellate Court, preferred second appeal under

Section 100 C.P.C. before the High Court of Punjab and

Haryana.

The learned Single Judge of the High Court set aside the

concurrent findings of facts arrived at by the Courts below

predominantly on the ground that, in the normal

circumstances, a prudent man would have bequeathed the

property in favour of his legal heirs. However, in the present

case, the testator has disinherited the plaintiffs.

The findings arrived at by the High Court are totally

erroneous. The Court does not sit in appeal over the

testator's decision. The Court's role is limited to examining

whether the instrument propounded as the last Will of the

deceased is or is not that by the testator and whether it is the

product of the free and sound disposing mind.

Amar Singh D.W.1, in the examination-in-chief, did not

support the case of the defendants. He was declared hostile

and the counsel for the defendants sought permission to

cross-examine him. In the cross-examination, he clearly

stated that Bhagwan Kaur used to take care of the deceased

Chanan Singh. He also stated that the deceased Chanan

Singh might have executed the will giving the entire property

to his wife Bhagwan Kaur. He also stated that the deceased

Chanan Singh had put his thumb mark on the Will in his

presence. He also stated in his statement that the testator

Chanan Singh could converse at the time of execution of the

will, meaning thereby that he was in sound disposing mind at

the time of execution of the will.

The learned Single Judge of the High Court did not take

into consideration the entire statement of Amar Singh D.W.1

in proper perspective while setting aside the concurrent

findings of the Courts below. The findings of the High Court

are erroneous and contrary to record.

The question which now arises for our adjudication is

whether, according to the true delineated scope of Section 100

of the Code of Civil Procedure, the High Court was justified in

interfering with the concurrent findings of fact.

We deem it appropriate to reproduce Section 100 C.P.C.

before amendment.

Section 100 of the Code of Civil Procedure, 1908 (for

short, C.P.C.) corresponds to Section 584 of the old Civil

Procedure Code of 1882. The Section 100 (prior to 1976

amendment) reads as under :

"100. Second appeal \026 (1) "Save where

otherwise 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 from every decree passed in

appeal by any Court subordinate to a

High Court on any of the following

grounds, namely :

(a) the decision being contrary to law or

to some usage having the force of

law;

(b) the decision having failed to

determine some material issue of

law or usage having the force of law;

(c) a substantial error or defect in the

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procedure provided by this Code or

by any other law for the time being

in force, which may possibly have

produced error or defect in the

decision of the case upon the merits.

(2) An appeal may lie under this section from

an appellate decree passed ex parte."

A reference of series of cases decided by the Privy

Council and this Court would reveal true import, scope and

ambit of Section 100 C.P.C..

Cases decided prior to 1976 amendment both by the Privy

Council and the Supreme Court dealing with the scope of

Section 100 C.P.C.

The Privy Council, in Luchman v. Puna [(1889) 16

Calcutta 753 (P.C.)], observed that a second appeal can lie

only on one or the other grounds specified in the present

section.

The Privy Council, in another case Pratap Chunder v.

Mohandranath [(1890) ILR 17 Calcutta 291 (P.C.)], the

limitation as to the power of the court imposed by sections 100

and 101 in a second appeal ought to be attended to, and an

appellant ought not to be allowed to question the finding of the

first appellate court upon a matter of fact.

In Durga Chowdharani v. Jawahar Singh (1891) 18

Cal 23 (PC), the Privy Council held that the High Court had no

jurisdiction to entertain a second appeal on the ground of

erroneous finding of fact, however gross or inexcusable the

error may seem to be. The clear declaration of law was made

in the said judgment as early as in 1891. This judgment was

followed in the case of Ramratan Shukul v. Mussumat

Nandu (1892) 19 Cal 249 (252) (PC) and many others. The

Court observed :

"It has now been conclusively settled that

the third court...cannot entertain an

appeal upon question as to the

soundness of findings of fact by the

second court, if there is evidence to be

considered, the decision of the second

court, however unsatisfactory it might be

if examined, must stand final."

In the case of Ram Gopal v. Shakshaton [(1893) ILR 20

Calcutta 93 (P.C.)], the Court emphasized that a court of

second appeal is not competent to entertain questions as to

the soundness of a finding of facts by the courts below.

The same principle has been reiterated in Rudr Prasad

v. Baij Nath [(1893) ILR 15 Allahabad 367]. The Court

observed that a judge to whom a memorandum of second

appeal is presented for admission is entitled to consider

whether any of the grounds specified in this section exist and

apply to the case, and if they do not, to reject the appeal

summarily.

Similarly, before amendment in 1976, this Court also had

an occasion to examine the scope of Section 100 C.P.C.. In

Deity Pattabhiramaswamy v. S. Hanymayya and Others

[AIR 1959 SC 57], the High Court of Madras set aside the

findings of the District Judge, Guntur, while deciding the

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second appeal. This Court observed that notwithstanding the

clear and authoritative pronouncement of the Privy Council on

the limits and the scope of the High Court's jurisdiction under

section 100, Civil Procedure Code, "some learned Judges of

the High Courts are disposing of Second Appeals as if they

were first appeals. This introduces, apart from the fact that

the High Court assumes and exercises a jurisdiction which it

does not possess, a gambling element in the litigation and

confusion in the mind of the litigant public. This case affords

a typical illustration of such interference by a Judge of the

High Court in excess of his jurisdiction under Section 100,

Civil Procedure Code. We have, therefore, no alternative but to

set aside the judgment of the High Court which had no

jurisdiction to interfere in second appeal with the findings of

fact arrived at by the first appellate Court based upon an

appreciation of the relevant evidence.

In M. Ramappa v. M. Bojjappa [(1963) SCR 673], the

Andhra Pradesh High Court interfered with the finding

recorded by the Appellate Court which, in turn, had itself

reversed the Trial Court's finding on the same question of fact.

While setting aside the decree of the second Appellate Court,

this Court observed :

"It may be that in some cases, the High

Court dealing with the second appeal is

inclined to take the view that what it

regards to be justice or equity of the case

has not been served by the findings of

fact recorded by courts of fact, but on

such occasions it is necessary to

remember that what is administered in

courts is justice according to law and

considerations of fair play and equity

however important they may be, must

yield to clear and express provisions of

the law. If in reaching its decisions in

second appeals, the High Court

contravenes the express provisions of

section 100, it would inevitably introduce

in such decisions an element of

disconcerting unpredictability which is

usually associated with gambling; and

that is a reproach which judicial process

must constantly and scrupulously

endeavour to avoid."

It may be pertinent to mention that as early as in 1890

the Judicial Committee of the Privy Council stated that there

is no jurisdiction to entertain a second appeal on the ground

of an erroneous finding of fact, however, gross or inexcusable

the error may seem to be and they added a note of warning

that no Court in India has power to add, or enlarge, the

grounds specified in Section 100 of the Code of Civil

Procedure.

Even before the amendment, interference under Section

100 C.P.C. was limited, which has now been further curtailed,

which we would be dealing in cases decided by this Court after

the amendment.

We have given reference of a large number of cases

decided by the Privy Council and this Court to clearly

understand the ambit and scope of Section 100 before

amendment.

The Amendment Act of 1976 has introduced drastic

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changes in the scope and ambit of Section 100 C.P.C. A

second appeal under Section 100 C.P.C. is now confined to

cases where a question of law is involved and such question

must be a substantial one. Section 100, as amended, reads as

under:

"100. Second appeal.

(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

from 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, not

formulated by it, if it is satisfied that the case

involves such question."

Cases decided after 1976 amendment

In Bholaram v. Amirchand (1981) 2 SCC 414 a three-

Judge Bench of this Court reiterated the statement of law.

The High Court, however, seems to have justified its

interference in second appeal mainly on the ground that the

judgments of the courts below were perverse and were given in

utter disregard of the important materials on the record

particularly misconstruction of the rent note. Even if we

accept the main reason given by the High Court the utmost

that could be said was that the findings of fact by the courts

below were wrong or grossly inexcusable but that by itself

would not entitle the High Court to interfere in the absence of

a clear error of law.

In Kshitish Chandra Purkait v. Santosh Kumar

Purkait [(1997) 5 SCC 438], a three judge Bench of this Court

held: (a) that the High Court should be satisfied that the case

involved a substantial question of law and not mere question

of law; (b) reasons for permitting the plea to be raised should

also be recorded; (c) it has the duty to formulate the

substantial questions of law and to put the opposite party on

notice and give fair and proper opportunity to meet the point.

The Court also held that it is the duty cast upon the High

Court to formulate substantial question of law involved in the

case even at the initial stage.

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This Court had occasion to determine the same issue in

Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor

(1999) 2 SCC 471. The Court stated that the High Court can

exercise its jurisdiction under Section 100 C.P.C. only on the

basis of substantial questions of law which are to be framed at

the time of admission of the second appeal and the second

appeal has to be heard and decided only on the basis of the

such duly framed substantial questions of law.

A mere look at the said provision shows that the High

Court can exercise its jurisdiction under Section 100 C.P.C.

only on the basis of substantial questions of law which are to

be framed at the time of admission of the second appeal and

the second appeal has to be heard and decided only on the

basis of such duly framed substantial questions of law. The

impugned judgment shows that no such procedure was

followed by the learned Single Judge. It is held by a catena of

judgments by this Court, some of them being, Kshitish

Chandra Purkait v. Santosh Kumar Purkait (1997) 5 SCC 438

and Sheel Chand v. Prakash Chand (1998) 6 SCC 683 that the

judgment rendered by the High Court under Section 100

C.P.C. without following the aforesaid procedure cannot be

sustained. On this short ground alone, this appeal is required

to be allowed.

In Kanai Lal Garari v. Murari Ganguly (1999) 6 SCC

35 the Court has observed that it is mandatory to formulate

the substantial question of law while entertaining the appeal

in absence of which the judgment is to be set aside. In

Panchugopal Barua v. Umesh Chandra Goswami (1997) 4 SCC

713 and Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC

179 the Court reiterated the statement of law that the High

Court cannot proceed to hear a second appeal without

formulating the substantial question of law. These judgments

have been referred to in the later judgment of K. Raj and Anr.

v. Muthamma (2001) 6 SCC 279. A statement of law has been

reiterated regarding the scope and interference of the Court in

second appeal under Section 100 of the Code of Civil

Procedure.

Again in Santosh Hazari v. Purushottam Tiwari

(deceased) by Lrs. (2001) 3 SCC 179, another three-Judge

Bench of this Court correctly delineated the scope of Section

100 C.P.C.. The Court observed that an obligation is cast on

the appellant to precisely state in the memorandum of appeal

the substantial question of law involved in the appeal and

which the appellant proposes to urge before the Court. In the

said judgment, it was further mentioned that the High Court

must be satisfied that a substantial question of law is involved

in the case and such question has then to be formulated by

the High Court. According to the Court the word substantial,

as qualifying "question of law", means \026 of having substance,

essential, real, of sound worth, important or considerable. It

is to be understood as something in contradistinction with \026

technical, of no substance or consequence, or academic

merely. However, it is clear that the legislature has chosen not

to qualify the scope of "substantial question of law" by

suffixing the words "of general importance" as has been done

in many other provisions such as Section 109 of the Code of

Article 133(1) (a) of the Constitution.

In Kamti Devi (Smt.) and Anr. v. Poshi Ram (2001) 5

SCC 311 the Court came to the conclusion that the finding

thus reached by the first appellate court cannot be interfered

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with in a second appeal as no substantial question of law

would have flowed out of such a finding.

In Thiagarajan v. Sri Venugopalaswamy B. Koil

[(2004) 5 SCC 762], this Court has held that the High Court in

its jurisdiction under Section 100 C.P.C. was not justified in

interfering with the findings of fact. The Court observed that

to say the least the approach of the High Court was not

proper. It is the obligation of the Courts of law to further the

clear intendment of the legislature and not frustrate it by

excluding the same. This Court in a catena of decisions held

that where findings of fact by the lower appellate Court are

based on evidence, the High Court in second appeal cannot

substitute its own findings on reappreciation of evidence

merely on the ground that another view was possible.

In the same case, this Court observed that in a case

where special leave petition was filed against a judgment of the

High Court interfering with findings of fact of the lower

Appellate Court. This Court observed that to say the least the

approach of the High Court was not proper. It is the

obligation of the Courts of law to further the clear intendment

of the legislature and not frustrate it by excluding the same.

This Court further observed that the High Court in second

appeal cannot substitute its own findings on reappreciation of

evidence merely on the ground that another view was possible.

This Court again reminded the High Court in

Commissioner, Hindu Religious & Charitable

Endowments v. P. Shanmugama [(2005) 9 SCC 232] that the

High Court has no jurisdiction in second appeal to interfere

with the finding of facts.

Again, this Court in the case of State of Kerala v. Mohd.

Kunhi [(2005) 10 SCC 139] has reiterated the same principle

that the High Court is not justified in interfering with the

concurrent findings of fact. This Court observed that, in

doing so, the High Court has gone beyond the scope of Section

100 of the Code of Civil Procedure.

Again, in the case of Madhavan Nair v. Bhaskar Pillai

[(2005) 10 SCC 553], this Court observed that the High Court

was not justified in interfering with the concurrent findings of

fact. This Court observed that it is well settled that even if the

first appellate court commits an error in recording a finding of

fact, that itself will not be a ground for the High Court to upset

the same.

Again, in the case of Harjeet Singh v. Amrik Singh

[(2005) 12 SCC 270], this Court with anguish has mentioned

that the High Court has no jurisdiction to interfere with the

findings of fact arrived at by the first appellate court. In this

case, the findings of the Trial Court and the lower Appellate

Court regarding readiness and willingness to perform their

part of contract was set aside by the High Court in its

jurisdiction under Section 100 C.P.C.. This Court, while

setting aside the judgment of the High Court, observed that

the High Court was not justified in interfering with the

concurrent findings of fact arrived at by the Courts below.

In the case of H. P. Pyarejan v. Dasappa [(2006) 2 SCC

496] delivered on 6.2.2006, this Court found serious infirmity

in the judgment of the High Court. This Court observed that it

suffers from the vice of exercise of jurisdiction which did not

vest in the High Court. Under Section 100 of the Code (as

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amended in 1976) the jurisdiction of the Court to interfere

with the judgments of the Courts below is confined to hearing

of substantial questions of law. Interference with the finding

of fact by the High Court is not warranted if it invokes

reappreciation of evidence. This Court found that the

impugned judgment of the High Court was vulnerable and

needed to be set aside.

Legislative Background in the 54th Report of the Law

Commission of India submitted in 1973

The comprehensive 54th Report of the Law Commission of

India submitted to the Government of India in 1973 gives

historical background regarding ambit and scope of Section

100 C.P.C.. According to the said report, any rational system

of administration of civil law should recognize that litigation in

civil cases should have two hearings on facts \026 one by the Trial

Court and one by the Court of Appeal.

In the 54th Report of the Law Commission of India, it is

incorporated that it may be permissible to point out that a

search for absolute truth in the administration of justice,

however, laudable, must in the very nature of things be put

under some reasonable restraint. In other words, a search for

truth has to be reconciled with the doctrine of finality. In

judicial hierarchy finality is absolutely important because that

gives certainty to the law. Even in the interest of litigants

themselves it may not be unreasonable to draw a line in

respect of the two different categories of litigation where

procedure will say at a certain stage that questions of fact

have been decided by the lower courts and the matter should

be allowed to rest where it lies without any further appeal.

This may be somewhat harsh to an individual litigant; but, in

the larger interest of the administration of justice, this view

seems to us to be juristically sound and pragmatically wise. It

is in the light of this basic approach that we will now proceed

to consider some of the cases which were decided more than a

century ago.

The question could perhaps be asked, why the litigant

who wishes to have justice from the highest Court of the State

should be denied the opportunity to do so, at least where there

is a flaw in the conclusion on facts reached by the trial Court

or by the Court of first appeal. The answer is obvious that even

litigants have to be protected against too persistent a pursuit

of their goal of perfectly satisfactory justice. An unqualified

right of first appeal may be necessary for the satisfaction of

the defeated litigant; but a wide right of second appeal is more

in the nature of a luxury.

The rational behind allowing a second appeal on a

question of law is, that there ought to be some tribunal having

jurisdiction that will enable it to maintain, and, where

necessary, re-establish, uniformity throughout the State on

important legal issues, so that within the area of the State, the

law, in so far as it is not enacted law, should be laid down, or

capable of being laid down, by one court whose rulings will be

binding on all courts, tribunals and authorities within the area

over which it has jurisdiction. This is implicit in any legal

system where the higher courts have authority to make

binding decisions on questions of law.

It may be relevant to recall the statement of Douglas

Payne on "Appeals on Questions of Fact" reported in (1958)

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Current Legal Problem 181. He observed that the real

justification for appeals on questions of this sort is not so

much that the law laid down by the appeal court is likely to be

superior to that laid down by a lower court as that there

should be a final rule laid down which binds all future courts

and so facilitates the prediction of the law. In such a case the

individual litigants are sacrificed, with some justification, on

the altar of law-making and must find such consolation as

they can in the monument of a leading case.

Historical perspective

The predecessors of the High Courts in their Civil

appellate jurisdiction were the Sadar Divani Adalats. The right

of appeal to the Sadar Divani Adalat was very wide initially,

but came to be severely curtailed in the course of time. The

"Conwallis Scheme", for example, made provision for two

appeals in every category of cases, irrespective of its value. By

1814, this was reduced to one appeal only. Only in cases of

Rs.5,000 or over, there could be two appeals; one to the

Provincial Court of Appeal and second to the Sadar Divani

Adalat. As Lord Hastings observed, -

"The facility of appeal is founded on a

most laudable principle of securing, by

double and treble checks, the proper

decision of all suits, but the utopian idea,

in its attempt to prevent individual injury

from a wrong decision, has been

productive of general injustice by

withholding redress, and general

inconvenience, by perpetuating

litigation".

Arrears

The primary cause of the accumulation of arrears of

second appeal in the High Court is the laxity with which

second appeals are admitted without serious scrutiny of the

provisions of Section 100 C.P.C. It is the bounden duty of the

High Court to entertain second appeal within the ambit and

scope of Section 100 C.P.C.

The question which is often asked that why a litigant

should have the right of two appeals even on questions of law.

The answer to this query is that in every State there are

number of District Courts and courts in the District cannot be

final arbiters on questions of law. If the law is to be uniformly

interpreted and applied, questions of law must be decided by

the highest Court in the State whose decisions are binding on

all subordinate courts.

Rationale behind permitting second appeal on question of

law

The rationale behind allowing a second appeal on a

question of law is, that there ought to be some tribunal having

a jurisdiction that will enable it to maintain, and, where

necessary, re-establish, uniformity throughout the State on

important legal issues, so that within the area of the State, the

law, in so far as it is not enacted law, should be laid down, or

capable of being laid down, by one court whose rulings will be

binding on all courts, tribunals and authorities within the

area over which it has jurisdiction. This is implicit in any legal

system where the higher courts have authority to make

binding decisions on question of law.

The analysis of cases decided by the Privy Council and

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this Court prior to 1976 clearly indicated the scope of

interference under Section 100 C.P.C. by this Court. Even

prior to amendment, the consistent position has been that the

Courts should not interfere with the concurrent findings of

facts.

Now, after 1976 Amendment, the scope of Section 100

has been drastically curtailed and narrowed down. The High

Courts would have jurisdiction of interfering under Section

100 C.P.C. only in a case where substantial questions of law

are involved and those questions have been clearly formulated

in the memorandum of appeal. At the time of admission of the

second appeal, it is the bounden duty and obligation of the

High Court to formulate substantial questions of law and then

only the High Court is permitted to proceed with the case to

decide those questions of law. The language used in the

amended section specifically incorporates the words as

"substantial question of law" which is indicative of the

legislative intention. It must be clearly understood that the

legislative intention was very clear that legislature never

wanted second appeal to become "third trial on facts" or "one

more dice in the gamble". The effect of the amendment

mainly, according to the amended section, was:

(i) The High Court would be justified in admitting the

second appeal only when a substantial question of law is

involved;

(ii) The substantial question of law to precisely state such

question;

(iii) A duty has been cast on the High Court to formulate

substantial question of law before hearing the appeal;

(iv) Another part of the Section is that the appeal shall be

heard only on that question.

The fact that, in a series of cases, this Court was

compelled to interfere was because the true legislative

intendment and scope of Section 100 C.P.C. have neither been

appreciated nor applied. A class of judges while administering

law honestly believe that, if they are satisfied that, in any

second appeal brought before them evidence has been grossly

misappreciated either by the lower appellate court or by both

the courts below, it is their duty to interfere, because they

seem to feel that a decree following upon a gross

misappreciation of evidence involves injustice and it is the

duty of the High Court to redress such injustice. We would

like to reiterate that the justice has to be administered in

accordance with law.

When Section 100 C.P.C. is critically examined then,

according to the legislative mandate, the interference by the

High Court is permissible only in cases involving substantial

questions of law.

The Judicial Committee of the Privy Council as early as

in 1890 stated that there is no jurisdiction to entertain a

second appeal on the ground of an erroneous finding of fact,

however, gross or inexcusable the error may seem to be and

they added a note of warning that no Court in India has power

to add to, or enlarge, the grounds specified in Section 100.

The High Court seriously erred in interfering with the

findings of facts arrived at by the Trial Court and affirmed by

the first Appellate Court.

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The High Court in the impugned judgment has observed

as under :-

"In the normal circumstances a prudent

man would have bequeathed the property

in favour of his legal heirs. However, in

the present case, the testator has

disinherited the plaintiffs."

The High Court also observed that "no father in normal

circumstances would like to disinherit the daughters."

The High Court has clearly deviated from the settled

principle of interpretation of the Will. The Court does not sit

in appeal over the right or wrong of the testator's decision.

The Court's role is limited to examining whether the

instrument propounded as the last Will of the deceased is or is

not that by the testator and whether it is the product of the

free and sound disposing mind. It is only for the purpose of

examining the authenticity or otherwise of the instrument

propounded as the last Will, that the Court looks into the

nature of the bequest.

The learned Single Judge of the High Court has not even

properly appreciated the context of the circumstances. The

contents of the Will have to be appreciated in the context of

his circumstances, and not vis-`-vis the rules for intestate

succession. It is only for this limited purpose that the Court

examines the nature of bequest. The Court does not

substitute its own opinion for what was the testator's Will or

intention as manifested from a reading of the written

instrument. After all, a Will is meant to be an expression of

his desire and therefore, may result in disinheritance of some

and grant to another. In the instant case, wife of the testator

Bhagwan Kaur alone had lived with the deceased and only she

had looked after him throughout his life. The other daughters

were all happily married a long time ago and in their weddings

the testator had spent huge amount of money. In his own

words, he had spent more than what they would have got in

their respective shares out of testator's property.

If a Will appears on the face of it to have been duly

executed and attested in accordance with the requirements of

the Statute, a presumption of due execution and attestation

applies.

It may be pertinent to mention that in the memorandum

of second appeal filed before the High Court no substantial

question of law was formulated. Similarly, the High Court in

its judgment has not formulated question of law before hearing

the appeal.

Despite repeated declarations of law by the judgments of

this Court and the Privy Council for over a century, still the

scope of Section 100 has not been correctly appreciated and

applied by the High Courts in a large number of cases. In the

facts and circumstances of this case the High Court interfered

with the pure findings of fact even after the amendment of

Section 100 C.P.C. in 1976. The High Court would not have

been justified in interfering with the concurrent findings of fact

in this case even prior to the amendment of Section 100

C.P.C.. The judgment of the High Court is clearly against the

provisions of Section 100 and in no uncertain terms clearly

violates the legislative intention.

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In view of the clear legislative mandate crystallized by a

series of judgments of the Privy Council and this Court

ranging from 1890 to 2006, the High Court in law could not

have interfered with pure findings of facts arrived at by the

courts below. Consequently, the impugned judgment is set

aside and this appeal is allowed with costs.