Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 102 OF 2013

(Arising out of S.L.P. (C) No. 35271 of 2011)

Hardevinder Singh ... Appellant

Versus

Paramjit Singh & others ...Respondents

J U D G M E N T

Dipak Misra, J.

Leave granted.

2.One Sarabjit Singh filed Civil Suit No. 29 of 1995 for

possession of the suit land to the extent of his share

treating the will alleged to have been executed in

favour of the defendant Nos. 1 to 4 as null and void

with the consequential prayer for restraining them

from alienating the suit property in any manner. It

Page 2 was set forth in the plaint that the suit land in the

hands of his father, Shiv Singh, was ancestral

coparcenary and Joint Hindu Family property and he,

along with his brothers, the defendant Nos. 5 and 6,

constituted a Joint Hindu Family with the father and

mother. It was alleged that the defendant Nos. 1 to

4, on the basis of a forged will, forcibly took

possession of the land. It was set forth that by virtue

of the will, the plaintiff and the defendant Nos. 5 and

6, the co-owners, have been deprived of the legal

rights in the suit land. It was the case of the plaintiff

that the will was not executed voluntarily by his

father, Shiv Singh, and it was a forged one and,

therefore, no right could flow in favour of the said

defendants.

3.The defendant Nos. 1 to 4 entered contest and

supported the execution of the will on the basis that

it was voluntary and without any pressure or

coercion. That apart, it was contended that the

rights of defendant No. 5 had not been affected as a

registered gift was executed on 31.3.1980 by late

2

Page 3 Shiv Singh. The claim of the plaintiff was strongly

disputed on the ground that the will had already

been worked out since the revenue records had been

corrected. The defendant No. 6 resisted the stand of

the plaintiff contending, inter alia, that the property

was self-acquired and the execution of the will was

absolutely voluntary. The defendant No. 5 filed an

independent written statement admitting the claim of

the plaintiff. It was set forth by him that the suit land

was ancestral, a Joint Hindu Coparcenary property

and his father Shiv Singh, being the Karta, had no

right to bequeath the same in favour of defendant

Nos. 1 to 4 to the exclusion of the other rightful

owners. That apart, it was contended that the will

was vitiated by fraud. A prayer was made to put him

in possession of the suit land after carving out his

share.

4.The learned trial Judge framed as many as four

issues. The plaintiff examined himself as PW-1 and

tendered number of documents in evidence which

were marked as Exts. P-1 to P-17. The defendant

3

Page 4 Nos. 1 to 4 examined number of witnesses and got

seven documents exhibited. The defendant No.5

supported the evidence led by the plaintiff. In

rebuttal, the plaintiff examined the Record Keeper of

Medical College Rohtak as PW-2 and Dr. A.K. Verma

as PW-3 and brought on record four forms, Exts. P-18

to P-19A. The learned trial Judge, on appreciation of

the evidence brought on record, came to hold that

the suit land was a Joint Hindu Family property; that

defendant Nos. 1 to 4 had failed to dispel the

suspicious circumstances in the execution of the will

in favour of defendant Nos. 1 to 4 and, hence, the will

was null and void; that the mutation did not create

any impediment on the rights of the plaintiff and

other natural heirs of the testator; and that they are

entitled to get joint possession of the suit land as per

their shares in accordance with the law of natural

succession.

5.On an appeal being preferred by the three

beneficiaries of the will (as the original defendant No.

1 had died), the learned appellate Judge came to

4

Page 5 hold that the property held by Shiv Singh, the

predecessor-in-interest of the parties to the suit, was

not ancestral, but self-acquired and, hence, he was

competent to alienate the same in any manner as he

liked; that the will dated 6.7.1989, Exh. D-2, in favour

of original defendant No. 1, his wife who had expired

by the time the appeal was filed and the defendant

Nos. 2 to 4, his grandsons, was validly executed and

that the finding recorded by the learned trial Judge

on that score was unsustainable. Be it noted, the

learned appellate Judge took note of the fact that

Sarabjit Singh had challenged the said will but, on

account of settlement with the appellants before the

appellate court, had practically withdrawn from the

litigation. Being of this view, he set aside the

judgment and decree passed by the learned trial

Judge and dismissed the suit with costs.

6.The defendant No. 5 preferred R.S.A. No. 85 of 2007

before the High Court. The learned single Judge,

upon hearing the learned counsel for the parties and

placing reliance on Smt. Ganga Bai v. Vijay

5

Page 6 Kumar and others

1

and Banarsi and others v.

Ram Phal

2

, came to hold that the appeal was not

maintainable at the instance of defendant No. 5

under Section 100 of the Code of Civil Procedure,

1908 (for short “the Code”).

7.We have heard Mr. Vipin Gogia, learned counsel for

the appellant, and Mr. K.K. Mohan, learned counsel

appearing for the respondents.

8.At the very outset, we must state that the High Court

has accepted the preliminary objections raised by the

respondents as regards the maintainability of the

appeal. While accepting the preliminary objection,

the High Court has opined that the plaintiff and the

defendant Nos. 1 to 4 and 6 had accepted the

judgment and decree; that the defendant No. 5

cannot be regarded as an aggrieved party to assail

the impugned decree invoking the jurisdiction of the

High Court under Section 100 of the Code; that

appeal being a creature of the statute, the right to

appeal inheres in one and it stands in a distinct

1

AIR 1974 SC 1126

2

AIR 2003 SC 1989

6

Page 7 position than that of a suit and, hence, no appeal

could lie against a mere finding for the simple reason

that the Code does not provide for such an appeal;

and that the suit having been dismissed by virtue of

the dislodging of the decree by the first appellate

court, the regular second appeal could not be filed by

the defendant No. 5. Hence, the present appeal by

the said defendant-appellant.

9.As indicated earlier, to arrive at such a conclusion,

reliance was placed on the decision in Smt. Ganga

Bai v. Vijay Kumar and others (supra) wherein a

distinction was drawn between the inherent right to

file a suit unless the suit is statutorily barred and the

limitations in maintaining an appeal. In that case,

the defendant Nos. 2 and 3 had preferred an appeal

before the High Court challenging the finding

recorded by the trial court. Thereafter, a challenge

was made partly to the preliminary decree. This

Court took note of the fact that the appeal preferred

by the said defendants was directed originally not

against any part of the preliminary decree but

7

Page 8 against a mere finding recorded by the trial court

that the partition was not genuine. It was observed

by this Court that to maintain an appeal, it requires

authority of law. After referring to Sections 96(1),

100, 104(1) and 105 of the Code, the Bench observed

as follows: -

“17.These provisions show that under the

Code of Civil Procedure, an appeal lies only

as against a decree or as against an order

passed under rules from which an appeal

is expressly allowed by Order 43, Rule 1.

No appeal can lie against a mere finding

for the simple reason that the Code does

not provide for any such appeal. It must

follow that First Appeal No. 72 of 1959 filed

by defendants 2 and 3 was not

maintainable as it was directed against a

mere finding recorded by the trial court.”

10.Thereafter, the Court opined that the High Court

mixed up two distinct issues, namely, (i) whether the

defendants 2 and 3 were competent to file an appeal

if they were aggrieved by the preliminary decree and

(ii) whether the appeal as filed by them was

maintainable. It was opined that if the defendants 2

and 3 could be said to have been aggrieved by the

preliminary decree, it was certainly competent for

them to challenge that decree in appeal, but as they

8

Page 9 had not filed an appeal against the preliminary

decree, the question whether they were aggrieved by

that decree and could file an appeal therefrom was

irrelevant. The Bench held that the appeal was

directed against the finding given by the trial court

which was against them, hence, it was not

maintainable. Be it noted, this Court also addressed

with regard to the issue whether defendant Nos. 2

and 3 were aggrieved by the preliminary decree and

opined that the appeal was against a mere finding

and the preliminary decree, in fact, remained

unchallenged for a long period.

11.Another aspect which was addressed by the Bench

was whether the finding would operate as res

judicata in the subsequent proceeding. This Court

observed that the finding recorded by the trial court

that the partition was a colourable transaction was

unnecessary for the decision of the suit because even

if the court were to find that the partition was

genuine, the mortgage would only have bound the

interest of the father as the debt was not of a

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Page 10 character which, under the Hindu Law, would bind

the interest of the sons. That apart, the matter

relating to the partition being not directly and

substantially in issue in the suit, the finding that the

partition was sham could not operate as res judicata

so as to preclude a party aggrieved by the finding

from agitating the question covered by the finding in

any other proceeding.

12.On a keen scrutiny of the facts of the aforesaid case

and the dictum laid down therein, in our considered

opinion, it does not really apply to the case at hand,

regard being had to the obtaining factual matrix and

further, the decision was rendered before the

amendment was brought into the Code prior to 1976.

Therefore, we have no hesitation in saying that the

High Court has fallen into error in placing reliance on

the said pronouncement.

13.Presently, it is apt to note that Sections 96 and 100

of the Code make provisions for preferring an appeal

from any original appeal or from a decree in an

appeal respectively. The aforesaid provisions do not

10

Page 11 enumerate the categories of persons who can file an

appeal. If a judgment and decree prejudicially

affects a person, needless to emphasize, he can

prefer an appeal. In this context, a passage from

Smt. Jatan Kanwar Golcha v. M/s. Golcha

Properties Private Ltd.

3

is worth noting: -

“It is well settled that a person who is not a

party to the suit may prefer an appeal with

the leave of the appellate Court and such

leave should be granted if he would be

prejudicially affected by the judgment.”

14.In State of Punjab v. Amar Singh and another

4

,

Sarkaria, J., while dealing with the maintainability of

an appeal by a person who is not a party to a decree

or order, has stated thus: -

“84.Firstly there is a catena of authorities

which, following the doctrine of Lindley,

L.J., in re Securities Insurance Co., (1894) 2

Ch 410 have laid down the rule that a

person who is not a party to a decree or

order may with the leave of the Court,

prefer an appeal from such decree or order

if he is either bound by the order or is

aggrieved by it or is prejudicially affected

by it. As a rule, leave to appeal will not be

refused to a person who might have been

made ex nominee a party – see Province of

Bombay v. W.I. Automobile Association,

3

AIR 1971 SC 374

4

AIR 1974 SC 994

11

Page 12 AIR 1949 Bom 141; Heera Singh v. Veerka,

AIR 1958 Raj 181 and Shivaraya v.

Siddamma, AIR 1963 Mys 127; Executive

Officer v. Raghavan Pillai, AIR 1961 Ker

114. In re B, an Infant (1958) QB 12;

Govinda Menon v. Madhavan Nair, AIR

1964 Ker 235.”

15.In Baldev Singh v. Surinder Mohan Sharma and

others

5

, a three Judge-Bench opined that an appeal

under Section 96 of the Code would be maintainable

only at the instance of a person aggrieved by and

dissatisfied with the judgment and decree. In the

said case, while dealing with the concept of ‘person

aggrieved’, the Bench observed thus:-

“A person aggrieved to file an appeal must

be one whose right is affected by reason or

the judgment and decree sought to be

impugned. It is not the contention of

Respondent 1 that in the event the said

judgment and decree is allowed to stand,

the same will cause any personal injury to

him or shall affect his interest otherwise.”

16.Be it noted, in the said case, the challenge in appeal

was to the dissolution of marriage of the appellant

therein and his first wife which, this Court held, would

have no repercussion on the property in the suit and,

therefore, the High Court was not justified in

5

(2003) 1 SCC 34

12

Page 13 disposing of the civil revision with the observation

that the revisionist could prefer an appeal.

17.In Sahadu Gangaram Bhagade v. Special

Deputy Collector, Ahmednagar and another

6

, it

was observed that the right given to a respondent in

an appeal is to challenge the order under appeal to

the extent he is aggrieved by that order. The

memorandum of cross-objection is but one form of

appeal. It takes the place of a cross appeal. In the

said decision, emphasis was laid on the term

‘decree’.

18.After the 1976 amendment of Order 41 Rule 22, the

insertion made in sub-rule (1) makes it permissible to

file a cross-objection against a finding. The

difference is basically that a respondent may defend

himself without taking recourse to file a cross-

objection to the extent the decree stands in his

favour, but if he intends to assail any part of the

decree, it is obligatory on his part to file the cross-

objection. In Banarsi and Others v. Ram Phal

6

(1970) 1 SCC 685

13

Page 14 (supra), it has been observed that the amendment

inserted in 1976 is clarificatory and three situations

have been adverted to therein. Category No. 1 deals

with the impugned decree which is partly in favour of

the appellant and partly in favour of the respondent.

Dealing with such a situation, the Bench observed

that in such a case, it is necessary for the respondent

to file an appeal or take cross-objection against that

part of the decree which is against him if he seeks to

get rid of the same though he is entitled to support

that part of the decree which is in his favour without

taking any cross-objection. In respect of two other

categories which deal with a decree entirely in favour

of the respondent though an issue had been decided

against him or a decree entirely in favour of the

respondent where all the issues had been answered

in his favour but there is a finding in the judgment

which goes against him, in the pre-amendment

stage, he could not take any cross-objection as he

was not a person aggrieved by the decree. But post-

amendment, read in the light of explanation to sub-

14

Page 15 rule (1), though it is still not necessary for the

respondent to take any cross-objection laying

challenge to any finding adverse to him as the

decree is entirely in his favour, yet he may support

the decree without cross-objection. It gives him the

right to take cross-objection to a finding recorded

against him either while answering an issue or while

dealing with an issue. It is apt to note that after the

amendment in the Code, if the appeal stands

withdrawn or dismissed for default, the cross-

objection taken to a finding by the respondent would

still be adjudicated upon on merits which remedy was

not available to the respondent under the

unamended Code.

19.At this juncture, we may usefully reproduce a

passage from Banarsi and others (supra) wherein it

has been stated thus: -

“Sections 96 and 100 CPC make provision

for an appeal being preferred from every

original decree or from every decree

passed in appeal respectively; none of the

provisions enumerates the person who can

file an appeal. However, it is settled by a

long catena of decisions that to be entitled

15

Page 16 to file an appeal the person must be one

aggrieved by the decree. Unless a person

is prejudicially or adversely affected by the

decree he is not entitled to file an appeal.

See Phoolchand v. Gopal Lal

7

, Jatan Kumar

Golcha v. Golcha Properties (P) Ltd. (supra)

and Ganga Bai v. Vijay Kumar (supra).) No

appeal lies against a mere finding. It is

significant to note that both Sections 96

and 100 CPC provide for an appeal against

decree and not against judgment.”

20.Though the High Court has referred to the said

pronouncement, yet it has not applied the ratio

correctly to the facts. This Court has clearly stated

that if a person is prejudicially or adversely affected

by the decree, he can maintain an appeal. In the

present case, as we find, the plaintiff claiming to be a

co-sharer filed the suit and challenged the will. The

defendant No. 5, the brother of the plaintiff,

supported his case. In an appeal at the instance of

the defendant Nos. 1 to 4, the judgment and decree

was overturned. The plaintiff entered into a

settlement with the contesting defendants who had

preferred the appeal. Such a decree, we are

disposed to think, prejudicially affects the defendant

No. 5 and, therefore, he could have preferred an

7

AIR 1967 SC 1470

16

Page 17 appeal. It is worthy to note that the grievance

pertained to the nature and character of the property

and the trial court had decreed the suit. He stood

benefited by such a decree. The same having been

unsettled, the benefit accrued in his favour became

extinct. It needs no special emphasis to state that he

had suffered a legal injury by virtue of the over

turning of the decree. His legal right has been

affected. In this context, we may refer to a recent

pronouncement in Ayaaubkhan Noorkhan Pathan

v. The State of Maharashtra & ors.

8

wherein this

Court has held thus: -

“A “legal right”, means an entitlement

arising out of legal rules. Thus, it may be

defined as an advantage, or a benefit

conferred upon a person by the rule of law.

The expression, “person aggrieved” does

not include a person who suffers from a

psychological or an imaginary injury; a

person aggrieved must therefore,

necessarily be one, whose right or interest

has been adversely affected or

jeopardized. (Vide: Shanti Kumar R. Chanji

v. Home Insurance Co. of New York, AIR

1974 SC 1719; and State of Rajasthan &

Ors. v. Union of India & ors., AIR 1977 SC

1361).”

8

2012 (11) SCALE 39

17

Page 18 21.Though the said judgment was delivered in a

different context, yet it is applicable to the obtaining

factual matrix regard being had to the conception of

legal injury. Thus, indubitably, the present appellant

was a person aggrieved and was prejudicially

affected by the decree and, hence, the appeal could

not have been thrown overboard treating as not

maintainable.

22.In view of the aforesaid premised reasons, we allow

the appeal, set aside the judgment of the High Court,

treat the second appeal preferred by the present

appellant to be maintainable in law and remit the

matter to the High Court with a request to decide the

appeal within a period of six months. Needless to

say, we have not expressed any opinion on any of

the aspects which pertain to the merits of the case.

In the facts and circumstances of the case, the

parties shall bear their respective costs.

……………………………… .J.

[K. S. Radhakrishnan]

18

Page 19 ……………………………… .J.

[Dipak Misra]

New Delhi;

January 07, 2013

19