REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7346 OF 2008

(Arising out of SLP (C) No. 11785 OF 2007)

U.R. Virupakshaiah … Appellant

Versus

Sarvamma & Anr. … Respondents

J U D G M E N T

S.B. Sinha, J.

1.Leave granted.

2.Whether the High Court, while exercising its jurisdiction under

Section 100 of the Code of Civil Procedure, could, while dictating the

judgment, frame an additional question of law and allow the same without

even referring to the questions of law formulated at the time of admission

thereof, arises for consideration herein.

3.Before, however, adverting to the said question, we may notice the

factual matrix involved in the matter.

One Nanjappa was the owner of the property. The admitted

genealogical table of the family is as under:

4.Virupakashappa filed a suit for partition claiming share in Survey

No.197/2 measuring 11 acres 22 guntas, Survey No.203/3 measuring 3.2

acres, Survey No.203/6 measuring 2 acres 21 guntas and a house property

situated at Chikkathotulkere, Tumkur Taluk, District Tumkur in the year

1996. Defendants-Respondents, inter alia, in their written statements denied

and disputed the said genealogical table. It is profitable to refer thereto :

“It is false to state that land bearing survey

No.197/3 measures 11-22 guntas, schedule

properties are not appropriate with the existing

one. The plaintiff with a mala fide intention filed

this suit. Plaintiff has not got any kind of blood

relationship with the defendants. The defendant’s

grand father was enjoying the properties since

long days back in the year 1946 when the grand

father was died the revenue entries were changed

into defendant’s father’s name, since 1956 the

defendant is enjoying the entire schedule

properties together with other properties as the

absolute owner with title and possession. The

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Nanjappa

(Propositus)

Channapasappa Mallappa Revanna

Revanns Siddappa

(Dead)

Chikkasiddappa Shetty

(Dead)

Dead and unmarried

and issueless

Virupakashappa

Plaintiff/Petitioner

T.C. Nanjappa

(Original Defendant-

Dead

Sarvamangala

(Widow) (D.1)(a)/

Present Respondent

No.1

Kathayni

D.1(b)/Present

Respondent No.2

defendant has sold piece of land for family

maintenance. He has improved the said lands and

he raised coconut trees with water supply some

time he has raised loans by mortgaging the

schedule properties.

Plaintiff is utter stranger and he has no

relationship with this defendant. He has filed this

suit to gain by an unlawful way.”

It was furthermore contended that revenue entries throughout stood in

the name of the father of the defendant and they have been exercising

ownership rights over the lands in suit since time immemorial.

5.The learned Trial Judge, in view of the abovenoted rival contentions

of the parties, inter alia, framed the following issues :

“1. Whether the plaintiff proves that the suit

schedule properties are the ancestral and

joint family properties of the plaintiff and

defendants and they are in joint possession

of the same?

2.Whether the plaintiff further proves that the

defendant has unlawfully got the revenue

entries of the suit schedule property to his

own name, with ulterior motive and refused

to allot the half share to the plaintiff in the

suit schedule property?

3.Whether the plaintiff further proves that he

is entitled for half share in the suit schedule

property and mesne profits?”

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Parties not only adduced oral evidence before the learned Trial Judge

but placed on record a large number of documents to prove their respective

cases. Before the learned Trial Judge a Deed of Mortgage purported to have

been executed by Chennapasappa and Revenna was brought on record to

show that they had been entering into separate transactions in regard to

portions of the purported joint family property. The learned Trial Judge

opined that the plaintiff is entitled to a decree for partition against the

defendants except the property mortgaged by his father to one Krishnappa.

It was held that there was no evidence regarding any further transaction.

6.An appeal preferred thereagainst by the respondent was dismissed

holding that the plaintiff was not able to prove that the properties in suit

continued to be the joint family property.

7.A second appeal was preferred thereagainst by the respondent. Two

substantial questions of law were framed at the time of admission of the

appeal :

“1.Whether the Courts below were justified in

holding that the recital in the mortgage deed

Ex.D1 which is one of the year 1922 which

came into existence at an undisputed point

of time, do not establish the partition

between Channabasappa, Mallappa and

Revenna, sons of Nanjappa?

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2.Whether the First Appellate Court was

justified in rejecting the application filed

under Order 41 Rule 27 and also application

for amendment of written statement setting

up the plea of prior partition?”

However, the High Court, after hearing the counsel for the parties and

at the time of dictating a judgment, sought to frame a new question of law

which reads as under :

“Whether the Courts below are justified in holding

that there exists a joint family and the suit

schedule properties are joint family properties in

the light of the admitted fact that the plaintiff and

defendant belonged to 4

th

generation and the

plaintiff has admitted in categorical terms in his

evidence that there was a partition in the family 80

years back and in the absence of any material

placed by the plaintiff to show either the existence

of the joint family or that the schedule properties

are joint family properties.?”

8.So as to enable the appellant herein to make submissions on the said

additional substantial question of law, an opportunity was sought to be

granted. Appellant sought for eight days’ time which, having been found to

be unreasonable, was declined. The learned Judge proceeded with the

judgment and allowed the respondent’s appeal.

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9.Mr. S.B. Sanyal, learned senior counsel appearing on behalf of the

appellant, urged :

1.The additional substantial question of law having been framed during

the course of the judgment without recording reasons, therefore, must

be held to be impermissible in law and as no reasonable opportunity

was given to the appellant to show that no such question of law arose

for consideration before the High Court, the impugned judgment

cannot be sustained.

2.A new issue and/or point cannot be allowed to be urged for the first

time before the High Court, particularly when, by reason thereof, it

would be entering into the forbidden arena of appreciation of

evidence for the purpose of reversal of the concurrent findings of fact

arrived at by two courts.

3.The question as to whether there had been a previous partition or not

being a pure question of fact, the High Court could not have entered

into evidences adduced by the parties to hold that the predecessors, in

interest of the parties, had partitioned the properties.

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4.The High Court proceeded to determine the issue as regards jointness

of the property on a wrong premise that the parties belong to fourth

generation of the properties.

10.Mr. G.V. Chandrasekhar, learned counsel appearing on behalf of the

respondent, on the other hand, would contend that the learned Trial Judge as

also the First Appellate Court having not taken into consideration the vital

admission of the plaintiff as regards previous partition as also other

evidences brought on record which clearly show that the parties had been in

separate possession for a long time, the impugned judgment should not be

interfered with.

11.It is well settled that the presumption in regard to existence of joint

family gets weaker and weaker from descendant to descendant and such

weak presumption can be rebutted by adduction of slight evidence of

separate possession of the properties in which even the burden would shift

to the plaintiff to prove that the family was a joint family.

The High Court’s jurisdiction to interfere with a finding of fact may

not be limited in a case of this nature where the finding of fact had been

arrived at upon taking into consideration inadmissible evidence and based

on presumptions which could not have been raised.

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12.The Code of Civil Procedure was amended in the year 1976 by reason

of Code of Civil Procedure (Amendment) Act, 1976. In terms of the said

amendment, it is now essential for the High Court to formulate a substantial

question of law. The judgments of the Trial Court and the First Appellate

Court can be interfered with only upon formulation of a substantial question

of law, if any, which has arisen for its consideration by the High Court. It,

furthermore, should not ordinarily frame a substantial question of law at a

subsequent stage without assigning any reason therefor and without giving a

reasonable opportunity of hearing to the respondents. {See Nune Prasad &

Ors. v. Nune Ramakrishna [2008 (10) SCALE 523]; Panchugopal Barua &

Ors. v. Umesh Chandra Goswami & Ors. [(1997) 4 SCC 713 paras 8 and 9];

and Kshitish Chandra Purkait v. Santosh Kumar Purkait & Ors. [(1997) 5

SCC 438 paras 10 and 12]}.

13.The High Court, in this case, however, formulated a substantial

question of law while dictating the judgment in open court. Before such a

substantial question of law could be formulated, the parties should have

been put to notice. They should have been given an opportunity to meet the

same. Although the court has the requisite jurisdiction to formulate a

substantial question of law at a subsequent stage which was not formulated

at the time of admission of the second appeal but the requirements laid

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down in the proviso appended to Section 100 of the Code of Civil

Procedures were required to be met. The High Court did not record any

reason for formulating the additional question. The prayer of the appellant

to grant some time to deal with the said question was declined. The High

Court failed to take into consideration the fact that by framing the additional

substantial question of law, a new case is sought to be made out.

14.Principal contention raised on behalf of the defendant-respondent, in

their written statement, as noticed hereinbefore, was non-existence of any

relationship between the parties. We, however, do not mean to suggest that

defendants cannot raise inconsistent pleas but the same should have been

kept in mind by the High Court. It might or might not have been possible

for the High Court to consider the question of law raised on the basis of the

facts found by the courts below, but, indisputably, the High Court without

recording sufficient reasons, could not allow the appellant to raise

absolutely a new contention which was beyond the pleadings of the parties.

15.The High Court furthermore proceeded on the presumption that the

plaintiff and the defendants belong to the fourth generation of Nanjappa. In

holding so, the High Court wrongly included the propositors as the first

generation. The plaintiff and the defendants were the third generation of the

propositors.

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In Mulla’s Hindu Law (17

th

Edn) Article 212(2), 213, it is stated :

“§ 212. Joint Hindu family – (1) …

(2)The joint and undivided family is the

normal condition of Hindu society. An undivided

Hindu family is ordinarily joint not only in estate

but also in food and worship. The existence of

joint estate is not an essential requisite to

constitute a joint family and a family, which does

not own any property, may nevertheless be joint.

Where there is joint estates, and the members of

the family become separate in estate, the family

ceases to be joint. Mere severance in food and

worship does not operate as a separation.

Possession of joint family property is not a

necessary requisite for the constitution of a joint

Hindu family. Hindus get a joint family status by

birth, and the joint family property is only an

adjunct of the joint family.”

XXX XXX XXX

§ 213. Hindu coparcenary – A Hindu

coparcenary is a much narrower body than the

joint family. It includes only those persons who

acquire by birth an interest in the joint or

coparcenary property. These are the sons,

grandsons and great-grandsons of the holder of the

joint property for the time being, in other words,

the three generations next to the holder in

unbroken male descent. See § 217. The above

propositions must be read in the light of what has

been stated in the note at the top of this chapter.

To understand the formation of a coparcenary, it is

important to note the distinction between ancestral

property and separate property. Property inherited

by a Hindu from his father, father’s father or

father’s fathers’ father, is ancestral property.

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Property inherited by him from other relations is

his separate property. The essential feature of

ancestral property is that if the person inheriting it

has sons, grandsons or great-grandsons, they

become joint owner’s coparceners with him. They

become entitled to it due to their birth. These

propositions also must be read in the light of what

has been stated in the note at the top of this

chapter.”

16.The premise on which, therefore, the High Court reversed the

judgment of the courts below was non-existent.

Mr. Chandrasekhar may be right in his submission that the

presumption with regard to the existence of joint family gets weaker and

weaker from descendant to descendant. It has been so held by this Court in

Bhagwan Dayal (since deceased) and thereafter his heirs and legal

representatives Bansgopal Dubey & Anr. V. Mst. Reoti Devi (deceased) and

after her death, Mst. Dayavati, her daughter [AIR 1962 SC 287] in the

following terms :

“16. The general principle is that every Hindu

family is presumed to be joint unless the contrary

is proved; but this presumption can be rebutted by

direct evidence or by course of conduct. It is also

settled that there is no presumption that when one

member separates from others that the latter

remain united; whether the latter remain united or

not must be decided on the facts of each case. To

these it may be added that in the case of old

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transactions when no contemporaneous documents

are maintained and when most of the active

participants in the transactions have passed away,

though the burden still remains on the person who

asserts that there was a partition, it is permissible

to fill up gaps more readily by reasonable

inferences than in a case where the evidence is not

obliterated by passage of time.”

[See also Bhagwati Prasad v. Shri Chandramaul [(1966) 2 SCR 286].

But it is evident that no such contention was raised. No substantial

question of law in this behalf was framed.

17.Mr. Chandrasekhar would contend that the jurisdiction of the High

Court to interfere with the findings of fact is not limited. Reliance has been

placed on Hero Vinoth (Minor) v. Sheshammal [(2006) 5 SCC 545],

wherein it was held :

“19. It is not within the domain of the High Court

to investigate the grounds on which the findings

were arrived at, by the last court of fact, being the

first appellate court. It is true that the lower

appellate court should not ordinarily reject

witnesses accepted by the trial court in respect of

credibility but even where it has rejected the

witnesses accepted by the trial court, the same is

no ground for interference in second appeal when

it is found that the appellate court has given

satisfactory reasons for doing so. In a case where

from a given set of circumstances two inferences

of fact are possible, the one drawn by the lower

appellate court will not be interfered by the High

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Court in second appeal. Adopting any other

approach is not permissible. The High Court will,

however, interfere where it is found that the

conclusions drawn by the lower appellate court

were erroneous being contrary to the mandatory

provisions of law applicable or its settled position

on the basis of pronouncements made by the Apex

Court, or was based upon inadmissible evidence or

arrived at by ignoring material evidence.”

It was furthermore held :

“23. To be “substantial” a question of law must be

debatable, not previously settled by law of the land

or a binding precedent, and must have a material

bearing on the decision of the case, if answered

either way, insofar as the rights of the parties

before it are concerned. To be a question of law

“involving in the case” there must be first a

foundation for it laid in the pleadings and the

question should emerge from the sustainable

findings of fact arrived at by court of facts and it

must be necessary to decide that question of law

for a just and proper decision of the case. An

entirely new point raised for the first time before

the High Court is not a question involved in the

case unless it goes to the root of the matter. It will,

therefore, depend on the facts and circumstance of

each case whether a question of law is a

substantial one and involved in the case or not, the

paramount overall consideration being the need

for striking a judicious balance between the

indispensable obligation to do justice at all stages

and impelling necessity of avoiding prolongation

in the life of any lis. (See Santosh Hazari v.

Purushottam Tiwari.)

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24. The principles relating to Section 100 CPC

relevant for this case may be summarised thus:

(i) …

(ii) The High Court should be satisfied that the

case involves a substantial question of law,

and not a mere question of law. A question

of law having a material bearing on the

decision of the case (that is, a question,

answer to which affects the rights of parties

to the suit) will be a substantial question of

law, if it is not covered by any specific

provisions of law or settled legal principle

emerging from binding precedents, and,

involves a debatable legal issue. A

substantial question of law will also arise in

a contrary situation, where the legal position

is clear, either on account of express

provisions of law or binding precedents, but

the court below has decided the matter,

either ignoring or acting contrary to such

legal principle. In the second type of cases,

the substantial question of law arises not

because the law is still debatable, but

because the decision rendered on a material

question, violates the settled position of

law.”

The principles laid down therein do not advance the case of the

respondents as the High Court did not arrive at any finding which could

involve their application to the facts of the present case.

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In Makhan Singh (Dead) By Lrs. V. Kulwant Singh [(2007) 10 SCC

602] whereupon again reliance has been placed by Mr. Chandrasekhar, this

Court held :

“9. The High Court has also rightly observed that

there was no presumption that the property owned

by the members of the joint Hindu family could a

fortiori be deemed to be of the same character and

to prove such a status it had to be established by

the propounder that a nucleus of joint Hindu

family income was available and that the said

property had been purchased from the said nucleus

and that the burden to prove such a situation lay

on the party, who so asserted it. The ratio of K.V.

Narayanaswami Iyer case2 is thus clearly

applicable to the facts of the case. We are

therefore in full agreement with the High Court on

this aspect as well. From the above, it would be

evident that the High Court has not made a

simpliciter reappraisal of the evidence to arrive at

conclusions different from those of the courts

below, but has corrected an error as to the onus of

proof on the existence or otherwise of a joint

Hindu family property.”

18.The instant case does not come within the purview of the

aforementioned dicta. The High Court did not deal with the substantial

questions of law formulated at the time of admission at all. We, therefore,

are of the opinion that the impugned judgment cannot be sustained. It is set

aside accordingly and the matter is remitted to the High Court for

15

consideration of the matter afresh. In the event, the High Court opines that

any substantial question of law should be framed suo motu or at the instance

of the appellant before it, viz., respondent herein, it shall give an

opportunity of hearing to appellant.

19.Appeal is allowed on the aforementioned terms. In the facts and

circumstance of the case, however, there shall be no order as to costs.

……………….…..………….J.

[S.B. Sinha]

..………………..……………J.

[Cyriac Joseph]

New Delhi;

December 17, 2008

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