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PETITIONER: RAMCHANDRA PANDURANG SONAR (DECEASED)THROUGH HIS HEIRS AND L

       Vs.

RESPONDENT: MURLIDHAR RAMCHANDRA SONAR AND ORS.

DATE OF JUDGMENT19/07/1990

BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. KASLIWAL, N.M. (J)

CITATION:  1990 AIR 1973            1990 SCR  (3) 435  1990 SCC  (4)  45        JT 1990 (3)   202  1990 SCALE  (2)85

ACT:     Code  of  Civil  Procedure,  1908:  Section  100--Second appeal-Finding  of fact--High Court not to interfere  unless question of law is involved and such question is  formulated by it.

HEADNOTE:     S  and  R were brothers who carried on the business  of  gold smithery, and a partition took place between them in 1918. R  got 2 houses and land in Survey No. 71. Later on, one of the sons  of R instituted a suit claiming that Survey No. 71 was an  ancestral property and that some of the suit properties were purchased by R out  of  the income, and subsequently the sale proceeds,  of  the land.  The  defendants, viz., the other children of  R  contended that Survey No. 71 was purchased by S and R with the income  they derived from gold smithery and the suit properties except the two houses  which were admittedly the ancestral properties, were  not the  joint family properties in which the plaintiff  could  claim his share.     The Trial Court decreed the suit in favour of the plain- tiff. On appeal by the defendants, the First Appellate Court reappreciated the evidence, found infirmities in the conclu- sions  arrived at by the Trial Court and dismissed the  suit except to the extent of plaintiff’s share in the two  ances- tral  houses,  on the basis of its finding  that  the  other properties were self-acquired properties of R.     During the pendency of the suit R died. By virtue of his will  the self-acquired properties of R went to the  defend- ants and the plaintiff was left out.     The plaintiff preferred an appeal before the High  Court against  the  order of the First Appellate Court.  The  High Court  interfered with the said findings of facts  and  held that  since  Survey  No. 71 had come to the share  of  R  in general  partition,  it was ancestral property.  it  further observed  that since the said property was  yielding  income with the help of which the other properties could have  been purchased and since 436 further  the gold smithery business was an  ancestral  busi- ness, the properties purchased with the help of such  income should be held to be joint family properties.

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   Aggrieved, the defendants have filed this appeal. Allow- ing the appeal,     HELD:  1. There was, no question of law involved in  the second  appeal. Yet the High Court chose to  interfere  with the finding ignoring the mandatory provisions of Section 100 of  the  Civil Procedure Code that unless it  was  satisfied that the case involved substantial question of law it  could not entertain it and that before it could entertain it,  the Court had to formulate such question. [440F]     2.1 It was not disputed at any time that the property in Survey No. 71 had all along stood in the name of Supadu and, therefore,  the  presumption drawn by  the  First  Appellate Court that this showed that in all probability the  property was  purchased after the death of his father cannot be  said to  be unreasonable. There is no evidence brought on  record by  the plaintiff with regard to the quantum of income  from Survey No.71. In fact, the uncontroverted evidence on record shows  that  Ramchandra had no implements and  bullocks  for cultivating the land and the land was always cultivated with the  help of the labourers who brought their own  implements and  bullocks. This shows that the family derived less  than normal  income  from the said land. It was admitted  by  the plaintiff  that Ramchandra was a skilled goldsmith  and  was well-known in the locality as such, and was doing his  busi- ness as goldsmith and earning sufficient income. [440A-D]     2.2 The High Court ignoring the fact that it was not the case  of  the plaintiff that goldsmithery was  an  ancestral business and that it was not his case that the suit  proper- ties  were  purchased with the help of the income  from  the said  business  held that it was so. What  is  further,  the plaintiff’s case was that the suit properties were purchased with the income from Survey No. 71. Thus it is obvious  that the conclusions which were arrived at by the First Appellate Court were reasonable and legal besides being conclusions of facts. [440D-E]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 3704  of 1989.     From  the  Judgment  and Order dated  11.3.1987  of  the Bombay High Court in Second Appeal No. 725 of 1980. 437 U.R. Lalit, G.A. Shah, V.N. Ganpule for the Appellants.     D.A. Dave, R. Karanjawala, Ms. M. Karanjawala and Jatin- der Sethi for the Respondents. The Judgment of the Court was delivered by     SAWANT.J. This is a case where the High Court in  second appeal  has interfered with a pure finding of fact  recorded by  the First Appellate Court for no worthwhile reason,  and ignoring  the  mandatory provisions of Section  100  of  the Civil Procedure Code.     2. The only question which was involved in the suit  was whether  the suit properties in which the plaintiff  claimed one-fifth share, were the ancestral joint family  properties or  whether  they were the self acquired properties  of  his father, Ramchandra. The relevant facts are: defendant No. 1, Ramchandra  had  four sons including the  plaintiff,  and  a daughter. The three other sons and the daughter are  defend- ants  Nos. 2 to 5. One of the sons, defendant No. 3  appears to  support the plaintiff. During the pendency of the  suit, Ramchandra  died and his sons including the  plaintiff  have been  brought on record as his heirs and  legal  representa- tives.  The  suit properties consisted of  lands  being  (i)

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Survey No. 21/1 admeasuring 14 acres 3 gunthas, (ii)  Survey No..  20/2 admeasuring 2 acres 36 gunthas, (iii) Survey  No. 20/1  admeasuring  3  acres 30 gunthas and  two  houses  all situated at Nizampur, Taluka Saaki, District Dhuiia. It  was the case of the plaintiff in his plaint that a joint  family consisting of his father Ramchandra and his brother,  Supadu owned several houses, and a land comprised in Survey No.  71 admeasuring  about 14 acres. In the partition  between  Ram- chandra and Supadu, two houses and Survey No. 71 came to the share of Ramchandra- The said two houses are included in the suit  properties  and it is not disputed on  behalf  of  the respondent-defendants that they are ancestral properties and the plaintiff has one-fifth share in the same. However,  the case  of the plaintiff that Survey No. 71 was the  ancestral property  was  vehemently  disputed and that  has  been  the sheet-anchor  of  contention of both the parties  while  the plaintiff  claims  that  rest of the  suit  properties  were purchased  by Ramchandra out of the income  and-subsequently the  sale proceeds, of the said land (since  admittedly  the said land was sold by Ramchandra in 1953), it is the case of the  defendants  that the said land was  in  fact  purchased jointly  by Ramchandra and his brother, Supadu out of  their own  earnings, and in the partition between  Ramchandra  and Supadu  that  land came to the share of  Ramchandra.  Hence, according to the defendants, even 438 assuming that the rest of the suit properties were purchased with  the help of the income from Survey No. 71,  they  were the self-acquired properties of Ramchandra.     3.  In  support of his case that Survey No. 71  was  the ancestral property, the plaintiff relied upon the fact  that the said survey no. had come to the share. of Ramchandra  in a  general partition between him and his brother, Supadu  in 1918.  As against this, the defendants contended  that  Ram- chandra’s  father Pandu died in 1904 and since the  property all along stood in the name of Supadu it showed that it  was purchased after Pandu’s death in 1904. They also relied upon the  fact  that Ramchandra was a skilled goldsmith  and  was well known for his artisanship and commanded good  business. His  brother was also a goldsmith and both of them had  pur- chased  the said land with the earning in  goldsmithery.  It was also their case that Ramchandra’s father, Pandu had only two  houses  and no other property nor did he carry  on  any business even of goldsmithery. Hence, there was no  question of  purchasing  Survey  No. 71 out of the  income  from  the ancestral property by Ramchandra and Supadu and the purchase was  with the help of the income which they had earned  from the business which they were carrying on by their own skill. It was also shown by the defendants that when Survey No.  71 was  sold in 1953, no objection whatsoever was taken to  the sale nor permission of any of the sons including that of the plaintiff  was deemed necessary for the same.  They  further contended that they had hardly any income from Survey No. 71 and the properties which were purchased prior to 1953  could not  have  been purchased with the help of any  such  income assuming  that it was an ancestral land. According to  them, therefore, the suit properties were purchased only from  the income  from the business of goldsmithery. The three of  the properties were purchased prior to 1953 while the rest  were purchased  long  after 1953, i.e. in 1961,  1965  and  1967. Hence, their purchase had no relation to the sale of  Survey No.  71  in 1953, again assuming that it  was  an  ancestral property.  It is for these reasons, according to them,  that the suit properties except the two houses which were  admit- tedly  the  ancestral properties were not the  joint  family

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properties in which the plaintiff could claim his share.     4.  The relevant issues were framed including the  issue as  to  whether defendants proved that the  suit  properties were  self-acquired  and plaintiff had no share in  it.  The Trial Court answered the said issue in favour of the  plain- tiff  and decreed the suit against the  defendants.  Against the said decision, the defendants appealed and the First 439 Appellate Court after reappreciating the evidence and point- ing out the infirmities in the conclusions arrived at by the Trial Court, dismissed the suit except to the extent of  the plaintiff’s  share  in the two ancestral houses. It  may  be mentioned  here  that although Ramchandra, defendant  No.  1 died during the pendency of the suit, he had willed out  his properties  in favour of the defendants and, therefore,  the plaintiff  had no share in the self-acquired  properties  of Ramchandra which could have been granted to him otherwise.     5.  The  First Appellate Court held that  the  following circumstances  showed  that the suit properties  except  the ancestral  houses were the self-acquired properties of  Ram- chandra.  The first circumstance was that Survey No. 71  was purchased  in  the name of Supadu which showed that  in  all probability  the property was purchased after the  death  of Ramchandra’s  father,  Pandu. Secondly, since there  was  no record  to show that Pandu had any lands or was carrying  on any  business,  Survey No. 71 must have  been  purchased  by Ramchandra  and Supadu with the help of their  earnings.  It was not disputed and in fact it was admitted that Ramchandra was  a  skilled goldsmith and was carrying  on  business  of goldsmithery along with his brother, Supadu and was  earning sufficient  income with the help of which he could  purchase the  properties.  Survey  No. 71 further was  sold  in  1953 without  obtaining the consent of the other members  of  the family.  Had  it been the joint family property  the  vendee would have insisted upon such consent.     6.  The  High Court interfered with  these  findings  on grounds which were not even made out by the plaintiff either in the plaint or in his evidence and which were contrary  to the admissions of the plaintiff himself. The High Court held that since the property had come to the share of  Ramchandra in general partition, it must be held that it was an  ances- tral  property. The High Court further held that Survey  No. 71 was yielding sufficient income with the help of which the other  properties would have been purchased and further  the goldsmithery business was an ancestral business and,  there- fore, the properties purchased with the help of such  income should also be held to be joint family properties.     It may be stated here that the learned counsel appearing for  the  appellant-defendants wanted to produce  before  us documents  to show that in fact Survey No. 71 was  purchased in the year 1907 by Ramchandra and his brother Supadu  after the  death of their father, Pandu in 1904, and that  in  the Revenue records the property always 440 stood  in the name of Supadu. We did not permit him to  pro- duce the said documents since no explanation whatsoever  was available  as to why the documents were not produced  before the  courts below. However, it was not disputed at any  time that the property had all along stood in the name of  Supadu and, therefore, the presumption drawn by the First Appellate Court that this showed that in all probability the  property was purchased after the death of Pandu cannot be said to  be unreasonable.  Secondly,  there is no  evidence  brought  on record by the plaintiff with regard to the quantum of income from Survey No; 71. In fact, the uncontroverted evidence  on

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record shows that Ramchandra who had entered the witness box had no implements and bullocks for cultivating the land  and the land was always cultivated with the help of the  labour- ers  who  brought their own implements  and  bullocks.  This shows  that the family derived less than normal income  from the  said land. Secondly, it was admitted by  the  plaintiff that  Ramchandra was a skilled goldsmith and was  well-known in  the  locality  as such, and was doing  his  business  as goldsmith and earning sufficient income. It was not his case further  that the goldsmithery was the  ancestral  business. However,  the High Court ignoring the fact that it  was  not the case of the plaintiff that goldsmithery was an ancestral business and that it was not his case that the suit  proper- ties  were  purchased with the help of the income  from  the said  business  held that it was so. What  is  further,  the plaintiff’s case was that the suit properties were purchased with the income from Survey No. 71. Thus it is obvious  that the  conclusions’ which were arrived at by the first  Appel- late  Court were reasonable and legal besides being  conclu- sions  of  facts. There was, therefore, no question  of  law involved  in the second appeal. Yet the High Court chose  to interfere with the finding ignoring the mandatory provisions of  Section 100 of the Civil Procedure Code that  unless  it was satisfied that the case involved a substantial  question of  law it could not entertain it and that before  it  could entertain it, the Court had to formulate such question.     7. We are, therefore, more than satisfied that the  High COurt has erred in law in interfering with the decree passed by  the  First  Appellate Court. We,  therefore,  allow  the appeal, set aside the decision of the High Court and restore the  decree passed by the First Appellate Court.  Since  the parties belong to one family we pass no order as to costs. G.N.                                            Appeal   al- lowed. 441