IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5116 OF 2002

Sundaraneedi Satyanarayana and Anr.       ...Appellant(s)

Versus

Arigala Venkataratnam and Ors.      ...Respondent(s)

O  R  D  E  R

The suit filed by the plaintiff (respondent No.1 herein) for partition of the  

plaint schedule property into five equal shares and to allot one share to him after  ejecting the defendants and to award future profits on his share was decreed by the  

Trial Court vide judgement dated 21.10.1974.  The appeal filed by the defendants  (appellants herein) was allowed by the Appellate Court on 31.12.1986, the judgment  

and  the  decree  of  the  Trial  Court  was  reversed  and  the  suit  filed  by  plaintiff- respondent  No.1  was  dismissed.   The  respondent  No.1  challenged  the  appellate  

judgment by filing second appeal under Section 100 CPC.  The High Court did not  frame any substantial question of law and the learned Single Judge held that there  

are no valid grounds to interfere with the findings of fact recorded by the Lower  Appellate Court.  Notwithstanding this, he considered the question whether the sale  

deed executed by the first  defendant after the plaintiff  issued a notice demanding  partition is valid and binding on the plaintiff and held that defendant had no power to  

alienate the joint family property so as to bind the plaintiff after the disruption of the  family which resulted from the notice issued by the plaintiff on 25.7.1963.

...2/-

- 2 -  

A reading of the impugned judgment shows that the question relating to  validity of the sale deed executed by defendant No.1 after issuance of notice by the  

plaintiff demanding partition was not specifically raised before the Trial Court.  The  Trial Court framed as many as 12 issues including the one whether the agreement of  

sale executed by defendant No.1 is binding in favour of 5th Defendant is binding on the  plaintiff but no question was framed whether the agreement of sale was invalid on the  

ground that it was executed after issue of notice by the plaintiff demanding partition.  Even then, the High Court considered the aforesaid question and answered the same  

in favour of respondent No.1 by treating it as a pure question of law. In our opinion, the question considered by the High Court was a mixed  

question of fact and law and the same could not have been allowed to be raised in the  first  time of the second appeal, and the learned Single Judge committed a serious  

error by adjudicated upon that question and setting aside the well reasoned judgment  recorded by the Appellate Court.

In the result, the appeal is allowed, impugned judgment of the High Court  is set aside and the decree passed by the Lower Appellate Court is restored.   

No costs.

......................J.       [B.N. AGRAWAL]

......................J.       [G.S. SINGHVI]

New Delhi, April 01, 2009.