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  4th 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 (17th 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

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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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