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CASE NO.: Appeal (civil)  2292 of 1999

PETITIONER: Govindaraju                                              

RESPONDENT: Mariamman                                                

DATE OF JUDGMENT: 04/02/2005

BENCH: ASHOK BHAN & A.K. MATHUR

JUDGMENT: J U D G M E N T

BHAN, J.         This appeal by special leave is preferred by  the original defendant \026 appellant herein, against  the judgment and decree of the High Court of Madras  granting declaration and permanent injunction to the  original plaintiff \026 respondent herein, with respect  to the suit property setting aside the judgment and  decree of the Trial Court as well as of the First  Appellate Court wherein aforesaid relief was denied  to the respondent.

Facts :-

       Appellant claims to be the purchaser of suit  property from descendants of Muthuswamy Moopanar,  brother of Veeramuthu Moopanar and the respondent  claims to be the purchaser of the same property from  descendants of Veeramuthu Moopanar.

       Respondent filed a suit for declaration of  title and permanent injunction restraining the  appellant from disturbing his possession and causing  any inconvenience in the peaceful enjoyment of the  suit property.  In the plaint it was averred that  the suit property belonged to one Veeramuthu  Moopanar.  He had two daughters viz. Sivamalai Ammal  and Thayarammal.  Veeramuthu Moopanar sold his  entire property to his two daughters through a sale  deed dated 1.7.1940 for Rs. 300/-.  Veeramuthu  Moopanar died and soon after his widowed daughter  Sivamalai Ammal also died issueless.  Property of  Sivamalai Ammal came to the share of Thayarammal.   Thayarammal was married to one Sengamalai Moopanar  as his second wife.  Sengamalai Moopanar died in the  year 1973 and in 1976 Thayarammal also died  issueless. Ganapathy Moopanar, son of the first wife  of Sengamalai Moopanar, succeeded to the estate of  Thayarammal by virtue of Section 15(1)(b) of the  Hindu Succession Act, 1955 (for short ’the Act’)  being heir of her husband.  Ganapathy Moopanar sold  the property to the respondent temple on 25.5.1980.   That appellant was obstructing and interfering in  the peaceful enjoyment of the property by the  respondent.  It was prayed that the respondent be  declared to be the owner being the vendee from the  lawful owner and the appellant be injuncted from

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interfering with the possession and peaceful  enjoyment of the suit property by the respondent.

       In the written statement filed by the appellant  it was contended that the entire property belonged  to the father of Veeramuthu Moopanar and Muthuswamy  Moopanar and after the death of their father,  partition took place between the brothers in the  year 1927 and the suit property fell to the share of  Muthuswamy Moopanar.  Veeramuthu Moopanar managed  the property and took care of small children of  Muthuswamy Moopanar.  To prevent the property from  falling into the hands of the creditors of his  deceased brother Muthuswamy Moopanar, Veeramuthu  Moopanar executed a sham and nominal sale deed dated  1.7.1940 in favour of his two daughters.  That the  suit property was always in possession and enjoyment  of the children of Muthuswamy Moopanar and the  appellant purchased the property from Sornathammal  and Nallathambi, daughter and grandson respectively  of Muthuswamy Moopanar on 1.4.1980.  That marriage  between Thayarammal and Sengamalai Moopanar was  dissolved under custom by Village Panchayat prior to  1950.  That Ganapathy Moopanar was not the son of  Sengamalai Moopanar from his first wife and in turn  was not the heir of Sengamalai Moopanar.  That the  suit was not maintainable for non-joinder of  necessary parties as well.  According to the  appellant, he was the owner in possession of the  suit property.  That respondent was not entitled to  the declaration and injunction prayed for.  The suit  being frivolous deserves to be dismissed with costs.

       Trial Court dismissed the suit of the  respondent with costs.  It was held that both the  parties had failed to adduce satisfactory evidence  to prove the title of their respective vendors to  the suit property.  That the sale deed executed in  favour of the respondent was not valid and the sale  made in favour of the appellant was also not proved.   That respondent failed to prove that Ganapathy  Moopanar was the son of Sengamalai Moopanar from his  first wife.  That Ganapathy Moopanar was neither in  possession of the suit property nor had any title  over the same.  That no divorce had taken place  between Thayarammal and Sengamalai Moopanar as had  been pleaded by the appellant.  That sale deed dated  1.7.1940 executed by Veeramuthu Moopanar in favour  of his daughters was valid.  That the suit was  barred for non-joinder of necessary parties.

       Being aggrieved, respondent preferred first  appeal.  Appellate Court upheld the judgment and  decree of the Trial Court and dismissed the appeal  holding that the respondent was not entitled to the  declaration of title and permanent injunction as  prayed for.  It was held that the title in the suit  property did not pass to Veeramuthu Moopanar and the  sale deed executed by him in favour of his daughters  on 1.7.1940 was sham and nominal.  That the marriage  between Thayarammal and Sengamalai Moopanar was  dissolved under custom and the respondent had also  failed to prove that Ganapathy Moopanar was the son  of Sengamalai Moopanar.  Since Ganapathy Moopanar  was not the son of Sengamalai Moopanar, he could not

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inherit the estate of Thayarammal as the heir of the  husband of Thayarammal under Section 15(1)(b) of the  Act.  In view of the findings that Thayarammal  succeeded to the estate of her father by way of  inheritance being the daughter and not as a vendee  by way of sale from her father, by virtue of Section  15(2)(a) of the Act, in the absence of any direct  heir, the property of Thayarammal devolved upon the  heirs of her father i.e. the family members of the  brother of her father.  The family members of  Muthuswamy Moopanar had the title and right over the  suit property and the sale deeds executed by the  daughter and grandson of Muthuswamy Moopanar in  favour of the appellant were valid and those  executed by Ganapathy Moopanar in favour of the  respondent did not convey any title as their vendor  did not have the title to the property.   

       Respondent, being aggrieved, filed Second  Appeal No. 595 of 1984 against the judgment and  decree of the First Appellate Court in the High  Court.  The \High Court while admitting the appeal  formulated the following substantial questions of  law said to be arising in the appeal :- "1)     Whether the lower appellate court having  upheld the sale deed executed by  Thayarammal in favour of a third party in  relation to the properties said to have  been obtained by her through her father  Veeramuthu Moopanar could held  inconsistently that Thayarammal did not  get any property validly from Veeramuthu  Moopanar?

2)      If Thayarammal can be taken to have  acquired title to the suit property  whether the plaintiff could be non-suited  on the ground that Ganapathy, who sold  the property as step son of Thayarammal  should be proved by plaintiff as the  legitimate son of Thayarammal’s husband  by another wife, when there is no  specific allegations made in the written  statement that Ganapathy is the  illegitimate son of Sengamalai, husband  of Thayarammal?"

       High Court on reappraising the entire evidence  reversed the findings of both the courts below and  decreed the suit of the respondent granting  declaration and permanent injunction as prayed for  in the suit.  It was held that sale deed dated  1.7.1940 executed by Veeramuthu Moopanar in favour  of his daughters was not sham and nominal.  That no  divorce took place between Thayarammal and  Sengamalai Moopanar and Ganapathy Moopanar was the  son of Sengamalai Moopanar.  That by virtue of  Section 15(1)(b) of the Act Ganapathy Moopanar  succeeded to the estate of Thayarammal and  completely excluded the branch of Muthuswamy  Moopanar from inheritance to the estate of  Thayarammal.  That after the death of Thayarammal,  her step-son Ganapathy Moopanar inherited the  property as heir of her husband and, therefore, had  a conveyable title to the suit property.  Sale made

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by him in favour of the respondent was upheld and  the suit decreed.

       Counsel for the appellant strenuously contended  that the High Court has committed jurisdictional  error in setting aside the findings of fact recorded  by the courts below on re-appreciation of evidence  in the Second Appeal in exercise of its jurisdiction  under Section 100 of the Code of Civil Procedure  (hereinafter referred to as ’the Code’).  According  to him, the questions of law formulated by the High  Court at the time of admission of the appeal did not  arise either from the pleadings of the parties,  evidence led or the findings recorded by the courts  below.  That the High Court after referring to the  questions of law which had been formulated at the  time of admission failed to determine any one of  them.  That the High Court erroneously assumed that  once the questions of law have been framed then it  gets the jurisdiction to decide the appeal on re- appreciation of evidence without determining the  questions of law.

       Per contra, counsel for the respondent did not  dispute the proposition of law that the jurisdiction  of the High Court under Section 100 of the Code is  limited to the substantial questions of law framed  at the time of admission of the appeal or further  substantial questions which the High Court can frame  during the course of hearing of the appeal after  recording reasons for the same.  He could not  seriously dispute the fact that the questions of law  formulated at the time of admission of the appeal  are not substantial questions of law involved in the  case.  He submitted that the case be remitted back  to the High Court for a fresh decision leaving it  open to the High Court to frame additional  substantial questions of law, if any, arising in the  appeal in order to do substantial justice between  the parties.

       A perusal of Section 100 of the Code makes it  clear that the High Court cannot proceed to hear a  Second Appeal without formulating the substantial  questions of law involved in the appeal.  It reads  :- "100. Second Appeal \026 (1) Save as otherwise  expressly provided in the body of this Code or  by any other law for the time being in force,  an appeal shall lie to the High Court from  every decree passed in appeal by any court  subordinate to the High Court, if the High  Court is satisfied that the case involves a  substantial question of law.

(2)     An appeal may lie under this section from  an appellate decree passed ex-parte.

(3)     In an appeal under this section, the  memorandum of appeal shall precisely state the  substantial question of law involved in the  appeal.

(4)     Where the High Court is satisfied that a  substantial question of law is involved in any

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case, it shall formulate that question.

(5)     The appeal shall be heard on the question  so formulated and the respondent shall, at the  hearing of the appeal, be allowed to argue  that the case does not involve such question:

       Provided that nothing in this sub-section  shall be deemed to take away or abridge the  power of the Court to hear, for reasons to be  recorded, the appeal on any other substantial  question of law, not formulated by it, if it  is satisfied that the case involves such  question."         Section 100 provides that the second appeal  would lie to the High Court from a decree passed in  appeal by any court subordinate to the High Court if  the High Court is satisfied that the case "involves  a substantial question of law".  It further provides  that the memorandum of appeal shall precisely state  the substantial question of law involved in the  appeal and the High Court on being satisfied that  the substantial question of law is involved in a  case formulate the said question.  Sub-section (5)  provides that the "appeal shall be heard on the  question so formulated".  It reserves the liberty  with the respondent against whom the appeal was  admitted ex-parte and the questions of law had been  framed in his absence to argue that the case did not  involve the questions of law framed.  Proviso to  sub-section (5) states that the questions of law  framed at the time of admission would not take away  or abridge the power of the court to frame any other  substantial question of law which was not formulated  earlier, if the court is satisfied that the case  involved such additional questions after recording  reasons for doing so.  It is abundantly clear from  the analysis of Section 100 that if the appeal is  entertained without framing the substantial  questions of law, then it would be illegal and would  amount to failure or abdication of the duty cast on  the court.  The existence of substantial questions  of law is the sine qua non for the exercise of  jurisdiction under Section 100 of the Code.     {  Refer to Kshitish Chandra Purkait  v.  Santosh Kumar  Purkait & Ors. [(1997) 5 SCC 438], Panchugopal Barua   v. Umesh Chandra Goswami [(1997) 4 SCC 413], Kondiba  Dagadu Kadam  v.  Savitribai Sopan Gujar [(1999) 3  SCC 722] }

       A three Judge Bench of this Court in Santosh  Hazari  v.  Purushottam Tiwari (Deceased) By LRs.  [(2001) 3 SCC 179] after tracing the history of  Section 100, the purpose which necessitated and  persuaded the Law Commission of India to recommend  for amendment of Section 100, concluded that scope  of hearing of Second Appeal by the High Court is  circumscribed by the questions formulated by the  High Court at the time of admission of the appeal  and the High Court has to hear the appeal on  substantial questions of law involved in the case  only.  That the High Court would be at liberty to  hear the appeal on any other substantial question of  law, not earlier formulated by it, if the court is  satisfied of two conditions i.e. (i) the High Court

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feels satisfied that the case involves such  question, and (ii) the High Court records reasons  for its such satisfaction."  It was observed in para  10 as under :-  "At the very outset we may point out that the  memo of second appeal filed by the plaintiff- appellant before the High Court suffered from  a serious infirmity.  Section 100 of the Code,  as amended in 1976, restricts the jurisdiction  of the High Court to hear a second appeal only  on "substantial question of law involved in  the case".  An obligation is cast on the  appellant to precisely state in the memorandum  of appeal the substantial question of law  involved in the appeal and which the appellant  proposes to urge before the High Court.  The  High Court must be satisfied that a  substantial question of law is involved in the  case and such question has then to be  formulated by the High Court.  Such questions  or question may be the one proposed by the  appellant or may be any other question which  though not proposed by the appellant yet in  the opinion of the High Court arises as  involved in the case and is substantial in  nature.  At the hearing of the appeal, the  scope of hearing is circumscribed by the  question so formulated by the High Court.  The  respondent is at liberty to show that the  question formulated by the High Court was not  involved in the case.  In spite of a  substantial question of law determining the  scope of hearing of second appeal having been  formulated by the High Court, its power to  hear the appeal on any other substantial  question of law, not earlier formulated by it,  is not taken away subject to the twin  conditions being satisfied : (i) the High  Court feels satisfied that the case involves  such question, and (ii) the High Court records  reasons for its such satisfaction." {Emphasis supplied}         As to which would constitute a substantial  question of law, it was observed :- "A point of law which admits of no two  opinions may be a proposition of law but  cannot be a substantial question of law.  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

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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."                                         {Emphasis  supplied}

       This judgment has been followed in a number of  decisions including the latest on the point  Thiagarajan & Ors.  v.                  Sri  Venugopalaswamay  B. Koil & Ors. [(2004) 5 SCC  762].

       As per settled law, the scope of exercise of  the jurisdiction by the High Court in Second Appeal  under Section 100 is limited to the substantial  questions of law framed at the time of admission of  the appeal or additional substantial questions of  law framed at a later date after recording reasons  for the same.  It was observed in Santosh Hazari’s  case (supra) that a point of law which admits of no  two opinions may be a proposition of law but cannot  be a substantial question of law.  To be a  ’substantial’ question of law must be debatable, not  previously settled by law of the land or a binding  precedent and answer to the same will have a  material bearing as to the rights of the parties  before the Court.  As to what would be the question  of law "involving in the case", it was observed that  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 the court  of facts and it must be necessary to decide that  question of law for a just and proper decision  between the parties.

       After perusal of the findings recorded by the  courts below and the High Court, we are of the  opinion that the questions of law framed at the time  of admission of the appeal were not questions of  substance arising from the findings record\ed by the  courts of fact.  The court of fact recorded the  finding that the title in the suit property did not  pass to Veeramuthu Moopanar and the sale deed dated  1.7.1940 executed by him in favour of his two  daughters was a nominal and a sham transaction.  The  court of fact had also come to the conclusion that  there was a divorce between Thayarammal and  Sengamalai Moopanar under custom and the respondent  herein had failed to prove that Ganapathy Moopanar  was the son of Sengamalai Moopanar from his first  wife.  After recording this finding of fact, the  court of fact held that since Ganapathy Moopanar was  not proved to be the son of Sengamalai Moopanar and  that a divorce had taken place between Thayarammal  and Sengamalai Moopanar, Ganapathy Moopanar could  not succeed to the estate of Thayarammal being the  heir of her husband under Section 15(1)(b) of the  Act.  That in the absence of any direct heir, the  property of Thayarammal reverted back to the heirs

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of her father i.e. the family members of the brother  of her father.  The sale effected by Ganapathy  Moopanar in favour of the respondent did not convey  any title as Ganapathy Moopanar was not proved to be  the owner of the property.   

       The High Court on re-appreciation of evidence  recorded a finding to the contrary and held that the  marriage between Thayarammal and Sengamalai Moopanar  had not been dissolved.  It further held that  Ganapathy Moopanar was the son of Sengamalai  Moopanar from his previous wife.  That the sale  executed by Veeramuthu Moopanar dated 1.7.1940 in  favour of his two daughters was not a nominal and  sham transaction.  That it conveyed a valid title of  the suit property to his two daughters.  As the  daughters had not inherited the property but  purchased the same from their father, they became  the absolute owners of the same.  Thayarammal had  inherited the share of her sister after her death.   As Thayarammal had died issueless and had a step-son  Ganapathy Moopanar from her husband, Ganapathy  Moopanar inherited the suit property being the heir  of her husband under Section 15(1)(b) of the Act and  succeeded to the estate of Thayarammal.  That  Ganapathy Moopanar had a conveyable title in the  suit property and the sale made by him in favour of  the respondent was valid and decreed the suit.  This  was done on re-appreciation of evidence present on  record.  Questions of law which had been framed at  the time of admission and were referred and  reproduced in the judgment were not adverted to  while deciding the appeal.  No finding was recorded  on those questions.  After reproducing the questions  of law, the learned Single Judge did not advert to  either of them or record findings on them.  The  learned Single Judge proceeded to decide the appeal  thereafter as if after framing the questions of law  the High Court gets the jurisdiction to re- appreciate the evidence and come to a conclusion  other than the one recorded by the courts of fact.   As observed by this Court in Santosh Hazari’s case  (supra) for the question of law to be involved in  the case, first a foundation for it has to be laid  in the pleadings and the question should emerge from  the sustainable findings of facts arrived at by the  court of fact and it must be necessary to decide  that question of law for a just and proper decision  of the case.  In the present case, the learned  Single Judge proceeded to re-appreciate the evidence  and on re-appreciating the same, set aside the  findings referred to above on facts.  On reversal of  the findings referred to above on facts, the High  Court came to the conclusion that Ganapathy Moopanar  would inherit the property under Section 15(1)(b)  being the heir of the husband of Thayarammal and not  under Section 15(2)(a) under which property was to  revert back to the heirs of her father.  The  questions of law which were framed at the time of  admission of the appeal were not decided by the High  Court.

       Even if the High Court was of the view that the  findings of fact recorded by the courts below were  wrong, in our opinion, these findings of fact could

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not be disturbed without coming to the conclusion  that the findings recorded were perverse i.e. based  on misreading of evidence or based on no evidence.   The High Court did not come to such a conclusion.   The learned Singh Judge also did not come to the  conclusion that the appeal involved other  substantial questions of law or formulate the same.  

       Counsel for the respondent submitted that the  case be remitted back to the High Court for a fresh  decision.  We are not inclined to do so as, in our  opinion, a substantial question of law does not  arise in the appeal.  Counsel for the respondent  could not formulate a question of law which could be  said to be arising in the second appeal.

       For the reasons stated above, this appeal is  accepted, the judgment and decree passed by the High  Court is set aside and that of the courts below is  restored.  No order as to costs.