http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 16  

CASE NO.: Appeal (civil)  2083 of 2006

PETITIONER: Gurdev Kaur & Ors.

RESPONDENT: Kaki & Ors.

DATE OF JUDGMENT: 18/04/2006

BENCH: Ruma Pal & Dalveer Bhandari

JUDGMENT: J U D G M E N T [Arising out of SLP (C) No. 20797 of 2003]

Dalveer Bhandari, J.     

       Leave granted.

       Judges must administer law according to the provisions  of law.  It is the bounden duty of judges to discern legislative  intention in the process of adjudication.  Justice administered  according to individual’s whim, desire, inclination and notion  of justice would lead to confusion, disorder and chaos.         Indiscriminate and frequent interference under Section  100 C.P.C. in cases which are totally devoid of any substantial  question of law is not only against the legislative intention but  is also the main cause of huge pendency of second appeals in  the High Courts leading to colossal delay in the administration  of justice in civil cases in our country.

       Despite declaration of law in numerous judgments, it is  evident that the scope and ambit of Section 100 C.P.C. has not  been properly appreciated and applied in a large number of  cases.  We are, once again making a serious endeavour to  discern legislative intention, ambit and scope of interference  under Section 100 C.P.C..  We plan to carry out this exercise  by critically examining important judgments decided before  and after 1976 amendment in the Section 100 C.P.C..  This  effort is made with the hope that in future the High Courts  would decide according to the scope of Section 100 C.P.C. and  this Court may not be compelled to interfere with the  judgments delivered under Section 100 C.P.C..

Brief factual background         This appeal is directed against the judgment of the  Punjab & Haryana High Court dated 1.8.2003 passed in Civil  Regular Second Appeal 885 of 1983.  By this judgment the  High Court has set aside the concurrent findings of facts of the  Courts below.  The High Court consequently cancelled the  mutation of the property belonging to the deceased Chanan  Singh in favour of his wife Bhagwan Kaur and directed that  the property be mutated in favour of the heirs of the deceased  Chanan Singh in accordance with the Hindu Succession Act,  1956.  This Court on 3.11.2003, while issuing notice on the  Special Leave Petition, directed the status-quo be maintained  in the meantime.   Now this appeal has been placed before us  for final adjudication.

Brief    facts, which are necessary to dispose of this appeal,  are recapitulated as under:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 16  

The case relates to the validity of the Will of the deceased,  Chanan Singh.  The relationship between the parties is as  follows.  The deceased Chanan Singh, s/o Hira Singh died on  6.2.1969.  He had two wives.  The first wife was Sham Kaur,  who died before Chanan Singh and the second wife was  Bhagwan Kaur.  From the first wife Sham Kaur he had two  daughters Kaki and Har Kaur.  Har Kaur also died on  29.9.1984.  Kaki and Har Kaur are the plaintiffs in the Civil  Suit filed before the Subordinate Judge, 1st Class, Barnala  

Bhagwan Kaur also had three daughters - Dalip Kaur,  Gurdev Kaur and Mukhtiar Kaur.  Chanan Singh deceased did  not have a son either from Bhagwan Kaur or from Sham Kaur.   The plaintiffs Kaki and Har Kaur filed a suit for joint  possession of the property of deceased Chanan Singh.  It is not  disputed that the deceased Chanan Singh had two wives  Bhagwan Kaur and Sham Kaur.  According to the plaintiffs  Kaki and Har Kaur, the deceased Chanan Singh did not  execute any Will out of his free will because he was not in a  position to protect his own welfare and in fact he was not in a  position to execute any Will at all.

Chanan Singh died on 6.2.1969 in Barnala and the  defendant Bhagwan Kaur got the mutation of inheritance of  Chanan Singh sanctioned from the concerned authority on the  basis of the alleged Will dated 18.1.1969.  The case of the  plaintiffs is that they never received any notice about the  sanctioning of mutation and this has been carried out by  defendant Bhagwan Kaur in connivance with the revenue  authorities.    

According to the plaintiffs, the parties are governed by  the Hindu Succession Act.  The plaintiffs were entitled to 1/3rd  share in the inheritance of Chanan Singh.   According to the  plaintiffs, the defendants are in illegal possession of the suit  land and that the defendants had threatened to alienate the  suit land on 6.3.1980.    

The defendants in the written statement had admitted  the relationship of the plaintiffs with the deceased Chanan  Singh.  The defendant Bhagwan Kaur alleged that she is the  owner and in possession of the suit land on the basis of the  Will dated 18.1.1969 executed by her husband  in her favour.   

The defendant Bhagwan Kaur also alleged that she was  the only one who all through stayed and looked after the  deceased Chanan Singh during his life time.  She further  stated that Chanan Singh had got his all daughters married    after spending huge amount of money in their marriages.  She  also alleged that the daughters of Chanan Singh never served  him during his lifetime.   In fact the plaintiffs had never even  visited him.   The deceased Chanan Singh had executed a  valid Will in her favour out of his free will on 18.1.1969  because of the life long service rendered by her.   She prayed  that the suit filed by the plaintiffs be dismissed.

The Trial Court, on the basis of the pleadings of the  parties and documents on record, framed eleven issues.  The  plaintiffs produced five witnesses and the defendants  produced three witnesses in support of their respective stands  before the Trial Court.  The plaintiffs had also examined K.C.  Jaidka, Handwriting Expert.  In the cross-examination he  stated that the Will bears the thumb impression of the right  hand of the deceased, but the usual practice is of obtaining

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 16  

the thumb impression of left hand on the Will.   

According to the plaintiffs the Will is alleged to have been  attested by three witnesses and only one attesting witness was  examined by the defendants and even that witness had not  fully supported the case of the defendants.   The Will is not a  registered document and is written at the house of the  deceased Chanan Singh.  He was about 70 years of age at the  time of execution of the Will and, according to the plaintiffs, he  could not protect his own interest and welfare.  The  propounder of the Will was present at the time of the  execution of the Will.   According to the plaintiffs, the  defendants had failed to discharge the onus regarding  execution of the Will by leading cogent evidence.   

On the contrary, it was argued by the defendants that  Exhibit D-1 is a natural document and had been executed by  the deceased Chanan Singh in favour of his wife Bhagwan  Kaur.  It is an admitted case of the parties that the deceased  Chanan Singh had no son and all his daughters were married  long ago.  In order to protect the interest of his wife Bhagwan  Kaur and to ensure that she does not have to depend on  anyone for her maintenance and welfare the deceased Chanan  Singh had executed the Will in favour of his wife Bhagwan  Kaur.  The deceased Chanan Singh had put left hand thumb  impression on the Will.  The defendants had examined Amar  Singh D.W. 1 and Mittar Singh, D.W.2 who is the scribe of the  Will, deposed that the Will was scribed by him at the instance  of Chanan Singh.  Amar Singh D.W.1 and other attesting  witnesses of the Will did not fully support the defendant  Bhagwan Kaur as she had filed a suit against one Jangir  Singh and the attesting witnesses had resiled at the instance  of the said Jangir Singh.  

The mutation on the basis of the Will was entered  immediately after the death of Chanan Singh and, according to  the defendants, the Will was shown to the plaintiffs at that  time.  It is further submitted that the plaintiffs have filed this  suit at the instance of the said Jangir Singh.  It was submitted  by the defendants that, in these circumstances, the Court  could rely on that part of the statement which seemed to be  true.  According to the defendants they have proved execution  of the Will beyond doubt and the plaintiffs’ suit deserves to be  dismissed. In the Will, the deceased, Chanan Singh had recited that  he has had five daughters and all of them were married. He  has further recited that he had spent huge amount in their  marriages, even more than the share which the daughters  could have got in the inheritance of the deceased Chanan  Singh.    It is also mentioned that his wife defendant Bhagwan  Kaur alone used to reside with him and dutifully served her  husband.  Whereas, the plaintiffs Kaki & Har Kaur never  visited the deceased, Chanan Singh.          According to the Trial Court, in this background, it has to  be seen whether the deceased had in fact executed the Will out  of his free will or not?  It is mentioned that in the ordinary  course when a person has no son and all his daughters are  happily married, the normal anxiety is to ensure the future of  his wife, particularly when she alone had stayed with him all  his life and look after him till the last.  The Trial Court did  mention in the judgment that Amar Singh D.W.1 did not  support the case of the defendant.   He was declared hostile.   The counsel for the defendants sought permission to cross- examine him.  In the cross-examination it is clearly stated that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 16  

Bhagwan Kaur used to take care of the deceased, Chanan  Singh.  He also stated that the deceased Chanan Singh might  have executed the Will giving the entire property to his wife,  Bhagwan Kaur.  He also stated that the deceased Chanan  Singh had put his thumb impression in his presence on the  Will.  He also stated in his statement that the testator Chanan  Singh could converse at the time of the execution of the said  Will meaning thereby that he was in sound disposing mind at  the time of the execution of the Will.

The Trial Court stated that the other attesting witness of  the Will Pundit Raghbar Dayal was also present when he had  put a thumb mark in the Will.  He further stated that Pundit  Raghbar Dayal was present at the time of execution of the  Will.  This witness has stated that Bhagwan Kaur was present  at the time of execution of the Will but she had not uttered  any word and Chanan Singh was sitting at the time of the  execution of the Will.   According to the Trial Court,  requirement of law is that for the purpose of proving the  attesting document, at least one attesting witness is required  to be examined by the party.  It is not the requirement of the  law that the attesting witness must also support him on every  aspect.   The requirement of law is that the testator should put  his mark on the Will in the presence of the attesting witnesses  and the attesting witnesses should attest the Will in the  presence of the testator, has been fulfilled in the present case,  as is evident from the statement of Amar Singh D.W.1.   

The plaintiffs argued before the Trial Court that the  deceased Chanan Singh was under the influence of the  defendant Bhagwan Kaur, but according to the Trial Court it  was not the pleaded case of the plaintiffs in the plaint.    Therefore, no significance was attached to this submission.   The Trial Court also stated that the Will in the present case  was immediately produced before the revenue authorities and  was not kept secretly.  The plaintiffs have admitted that this  Will was shown to the daughters of Chanan Singh immediately  after his death, but the plaintiffs have alleged that the Will was  in favour of the daughters.  It was also not the pleaded case of  the plaintiffs in the plaint.  Thus, the Trial Court after  evaluating the entire evidence on record held that the Will  Exhibit D-1 was duly executed by the deceased Chanan Singh  in favour of his wife Bhagwan Kaur and was a natural  document.    

       The relevant part of the Will reads as under:         "I have already incurred expenditure on  the marriages, Chhaks (presents given to  the bride by her maternal uncles or grand  parents) and Chhuchaks (articles given  on the birth of daughter’s child)  ceremonies of my five daughters, more  than the value of their share in the  property.  All of them are Abad (Happy) in  their respective matrimonial houses.   Now my wife Smt. Bhagwan Kaur takes  care of me.  I, having been pleased with  her services, want to devolve my entire  property upon my wife Smt. Bhagwan  Kaur."

When execution of the Will is fully proved then in order to  ascertain the wishes of the testator we have to look to the text  of the Will.  The intention of the testator has to be discerned

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 16  

from the language used in the Will.   In view of such clear and  unambiguous language used in this Will perhaps, no other  interpretation was possible.  The Trial Court clearly arrived at  a conclusion that the deceased Chanan Singh had executed  the Will in favour of his wife, Bhagwan Kaur.

       Aggrieved by the order of the Subordinate Judge, Grade  II, Barnala, the appellants filed an appeal before the learned  Additional District Judge, Barnala.  After hearing counsel for  the parties, the learned Additional District Judge dismissed  the appeal on the following reasons:

1.      The Trial Court correctly came to a definite finding that  the propounder of the Will proved that the testator was in  a sound disposing mind when he had executed the Will  in question.

2.      The Appellate Court observed that if the conscience of the  Court is satisfied on the point of due execution of the Will  because the testator was in a sound disposing mind, in  that event even if the Will is not registered, the same has  to be upheld as a valid and genuine document. 3.      The Appellate Court also observed that in the case in  hand, Bindraban, the scribe and Amar Singh, D.W.1,  attesting witness examined by Bhagwan Kaur defendant,  have amply proved that Chanan Singh, (who was about  70 years of age), was in sound disposing mind when he  dictated the terms of the Will and after admitting its  contents to be correct, had affixed his thumb impression  in their presence.

The Additional District Judge also stated that there is  nothing on record to show that the appellants (who were  plaintiffs in the Trial Court) ever visited the deceased Chanan  Singh or rendered any service to him during his life time.  In  the said judgment, it is also noted that the Will was not  challenged for a period of 11 years since its execution in 1969.    He also stated that it is evident from the mutation order that  Bhagwan Kaur, after the death of Chanan Singh promptly  produced the Will before the revenue authorities and on that  basis they sanctioned the mutation in respect of the land in  dispute in her favour.  According to the Appellate Court, it is  unbelievable that the appellants remained ignorant of the  attestation of the mutation or the attestation of the Will set up  by Bhagwan Kaur.

In the Appellate Court’s judgment, it is also mentioned  that Bhagwan Kaur uninterruptedly remained in peaceful  possession of the entire suit land since the death of the  deceased Chanan Singh in 1969 till this date.  It is also  mentioned in the judgment that Bhagwan Kaur, as is evident  from the certified copy of the judicial record of this case,  remained interlocked in civil proceedings with Jangir Singh,  tenant, which are still pending and in all probability the  present suit was got instituted at the behest of Jangir Singh.

The Appellate Court also observed that, in view of the  facts and circumstances of the case, the learned Trial Court  was fully justified in upholding the Will as a genuine and valid  document and the mutation attested on its basis was  unexceptionable.   The learned Additional District Judge, by a  comprehensive judgment, affirmed all the findings of the Trial  Court and dismissed the appeal with costs.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 16  

The appellants, aggrieved by the judgment of the Trial  Court and the Appellate Court, preferred second appeal under  Section 100 C.P.C. before the High Court of Punjab and  Haryana.   The learned Single Judge of the High Court set aside the  concurrent findings of facts arrived at by the Courts below  predominantly on the ground that, in the normal  circumstances, a prudent man would have bequeathed the  property in favour of his legal heirs.  However, in the present  case, the testator has disinherited the plaintiffs.    The findings arrived at by the High Court are totally  erroneous.   The Court does not sit in appeal over the  testator’s decision.  The Court’s role is limited to examining  whether the instrument propounded as the last Will of the  deceased is or is not that by the testator and whether it is the  product of the free and sound disposing mind. Amar Singh D.W.1, in the examination-in-chief, did not  support the case of the defendants.  He was declared hostile  and the counsel for the defendants sought permission to  cross-examine him.  In the cross-examination, he clearly  stated that Bhagwan Kaur used to take care of the deceased  Chanan Singh.   He also stated that the deceased Chanan  Singh might have executed the will giving the entire property  to his wife Bhagwan Kaur.   He also stated that the deceased  Chanan Singh had put his thumb mark on the Will in his  presence.  He also stated in his statement that the testator  Chanan Singh could converse at the time of execution of the  will, meaning thereby that he was in sound disposing mind at  the time of execution of the will.    The learned Single Judge of the High Court did not take  into consideration the entire statement of Amar Singh D.W.1  in proper perspective while setting aside the concurrent  findings of the Courts below.  The findings of the High Court  are erroneous and contrary to record.  

       The question which now arises for our adjudication is  whether, according to the true delineated scope of Section 100  of the Code of Civil Procedure, the High Court was justified in  interfering with the concurrent findings of fact.    

       We deem it appropriate to reproduce Section 100 C.P.C.  before amendment.         Section 100 of the Code of Civil Procedure, 1908 (for  short, C.P.C.) corresponds to Section 584 of the old Civil  Procedure Code of 1882.  The Section 100 (prior to 1976  amendment) reads as under :         "100. Second appeal \026 (1) "Save where  otherwise 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 a  High Court on any of the following  grounds, namely :

               (a)     the decision being contrary to law or             to some usage having  the force of  law;

       (b) the decision having failed to          determine  some material issue of          law or usage having the force of law;

                (c)    a substantial error or defect  in the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 16  

procedure provided by this Code or  by any other law for the time being  in force, which may possibly    have  produced error or defect in the  decision of the case upon the merits.                          (2)     An appeal may lie under this section from  an appellate decree     passed ex parte."

        A reference of series of cases decided by the Privy  Council and this Court would reveal true import, scope and  ambit of Section 100 C.P.C..

Cases decided prior to 1976 amendment both by the Privy  Council and the Supreme Court dealing with the scope of  Section 100 C.P.C.

       The Privy Council, in Luchman v. Puna [(1889) 16  Calcutta 753 (P.C.)], observed that a second appeal can lie  only on one or the other grounds specified in the present  section.

       The Privy Council, in another case Pratap Chunder v.   Mohandranath [(1890) ILR 17 Calcutta 291 (P.C.)], the  limitation as to the power of the court imposed by sections 100  and 101 in a second appeal ought to be attended to, and an  appellant ought not to be allowed to question the finding of the  first appellate court upon a matter of fact.

       In Durga Chowdharani v. Jawahar Singh (1891) 18  Cal 23 (PC), the Privy Council held that the High Court had no  jurisdiction to entertain a second appeal on the ground of  erroneous finding of fact, however gross or inexcusable the  error may seem to be.  The clear declaration of law was made  in the said judgment as early as in 1891.  This judgment was  followed in the case of Ramratan Shukul v. Mussumat  Nandu (1892) 19 Cal 249 (252) (PC) and many others.  The  Court observed :         "It has now been conclusively settled that  the third court...cannot entertain an  appeal upon question as to the  soundness of findings of fact by the  second court, if there is evidence to be  considered, the decision of the second  court, however unsatisfactory it might be  if examined, must stand final."

       In the case of Ram Gopal v. Shakshaton [(1893) ILR 20  Calcutta 93 (P.C.)], the Court emphasized that a court of  second appeal is not competent to entertain questions as to  the soundness of a finding of facts by the courts below.           The same principle has been reiterated in Rudr Prasad  v. Baij Nath [(1893) ILR 15 Allahabad 367].   The Court  observed that a judge to whom a memorandum of second  appeal is presented for admission is entitled to consider  whether any of the grounds specified in this section exist and  apply to the case, and if they do not, to reject the appeal  summarily.   

       Similarly, before amendment in 1976, this Court also had  an occasion to examine the scope of Section 100 C.P.C..  In  Deity Pattabhiramaswamy v. S. Hanymayya and Others  [AIR 1959 SC 57], the High Court of Madras set aside the  findings of the District Judge, Guntur, while deciding the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 16  

second appeal.  This Court observed that notwithstanding the  clear and authoritative pronouncement of the Privy Council on  the limits and the scope of the High Court’s jurisdiction under  section 100, Civil Procedure Code, "some learned Judges of  the High Courts are disposing of Second Appeals as if they  were first appeals.  This introduces, apart from the fact that  the High Court assumes and exercises a jurisdiction which it  does not possess, a gambling element in the litigation and  confusion in the mind of the litigant public.  This case affords  a typical illustration of such interference by a Judge of the  High Court in excess of his jurisdiction under Section 100,  Civil Procedure Code.  We have, therefore, no alternative but to  set aside the judgment of the High Court which had no  jurisdiction to interfere in second appeal with the findings of  fact arrived at by the first appellate Court based upon an  appreciation of the relevant evidence.         In M. Ramappa v. M. Bojjappa [(1963) SCR 673], the  Andhra Pradesh High Court interfered with the finding  recorded by the Appellate Court which, in turn, had itself  reversed the Trial Court’s finding on the same question of fact.   While setting aside the decree of the second Appellate Court,  this Court observed :         "It may be that in some cases, the High  Court dealing with the second appeal is  inclined to take the view that what it  regards to be justice or equity of the case  has not been served by the findings of  fact recorded by courts of fact, but on  such occasions it is necessary to  remember that what is administered in  courts is justice according to law and  considerations of fair play and equity  however important they may be, must  yield to clear and express provisions of  the law.  If in reaching its decisions in  second appeals, the High Court  contravenes the express provisions of  section 100, it would inevitably introduce  in such decisions an element of  disconcerting unpredictability which is  usually associated with gambling; and  that is a reproach which judicial process  must constantly and scrupulously  endeavour to avoid."

       It may be pertinent to mention that as early as in 1890  the Judicial Committee of the Privy Council stated that there  is no jurisdiction to entertain a second appeal on the ground  of an erroneous finding of fact, however, gross or inexcusable  the error may seem to be and they added a note of warning  that no Court in India has power to add, or enlarge, the  grounds specified in Section 100 of the Code of Civil  Procedure.

       Even before the amendment, interference under Section  100 C.P.C. was limited, which has now been further curtailed,  which we would be dealing in cases decided by this Court after  the amendment.   

       We have given reference of a large number of cases   decided by the Privy Council and this Court to clearly  understand the ambit and scope of Section 100 before  amendment.   

       The Amendment Act of 1976 has introduced drastic

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 16  

changes in the scope and ambit of Section 100 C.P.C.  A  second appeal under Section 100 C.P.C. is now confined to  cases where a question of law is involved and such question  must be a substantial one.  Section 100, as amended, reads as  under:         "100.  Second appeal.

       (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 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."

Cases decided after 1976 amendment         In Bholaram v. Amirchand (1981) 2 SCC 414 a three- Judge Bench of this Court reiterated the statement of law.   The High Court, however, seems to have justified its  interference in second appeal mainly on the ground that the  judgments of the courts below were perverse and were given in  utter disregard of the important materials on the record  particularly misconstruction of the rent note.  Even if we  accept the main reason given by the High Court the utmost  that could be said was that the findings of fact by the courts  below were wrong or grossly inexcusable but that by itself  would not entitle the High Court to interfere in the absence of  a clear error of law.                  In Kshitish Chandra Purkait v. Santosh Kumar  Purkait [(1997) 5 SCC 438], a three judge Bench of this Court  held: (a) that the High Court should be satisfied that the case  involved a substantial question of law and not mere question  of law; (b) reasons for permitting the plea to be raised should  also be recorded; (c) it has the duty to formulate the  substantial questions of law and to put the opposite party on  notice and give fair and proper opportunity to meet the point.    The Court also held that it is the duty cast upon the High  Court to formulate substantial question of law involved in the  case even at the initial stage.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 16  

       This Court had occasion to determine the same issue in   Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor  (1999) 2 SCC 471.  The Court stated that the High Court can  exercise its jurisdiction under Section 100 C.P.C. only on the  basis of substantial questions of law which are to be framed at  the time of admission of the second appeal and the second  appeal has to be heard and decided only on the basis of the  such duly framed substantial questions of law.   

       A mere look at the said provision shows that the High  Court can exercise its jurisdiction under Section 100 C.P.C.  only on the basis of substantial questions of law which are to  be framed at the time of admission of the second appeal and  the second appeal has to be heard and decided only on the  basis of such duly framed substantial questions of law.  The  impugned judgment shows that no such procedure was  followed by the learned Single Judge.  It is held by a catena of  judgments by this Court, some of them being, Kshitish  Chandra Purkait v. Santosh Kumar Purkait (1997) 5 SCC 438  and Sheel Chand v. Prakash Chand (1998) 6 SCC 683 that the  judgment rendered by the High Court under Section 100  C.P.C. without following the aforesaid procedure cannot be  sustained.  On this short ground alone, this appeal is required  to be allowed.

       In Kanai Lal Garari v. Murari Ganguly (1999) 6 SCC  35 the Court has observed that it is mandatory to formulate  the substantial question of law while entertaining the appeal  in absence of which the judgment is to be set aside.  In  Panchugopal Barua v. Umesh Chandra Goswami (1997) 4 SCC  713 and Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC  179 the Court reiterated the statement of law that the High  Court cannot proceed to hear a second appeal without  formulating the substantial question of law.  These judgments  have been referred to in the later judgment of K. Raj and Anr.  v. Muthamma (2001) 6 SCC 279.  A statement of law has been  reiterated regarding the scope and interference of the Court  in  second appeal under Section 100 of the Code of Civil  Procedure.                   Again in Santosh Hazari v. Purushottam Tiwari  (deceased) by Lrs. (2001) 3 SCC 179, another three-Judge  Bench of this Court correctly delineated the scope of Section  100 C.P.C..  The Court observed that 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 Court.  In the  said judgment, it was further mentioned that 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.  According to the Court the word substantial,  as qualifying "question of law", means \026 of having substance,  essential, real, of sound worth, important or considerable.  It  is to be understood as something in contradistinction with \026  technical, of no substance or consequence, or academic  merely.  However, it is clear that the legislature has chosen not  to qualify the scope of "substantial question of law" by  suffixing the words "of general importance" as has been done  in many other provisions such as Section 109 of the Code of  Article 133(1) (a) of the Constitution.

       In Kamti Devi (Smt.) and Anr. v. Poshi Ram (2001) 5  SCC 311 the Court came to the conclusion that the finding  thus reached by the  first appellate court cannot be interfered

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 16  

with in a second appeal as no substantial question of law  would have flowed out of such a finding.

In Thiagarajan v. Sri Venugopalaswamy B. Koil  [(2004) 5 SCC 762], this Court has held that the High Court in  its jurisdiction under Section 100 C.P.C. was not justified in  interfering with the findings of fact.  The Court observed that  to say the least the approach of the High Court was not  proper.  It is the obligation of the Courts of law to further the  clear intendment of the legislature and not frustrate it by  excluding the same.  This Court in a catena of decisions held  that where findings of fact by the lower appellate Court are  based on evidence,  the  High  Court   in second appeal cannot substitute its own findings on reappreciation of evidence  merely on the ground that another view was possible.                     In the same case, this Court observed that in a case  where special leave petition was filed against a judgment of the  High Court interfering with findings of fact of the lower  Appellate Court.  This Court observed that to say the least the  approach of the High Court was not proper.  It is the  obligation of the Courts of law to further the clear intendment  of the legislature and not frustrate it by excluding the same.   This Court further observed that the High Court in second  appeal cannot substitute its own findings on reappreciation of  evidence merely on the ground that another view was possible.

       This Court again reminded the High Court in  Commissioner, Hindu Religious & Charitable  Endowments v. P. Shanmugama [(2005) 9 SCC 232] that the  High Court has no jurisdiction in second appeal to interfere  with the finding of facts.

       Again, this Court in the case of State of Kerala v. Mohd.  Kunhi [(2005) 10 SCC 139] has reiterated the same principle  that the High Court is not justified in interfering with the  concurrent findings of fact.   This Court observed that, in  doing so, the High Court has gone beyond the scope of Section  100 of the Code of Civil Procedure.

       Again, in the case of Madhavan Nair v. Bhaskar Pillai  [(2005) 10 SCC 553], this Court observed that the High Court  was not justified in interfering with the concurrent findings of  fact.  This Court observed that it is well settled that even if the  first appellate court commits an error in recording a finding of  fact, that itself will not be a ground for the High Court to upset  the same.    

       Again, in the case of Harjeet Singh v. Amrik Singh  [(2005) 12 SCC 270], this Court with anguish has mentioned  that the High Court has no jurisdiction to interfere with the  findings of fact arrived at by the first appellate court.   In this  case, the findings of the Trial Court and the lower Appellate  Court regarding readiness and willingness to perform their  part of contract was set aside by the High Court in its  jurisdiction under Section 100 C.P.C..  This Court, while  setting aside the judgment of the High Court, observed that  the High Court was not justified in interfering with the  concurrent findings of fact arrived at by the Courts below.

       In the case of H. P. Pyarejan v. Dasappa [(2006) 2 SCC  496] delivered on 6.2.2006, this Court found serious infirmity  in the judgment of the High Court.  This Court observed that it  suffers from the vice of exercise of jurisdiction which did not  vest in the High Court.   Under Section 100 of the Code (as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 16  

amended in 1976) the jurisdiction of the Court to interfere  with the judgments of the Courts below is confined to hearing  of substantial questions of law.   Interference with the finding  of fact by the High Court is not warranted if it invokes  reappreciation of evidence.  This Court found that the  impugned judgment of the High Court was vulnerable and  needed to be set aside.

Legislative Background in the 54th Report of the Law  Commission of India submitted in 1973

       The comprehensive 54th Report of the Law Commission of  India submitted to the Government of India in 1973 gives  historical background regarding ambit and scope of Section  100 C.P.C..  According to the said report, any rational system  of administration of civil law should recognize that litigation in  civil cases should have two hearings on facts \026 one by the Trial  Court and one by the Court of Appeal.

       In the 54th Report of the Law Commission of India, it is  incorporated that it may be permissible to point out that a  search for absolute truth in the administration of justice,  however, laudable, must in the very nature of things be put  under some reasonable restraint.  In other words, a search for  truth has to be reconciled with the doctrine of finality.   In  judicial hierarchy finality is absolutely important because that  gives certainty to the law.  Even in the interest of litigants  themselves it may not be unreasonable to draw a line in  respect of the two different categories of litigation where  procedure will say at a certain stage that questions of fact  have been decided by the lower courts and the matter should  be allowed to rest where it lies without any further appeal.   This may be somewhat harsh to an individual litigant; but, in  the larger interest of the administration of justice, this view  seems to us to be juristically sound and pragmatically wise.  It  is in the light of this basic approach that we will now proceed  to consider some of the cases which were decided more than a  century ago.                          The question could perhaps be asked, why the litigant  who wishes to have justice from the highest Court of the State  should be denied the opportunity to do so, at least where there  is a flaw in the conclusion on facts reached by the trial Court  or by the Court of first appeal. The answer is obvious that even  litigants have to be protected against too persistent a pursuit  of their goal of perfectly satisfactory justice.    An unqualified  right of first appeal may be necessary for the satisfaction of  the defeated litigant; but a wide right of second appeal is more  in the nature of a luxury.   

       The rational behind allowing a second appeal on a  question of law is, that there ought to be some tribunal having  jurisdiction that will enable it to maintain, and, where  necessary,  re-establish, uniformity throughout the State on  important legal issues, so that within the area of the State, the  law, in so far as it is not enacted law, should be laid down, or  capable of being laid down, by one court whose rulings will be  binding on all courts, tribunals and authorities within the area  over which it has jurisdiction.  This is implicit in any legal  system where the higher courts have authority to make  binding decisions on questions of law.

       It may be relevant to recall the statement of Douglas  Payne on "Appeals on Questions of Fact" reported in (1958)

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 16  

Current Legal Problem 181.   He observed that the real  justification for appeals on questions of this sort is not so  much that the law laid down by the appeal court is likely to be  superior to that laid down by a lower court as that there  should be a final rule laid down which binds all future courts  and so facilitates the prediction of the law.  In such a case the  individual litigants are sacrificed, with some justification, on  the altar of law-making and must find such consolation as  they can in the monument of a leading case.

Historical perspective         The predecessors of the High Courts in their Civil  appellate jurisdiction were the Sadar Divani Adalats.  The right  of appeal to the Sadar Divani Adalat was very wide initially,  but came to be severely curtailed in the course of time.  The  "Conwallis Scheme", for example, made provision for two  appeals in every category of cases, irrespective of its value.  By  1814, this was reduced to one appeal only.  Only in cases of  Rs.5,000 or over, there could be two appeals; one to the  Provincial Court of Appeal and second to the Sadar Divani  Adalat.  As Lord Hastings observed, -         "The facility of appeal is founded on a  most laudable principle of securing, by  double and treble checks, the proper  decision of all suits, but the utopian idea,  in its attempt to prevent individual injury  from a wrong decision, has been  productive of general injustice by  withholding redress, and general  inconvenience, by perpetuating  litigation".

Arrears         The primary cause of the accumulation of arrears of  second appeal in the High Court is the laxity with which  second appeals are admitted without serious scrutiny of the  provisions of Section 100 C.P.C.  It is the bounden duty of the  High Court to entertain second appeal within the ambit and  scope of Section 100 C.P.C.

       The question which is often asked that why a litigant  should have the right of two appeals even on questions of law.   The answer to this query is that in every State there are  number of District Courts and courts in the District cannot be  final arbiters on questions of law.  If the law is to be uniformly  interpreted and applied, questions of law must be decided by  the highest Court in the State whose decisions are binding on  all subordinate courts.

Rationale behind permitting second appeal on question of  law

       The rationale behind allowing a second appeal on a  question of law is, that there ought to be some tribunal having  a jurisdiction that will enable it to maintain, and, where  necessary, re-establish, uniformity throughout the State on  important legal issues, so that within the area of the State, the  law, in so far as it is not enacted law, should be laid down, or  capable of being laid down, by one court whose rulings will be  binding on all courts, tribunals  and authorities within the  area over which it has jurisdiction.  This is implicit in any legal  system where the higher courts have authority to make  binding decisions on question of law.

       The analysis of cases decided by the Privy Council and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 16  

this Court prior to 1976 clearly indicated the scope of  interference under Section 100 C.P.C. by this Court.  Even  prior to amendment, the consistent position has been that the  Courts should not interfere with the concurrent findings of  facts.

       Now, after 1976 Amendment, the scope of Section 100  has been drastically curtailed and narrowed down.  The High  Courts would have  jurisdiction   of   interfering  under Section  

100 C.P.C. only in a case where substantial questions of law  are involved and those questions have been clearly formulated  in the memorandum of appeal.  At the time of admission of the  second appeal, it is the bounden duty and obligation of the  High Court to formulate substantial questions of law and then  only the High Court is permitted to proceed with the case to  decide those questions of law.   The language used in the  amended section specifically incorporates the words as  "substantial question of law" which is indicative of the  legislative intention.  It must be clearly understood that the  legislative intention was very clear that legislature never  wanted second appeal to become "third trial on facts" or "one  more dice in the gamble".  The effect of the amendment  mainly, according to the amended section, was:

(i)     The High Court would be justified in admitting the  second appeal only when a substantial question of law is  involved;  

(ii)  The substantial question of law to precisely state such  question;  (iii) A duty has been cast on the High Court to formulate  substantial question of law before hearing the appeal;  (iv)  Another part of the Section is that the appeal shall be  heard only on that question.                  The fact that, in a series of cases, this Court was  compelled to interfere was because the true legislative  intendment and scope of Section 100 C.P.C. have neither been  appreciated nor applied.  A class of judges while administering  law honestly believe that, if they are satisfied that, in any  second appeal brought before them evidence has been grossly  misappreciated either by the lower appellate court or by both  the courts below, it is their duty to interfere, because they  seem to feel that a decree following upon a gross  misappreciation of evidence involves injustice and it is the  duty of the High Court to redress such injustice.  We would  like to reiterate that the justice has to be administered in  accordance with law.           When Section 100 C.P.C. is critically examined then,  according to the legislative mandate, the interference by the  High Court is permissible only in cases involving substantial  questions of law.

       The Judicial Committee of the Privy Council as early as  in 1890 stated that there is no jurisdiction to entertain a  second appeal on the ground of an erroneous finding of fact,  however, gross or inexcusable the error may seem to be and  they added a note of warning that no Court in India has power  to add to, or enlarge, the grounds specified in Section 100.

 The High Court seriously erred in interfering with the  findings of facts arrived at by the Trial Court and affirmed by  the first Appellate Court.   

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 16  

       The High Court in the impugned judgment has observed  as under :-         "In the normal circumstances a prudent  man would have bequeathed the property  in favour of his legal heirs. However, in  the present case, the testator has  disinherited the plaintiffs."

       The High Court also observed that "no father in normal  circumstances would like to disinherit the daughters."

       The High Court has clearly deviated from the settled  principle of interpretation of the Will.  The Court does not sit  in appeal over the right or wrong of the testator’s decision.   The Court’s role is limited to examining whether the  instrument propounded as the last Will of the deceased is or is  not that by the testator and whether it is the product of the  free and sound disposing mind.  It is only for the purpose of  examining the authenticity or otherwise of the instrument  propounded as the last Will, that the Court looks into the  nature of the bequest.

       The learned Single Judge of the High Court has not even  properly appreciated the context of the circumstances.  The  contents of the Will have to be appreciated in the context of  his circumstances, and not vis-‘-vis the rules for intestate  succession.  It is only for this limited purpose that the Court  examines the nature of bequest.  The Court does not  substitute its own opinion for what was the testator’s Will or  intention as manifested from a reading of the written  instrument.  After all, a Will is meant to be an expression of  his desire and therefore, may result in disinheritance of some  and grant to another.  In the instant case, wife of the testator  Bhagwan Kaur alone had lived with the deceased and only she  had looked after him throughout his life.  The other daughters  were all happily married a long time ago and in their weddings  the testator had spent huge amount of money. In his own  words, he had spent more than what they would have got in  their respective shares out of testator’s property.

       If a Will appears on the face of it to have been duly  executed and attested in accordance with the requirements of  the Statute, a presumption of due execution and attestation  applies.

       It may be pertinent to mention that in the memorandum  of second appeal filed before the High Court no substantial  question of law was formulated.  Similarly, the High Court in  its judgment has not formulated question of law before hearing  the appeal.

       Despite repeated declarations of law by the judgments of  this Court and the Privy Council for over a century, still the  scope of Section 100 has not been correctly appreciated and  applied by the High Courts in a large number of cases.  In the  facts and circumstances of this case the High Court interfered  with the pure findings of fact even after the amendment of  Section 100 C.P.C. in 1976.   The High Court would not have  been justified in interfering with the concurrent findings of fact  in this case even prior to the amendment of Section 100  C.P.C..  The judgment of the High Court is clearly against the  provisions of Section 100 and in no uncertain terms clearly  violates the legislative intention.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 16  

       In view of the clear legislative mandate crystallized by a  series of judgments of the Privy Council and this Court  ranging from 1890 to 2006, the High Court in law could not  have interfered with pure findings of facts arrived at by the  courts below.   Consequently, the impugned judgment is set  aside and this appeal is allowed with costs.