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CASE NO.: Appeal (civil) 60  of  1994

PETITIONER: K. RAJ AND ANR.

       Vs.

RESPONDENT: MUTHAMMA

DATE OF JUDGMENT:       17/04/2001

BENCH: D.P. Mohapatra & Brijesh Kumar

JUDGMENT:

BRIJESH KUMAR, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   This appeal arises out of a judgment and order passed by the  Madras  High  Court, dated January 30, 1992  in  Second Appeal    NO.    291/1982.    A     suit   filed   by    the Predecessor-in-Interest  of the present appellants, claiming one-  half share in the property in question, was  dismissed by  the  Trial  Court but in First Appeal the order  of  the Trial  Court  was  set aside and a  preliminary  decree  for redemption  of  the property, as prayed for, was passed  and the  plaintiff  was  held  to be  entitled  for  the  relief claimed.   Aggrieved by that order the respondent  preferred the  Second Appeal in the High Court which has been  allowed and the said order has been impugned in the present appeal.

   The  main question which has been raised in the  present appeal   is  whether  the  High   Court  was  justified   in interfering  with the findings of fact recorded by the First Appellate  Court, by re-appraising the evidence in violation of  provisions  contained in Section 100 CPC.  A perusal  of the  judgment  passed by the High Court also shows that  the Court  had not framed any substantial question of law  while entertaining and deciding the Second Appeal.

   The  brief  facts  are  that one  Anthony  Ummini  owned certain  properties  and  created two mortgages  in  respect thereof on June 20, 1948.  The mortgage was in favour of one Ananthan.   Anthony  died later as a bachelor.  His  another brother  Ponnu who pre-deceased him, was also as a bachelor. He  had two sisters namely, Muthamma and Kannamma.  Muthamma paid the mortgage money on 14.3.1960 and obtained a document of release of the property from Ananthan.  In the year 1978, a  suit  was  filed  by   Kannamma  impleading  Muthamma  as defendant  with  a prayer for redemption of plaint  schedule properties,  basing her claim on the facts that on the death of  Anthony Ummini her brother, the two sisters namely,  the plaintiff  and the defendant would inherit his property.  At the time of his death Anthony Ummini had none of his parents living  nor  any  other  brothers   or  sisters  except  the plaintiff and the defendant.

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   In  paragraph  5  of  the plaint,  it  is  averred  that plaintiff  and  the  defendant  are  sisters  and  that  the plaintiff  is entitled to one-half of the property,  whereas defendant  is  entitled  to the other half.   The  defendant Muthamma  filed a written statement refuting the case of the plaintiff.   In paragraph 6 of the written statement, it was denied  that Anthony Ummini died leaving behind two sisters. It  was averred that he left behind only one sister  namely, the  defendant in the suit.  It is also specifically averred that  plaintiff is not the sister of Anthony Ummini.  She is also  said not to be the daughter of Anpudayan Anthony.   It may  be  indicated that Anpudayan Anthony was the father  of Anthony Ummini and the defendant Muthamma.

   The  averments  made in paragraph 5 of the  plaint  have been  denied.   It is to be noticed that in the  plaint  the plaintiff  has described the title of the case as Kannamma , the  daughter  of  Valliamma and defendant has  also  to  be described  as Muthamma daughter of Valliamma.  Fathers name has  not  been given.  In the written statement, it has  not been  denied  that the plaintiff and the defendant both  are daughters  of  Valliamma.   The case, however, is  that  the plaintiff  Kannamma  was  daughter  of  Valliamma  from  her previous  husband  and  not  out   of  the  wedlock  between Anpudayan  Anthony  and  Valliamma.    The  Trial  Court  as indicated  earlier  dismissed the suit recording  a  finding that the plaintiff was one of the daughters of Valliamma but the  plaintiff and the defendant are not sisters born to the same father.  According to defendant, she and Anthony Ummini are from the same father viz.  Anpudayan Anthony.

   It  may  also  to be noticed here that under  the  Hindu Succession  Act,  sisters fall in Class II heirs but a  note appended  to  the  provision clarifies that sisters  do  not include  uterine sisters.  That is to say, according to  the said  provision  an uterine sister will not be an heir  of such  brothers  property.  In appeal, the judgment  of  the Trial Court was set aside and the suit was decreed.

   The  First  Appellate Court has referred to a number  of documents  for  arriving at the findings as recorded by  it. One  of  the  reasons indicated in the order passed  by  the First  appellate  Court  is  that it  was  not  specifically pleaded  that the plaintiff was daughter of first husband of Valliamma  nor  name of the first husband of  Valliamma  was given  by  the  defendant.  The First Appellate  Court  also observed  strong  and mature evidence has to be adduced  to reject  the  case of the plaintiff that she is  daughter  of Anthony.   It  is also observed that the plaintiff was  not asked  to  meet the case that she was the daughter of  first husband  of  Valliamma.  We, as a matter of fact, may  point out  that  the  plaint  does   not  indicate  anywhere  that plaintiffs  case  was  that she is  daughter  of  Anpudayan Anthony.    She  has  described   herself  as  daughter   of Valliamma.   She does not give fathers name.The High  Court in  Second  Appeal set aside the order passed by  the  First Appellate Court and also referred to the documents exhibited in  the case.  The Second Appellate Court observed that  the burden  was  on the plaintiff to establish that she  is  the daughter  of  Valliamma and Anpudayan Anthony.  It  is  also observed  that the First Appellate Court had wrongly  thrown the  burden  of proof upon the defendant in respect  to  the facts  indicated above.  Yet another observation to be found

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is  that the First Appellate Court totally misled itself  in not  appreciating  the facts in proper perspective.   It  is also  found that at several places in the judgment  rendered by  the First Appellate Court, the facts stated therein  are different   from  what  is   contained  in  the   respective documents.   With the above findings, the order of the First Appellate Court was reversed.

   Our  attention  has  been rightly drawn by  the  learned counsel for the parties that Second Appeal under Section 100 CPC  lies  to the High Court if the Court is satisfied  that the  case involves a substantial question of law.  It  would be  appropriate to reproduce Section 100 CPC which 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 involving 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.

   According  to  the  above   provision,  the  substantial questions  of law as may be involved in the appeal are to be precisely stated in the memorandum of appeal itself.  If the High  Court  feels satisfied about existence of  substantial question  of law, it is for the High Court to formulate that question  and  the  appeal is generally to be heard  on  the questions so formulated.

   It  has been observed by this Court in several decisions that  the  High Court must conform to the requirements  laid down  in  sub-section 4 of Section 100 CPC.  Formulation  of such  questions  of  law  gives proper  direction  in  which arguments have to be advanced by the parties.  The facts and the  questions  of  law  are  also  appreciated  in  correct perspective  .  Such provisions as made under sub-sections 3 and  4  of  Section 100 CPC are meant to be acted  upon  and complied  with.   It  appears that the High  Court  did  not advert to the said requirement of law and without addressing itself  to  that aspect of the matter heard the  appeal  and disposed of the same.

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   Some  decisions on the point may be referred to, namely, Kanailal  Garari  and Ors.  Vs.  Murari Ganguly and Ors.   ( 1999  (6) SCC 35).  It has been held that it is mandatory to formulate  a substantial question of law while  entertaining the  appeal  in absence of which the judgment is to  be  set aside.   The  Court relied upon a decision of this Court  in Panchugopal  Barua Vs.  Umesh Chandra Goswami ( 1997(4)  SCC 713).   In Santosh Hazare Vs.  Purshotam Tiwari (2001 S.C.W. 723),  it  has been held that High Court cannot  proceed  to hear  a  second appeal without formulating  the  substantial question of law.

   It  is  submitted that prima facie some question of  law should be involved in the case , then alone the case need be remanded  to  the High Court to consider that aspect of  the matter.   A  case where no such question arises at  all,  it would  not  serve  any  purpose  to  remand  the  case.   In connection with this submission, the findings as recorded in the  Second  Appeal,  may be seen.  It has been  found  that burden  of proof was wrongly shifted on certain questions by the  First  Appellate Court.  Yet another finding which  has been  recorded  is that documents relied upon by  the  First Appellate  Court  actually  do not contain,  what  has  been indicated  in the judgment of the First Appellate Court.  It may  perhaps then amount to mis- reading of the documents or wrong interpretation of the documents.  We have also noticed that  in the plaint the plaintiff has described herself  and the  defendant  only as daughters of  Vallliamma.   Fathers name  in  respect of none has been disclosed.  It  has  also been  averred  that  the  plaintiff and  the  defendant  are sisters  of  Anthony Ummini.  Disclosure of the name of  the father  may  perhaps  be  more   relevant  and  of   special importance while property of the deceased brother is claimed by  a sister since the expression sister does not mean  an ‘uterine  sister as provided under the note to the schedule of  inheritance in the Hindu Succession Act.  An averment of a  general  description, ‘sister may perhaps fall short  of entitlement  to inherit the property of the deceased brother as  all  categories  of  sisters would not be  heir  to  the brothers property.  This seems to be an important aspect of the  matter  which  emerges  regarding the  framing  of  the pleadings,  fulfillment  of requirements to be heir  to  the property  of the deceased brother and as to who has to prove these facts.  Perhaps, these are the matters which are to be considered  by the High Court to come to a conclusion as  to whether  any substantial question of law is involved or  not in the Second Appeal and a decision to that effect has to be taken by the court concerned namely, the High Court.  In the present  case, we find that the High Court has not only made any  effort to find out whether any substantial question  of law  is  involved  or  not, it has also  totally  failed  to address  itself  to  that  aspect of  the  matter  in  utter dis-regard  of the provisions contained under sub-section  4 of  Section  100 CPC which has been held to be mandatory  in nature.   In  such facts and circumstances of the  case,  it would be a fit case for remand to the High Court to consider this  aspect  of  the matter and to find out itself  if  any substantial  question  of law is involved or not.  In  case, such  a  question  or questions arise, the  same  should  be formulated  and the appeal be heard thereafter in accordance with law.

   We  would however particularly take care to observe that none  of  the  observations made by us in this  order  would

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prejudice  the case of the parties while being heard by  the High  Court after remand.  The High Court may take any  view of the matter on its merit.

   In  the result, the appeal is allowed, the judgment  and order passed by the High Court in Second Appeal is set aside and  the case is remanded back to the High Court to consider the same in the light of the observations made above.  Since the  matter  is pending for long, it is requested  that  the High  Court may dispose of the case expeditiously as far  as possible  within  six months of receipt of the  record  from this Court.

   In  the facts and circumstances of the case, there would however be no order as to costs.