NARAYANAN RAJENDRAN & Anr. v. LEKSHMY SAROJINI & Ors.

Judgment

2 S.C.R. 71 NARAYANAN RAJENDRAN & ANOTHER v. LEKSHMY SAROJINI & OTHERS Civil Appeal No.742 Of 2001 FEBRUARY 12, 2009 A_ B (DALVEER BHANDARI AND HARJIT SINGH BEDI, JJ.) Code Of Civil Procedure,.1908 : s. 100 - Second appeal - High Court setting aside con current findings of courts below - Held: Scope of interference c by High Court after 1976 Amendment is strictly confined to cases involving substantial questions of law - It is reiterated that High Court would not be justified in dealing with any sec ond appeal without first formulating substantial question of law In the instant case, High Court erred in interfering with the - findings of facts arrived at by the trial court and affirmed by first appellate court - Judgment of High Court set aside. 0 The respondents-plaintiffs filed a suit contending that the suit property was a subtarward property of defendant no. 1 and, therefore, the plaintiffs and defendants no. 1 to E 3 being members of the subtarward, were entitled to 1/11 share each in the suit property under the customary law. The stand of defendant no. 1 was that he had exclusive right, title and possession over the property under a reg istered settlement deed executed by his grand parents F and, as such, the suit property was not partible. The trial court dismissed the suit holding that the plaintiffs failed to prove the suit property as subtarward property or that the parties were marumakkathayee ezhavas and were governed by the customary marumukkathayam law, on G the other hand, the parties were governed by makkathayam law. The first appellate court affirmed the judgment. But the High Court in second appeal filed by the plaintiffs held that parties to the suit being residents 71 72 SUPREME COURT REPORTS [2009] 2 S.C.R. A of Kollam District and the property also being situated in the said district, they were following Misravazhi system of inheritance which was essentially based on the prin- ciple of marumakkathayam system of inheritance with modifications recognized by judicial pronouncements. B In the appeal filed by the defendants it was con- tended for the appellants that the High Court erred in in- terfering with the concurrent findings of fact of the courts below, particularly, when the second appeal did not in- volve any substantial question of law. It was further con- c tended that the burden was on the plaintiffs, and they failed to prove that they were governed by the customary marumakkathayam law of inheritance. Allowing the appeal, the Court D HELD: 1.1 Section 100 of the Code of Civil Proce- dure, 1908 shows that the High Court can exercise its ju- risdiction thereunder only on the basis of substantial questions of law which are to be framed at the time of admission of the second appeal which has to be heard E and decided only on the basis of such duly framed sub- stantial questions of law. The judgment under appeal shows that no such procedure was followed by the Single Judge. It is held by a catena of judgments by this Court, that the judgment rendered by High Court u/s 100 C.P.C. F without following the procedure laid down therein can- not be sustained.[para 33] [ 87-G, H; 88-A,B] Sheet Chand v. Prakash Chand (1998) 6 SCC 683; Kanai Lal Garari v. Murari Ganguly (1999) 6 SCC 35; Panchugopal Barua v. Umesh Chandra Goswami (1997) 4 G SCC 713; Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179; K. Raj and Anr. v. Muthamma (2001) 6 SCC 279; lshwar Dass Jain v. Sohan Lal (2000) 1 SCC 434; Roop Singh v. Ram Singh (2000) 3 SCC 708; Santosh Hazari v. Purushottam Tiwari (deceased) by LRs. (2001) 3 SCC 179; Kamti Devi H (Smt.) and Anr. v. Poshi Ram (2001) 5 SCC 311; Thiagarajan ~ + ~ ,... ~ t NARAYANAN RAJENDRAN & ANOTHER V. LEKSHMY SAROJINI & OTHERS 73 v. Sri Venugopalaswamy B. Koil (2004) 5 SCC 762; Commis- A sioner, Hindu Religious & Charitable Endowments v. P Shanmugama (2005) 9 SCC 232; State of Kera/a v. Mohd. Kunhi (2005) 10 SCC 139; Madhavan Nair v. Bhaskar Pillai (2005) 10 SCC 553; Harjeet Singh v. Amrik Singh (2005) 12 SCC 270; H. P Pyarejan v. Dasappa (2006) 2 SCC 496; B Chandrika Singh (Dead) by LRS & Another v. Sarjug Singh & Another (2006) 12 SCC 49; Chacko & Another v. Mahadevan (2007) 7 SCC 363; Bokka Subba Rao v. Kukkala Ba/akrishna & Others (2008) 3 SCC 99; Nune Prasad & Others v. Nune Ramakrishna (2008) 8 SCC 258; Basayya/ Mathad v. c Rudrayya S. Mathad & Others (2008) 3 SCC 120; Dharam Singh v. Kamai/ Singh & Others (2008) 9 SCC 759; Narendra Gopal Vidyarthi v. Rajat Vidyarthi, 2008 (16) SCALE 122; and UR. Virupakshaiah v. Sarvamma & Another 2009 (1) SCALE 89 - relied on. D

1.2 The analysis of cases decided by the Privy Coun- cil and this court prior to 1976 clearly indicated the scope of interference u/s 100 C.P.C. by this Court. Even prior to 1976 amendment, the consistent position has been that the courts should not interfere with the concurrent find- E ings of facts. [para 63] [ 97-F, G] Pratap Chunder v. Mohandranath (1890) /LR 17 Calcutta 291 (PC.); Durga Chowdharani v. Jawahar Singh (1891) 18 Cal 23 (PC); Ramratan Shukul v. Mussumat Nandu (1892) 19 Cal 249 (252) (PC); Ram Gopal v. Shakshaton (1893) /LR F 20 Calcutta 93 (PC.); Rudr Prasad v. Baij Nath (1893) ILR 15 Allahabad 367 - referred to. ..

1.3 After 1976 Amendment, the scope of s.100 has been drastically curtailed and narrowed down. The effect of the amendment mainly is: (i) The High Court would be justified in admitting the second appeal only when a sub- stantial question of law is involved; (ii) substantial ques- tion of law to precisely state such question; (iii) a duty has been cast on the High Court to formulate substantial G H 74 SUPREME COURT REPORTS [2009] 2 S.C.R. A question of law before hearing the appeal; the ap peal shall be heard only on that question. The High Court would not be justified in dealing with any second appeal without first formulating substantial question of law. [para 64] [ 96-G, H; 97-A,B] (iv) B