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2015 DIGILAW 175 (ORI)

Mathai Naik v. Sitaram Naik

2015-03-16

D.DASH

body2015
JUDGMENT In this appeal, the appellant calls in question the judgment and decree passed by the learned Addl. District Judge, Rairangpur in R.F.A. No.13 and 14 of 2011 confirming the judgment and decree passed by the learned Civil Judge (Sr. Divn.) Rairangpur in C.S. No.7 of 2004.The suit for partition filed by the respondent nos. 1 to 3 as plaintiffs has been decreed and the counter claim filed by the appellant/defendants has been dismissed. 2.Plaintiff’s case is that the parties are ‘Kolha’ by caste and as such are governed by the traditional Hindu law. The provisions of Hindu Succession Act etc are not applicable to them. It is stated that Dasaratha Naik had two wives Sutri and Belo. Defendant No.2 is the son of Dasarath through his first wife Sutri and the plaintiffs are the sons of Dasarath through his second wife. Belo had predeceased Dasarath. It is said that after death of Dasarath, though the parties having succeeded to the properties, possessed some portion of the same separately for convenience, but there was no partition in metes and bounds. The plaintiffs requested the defendants for partition and that having been declined, the suit has come to be filed. 3.The defendants in the joint written statement at the outset asserted that Dasarath had not married Belo. According to them, having fallen in love with Belo, Dasarath had kept her in his house. It is next stated that in order to avoid further dispute Dasarath during his life time had divided his property in two halves and that is said to be about 35 years prior to the filing of the written statement. In the said division, it is asserted that one share went to the plaintiffs and their mothers and the other share came to the defendants. They further state to have improved the land substantially improving its original kissam. The counter claim has also been levied for a declaration that Belo is not the wife of Dasarath and thus the plaintiffs are illegitimate sons of Dasarath. 4.The trial Court decided the suit and the counter claim mainly rendering findings on two issues; (i) relating to the status of Belo; and the other one (ii) relating to the division of the properties during the life time of Dasarath in two equal shares as pleaded by the defendants. 4.The trial Court decided the suit and the counter claim mainly rendering findings on two issues; (i) relating to the status of Belo; and the other one (ii) relating to the division of the properties during the life time of Dasarath in two equal shares as pleaded by the defendants. On analysis of evidence of all the witnesses examined by the parties, categorical finding has been rendered that Belo is the wife of Dasarath mainly accepting the evidence with regard to long living of Belo with Dasarath as husband and wife; begetting children, their conduct vis-a-vis, acceptance as such by the members of their community and society at large and taking the accepted position that bigamy and polygamy is not prohibited for the parties who are Scheduled Tribes. As regards the prior division of the properties in two halves during the life time of Dasarath, to the first wife and her son and other one to the children of the second wife, the finding is against the defendants. It has again been said that though the father during his life time has the power to make a division, such type of division as pleaded by the defendants is a concept foreign to Hindu law, that there would be per stripes partition taking each wife and children begotten through her as a branch. The division as pleaded thus has been found to be non-acceptable in the eye of law. 5.The lower appellate Court while dealing with both the appeals, one against the preliminary decree for partition and the other one against the dismissal of the counter claim has concurred with the above findings of the trial Court. 6.Learned counsel for the appellants (defendants) submits that the finding rendered by the Court below that there was no division of property during the life time of Dasarath is based on perverse appreciation of evidence and as such is not sustainable. According to him, the Courts below have been swayed away simply talking a view that such type of division is not permissible in law. It may be humbly stated here that I am unable to fathom any of the substantial questions of law as precisely stated in the memorandum of appeal being the requirement of law. Those in my considered view appear to be running contrary to the rudimentary concept of Hindu Law holding the field. It may be humbly stated here that I am unable to fathom any of the substantial questions of law as precisely stated in the memorandum of appeal being the requirement of law. Those in my considered view appear to be running contrary to the rudimentary concept of Hindu Law holding the field. Therefore, although such grounds are reiterated in course of hearing by the learned counsel for the appellants, I refrain from discussing those one by one for the reasons, which are felt desirable to describe in so many words though may be inferred. In view of the narration of the facts of the rival case of the parties both the important issues which have decided the fate of the litigation, are pure facts i.e. the status of Belo, and the legitimacy of the plaintiffs and secondly the division as per the case set up by the defendants during the life time of Dasarath amongst the parties in two halves. 7.It has been held in the case of Santosh Hajari Vrs. Purusottam Tiwari, 2001 (3) SCC 179 as under: “10. 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 same 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 question 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. 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. Xxxxxx 12.The phrase “substantial question of law”, as occurring in the amendment Section 100 is not defined in the Code.The word substantial, as qualifying “question of law, means – of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – 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 or Article 133 (1) (a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta, the phrase “substantial question of law as it was employed in the last clause of the then existing Section 110 CPC (since omitted by the Amendment Act, 1973 came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal v. Mehta @ Sons Ltd. v. Century Spg. And Mfg.Co. Ltld. In Sir Chunilal v. Mehta @ Sons Ltd. v. Century Spg. And Mfg.Co. Ltld. The Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subha Rao v. Noony Veeraju: “When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law”. and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial: “The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law”. Xxxxxx 14. 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, in so far as the rights of the parties before it are concerned. 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, in so far 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 or it laid in the pleadings and the question should emerge from the substantial findings of fact arrived at by Court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.” In case of Narendra Gopal Vidyarthi Vrs. Rajat Vidyarthi, 2009 (3) SCC 287 , the Hon’ble Apex Court have held:- “13. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidences have not been taken into consideration or inadmissible evidences have been taken into consideration. 14. We fail to understand as to on what basis, the said question of law was formulated. Before an additional question is formulated, the procedure laid down therefor must be complied with. This aspect of the matter stands concluded by this Court in Krishnan case wherein it was held : SCC pp. 192-93, paras 10-11. “10. Under the amended Section 100 CPC the High Court has to frame substantial question of law and can decide the second appeal only on those questions framed. A perusal of the questions framed shows that no question of law was framed as to whether the finding of fact of the first appellate Court that Lakshmi and Ramayee are one and the same person, is based on no evidence or is perverse. 11. A perusal of the questions framed shows that no question of law was framed as to whether the finding of fact of the first appellate Court that Lakshmi and Ramayee are one and the same person, is based on no evidence or is perverse. 11. It may be mentioned that the first appellate Court under Section 96 CPC is the last Court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate Court under Section 96 CPC. No doubt the findings of fact of the first appellate Court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect. In the present case no question was framed by the High Court as to whether the finding of the first appellate Court that Ramayee and Lakshmi are one and the same Epson, is a finding based on no evidence or is perverse. Hence the findings of the first appellate Court that Ramayee and Lakshmi are one and the same person, could not have been interfered with by the High Court”. “15. Yet again in Boodireddy Chandraiah case this Court opined: (SC pp. 158-60, para-4). “ 4.....”21. The phrase “substantial question of law”, as occurring in the amended Section 100 CPC is not defined in the Code.’ The word substantial, as qualifying “question of law”, means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with-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 or Article 133 (1) (a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta, the phrase “substantial question of law: as it was employed in the last clause of the then existing Section 110 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal v. Mehta @ Sons Ltd. v. Century Spg. And Mfg.Co. Ltd. the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subha Rao v. Noony Veeraju: “5....... when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law”. xxxxxx 24.The principles relating to Section 100 CPC relevant for this case may be summarized thus : (i)An inference of fact from the recitals or contents of document is a question of fact. But the legal effect of the terms of a document is a question of law.Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. (ii)The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. (ii)The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle merging from binding precedents, land, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (iii)The general rule is that the High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-organized exceptions are whether (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the Courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the Courts have wrongly cast the burden of proof. When we refer to “decision based on no evidence”, it not only refers to cases where there is a total dearth of evidence, taken as a whole, is not reasonably capable of supporting the finding”. 8.Reverting to the instant case, admittedly there is no document in support of the division, so also no such document has been admitted in evidence during trial from which any sort of inference with regard to any division of the properties during the life time of Dasarath can be drawn. Admitted factual aspect is that the parties are in possession of separate portion of land. The burden of proof in such a case rests on the party who claims prior division. Admitted factual aspect is that the parties are in possession of separate portion of land. The burden of proof in such a case rests on the party who claims prior division. In the written statement, it is also not pleaded as to which of the properties in the said division made by Dasarath were allotted to the plaintiffs and the defendants. The evidence in that regard has been tendered by the defendants in a generalised manner. The burden of proving such prior division was on them. The settled position of law is that mere separate living, enjoyment of property separately with payment of rent and tax etc are not the circumstances to hold in favour of prior division in metes and bounds though the same are compatible to the case of separate enjoyment of properties for convenience. The record, position is not favouring such division. The Courts below have not only gone to discuss the oral evidence but also considered all other circumstances standing against such partition. It has noted that the witnesses are unable to say the specific allotment in the so called division and also one of them who has not been able to say as to the year and month when the said division took place. It has taken note of the joint recording of land as a factor acting against the division. 9.Next, it has taken into consideration that such division as pleaded is foreign to the concept of Hindu Law and in this connection reliance has been placed in case of Kalyani Vrs. Narayanan and others AIR 1980 SC 1173 . It may further be stated here that no doubt the father during his life time can impose a partition amongst his sons and other members but it has to be fair, reasonable and transparent so as to bind them. This test of fairness, reasonableness and transparency in short FRT test has to be successfully passed through for acceptance of a case of such a division made by the father. The burden squarely lies on the parties who plead such a division. Be that as it may, in the present case when it is found that Dasarath was having two wives, the division of the properties in two halves i.e. treating each wife and children as a branch appears to be unfair, unreasonable and lacks transparency being not backed by any such striking reason whatsoever. Be that as it may, in the present case when it is found that Dasarath was having two wives, the division of the properties in two halves i.e. treating each wife and children as a branch appears to be unfair, unreasonable and lacks transparency being not backed by any such striking reason whatsoever. 10.The lower appellate Court as it appears from the judgment has gone to re-appreciate the evidence which is the bounded duty on its part being the final Court of fact and having arrived at the same conclusion has refused to interfere with the judgment and decree passed by the trial Court. On carefully going through the judgments, this Court is not able to find out any such perversity as it is understood in the true sense of the term as stated in the foregoing paragraph. Learned counsel for the appellant has also not been able to place any such material in support of his contention that perversity surfaces in appreciation of the evidence by the Courts below. Learned counsel for the appellant surprisingly enough has placed reliance on a decision in case of Dr. Surajamani Steela Kujur Vrs. Durga Charan Hansada, AIR 2001 SC 938 , which is a case where challenge was made to the institution of a prosecution for offence U/s.494 I.P.C. The question got posed before the Hon’ble Apex Court as to who is a Hindu for the purpose of applicability of Hindu Marriage Act, 1955. In that case, the parties being Tribals, have been held to be governed by their Santal custom and usage. It was contended before the Apex Court that custom in the Tribe mandates monogamy as a rule. The Hon’ble Apex Court has answered in the negative, while upholding the dismissal of the complaint filed by the appellant. Having passed some thoughtful moments I am not able to follow as to how this decision is helpful to the appellants, still with difficulty the reason is culled out that perhaps to support the division made by Dasarath during his life time, taking each wife and her children as a branch, it is said to be on the basis of and following the custom and usage and the decision is shown for that purpose. Be that as it may, nothing has been pleaded in that regard, no evidence has also been led. Be that as it may, nothing has been pleaded in that regard, no evidence has also been led. Therefore no such issue has been framed and it also appears to have been raised without any sort of foundation or its hint during suit or appeal for the first time, in the second appeal is wholly impermissible in law for being considered. For the aforesaid discussion, this Court finds no such substantial question of law to be involved in the case which merits admission of this second ppeal. 11.Resultantly, the appeal stands dismissed. No order as to cost. Appeal dismissed.