Full Judgment Text
‘ REPORTABLE’
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1925 OF 2022
(Arising out of SLP (C)No. 36332 of 2016)
HARDIAL SINGH Appellant(s)
VERSUS
BALBIR KAUR & ANR. Respondent(s)
J U D G M E N T
K. M. JOSEPH, J.
Leave granted.
(1) Respondent Nos. 1 and 2, who are plaintiffs, filed the
suit seeking declaration of title and prohibitory
injunction. The first defendant was the mother-in-law of
the first plaintiff and the paternal grandmother of the
second plaintiff. The appellant is the brother-in-law of
the first plaintiff that is he is the brother of Sucha
Singh.
(2) The suit was laid on the following basis.
Shri Sucha Singh, who was the husband of the first
plaintiff and the father of the second plaintiff, passed
Signature Not Verified
Digitally signed by
Nidhi Ahuja
Date: 2022.03.14
17:32:10 IST
Reason:
away on 21.04.1998. The case was set-up against the
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mutation which was allegedly illegally carried out and as a
result of which, in regard to the 1/3 right, the name of the
defendants were entered.
The case of the plaintiffs is that Sucha Singh has
left behind a will dated 19.04.1998 before he died on
21.04.1998 which was registered on 18.06.1998. Under the
will, the plaintiffs were bequeathed all his rights. The
appellant and the other defendants contested the suit and
contended that the will dated 19.4.1998 was forged. It was
their case that since Sucha Singh died intestate, the
plaintiffs and the mother of Sucha Singh being Class I heirs
inherited 1/3 right each. On the strength of the said
succession, the mother executed a will dated 16.07.1998 (D1)
in favour of her two other sons of whom the appellant is
one. The matter went to trial. The trial Court decreed the
suit. The trial Court found that plaintiffs succeeded and
declared them the owners in view of will dated 19.04.1998.
(3) The defendants appealed. In the first appeal, the
appellate Court reversed the decree of the trial Court. The
appellate Court on appreciation of the evidence has found
that there were suspicious circumstances surrounding the
will dated 19.04.1998. It was inter alia found that the
mother of Sucha Singh was living with him and there was
nothing to indicate as to why he would exclude his own
mother. It was further found that there were certain other
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circumstances including the registration of the will after
the death of the testator which were considered by the first
appellate Court in concluding that the will dated 19.04.1998
could not be accepted as genuine. It was also found that D1
will was valid. On the strength of the appreciation of the
evidence the fist appellate Court set aside the judgment of
the trial Court and the mother of Sucha Singh was found to
have legal right with the plaintiffs.
(4) It was now the turn of the plaintiffs to appeal by
purporting to invoke Section 100 of the Code of Civil
Procedure, 1908. It is in the said second appeal that the
judgment which is impugned before us came to be passed.
The High Court in the impugned judgment has restored
the decree of the trial Court. In the course of the
judgment, the High Court has proceeded to find that the
trial Court was right in finding that the will dated
19.04.1998 could be acted upon.
(5) We have heard Mr. Rakesh K. Khanna, learned senior
counsel appearing for the appellant and Mr. Partha Sil,
learned counsel appearing for the plaintiffs.
At the time when notice was issued in this case on
06.03.2017, we notice that what was projected before this
Court was that substantial questions of law were not framed
and without that the second appeal has been allowed by the
High Court. It was on this premise that this Court issued
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notice. Mr.Rakesh K. Khanna, learned senior counsel, would,
in fact, point out that this Court had already taken a view
regarding the provisions of law applicable as regards the
High Court of Punjab and Haryana in a second appeal in the
decision reported in Pankajakshi (Dead) Through Legal
Representatives and Others v. Chandrika and Others (2016) 6
SCC 157. This judgment was rendered on 25.02.2016. In
fact, learned senior counsel would point out that at the
time when notice was issued by this Court noticing that
substantial question of law was not framed, the judgment in
Pankajakshi (Dead) Through Legal Representatives and Others
(supra) had not been reported. This Court in Pankajakshi
(Dead) Through Legal Representatives and Others (supra)
which is, in fact, a Constitution Bench judgment has found
that as far as Punjab and Haryana High Court is concerned,
in a second appeal, the law which would be applicable would
be Section 41 of Punjab Courts Act, 1918. Therein, this
Court inter alia held as follows:
“The judgment in Kulwant Kaur case [ Kulwant Kaur v.
Gurdial Singh Mann , (2001) 4 SCC 262] raised a
question which arose on an application of Section 41
of the Punjab Courts Act, 1918. This section was
couched in language similar to Section 100 of the Code
of Civil Procedure as it existed before the Code of
Civil Procedure (Amendment) Act, 1976, which amended
Section 100 to make it more restrictive so that a
second appeal could only be filed if there was a
substantial question of law involved in the matter.”
(6) This Court took the view that it is Section 41 of the
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Punjab Courts Act, 1918, which would continue to govern the
fate of a second appeal in the Punjab High Court. Thus, on
the one hand, as far as in Punjab and Haryana is concerned,
in a second appeal, the Court need not frame substantial
questions of law in a second appeal, that is different from
saying that it can exercise its jurisdiction de hors the
boundaries of its powers located in Section 41 of the Punjab
Courts Act, 1918.
(7) Considering the effect of Pankajakshi (Dead) Through
Legal Representatives and Others (supra), this Court has in
Randhir Kaur v. Prithvi Pal Singh and Others (2019) 17 SCC
71 inter alia , held as follows:
“15. A perusal of the aforesaid judgments would show
that the jurisdiction in second appeal is not to
interfere with the findings of fact on the ground that
findings are erroneous, however, gross or inexcusable
the error may seem to be. The findings of fact will
also include the findings on the basis of documentary
evidence. The jurisdiction to interfere in the second
appeal is only where there is an error in law or
procedure and not merely an error on a question of
fact.
16. In view of the above, we find that the High Court
could not interfere with the findings of fact recorded
after appreciation of evidence merely because the High
Court thought that another view would be a better
view. The learned first appellate court has considered
the absence of clause in the first power of attorney
to purchase land on behalf of the plaintiff; the fact
that the plaintiff has not appeared as witness.”
(8) Still further, this Court in judgment reported in
Avtar Singh & Ors. v. Bimla Devi & Ors. 2021 SCC Online SC
827 again the scope of the jurisdiction which is available
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to the High Court of Punjab and Haryana in the matter of the
second appeal has explained as follows:
“20. It is thus evident, therefore, that mere findings
of fact cannot be interfered with in exercise of
second appellate jurisdiction given the three limbs of
jurisdiction available under Section 41 of the Punjab
Courts Act. Findings of fact which are unreasonable,
or which are rendered by overlooking the record,
therefore, per se do not appear to fall within the
scope of second appellate review by the High Court. In
these circumstances, the High Court's findings - which
are based entirely on the reappreciation of the record
- and consequent interference with the concurrent
findings of the lower courts, cannot be upheld.”
(9) A perusal of the impugned judgment which was, in fact,
rendered on 02.02.2013 which is prior to the judgment in
Pankajakshi (Dead) Through Legal Representatives and Others
(supra) would, undoubtedly, appear to bear the appellant out
in his complaint at the stage when the Court considered it
on the first occasion, namely, that the learned Judge has
proceeded to deal with the second appeal even without
formulating a substantial question of law as would have been
the requirement as it was understood in law in the year 2013
in the absence of the judgment in Pankajakshi (Dead) Through
Legal Representatives and Others (supra). We would notice
that the High Court has proceeded in the matter without even
carefully attending to the evidence which is available on
record. It is another matter that in a second appeal
jurisdiction of the Court as understood by this Court is
very narrow. We would think that the findings which have
been rendered and the approach of the Court would make it
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incompatible with the power available to the Court within
the four walls of its jurisdiction in a second appeal as
laid down by this Court.
(10) But then, the learned counsel for the respondent,
would submit that this Court may remit the matter back so
that the Court may consider the second appeal strictly
within the ambit of the provision as applicable to the
Punjab and Haryana High Court. We would think that the said
request merits acceptance.
(11) Accordingly, the upshot of the above judgment is that
we set aside the impugned judgment. We remand the case back
to the High Court. The High Court will consider the matter
as early as possible keeping in mind the fact that the suit
is of the year 1998. We would request the High Court to
consider taking up the second appeal on a priority basis.
We make it, however, clear that we have not expressed any
view on the merits of the contentions of either side. The
appeal is allowed as above.
Parties will bear their respective costs.
…………………………………………………………………., J.
[ K.M. JOSEPH ]
…………………………………………………………………., J.
[ HRISHIKESH ROY ]
New Delhi;
March 10, 2022.
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