Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5
PETITIONER:
RAMCHANDRA PANDURANG SONAR (DECEASED)THROUGH HIS HEIRS AND L
Vs.
RESPONDENT:
MURLIDHAR RAMCHANDRA SONAR AND ORS.
DATE OF JUDGMENT19/07/1990
BENCH:
SAWANT, P.B.
BENCH:
SAWANT, P.B.
KASLIWAL, N.M. (J)
CITATION:
1990 AIR 1973 1990 SCR (3) 435
1990 SCC (4) 45 JT 1990 (3) 202
1990 SCALE (2)85
ACT:
Code of Civil Procedure, 1908: Section 100--Second
appeal-Finding of fact--High Court not to interfere unless
question of law is involved and such question is formulated
by it.
HEADNOTE:
S and R were brothers who carried on the business of gold
smithery, and a partition took place between them in 1918. R got
2 houses and land in Survey No. 71. Later on, one of the sons of
R instituted a suit claiming that Survey No. 71 was an ancestral
property and that some of the suit properties were purchased by R
out of the income, and subsequently the sale proceeds, of the
land. The defendants, viz., the other children of R contended
that Survey No. 71 was purchased by S and R with the income they
derived from gold smithery and the suit properties except the two
houses which were admittedly the ancestral properties, were not
the joint family properties in which the plaintiff could claim
his share.
The Trial Court decreed the suit in favour of the plain-
tiff. On appeal by the defendants, the First Appellate Court
reappreciated the evidence, found infirmities in the conclu-
sions arrived at by the Trial Court and dismissed the suit
except to the extent of plaintiff’s share in the two ances-
tral houses, on the basis of its finding that the other
properties were self-acquired properties of R.
During the pendency of the suit R died. By virtue of his
will the self-acquired properties of R went to the defend-
ants and the plaintiff was left out.
The plaintiff preferred an appeal before the High Court
against the order of the First Appellate Court. The High
Court interfered with the said findings of facts and held
that since Survey No. 71 had come to the share of R in
general partition, it was ancestral property. it further
observed that since the said property was yielding income
with the help of which the other properties could have been
purchased and since
436
further the gold smithery business was an ancestral busi-
ness, the properties purchased with the help of such income
should be held to be joint family properties.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5
Aggrieved, the defendants have filed this appeal. Allow-
ing the appeal,
HELD: 1. There was, no question of law involved in the
second appeal. Yet the High Court chose to interfere with
the finding ignoring the mandatory provisions of Section 100
of the Civil Procedure Code that unless it was satisfied
that the case involved substantial question of law it could
not entertain it and that before it could entertain it, the
Court had to formulate such question. [440F]
2.1 It was not disputed at any time that the property in
Survey No. 71 had all along stood in the name of Supadu and,
therefore, the presumption drawn by the First Appellate
Court that this showed that in all probability the property
was purchased after the death of his father cannot be said
to be unreasonable. There is no evidence brought on record
by the plaintiff with regard to the quantum of income from
Survey No.71. In fact, the uncontroverted evidence on record
shows that Ramchandra had no implements and bullocks for
cultivating the land and the land was always cultivated with
the help of the labourers who brought their own implements
and bullocks. This shows that the family derived less than
normal income from the said land. It was admitted by the
plaintiff that Ramchandra was a skilled goldsmith and was
well-known in the locality as such, and was doing his busi-
ness as goldsmith and earning sufficient income. [440A-D]
2.2 The High Court ignoring the fact that it was not the
case of the plaintiff that goldsmithery was an ancestral
business and that it was not his case that the suit proper-
ties were purchased with the help of the income from the
said business held that it was so. What is further, the
plaintiff’s case was that the suit properties were purchased
with the income from Survey No. 71. Thus it is obvious that
the conclusions which were arrived at by the First Appellate
Court were reasonable and legal besides being conclusions of
facts. [440D-E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3704 of
1989.
From the Judgment and Order dated 11.3.1987 of the
Bombay High Court in Second Appeal No. 725 of 1980.
437
U.R. Lalit, G.A. Shah, V.N. Ganpule for the Appellants.
D.A. Dave, R. Karanjawala, Ms. M. Karanjawala and Jatin-
der Sethi for the Respondents.
The Judgment of the Court was delivered by
SAWANT.J. This is a case where the High Court in second
appeal has interfered with a pure finding of fact recorded
by the First Appellate Court for no worthwhile reason, and
ignoring the mandatory provisions of Section 100 of the
Civil Procedure Code.
2. The only question which was involved in the suit was
whether the suit properties in which the plaintiff claimed
one-fifth share, were the ancestral joint family properties
or whether they were the self acquired properties of his
father, Ramchandra. The relevant facts are: defendant No. 1,
Ramchandra had four sons including the plaintiff, and a
daughter. The three other sons and the daughter are defend-
ants Nos. 2 to 5. One of the sons, defendant No. 3 appears
to support the plaintiff. During the pendency of the suit,
Ramchandra died and his sons including the plaintiff have
been brought on record as his heirs and legal representa-
tives. The suit properties consisted of lands being (i)
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5
Survey No. 21/1 admeasuring 14 acres 3 gunthas, (ii) Survey
No.. 20/2 admeasuring 2 acres 36 gunthas, (iii) Survey No.
20/1 admeasuring 3 acres 30 gunthas and two houses all
situated at Nizampur, Taluka Saaki, District Dhuiia. It was
the case of the plaintiff in his plaint that a joint family
consisting of his father Ramchandra and his brother, Supadu
owned several houses, and a land comprised in Survey No. 71
admeasuring about 14 acres. In the partition between Ram-
chandra and Supadu, two houses and Survey No. 71 came to the
share of Ramchandra- The said two houses are included in the
suit properties and it is not disputed on behalf of the
respondent-defendants that they are ancestral properties and
the plaintiff has one-fifth share in the same. However, the
case of the plaintiff that Survey No. 71 was the ancestral
property was vehemently disputed and that has been the
sheet-anchor of contention of both the parties while the
plaintiff claims that rest of the suit properties were
purchased by Ramchandra out of the income and-subsequently
the sale proceeds, of the said land (since admittedly the
said land was sold by Ramchandra in 1953), it is the case of
the defendants that the said land was in fact purchased
jointly by Ramchandra and his brother, Supadu out of their
own earnings, and in the partition between Ramchandra and
Supadu that land came to the share of Ramchandra. Hence,
according to the defendants, even
438
assuming that the rest of the suit properties were purchased
with the help of the income from Survey No. 71, they were
the self-acquired properties of Ramchandra.
3. In support of his case that Survey No. 71 was the
ancestral property, the plaintiff relied upon the fact that
the said survey no. had come to the share. of Ramchandra in
a general partition between him and his brother, Supadu in
1918. As against this, the defendants contended that Ram-
chandra’s father Pandu died in 1904 and since the property
all along stood in the name of Supadu it showed that it was
purchased after Pandu’s death in 1904. They also relied upon
the fact that Ramchandra was a skilled goldsmith and was
well known for his artisanship and commanded good business.
His brother was also a goldsmith and both of them had pur-
chased the said land with the earning in goldsmithery. It
was also their case that Ramchandra’s father, Pandu had only
two houses and no other property nor did he carry on any
business even of goldsmithery. Hence, there was no question
of purchasing Survey No. 71 out of the income from the
ancestral property by Ramchandra and Supadu and the purchase
was with the help of the income which they had earned from
the business which they were carrying on by their own skill.
It was also shown by the defendants that when Survey No. 71
was sold in 1953, no objection whatsoever was taken to the
sale nor permission of any of the sons including that of the
plaintiff was deemed necessary for the same. They further
contended that they had hardly any income from Survey No. 71
and the properties which were purchased prior to 1953 could
not have been purchased with the help of any such income
assuming that it was an ancestral land. According to them,
therefore, the suit properties were purchased only from the
income from the business of goldsmithery. The three of the
properties were purchased prior to 1953 while the rest were
purchased long after 1953, i.e. in 1961, 1965 and 1967.
Hence, their purchase had no relation to the sale of Survey
No. 71 in 1953, again assuming that it was an ancestral
property. It is for these reasons, according to them, that
the suit properties except the two houses which were admit-
tedly the ancestral properties were not the joint family
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5
properties in which the plaintiff could claim his share.
4. The relevant issues were framed including the issue
as to whether defendants proved that the suit properties
were self-acquired and plaintiff had no share in it. The
Trial Court answered the said issue in favour of the plain-
tiff and decreed the suit against the defendants. Against
the said decision, the defendants appealed and the First
439
Appellate Court after reappreciating the evidence and point-
ing out the infirmities in the conclusions arrived at by the
Trial Court, dismissed the suit except to the extent of the
plaintiff’s share in the two ancestral houses. It may be
mentioned here that although Ramchandra, defendant No. 1
died during the pendency of the suit, he had willed out his
properties in favour of the defendants and, therefore, the
plaintiff had no share in the self-acquired properties of
Ramchandra which could have been granted to him otherwise.
5. The First Appellate Court held that the following
circumstances showed that the suit properties except the
ancestral houses were the self-acquired properties of Ram-
chandra. The first circumstance was that Survey No. 71 was
purchased in the name of Supadu which showed that in all
probability the property was purchased after the death of
Ramchandra’s father, Pandu. Secondly, since there was no
record to show that Pandu had any lands or was carrying on
any business, Survey No. 71 must have been purchased by
Ramchandra and Supadu with the help of their earnings. It
was not disputed and in fact it was admitted that Ramchandra
was a skilled goldsmith and was carrying on business of
goldsmithery along with his brother, Supadu and was earning
sufficient income with the help of which he could purchase
the properties. Survey No. 71 further was sold in 1953
without obtaining the consent of the other members of the
family. Had it been the joint family property the vendee
would have insisted upon such consent.
6. The High Court interfered with these findings on
grounds which were not even made out by the plaintiff either
in the plaint or in his evidence and which were contrary to
the admissions of the plaintiff himself. The High Court held
that since the property had come to the share of Ramchandra
in general partition, it must be held that it was an ances-
tral property. The High Court further held that Survey No.
71 was yielding sufficient income with the help of which the
other properties would have been purchased and further the
goldsmithery business was an ancestral business and, there-
fore, the properties purchased with the help of such income
should also be held to be joint family properties.
It may be stated here that the learned counsel appearing
for the appellant-defendants wanted to produce before us
documents to show that in fact Survey No. 71 was purchased
in the year 1907 by Ramchandra and his brother Supadu after
the death of their father, Pandu in 1904, and that in the
Revenue records the property always
440
stood in the name of Supadu. We did not permit him to pro-
duce the said documents since no explanation whatsoever was
available as to why the documents were not produced before
the courts below. However, it was not disputed at any time
that the property had all along stood in the name of Supadu
and, therefore, the presumption drawn by the First Appellate
Court that this showed that in all probability the property
was purchased after the death of Pandu cannot be said to be
unreasonable. Secondly, there is no evidence brought on
record by the plaintiff with regard to the quantum of income
from Survey No; 71. In fact, the uncontroverted evidence on
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5
record shows that Ramchandra who had entered the witness box
had no implements and bullocks for cultivating the land and
the land was always cultivated with the help of the labour-
ers who brought their own implements and bullocks. This
shows that the family derived less than normal income from
the said land. Secondly, it was admitted by the plaintiff
that Ramchandra was a skilled goldsmith and was well-known
in the locality as such, and was doing his business as
goldsmith and earning sufficient income. It was not his case
further that the goldsmithery was the ancestral business.
However, the High Court ignoring the fact that it was not
the case of the plaintiff that goldsmithery was an ancestral
business and that it was not his case that the suit proper-
ties were purchased with the help of the income from the
said business held that it was so. What is further, the
plaintiff’s case was that the suit properties were purchased
with the income from Survey No. 71. Thus it is obvious that
the conclusions’ which were arrived at by the first Appel-
late Court were reasonable and legal besides being conclu-
sions of facts. There was, therefore, no question of law
involved in the second appeal. Yet the High Court chose to
interfere with the finding ignoring the mandatory provisions
of Section 100 of the Civil Procedure Code that unless it
was satisfied that the case involved a substantial question
of law it could not entertain it and that before it could
entertain it, the Court had to formulate such question.
7. We are, therefore, more than satisfied that the High
COurt has erred in law in interfering with the decree passed
by the First Appellate Court. We, therefore, allow the
appeal, set aside the decision of the High Court and restore
the decree passed by the First Appellate Court. Since the
parties belong to one family we pass no order as to costs.
G.N. Appeal al-
lowed.
441