HARDIAL SINGH versus BALBIR KAUR & ANR. on 10 March 2022

Issues

(1) Respondent Nos. 1 and 2, who are plaintiffs, filed the suitGseeking declaration of title and prohibitory injunction. The first defendantwas the mother-in-law of the first plaintiff and the paternal grandmotherof the second plaintiff. The appellant is the brother-in-law of the firstplaintiff 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 andthe father of the second plaintiff, passed away on 21.04.1998. The casewas set-up against the mutation which was allegedly illegally carried outand as a result of which, in regard to the 1/3 right, the name of thedefendants were entered.

The case of the plaintiffs is that Sucha Singh has left behind a willdated 19.04.1998 before he died on 21.04.1998 which was registered on18.06.1998. Under the will, the plaintiffs were bequeathed all his rights.The appellant and the other defendants contested the suit and contendedthat the will dated 19.4.1998 was forged. It was their case that sinceSucha Singh died intestate, the plaintiffs and the mother of Sucha Singhbeing Class I heirs inherited 1/3 right each. On the strength of the saidsuccession, the mother executed a will dated 16.07.1998 (D1) in favourof her two other sons of whom the appellant is one. The matter went totrial. The trial Court decreed the suit. The trial Court found that plaintiffssucceeded and declared them the owners in view of will dated 19.04.1998.

(3) The defendants appealed. In the first appeal, the appellateCourt reversed the decree of the trial Court. The appellate Court onappreciation of the evidence has found that there were suspiciouscircumstances surrounding the will dated 19.04.1998. It was inter aliafound that the mother of Sucha Singh was living with him and there wasnothing to indicate as to why he would exclude his own mother. It wasfurther found that there were certain other circumstances including theregistration of the will after the death of the testator which wereconsidered by the first appellate Court in concluding that the will dated19.04.1998 could not be accepted as genuine. It was also found that D1will was valid. On the strength of the appreciation of the evidence thefist appellate Court set aside the judgment of the trial Court and themother 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 toinvoke Section 100 of the Code of Civil Procedure, 1908. It is in the saidsecond appeal that the judgment which is impugned before us came tobe passed.

The High Court in the impugned judgment has restored the decreeof the trial Court. In the course of the judgment, the High Court hasproceeded to find that the trial Court was right in finding that the willdated 19.04.1998 could be acted upon.

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A(5) We have heard Mr. Rakesh K. Khanna, learned senior counselappearing for the appellant and Mr. Partha Sil, learned counsel appearingfor 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 substantialBquestions of law were not framed and without that the second appealhas been allowed by the High Court. It was on this premise that thisCourt issued notice. Mr.Rakesh K. Khanna, learned senior counsel,would, in fact, point out that this Court had already taken a view regardingthe provisions of law applicable as regards the High Court of Punjab andHaryana in a second appeal in the decision reported in PankajakshiC(Dead) Through Legal Representatives and Others v. Chandrikaand Others (2016) 6 SCC 157. This judgment was rendered on25.02.2016. In fact, learned senior counsel would point out that at thetime when notice was issued by this Court noticing that substantialquestion of law was not framed, the judgment in Pankajakshi (Dead)Through Legal Representatives and Others (supra) had not beenDreported. This Court in Pankajakshi (Dead) Through LegalRepresentatives and Others (supra) which is, in fact, a ConstitutionBench judgment has found that as far as Punjab and Haryana HighCourt is concerned, in a second appeal, the law which would be applicablewould be Section 41 of Punjab Courts Act, 1918. Therein, this CourtEinter alia held as follows:

“The judgment in Kulwant Kaur case [Kulwant Kaur v. GurdialSingh Mann, (2001) 4 SCC 262] raised a question which aroseon an application of Section 41 of the Punjab Courts Act, 1918.This section was couched in language similar to Section 100 ofthe Code of Civil Procedure as it existed before the Code of CivilFProcedure (Amendment) Act, 1976, which amended Section 100to make it more restrictive so that a second appeal could only befiled if there was a substantial question of law involved in thematter.”

(6) This Court took the view that it is Section 41 of the PunjabGCourts Act, 1918, which would continue to govern the fate of a secondappeal in the Punjab High Court. Thus, on the one hand, as far as inPunjab and Haryana is concerned, in a second appeal, the Court neednot frame substantial questions of law in a second appeal, that is differentfrom saying that it can exercise its jurisdiction de hors the boundaries ofHits powers located in Section 41 of the Punjab Courts Act, 1918.

(7) Considering the effect of Pankajakshi (Dead) Through LegalRepresentatives and Others (supra), this Court has in Randhir Kaurv. Prithvi Pal Singh and Others (2019) 17 SCC 71 inter alia, held asfollows:

“15. A perusal of the aforesaid judgments would show that thejurisdiction in second appeal is not to interfere with the findings offact on the ground that findings are erroneous, however, gross orinexcusable the error may seem to be. The findings of fact willalso include the findings on the basis of documentary evidence.The jurisdiction to interfere in the second appeal is only wherethere is an error in law or procedure and not merely an error on aquestion of fact.

16. In view of the above, we find that the High Court could notinterfere with the findings of fact recorded after appreciation ofevidence merely because the High Court thought that anotherview would be a better view. The learned first appellate court hasconsidered the absence of clause in the first power of attorney topurchase land on behalf of the plaintiff; the fact that the plaintiffhas 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 ofthe jurisdiction which is available to the High Court of Punjab and Haryanain the matter of the second appeal has explained as follows:

“20. It is thus evident, therefore, that mere findings of fact cannotbe interfered with in exercise of second appellate jurisdiction giventhe three limbs of jurisdiction available under Section 41 of thePunjab Courts Act. Findings of fact which are unreasonable, orwhich are rendered by overlooking the record, therefore, per sedo not appear to fall within the scope of second appellate reviewby the High Court. In these circumstances, the High Court’sfindings - which are based entirely on the reappreciation of therecord - and consequent interference with the concurrent findingsof the lower courts, cannot be upheld.”

(9) A perusal of the impugned judgment which was, in fact, renderedon 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 A

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ACourt considered it on the first occasion, namely, that the learned Judgehas proceeded to deal with the second appeal even without formulatinga substantial question of law as would have been the requirement as itwas understood in law in the year 2013 in the absence of the judgment inPankajakshi (Dead) Through Legal Representatives and Others(supra). We would notice that the High Court has proceeded in the matterBwithout even carefully attending to the evidence which is available onrecord. It is another matter that in a second appeal jurisdiction of theCourt as understood by this Court is very narrow. We would think thatthe findings which have been rendered and the approach of the Courtwould make it incompatible with the power available to the Court withinCthe four walls of its jurisdiction in a second appeal as laid down by thisCourt.

(10) But then, the learned counsel for the respondent, would submitthat this Court may remit the matter back so that the Court may considerthe second appeal strictly within the ambit of the provision as applicableDto 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 setaside the impugned judgment. We remand the case back to the HighCourt. The High Court will consider the matter as early as possibleEkeeping in mind the fact that the suit is of the year 1998. We wouldrequest the High Court to consider taking up the second appeal on apriority basis. We make it, however, clear that we have not expressedany view on the merits of the contentions of either side. The appeal isallowed as above.

FParties will bear their respective costs.

Devika Gujral

Appeal allowed.

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