C. DODDANARAYANA REDDY (DEAD) BY LRS. & ORS. versus C. JAYARAMA REDDY (DEAD) BY LRS. & ORS. on 14 February 2020

[2020] 1 S.C.R. 627

C. DODDANARAYANA REDDY (DEAD) BY LRS. & ORS.

v.

C. JAYARAMA REDDY (DEAD) BY LRS. & ORS.

(Civil Appeal No. 2165 of 2009)

FEBRUARY 14, 2020

[S. ABDUL NAZEER AND HEMANT GUPTA, JJ.]

Evidence Act, 1872: s.35 – Entry recording date of birth inschool register – Suit for partition and separate possession of sharein suit property based on claim that plaintiff was minor at the timeof death of his father in 1963 and that he continued as a member ofjoint Hindu family – To prove that he was minor, plaintiff producedschool leaving certificate – Trial court dismissed the suit acceptingthe case of defendant that in 1963, plaintiff demanded and wishedto separate himself from the joint Hindu family and executed arelease deed and severed all connections with joint Hindu familyafter receiving Rs.5000 for his share and relinquished all his rightsin the family and started staying at his in- laws house – Trial courtdid not rely on the date of birth of plaintiff mentioned in the schoolleaving certificate as the same was not put by the head master ofthe school nor the head master was examined to prove the contentsof the certificate – First appellate court upheld the order of trialcourt – High Court returned a finding that the plaintiff was minorand school leaving certificate was admissible as proof of age unders.35 of the Evidence Act and that since the plaintiff was minor onthe date when the release deed was executed in 1963, therefore,such deed was null and void – On appeal, held: The plaintiffproduced photocopy of the certificate on the records of appeal –Such certificate did not show that it was certified copy of a publicdocument as contemplated by s.76 of the Act – The person whorecorded the date of birth in the school register was also notexamined – No official from the school nor any person proved thesignatures of his father on such certificate – Apart from the self-serving statement, there was no evidence to show that the entry ofthe date of birth was made by the official in-charge, which alonewould make it admissible as evidence under s.35 of the EvidenceAct – The fact that plaintiff left village and stayed in the house of

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Ahis father-in-law was admitted by him when he appeared as PW- 1 –The onus was on the plaintiff to prove that he was a minor at thetime of execution of release deed which he failed to prove and,therefore, his suit was rightly dismissed by the trial court and thefirst appellate court – High Court committed a grave error ininterfering in the second appeal by merely taking a different viewBon the basis of same evidence on the basis of which both the trialcourt as well as first appellate court held that plaintiff has failed toprove his date of birth – Code of Civil Procedure, 1908 – s.100.

Evidence Act, 1872: s.76 – Public document – Held: s.76 ofthe Act gives a right to any person to demand a copy of a publicCdocument on payment of a fee together with the certificate writtenat the foot of such copy that it is a true copy of such document –Certified copies may be produced in proof of the contents of thepublic documents or parts of the public documents of which theypurport to be copies.D

Code of Civil Procedure, 1908: s.100 – Second appeal, scopeof interference – When any concurrent finding of fact is assailed insecond appeal, the appellant is entitled to point out that it is bad inlaw because it was recorded de hors the pleadings or it was basedon no evidence or it was based on misreading of materialEdocumentary evidence or it was recorded against any provision oflaw and lastly, the decision is one which no Judge acting judiciallycould reasonably have reached.

Allowing the appeal, the Court

Conclusion

Allowing the appeal, the Court

HELD: 1. The public document in terms of Section 74 ofFthe Evidence Act, 1872 includes the documents forming recordsof official bodies or tribunals. Section 76 of the said Act gives aright to any person to demand a copy of a public document onpayment of a fee together with the certificate written at the footof such copy that it is a true copy of such document. CertifiedGcopies may be produced in proof of the contents of the publicdocuments or parts of the public documents of which they purportto be copies. The plaintiff has produced photocopy of theCertificate on the records of this appeal. Such Certificate doesnot show that it is said to be a certified copy of a public documentas contemplated by Section 76 of the said Act. [Para 14]H[636-A-C]

C. DODDANARAYANA REDDY (DEAD) BY LRS. v.

C. JAYARAMA REDDY (DEAD) BY LRS.

2. School Leaving Certificate has been produced by theplaintiff and said to be signed by his father. The person who hasrecorded the date of birth in the School Register or the personwho proves the signature of his father in the School TransferCertificate has not been examined. No official from the Schoolnor any person has proved the signatures of his father on suchcertificate. Apart from the self-serving statement, there is noevidence to show that the entry of the date of birth was made bythe official in-charge, which alone would make it admissible asevidence under Section 35 of the Indian Evidence Act, 1872.However, the High Court has not found any other evidence toprove the truthfulness of the Certificate (Ex.P/1). [Para 15][636-D-E]

3. The High Court gravely erred in law in interfering in thefindings of fact recorded by the First Appellate Court. The plaintiffhas not challenged the release deed dated 15[th ]June, 1963 in theplaint on the ground that he was minor on the date of executionnor has he challenged on the ground of fraud, coercion or undueinfluence in execution of the said document. He has not pleadedso as is required to be pleaded in terms of Order VI Rule 4 Codeof Civil Procedure, 1908. The only pleading raised by the plaintiffis that he was a minor at the time of death of his father in 1963.He has not disclosed the date of death of his father in the plaint.The averment in the plaint is that his signatures have beenobtained on certain documents but he does not know the contentsthereof. There is a categorical plea in the written statement thatthe release deed was voluntarily executed and he walked awayfrom the family and stayed in the village of his father-in-law. Thefact that he left village and stayed in the house of his father-in-lawis admitted by him when he appeared as PW-1. [Paras 20, 21][639-B-D]

4. The plaintiff has taken benefit of consideration ofRs.5,000/- in pursuance of the release deed executed on 15[th]June, 1963. He has not challenged such release deed in the suitfiled but asserted to be member of joint Hindu family though asper his own evidence, he left joint family and started living in theVillage of his father-in-law. Thereafter, on the basis of the releasedeed, the other members of the family have transferred some of AB

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Athe property in favour of the other defendants; therefore, thesuit could not have been decreed when the two registereddocuments are not disputed by the plaintiff when confronted withsuch document in the cross-examination. [Para 22][639-E-F]

5. The onus was on the plaintiff to prove that he was a minorBat the time of execution of release deed. He failed to prove hisdate of birth as 8[th] April 1946, therefore, his suit is to be dismissedand was rightly dismissed by the trial court and the First AppellateCourt. The High Court in Second Appeal could not reappreciatethe evidence to take a different view that such document isproved. The illegality on account of alleged improperCconsideration does not give rise to a substantial question of law.[Para 23][639-G-H; 640-A]

6. The plaintiff has admitted the release deed and themarriage deed dated 15[th] June, 1963 and 29[th] June, 1964respectively having been executed by him when confronted withDin his cross examination. Both the documents are registereddocuments. On the basis of admission, both courts have returneda finding of fact that the plaintiff has not been able to prove dateof birth as 8[th] April, 1946. The High Court committed a graveerror in interfering in the second appeal by merely taking aEdifferent view on the basis of same evidence on the basis of whichboth the trial court as well as First Appellate Court held the plaintiffhas failed to prove his date of birth as 8[th] April 1946. The findingsof fact cannot be interfered with in a second appeal unless, thefindings are perverse. The High Court could not have interferedwith the findings of the fact. [Paras 24, 30][640-B-C; 643-E]F

Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan (1999) 6 SCC 343; Kondiba DagaduKadam v. Savitkibai Sopan Gujar & Ors. (1999) 3 SCC722 : [1999] 2 SCR 728; Santosh Hazari v. PurushottamTiwari (2001) 3 SCC 179 : [2001] 1 SCR 948; State ofGRajasthan v. Shiv Dayal (2019) 8 SCC 637 – relied on Wali Singh v. Sohan Singh AIR 1954 SC 263;Madhegowda (Dead) by LRs v. Ankegowda (Dead) by

C. DODDANARAYANA REDDY (DEAD) BY LRS. v.C. JAYARAMA REDDY (DEAD) BY LRS.

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LRs & Ors. (2002) 1 SCC 178 : [2001] 5 Suppl. SCR290 – held inapplicable.

Birad Mal Singhvi v. Anand Purohit (1988) Supp. SCC604 : [1988] Suppl. SCR 1; Nawab Sadiq Ali Khan &Ors. v. Jai Kishori & Ors. AIR 1928 Privy Council 152;Madan Mohan Singh & Ors. v. Rajni Kant & Anr. (2010)9 SCC 209 : [2010] 10 SCR 30; Ram Suresh Singh v.Prabhat Singh & Anr. (2009) 6 SCC 681 : [2009] 7SCR 451 – referred to.

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Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2165of 2009.

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From the Judgment and Order dated 14.06.2005 of the High Courtof Karnataka at Bangalore in Regular Second Appeal No. 282 of 1984.

S. S. Javali, Sr. Adv., P. R. Ramasesh, Abdul Azeem Kalebudde,Advs. for the Appellants.

Ms. Kiran Suri, Sr. Adv., S.J. Amith, Ms. Aishwarya Kumar, Dr.(Mrs.) Vipin Gupta, Venkita Subramaniam T.R., Likhi Chand Bonsle,Raghavendra S. Srivatsa, Advs. for the Respondents.

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632SUPREME COURT REPORTS

AThe Judgment of the Court was delivered by HEMANT GUPTA, J.

1. The defendants are in appeal aggrieved against an order passedby the High Court of Karnataka on 14[th] June, 2005 whereby the appealfiled by the plaintiff - C. Jayarama Reddy was allowed by setting asideBthe concurrent findings of facts recorded by two courts below. TheHigh Court answered the following substantial question of law:

“Whether the judgment and decree passed by the Courts belowsuffer from illegality on account of improper consideration ofEx.P1, i.e., school leaving certificate?”C

2. The plaintiff filed a suit for partition and separate possession of1/4[th] share in the Suit schedule property between himself and his threebrothers who are defendant Nos. 1, 2 and 3. Defendant Nos. 4 to 17 arethe persons who have purchased the property from the defendant Nos.1 to 3, the brothers. The plaintiff claimed that he was minor at the timeDof death of his father in the year 1963 and that he continued as a memberof the joint Hindu family in joint possession and enjoyment of the propertyof joint Hindu family. The plaintiff asserted that his signatures wereobtained on a few documents and that he was not aware of the contentsof the same nor did he execute any document thereof and understoodEwhat they were. Para 6 of the plaint reads thus:

“6. The plaintiff was kept in the dark about the family affairs andimplicitly obeyed the dictates of the other defendants and didwhatever he was asked to do. In fact, his signatures were takenon few documents and the plaintiff is not aware of the contentsFnor did he execute any document thereof or understands whatthey were.”

3. In the written statement filed, it was asserted that the plaintiffand defendant Nos. 1 to 3 and their father were members of joint Hindufamily till 15[th] June, 1963. The plaintiff demanded and wished to separatehimself from the joint Hindu family and executed a release deed on 15[th]GJune, 1963 and severed all the connections from the joint Hindu familywhen he received consideration of Rs.5,000/- for his share andrelinquished all his rights in the family. The plaintiff went away from thefamily after execution of the release deed and lived at Kempapura villagesince 1963 in his father-in-law’s house. It was denied that the plaintiffHwas minor at the time of death of his father. It was further pleaded that he married one Mamjamma d/o Nanjundappa of Kempapura on29[th] June, 1964.

4. On the basis of respective pleadings of the parties, the trialcourt framed as many as 16 issues. However, the relevant issues areIssue Nos. 1 and 2 at this stage, which read as under:

“1. Whether the plaintiff was a minor in 1963?

2. Whether the plaintiff separated from the joint family andexecuted a release deed dated 15.06.1963? If so, is the samevalid and is the plaintiff entitled to a share?”

5. The plaintiff in order to prove that he was minor producedSchool Leaving Certificate Ex. P/1 and also examined his brother PW.2C. Ramaswamy Reddy. The brother did not depose about the age of theplaintiff at the time of death of his father. The plaintiff has not producedany official from the school to prove that such certificate was from therecord of the school nor did he examine Head Master who has issuedsuch certificate. The plaintiff has also not examined his mother whowas available at the time when the evidence of the plaintiff was beingrecorded.

6. The learned trial court on Issue No. 1 found that the registeredrelease deed (Ex.D/1) dated 15[th] June, 1963 mentions the age of theplaintiff as about 22 years and subsequent to the execution of the releasedeed the plaintiff married Nanjamma on 29[th] June, 1964. The registeredmarriage deed Ex D-2, produced by the defendants, also proves that theage of the plaintiff was 24 years. The trial court did not rely on the dateof birth of the plaintiff mentioned in the School Leaving Certificate (Ex.P/1) as the same was not put by the Head Master of the School and theplaintiff did not examine the Head Master of the School to prove thecontents of the School Leaving Certificate. Thus, the learned trial courtheld that the plaintiff was not a minor at the time of execution of releasedeed in favour of his brothers and his father.

7. Learned trial court further held that the plaintiff has stated thatsome of his signatures were taken by his father on few documents andhe was not aware of the contents of those documents. The defendantshave proved the execution of the release deed by the plaintiff. The plaintiffadmitted that he executed a release deed on 15[th] June, 1963 and hasbeen residing with his father-in-law in Kempapura because a disputearose between his father and brothers and himself. He admitted that his A

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Afather died on 30[th] June, 1963 and that his brothers are residing separatelysince 1964. The trial court further held that the plaintiff has not pleadedany fraud or coercion in respect of release deed, thus, the Court came tothe conclusion that the release deed is valid and the plaintiff is not entitledto any share in the suit schedule properties.

B8. Aggrieved, plaintiff filed appeal before the learned First AppellateCourt. The learned First Appellate Court examined the questions as towhether on the date of execution of the release deed, the plaintiff was amajor or not and whether the release deed obtained by undue influenceor coercion etc. The Court held that the plaintiff had not pleaded at anytime that the release deed was obtained by fraud or coercion or that heChad not received any consideration thereunder. After discussing thestatements of witnesses and the documents produced by the parties, theFirst Appellate Court held that plaintiff was not a minor at the time ofexecution of release deed and, thus, dismissed the appeal of the plaintiffand that the order of dismissal of suit of the learned trial court wasDupheld.

9. In second appeal, the substantial question framed by the HighCourt was whether the judgment and decree passed by the courts belowsuffers from illegality on account of improper consideration of Ex.P/1,i.e., School Leaving Certificate. The High Court returned a finding thatEEx.P/1 is a transfer certificate and, thus, the plaintiff was minor andsuch certificate is admissible as proof of age under Section 35 of theEvidence Act. It was held that since the plaintiff was minor on the datewhen the release deed was executed on 15[th] June, 1963, therefore, suchdeed is null and void and incapable for raising a plea of estoppel. Thereliance was placed upon Nawab Sadiq Ali Khan & Ors. v. Jai KishoriF& Ors.[1]. After returning such finding, the High Court held that releasedeed is null and void and not binding, though the High Court returnedfinding that the plaintiff has received a consideration of Rs.5,000/- atthat time.

10. Learned counsel for the plaintiff relied upon the judgment ofGthis Court reported as Wali Singh v. Sohan Singh[2] wherein therelinquishment by one Kirpal Singh as a guardian of Wali Singh wasfound to be infructuous in law.

1 AIR 1928 Privy Council 152H2 AIR 1954 SC 263

11. We do not find any merit in the argument raised by learnedcounsel for the plaintiff relying upon judgment in Wali Singh. In WaliSingh, the plaintiff challenged the mutation said to have been madeduring his minority. The argument was that he inherited property on thedate of death of Kirpal Singh but before his adoption. The High Courtdismissed the suit filed by Wali Singh, interalia, for the reason that itwas incumbent upon Wali Singhto get the transfer set aside within threeyears of attaining majority notwithstanding that the parties may havecontinued in joint possession. It was on the statement of Kirpal Singh,his adopted father, that the mutation was sanctioned that Wali Singhdoes not have any concern with the property of his natural father. It wasfound that the statement made by Kirpal Singh was not based upon anytransfer or relinquishment as the guardian of Wali Singh whereas therelease by minor Wali Singh was infructuous in law. Therefore, the suitcannot be said to be barred by virtue of Article 44 of the Limitation Act.The said judgment has no applicability to the facts of the present case asit does not deal with the question of admissibility of a School LeavingCertificate which would determine the date of birth.

12. The argument of learned counsel for the plaintiff-respondentis that transfer certificate is a public document which was prepared onthe basis of a statement made by his father. Such document bears thesignature of his father as well. It is also contended that such document isprepared in the course of official duty of the staff of the GovernmentSchool, therefore, there is presumption of correctness in terms of Section35 of the Indian Evidence Act, 1872. Learned counsel for the plaintiffhas also referred to the judgment of this Court reported as Birad MalSinghvi v. Anand Purohit[3] wherein, the entry recording the Date ofBirth in the School Register is said to have a probative value. Referenceis also made to a judgment reported as Madan Mohan Singh & Ors. v.Rajni Kant & Anr.[4] to contend that the entry in the School Registercannot be brushed aside.

13. Learned counsel for the plaintiff also relied upon the judgmentof this Court reported as Madhegowda (Dead) by LRs v. Ankegowda(Dead) by LRs & Ors.[5] that filing of a suit is sufficient to repudiate thealleged relinquishment deed, which is a void document.

3 1988 (Supp.) SCC 604

4 (2010) 9 SCC 209

5 (2002) 1 SCC 178

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A14. We do not find any merit in the arguments raised. The publicdocument in terms of Section 74 of the Indian Evidence Act, 1872 includesthe documents forming records of official bodies or tribunals. Section 76of the said Act gives a right to any person to demand a copy of a publicdocument on payment of a fee together with the certificate written atthe foot of such copy that it is a true copy of such document. CertifiedBcopies may be produced in proof of the contents of the public documentsor parts of the public documents of which they purport to be copies.The plaintiff has produced photocopy of the Certificate (Ex.P/1) on therecords of this appeal. Such Certificate does not show that it is said tobe a certified copy of a public document as contemplated by Section 76Cof the said Act.

15. School Leaving Certificate has been produced by the plaintiffand said to be signed by his father. The person who has recorded thedate of birth in the School Register or the person who proves the signatureof his father in the School Transfer Certificate has not been examined.DNo official from the School nor any person has proved the signatures of his father on such certificate. Apart from the self-serving statement,there is no evidence to show that the entry of the date of birth was madeby the official in-charge, which alone would make it admissible asevidence under Section 35 of the Indian Evidence Act, 1872. However,the High Court has not found any other evidence to prove the truthfulnessEof the Certificate (Ex.P/1).

16. The reliance of the plaintiff on Madhegowda is again notrelevant to the issues arising in the present case. In the aforesaid case,the property of admittedly a minor was sold by sister of the minorpurportedly acting as a guardian. There was no dispute about the age ofFthe seller who was minor. The dispute in the present appeal revolvesaround the fact whether the plaintiff was a minor on the date the releasedeed was executed. The entire case is based upon School TransferCertificate (Ex.P/1) which does not prove the date of birth, recordedtherein, as reliable and trustworthy.G17. In

17. In Birad Mal Singhvi, the Date of Birth was sought to beproved by the Principal of the School. Though, the Principal could notproduce the admission form in original or its copy. It was held thereinthat the entries contained in the school’s register are relevant andadmissible but have no evidentiary value for the purpose of proof of dateHof birth of the candidates. A vital piece of evidence was missing as no evidence was placed before the court to show on whose information thedate of birth was recorded in the aforesaid document. It was held asunder:

“14. …..No doubt, Exs. 8. 9, 10, 11 and 12 are relevant andadmissible but these documents have no evidentiary value forpurpose of proof of date of birth of Hukmi Chand and SurajPrakash Joshi as the vital piece of evidence is missing, becauseno evidence was placed before the court to show on whoseinformation the date of birth of Hukmi Chand and the date of birthof Suraj Prakash Joshi were recorded in the aforesaid document.As already stated neither of the parents of the two candidates norany other person having special knowledge about their date ofbirth was examined by the respondent to prove the date of birthas mentioned in the aforesaid documents. Parents or near relationshaving special knowledge are the best persons to depose aboutthe date of birth of a person. If entry regarding date of birth in thescholar’s register is made on the information given by parents orsomeone having special knowledge of the fact, the same wouldhave probative value. The testimony of Anantram Sharma andKailash Chandra Taparia merely prove the documents but thecontents of those documents were not proved. The date of birthmentioned in the scholars’ register has no evidentiary value unlessthe person who made the entry or who gave the date of birth isexamined. The entry contained in the admission form or in thescholar’s register must be shown to be made on the basis ofinformation given by the parents or a person having specialknowledge about the date of birth of the person concerned….”

18. In Madan Mohan Singh, this Court held that the entries madein the official record may be admissible under Section 35 of the IndianEvidence Act, 1872 but the Court has a right to examine their probativevalue. The authenticity of the entries would depend on whose informationsuch entries stood recorded. The Court held as under:

“20. So far as the entries made in the official record by an officialor person authorised in performance of official duties areconcerned, they may be admissible under Section 35 of theEvidence Act but the court has a right to examine their probativevalue. The authenticity of the entries would depend on whoseinformation such entries stood recorded and what was his source AB

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Aof information. The entries in school register/school leavingcertificate require to be proved in accordance with law and thestandard of proof required in such cases remained the same as inany other civil or criminal cases.

21. For determining the age of a person, the best evidence is ofBhis/her parents, if it is supported by unimpeachable documents. Incase the date of birth depicted in the school register/certificatestands belied by the unimpeachable evidence of reliable personsand contemporaneous documents like the date of birth register ofthe Municipal Corporation, government hospital/nursing home, etc.,the entry in the school register is to be discarded. (Vide Brij MohanCSingh v. Priya Brat Narain Sinha [AIR 1965 SC 282], BiradMal Singhvi v. Anand Purohit [1988 Supp SCC 604 : AIR 1988SC 1796] , Vishnu v. State of Maharashtra [(2006) 1 SCC 283 :(2006) 1 SCC (Cri) 217] and Satpal Singh v. State of Haryana[(2010) 8 SCC 714 : JT (2010) 7 SC 500] .)

D22. If a person wants to rely on a particular date of birth andwants to press a document in service, he has to prove itsauthenticity in terms of Section 32(5) or Sections 50, 51, 59, 60and 61, etc. of the Evidence Act by examining the person havingspecial means of knowledge, authenticity of date, time, etc.Ementioned therein. (Vide Updesh Kumar v. Prithvi Singh [(2001)2 SCC 524 : 2001 SCC (Cri) 1300 : 2001 SCC (L&S) 1063] andState of Punjab v. Mohinder Singh [(2005) 3 SCC 702 : AIR2005 SC 1868].)”

19. In a judgment reported as Ram Suresh Singh v. PrabhatFSingh & Anr.[6], it has been held that entry in the School Register maynot be a public document and, thus, must be proved in accordance withlaw. The Court held as under:

“12. The condition laid down in Section 35 of the Evidence Actfor proving an entry pertaining to the age of a student in a schoolGadmission register is to be considered for the purpose ofdetermining the relevance thereof. But in this case, the saidcondition must be held to have been satisfied. An entry in a schoolregister may not be a public document and, thus, must be proved in accordance with law, as has been held by this Court in BiradMal Singhvi but in this case the said entry has been proved.”

20. We find that the High Court gravely erred in law in interferingin the findings of fact recorded by the First Appellate Court. The plaintiffhas not challenged the release deed dated 15[th] June, 1963 in the plaint onthe ground that he was minor on the date of execution nor has hechallenged on the ground of fraud, coercion or undue influence inexecution of the said document. He has not pleaded so as is required tobe pleaded in terms of Order VI Rule 4 Code of Civil Procedure, 1908[7].The only pleading raised by the plaintiff is that he was a minor at thetime of death of his father in 1963. He has not disclosed the date ofdeath of his father in the plaint. The averment in the plaint is that hissignatures have been obtained on certain documents but he does notknow the contents thereof.

21. There is a categorical plea in the written statement that therelease deed was voluntarily executed and he walked away from thefamily and stayed in the village of his father-in-law. The fact that he leftvillage and stayed in the house of his father-in-law is admitted by himwhen he appeared as PW-1. The High Court has also not disputed thata sum of Rs.5,000/- was received by him when the release deed wasexecuted on 15[th] June, 1963.

22. The plaintiff has taken benefit of consideration of Rs.5,000/-in pursuance of the release deed executed on 15[th] June, 1963. He hasnot challenged such release deed in the suit filed but asserted to bemember of joint Hindu family though as per his own evidence, he leftjoint family and started living in the Village of his father-in-law. Thereafter,on the basis of the release deed, the other members of the family havetransferred some of the property in favour of the other defendants;therefore, the suit could not have been decreed when the two registereddocuments (Ex.D/1 and Ex.D/2) are not disputed by the plaintiff whenconfronted with such document in the cross-examination.

23. We find that the onus was on the plaintiff to prove that he wasa minor at the time of execution of release deed. He failed to prove hisdate of birth as 8[th] April 1946, therefore, his suit is to be dismissed andwas rightly dismissed by the learned trial court and the First AppellateCourt. The High Court in Second Appeal could not reappreciate the 7 for short, ‘the Code’

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Aevidence to take a different view that such document is proved. Theillegality on account of alleged improper consideration does not give riseto a substantial question of law.

24. The plaintiff has admitted the release deed and the marriagedeed dated 15[th] June, 1963 and 29[th] June, 1964 respectively having beenBexecuted by him when confronted with in his cross examination. Boththe documents are registered documents. On the basis of admission,both courts have returned a finding of fact that the plaintiff has not beenable to prove date of birth as 8[th] April, 1946. We find that the High Courtcommitted a grave error in interfering in the second appeal by merelytaking a different view on the basis of same evidence on the basis ofCwhich both the trial court as well as First Appellate Court held the plaintiffhas failed to prove his date of birth as 8[th] April 1946.

25. The question as to whether a substantial question of law arises,has been a subject matter of interpretation by this Court. In the judgmentreported as Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-DUn-Niswan[8], it was held that findings of the fact could not have beeninterfered within the second appeal. This Court held as under:

“12. This Court had repeatedly held that the power of the HighCourt to interfere in second appeal under Section 100 CPC islimited solely to decide a substantial question of law, if at all theEsame arises in the case. It has deprecated the practice of theHigh Court routinely interfering in pure findings of fact reachedby the courts below without coming to the conclusion that the saidfinding of fact is either perverse or not based on material on record.

13. In Ramanuja Naidu v. V. Kanniah Naidu (1996 3 SCC 392),Fthis Court held:

“It is now well settled that concurrent findings of fact of trialcourt and first appellate court cannot be interfered with by theHigh Court in exercise of its jurisdiction under Section 100 ofCivil Procedure Code. The Single Judge of the High CourtGtotally misconceived his jurisdiction in deciding the secondappeal under Section 100 of the Code in the way he did.”14. In Navaneethammal v. Arjuna Chetty (1996 6 SCC 166),this Court held :

H8 (1999) 6 SCC 343

“Interference with the concurrent findings of the courtsbelow by the High Court under Section 100 CPC must beavoided unless warranted by compelling reasons. In anycase, the High Court is not expected to reappreciate theevidence just to replace the findings of the lower courts. …Even assuming that another view is possible on areappreciation of the same evidence, that should not havebeen done by the High Court as it cannot be said that theview taken by the first appellate court was based on nomaterial.”

15. And again in Secy., Taliparamba Education Society v.Moothedath Mallisseri Illath M.N. (1997 4 SCC 484), this Courtheld: (SCC p. 486, para 5)

“The High Court was grossly in error in trenching upon theappreciation of evidence under Section 100 CPC andrecording reverse finding of fact which is impermissible.”

26. In a judgment reported as Kondiba Dagadu Kadam v.Savitkibai Sopan Gujar & Ors.[9], this Court held that from a given setof circumstances if two inferences are possible then the one drawn bythe lower appellate court is binding on the High Court. In the said case,the First Appellate Court set aside the judgment of the trial court. It washeld that the High Court can interfere if the conclusion drawn by thelower court was erroneous being contrary to mandatory provisions oflaw applicable or if it is a settled position on the basis of a pronouncementmade by the court or based upon inadmissible evidence or arrived atwithout evidence. This Court held as under:

“5. It is not within the domain of the High Court to investigate thegrounds on which findings were arrived at, by the last court offact, being the first appellate court. It is true that the lower appellatecourt should not ordinarily reject witnesses accepted by the trialcourt in respect of credibility but even where it has rejected thewitnesses accepted by the trial court, the same is no ground forinterference in second appeal when it is found that the appellatecourt had given satisfactory reasons for doing so. In a case wherefrom a given set of circumstances two inferences are possible,one drawn by the lower appellate court is binding on the High AB

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ACourt in second appeal. Adopting any other approach is notpermissible. The High Court cannot substitute its opinion for theopinion of the first appellate court unless it is found that theconclusions drawn by the tower appellate court were erroneousbeing contrary to the mandatory provisions of law applicable ofits settled position on the basis of pronouncements made by theBapex Court, or was based upon in inadmissible evidence or arrivedat without evidence.”27. In another judgment reported as Santosh Hazari v.Purushottam Tiwari[10], this Court held as under:

C“14. A point of law which admits of no two opinions may be aproposition of law but cannot be a substantial question of law. Tobe substantial, a question of law must be debatable, not previouslysettled by law of the land or a binding precedent, and must have amaterial bearing on the decision of the case, if answered eitherway, in so far as the rights of the parties before it are concerned.DTo be a question of law involving in the case there must be first afoundation for it laid in the pleadings and the question shouldemerge from the sustainable findings of fact arrived at by courtof facts and it must be necessary to decide that question of lawfor a just and proper decision of the case. An entirely new pointEraised for the first time before the High Court is not a questioninvolved in the case unless it goes to the root of the matter. It will,therefore, depend on the facts and circumstance of each casewhether a question of law is a substantial one and involved in thecase, or not; the paramount overall consideration being the needfor striking a judicious balance between the indispensable obligationFto do justice at all stages and impelling necessity of avoidingprolongation in the life of any lis.”

28. Recently in another judgment reported as State of Rajasthanv. Shiv Dayal[11], it was held that a concurrent finding of the fact isbinding, unless it is pointed out that it was recorded dehors the pleadingsGor it was based on no evidence or based on misreading of the materialon records and documents. The Court held as under:

“When any concurrent finding of fact is assailed in second appeal,the appellant is entitled to point out that it is bad in law because it10 (2001) 3 SCC 179H11 (2019) 8 SCC 637

was recorded de hors the pleadings or it was based on no evidenceor it was based on misreading of material documentary evidenceor it was recorded against any provision of law and lastly, thedecision is one which no Judge acting judicially could reasonablyhave reached. (see observation made by learned Judge -VivianBose,J.- as His Lordship then was a Judge of the Nagpur HighCourt in Rajeshwar Vishwanath Mamidwar & Ors. vs. DashrathNarayan Chilwelkar & Ors., AIR 1943 Nagpur 117 - Para 43).”

29. The learned High Court has not satisfied the tests laid down inthe aforesaid judgements. Both the courts, the trial court and the learnedFirst Appellate Court, have examined the School Leaving Certificateand returned a finding that the date of birth does not stand proved fromsuch certificate. May be the High Court could have taken a differentview acting as a trial court but once, two courts have returned a findingwhich is not based upon any misreading of material documents, nor isrecorded against any provision of law, and neither can it be said that anyjudge acting judicially and reasonably could not have reached such afinding, then, the High Court cannot be said to have erred. Resultantly,no substantial question of law arose for consideration before the HighCourt.

30. Thus, we find that the High Court erred in law in interferingwith the finding of fact recorded by the trial court as affirmed by theFirst Appellate Court. The findings of fact cannot be interfered with in asecond appeal unless, the findings are perverse. The High Court couldnot have interfered with the findings of the fact.

31. In view of the aforesaid enunciation of law and the facts ofthe present case, we find that the High Court committed grave error inlaw in setting aside the concurrent findings of facts recorded by the FirstAppellate Court and the Trial Court. Consequently, the appeal is allowedand the suit is dismissed with no order as to cost.

Devika Gujral

Appeal allowed.

AB

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