CHANDRABHAN (DECEASED) THROUGH LRS. & ORS. versus SARASWATI & ORS. on 22 September 2022

1. Leave granted.

2. This appeal filed by the Original Plaintiff, Chandrabhan, (sincedeceased, represented by his legal representatives), is against a finaljudgment and order dated 11[th] January 2016 passed by the AurangabadCBench of the High Court of Judicature at Bombay, allowing SecondAppeal No. 45 of 1995 filed by the Respondents, reversing the judgmentand order dated 10[th] November 1994 passed by the Additional DistrictJudge, Beed, in Regular Civil Appeal No.361 of 1984 and dismissingRegular Civil Suit No. 198 of 1979 filed by the Original Plaintiff prayingDfor the relief of declaration of ownership and perpetual injunction inrespect of the suit property.

3. Sambhaji, grandfather of the Original Plaintiff, Chandrabhanhad two sons, Baliram and Rambhau. Baliram was the elder of the twosons of Sambhaji. The Original Defendant No.1 Yamunabai, was thewife of Baliram.E

4. Baliram and Yamunabai (Original Defendant No.1) werechildless, Rambhau, younger brother of Baliram however had two sons,Digamber and Chandrabhan (Original Plaintiff).

5. Since Baliram and Yamunabai were childless, Baliram decidedFto adopt his nephew, Chandrabhan (Original Plaintiff). Chandrabhan(Original Plaintiff) was Baliram’s younger brother Rambhau’s son, asnoted above. It is stated that Baliram and Rambhau had mutually agreedthat Baliram would adopt Rambhau’s son, Chandrabhan (OriginalPlaintiff).G6. In the plaint, it was pleaded that the Original Plaintiff,

G6. In the plaint, it was pleaded that the Original Plaintiff,Chandrabhan was adopted by his uncle Baliram, in accordance with therites and customs of the community, in a ceremony attended by relatives,neighbours and friends. According to the Appellants, the Original PlaintiffChandrabhan was about 14 years of age at the time of his adoption byhis paternal uncle Baliram, who became his adoptive father.H

7. Baliram died intestate, in 1951, about six months after he adoptedthe Original Plaintiff. After the death of his adoptive father Baliram, theOriginal Plaintiff Chandrabhan shifted to a nearby village, from wherehe managed the properties left by Baliram. The Original Defendant No.2Champabai is the first wife of the Original Plaintiff, Chandrabhan. In1979, the Original Defendant No. 1, Yamunabai, wife of Balirampurportedly gifted the suit properties to the Original Defendant No. 2Champabai, wife of the Original Plaintiff.

8. On 8[th] May 1979, the Original Plaintiff filed Regular Civil SuitNo. 198 of 1979, in the Court of the Civil Judge, Senior Division, at Beed,Maharashtra against the Original Defendant No.1 being Yamunabai,the wife of Baliram and the Original Defendant No.2 being Champabai,his own first wife praying for declaration of ownership of the suit properties,perpetual injunction and other reliefs. The Original Defendants filed theirwritten statements in the suit contending that the Original Plaintiff hadnot been adopted by Baliram.

9. The Respondent Nos. 1 to 4 being the Original Defendant Nos.3 to 6 in the suit, filed their written statement in the suit supporting thestand of the Original Defendant Nos. 1 and 2.

10. The Original Plaintiff examined himself as well as five otherwitnesses, including Prabhu Yogiraj Swami, the priest who conductedthe rituals at the time of adoption, to prove that he had been adopted byBaliram. The Original Plaintiff also examined Shahurao Tulsiram Dhasto prove that he had the possession and cultivation of the suit lands. TheRespondents, on the other hand, examined Original Defendant No.2,Champabai and several others to establish that the Original Plaintiffhad not been legally and/or validly adopted by Baliram.

11. The Civil Judge, Junior Division, Beed, Maharashtra beingthe Trial Court dismissed the Regular Civil Suit No. 198 of 1979, by ajudgment and order dated 31[st] July 1984.

12. On 5[th] November 1984, the Original Plaintiff filed an appealbeing Regular Civil Appeal No.361 of 1984 in the Court of the AdditionalDistrict Judge, Beed, Maharashtra being the First Appellate Court. By ajudgment and order dated 10[th] November 1994, the First Appellate Courtallowed the Regular Civil Appeal No.361 of 1984 and set aside thejudgment and order dated 31[st] July 1984 of the Trial Court wherebyRegular Civil Suit No.198 of 1979 had been dismissed.

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A13. The First Appellate Court, after considering the evidence onrecord, concluded that the Original Plaintiff had been adopted by Baliramand thus entitled to succeed the property of Baliram after his death.

14. The Respondent Nos.1 to 4, being the Original DefendantNos. 3 to 6, in the suit, who were purchasers pendente lite of the suit propertyBfiled a Second Appeal No.45 of 1995 in the High Court of Judicature atBombay (Aurangabad Bench). The Original Defendant No.1 and theOriginal Defendant No.2 did not challenge the order passed by the FirstAppellate Court.

15. The High Court admitted the Second Appeal, which was heardCat length and allowed by a judgment and order dated 11[th] January 2016,which is impugned in this appeal before us.

16. The High Court considered the following questions.

“(I) Whether the first appellate Court has committed error innot considering the circumstance that other transactions ofDsale made by the defendant No.1 in respect of threeagricultural lands like Survey Nos.86/1, 100/3 and 109/2which were left behind by Baliram are not challenged by theplaintiff in the suit?

(II) Whether the first appellate Court has committed error inEnot considering the circumstance that after the death ofBaliram name of defendant No.1 only was mutated in therevenue record as successor of Baliram and the name of theplaintiff was not entered as successor of Baliram?

(III) Whether the first appellate Court has committed error inFnot considering the circumstance that the cooperative creditsociety could not have given loan to the plaintiff on the landsleft behind by Baliram as plaintiff was not shown as owner inthe revenue record and further there is the circumstance thatit is defendant No.1 who had repaid the loan?

(IV) Whether the first appellate Court has committed error innot giving due weight to the circumstance like plaintiff neverused name of Baliram as his father anywhere and hecontinued to use the name of his natural father Rambhau?

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(V) Whether due to absence of specific pleadings with regardto particulars of adoption and due to inconsistencies in the H

evidence of the witnesses it can be said that there is sufficientevidence to prove the factum of adoption?”

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17. We find there were no questions of law before the High Court,not to speak of substantial questions of law.

18. Admittedly, evidence was adduced at the trial. The OriginalPlaintiff examined himself as witness and examined five other witnesses.The Original Plaintiff gave evidence of adoption. The second witnessTrivenibai, wife of Digamber, the brother of the Original Plaintiff,Chandrabhan stated that there was an adoption ceremony held at theresidence of Rambhau. She also stated that the Original PlaintiffChandrabhan had performed the last rites of Baliram as his adoptedson. The other witnesses also deposed that they had attended the ceremonyat which the Original Plaintiff Chandrabhan had been given in adoptionto Baliram. The Trial Court rejected the contention of the Plaintiff on theground of contradiction and inconsistencies in the evidence.

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19. The Trial Court also found that the performance of the essentialrequisites of adoption, such as giving in adoption and taking in adoptionhad not been established.

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20. The First Appellate Court re-analysed the evidence and foundthat some discrepancies and inconsistencies were natural since theadoption had taken place in 1950 and evidence was taken in 1984, about34 years later. Thereby, some inconsistencies were only natural.

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21. The finding of the First Appellate Court that the Original Plaintiff,Chandrabhan was the adopted son of Baliram was based on :-

(i) The evidence of Trivenibai (PW-2), wife of the OriginalPlaintiff, Chandrabhan’s elder brother Digambar, F

(ii) The evidence of the priest, Prabhu Yogiraj Swami whoconducted the ceremony of adoption. (PW-6).

(iii) The admission that PW-6 was the family priest whoperformed rituals of the community to which the partiesGbelonged.

(iv) Evidence that the Original Plaintiff, Chandrabhan had beenresiding in the house of Baliram.

(v) The Original Plaintiff Chandrabhan’s name shown asChandrabhan Baliram in registers and documents datingHback 1960-61.

A(vi)The fact that Champabai, the first wife of the OriginalPlaintiff was residing with Original Defendant No.1,Yamunabhai.

(vii) The properties of Rambhau were inherited by Digamberalone– the Original Plaintiff did not get any share in theBproperties.

(viii) Evidence of PW-7, Bansi Hajare who had been Secretaryof the Ghargaon society for the period from 1961 to 1963,mentioned that there was a crop loan account ofChandrabhan Baliram by Sl. No.35 in his register. TheCregister shows that Chandrabhan Baliram repaid loan ofRs.150/- by 31[st] July 1961.

22. The Original Plaintiff re-married one Shivganga whileChampabai the first wife continued to reside with the Original Plaintiffas stated in her evidence. Champabai had stated that the Original Plaintiff,DShivganga and her were residing together. The use of the middle name,which is the father’s name, as Baliram instead of Rambhau afterChandrabhan, gave rise to inference of adoption of Chandrabhan byBaliram.

23. It is well settled that a Second Appeal under Section 100 ofEthe Civil Procedure Code, 1908 (CPC) can only be entertained on asubstantial question of law. In H.P. Pyarejan v. Dasappa (Dead) byLRs. and Others[1], this Court held:- “16. In our opinion, therefore, the judgment of the High Courtsuffers from serious infirmities. It suffers from the vice ofFexercise of jurisdiction which did not vest in the High Courtunder the law. Under Section 100 of the Code (as amended in1976) the jurisdiction of the High Court to interfere with thejudgments of the courts below is confined to hearing onsubstantial questions of law. Interference with finding of factby the High Court is not warranted if it involvesGreappreciation of evidence (see Panchugopal Barua v. UmeshChandra Goswami [(1997) 4 SCC 713] and Kshitish ChandraPurkait v. Santosh Kumar Purkait [(1997) 5 SCC 438]). TheHigh Court has not even discussed any evidence. No basicfinding of fact recorded by the courts below has been reversed H1 (2006) 2 SCC 496

CHANDRABHAN (DECEASED) THROUGH LRS. & ORS. v.SARASWATI & ORS. [INDIRA BANERJEE, J.]

much less any reason assigned for taking a view contrary tothat taken by the courts below. The finding on the questionof readiness and willingness to perform the contract which isa mixed question of law and fact has been upset. It isstatutorily provided by Section 16(1)(c) of the Act that tosucceed in a suit for specific performance of a contract theplaintiff shall aver and prove that he has performed and hasalways been ready and willing to perform the essential termsof the contract which were to be performed by him other thanthe terms the performance of which has been prevented orwaived by the defendant.”

24. In Ram Prasad Rajak v. Nand Kumar & Bros. andAnother[2], this Court held that, “Once the proceeding in the High Courtis treated as a Second Appeal under Section 100 CPC, the restrictionsprescribed in the said Section would come into play. The High Courtcould and ought to have dealt with the matter as a Second Appeal andfound out whether a substantial question of law arose for consideration.Unless there was a substantial question of law, the High Court had nojurisdiction to entertain the Second Appeal and consider the merits.”

25. In Kshitish Chandra Purkait v. Santosh Kumar Purkaitand Others[3], this Court held that existence of substantial question oflaw was the sine qua non for the exercise of jurisdiction under Section100 of the CPC.

26. In Kshitish Chandra Purkait (supra), this Court held:-

“10. We would only add that (a) it is the duty cast upon theHigh Court to formulate the substantial question of lawinvolved in the case even at the initial stage; and (b) that in(exceptional) cases, at a later point of time, when the Courtexercises its jurisdiction under the proviso to sub-section (5)of Section 100 CPC in formulating the substantial questionof law, the opposite party should be put on notice thereonand should be given a fair or proper opportunity to meet thepoint. Proceeding to hear the appeal without formulating thesubstantial question of law involved in the appeal is illegaland is an abnegation or abdication of the duty cast on court; 2 (1998) 6 SCC 748

3 (1997) 5 SCC 438

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Aand even after the formulation of the substantial question oflaw, if a fair or proper opportunity is not afforded to theopposite side, it will amount to denial of natural justice. Theabove parameters within which the High Court has to exerciseits jurisdiction under Section 100 CPC should always be bornein mind. We are sorry to state that the above aspects areBseldom borne in mind in many cases and second appeals areentertained and/or disposed of, without conforming to theabove discipline.”

27. The guidelines to determine what is a substantial question oflaw within the meaning of Section 100 CPC has been laid down by thisCCourt in Sir Chunnilal V. Lal Mehta & Sons v. Century Spinning and Manufacturing Co. Ltd.[4]

28. In Sir Chunilal V. Mehta and Sons (supra), this Court agreedwith and approved a Full Bench judgment of the Madras High Court inRimmalapudi Subba Rao v. Noony Veeraju and Ors.[5]which laid downDthe principles for deciding when a question of law becomes a substantialquestion of law.

29. In Hero Vinoth v. Seshammal[6], this Court followed SirChunilal v. Mehta & Sons (supra) and other judgments and summarizedthe tests to find out whether a given set of questions of law were mereEquestions of law or substantial questions of law.

30. The relevant paragraphs of the judgment of this Court in HeroVinoth (supra) are set out herein below:

“21. The phrase “substantial question of law”, as occurringFin the amended Section 100 CPC is not defined in the Code.The word substantial, as qualifying “question of law”, meansof having substance, essential, real, of sound worth,important or considerable. It is to be understood as somethingin contradistinction with technical, of no substance orconsequence, or academic merely. However, it is clear thatGthe legislature has chosen not to qualify the scope of“substantial question of law” by suffixing the words “ofgeneral importance” as has been done in many other 4 AIR 1962 SC 1314

5 AIR 1951 Mad 969

H6 (2006) 5 SCC 545

provisions such as Section 109 of the Code or Article 133(1)(a)of the Constitution. The substantial question of law on whicha second appeal shall be heard need not necessarily be asubstantial question of law of general importance. In GuranDitta v. Ram Ditta 55IA 235 : AIR 1928 PC 172] the phrase“substantial question of law” as it was employed in the lastclause of the then existing Section 100 CPC (since omitted bythe Amendment Act, 1973) came up for consideration andtheir Lordships held that it did not mean a substantial questionof general importance but a substantial question of law whichwas involved in the case. In Sir Chunilal case [1962 Supp (3)SCR 549 : AIR 1962 SC 1314] the Constitution Bench expressedagreement with the following view taken by a Full Bench of theMadras High Court in Rimmalapudi Subba Rao v. NoonyVeeraju [AIR 1951 Mad 969 : (1951) 2 MLJ 222 (FB)] : (SirChunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314],SCR p. 557)

“[W]hen a question of law is fairly arguable, where thereis room for difference of opinion on it or where the Courtthought it necessary to deal with that question at somelength and discuss alternative views, then the questionwould be a substantial question of law. On the other handif the question was practically covered by the decision ofthe highest court or if the general principles to be appliedin determining the question are well settled and the onlyquestion was of applying those principles to the particularfact of the case it would not be a substantial question oflaw.”

31. The proper test for determining whether a question of lawraised in the case is substantial would be, whether it is of general publicimportance or whether it directly and substantially affects the rights ofthe parties and if so, whether it is either an open question in the sensethat it is not finally settled by this Court. If the question is settled by thehighest court or the general principles to be applied in determining thequestion are well settled and there is a mere question of applying thoseprinciples or the question raised is palpably absurd, the question wouldnot be a substantial question of law.

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A32. To be ‘substantial’, a question of law must be debatable, notpreviously settled by law of the land or a binding precedent, and musthave a material bearing on the decision of the case, if answered eitherway, insofar as the rights of the parties before it are concerned. To be aquestion of law “involving in the case” there must be first, a foundationfor it laid in the pleadings and the question should emerge from theBsustainable findings of fact arrived at by court of facts and it must benecessary to decide that question of law for a just and proper decision ofthe case. An entirely new point raised for the first time before the HighCourt is not a question involved in the case unless it goes to the root ofthe matter. It will, therefore, depend on the facts and circumstance ofCeach case whether a question of law is a substantial one and involvedin the case or not, the paramount overall consideration being the needfor striking a judicious balance between the indispensable obligation todo justice at all stages and impelling necessity of avoiding prolongation inthe life of any lis. (See Santosh Hazari v. Purushottam Tiwari[7]).

D33. The principles relating to Section 100 of the CPC relevant forthis case may be summarised thus:

(i) An inference of fact from the recitals or contents of a documentis a question of fact. But the legal effect of the terms of a documentis a question of law. Construction of a document involving theEapplication of any principle of law, is also a question of law.Therefore, when there is misconstruction of a document or wrongapplication of a principle of law in construing a document, it givesrise to a question of law.

(ii) The High Court should be satisfied that the case involves aFsubstantial question of law, and not a mere question of law. Aquestion of law having a material bearing on the decision of thecase (that is, a question, answer to which affects the rights ofparties to the suit) will be a substantial question of law, if it is notcovered by any specific provisions of law or settled legal principleemerging from binding precedents and involves a debatable legalGissue. A substantial question of law will also arise in a contrarysituation, where the legal position is clear, either on account ofexpress provisions of law or binding precedents, but the court belowhas decided the matter, either ignoring or acting contrary to suchlegal principle. In the second type of cases, the substantial question H7 (2001) 3 SCC 179

of law arises not because the law is still debatable, but becausethe decision rendered on a material question, violates the settledposition of law.

(iii) The general rule is that the High Court will not interfere withfindings of facts arrived at by the courts below. But it is not anabsolute rule. Some of the well-recognised exceptions are where(i) the courts below have ignored material evidence or acted on noevidence; (ii) the courts have drawn wrong inferences from provedfacts by applying the law erroneously; or (iii) the courts havewrongly cast the burden of proof. When we refer to “decisionbased on no evidence”, it not only refers to cases where there is atotal dearth of evidence, but also refers to any case, where theevidence, taken as a whole, is not reasonably capable of supportingthe finding.

34. In this case, it cannot be said that the First Appellate Courtacted on no evidence. The Respondents in their Second Appeal beforethe High Court did not advert to any material evidence that had beenignored by the First Appellate Court. The Respondents also could notshow that any wrong inference had been drawn by the First AppellateCourt from proved facts by applying the law erroneously.

35. In this case, as observed above, evidence had been adducedon behalf of the Original Plaintiff as well as the Defendants. The FirstAppellate Court analysed the evidence carefully and in effect found thatthe Trial Court had erred in its analysis of evidence and given undueimportance to discrepancies and inconsistencies, which were not reallymaterial, overlooking the time gap of 34 years that had elapsed since thedate of the adoption. There was no such infirmity in the reasoning of theFirst Appellate Court which called for interference.

36. Right of appeal is not automatic. Right of appeal is conferredby statute. When statute confers a limited right of appeal restricted onlyto cases which involve substantial questions of law, it is not open to thisCourt to sit in appeal over the factual findings arrived at by the FirstAppellate Court.

37. The questions raised in High Court, did not meet the tests laiddown by this Court for holding that the questions are substantial questionsof law. We are constrained to hold that there was no question of law, letalone any substantial question of law, involved in the Second Appeal.

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[2022] 7 S.C.R.

A38. The appeal is, for the reasons, as discussed above, allowed.The impugned judgment and order is set aside and the judgment andorder/decree of the First Appellate Court in Regular Civil Appeal No.361of 1984 is restored.

BBibhuti Bhushan Bose

(Assisted by : Shubhanshu Das, LCRA)

Appeal allowed.

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