This second appeal has been filed by the legal heirs of the 7th defendant-Kabeerdas, animadverting upon the judgement and decree 27.11.2008 passed by the learned Principal District Judge, Vellore, in A.S.No.4 of 2008, confirming the judgement and decree dated 11.9.2006 passed by the learned Subordinate Judge, Vellore, in I.A.No.416 of 1984 in O.S.No.92 of 1983. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court.
2. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this second appeal, would run thus:
(a) The first respondent/plaintiff filed the suit O.S.No.92 of 1983 as against as many as 12 defendants, seeking the following reliefs:
"(a) to declare the plaintiff's right to a moiety or whatever share to which she may be found entitled;
(b) to direct a division of the under mentioned properties by metes and bounds and allotting her share therein;
(c) to direct the defendants to deliver possession of the properties so allotted to her and in default directing such delivery through court;
(d) to direct the defendants to render a true and correct account of the assets and income of the family that have come into their hands."
After the preliminary decree passed in the said suit, the plaintiff filed the I.A.No.416 of 1984 seeking to pass a final decree by making the following prayer:
"to appoint a commissioner for suggesting modes of division of the 'A' and 'B' schedule properties and after considering his report pass a final decree allotting properties to my share and directing delivery thereof to me."
as against which, defendants 11 to 14 filed the counter and resisted the application.
(c) In fact the trial Court initially passed the ex-parte preliminary decree, and subsequently, on the basis of the final decree application filed by the plaintiff, passed the final decree in favour of the plaintiff, as against which, the legal heirs of the 7th defendant-Kabeerdas, namely, defendants 13 to 16, filed the A.S.No.4 of 2008, for nothing but to be dismissed by the first appellate Court, confirming the final decree of the trial Court.
(d) Being disconcerted and aggrieved by the said judgement and decree in A.S.No.4 of 2008, this second appeal has been focussed by the legal heirs of the 7th defendant-Kabeerdas on various grounds and also suggesting the following substantial questions of law, which are extracted here under:
i) Whether both the Courts rightly come to a conclusion that this appellants/7th defendant have no right of share in the suit schedule of property?
ii) Whether the trial Court rightly determined that the plaintiff entitled half of the share in the entire suit schedule of property?
iii) Whether both the Courts rightly come to a conclusion that the 7th defendant is not the son of Kannammal and Thiruvengadapillai?
iv) Whether the first appellate Judge rightly says that the illegitimate sons and daughters have no right of share in the suit schedule of property?
v) Whether the first appellate Court has gone into the entire records to determine that this appellants have no right of share in the suit schedule of property."
(extract as found in the memorandum of second appeal)
3. Heard the learned counsel appearing for the defendants 13 to 16/appellants as well as the learned counsel for the first respondent/plaintiff.
4. A poring over and perusal of the typed set of papers, including the certified copies of the judgements and decrees of both the Courts below, would exemplify and display that the first respondent/plaintiff filed the suit for partition; the preliminary decree was passed, granting half share to the plaintiff, recognising her as the only legal heir of deceased Thiruvengadapillai, and the remaining half share in favour of D1, D3, D4 and D5, recognising them as the legal heirs of Srinivasapillai; Thiruvengadapillai and Srinivasapillai happened to be the sons of the deceased Veerasamipillai and accordingly, their respective shares were divided and allotted as such. Subsequently, two final decree applications, one at the instance of the plaintiff and another by the defendants 1, 3, 4 and 5 were filed. At that time only the deceased Kabeerdas filed the application for setting aside the ex-parte preliminary decree, which was dismissed, as against which, C.M.A. was filed, which also was dismissed.
5. It is also a fact that Kannammal-D6 filed a separate suit as against the present appellants herein for declaring her status as the legitimate wife of Thiruvengadapillai. The LRs of Kabeerdas, namely, the appellants herein also, filed a separate suit. The suit of Kannammal was dismissed, as against which, she filed appeal and the same is pending. The suit filed by the legal heirs of Kabeerdas-the appellants herein for partition was also dismissed at the numbering stage itself, as against which, CRP was filed and the same was withdrawn as not maintainable and subsequently regular appeal was filed, which is also pending. To sum up, the original suit initiated by Kannammal-D6 for declaration of her right as the wife of Thiruvengadapillai and the original suit initiated by the LRs of Kabeerdas are all pending at the appellate stage now as against Sakkubai-the first respondent/plaintiff herein.
6. To complete the narration of happenings, I would set forth that in the meanwhile final decree was passed in the present proceedings relating to O.S.No.92 of 1983. As against such final decree only, the appeal was filed and the same was dismissed, as against which alone, the present second appeal has been filed.
7. The learned Senior counsel appearing for the appellants/legal heirs of D7-Kabeerdas would advance his argument to the effect that the matter might be remitted back to the trial Court, so that the injustice done in dividing the suit properties into two halves, without taking into consideration the good and bad soil and their respective valuation, could be rectified.
8. Whereas, the learned counsel for the defendants 1, 3, 4 and 5 would submit that the present appellants in the second appeal are having no right to file the second appeal at all for the simple reason that in the preliminary decree itself, the said Kabeerdas, was not allotted any share and the appellants in the second appeal claiming to be the LRs of Kabeerdas cannot over reach themselves or claim any right, which Kabeerdas himself could not assert before the lower Court and get any order in his favour; once preliminary decree is not in favour of Kabeerdas or in favour of the second appellants, they cannot claim any share in the final decree and consequently, they cannot raise their accusative finger as against the method and manner in which the properties were divided.
9. I could see considerable force in the submission made by the learned counsel for the defendants 1, 3, 4 and 5 for the reason that a person who is not allotted with any share or given with any right in the preliminary decree cannot claim any share in the final decree. On that ground itself, obviously, the second appeal has to be dismissed, as no question of law much less substantial question of law is involved.
10. At this juncture my mind is reminiscent and redolent of the following decisions of the Hon'ble Apex Court.
(i) (2006) 5 Supreme Court Cases 545 HERO VINOTH (MINOR) VS. SESHAMMAL,certain excerpts from its would run thus:-
"17. After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. . . . . . . ."
18. . . . . . It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. . . . . .
21. . . . . However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by sufficing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or
Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta the phrase "substantial question of law' as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sir Chunilal case the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju(Sir Chunilal case, SCR p.557) "When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law."
This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:(Sir Chunilal case, SCR pp.557-58) "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or call for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law his a substantial one and involved in the case or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.(See Santosh Hazari v. Purushottam Tiwari).
24. . . .
(iii) The general rule is that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
(ii) 2008(4) SCALE 300 KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER.
(iii) 2009-1-L.W.1 STATE BANK OF INDIA & OTHERS vs. S.N.GOYAL A plain reading of those precedents would reveal and demonstrate that under Section 100 of the Code of Civil Procedure, Second Appeal cannot be entertained, unless there is substantial question of law involved. Here as held supra, there is no substantial question of law is found exemplified.
11. However, the learned Senior counsel for the appellants would submit that the preliminary decree itself is a defective one for the reason that D6-Kannammal and her children were not at all recognised as LRs by the trial Court at the time of passing the preliminary decree and that too in view of having ignored the admission made by the plaintiff-Sakkubai. However, the learned counsel for the defendants concerned would set forth and put forth his argument to the effect that the Court earlier dismissed the applications and as such, they cannot agitate the same in the second appeal, which is preferred as against the final decree.
12. A bare perusal of the plaint would display and demonstrate that the plaintiff in the plaint never admitted that the appellants are entitled for any share. Paragraph 17 of the plaint is extracted hereunder:
"In the notice issued by the plaintiff before suit the fact of invalidity of the marriage of the 6th defendant with Thiruvengada Pillai and its legal consequences were overlooked. Hence a smaller share was claimed therein. This was the result of the ignorance or oversight of the Madras (Bigamy Prevention and Divorce) Act of 1949. She is really entitled to a half share in the properties as the only heir of late Thiruvengada Pillai."
Even if any decision has to be rendered under
Section 16 of the Hindu Succession Act, by keeping the children of the said Kabeerdas as his illegitimate children, it should be based on factual findings. It is not as though out of oversight, the lower Court simply ignored the shares of the appellants herein.
13. Hence, I am of the considered opinion that in the second appeal, all of a sudden, for the first time this Court cannot be called upon to consider the entitlement of the second appellants, by virtually reopening the preliminary decree passed by the trial Court.
14. The learned Senior counsel's contention that the very division of the property in the final decree into two halves is most inequitable, as the plaintiff colluded with the other defendants, namely, defendants 1, 3, 4 and 5 and trying to deprive the right of the appellants herein in the pending suits filed by them, cannot be countenanced in this second appeal for the very same reasons adverted to supra in my discussion.
15. I am of the considered opinion that this Court, in the second appeal cannot interfere with the final decree, as it is quite obvious and axiomatic that the appellants who were not allotted any share in the preliminary decree are having no locus standi to question the alleged inequitablity involved in dividing the suit properties into two halves.
16. In the result, the second appeal is dismissed, as I could see no question of law much less substantial question of law involved in the matter. No costs. Consequently, connected miscellaneous petition is dismissed.
17. The learned counsel for the appellants would submit that the appellants may be given the liberty to work out their remedy in the pending first appeals which emerged in connection with two other suits, for which, the learned counsel for the defendants would submit that as per law they have to prosecute the pending appeals. It is for the Court, which is seized of the appeals, to consider on merits the pending appeals.