TMI Blog2005 (3) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... dauthter, Ellammal. Sadaya Poosali died on 9.5.1962 leaving behind his widow and daughter respondent nos.1 and 2 respectively. Appellants are Manicka Poosali, appellant No.1(since deceased and now represented through his LRs., his wife Mahalakshmi, appellant No.3 and Ellammal, his sister and appellant No.2 herein. They would be referred to as the 'appellants' herein. Through a registered partition deed dated 19.07.1970 between Mottaya Poosali and his brothers, Plaint A Schedule item Nos.11 to 21 and 28 were allotted to Mottaya Poosali out of their joint family properties. Mottaya Poosali executed a settlement deed dated 22.03.1977 in favour of Manicka Poosali conveying his share in Plaint A Schedule item nos.11 to 14, 17 to 20 and 28 allotted to him in partition dated 19.07.1970. Further Mottaya Poosali executed a registered will dated 23.03.1977 bequeathing his share in Plaint A Schedule item nos.15, 16 and his self acquired properties item nos. 22 to 26 and 29 in favour of Manicka Poosali. Mottaya Poosali died on 01.11.1978. In 1980, respondents instituted original suit no.806/1980 against appellants for partition and separate possession of their share in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the same. That respondents cannot claim any share in Plaint B Schedule items and Plaint A Schedule item nos. 10 and 27 are not owned by family now and were wrongly claimed in Plaint. Trial Court on appraisal of evidence partly decreed the suit of respondents. Trial Court held that Plaint A Schedule item nos. 1 to 9 were self acquired properties of appellant nos.1 and 3 and Plaint A Schedule item nos. 22 to 26 29 were self acquired properties of Mottaya Poosali. That settlement deed dated 22.03.1977 and will dated 23.03.1977 executed by Mottaya Poosali in favour of Manicka Poosali were valid and genuine and respondents are not entitled to any share in properties included in both the deeds. That respondents were entitled to preliminary decree for partition and separate possession of 7/27 share only in Plaint A Schedule item nos.11 to 21 and 28 which were allotted to Mottaya Poosali vide partition dated 19.07.1970 and also to the extent of 7/27 share in Plaint B Schedule items. Being aggrieved, respondents preferred Appeal Suit no. 162/1983, wherein issue as to the right of respondents to claim share in Plaint A Schedule item nos. 1 to 9, 18, 22 to 26 and 29 was raised. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous circumstances and appellants failed to wipe off the clouds of suspicion, surrounding the will. Being aggrieved by the findings of High Court with respect to settlement deed, will and Plaint A Schedule item nos. 22 to 26 and 29, this appeal has been preferred by original defendants. Learned Counsel for appellants has put forth his two fold contentions before us in the following terms: 1) High Court has exceeded its jurisdiction while sitting as Second Appellate Court by reversing the concurrent finding of fact recorded by both the Courts below after reappraising the entire evidence and holding that Plaint A Schedule item nos. 22 to 26 and 29 were not the self acquired properties of Mottaya Poosali and were purchased by him out of joint family nucleus. 2) High Court has gone beyond the mandate of S. 100 Civil Procedure Code, 1908 by needlessly addressing the questions of genuineness and validity of settlement deed and will of Mottaya Poosali despite the fact that no substantial question of law, with respect to same, was framed either at the time of admission or at the time of hearing of the Second Appeal. Section 100 of the Code of Civil Procedure provides that the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt is satisfied that the case involved such additional questions after recording reasons for doing so. A reading of Section 100 makes it abundantly clear that if the appeal is entertained without framing the substantial question of law, then it would be illegal and would amount to failure or abdication of the duty cast on the court. In a number of judgments it has been held by this Court that the existence of the substantial question of law is the sine qua non for the exercise of jurisdiction under Section 100 of the Code of Civil Procedure. { Refer to Kshitish Chandra Purkait v. Santosh Kumar Purkait Ors. [(1997) 5 SCC 438], Panchugopal Barua v. Umesh Chandra Goswami [(1997) 4 SCC 413], Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [(1999) 3 SCC 722], Santosh Hazari v. Purushottam Tiwari (Deceased) By LRs. [(2001) 3 SCC 179], Thiagarajan Ors. v. Sri Venugopalaswamay B. Koil Ors. [(2004) 5 SCC 762]}. In Santosh Hazari's case (supra) a three Judge Bench of this court after examining the provision of Section 100 exhaustively has concluded that the scope of hearing of the second appeal by the High Court is circumscribed by the questions formulated by the High Court at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sali, Ayyaswamy Poosali and Ammasi Poosali took place in the year 1970. Had these properties been purchased with the funds of the Hindu Joint Family property, then the same would have formed part of the Joint Hindu Family consisting of Mottaya Poosali, Ayyaswamy Poosali and Ammasi Poosali. In the registered partition deed dated 19th July, 1970 between Mottaya Poosali, Ayyaswamy Poosali and Ammasi Poosali these properties were treated to be the self acquired properties of Mottaya Poosali and were not subjected to the partition. Mottaya Poosali in partition was allotted properties item nos.11 to 21 and 28 only. This clearly demonstrates that the properties item nos.22 to 26 and 29 were the self acquired properties of Mottaya Poosali and were treated by him as such throughout. Being the self acquired property, Mottaya Poosali had the absolute right to dispose them of in any manner he liked i.e. by way of sale, gift or will. The findings recorded by the High Court that these properties were acquired with the funds of Joint Hindu Family is factually incorrect and the finding recorded by the courts below on facts were correct and the High Court has clearly erred in reversing the same. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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