TMI Blog2006 (4) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of law in numerous judgments, it is evident that the scope and ambit of Section 100 C.P.C. has not been properly appreciated and applied in a large number of cases. We are, once again making a serious endeavour to discern legislative intention, ambit and scope of interference under Section 100 C.P.C.. We plan to carry out this exercise by critically examining important judgments decided before and after 1976 amendment in the Section 100 C.P.C.. This effort is made with the hope that in future the High Courts would decide according to the scope of Section 100 C.P.C. and this Court may not be compelled to interfere with the judgments delivered under Section 100 C.P.C.. Brief factual background This appeal is directed against the judgment of the Punjab Haryana High Court dated 1.8.2003 passed in Civil Regular Second Appeal 885 of 1983. By this judgment the High Court has set aside the concurrent findings of facts of the Courts below. The High Court consequently cancelled the mutation of the property belonging to the deceased Chanan Singh in favour of his wife Bhagwan Kaur and directed that the property be mutated in favour of the heirs of the deceased Chanan Singh in accordan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the suit land on the basis of the Will dated 18.1.1969 executed by her husband in her favour. The defendant Bhagwan Kaur also alleged that she was the only one who all through stayed and looked after the deceased Chanan Singh during his life time. She further stated that Chanan Singh had got his all daughters married after spending huge amount of money in their marriages. She also alleged that the daughters of Chanan Singh never served him during his lifetime. In fact the plaintiffs had never even visited him. The deceased Chanan Singh had executed a valid Will in her favour out of his free will on 18.1.1969 because of the life long service rendered by her. She prayed that the suit filed by the plaintiffs be dismissed. The Trial Court, on the basis of the pleadings of the parties and documents on record, framed eleven issues. The plaintiffs produced five witnesses and the defendants produced three witnesses in support of their respective stands before the Trial Court. The plaintiffs had also examined K.C. Jaidka, Handwriting Expert. In the cross-examination he stated that the Will bears the thumb impression of the right hand of the deceased, but the usual practice is of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has had five daughters and all of them were married. He has further recited that he had spent huge amount in their marriages, even more than the share which the daughters could have got in the inheritance of the deceased Chanan Singh. It is also mentioned that his wife defendant Bhagwan Kaur alone used to reside with him and dutifully served her husband. Whereas, the plaintiffs Kaki Har Kaur never visited the deceased, Chanan Singh. According to the Trial Court, in this background, it has to be seen whether the deceased had in fact executed the Will out of his free will or not? It is mentioned that in the ordinary course when a person has no son and all his daughters are happily married, the normal anxiety is to ensure the future of his wife, particularly when she alone had stayed with him all his life and look after him till the last. The Trial Court did mention in the judgment that Amar Singh D.W.1 did not support the case of the defendant. He was declared hostile. The counsel for the defendants sought permission to cross- examine him. In the cross-examination it is clearly stated that Bhagwan Kaur used to take care of the deceased, Chanan Singh. He also stated that the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave already incurred expenditure on the marriages, Chhaks (presents given to the bride by her maternal uncles or grand parents) and Chhuchaks (articles given on the birth of daughter's child) ceremonies of my five daughters, more than the value of their share in the property. All of them are Abad (Happy) in their respective matrimonial houses. Now my wife Smt. Bhagwan Kaur takes care of me. I, having been pleased with her services, want to devolve my entire property upon my wife Smt. Bhagwan Kaur. When execution of the Will is fully proved then in order to ascertain the wishes of the testator we have to look to the text of the Will. The intention of the testator has to be discerned from the language used in the Will. In view of such clear and unambiguous language used in this Will perhaps, no other interpretation was possible. The Trial Court clearly arrived at a conclusion that the deceased Chanan Singh had executed the Will in favour of his wife, Bhagwan Kaur. Aggrieved by the order of the Subordinate Judge, Grade II, Barnala, the appellants filed an appeal before the learned Additional District Judge, Barnala. After hearing counsel for the parties, the learned Addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Court was fully justified in upholding the Will as a genuine and valid document and the mutation attested on its basis was unexceptionable. The learned Additional District Judge, by a comprehensive judgment, affirmed all the findings of the Trial Court and dismissed the appeal with costs. The appellants, aggrieved by the judgment of the Trial Court and the Appellate Court, preferred second appeal under Section 100 C.P.C. before the High Court of Punjab and Haryana. The learned Single Judge of the High Court set aside the concurrent findings of facts arrived at by the Courts below predominantly on the ground that, in the normal circumstances, a prudent man would have bequeathed the property in favour of his legal heirs. However, in the present case, the testator has disinherited the plaintiffs. The findings arrived at by the High Court are totally erroneous. The Court does not sit in appeal over the testator's decision. The Court's role is limited to examining whether the instrument propounded as the last Will of the deceased is or is not that by the testator and whether it is the product of the free and sound disposing mind. Amar Singh D.W.1, in the examination-in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00 C.P.C.. Cases decided prior to 1976 amendment both by the Privy Council and the Supreme Court dealing with the scope of Section 100 C.P.C. The Privy Council, in Luchman v. Puna [(1889) 16 Calcutta 753 (P.C.)], observed that a second appeal can lie only on one or the other grounds specified in the present section. The Privy Council, in another case Pratap Chunder v. Mohandranath [(1890) ILR 17 Calcutta 291 (P.C.)], the limitation as to the power of the court imposed by sections 100 and 101 in a second appeal ought to be attended to, and an appellant ought not to be allowed to question the finding of the first appellate court upon a matter of fact. In Durga Chowdharani v. Jawahar Singh (1891) 18 Cal 23 (PC), the Privy Council held that the High Court had no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross or inexcusable the error may seem to be. The clear declaration of law was made in the said judgment as early as in 1891. This judgment was followed in the case of Ramratan Shukul v. Mussumat Nandu (1892) 19 Cal 249 (252) (PC) and many others. The Court observed : It has now been conclusively settled that the third ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by courts of fact, but on such occasions it is necessary to remember that what is administered in courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid. It may be pertinent to mention that as early as in 1890 the Judicial Committee of the Privy Council stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross or inexcusable the error may seem to be and they added a note of warning that no Court in India has power to add, or enlarge, the grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be said was that the findings of fact by the courts below were wrong or grossly inexcusable but that by itself would not entitle the High Court to interfere in the absence of a clear error of law. In Kshitish Chandra Purkait v. Santosh Kumar Purkait [(1997) 5 SCC 438], a three judge Bench of this Court held: (a) that the High Court should be satisfied that the case involved a substantial question of law and not mere question of law; (b) reasons for permitting the plea to be raised should also be recorded; (c) it has the duty to formulate the substantial questions of law and to put the opposite party on notice and give fair and proper opportunity to meet the point. The Court also held that it is the duty cast upon the High Court to formulate substantial question of law involved in the case even at the initial stage. This Court had occasion to determine the same issue in Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor (1999) 2 SCC 471. The Court stated that the High Court can exercise its jurisdiction under Section 100 C.P.C. only on the basis of substantial questions of law which are to be framed at the time of admission of the second appeal and the second appeal has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of substantial question of law by suffixing the words of general importance as has been done in many other provisions such as Section 109 of the Code of Article 133(1) (a) of the Constitution. In Kamti Devi (Smt.) and Anr. v. Poshi Ram (2001) 5 SCC 311 the Court came to the conclusion that the finding thus reached by the first appellate court cannot be interfered with in a second appeal as no substantial question of law would have flowed out of such a finding. In Thiagarajan v. Sri Venugopalaswamy B. Koil [(2004) 5 SCC 762], this Court has held that the High Court in its jurisdiction under Section 100 C.P.C. was not justified in interfering with the findings of fact. The Court observed that to say the least the approach of the High Court was not proper. It is the obligation of the Courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interfering with the concurrent findings of fact arrived at by the Courts below. In the case of H. P. Pyarejan v. Dasappa [(2006) 2 SCC 496] delivered on 6.2.2006, this Court found serious infirmity in the judgment of the High Court. This Court observed that it suffers from the vice of exercise of jurisdiction which did not vest in the High Court. Under Section 100 of the Code (as amended in 1976) the jurisdiction of the Court to interfere with the judgments of the Courts below is confined to hearing of substantial questions of law. Interference with the finding of fact by the High Court is not warranted if it invokes reappreciation of evidence. This Court found that the impugned judgment of the High Court was vulnerable and needed to be set aside. Legislative Background in the 54th Report of the Law Commission of India submitted in 1973 The comprehensive 54th Report of the Law Commission of India submitted to the Government of India in 1973 gives historical background regarding ambit and scope of Section 100 C.P.C.. According to the said report, any rational system of administration of civil law should recognize that litigation in civil cases should have two hearings on fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... questions of law. It may be relevant to recall the statement of Douglas Payne on Appeals on Questions of Fact reported in (1958) Current Legal Problem 181. He observed that the real justification for appeals on questions of this sort is not so much that the law laid down by the appeal court is likely to be superior to that laid down by a lower court as that there should be a final rule laid down which binds all future courts and so facilitates the prediction of the law. In such a case the individual litigants are sacrificed, with some justification, on the altar of law-making and must find such consolation as they can in the monument of a leading case. Historical perspective The predecessors of the High Courts in their Civil appellate jurisdiction were the Sadar Divani Adalats. The right of appeal to the Sadar Divani Adalat was very wide initially, but came to be severely curtailed in the course of time. The Conwallis Scheme , for example, made provision for two appeals in every category of cases, irrespective of its value. By 1814, this was reduced to one appeal only. Only in cases of ₹ 5,000 or over, there could be two appeals; one to the Provincial Court of Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .C. only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as substantial question of law which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become third trial on facts or one more dice in the gamble . The effect of the amendment mainly, according to the amended section, was: (i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii) The substantial question of law to precisely state such question; (iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; (iv) Another part of the Section is that the appeal shall be hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uest. The learned Single Judge of the High Court has not even properly appreciated the context of the circumstances. The contents of the Will have to be appreciated in the context of his circumstances, and not vis-`-vis the rules for intestate succession. It is only for this limited purpose that the Court examines the nature of bequest. The Court does not substitute its own opinion for what was the testator's Will or intention as manifested from a reading of the written instrument. After all, a Will is meant to be an expression of his desire and therefore, may result in disinheritance of some and grant to another. In the instant case, wife of the testator Bhagwan Kaur alone had lived with the deceased and only she had looked after him throughout his life. The other daughters were all happily married a long time ago and in their weddings the testator had spent huge amount of money. In his own words, he had spent more than what they would have got in their respective shares out of testator's property. If a Will appears on the face of it to have been duly executed and attested in accordance with the requirements of the Statute, a presumption of due execution and attestat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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