TMI Blog2005 (2) TMI 875X X X X Extracts X X X X X X X X Extracts X X X X ..... it was averred that the suit property belonged to one Veeramuthu Moopanar. He had two daughters viz. Sivamalai Ammal and Thayarammal. Veeramuthu Moopanar sold his entire property to his two daughters through a sale deed dated 1.7.1940 for ₹ 300/-. Veeramuthu Moopanar died and soon after his widowed daughter Sivamalai Ammal also died issueless. Property of Sivamalai Ammal came to the share of Thayarammal. Thayarammal was married to one Sengamalai Moopanar as his second wife. Sengamalai Moopanar died in the year 1973 and in 1976 Thayarammal also died issueless. Ganapathy Moopanar, son of the first wife of Sengamalai Moopanar, succeeded to the estate of Thayarammal by virtue of Section 15(1)(b) of the Hindu Succession Act, 1955 (for short 'the Act') being heir of her husband. Ganapathy Moopanar sold the property to the respondent temple on 25.5.1980. That appellant was obstructing and interfering in the peaceful enjoyment of the property by the respondent. It was prayed that the respondent be declared to be the owner being the vendee from the lawful owner and the appellant be injuncted from interfering with the possession and peaceful enjoyment of the suit property by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the Trial Court and dismissed the appeal holding that the respondent was not entitled to the declaration of title and permanent injunction as prayed for. It was held that the title in the suit property did not pass to Veeramuthu Moopanar and the sale deed executed by him in favour of his daughters on 1.7.1940 was sham and nominal. That the marriage between Thayarammal and Sengamalai Moopanar was dissolved under custom and the respondent had also failed to prove that Ganapathy Moopanar was the son of Sengamalai Moopanar. Since Ganapathy Moopanar was not the son of Sengamalai Moopanar, he could not inherit the estate of Thayarammal as the heir of the husband of Thayarammal under Section 15(1)(b) of the Act. In view of the findings that Thayarammal succeeded to the estate of her father by way of inheritance being the daughter and not as a vendee by way of sale from her father, by virtue of Section 15(2)(a) of the Act, in the absence of any direct heir, the property of Thayarammal devolved upon the heirs of her father i.e. the family members of the brother of her father. The family members of Muthuswamy Moopanar had the title and right over the suit property and the sale deeds exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -appreciation of evidence in the Second Appeal in exercise of its jurisdiction under Section 100 of the Code of Civil Procedure (hereinafter referred to as 'the Code'). According to him, the questions of law formulated by the High Court at the time of admission of the appeal did not arise either from the pleadings of the parties, evidence led or the findings recorded by the courts below. That the High Court after referring to the questions of law which had been formulated at the time of admission failed to determine any one of them. That the High Court erroneously assumed that once the questions of law have been framed then it gets the jurisdiction to decide the appeal on re- appreciation of evidence without determining the questions of law. Per contra, counsel for the respondent did not dispute the proposition of law that the jurisdiction of the High Court under Section 100 of the Code is limited to the substantial questions of law framed at the time of admission of the appeal or further substantial questions which the High Court can frame during the course of hearing of the appeal after recording reasons for the same. He could not seriously dispute the fact that the qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted ex-parte and the questions of law had been framed in his absence to argue that the case did not involve the questions of law framed. Proviso to sub-section (5) states that the questions of law framed at the time of admission would not take away or abridge the power of the court to frame any other substantial question of law which was not formulated earlier, if the court is satisfied that the case involved such additional questions after recording reasons for doing so. It is abundantly clear from the analysis of Section 100 that if the appeal is entertained without framing the substantial questions of law, then it would be illegal and would amount to failure or abdication of the duty cast on the court. The existence of substantial questions of law is the sine qua non for the exercise of jurisdiction under Section 100 of the Code. { 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] } A three Judge Bench of this Court in Santosh Hazari v. Purushottam Tiwari (Deceased) By LRs. [(2001) 3 SCC 179] after tracing the hist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which would constitute a substantial question of law, it was observed :- A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. 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 is 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anar, Ganapathy Moopanar could not succeed to the estate of Thayarammal being the heir of her husband under Section 15(1)(b) of the Act. That in the absence of any direct heir, the property of Thayarammal reverted back to the heirs of her father i.e. the family members of the brother of her father. The sale effected by Ganapathy Moopanar in favour of the respondent did not convey any title as Ganapathy Moopanar was not proved to be the owner of the property. The High Court on re-appreciation of evidence recorded a finding to the contrary and held that the marriage between Thayarammal and Sengamalai Moopanar had not been dissolved. It further held that Ganapathy Moopanar was the son of Sengamalai Moopanar from his previous wife. That the sale executed by Veeramuthu Moopanar dated 1.7.1940 in favour of his two daughters was not a nominal and sham transaction. That it conveyed a valid title of the suit property to his two daughters. As the daughters had not inherited the property but purchased the same from their father, they became the absolute owners of the same. Thayarammal had inherited the share of her sister after her death. As Thayarammal had died issueless and had a step-so ..... X X X X Extracts X X X X X X X X Extracts X X X X
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