TMI Blog2008 (12) TMI 800X X X X Extracts X X X X X X X X Extracts X X X X ..... ty situated at Chikkathotulkere, Tumkur Taluk, District Tumkur in the year 1996. Defendants-Respondents, inter alia, in their written statements denied Revanns Siddappa Chikkasiddappa Shetty Dead and unmarried (Dead) (Dead) and issueless and disputed the said genealogical table. It is profitable to refer thereto : It is false to state that land bearing survey No.197/3 measures 11-22 guntas, schedule T.C. Nanjappa properties are not appropriate with the existing Virupakashappa (Original Defendantone. The plaintiff with a mala fide intention filed Plaintiff/Petitioner Dead this suit. Plaintiff has not got any kind of blood relationship with the defendants. The defendant's grand father was enjoying the properties since long days back in the year 1946 when the grand father Sarvamangalarevenue entries were changed was died the Kathayni into (Widow) (D.1)(a)/ defendant's father's name, D.1(b)/Present since 1956 the defendant Respondent Present is enjoying the Respondent No.2 entire schedule properties No.1 together with other properties as the absolute owner with title and possession. The defendant has sold piece of land for family maintenance. He has improved the said l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Channabasappa, Mallappa and Revenna, sons of Nanjappa? 2. Whether the First Appellate Court was justified in rejecting the application filed under Order 41 Rule 27 and also application for amendment of written statement setting up the plea of prior partition? However, the High Court, after hearing the counsel for the parties and at the time of dictating a judgment, sought to frame a new question of law which reads as under : Whether the Courts below are justified in holding that there exists a joint family and the suit schedule properties are joint family properties in the light of the admitted fact that the plaintiff and defendant belonged to 4th generation and the plaintiff has admitted in categorical terms in his evidence that there was a partition in the family 80 years back and in the absence of any material placed by the plaintiff to show either the existence of the joint family or that the schedule properties are joint family properties.? 8. So as to enable the appellant herein to make submissions on the said additional substantial question of law, an opportunity was sought to be granted. Appellant sought for eight days' time which, having been found to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not have been raised. 12. The Code of Civil Procedure was amended in the year 1976 by reason of Code of Civil Procedure (Amendment) Act, 1976. In terms of the said amendment, it is now essential for the High Court to formulate a substantial question of law. The judgments of the Trial Court and the First Appellate Court can be interfered with only upon formulation of a substantial question of law, if any, which has arisen for its consideration by the High Court. It, furthermore, should not ordinarily frame a substantial question of law at a subsequent stage without assigning any reason therefor and without giving a reasonable opportunity of hearing to the respondents. {See Nune Prasad Ors. v. Nune Ramakrishna [2008 (10) SCALE 523]; Panchugopal Barua Ors. v. Umesh Chandra Goswami Ors. [(1997) 4 SCC 713 paras 8 and 9]; and Kshitish Chandra Purkait v. Santosh Kumar Purkait Ors. [(1997) 5 SCC 438 paras 10 and 12]}. 13. The High Court, in this case, however, formulated a substantial question of law while dictating the judgment in open court. Before such a substantial question of law could be formulated, the parties should have been put to notice. They should have been g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a joint Hindu family. Hindus get a joint family status by birth, and the joint family property is only an adjunct of the joint family. XXX XXX XXX ' 213. Hindu coparcenary - A Hindu coparcenary is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property. These are the sons, grandsons and great-grandsons of the holder of the joint property for the time being, in other words, the three generations next to the holder in unbroken male descent. See ' 217. The above propositions must be read in the light of what has been stated in the note at the top of this chapter. To understand the formation of a coparcenary, it is important to note the distinction between ancestral property and separate property. Property inherited by a Hindu from his father, father's father or father's fathers' father, is ancestral property. Property inherited by him from other relations is his separate property. The essential feature of ancestral property is that if the person inheriting it has sons, grandsons or great-grandsons, they become joint owner's coparceners with him. They become enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, the one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence. It was furthermore held : 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 nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the said property had been purchased from the said nucleus and that the burden to prove such a situation lay on the party, who so asserted it. The ratio of K.V. Narayanaswami Iyer case2 is thus clearly applicable to the facts of the case. We are therefore in full agreement with the High Court on this aspect as well. From the above, it would be evident that the High Court has not made a simpliciter reappraisal of the evidence to arrive at conclusions different from those of the courts below, but has corrected an error as to the onus of proof on the existence or otherwise of a joint Hindu family property. 18. The instant case does not come within the purview of the aforementioned dicta. The High Court did not deal with the substantial questions of law formulated at the time of admission at all. We, therefore, are of the opinion that the impugned judgment cannot be sustained. It is set aside accordingly and the matter is remitted to the High Court for consideration of the matter afresh. In the event, the High Court opines that any substantial question of law should be framed suo motu or at the instance of the appellant before it, viz., respondent herein, it shall give an opportu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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