Ajay Kumar Jaiswal And 2 Others vs Sanjay Kumar Jaiswal And 3 Others
2018 Latest Caselaw 1702 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 12
 
Case :- SECOND APPEAL No. - 725 of 2018
 
Appellant :- Ajay Kumar Jaiswal and 2 Others
 
Respondent :- Sanjay Kumar Jaiswal and 3 Others
 
Counsel for Appellants :- Rajesh Kumar Srivastava
 
Counsel for Respondent :- Hari Prasad Pandey
 

 
Hon'ble Mrs. Vijay Lakshmi,J.

Heard learned counsel for the appellants and learned counsel for the respondents on the point of admission. Perused the record.

The present second appeal is preferred against the judgment and decree dated 26.05.2018 passed by learned Additional District Judge, Court No. 14, Allahabad in Civil Appeal No. 13 of 2014 (Sanjay Kumar Jaiswal and 2 others Vs. Ajai Kumar Jaiswal and 3 others) arising out of judgment and decree dated 19.12.2013 passed in Original Suit No. 23 of 2009 (Sanjay Kumar Jaiswal and others Vs. Ajai Kumar Jaiswal and others). The learned trial court had dismissed the suit filed by plaintiff/ respondent Sanjay Kumar Jaiswal. The learned lower appellate court partly allowed the appeal filed by him against which the defendant- appellant Ajay Kumar has filed this appeal.

Some background facts, in brief, are that the respondent no. 1 in this appeal namely Sanjay Kumar Jaiswal filed Original Suit No. 23 of 2009 against his younger brother Sri Ajay Kumar Jaiswal and his two minor sons through their mother Smt. Pammy Jaiswal seeking cancellation of the Will deed executed by their father late Shree Nath Jaiswal in favour of two minor sons of Ajay Kumar Jaiswal. Learned counsel for both the parties adduced the evidence in support of their respective claims. The learned trial court framed six issues out of which the relevant issue was issue no. 1 to the effect that whether the Will dated 30.6.2007 is void and nullity in the eyes of law ? The learned trial court decided issue no. 1 in negative in favour of defendants (appellants in the present appeal namely Ajay Kumar Jaiswal and his two minor sons) thereby holding the Will as valid and dismissed the suit.

Being aggrieved, the plaintiff (respondent in the present second appeal namely Sanjay Kumar Jaiswal) filed Civil Appeal No. 13 of 2014. The lower appellate court on the basis of the pleadings of both the parties framed following points for determination :-

1. Whether Shree Nath Jaiswal who is the executor of disputed Will was the sole owner of the disputed house entitling him to transfer the house by disputed will ?

2. Whether Shree Nath Jaiswal was mentally fit to execute the Will at the time of its execution ?

3. Whether the Will was executed without any fear, pressure or coercion ?

After hearing both the parties and having considered the evidence led by them, the learned lower appellate court found that late Shree Nath Jaiswal, the executor of Will had five children including two sons namely Sanjay Kumar Jaiswal and Ajay Kumar Jaiswal and 3 daughters namely Aradhna, Kalpana and Sadhna. The house in question is their ancestral property and not the self acquired property of Sri Nath Jaiswal, therefore, each member of the family being a member of Hindu Undivided family, had equal share in the ancestral/ coparcenary property. After the amendment in Hindu Succession Act in the year 2005, the 3 daughters of Sree Nath Jaiswal being the coparcener also had equal right in the ancestral property. Under these circumstances, when all the five children had equal shares in the disputed property since their birth, Late Shree Nath Jaiswal was not entitled to bequeath the house in favour of two sons of defendant Ajay Kumar only (appellant nos. 2 and 3 in the present appeal) and Shree Nath Jaiswal was entitled to bequeath only his share in the ancestral house.

On the basis of the aforesaid finding, the learned lower appellate court partly allowed the appeal filed by Sanjay Kumar Jaiswal and except in respect of his own share in the disputed house, it cancelled the Will executed by Shree Nath Jaiswal in respect of shares of all other members of family.

Having heard the arguments advanced from both sides, this couryt is of the considered view, that there is no illegality in the conclusion arrived a by the learned lower appellate court. The well known legal maxim is "nemo dat quod non habet" meaning thereby that no one can transfer a better title than he himself has. Therefore, the executor of Will, not being the owner of the entire house, could not have transferred it by means of Will except to the extent of his own share and the learned lower appellate court rightly cancelled the Will in respect of shares of all other coparceners.

Learned counsel for the appellant has vehemently argued that in absence of any partition, the shares of all the family members could not be ascertained, therefore, the execution of impugned decree is not possible.

The aforesaid argument advanced by learned counsel for the appellant has no force. No relief of partition was sought by any of the parties either before the trial court or before the lower appellate court. The original suit was not a suit for partition but it was a suit for cancellation of disputed Will, therefore, the courts below were not required to ascertain the shares of all the parties.

There does not appear any illegality or irregularity in the aforesaid finding recorded passed by the lower appellate court, requiring any interference by this Court.

In the memo of appeal the following substantial questions of law have been framed by learned counsel for the appellant in the memo of second appeal :-

1. Whether learned appellate court was justified while entertaining the appeal and passing impugned judgment and decree which was not sustainable in eye of law in absence of proper relief as claimed by plaintiff?

2. Whether learned appellate court judgment and decree dated 26.5.2018 can be executed in absence of due partition of the disputed house?

3. Whether the relief claimed by plaintiff through original suit was sustainable in eye of law or not?

In the facts and circumstances of the case as discussed above and in wake of the well settled legal position, this Court is of the considered view that none of the aforesaid questions framed by learned counsel for the appellant, can be termed as "substantial questions of law".

The term "substantial question of law" has been interpreted by Hon'ble Supreme Court in a catena of judgments.

In State Bank of India and others Vs. S.N. Goyal; (2008) 8 SCC 92 the Hon'ble Supreme Court has held as under :-

"Second appeals would lie in cases which involve substantial questions of law. The word 'substantial' prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. 'Substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. In the context of section 100 CPC, any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing in the final outcome, will not be a substantial question of law. Where there is a clear and settled enunciation on a question of law, by this Court or by the High Court concerned, it cannot be said that the case involves a substantial question of law."

In the above cited case, the Hon'ble Supreme Court has also laid down some guidelines in respect of Second Appeal, which are quoted below:-

(a) The appellant should set out in the memorandum of appeal, the substantial questions of law involved in the appeal.

(b) The High Court should entertain the second appeal only if it is satisfied that the case involves a substantial question of law.

(c) While admitting or entertaining the second appeal, the High Court should formulate the substantial questions of law involved in the case.

(d) The second appeal shall be heard on the question/s of law so formulated and the respondent can submit at the hearing that the second appeal does not in fact involve any such questions of law. The Appellant cannot urge any other ground other than the substantial question of law without the leave of the court.

(e) The High Court is at liberty to reformulate the substantial questions of law or frame other substantial question of law, for reasons to be recorded and hear the parties or such reformulated or additional substantial questions of law.

It is a matter of concern that the scope of second appeals and as also the procedural aspects of second appeals are often ignored by the High Courts. Some of the oft-repeated errors are :

(a) Admitting a second appeal when it does not give rise to a substantial question of law.

(b) Admitting second appeals without formulating substantial question of law.

(c) Admitting second appeals by formulating a standard or mechanical question such as "whether on the facts and circumstances the judgment of the first appellate court calls for interference" as the substantial question of law.

(d) Failing to consider and formulate relevant and appropriate substantial question/s of law involved in the second appeal.

(e) Rejecting second appeals on the ground that the case does not involve any substantial question of law, when the case in fact involves substantial questions of law.

(f) Reformulating the substantial question of law after the conclusion of the hearing, while preparing the judgment, thereby denying an opportunity to the parties to make submissions on the reformulated substantial question of law.

(g) Deciding second appeals by re-appreciating evidence and interfering with findings of fact, ignoring the questions of law.

These lapses or technical errors lead to injustice and also give rise to avoidable further appeals to this court and remands by this court, thereby prolonging the period of litigation. Care should be taken to ensure that the cases not involving substantial questions of law are not entertained, and at the same time ensure that cases involving substantial questions of law are not rejected, as not involving substantial questions of law."

In Santosh Hazari Vs. Purushottam Tiwari, 2001(3) SCC 179 the Supreme Court considered what the phrase "substantial question of law" means as under:-

"The phrase is not defined in the Code. The word "substantial", as qualifying question of law, means-of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with-technical, of no substances or consequence, or academic merely."

A Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju, AIR 1951 Madras 969 considered this term and observed:

"when a question of law is fairly arguable, where there is room for difference of opinion or where the Court thought it necessary to deal with that question at some length and discuss an alternative view, then the question would be a substantial question of law. On the other hand, if the question was practically covered by decision of highest Court or if 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 case, it could not be a substantial question of law."

The above observations were affirmed and concurred by a Constitution Bench of Hon'ble Supreme Court in Sir Chunilal Mehta and Sons Ltd. Vs. The Century Spinning and Manufacturing Company Ltd. AIR 1962 SC 1314. Referring to above authorities, the Court in Santosh Hazari (supra) said:

"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, in so far 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 to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."

In view of the above cited legal position and in absence of any arguable substantial question of law, this appeal cannot be admitted.

Accordingly, the appeal is dismissed at the admission stage itself.

Order Date :- 25.7.2018

S.B./Pcl