Kerala High Court
Mariyam @ Beatrice, Rep. By Power Of ... vs Fr. Joseph Mattam (Died) on 7 February, 2024
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 7TH DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945
RSA NO. 62 OF 2024
AGAINST THE ORDER/JUDGMENT OS 213/2019 OF MUNSIFF COURT,
PALA
AS 8/2022 OF ASSISTANT SESSIONS COURT/SUB COURT, PALA
APPELLANT/S:
MARIYAM @ BEATRICE, REP. BY POWER OF ATTORNEY
HOLDER BOBY KURIAN, AGED 87 YEARS
MATTATHIL @VALYAPARAMBIL HOUSE, KEZHUVAMKULAM
P.O, PULIYANNOOR VILLAGE, MEENACHIL TALUK,
KOTTAYAM DISTRICT NOW RESIDING AT ST JOSEPH
CONVENT, ST. THOMAS HOSPITAL, ST THOMAS MOUNT
CHENNAI, REP. BY POWER OF ATTORNEY HOLDER BOBY
KURIAN, S/O C K. KURIAN AGED 40, CHERUVIL HOUSE,
KEZHUVAMKULAM P.O, PULIYANNOOR VILLAGE, PIN -
686584
BY ADVS.
C.S.BISSIMON
DENNY VARGHESE
RESPONDENT/S:
1 FR. JOSEPH MATTAM (DIED), MATTATHIL HOUSE ,
KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA,
PULIYANNOOR VILLAGE, PIN - 686584
2 MARYKUTTY CHACKO, AGED 89 YEARS
MATTATHIL HOUSE , KEZHUVAMKULAM P.O,
KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, PIN -
686584
3 ALVIN MATTATHIL, S/O SUNNY MATTATHIL @ SONY
MATTATHIL MATTATHIL @ VALYAPARAMBIL ,
KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA,
PULIYANNOOR VILLAGE NOW RESIDING AT GASSERGASSE
19/2/7/1050. VIENNA AUSTRIA EUROPE REPRESENTED BY
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R.S.A.No. 62 of 2024
NOHA THOMAS S/O THOMAS PULLATTU HOUSE
KADAVANTHARA P.O, ERNAKULAM VILLAGE, PIN - 682020
4 ANAND MATTATHIL
S/O SUNNY MATTATHIL @ SONY MATTATHIL MATTATHIL @
VALYAPARAMBIL , KEZHUVAMKULAM P.O, KEZHUVAMKULAM
KARA, PULIYANNOOR VILLAGE NOW RESIDING AT
GASSERGASSE 19/2/7/1050. VIENNA AUSTRIA EUROPE
REPRESENTED BY NOHA THOMAS S/O THOMAS PULLATTU
HOUSE KADAVANTHARA P.O, ERNAKULAM VILLAGE, PIN -
682020
5 ANJALY, D/O SUNNY MATTATHIL @ SONY MATTATHIL ,
MATTATHIL HOUSE , KEZHUVAMKULAM P.O,
KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE NOW
RESIDING AT GASSERGASSE 19/2/7/1050. VIENNA
AUSTRIA EUROPE REPRESENTED BY NOHA THOMAS S/O
THOMAS PULLATTU HOUSE KADAVANTHARA P.O ERNAKULAM
VILLAGE, PIN - 682020
6 SR. MARY SIVILLIA@ ALEY
D/O CHACKO, MATTATHIL HOUSE , KEZHUVAMKULAM P.O,
KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE,
MEENACHIL TALUK , KOTTAYAM DISTRICT, NOW RESIDING
AT ST. MARY'S CONVENT KADALOOR P O, TAMILNADU
STATE., PIN - 686584
7 CHACKO MATTAM , S/O MANI, MATTATHIL HOUSE,
KEZHUVAMKULM P.O, KEZHUVAMKULAM KARA PULIYANNOOR
VILLAGE, MEENACHIL TALUK KOTTAYAM DISTRICT., PIN
- 686584
8 ALEYAMMA JOY , W/O JOY, KUMPALAPPALLIL HOUSE,
MANAKKADAVU P.O, MANAKADAVU KARA UDAYAGIRI
VILLAGE TALIPPARAMBU TALUK KANNUR DISTRICT., PIN
- 670571
9 EMMANUEL @ OUSEPACHEN
S/O MANI, MATTATHIL HOUSE, KEZHUVAMKULAM KARA,
KEZHAUVAMKULAM PO, PULIYANNOOR VILLAGE, MEENACHIL
TALUK, KOTTAYAM DISTRICT., PIN - 686584
10 M.M. JOSE , S/O MANI MATTATHIL HOUSE, MUTHOLY
P.O, 686573 MUTHOLY KARA PULIYANNOOR VILLAGE
MEENACHIL TALUK, PIN - 686573
11 M.M. THOMAS , MATTATHIL HOUSE, MUTHOLY P.O,
MUTHOLY KARA PULIYANNOOR VILLAGE MEENACHIL TALUK,
PIN - 686573
12 SCARIA, S/O ULAHANNAN ANNIEKAMATTATHIL HOUSE,
PUNNATHARA WEST P.O, ETTUMANOOR VILLAGE, KOTTAYAM
TALUK, PIN - 686631
13 ELSAMMA PAUL, W/O PAUL, ANNIEKAMATTATHIL HOUSE,
PUNNATHARA WEST P.O, ETTUMANOOR VILLAGE, KOTTAYAM
-3-
R.S.A.No. 62 of 2024
TALUK, PIN - 686631
14 ANNIE SCARIA, D/O SCARIA, ANNIEKAMATTATHIL HOUSE,
PUNNATHARA WEST P.O, ETTUMANOOR VILLAGE, KOTTAYAM
TALUK, PIN - 686631
15 SIBY SCARIA, ANNIEKAMATTATHIL HOUSE, PUNNATHARA
WEST P.O, ETTUMANOOR VILLAGE, KOTTAYAM TALUK, PIN
- 686631
16 RANI JOSE , VEGINTEKALPARAMBIL NEEZHOOR PO,
NEEZHOOR KARA NEEZHOOR VILLAGE KOTTAYAM DISTRICT,
PIN - 686612
17 THRESSIAMMA SCARIA , W/O SCARIA, VATHALLOOR
HOUSE, KONGANDOOR P.O, KONGANDOOR KARA AYARKUNNAM
VILLAGE, KOTTAYAM TALUK, PIN - 686564
18 MARY GEORGE , W/O GEORGE THONDICAKAL HOUSE,
KADAPLAMATTOAM P.O, KADAPLAMATTOM KARA
KADAPLAMATTOM VILLAGE MEENACHIL TALUK, PIN -
686571
19 JAMES THOMAS , S/O THOMAS , MATTATHIL HOUSE,
KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA,
PULIYANNOOR VILLAGE, MEENACHIL TALUK, PIN -
686584
20 JOSEPH THOMAS, S/O THOMAS MATTATHIL HOUSE ,
KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA,
PULIYANNOOR VILLAGE, MEENACHIL TALUK, PIN -
686584
21 ROSAMMA THOMAS , D/O THOMAS, MATTATHIL HOUSE,
KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA,
PULIYANNOOR VILLAGE, MEENACHIL TALUK, PIN -
686584
22 MANUEL MATTOM, S/O THOMAS, MATTATHIL HOUSE,
KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA,
PULIYANNOOR VILLAGE, MEENACHIL TALUK., PIN -
686584
23 SIBY THOMAS, S/O THOMAS , MATTATHIL HOUSE,
KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA,
PULIYANNOOR VILLAGE, MEENACHIL TALUK, PIN -
686584
24 JOHN MATTAM THOMAS, S/O THOMAS MATTATHIL HOUSE,
KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA,
PULIYANNOOR VILLAGE, MEENACHIL TALUK NOW RESIDING
AT D 24, SHIVADHARA APTS, THALTE SILAJ ROAD
AHMEDABAD, PIN - 380059
25 SR. STANTLEY, D/O CHACHO, MATTATHIL HOUSE,
KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA,
PULIYANNOOR VILLAGE, MEENACHIL TALUK C/O JAMES
-4-
R.S.A.No. 62 of 2024
CHACKO AGED 58 S/O CHACKO MATTATHIL HOUSE,
KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA,
PULIYANNOOR VILLAGE, MEENACHIL TALUK, PIN -
686584
26 MARY, D/O CHACKO MATTATHIL HOUSE, KEZHUVAMKULAM
P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE,
MEENACHIL TALUK C/O JAMES CHACKO AGED 58 S/O
CHACKO MATTATHIL HOUSE, KEZHUVAMKULAM P.O,
KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE,
MEENACHIL TALUK, PIN - 686584
27 ALEYAMMA JOY , S/O JOY, MULAVELIKKUNNEL HOUSE,
KURUMALLOOR P.O, VEDAGIRI KURUMALLOOR KARA ,
KANAKKARI VILLAGE, MEENACHIL TALUK, KOTTAYAM
DISTRICT., PIN - 686632
28 JAMES CHACKO , S/O CHACKO MATTATHIL HOUSE,
KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA,
PULIYANNOOR VILLAGE, MEENACHIL TALUK, PIN -
686584
29 ANEY,D/O CHACKO MATTATHIL HOUSE, KEZHUVAMKULAM
P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE,
MEENACHIL TALUK, C/O JAMES CHACKO AGED 58 S/O
CHACKO MATTATHIL HOUSE, KEZHUVAMKULAM P.O,
KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE,
MEENACHIL TALUK, PIN - 686584
30 KATHRIKKUTTY, W/O JOSEPH MATTATHIL
HOUSEMANIKKADAVU P.O, SANTHINAGAR KARA, PAYYAVOOR
VILLAGE, KANNUR DISTRCTI, PIN - 670633
31 BIJU JOSEPH, S/O JOSEPH MATTATHIL HOUSE ULIKKAL
P.O, KOKKADU KARA VYTHIRI VILLAGE KANNUR
DISTRICT, PIN - 670705
32 BINU JOSEPH , S/O JOSEPH MATTATHIL HOUSE
MANIKADVU P.O, SANTHINAGAR KARA, PAYYAVOOR
VILLAGE KANNUR DISTRICT, PIN - 670633
33 BLESSY JOSEPH , D/O JOSEPH MATTATHIL HOUSE
MANIKADVU P.O, SANTHINAGAR KARA, PAYYAVOOR
VILLAGE KANNUR DISTRICT, PIN - 670633
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 07.02.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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R.S.A.No. 62 of 2024
CR
A.BADHARUDEEN, J.
======================================================
R.S.A.No.62 of 2024
=============================================================
Dated this the 7th day of February, 2024
JUDGMENT
This appeal is at the instance of the plaintiff in
O.S.No.213/2019 on the files of Munsiff Court, Pala. The
respondents are the defendants in the suit.
2. Heard the learned counsel for the appellant/plaintiff on
admission. I shall refer the parties as plaintiff and defendants.
3. The plaintiff filed the suit contending that the parties
are Christians and are governed by the Indian Succession Act,
1925. According to the plaintiff, plaint A and B schedule
properties belonged to the father of the plaintiff by name Chacko,
S/o. Mattathilaya Valiyaparambil Chacko. It is the further
contention that Chacko obtained absolute ownership over the
property covered by partition deed No.339/1100 and sale deed
No.3482/1103 of Meenachil SRO. The contention of the plaintiff
further is that Chacko died intestate and his mother also died.
Therefore, the plaintiff, who is governed by the Indian
Succession Act, is entitled for 1/5 th share over the plaint schedule
property.
4. Defendants 1 to 5, 17, 18, 19, 20, 27 and 23 filed
written statement and the crux of their contentions is that Chacko
died in the year 1938 and therefore, in the matter of succession,
the parties are governed by Travancore Succession Act, 1092 and
Indian Succession Act has no application in the instant case.
5. The trial court raised necessary issues and recorded
evidence. During trial PW1 and PW2 were examined and
Exts.A1 to A7 were marked. DW1 to DW7 were examined and
Exts.B1 to B25 were marked. Exts.X1 and X2 were also marked.
Finally the trial court found that Chacko died in the year 1938 and
relying on Exts.X1 and X2 held that the parties are governed by
the Travancore Succession Act, 1092. Accordingly, suit was
dismissed. The trial court verdict was assailed in A.S No.8/2022
before the Sub Court, Pala, but the appellate court also concurred
the finding of the trial court and dismissed the appeal.
6. Even though the learned counsel for the plaintiff
submitted that Chacko died in the year 1953 and, therefore, Indian
Succession Act, 1925 would apply in this matter, it is discernible
from the verdicts of the trial court that the plaintiff never raised
pleadings in the plaint that Chacko died in the year 1953 and no
evidence also let in, in this regard.
7. The trial court as well as the appellate court relied on
Exts.X1 and X2, copies of the death register and the details of
Almayar of Cherpunkal Church, to hold that Chacko died in the
year 1938. In the decision reported in [AIR 1986 SC 1011],
Mary Roy v. State of Kerala & Ors. the Apex Court held as
under :
"So far as Indian Christian are concerned, Chapter II of
Part V contains rules relating to intestate succession and a
fortiori on the extension of the Indian Succession Act, 1925 to
Part B State of Travancore Cochin, the rule relating to intestate
succession enacted in Chapter II of Part V would be applicable
equally to Indian Christians in the territories of the former
State of Travancore. It cannot be said that S.29, sub-sec. (2) of
the Indian Succession Act, 1925 saved the provisions of the
Travancore Christian Succession Act, 1092 and that therefore
despite the extension of the Indian Succession Act, 1925 to
Part B State of Travancore Cochin, the Travancore Christan
Succession Act, 1092 continued to apply to Indian Christians
in the territories of the erstwhile State of Travancore. S.6
cannot be overlooked in such a case. The Indian Succession
Act, 1925 was extended to Part B State of Travancore-Cochin
by virtue of S.3 of PartB States (Laws) Act, 1951 and if
therefore, there was in force in Part B State of Travancore-
Cochin any law corresponding to the Indian Succession Act,
1925 immediately prior to 1st April, 1951, such law would
stand wholly repealed.
In such a case, the continuance of Travancore Act
cannot be justified on the ground that, the Travancore
Christian Succession Act, 1092 was not a law corresponding to
the Indian Succession Act, 1925 since the latter Act had a
much wider coverage in that it dealt not only with rules
relating to intestate succession among Indian Christian but also
laid down rules of intestate succession among Parsis as also
rules relating to testate succession, while the travancore
Christian succession Act, 1092 was confined only to laying
down rules of intestate succession among Indian Christians.
When the Indian Succession Act, 1925 was extended to Part-B
state of Travancore-Cochin every part of that Act was so
extended including Chapter II of Part V and the Travancore
Christians Succession Act, 1092 was a law corresponding to
Chapter II of Part V, since both dealt with the same subject
matter, namely, intestate succession among Indian Christian
and covered the same field. And if that be so, it is difficult to
resist the conclusion that by S.6 of part B states (Laws) Act,
1951 the Travancore Christian succession Act, 1092 stood
repealed in its entirety. When S.6 of part B States (Laws) Act,
1951 provided in clear and unequivocal terms that the
Travancore Christian Succession Act, 1092 which was a law in
force in part B States of Travancore Cochin corresponding to
Chapter II of part V of the Indian Succession Act, 1925 shall
stand repealed, it would be nothing short of subversion of the
langislative intend to hold that the Travancore Christian
succession act, 1092 did not stand repealed but was saved by
S.29, sub-sec.(2 of the Indian Succession Act, 1925.
Moreover, there is nothing in part B States (Laws) Act, 1951
expressly saving the Travancore Christian succession Act,
1092. It cannot be said in such a case, that by reason of S.29,
sub-sec. (2), the Indian Succession Act, 1925 must be deemed
to have adopted by reference all laws for the time being in
force relating to intestate succession including the Travancore
Christian Succession Act, 1092 so far as Indian Christians in
Travancore are concerned. The Legislative device of
incorporation by reference is a well known device where the
legislature instead of repating the provisions of a particular
statute in another statute incorporates such provisions in the
latter statute by reference to the earlier statute. It is a
legislative device adopted for the sake of convenience in order
to avoid verbatim reproduction of the provisions of an earlier
statute in a later statute. But when the legislature intends to
adopt this legislative device the language used by it is entirely
distinct and different from the one employed in S.29, sub-sec.
(2) of the Indian Succession Act, 1925. The opening part of
S.29, sub-sec. (2) is intended to be a qualificatory or excepting
provision and not a provision for incorporation by reference."
8. In view of the declaration of law by the Apex Court, it
is emphatically clear that by the introduction of the Indian
Succession Act, 1925 which was extended to Part-B State of
Travancore-Cochin by virtue of Section 6 of Part B States (Laws)
Act, 1951 w.e.f 01.04.1951, the Travancore Christian Succession
Act, 1092 stood repealed. Thus it is clear in the present case that
Chacko died in the year 1938 as evident from Exts.X1 and X2 and
the parties are governed by the Travancore-Christian Succession
Act and not by the Indian Succession Act, which came into force
w.e.f 01.04.1951.
9. The trial court observed that as per Section 28 of the
Travancore Succession Act, male heirs mentioned in Section
25(1) shall be entitled to have the whole of the intestate's property
divided equally among themselves subject to the claims of the
daughters for Streedhanom. It is also mentioned that Streedhanom
due to a daughter shall be fixed at 1/4th of the value of the share
of a son or Rs.5,000/-, whichever is less. Further as per Section
28, any female heir of an intestate to whom Streedhanom was
paid or promised by the intestate shall not be entitled to have any
further claim in the property of the intestate when any of her
brother or lineal descendant of any such deceased brother shall
survive the intestate. The trial court relied on a decision of this
Court reported in [1993 KHC 424], Sosa v. Varghese, wherein it
was held that Streedhanom due to a daughter shall be fixed at ¼
of the value of share of his son, or Rs.5,000/- whichever is less. It
was also held that Section 25(1) also makes the position clear that
any Streedhanam promised but not paid shall be a charge upon the
property and when Streedhanam not paid, the Statute does not in
any way indicate that the unpaid streedhanam amount would have
the character of a trust. In this matter, the trial court as well as the
appellate court finally found that the parties are governed by the
provisions of Travancore Succession Act, 1092 and, therefore, the
daughter would not get any share on the property left by Chacko,
who died in the year 1938.
10. Another contention raised before the trial court was
that a Christian priest or nun could not succeed the property in his
personal capacity. In this connection, the trial court relied on a
decision of a Division Bench of this Court reported in [2017 (2)
KLT 1072], Mesgr. Xavier Chullickal v. Raphael and held that
the said contention is not sustainable. Relevant paragraphs are as
under:
"We are in perfect agreement with the decisions
of the Karnataka High Court and Madras High Court
that Indian Succession Act, 1925 that Indian
Succession Act, 1925 does not make a departure in
the case of a Christian priest or nun. There is
absolutely no statutory prohibition for a Christian
priest or nun in the matter of intestate or testamentary
succession of property of course in his/her personal
capacity. There cannot be any automatic deprivation
of property acquired by way of intestate or
testamentary succession by the mere fact that one has
entered into the religious order and renounced his
worldly pleasures.
However property obtained by a Hindu ascetic
or a Christian priest on behalf of a Mutt or a
Monastery stand on a different footing and the same
would devolve on the successor administrator. [AIR
1954 SC 606], Sital Das v. Sant Ram & Ors. And
[(1981) 3 SCC 689], Shri Krishna Singh v.
Mathura Ahir & Ors. are cases delaing with the
right over Mutt property only. Sital Das was rendered
before the coming into force of the Hindu Succession
Act, 1956 and Shri Krishna Singh essentially dealt
with the Mahantship and Mutt property which are of
little application here. Unfortunately Sital Das has
been relied on heavily in [1977 KLT 303 (D.B)],
Mother Superior v. D.E.O, Kottayam and Ors. to
hold that Canon Law is the rule of thumb. [1994 (1)
KLT 868 (D.B)], Oriental Insurance Company v.
Mother Superior and [2004 (2) KLT 783 (D.B)],
Varghese v. Krishnan Nair follows Mother
Superior (supra) and nothing more. We have no
hesitation to hold that the above decisions of the
Division Bench on the right of a Christian priest or
nun over his/her personal property are no longer good
law and binding. This is so in view of the
unequivocal pronouncement in Mary Roy v. State."
11. Thus it was found that the plaintiff only entitled for
Streedhanom as per Section 28 and, therefore, claim for partition
under Section 28 of the Travancore Succession Act could not
succeed, as rightly pointed out by the trial court as well as the
appellate court. Therefore, no substantial question of law arises to
admit and maintain this appeal.
12. In order to admit and maintain a Second Appeal,
substantial question of law necessarily to be formulated by the
High Court within the mandate of Order XLII Rule 2 Read with
Section 100 of C.P.C.
13. In this case, the learned counsel for the appellant failed
to raise any substantial question of law warranting admission of
the Second Appeals. Order XLII Rule 2 provides thus:
"2. Power of Court to direct that the appeal be heard on
the question formulated by it.-At the time of making an order
under rule 11 of Order XLI for the hearing of a second appeal, the
Court shall formulate the substantial question of law as required
by section 100, and in doing so, the Court may direct that the
second appeal be heard on the question so formulated and it shall
not be open to the defendant to urge any other ground in the
appeal without the leave of the Court, given in accordance with
the provision of section 100."
14. Section 100 of the C.P.C. provides that, (1) Save as
otherwise expressly provided in the body of this Code or by any
other law for the time being in force, an appeal shall lie to the
High Court from every decree passed in appeal by any Court
subordinate to the High Court, if the High Court is satisfied that
the case involves a substantial question of law. (2) An Appeal may
lie under this section from an appellate decree passed ex parte. (3)
In an appeal under this section, the memorandum of appeal shall
precisely state the substantial question of law involved in the
appeal. (4) Where the High Court is satisfied that a substantial
question of law is involved in any case, it shall formulate that
question. (5) The appeal shall be heard on the question so
formulated and the respondent shall, at the hearing of the appeal,
be allowed to argue that the case does not involve such question.
Proviso says that nothing in this sub-section shall be deemed to
take away or abridge the power of the Court to hear, for reasons
to be recorded, the appeal on any other substantial question of
law, not formulated by it, if it is satisfied that the case involves
such question.
15. In the decision in [2020 KHC 6507 : AIR 2020 SC 4321
: 2020 (10) SCALE 168], Nazir Mohamed v. J. Kamala and
Others reported in the Apex Court held that:
The condition precedent for entertaining and deciding
a second appeal being the existence of a substantial question
of law, whenever a question is framed by the High Court, the
High Court will have to show that the question is one of law
and not just a question of facts, it also has to show that the
question is a substantial question of law referring Kondiba
Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC
722.
16. In a latest decision of the Apex Court reported in
[2023 (5) KHC 264 : 2023 (5) KLT 74 SC], Government of
Kerala v. Joseph, it was held as under:
For an appeal to be maintainable under Section 100,
Code of Civil Procedure ('CPC', for brevity) it must fulfill
certain well - established requirements. The primary and
most important of them all is that the appeal should pose a
substantial question of law. The sort of question that
qualifies this criterion has been time and again reiterated
by this Court.
17. The legal position is no more res-integra on the point
that in order to admit and maintain a second appeal under Section
100 of the C.P.C, the Court shall formulate substantial question/s
of law, and the said procedure is mandatory. Although the phrase
'substantial question of law' is not defined in the Code, 'substantial
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 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 S.109 of the
Code or Art.133(1)(a) of the Constitution. The substantial
question of law on which a second appeal shall be heard need not
necessarily be a substantial question of law of general importance.
As such, second appeal cannot be decided on equitable grounds
and the conditions mentioned in Section 100 read with Order
XLII Rule 2 of the C.P.C. must be complied to admit and maintain
a second appeal.
18. In view of the above fact, no substantial question of
law arises in this matter to be decided by admitting this appeal.
In the result, the appeal is found to be meritless and the
same is dismissed without being admitted.
All pending Interlocutory Applications stand dismissed.
Sd/-
A.BADHARUDEEN,
JUDGE
das
