Kerala High Court
Ancy Jacob vs Siby on 15 February, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945
RSA NO. 77 OF 2024
AGAINST THE ORDER/JUDGMENT OS 57/2011 OF SUB COURT, MUVATTUPUZHA
AS 174/2019 OF ADDITIONAL DISTRICT COURT - VIII, ERNAKULAM
APPELLANTS/PLAINTIFFS:
1 ANCY JACOB
AGED 39 YEARS
W/O. ABLE KUTTATTUTHOTTATHIL HOUSE, NORTH PIRAMADOM P.O
MARADY VILLAGE, MUVATTUPUZHA TALUK, PIN - 686667
2 BLOOMY JACOB
AGED 36 YEARS
W/O. ROBBIN KUTTATTUTHOTTATHIL HOUSE, NORTH PIRAMADOM P.O
MARADY VILLAGE, MUVATTUPUZHA TALUK, PIN - 686667
3 CHACKO
AGED 68 YEARS
S/O. PATHROSE KUTTATTUTHOTTATHIL HOUSE NORTH PIRAMADOM
P.O, MARADY VILLAGE MUVATTUPUZHA TALUK, PIN - 686667
BY ADVS.
ALIAS M.CHERIAN
K.M.RAPHY
AMEERA JOJO
BRISTO S PARIYARAM
MINNU DARWIN
RESPONDENTS/DEFENDANTS:
1 SIBY
AGED 53 YEARS
W/O. LATE SABU ORUPPOOPPIL HOUSE, KANINADU KARA NOW
RESIDING AT PANKODU KARA PUTHENKUREZ, KUNNATHUNADU TALUK,
PIN - 682018
2 KJ PRASAD
AGED 58 YEARS
S/O. JACOB NJARAKATTIL HOUSE, KALANAKUDYIL NORTH
PIRAMADAOM KARA ONAKKOOR VILLAGE MUVATTUPUZHA TALUK, PIN
- 686667
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.S.A No.77 of 2024
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J U D G M E N T
This appeal has been filed under Section 100
read with order 42 Rule II of Code of Civil
Procedure (for short, 'the CPC' hereinafter). The
appellants are the plaintiffs in O.S.No.57/2011 on
the files of Sub Court Muvattupuzha. They assail
the decree and judgment in the above case dated
28.06.2019 and decree and judgment in AS
No.174/2019 dated 31.03.2023 on the files of
Additional District Judge, Ernakulam.
2. Heard the learned counsel for the
appellant on admission. Perused the copies of
pleadings and documents placed by the learned
counsel for the appellant. Gone through the
verdicts impugned.
3. This suit was filed for the declaration
of Will Deed No.146/111/2010 of S.R.O.,
Muvattupuzha as null and void and for partition
and separate possession of the plaint schedule
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properties. Relief of injunction was also sought
for.
4. According to plaintiff, the plaint
schedule properties originally belonged to Mathai,
father of late Sisly and the 1st defendant. He
obtained the said properties as per document No.
13381/1951 of SRO, Puthencruez and release deed No
1692/1992 No. of S.R.O. Piravom. Mathai and his
wife Saramma died on 02.08.10 and 28.07.10,
respectively. Late Mathai transferred certain
extent of properties covered by the said document,
during his life time. But plaint A and B schedule
properties are available for partition at present
and the plaintiffs and 1st defendant are the legal
heirs of late Mathai. Late Mathai had no capacity
to understand things in sense and to act
accordingly. He was bed ridden and under the
control of the 1st defendant, just two months
before his death. He was admitted in different
hospitals on various occasions.
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5. Later due to undue influence and force on
the part of the 1st respondent, Mathai executed
Will Deed No. 146/III/2010 of S.R.O, Muvattupuzha,
in favour of the 1st defendant and Mathai never
intended to execute such a Will. It was contended
that, on the strength of the alleged Will, the 1st
defendant sold 65 cents, to the 2nd defendant as
per document No. 200/11 of S.R.O., Muvattupuzha
that sale deed is also void. Plaint A schedule
properties are in joint possession of the
plaintiffs and 1st defendant. In the circumstance,
the plaintiffs are entitled to get a decree for
declaration that Will No.146/10 of S.R.O,
Muvattupuzha is not binding up on plaint schedule
properties and also entitled for 1/6th share each
of the plaint schedule properties. So also the
relief of injunction.
6. The defendants entered appearance and
resisted the suit mainly relying on the
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genuineness of the Will which was sought to be
declared as null and void.
7. The Trial Court ventured the matter and
examined PW1 to 5 and marked Ext.A1 to A12, on the
side of the plaintiff. DW1 to DW2 examined and
Ext.B1 to B7 marked on the side of the defendants.
Exhibits C1, C1(a), X1 and X1(a) also marked as
Court exhibits.
8. The learned counsel for the appellant
submitted that 28 cents of property not covered by
the Ext.B1 Will, do form part of the plaint A
Schedule property is available for partition,
which was originally belonged to Mathai. But the
Trial Court and the Appellate Court disallowed the
said plea. Therefore, this appeal would require
admission by raising the same as a substantial
question of law.
9. Although claim over 28 cents of property
was strongly raised by the learned counsel for the
appellants, he has not substantiated anything to
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upset the genuineness of the Ext.B1 Will, as found
by the Trial Court and the Appellate Court,
wherein the profounder examined DW1 and DW2 as
mandated under Sec.66 of the Evidence Act read
with Sec.66(3) of the Succession Act, and removed
the doubtful circumstances, surrounding the Will.
10. But the learned counsel for the appellant
argued at length to convince this Court that 28
cents, form part of plaint A schedule, which was
not covered by Ext.B1 will and originally jointly
owned by Mathai, Aliyamma, Mariakutty,
Chinnakutty, Leela is available for partition.
According to him, 1/5th share over the said 28
cents of property in Sy.1076/1B belonged to Mathai
being sharer and in view of the Ext. A3 Release
Deed executed by Aliyamma, Mariakutty, Chinnakutty
and Leela relinquishing their right over the same,
Mathai became absolute owner of the entire extend
of 28 cents of property. The learned counsel for
the appellant placed reliance on Ext.A1 to A5
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marked in this case to substantiate the said
point.
11. In Para No.23 of the Trial Court
judgment, the Trial Court addressed this
contention and found that Mathai succeeded only
1/5th share out of 28 cents of property in
Sy.1076/1B as per Ext.A1 and Ext.A3 release deed
relied on Mathai to prove relinquishment of shares
of Aliyamma, Mariakutty, Chinnakutty & Leela did
not include any property covered by Sy.1076/1B. It
is also noted by the Trial Court that, even though
Mathai had only 1/5th of share in 28 cents in
Sy.1076/1B, had sold 9.5 cents (in excess of
Mathai's 1/5th share) from the said item as per A5
document. Therefore it was found by the Trial
Court, that no property of Mathai is available to
be partitioned. The said observation as extracted
in para 23 found to be absolutely correct on
perusal of Ext.A1 to A5. Therefore the contention
raised by the learned counsel for the appellant
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canvassing partition of 28 cents of property in
Sy.1076/1B found to be without any merits.
12. Summarising the discussion, it is held
that excluding 28 cents of property in Sy.1076/1B,
the other items of plaint schedule are properties
covered by Ext.B1 which is proved in accordance
with law removing the suspicious circumstances
surrounded therein and therefore the properties
covered by Ext.B1 are not partiable. Similarly 28
cents of property in Sy.1076/1B is concerned,
Mathai left no right over the same. Therefore, the
said 28 cents of property also not liable to be
partitioned among the plaintiffs and 1st
defendant, as rightly found by the Trial Court and
the First Appellate Court. Thus, the concurrent
verdicts of the trial court and Appellate Court do
not require any interference at the hands of this
Court.
13. In view of the above discussion, no
substantial question of law emerges in this matter
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to be formulated to maintain and admit this
regular second appeal. Order XLII Rule 2 of CPC
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 appellant 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 CPC 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
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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
stipulates 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 reported in [2020 KHC
6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168]
Nazir Mohamed v. J. Kamala and Others, the Apex
Court held that:
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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.
In Kondiba Dagadu Kadam v. Savitribai Sopan
Gujar, [(1999) 3 SCC 722].
16. In a latest decision of the Apex Court in
Government of Kerala v. Joseph, reported in [2023
(5) KHC 264 : 2023 (5) KLT 74 SC], it was held,
after referring Santosh Hazari v. Purushottam
Tiwari, [2001 (3) SCC 179] (three - Judge Bench),
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.
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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 CPC, 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
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grounds and the conditions mentioned in Section 100
read with Order XLII Rule 2 of CPC must be complied
to admit and maintain a second appeal.
18. In the instant case, it appears that the
concurrent verdicts entered into by the trail court
as well as by the Appellate Court, based on the
facts and evidence, are found to be in order.
Therefore, the same does not require any
interference at the hands of this Court.
19. In this matter, no substantial question of law
arises for consideration so as to admit this second
appeal. It is the well settled law that a second
appeal involving no substantial question of law
cannot be admitted. Therefore, the decree and
judgment under challenge do not require any
interference and no substantial question of law to
be formulated to adjudicate in this regular second
appeal.
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20. Accordingly, this regular second appeal
stands dismissed, without being admitted, as
indicated above.
All interlocutory applications pending in this
second appeal, stand dismissed.
Registry shall inform this matter to the Trial
Court as well as the Appellate Court, forthwith.
Sd/-
A. BADHARUDEEN
JUDGE
SM
