Madras High Court
Gaffor Sahib vs Mumtaj on 15 April, 2021
S.A.No.367 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 15.04.2021
Coram
THE HONOURABLE MR. JUSTICE M.SUNDAR
S.A.No.367 of 2021
and
C.M.P.No.6890 of 2021
in
S.A.No.367 of 2021
Gaffor Sahib .. Appellant
Vs.
Mumtaj .. Respondent
Second Appeal under Section 100 of CPC to set aside the judgement
and decree dated 06.01.2021 made in A.S.No.15 of 2017 on the file of the
Court of II Additional District Judge, Vellore @ Ranipet confirming the
judgment and decree dated 07.03.2017 made in O..S.No.95 of 2013 on the
file of the Subordinate Judge, Ranipet, Vellore District.
For Appellants : Mr.R.Agilesh
----
JUDGMENT
Captioned main second appeal i.e., S.A.No.367 of 2021 has been
presented in this Court on 29.03.2021 under Section 100 of 'The Code of
Civil Procedure, 1908' ('CPC' for the sake of brevity).
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S.A.No.367 of 2021
2. The parties are closely related. Respondent in captioned second
appeal is wife of appellant's deceased elder brother Kasim. In other words,
respondent is appellant's sister-in-law. Appellant was the lone defendant in
the Court of first instance and the respondent was the lone plaintiff in the
Court of first instance i.e., Subordinate Judge's Court, Ranipet, Vellore
District (hereinafter 'trial Court' for the sake of brevity) vide O.S.No.95 of
2013.
3. This litigation commenced more than 13 years ago, to be precise on
29.11.2007 when the respondent in captioned Second Appeal presented the
aforementioned suit in the trial Court.
4. Suit property, as can be culled out from the plaint, is land ad-
measuring 2305 ½ square feet or thereabouts with one tiled house standing
as superstructure thereon. Land is situate in Old S.No.153-Part, T.S.No.46,
Block No.9, Ward B in Mosque Street, Ranipet Municipal Town, Walajah
Taluk, Vellore District and Door Number is 4. This land and superstructure
in the form of a tiled house thereon shall hereinafter be referred to as 'suit
property' for the sake of convenience and clarity. Respondent, as plaintiff in
the trial Court, laid the suit O.S.No.98 of 2007 with prayers for declaration of
title, recovery of possession, damages and permanent injunction restraining
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S.A.No.367 of 2021
dismantling of superstructure. Other usual reliefs including the residuary
limb of prayer was also made. Appellant in captioned Second Appeal, as
lone defendant, entered appearance, filed written statement on 04.04.2008
and completed pleadings. Thereafter, after full contest, trial Court decreed
the suit vide judgment and decree dated 07.03.2017. By saying full contest,
it is to be noted that there were as many as 15 exhibits on the side of the
plaintiff being Exs.A1 to A15 and two witnesses were examined on the side
of plaintiff as PW1 and PW2. There were six exhibits on the side of the
defendant being Exs.B1 to B6 and three witnesses were examined on the side
of the defendant as DW1 to DW3. It is also to be noted that plaintiff and
defendant examined themselves as PW1 and DW1.
5. Post suit being decreed, defendant in the suit in the trial Court
carried the matter in appeal by way of a regular first appeal under Section 96
of CPC vide A.S.No.15 of 2017 on the file of 'II Additional District Judge's
Court, Vellore @ Ranipet' (hereinafter 'first Appellate Court' for the sake of
brevity). The first Appellate Court, after full contest, in and by judgment and
decree dated 06.01.2021, dismissed the first appeal confirming the judgment
and decree made by the trial Court.
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S.A.No.367 of 2021
6. Plaintiff predicated her claim primarily on a registered settlement
deed executed by her late husband Kasim being registered Settlement Deed
dated 28.07.1988 marked as Ex.A3 in the trial Court. The title deed of
plaintiff's husband Kasim being a registered sale deed dated 21.11.1971 was
marked as Ex.A1 and a mortgage deed executed in favour of one Noorjahan
was marked as Ex.A2 to demonstrate that her husband Kasim had dealt with
the suit property. Tax receipts were also marked.
7. A perusal of the pleadings in the trial Court brings to light that the
pleadings of the defendant was that the plaintiff was the first wife of his elder
brother Kasim, she was divorced by said Kasim as per Mohammedan Law,
she left for her native place Tiruvannamalai and there were issues between
the brothers Kasim and defendant (appellant before me in the captioned
second appeal). It is also pleaded that the defendant is entitled to claim
adverse possession as the defendant is staying in suit property and is
therefore in possession. It was also pleaded that it is false to state that the
plaintiff is in continuous possession of the suit property. There were some
Rent Control proceedings and the defendant pleaded that Rent Control
proceedings ended in favour of the plaintiff.
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S.A.No.367 of 2021
8. The burden of song continued in the first Appellate Court also and
as did the trial Court first Appellate Court also believed the registered
settlement deed executed by plaintiff's late husband Kasim qua suit property
and confirmed the decree made by the trial Court.
9. Notwithstanding very many grounds raised in the memorandum of
grounds of appeal and notwithstanding as many as five questions in the
memorandum of grounds which according to appellant are substantial
questions of law, learned counsel made pointed submissions to one aspect of
the matter. That one aspect of the matter is, plaintiff in the trial Court
pleaded Hiba and the ingredients of Hiba have not been established in the
trial Court. Saying so, notwithstanding five questions being set out in the
memorandum of grounds of appeal, learned counsel adverted to two
questions (b) and (c) and projected his arguments and those two questions
read as follows:
'(b) Whether the Lower Courts are correct in decreeing the suit
when the defendant is residing in the suit schedule property since 1971
onwards?
c) Whether the Lower Courts are correct in decreeing the suit
after dismissal of Exhibits A-11 and Exhibit A-13?'
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S.A.No.367 of 2021
10. Learned counsel submitted that the above questions qualify as
substantial questions of law.
11. In support of his contention, learned counsel pressed into service a
judgment of Hon'ble Supreme Court in Rasheeda Khatoon (D) Through
LRs. Vs. Ashiq Ali reported in 2015-2-L.W. 230 and drew the attention of
this Court to Paragraph 11 of the said judgment, which reads as follows:
'11. In Mahboob Sahab v. Syed Ismail and Others[6] a two-
Judge Bench referred to Section 147 of the Principles of Mahomedan
Law by Mulla wherein the essentials of valid gift under the
Muhammadan Law have been elucidated and proceeded to explicate
the principle. We think the reproduction of the relevant passage
would be seemly:-
“Under Section 147 of the Principles of Mahomedan Law, by
Mulla, 19th Edn., edited by Chief Justice M. Hidayatullah,
envisages that writing is not essential to the [pic]validity of a gift
either of moveable or of immovable property. Section 148 requires
that it is essential to the validity of a gift that the donor should
divest himself completely of all ownership and dominion over the
subject of the gift. Under Section 149, three essentials to the
validity of the gift should be, (i) a declaration of gift by the donor,
(ii) acceptance of the gift, express or implied, by or on behalf of
the donee, and (iii) delivery of possession of the subject of the gift
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S.A.No.367 of 2021
by the donor to the donee as mentioned in Section 150. If these
conditions are complied with, the gift is complete. Section
150 specifically mentions that for a valid gift there should be
delivery of possession of the subject of the gift and taking of
possession of the gift by the donee, actually or constructively. Then
only the gift is complete. Section 152 envisages that where the
donor is in possession, a gift of immovable property of which the
donor is in actual possession is not complete unless the donor
physically departs from the premises with all his goods and
chattels, and the donee formally enters into possession. It would,
thus, be clear that though gift by a Mohammedan is not required
to be in writing and consequently need not be registered under
the Registration Act; for a gift to be complete, there should be a
declaration of the gift by the donor; acceptance of the gift,
expressed or implied, by or on behalf of the donee, and delivery of
possession of the property, the subject-matter of the gift by the
donor to the donee. The donee should take delivery of the
possession of that property either actually or constructively. On
proof of these essential conditions, the gift becomes complete and
valid. In case of immovable property in the possession of the
donor, he should completely divest himself physically of the subject
of the gift.” [Emphasis supplied]'
12. In the light of the aforesaid narrative, this Court now embarks
upon the exercise of examining whether any substantial question of law
arises in the case on hand and for this purpose, this Court reminds itself of
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S.A.No.367 of 2021
two recent judgments of Hon'ble Supreme Court being Kanailal case
[Kanailal and Others Vs. Ram Chandra Singh and Others reported in
(2018) 13 SCC 715] and Kirpa Ram case [Kirpa Ram Vs. Surendra Deo
Gaur and others reported in 2020 SCC Online SC 935]. Kanailal principle
is one by which Hon'ble Supreme Court held that Order XLI Rule 31 CPC
ingredients stand telescoped into second appeal legal drill under Section 100
CPC also. Kirpa Ram principle is one by which Hon'ble Supreme Court has
reiterated the position that a second appeal can be dismissed straightaway at
the admission stage itself if no substantial question of law arises. On a
combined and conjoined reading of Kannialal and Kirpa Ram principles,
this Court in the light of the narrative thus far, deems it appropriate to set out
that the lone point for determination in the instant second appeal is, whether
any substantial question of law arises in the light of facts finding, trajectory
the matter has taken and the arguments advanced before this Court.
13. This Court now proceeds to give its decision on aforementioned
point for determination and the reasons for the decision. Before proceeding
further, this Court also deems it appropriate to remind itself about the
expression 'substantial question of law' occurring in Section 100 CPC as
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S.A.No.367 of 2021
explained elucidatively by various courts over a period of time, which is also
the obtaining position of law. First of the judgment in this line of case laws
was rendered by a Hon'ble Full Bench of this Court in the celebrated
Rimmalapudi Subba Rao's case [Rimmalapudi Subba Rao Vs. Noony
Veeraju And Others reported in AIR 1951 Madras 969 (FB)]. This
Rimmalapudi Subba Rao principle rendered by Hon'ble Full Bench was
affirmed by Hon'ble Supreme Court (a Constitution Bench of Hon'ble
Supreme Court) in another celebrated case, namely Chunilal Mehta's case
[Sir Chunilal V.Mehta and Sons Ltd., Vs. Century Spinning and
Manufacturing Co. Ltd., reported in AIR 1962 SC 1314] which is also
known as Century Spinning Mill's case. Paragraph 6 of Century Spinning
Mill case is relevant and the same reads as follows:
'6. We are in general agreement with the view taken by the
Madras High Court and we think that while the view taken by the
Bombay High Court is rather narrow the one taken by the former
High Court of Nagpur is too wide. The proper test for determining
whether a question of law raised in the case is substantial would, in
our opinion, be whether it is of general public importance or whether
if directly and substantially affects the rights of the parties and if so
whether it is either an open question in the sense that it is not finally
settled by this Court or by the Privy Council or by the Federal Court
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S.A.No.367 of 2021
or is not free from difficulty or calls for discussion of alternative
views. If the question is settled by the highest court or the general
principles to be applied in determining the question are well settled
and there is a mere question of applying those principles or that the
plea raised is palpably absurd the question would not be a substantial
question of law. '
14. Rimmalapudi Subba Rao case rendered by Hon'ble Full bench of
this Court, as affirmed by Hon'ble Supreme Court (Constitution Bench), was
neatly captured and articulated by Hon'ble Supreme Court in Santosh
Hazari case [Santosh Hazari Vs. Purushottam Tiwari (Deceased) by Lrs
reported in (2001) 3 SCC 179]. Relevant paragraph in Santosh Hazari case
is Paragraph 12, which is instructive and the same reads as follows:
'12. The phrase “substantial question of law”, as occurring in the
amended Section 100 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 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
Section 109 of the Code or Article 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. In Guran
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S.A.No.367 of 2021
Ditta v. T. Ram Ditta [AIR 1928 PC 172 : 55 IA 235] , the phrase “substantial
question of law” as it was employed in the last clause of the then existing
Section 110 CPC (since omitted by the Amendment Act, 1973) came up for
consideration and their Lordships held that it did not mean a substantial
question of general importance but a substantial question of law which was
involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons
Ltd. v. Century Spg. and Mfg. Co. Ltd. [AIR 1962 SC 1314 : 1962 Supp (3)
SCR 549] the Constitution Bench expressed agreement with the following view
taken by a Full Bench of the Madras High Court in Rimmalapudi Subba
Rao v. Noony Veeraju [ILR 1952 Mad 264 : AIR 1951 Mad 969] :
“[W]hen a question of law is fairly arguable, where there is
room for difference of opinion on it or where the Court thought it
necessary to deal with that question at some length and discuss
alternative views, then the question would be a substantial
question of law. On the other hand if the question was practically
covered by the decision of the highest court or if the general
principles to be applied in determining the question are well
settled and the only question was of applying those principles to
the particular facts of the case it would not be a substantial
question of law.”
and laid down the following test as proper test, for determining
whether a question of law raised in the case is substantial:
“The proper test for determining whether a question of law
raised in the case is substantial would, in our opinion, be
whether it is of general public importance or whether it directly
and substantially affects the rights of the parties and if so
whether it is either an open question in the sense that it is not
finally settled by this Court or by the Privy Council or by the
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S.A.No.367 of 2021
Federal Court or is not free from difficulty or calls for discussion
of alternative views. If the question is settled by the highest court
or the general principles to be applied in determining the
question are well settled and there is a mere question of applying
those principles or that the plea raised is palpably absurd the
question would not be a substantial question of law.'
15. As alluded to supra, Paragraph 12 of Santosh Hazari case clearly
captures the ingredients of expression 'substantial question of law' occurring
in Section 100 CPC. This is the obtaining position of law and this has been
followed repeatedly and as recently as in Malan Bi case [Syeda
Rahimunnisa Vs Malan Bi (dead) by legal representatives and another
reported in (2016) 10 SCC 315]. A careful perusal of the case file placed
before this Court brings to light that the plaintiff in the trial Court has not
pleaded Hiba. On the contrary, the plaintiff has predicated the claim based
on a registered Settlement Deed executed by her late husband i.e, Ex.A3. To
be noted, original title deed dated 21.11.1971 and a mortgage deed dated
22.09.1983 have also been marked as Exs.A1 and A2. Tax receipts have also
been marked. The judgment of Hon'ble Supreme Court in Rasheeda
Khatoon case wherein earlier judgment of Hon'ble Supreme Court in
Mahboob Sahab case [Mahboob Sahab v. Syed Ismail and others reported
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S.A.No.367 of 2021
in (1995) 3 SCC 693] was reiterated, does not come to the aid of the
appellant in the case on hand though the principles and three ingredients that
there should be declaration of gift, acceptance of the gift and delivery of
possession are available. This Court is of the view that Hiba if pleaded has
to be proved by independent witnesses to the transaction. It may not be
necessary to dilate further on this aspect as the pleadings in trial Court are
predicated on Ex.A3 and not on Hiba.
16. This takes us to the two questions projected by learned counsel,
which have been extracted and reproduced supra. With regard to defendant
residing in the property, that can hardly be a ground to resist a prayer for
declaration of title and recovery of possession. There is a faint reference to
adverse possession, but the trajectory of the trial before the trial Court
reveals that there is no effort in this direction demonstrating that title has
been perfected by adverse possession. Therefore, this puts an end to
question (b), which has been suggested as substantial question of law. It is
the end of the road and this draws the curtain on question (b).
17. This takes us to next question (c). Question (c) turns on Exs.A11
and A13. Both these pertain to proceedings in Rent Control court between
plaintiff and the defendant. While Ex.A11 is a photocopy of an order dated
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20.02.1998 made in R.C.O.P.No.1 of 1995, Ex.A13 is the certified copy of
decreetal order dated 26.07.2006 made in R.C.A.No.2 of 1998. Law is well
settled that Rent Control proceedings are summary proceedings and can have
no impact on title. To be noted, this is under the erstwhile Rent Control Act,
namely 'The Tamil Nadu Buildings (Lease and Rent Control) Act, 1960
(Tamil nadu Act XVIII of 1960)' ['Rent Control Act' for brevity]. Even in
this erstwhile Rent Control Act, with regard to denial of title, namely, Section
10(2)(vii), Rent Controller can only send the parties to a Civil Court for
declaration of title after recording a prima facie view. This is mentioned for
the limited purpose of emphasizing that Rent Controller cannot decide title
and Rent Control proceedings going against the plaintiff does not in any
manner cause any cloud over title and therefore do not impact or impede the
prayer for declaration and recovery of possession. This Court is also
informed that Rent Control proceedings were essentially for willful default
under Section 10(2)(i) of Rent Control Act. Any order made for eviction
under Section 10(2)(i) can hardly have any impact qua title. This draws the
curtains on question No.(c), which has been proposed as a substantial
question of law. If Rimmalapudi Subba Rao principle is applied, it follows
as an inevitable sequitur that no substantial question/s of law much less
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S.A.No.367 of 2021
substantial question/s of law within the meaning of Section 100 CPC as
elucidatively explained by Hon'ble Supreme Court qua the expression
occurring in Section 100 CPC arises in the case on hand. There is no
question which is debatable and nothing that is res integra has arisen in the
case on hand. It is also not a case of well settled principle being disregarded.
Absent substantial question of law qua facts and trajectory of the matter, a
second appeal can be dismissed at the admission stage on the ground that no
substantial question of law arises and this is the Kirpa Ram principle alluded
to supra.
18. In the light of the narrative thus far, this Court has no hesitation in
coming to the conclusion that no substantial question of law arises in the
captioned second appeal and therefore, the same deserves to be dismissed.
Considering the nature of the matter, considering the close relationship of the
parties and the nature of the submissions made in this Court, there shall be
no order as to costs. Consequently, C.M.P.No.6890 of 2021 is also
dismissed.
15.04.2021
Speaking order: Yes/No
Index: Yes/No
gpa
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S.A.No.367 of 2021
M.SUNDAR.J.,
gpa
To
1. II Additional District Judge
Vellore @ Ranipet
2. The Subordinate Judge
Ranipet, Vellore District
S.A.No.367 of 2021 and
C.M.P.No.6890 of 2021 in
S.A.No.367 of 2021
15.04.2021
https://www.mhc.tn.gov.in/judis/
