Supreme Court upheld the High Court’s judgment, affirming that the findings of the trial court were supported by evidence and were not perverse in Inheritance Property
Case title: LEHNA SINGH (D) BY LRS VS GURNAM SINGH (D) BY LRS. & ORS.
Case no.: REVIEW PETITION (C) No. 1025 of 2019
Dated on: 16TH May 2024
Quorum: Hon’ble Mr. Justice VIKRAM NATH And Hon’ble Mr. Justice PRASHANT KUMAR MISHRA.
FACTS OF THE CASE
The petitioner has preferred this Review Petition seeking review of the Order dated 13.03.2019 passed in Civil Appeal No. 6567 of 2014 wherein the present petitioner was the respondent. In the Order under review, the Civil Appeal was allowed, and the judgment and decree passed by the High Court of Punjab and Haryana on 27.11.2007 in Civil Regular Second Appeal No. 2191 of 1985 was set aside and the judgment and decree passed by the District Judge, Sangrur, on 06.06.1985 in Civil Appeal No. 27 of 1983 has been restored. This Court held that the judgment and decree passed by the Punjab and Haryana High Court is beyond the scope and ambit of Section 100 of Code of Civil Procedure, 19081 on the ground that in exercise of such power, the High Court could not have reappreciated the entire evidence on record to unsettle the finding of facts recorded by the First Appellate Court, by substituting its own opinion for that of the First Appellate Court. Basing the judgment rendered in Pankajakshi (Dead) Through Legal Representatives & Ors. v. Chandrika & Ors.2, this Court directed that the review petition be listed before the open Court for hearing and subsequently on 13.08.2019 notices were issued to the opposite parties, at the same time, directing the parties to maintain status quo. In substance, the main ground for review of the judgment is that the Constitution Bench of this Court in Pankajakshi (supra) have uphold the validity of Section 41 of Punjab Courts Act, 19183, overruling this Court’s earlier judgment in case of Kulwant Kaur & Ors. v. Gurdial Singh Maan (Dead) By Lrs. & Ors.4 holding that since Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 has no application to Section 41 of the Punjab Act, therefore, Section 41 of the Punjab Act would necessarily continue as a law in force and the second appeal before the High Court has to be heard within the parameters of Section 41 of the Punjab Act, and not under Section 100 CPC.
CONTENTIONS OF THE APPELLANT
Shri P.S. Pat Walia, learned Senior counsel appearing for the petitioner would also refer to the subsequent judgments of this Court in Randhir Kaur v. Prithvi Pal Singh & Ors.5 and Gurbachan Sing (Dead) Through Lrs. v. Gurcharan Singh (Dead) Through Lrs. & Ors.6 wherein this Court relying upon Pankajakshi (supra) held that the scope of interference within the jurisdiction of the Punjab and Haryana High Court would be the same as under Section 100 of CPC as it existed prior to the 1976 amendment. The provisions of Section 41 of the Punjab Act and of Section 100 CPC, before its amendment in 1976, are in Pari Materia. Therefore, the questions of law are not required to be framed in second appeal before Punjab and Haryana High Court whose jurisdiction in second appeal is circumscribed by provision of Section 41 of the Punjab Act. Shri Pat Walia would submit that this Court has set aside the Judgment of High Court terming it as beyond the power under Section 100 CPC which is not legally correct, in view of the law laid down in Pankajakshi (supra). It is further argued that in the facts and circumstances of the case, the petitioner was entitled to succeed to the property by way of natural succession and the finding of the High Court that the Will relied upon by the respondents has not been proved as it is surrounded by suspicious circumstances ought not to have been interfered by this Court. It is argued that a finding of fact erroneously or perversely recorded by the First Appellate Court can always be interfered by the High Court. Hence, there is no infirmity in the Judgment rendered by the High Court and the same ought not to have been interfered by this Court while deciding the Civil Appeal No. 6567 of 2014 on an erroneous ground that the High Court has travelled beyond its jurisdiction and power under Section 100 CPC as it stands of the 1976 amendment.
CONTENTIONS OF THE RESPONDENTS
Shri Manoj Swarup, learned senior counsel appearing for the respondents would not dispute the legal position as has been settled by this Court in the matter of Pankajakshi (supra). However, he would submit that even in the case when the High Court would exercise the power under Section 41 of the Punjab Act, the finding of fact recorded by the First Appellate Court cannot be interfered on re-appreciation of evidence to substitute its own decision for that of the First Appellate Court. According to him, the finding recorded by the First Appellate Court was borne out from the record. Therefore, the High Court erred in interfering with the said finding, and this Court rightly set aside the Judgment and decree of the High Court while deciding the Civil Appeal. According to Shri Swarup, the respondents had proved the Will, which was a registered one, in accordance with law and that there were no suspicious circumstances accompanying the Will. When this Court rendered the judgment under review in Civil Appeal No. 6567 of 2014, the only ground which weighed with the Court was that the High Court exercised the power under Section 100 CPC erroneously and decided the second appeal by re-appreciating the evidence without even framing a substantial question of law. The provision contained in Section 41 of the Punjab Act, as reproduced above, does not mandate framing of a substantial question of law for entertaining the second appeal. Therefore, a second appeal under Section 41 of Punjab Act can be entertained by the Punjab and Haryana High Court even without framing a substantial question of law.
ISSUES
- Whether the Appellate Court can reverse the findings recorded by the learned trial court without adverting to the specific finding of the trial court?
- Whether the judgment passed by the learned lower Appellate Court is perverse and outcome of misreading of evidence?
LEGAL PROVISIONS
Section 96 of the Civil Procedure Code (CPC): This section deals with the powers of the appellate court and allows it to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require.
Section 100 of Code of Civil Procedure, 1908: provides for a second appeal to the High Court from an appellate decree. There is no vested right of appeal unless the statute so provides.
Section 41 of Punjab Courts Act, 1918: Second appeal An appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court
Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976: Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except insofar as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed.
COURT’S ANALYSIS AND JUDGEMENT
This Civil Appeal is preferred by the defendants in the suit against whom the plaintiff brought a suit for perpetual injunction on the pleadings, inter alia, that he and his brother Bhawan Singh alias Nikka Singh were owners in possession of the suit land. Bhawan Singh was issueless being unmarried. Since the defendant No. 1 was trying to dispossess the plaintiff forcibly, the suit for perpetual injunction was filed. The defendants did not deny that plaintiff and Bhawan Singh were real brothers. However, he claimed to be the half-brother of Bhawan Singh as they were given birth by same lady namely Mrs. Har Kaur who was earlier married to Sunder Singh but after his death, she was married to Mehar Singh and the defendant no. 1 was born out of the wedlock of Har Kaur with Mehar Singh. The defendant’s case rested on a Will allegedly executed by Bhawan Singh on 17.01.1980. Prior to this, Bhawan Singh had executed an unregistered Will on 17.08.1979. However, the defendant admitted that during the lifetime of Bhawan Singh, the suit land was cultivated jointly by the plaintiff and Bhawan Singh. In the alternative, the defendant pleaded that if plaintiff’s possession over the suit land is proved, the defendant nos. 2 to 6, the beneficiary of the Will, are entitled to joint possession of half share of the suit land. On the strength of evidence adduced by the parties in course of trial, it was held by the trial court that the defendants have failed to prove the genuineness of the Will, therefore, the plaintiff is entitled to succeed by way of natural succession. It was found that the Will relied by the defendants is surrounded by suspicious circumstances, therefore, it is not a validly executed Will. The trial court held that the defendants’ case that they served the deceased Bhawan Singh during the lifetime and out of love and affection for the services rendered, he executed the Will in their favour as they were also related to the deceased, has not been believed by the trial court. There is evidence that it was plaintiff who admitted Nikka Singh in hospital on 02.08.1979 when he was ill and his address was also shown as care of Lehna Singh (the ‘plaintiff’). The trial court also found that the plaintiff is in possession of the suit land as the said fact has been admitted by one of the defendant’s witnesses namely Gurnam Singh. The First Appellate Court set aside the finding of the trial court holding that the trial court was wrongly persuaded by insignificant circumstances to hold that the Will in favour of the defendant nos. 2 to 6 is not genuine and that it is surrounded by suspicious circumstances. The First Appellate Court eventually passed a decree for joint possession in favour of defendant which was assailed by plaintiff Lehna Singh before the High Court by preferring an appeal under Section 41 of the Punjab Act. The High Court, under the impugned Judgment, allowed the appeal, set aside the appellate decree passed by the District Judge, Sangrur, restoring the Judgment and decree passed by the trial court. The High Court answered both the questions of law in favour of the plaintiff/respondent herein (in Civil Appeal) on the reasoning that when the person entitled to the property of the deceased by way of natural succession, is disinherited from the property without giving any reason and the covenants in the Will are also found to be factually incorrect, mere registration of the Will and proof of the same by attesting witnesses could not be treated to be sufficient to over-come the suspicious circumstances as has been done by the First Appellate Court. The High Court also observed that the propounders of the Will were earlier tried for murder of the deceased-testator and there being no evidence on record to show that the deceased had special love and affection with the defendants and when it is proved that the plaintiff is in possession of the land and the defendant and their witnesses actively participated in the execution of the Will, there is glaring suspicious circumstances to hold that the Will is not genuine. It was also observed that the testator was residing with the plaintiff, and it was he who got him admitted in the hospital, it was proved that the plaintiff was taking care of the deceased at the time of his need. Merely because the attesting witnesses had no enmity towards the plaintiff, it cannot dispel the suspicious circumstances surrounded around the Will. It is settled law that the First Appellate Court, while setting aside the Judgment and decree of the trial court, is required to meet the reasoning given by the trial court in rejecting the Will, which in the present case has not been done by the First Appellate Court. Having considered the evidence on record and the findings of the trial court, the First Appellate Court and the High Court, we are satisfied that the First Appellate Court wrongly set aside the Judgment, decree, and findings of the trial court without meeting the findings of the trial court which could not have been done in exercise of power under Section 96 CPC. Therefore, the High Court has rightly set aside the Judgment and decree of the First Appellate Court to restore the Judgment and decree of the trial court. On independent examination also, we have found that the findings recorded by trial court are borne out from the evidence on record and are neither perverse nor illegal. Therefore, we find no substance in this appeal which deserves to be and is hereby dismissed. The parties shall bear their own costs.
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Judgement Reviewed by – HARIRAGHAVA JP
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