# 16 S.C.R. 961 ,_1 NARENDRA GOPAL VIDYARTHI v. RAJAT VIDYARTHI

- **Citation:** [2008] 16 S.C.R. 961
- **Court:** Supreme Court of India
- **Decided:** 2008-12-02
- **Case number:** Civil Appeal No. 7010 of 2008
- **Bench:** S.B. Sinha, Cyriac Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/16-s-c-r-961-1-narendra-gopal-vidyarthi-v-rajat-vidyarthi-23982
- **Pages:** 29

## Headnote

f
Indian Succession Act, 1925 - ss. 74, 81 and 82 - Will
- Interpretation of - Held: Will is to be read as a whole - ,
Intention of testator must be asserted from the words used and c
the surrounding circumstances - On -facts, testator executed
Will and within one month purchased immovable property
from the amount set apart for the benefit of his widowed
daughter in law and her son - Order of High Court that by way
of Will only limited interest bequeathed in favour of D
beneficiary and his mother, not sustainable - From the Will
1
it can only be concluded that amount was set apart only for
benefit of widow and her son - It might have been invested in
>
immoveable property but only thereby they could not have
been deprived of the amount - Thus, title to said property , E
vested in the son -
Though use of word 'wakf' was not
appropriate but it only shows that testator intended to divest
himself of the said property.
Words and Phrases: Wakf - Meaning of - Held Is taking
F
out of one's ownership and passing it on to God's ownership
dedicating its usufruct-without regard to indigence or affluence,
perpetually and with the intention of obtaining Divine pleasure
..... It is for persons and individuals, or for institutions or
mosques and graveyards, or for other charitable purposes -
Wakf is neither gift nor trust.
G
Code of Civil Procedure, 1908 - s. 100 - Second appeal
- Maintainability of - Held: Can be entertained if substantial
question of law arises for its consideration and not otherwise
,_
961
H
962
SUPREME COURT REPORTS
[2008] 16 S.C.R.
A - Finding of fact arrived at by first appellate court is ordinarily
final - Finding of fact may give rise to a substantial question
of law when the same are based on no evidence or is
otherwise perverse or that correct legal principle§ were not
applied -
On facts, question formulated by High <;;ourt
B whether the property in dispute is a Joint Hindu Family
property, per se, not a sqbst~ntial question of law.
BS executed a Will in year 1965. He had five sons.
HS, father of the appellant was the eldest son and RS,
father of the respondent, is the youngest son. BS died
C in 1973. Within a month from the date of the execution of
the said Will, an immovable property was purchased for
a sum of Rs.32,0001- from the. amount set apart for the
benefit of the appellant and his mother C. Respondent
filed suit for declaration and permanent injunction against
D the appellant alleging that he had been making attempts
to dispose of the suit property belonging to the joint
family. Appellant contended that the said prqperty was
bequeathed to his mother, th~~, the respondent dld not
have any right over it. Trial court dismissed the suit
E despite finding that the suit property was a joint family
property. First appellate court reversed the finding that
the suit property was a joint family property. Respondent
filed second appeal. Two substantial questions of law
were formulated that whether after dismissal of suit,
F defendant has right to file appeal and whether the
property in dispute is Joint Hindu Family Property. First
question was answered in favour of appellant. With
regard to second question, High Court held that the
same was a joint family property. Hence the present
G appeal.
Allowing the appeal, the Court
HELD: 1.1. A finding of fact arrived at by the first
appellate court is ordinarily final. Its correctness can be
H questioned if, inter aila, the same was based upon no
NARENDRA GOPAL VIDYARTHI v. RAJAT VIDYARTHI
963
....
evidence or is otherwise perverse or that correct legal
A
~
principles were not applied. In terms of Section 100 CPC,
the High Court can entertain a second appeal if a
substantial question of law arises for its consideration
and not otherwise. A finding of fact may give rise to a
substantial question of law, inter alia, in the event the
B
findings are based on no evidence and/or while arriving
~
at the said finding, relevant admissible evidences have
not been taken into considera

## Text

_Characters 0–39,938 of 55,471. This is a partial read: ask again with offset=39938 for what follows._

[2008) 16 S.C.R. 961
,_1
NARENDRA GOPAL VIDYARTHI
A
v.
RAJAT VIDYARTHI
(Civil Appeal No. 7010 of 2008)
DECEMBER 02, 2008
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ]
f
Indian Succession Act, 1925 - ss. 74, 81 and 82 - Will
- Interpretation of - Held: Will is to be read as a whole - ,
Intention of testator must be asserted from the words used and c
the surrounding circumstances - On -facts, testator executed
Will and within one month purchased immovable property
from the amount set apart for the benefit of his widowed
daughter in law and her son - Order of High Court that by way
of Will only limited interest bequeathed in favour of D
beneficiary and his mother, not sustainable - From the Will
1
it can only be concluded that amount was set apart only for
benefit of widow and her son - It might have been invested in
>
immoveable property but only thereby they could not have
been deprived of the amount - Thus, title to said property , E
vested in the son -
Though use of word 'wakf' was not
appropriate but it only shows that testator intended to divest
himself of the said property.
Words and Phrases: Wakf - Meaning of - Held Is taking
F
out of one's ownership and passing it on to God's ownership
dedicating its usufruct-without regard to indigence or affluence,
perpetually and with the intention of obtaining Divine pleasure
..... It is for persons and individuals, or for institutions or
mosques and graveyards, or for other charitable purposes -
Wakf is neither gift nor trust.
G
Code of Civil Procedure, 1908 - s. 100 - Second appeal
- Maintainability of - Held: Can be entertained if substantial
question of law arises for its consideration and not otherwise
,_
961
H
962
SUPREME COURT REPORTS
[2008] 16 S.C.R.
A - Finding of fact arrived at by first appellate court is ordinarily
final - Finding of fact may give rise to a substantial question
of law when the same are based on no evidence or is
otherwise perverse or that correct legal principle§ were not
applied -
On facts, question formulated by High <;;ourt
B whether the property in dispute is a Joint Hindu Family
property, per se, not a sqbst~ntial question of law.
BS executed a Will in year 1965. He had five sons.
HS, father of the appellant was the eldest son and RS,
father of the respondent, is the youngest son. BS died
C in 1973. Within a month from the date of the execution of
the said Will, an immovable property was purchased for
a sum of Rs.32,0001- from the. amount set apart for the
benefit of the appellant and his mother C. Respondent
filed suit for declaration and permanent injunction against
D the appellant alleging that he had been making attempts
to dispose of the suit property belonging to the joint
family. Appellant contended that the said prqperty was
bequeathed to his mother, th~~, the respondent dld not
have any right over it. Trial court dismissed the suit
E despite finding that the suit property was a joint family
property. First appellate court reversed the finding that
the suit property was a joint family property. Respondent
filed second appeal. Two substantial questions of law
were formulated that whether after dismissal of suit,
F defendant has right to file appeal and whether the
property in dispute is Joint Hindu Family Property. First
question was answered in favour of appellant. With
regard to second question, High Court held that the
same was a joint family property. Hence the present
G appeal.
Allowing the appeal, the Court
HELD: 1.1. A finding of fact arrived at by the first
appellate court is ordinarily final. Its correctness can be
H questioned if, inter aila, the same was based upon no
NARENDRA GOPAL VIDYARTHI v. RAJAT VIDYARTHI
963
....
evidence or is otherwise perverse or that correct legal
A
~
principles were not applied. In terms of Section 100 CPC,
the High Court can entertain a second appeal if a
substantial question of law arises for its consideration
and not otherwise. A finding of fact may give rise to a
substantial question of law, inter alia, in the event the
B
findings are based on no evidence and/or while arriving
~
at the said finding, relevant admissible evidences have
not been taken into consideration or inadmissible
evidences have been taken into consideration. [Paras 13,
14 and 15] [971-F-H; 972-A-B]
c
1.2. The question formulated, whether the property •
in dispute is a Joint. Hindu Family property, per se, is not
a substantial question of law. High Court, however,
proceeded on the basis that if the judgment is based on
D
no evidence or is ·otherwise perverse, a substantial
question of law would arise for consideration. It cannot
ibe understood as to on what basis, the said question of .
law was formulated. Before an additional question is
formulated, the procedure laid down therefor must be
complied with. [Paras 13, 14 and 16] [971-G-H; 972-B-C]
E
Krishnan v Backiam & Anr. 2007 (11) SCALE 46 and
Boodireddy Chandraiah & Ors. v Airgela Lazmi & Anr. 2007
(1) SCALE 188, Referred to.
..
1.2. The recitals in the Will show that he was aware
F
~
of the uncertainties of life. He acknowledged that proper
arrangements should be made for maintenance of C-his
widowed daughter-in-law and the appellant. A bare
perusal of the Will would show that he had kept apart
Rs.301000/- for the appellant and C. He had also a sum of G
~
Rs.10,000/- in a firm V. He thought of purchasing an
immovable property for the benefit of the appellant and
his mother but the same did not materialize. According
to the testator, it was the duty of the brothers to look after
the widow of his son and.the appellant as they had been
H
964
SUPREME COURT REPORTS
[2008] 16 S.C.R.
A earning well, the child with his mother should live with
them so as to enable him to meet the ups and downs of
life. He did not want that the said amount should be
wasted anci for the said purpose; some sort of
supervision was necessary. Therefore, he wanted to
B make a 'wakr in their favour so as to enable them not only
to maintain themselves but also to spend for the
education and upbringing as well as marriage of
appellant. He declared that apart from himself,· nobody
else had any interest therein nor anybody can raise any
c dispute in regard thereto. He made his sons the
Executors of the wakf. He used the word 'wakf'. [Paras
20 and 22] [979-E; 981-A-C]
-
1.3. Some subsequent events took place. The house
property in question was purchased by BS in his own
D name from LK. Aft~r his death, the said property stood
mutated in the name of C and after her death in the name
of the appellant. No other family member objected
thereto. High Court, in fact; recorded that for the purpose
ofobtaining the order of mutation, other family members
E helped C. Admittedly, since the date of death of BS, the
appellant and his mother alone have been in possession
of the property. The suit was filed in 1995 and no other
family member was impleaded. [Para 21] [980-C, D, E, F]
F
1.4. The ordinary meaning of 'wakf' is taking out
•
something out of one's ownership- and passing it on to
f--
God's ownership dedicating its usufruct - without regard
to indigence or affluence, perpetually and with the
intention of obtaining Divine pleasure - for persons and·
individuals, or for institutians or mosques and
G graveyards, or for other charitable purposes. It is in their
true sense neither gift nor trust. [Para 23] [981-E]
t---
1.5. The Will provides that if the sum of Rs.30,00~/-
is found to be inadequate for purchase of an immovable
H property, the amount of Rs.10,000/- which was available
NARENDRA GOPAL VIDYARTHI v. RAJAT VIDYARTHI
965
~
with the partnership firm V be utilized which would be
A
determinative factor as regards the extent of title of the
property. The word used in the Will is 'karar'. It may mean
determination; it may also mean agreement. ~ut if the
extent of the title is to be determined, the same will have
a direct nexus with the amount spent from the sum of B
Rs.10,000/- which was with the partnership firm. If
-l
determination of the extent of the title has a nexus with
/
the amount spent from the said sum of Rs.30,000/- vis-avis the said sum of Rs.10,000/-, title was to be passed in1
favour of the beneficiary. [Paras 26 and 27] (981-H; 982- c
A, B, C]
1.6. When a sum is to be invested in the immoveable
property and in the event, any further sum is necessary,
the extent of title is required to be determined, it does
D
demonstrate the intention on the part of the testator. Wakf
is a 'final dedication'. It goes out of the control of
i
dedicator. The use of the said word may not be
f
appropriate in a situation of this nature but that only goes
to show that the testator intended to divest himself of the
said property. [Para 28] [982-D-E]
E
1. 7. The very fact that the testator categorically stated
that the extent of title in the property will depend upon
the amount of additional contribution requir~d to be
made from the fund of firm V itself is an indication to show
F
--.
that his wish was that title should vest in the beneficiaries
4
to the extent of the property which represented the
~
amount of Rs.30,000/- out of the total amount of
consideration required to acquire the same. There cannot
'
be any doubt whatsoever that his intention also was that G
the entire cash may not be paid to C as she was of gullible
1
-.\
character. She could be made to part therewith by any
other person by sweet words. A precaution was,
therefore, required to be taken. The amount was required
to be spent wisely. The amount which was required for
H
966
SUPREME COURT R~PORTS
[2008] 16 S.C.R.
~
A their maintenance and education of appellant whether
' -
'
derived from the interest or from the rental only was to
~
~
,._
be handed over. It is only for the aforementioned limited
purpose, the trust was created. The sole beneficiary of
the trust was merely the appellant and his mother. It may
B be true that the property was purchased in the name of
the testator himself. The High Court commented that the
same could have been done in the name of the appellant
-t
and his mothef or at least the purchase could have been
'
.._
a joint one. But the Wiil Is required to be construed on
'
c the basis of the terms used therein and not otherwise.
~
[Para 29] [982-F, G, H; 983-A-B]
1.8. Only because there does not exist any straight
...
forward answer, the same would not mean that
beneficiaries under the Will shall be deprived therefrom
D only because the property was purchased in his own
name by the testator. The testator had a long wish to
purchase an immoveable property. He even thought of
+-
acquiring a property, price whereof might exceed
I ...
Rs.30,000/-. If he wanted to keep apart the said sum of
'-
E
Rs.30,000/- for the benefit of the appellant and his mother,
he also wanted to bequeath the immoveable property
purchased out of the said amount. [Para 30] [983-C-D]
1.9. How a Will has to be interpreted is no longer res
F
integra. Intention of the testator must be ascertained from
the words used and the surrounding circumstances. The
Court will put itself in the armchair of the testator.
f- '
Applying the principles of construction of Will, as
contained in ss. 74, 82 and 84 of the Indian Succession
G
Act, if the Will is read as a whole and if the surrounding
circumstances are to be given effect to, the only
conclusion that can be reached was that the amount of
Rs.30,000/-was set apart only for the benefit of the
f....
appellant and bis mother. It might have been invested in
immoveable property but only thereby they could not
H have been deprived of the amount. The title to the said
NARENDRAGOPAL VIDYARTHI v. RAJAT VIDYARTHI
967
1
property vested in the appellant. Thus, .order of High Court A
cannot be sustained and is set aside. [Paras 32, 33 and
34] [984-E, F, G; 989-D]
Navneet Lal v. Goku/1976 (1) SCC 630; Arunkumar and
Anr. v. Shriniwas and Ors. 2003 (G) SCC aa; Bajrang Factory 8
Ltd. v. University of Calucutta 2007 (7) SCC 183; Anil Kak v.
f
Kumari Sharda Raje and Ors.· 2008 (6) SCALE 597 and
Shyamal Kanti Guha (D) Though LRs. and Ors. v. Meena
Bose 208 (9) SCALE 363, relied on.
_,
Case Law Reference:
c
----.
2007 (11) SCALE 46
Referred to.
Para 11 ·
2007(1) SCALE 188
Referred to.
Para 11
1976 (1) sec 630
Relied on.
Para 33
D
2003 (6) sec sa
Relied on.
Para 33 ·
1
2001 (7) sec 183.
Relied on.
Para 33
2008 (6) SCALE 597
Relied on.
Para 33
E
2008 (9) SCALE 363
Relied on.·
Para 33
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
701 O of 2008.
~
From the Judgment and final Order dated 4.4.2006 of the
F
'
High Court of Judicature of Madhya Pradesh Bench at Gwalior
~
in Second Appeal No. 356 of 2001.
Dhruv Metita, Harshvardhan Jha, y ashraj Singh Deora and
---'
T.S. Sabarish (for M/s. K.L. Mehta & Co.) for the Appellant.
G
Dr. Om Prakash Saxena, Dr. Sumant Bhardwaj, Shamba
""!i.
~
Dutta and Mridula Ray Bhardwaj for the Respondent.
l
The Judgment of the Court was delivered by
H
968
SUPREME COURT REPORTS
t~oos11s s.cJt
I •
r
I
A
S.B. SINHA; J.1. Leave granted.
'
J-
}---
2. This appeal is directed against a judgment .and. order
dated 4.4.2006 passed by a learned Single Judge ofthe High
Court of Judicature of Madhya Pradesh, Gwalior Bench, Gwalior
B ·in Second Appeal No.356 of 2001 whereby and whereunder
an appeal preferred by the respondent from the judgment and
decree dated 2.7.2001 passed by the 9th Additional District
Judge, Gwalior in Civil Appeal No.86A of 1999 affirming the
~
judgment and decree dated 1.11.1999 passed by the Xlth Clvil
~
c Judge Class II, Gwalior in Civil Suit No.20~A of 1995
dismissing civil suit filed by appellant/respondent, was allowed.
3. Controversy involved in this app~al centres around the
~
t
construction of a Will executed by one Sh_ri Bishan Sahai
I
Vidyarthi on 21.11.1965. The said Bishan Singh Sahai died in
D or about 1973.
)----
4. Indisputably, within a month from the date 'of the
•,
execution of the said Will, an immoveable property. was
T
p'urchased for a sum of Rs.32,000/-, inter alia, from the amount ·
•
E
set apart for the benefit of the appellant and his mother.·.
5. Bishan Sahai -Vidyarthi had five sons, na·mely,
t--
Rameshwar Sahai, Rajeshwar Sahai, Harbansh Sahai,
Raghuvansh Sahai and Krishan Sahai; the eldest of them being
t
Harbansh Shai, father of the appellant herein. PlaintiffI-
F respondent Rajat Vidyarthi is son of Rameshwar Sahai, the
~
youngest son of Bishan Sahai.
f-.
I
6. The aforementioned suit was filed by the respondent for
L
declaration and permanent injunction against the appellant
I
herein alleging that he had been making attempts to dispose
G of the suit property which is a house belonging to the joint
~
family. Appellant, in his written statement, contended that the
I
said property was bequeathed to his mother and, thus .. the
~
~r
plaintiff-respondent had no right in relation thereto.
H
7. The learned Trial Judge, despite finding that the suit
r
~
<
NARENDRA GOPAL VIDYARTHI v. RAJAT VIDYARTHI
969
[S.B. SINHA, J.]
,.,
property was a joint family property, inter alia, on the premise
A
-1
that no injunction can be granted against a co-owner in terms
of Section 41 (h) of the Specific Relief Act, 1963 and the only
remedy available to the plaintiff was to file a suit for partition,
dismissed the suit.
B
8. The respondent did not prefer any appeal thereagainst.
f
The appellant, however, preferred an appeal against the finding
(
made therein that the suit property was a joint family property.
By reason of a judgment and order dated 2.7.2001, the said
appeal was allowed by the learned 9th Additional. District c
Judge, Gwalior, holding : ..
"21. At the time of execution of the Will, if Bishan Sahai
was trying to purchase the house for Chandramukhi, but
no appropriate and good house was found by him and
even plaintiff has not initiated any proceedings on the
[D
ground that their money is invested in the disputed house
"'(
before filing of the suit after the demise of Bishan Sahai,
though Bishan Sahai had died in the year 1973. Therefore,
•
this inference could be drawn from the conduct of other
heirs of Bishari Sahai that the disputed house has been
E
purchased from the amount payable to Chandramukhi.
Therefore, plaintiff has failed to prove that the disputed
house is the property of the Joint Family."
9. A Second Appeal was preferred thereagainst by the
F
respondent. Two substantial questions of law were formulated
which are:
"(1) Whether, after dismissal of the suit, defendant has
right to file appeal?
G
(2)
Whether, the property in dispute is Joint Hindu
~
Family Property?"
The first question was answered in favour of the appellant.
Respondent has not filed any appeal thereagainst.
H
\
..
970
SUPREME COURT REPORTS
[2008] 16 S.C.R.
A
So far as the second substantial question of law is
concerned, the High Court held :
·
'
B
c
D
E
G
H
· Substantial. question of law Nq.2 is "whether the property
in dispute is Joint Hindu Family Property'', To decid~ this
substantial question of law, I will have to go through· the ·
record of the trial court, judgment and .decree passed by
trial court and lower appellant court. it is .also necessary
·to peruse tlie evidence adduced by both the parties and
· . .\
if it reveals that learned First Appeal court's finding
pertaining to sole ownership of defendant/respondents to
disputed house is perverse, against evidence, misreading
of evidence or overlooking of any evidence then, it would .
be necessary to re-appreciate the evidence adduced by
both the parties."
·
.
I
1 b. Appellant is, thus, before us.
11. Mr. Dhruv Mehta, .learned counsel appearing on behalf
of the appellant, would submit :
·
( 1) , Keeping in .view the fact that after death of Bish an
Sahai, not only the property was mutated in the ·
name of Chandramuk~i, the mother of the appellant
and also the appel1ant, the High Court committed .
a serious error in opining that by reason of the said
·Will dated 21.11.1965, only a limited interest has
been bequeathed in favour of the appellant and his
mother.
;. · (2)
The second question oflaW formulated is not a
substantial question of law. The approach of the
High Court in formulating the same was, thus,
erroneous, wherefor no opportunity ofhearing was
·given to the appellant.
·
Reliance in this behalf has been placed on
Krishnan v. Backiam & Anr. [2007 (11) SCALE 46]
and Boodireddy Chandraiah & Ors. v. Airgela.
I-r
• Il-
'
I-
NARENDRA GOPAL VIDYARTHI v. RAJAT VIDYARTHI
971
· [S.B. SINHA, J.]
>.
Laxmi & Anr. (2007 (1) SCALE 188].
A
-1
(3)
In any event, the High Committed a serious error
insofar as it misconstrued and misinterpreted the
· said Will dated 21.11.1965 tg hold that by reason
thereof, only a li.mited interest iri favour of the
B
appellant Rad been bequeathed.
···:
-.J.
1a. Or. Saxena, learned counsel appearing on behalf of
,,
the respondent, on the other hand, would submit :
~
(1)
No objection having been raised by the appellant c
befqr~ the High Court, it does not lie in the mouth
of the appellant now to contend that the substantial
question of law formulated by the High Court was
not correct.
(2)
A bare perusal of the Will dated 21 .11 .1965 would
D
clearly show that the testator who was proficient in
1
Urdu having used the word 'wakf and a board of
~
trustees consisting of four persons named therein
having been constituted, no absolute interest had
been or could have been conferred in the appellant.
E
13 .. One of the issues which arose for consideration before
the High Court was as to whether the property in question was
a joint family property. The learned Trial Judge answered the
question in the affirmative. The same was reversed by the first
F
-~
appellate court. A finding of fact arrived at by the first appellate
court is ordinarily final. Its correctness can be questioned if, inter
aila, the same was based upon no evidence or is otherwise
· perverse or that correct legal principles were applied. The
question formulated, namely, as to whether the property in
G
dispute is. a Joint Hindu Family property, per se, is not a
. ~'
substantial question of law .
14. The High Court, however, proceeded on the basis that
if the judgment is based on no evidence or is otherwise
perverse, a substantial question of law would arise for
;
.
-
~
"
~ . . .
·H
,,
972
SUPREME COURT REPORTS
[2008] 16 S.C.R.
I-
\ ..
l.
A consideration. It is so but therefor also a substantial q1,.1e$tion
)'---
of law must be framed. In terms of Section 100 of the Code of
Civil Procedure, the High .Court can entertain a ~e~nf;i ~ppeal
if a sub§tantial question of law arises for its consideratlofi f:lR€1
not otherwise.
B
15. A finding of fact may give rise to a substantial question
of law, inter alia, in the event the findings are based on no
~
evidence and/or while arriving at the said finding, relevant
" t
admissible evidences have not been taken into consideration
or inadmissible evidences have been take" if!tQ consideration.
c
I=
16. We fail to understand as to on what basis, the ~ejg
question of law was formulated. Before an additional question
is formulated, the procedure laid down therefor must be
complied with. This aspect of the matter stands concluded by
D this Court in Krishn;:m's case (supra), wherein it was held :
il10. Under the amended S@~ti9n, 100 CPC the High Court
T
has to frame substantial questit;1n$ @f l?.'!V and can decide
the second appeal only on those queeti@fl§ frerried. A
E
perusal of the questions framed shows that no QUi§t!@~ @f
law was framed as to whether the finding of fact of the First
Appellate Court that Lakshmi and Ramayee are one and
the same person, is based on no evidence or is perverse.
11. !t may be men,tioned that the First Appellate Court urider
F
Section 96 CPC is the last court of facts. The High Court
tn second appeal under Section 100 CPC cannot interfere
f.,
with the findings of fact recorded by the First Appellate
Court under Section 96 CPC. No doubt the findings of fact
of the First Appellate Court can be challenged in second
G
appeal on the ground that the said findings are based on
no evidence or are perverse, but even in that case a
4question of law has to be formulated and framed by the
High Court to that effect In the present case no question
was framed-by the High Court as to .whether the finding of
H
the First Appellate Court thcit Ramayee and Lakshmi are
\
973
NARENDRA GOPAL VIDYARTHI v. RAJATVIDYARTHI
[S.B. SINHA, J.]
~
one and the same person 1 is a finding based on no
A
1
evidence or is pery~rn~, Hence the findings of the First
Appella~e Qgyrt \Rat Ramayee and Lakshmi are one and
\~~ §aff\e person, could not have been interfered with by
t\'le High Court.''
B
{See also Subramaniaswamy Temple, Ratnagiri v. V.
-.l.
Kanna Gounder (Dead) by LRs. [2008 (9) SCALE 386]}.
_,
Yet again in Boodireddy Chandraiah's case (supra), this
Court opined:
c
"8. The phrase 'substantial question of law', as occurring
in the amended Section 100 CPC 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
D
something in contradistinction with-technical, of no
l
substance or consequence,, or academic merely. However,
it is clear that th§ legislature has chosen not to qualify the
~
scgg~, Q,f
1§ub~tantial question of law' by suffixing the words
1~f ~~neral Importance' as has been done in many other
E
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 Ditta v. T. Ram Ditta the phrase
F
·~
·~ubstantial question of law' as it was employed in the last
clause of the then existing Section 100 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 G
of law which was involved in the case. In Chunilal case
~
the Constitution Bench expressed agreement wlth the
following view taken by a Full Bench of the Madras High
Court in Rimmalapudi Subba Rao v. Noony Veeraju:
(Chunilal case)
H
974
SUPREME COURT REPORTS .
[2008] 16 S.C.R.
f.-
. ~
A
'5 . ... when a question of law is fairly arguable,.
..
,.._
where there is room for difference of opinion. on it
or where th~ court thought it necessary to deal with ·
that question at some length and discuss alternative.
views, then the question would be ~ substantial
8
question of law. On the other hand if th@ Q!,l?§tien
was practically covered by the decision of the
highest court or if the g~neral principles. to be
>--
applied in determining the.question are weff settled
.....
and the only question was of applying those
c
principles to the particular facts of the case it would
not be a substantial question of law.'
12. The principles relating to Section 100 CPC relev~mf
· for this case may be summarised thus :
0
(i) An inference of fact from the recitals or contents
of a document is a question of fact. But the legal
effect of the terms of a document is a question of
y
law. Construction of a document involving the
~
application of any principle of law, is also a question
I
E
oflaw. Therefore, when there is misconstruction of ·
a document or wrong application of a principle of
1
. law ;in construing a document, it gives rise to a ·
question of law.
·
·
F
(ii) The High Court should be satisfied that the case
· . involves a substantial question of law, and not a
mere question of law: A question of law having a
~·
material bearing on the decision of the case (that
is, a question, answer to which affects the rights of
G
parties to the suit) will be a sut:>stantial question of
law, if it is not covered by any specific provisions
of law or settled legal principle emerging from
A
1
binding precedents, and, involves a debatable legal
~
issue. A substantial question of law will-also arise
in a contrary situation, where the legal position is.
H
clear, either on account of express provisions of law
• '
/
NARENPRA GOPAI,, VIDYARTHI v. RAJAT VIDYARTHI
975
[S.8. SINHA, J.]
I
or binding pr~c~dents, but the court below ha~ A
~
decided the matter, either ignoring or acting
contrary to such legal principle. In the second type
of cases, the substantial question of law arises not
because the· law is still debatable, but because the
decision rendered on a material question, violates B
the settled ·position of law.
k
13. The general rule is that the High Court will not interfere
'·
with the concurrent findings of the courts below. But it is
. not an absolute rule. Some of the well-recognised c
· exceptions are where (i) the courts below have ignoreq
material evidence or acted on no evidence; (ii) the courts
have drawn wrong inferences from proved facts by
applying the law erroneously; or (iii) the courts have wrongly
cast the burden of proof. When we refer to 'decision based
D
on no evidence', it not only refers to cases where there is
a total dearth of evidence, but also refers to any case;
1
where the evidence, taken as a whole, is not reasonably
;
capable of supporting the finding."
17. This Court, for the reasons stated hereinbefore, should E
ordinarily upon setting aside the judgment of the High Court,
remit the matter to it. However, we, in view of the fact that the
suit was filed in the year 1995 and the principal controversy
between the parties is construction of the said Will dated.
21.11.1965, though~ it proper to dispose of the matter F
ourselves .
. 4:
18. Before adverting to the said question, we may place
on record that we have heard the learned counsel for the
parties at some length on 17. 7 .2008. Appellant had furnished .·
G
to us an unofficial translation of the said Will, correctness
Whereofwas disputed by Dr. Saxena. We, therefore, entrusted
the job to the official translator. A copy of the said Will, as
translated by the official translator, has been placed before us.
It is accepted by the counsel for both the parties that the said
translation, to put it simply, even does not carry any meaning.
H
976
SUPRE~E ·COURT REPO~T§
A We, therefore, chose to igno.re the same.
19. The translated. portions of the Will which are disputea
one are as under :
Extract of Will Official Translation
B
c
D
E
F
G
H
~ anM ~
t
My last willing~ness
fcp. ~
tfl{A" ~
is that I shall cancel my
~<ITT~ m ~ all previous.Wills ang ~y
way of this Will, I in my
¢1'lfl<lo"11~· ctr ~
\ill complete mental and
ll ~~<PX w
physical conscious-
( ~. anM ammr ness, execute that out
~ ~
1-R qft ~ of my self acquired
,>\...,,...
~
earnings a sum of
'iqi CITTCIT
'f,.,,~ if ~ Rs.30,000/- (Rupees
11 crfalf
tfi~ 6'\ilH fifteen thot1sand only)
30,000/- ~
~
be §pared QF s13t apart
f'R:q;jq~<i ~
m
from.the benen~ of Dear
15,0001- 'liitl'm ~
~ tq;-
Narendra Gopal Vidyarthi and his widowed
3T\ifi\if
o:r~;:~ lfhz;r mother Chand-ramukhi
fcrnwff 3TR ~
-rfr
.,, Vidyarthi so that the.
il~!f<if) ~ctr ~
study and marriage etc.
ctr~ qqq; <PX { ~
of Narendra Gopal and
~
l'JTtm;r qft cm;lTq Livelihood of his mother
,,
· such. as fooding and
er tH&llld er mcfi ~
clothes could easily be
~ ~
iff ~
iff arranged and they
~~~~~
would not get any
~
q;r lflCfIB ~
difficulty in their lives. No
m~atR·fc.ITTfi one t)as any right or
claim over his MundaCRi! ~ ~
.3'1'R' raja amount and I have
-q~~n;ft "I' i!T I ~~ complete right to use
j'Ri'l\i)I c:m;rr ~
tJ"l" this as per my wishes
~ fWml ~ 3TR fcp'lft and nobody has any
~ ~
objection or right to
;
~ :
.,.,.,.t ~
raise di~pute. Therefore
~""'1
in
my
complete
~
'$ ~
~ physical and mental
~
'$ ~
atR ~ · consciousness by way
Correct Translation
H \§ nw lsst wish
th9t PY WiW §f thi!?
will, wh'ich I am stating
in my senses, that
from my self acquired
earn-ings of whole life,
only Rs.30,000/- (Rs.
Thirty thousand only),
the half of which i~
only
Rs.15,0~Q/.,,
(Rupees
fifteen
thoμsand only) may
give 'Wakr for the
benefits of dear Narendra Gopal Vidyarthi,
and his widow mother
Chander Mukhi Vidyarthi, by which for the
education
·~rnd
mainten-ance and· for
the marriage .etp. e.f
Narendra GoPC\H~rn~ {grth,~ rn~\nteriance, food,
clothes etc. of his
Mother appropriate
arrangement could be
made, and throughout
life, there rn~y not t:Je
enY type of difficulty
!!ind problem. On this
etipulated amount
excepting me, there is
not right or concern of
anyone else, and I,
according to my wish,
for the
use and
NAR~NDRA GOPAL Vl!)YARTHI v. RAJAT VIDYARTHI
977
[S.S. SINHA, J.]
<ff~ ~~-<PT- of this Will, I Vishun
~
~
6Cf> ~ afR fcITT:fT
Sahay son of Lala Sibo
q;)-
-rl-:lSahay hereby gifting the
~ ~ lR "''~ Mundaraja amount of
~crm:;n:rr~~<PT Rs.30,000/- Rupees
~ ~
~ 1 ~
thirty thousand only)
i!l$'<'l'Rll ~~~
qff\4d11~ <ff ~
lf
tTiirf ~
~ ~
ftrq WflJ !!'< IWJ'l I CITm
~
5\J'1"R' ~
q;)- w
~-Cf> 31'f-q> ~~ ~o
•ql~4"( ~
lf ~
~
~Cf> I'd "'C lf \i!+rr t ~
~~f<mr~afR
'i.Hrctfl 'fff
:q-;.~ 11 ~ft
f<mT~ ~ <ff lfCITTG <6
~~~~~
~'CPW{ ............ ..
cft~ 6\jfH
~'l1'tl'T
30000 \:ill ll';f ~
~
afR ~
l!T <ff ~
~
~
~ \ifITT crq;
~'ITT~~
Gt 14 cU G if (if7fT ~
~
1 arEr ~ lf<PR
~°Rt"G~ CffT
q;r~nr
which has been deposited jn the Saving
account of Bank of India
Ltd., Gwalior Branch in
the name of dear
Narendra Gopal and his
mother Chandar Mukhi
Vidhyarthi and thus for
their benefit I am making
a trust ...
The amount of the
said Rs.30,000/- which
has been spared by me
in the name of Narendra
Gopal and his widowed
mother, as far as
possible,
shall
be
invested ;n the immoveable property. Till date
the efforts to purchase
house has not been
fulfilled.
If in
the
purchase of immovable
property a sum of more
than
the
sum
of
Rs.30,000/- is required
then the same shall be
inyested
from
the
working capital of
Vidyarthi and Sons and
agreern~nt share be
rni:!Qe ac~ordingly.
rffCfiffl m ~-311R ~
~\1114GIG~
ff 'ij)cftp Cj)XGf cftX1 ~
~
30000 ~ ~
~mm~-~
W'tf~~-il'Xl~
ftf 'l'T
iJf T'tf
3f h
6Cfi~t'CffT~o \ffiT ~
In any c;ircumstances, at one time the
~aiRlct> 'ITT ~
\jfj'<f I number of the trustees
spending, I have
complete right to
make the Will, and no
other person has any
right to object ci>r
quarrel. As such in
my
comple~e
senses, by way of
this will, I Bishan
Sahai son of Lala
Shiv
Sahai,
by
separating,
the
amount of Rs.30,000/
- which is deposited
in savings accounts
in the Bank of India
Ltd., Gwalior Branch.,
for the benefits of
Nare-ndra
Gopal
Vidyarthi, and his
motner
Chander
Mukhi Vid-yarthi,
hereby 'WAKF' to
establish a Trust ......
Rupees
thirty
thousand (30,000/-)
which I have Wakf for
Narendra Gopal and
his mother, so far as
possible may be
invested in immoveable property. Efforts
to
purchase the
house4
have
remained
unsuccessful till now. In
,
case in the pur:..chase '
of the immov-able
property, if more: than
the Wakf amount of
Rupees thirty thousand (30,000/-) is
A
B
c
D
E
F
G
H
A
B
c
978
SUPREME COURT REPORfS
~ ·-
.. "
~
1ft W'ff T{ ~
shall not be more than
~
Cfiffi' 'il ~
qft four. If any trustee act
~
"q°R. ~ ~
'I' against the motive of
this trust of uses the
W1ft 3llR -cffll 1ft ~
amount of this trust for
trm m !fR!'<lfil ~
'q"(' his own benefit then the
~
q«l'll<i'"llq ~. ~
· said trustee would be
q; ~
~
~ ~
qfi presumed to be removed
~ CIR
from the post of trustee
·
CR\ifi
m ~ or property of this trust
ctft~m~m and the. remaining
'Gl'Tftr 1fCPTC;' ~ ft;r~ trustee of this trust
~ffi"l1<i1 CIR m
~ ~
would
take
action
<f>1m3Tirt ~ ~
against him. May God
~
~
·~ ~
fulfill my wishes and
lfTGT
~'fil\jf ~~ct
grant peace to my soul.
(2008] 16 S;C.R :
req~!r~d~ th~n th~t
may be invested from
the. capital of Viciyarthl
& sons and the rights
of ownership may be
fixed according to that.
ltslt'i I q) q;nf<fll ~
D ~
~
% QlFtT
~ ~ 3fN ~· 3lTcirT
<ITT~~.
In any case, at any
time, the number of
Trustees shall not be
more than four, if .any
trustee singly or
jointly acts against
the motive of the trust
created by this will or
uses the money as
property of the trust for
his personal benefit
th~p· ttie s~id trustee
would be pr~sumed to
pe removed from his
post of trustee and the
remaining trustees will
be able to take action.
against him .. May God
fulfill my wishes and
give peace to my soul.
E
According to 'the respondent, the af9r~m@nti().n~p
F . controversial portion should. read as unq~r :
G
"In such circumstance§, if immovable property does not. get
available, handing over of caS,h amount to her would be
useful destruction~ Therefore, for the purpose of safety ·of
the amount, it would be. must that she be riot given all big
cash amount. Watch on rental amount and interest is must.
For the bigger expenditure, the decision and sanction of
the trustees is necessary.
If immovable property becomes· available then rent of the
H
same otherwise the bank interest over the said amoun1 of
y·,
•
1-·.
NARENDRA GOPALVIDYARTHI v. RAJATVIDYARTHI
979
[S.S. SINHA, J.]
~
Rs.30,000/- shal! be given to the Narendra Gopal and his
A
widowed mother for their personal expenses so that they
would not have to stretch their hands before anyone for the
personal expenses. In this regard trustees have to be
gracious and farsighted. It would be taken care that the
,
· property shall remain family and would not be mortgaged
B
or sold.
"'
Rs.30,000/- was set apart for the limited purpose of
.
~
maintehance and for the benefit of Vaidarthi. and his
mother.
c
This means that the intention of the testator was that only
small amount should be given not a big amount and for the
·safety of the amount, big cash should not be given to the
widowed mother or the petitioner. Strict vigil would be
must. The decisions and sanction of the trustees is
D
necessary, Watch on rental and interest is must. They
1
wanted to. bring up the widowed mother as well as the
~
minor child and for that purpose they spared that amount."
20. We have also been taken through the entire original
E
Will. The testator had a philosophical bent of mind. The recitals
in the Will show that he was aware of the uncertainties of life.
He had made a Will also on 19th February, 1959. As he lived
till 1965, he executed the Will in question. The Will recites that
God had been kind enough to him. He had four daughters,
F
Sunbderkala, Sarladevi, Shanti Devi and Lakshmi Devi who
were happily married. He also acknowledged that he had five
sons, Raghuvansh Sahay (Mithubabu), Harbans Sahay
(Kaptan), Rameshwar Sahay, Rajeshwar Sahay and Krishna
Sahai (Kisho). He also stated that out of the five sons, four,
G
namely, Raguuvansh Sahay, Rameshwar Sahay, Rajesnwar
..A
Sahay and Krishna Sahay were highly educated and well placed
in their life. They are married and were in employment. They
had been leading a happy life. He wished a lon·g and
prosperous life for them. However, he expressed his agony for
I'
the death of his eldest son Harvansh Sahay (Kaptan) who had
H
980
Sl.JPREME COURT REPORTS
[2008) 16 S.C.R.
A died in the year 1949 leaving behind a small child and a young
wife. He aekriowl@dges that proper ar~angements should be
.made tot maintenance of Chahdramukhi, his widowed
daughter.;in;.law. Some arrangements should also be made for
education, maintenance arid marriage. of her son Narendra
g Gopc:ll. It appea-rs from the Will that he had saved about
Rs.30,000/-. Indisputably, he had also a sum of Rs.10,000/- In
a firm known as "Vidyarthi and Sons". Indisputably again, he
thought of purchasing an initnoveable pr<Jperty for the benefit
of the appellant and his mother out tn~ same did not
c materialize.
21. It is in the aforementioned backdrop of facts, the Will
in question is required to be construed. Before we proceed to
do so, we may also notice some subsequent events. The house
property In question was purchased by Bishan Sahai in his own
D name from Stnt. Laxmibai Kelkar. After his death which took
place in 1973; the· said property stood mutated in the name of
Chandramukhi Devi and after her death in the name of the
appellant. No other family member objected thereto. The High
Court, in its impugned judgment, has, in fact, recorded that for
E the purpose of obtaining the order of mutation, the other family
members he_lped Chandramukhi. They also filed applications
for exemption from payment of property tax by her. Admittedly,
since the date.of death of Bishan Sahai, the appellant and his
mother alone have been.in possession of the property. The suit
F was filed in the year 1995. Therein, no other family member
was impleaded. If the plaintiff-respondent intended to obtain a
d_eclaration that the property in question is a joint family
property; it was expected that other family members would be
impleaded. None of the sohs of Bishan Sahai was examined
G as a witness. No explanation was sought' for from them as to
why they themselves were instrumental in getting the name of
Chandramukhi mutated.
.
22. A bare perusal of the Will would show that he-had kept
apart Rs.30,000/- for Chandramukhi and the appellant.· The
H
NARENDRA GOPAL VIDYARTHI v. RAJATVIDYARTHI
981
[S.B. SINHA, J)
.J
purpose of doing stl was that from his IHcdme, he had made
A
i
jew~lleries ffif othefS. The Will speaks of division of the utensils
13fsu, Ao~t>rding to him, it was the duty of the brothers to look
after the widow of Iii§ son Kaptan and Narendra Gopal, as they
had beefl earning Wall1 the child bf with his mother should iive
With them so as to enable him to meet the ups and downs of B
life. He did hot Want that the said amount should be wasted and
~
for tfte said purpose, some sort of supervision was necessary.
•
He, therefore, wanted to make a 'wakf in their favour so as, to
enable them not only to maintain themselves but also to spend
for the education and upbringing as well as marriage of c
Narendra Gopal. He declared that apart from himself, nobody
else had any interest therein nor anybody can raise any dispute
in regard thereto. He made his sof1S the Executors of the wakf.
He as; indicated hereinbefore, used the word 'wakf.
23. What should be the tflie meaning of the said word is
D
the question. Whereas, Mr.