# NARAYANAN RAJENDRAN & ANOTHER v. LEKSHMY SAROJINI & OTHERS

- **Citation:** [2009] 2 S.C.R. 71
- **Court:** Supreme Court of India
- **Decided:** 2009-02-12
- **Case number:** Civil Appeal No.742 Of 2001
- **Bench:** Dalveer Bhandari, Harjit Singh Bedi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/narayanan-rajendran-another-v-lekshmy-sarojini-others-25508
- **Pages:** 29

## Headnote

Code Of Civil Procedure,.1908 :
A_
B
s. 100 - Second appeal - High Court setting aside concurrent findings of courts below - Held: Scope of interference c
by High Court after 1976 Amendment is strictly confined to
cases involving substantial questions of law - It is reiterated
that High Court would not be justified in dealing with any second appeal without first formulating substantial question of law
- In the instant case, High Court erred in interfering with the
0
findings of facts arrived at by the trial court and affirmed by
first appellate court - Judgment of High Court set aside.
The respondents-plaintiffs filed a suit contending that
the suit property was a subtarward property of defendant
no. 1 and, therefore, the plaintiffs and defendants no. 1 to
E
3 being members of the subtarward, were entitled to 1/11
share each in the suit property under the customary law.
The stand of defendant no. 1 was that he had exclusive
right, title and possession over the property under a registered settlement deed executed by his grand parents
F
and, as such, the suit property was not partible. The trial
court dismissed the suit holding that the plaintiffs failed
to prove the suit property as subtarward property or that
the parties were marumakkathayee ezhavas and were
governed by the customary marumukkathayam law, on
G
the other hand, the parties were governed by
makkathayam law. The first appellate court affirmed the
judgment. But the High Court in second appeal filed by
the plaintiffs held that parties to the suit being residents
71
72
SUPREME COURT REPORTS
[2009] 2 S.C.R.
A of Kollam District and the property also being situated in
the said district, they were following Misravazhi system
~
of inheritance which was essentially based on the principle of marumakkathayam system of inheritance with
modifications recognized by judicial pronouncements.
B
In the appeal filed by the defendants it was contended for the appellants that the High Court erred in interfering with the concurrent findings of fact of the courts
below, particularly, when the second appeal did not involve any substantial question of law. It was further conc tended that the burden was on the plaintiffs, and they
failed to prove that they were governed by the customary
marumakkathayam law of inheritance.
Allowing the appeal, the Court
D
HELD: 1.1 Section 100 of the Code of Civil Procedure, 1908 shows that the High Court can exercise its jurisdiction thereunder only on the basis of substantial
questions of law which are to be framed at the time of
admission of the second appeal which has to be heard
E and decided only on the basis of such duly framed substantial questions of law. The judgment under appeal
shows that no such procedure was followed by the Single
Judge. It is held by a catena of judgments by this Court,
that the judgment rendered by High Court u/s 100 C.P.C.
+
F without following the procedure laid down therein cannot be sustained.[para 33] [ 87-G, H; 88-A,B]
Sheet Chand v. Prakash Chand (1998) 6 SCC 683;
Kanai Lal Garari v. Murari Ganguly (1999) 6 SCC 35;
Panchugopal Barua v. Umesh Chandra Goswami (1997) 4
G SCC 713; Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC
179; K. Raj and Anr. v. Muthamma (2001) 6 SCC 279; lshwar
~
Dass Jain v. Sohan Lal (2000) 1 SCC 434; Roop Singh v.
Ram Singh (2000) 3 SCC 708; Santosh Hazari v. Purushottam
Tiwari (deceased) by LRs. (2001) 3 SCC 179; Kamti Devi
H (Smt.) and Anr. v. Poshi Ram (2001) 5 SCC 311; Thiagarajan
NARAYANAN RAJENDRAN & ANOTHER V.
73
LEKSHMY SAROJINI & OTHERS
v. Sri Venugopalaswamy B. Koil (2004) 5 SCC 762; CommisA
,...
sioner, Hindu Religious & Charitable Endowments v. P
Shanmugama (2005) 9 SCC 232; State of Kera/a v. Mohd.
Kunhi (2005) 10 SCC 139; Madhavan Nair v. Bhaskar Pillai
(2005) 10 SCC 553; Harjeet Singh v. Amrik Singh (2005) 12
SCC 270; H. P Pyarejan v. Dasappa (2006) 2 SCC 496;
B
Chandrika Singh (Dead) by LRS & Another v. Sarjug Singh &
Another (2006) 12 SCC 49; Chacko & Another v. Mahadevan
(20

## Text

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[2009] 2 S.C.R. 71
NARAYANAN RAJENDRAN & ANOTHER
v.
LEKSHMY SAROJINI & OTHERS
Civil Appeal No.742 Of 2001
FEBRUARY 12, 2009
(DALVEER BHANDARI AND HARJIT SINGH BEDI, JJ.)
Code Of Civil Procedure,.1908 :
A_
B
s. 100 - Second appeal - High Court setting aside concurrent findings of courts below - Held: Scope of interference c
by High Court after 1976 Amendment is strictly confined to
cases involving substantial questions of law - It is reiterated
that High Court would not be justified in dealing with any second appeal without first formulating substantial question of law
- In the instant case, High Court erred in interfering with the
0
findings of facts arrived at by the trial court and affirmed by
first appellate court - Judgment of High Court set aside.
The respondents-plaintiffs filed a suit contending that
the suit property was a subtarward property of defendant
no. 1 and, therefore, the plaintiffs and defendants no. 1 to
E
3 being members of the subtarward, were entitled to 1/11
share each in the suit property under the customary law.
The stand of defendant no. 1 was that he had exclusive
right, title and possession over the property under a registered settlement deed executed by his grand parents
F
and, as such, the suit property was not partible. The trial
court dismissed the suit holding that the plaintiffs failed
to prove the suit property as subtarward property or that
the parties were marumakkathayee ezhavas and were
governed by the customary marumukkathayam law, on
G
the other hand, the parties were governed by
makkathayam law. The first appellate court affirmed the
judgment. But the High Court in second appeal filed by
the plaintiffs held that parties to the suit being residents
71
72
SUPREME COURT REPORTS
[2009] 2 S.C.R.
A of Kollam District and the property also being situated in
the said district, they were following Misravazhi system
~
of inheritance which was essentially based on the principle of marumakkathayam system of inheritance with
modifications recognized by judicial pronouncements.
B
In the appeal filed by the defendants it was contended for the appellants that the High Court erred in interfering with the concurrent findings of fact of the courts
below, particularly, when the second appeal did not involve any substantial question of law. It was further conc tended that the burden was on the plaintiffs, and they
failed to prove that they were governed by the customary
marumakkathayam law of inheritance.
Allowing the appeal, the Court
D
HELD: 1.1 Section 100 of the Code of Civil Procedure, 1908 shows that the High Court can exercise its jurisdiction thereunder only on the basis of substantial
questions of law which are to be framed at the time of
admission of the second appeal which has to be heard
E and decided only on the basis of such duly framed substantial questions of law. The judgment under appeal
shows that no such procedure was followed by the Single
Judge. It is held by a catena of judgments by this Court,
that the judgment rendered by High Court u/s 100 C.P.C.
+
F without following the procedure laid down therein cannot be sustained.[para 33] [ 87-G, H; 88-A,B]
Sheet Chand v. Prakash Chand (1998) 6 SCC 683;
Kanai Lal Garari v. Murari Ganguly (1999) 6 SCC 35;
Panchugopal Barua v. Umesh Chandra Goswami (1997) 4
G SCC 713; Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC
179; K. Raj and Anr. v. Muthamma (2001) 6 SCC 279; lshwar
~
Dass Jain v. Sohan Lal (2000) 1 SCC 434; Roop Singh v.
Ram Singh (2000) 3 SCC 708; Santosh Hazari v. Purushottam
Tiwari (deceased) by LRs. (2001) 3 SCC 179; Kamti Devi
H (Smt.) and Anr. v. Poshi Ram (2001) 5 SCC 311; Thiagarajan
NARAYANAN RAJENDRAN & ANOTHER V.
73
LEKSHMY SAROJINI & OTHERS
v. Sri Venugopalaswamy B. Koil (2004) 5 SCC 762; CommisA
,...
sioner, Hindu Religious & Charitable Endowments v. P
Shanmugama (2005) 9 SCC 232; State of Kera/a v. Mohd.
Kunhi (2005) 10 SCC 139; Madhavan Nair v. Bhaskar Pillai
(2005) 10 SCC 553; Harjeet Singh v. Amrik Singh (2005) 12
SCC 270; H. P Pyarejan v. Dasappa (2006) 2 SCC 496;
B
Chandrika Singh (Dead) by LRS & Another v. Sarjug Singh &
Another (2006) 12 SCC 49; Chacko & Another v. Mahadevan
(2007) 7 SCC 363; Bokka Subba Rao v. Kukkala Ba/akrishna
~
& Others (2008) 3 SCC 99; Nune Prasad & Others v. Nune
Ramakrishna (2008) 8 SCC 258; Basayya/ Mathad v. c
Rudrayya S. Mathad & Others (2008) 3 SCC 120; Dharam
Singh v. Kamai/ Singh & Others (2008) 9 SCC 759; Narendra
Gopal Vidyarthi v. Rajat Vidyarthi, 2008 (16) SCALE 122; and
UR. Virupakshaiah v. Sarvamma & Another 2009 (1) SCALE
89 - relied on.
D
t
1.2 The analysis of cases decided by the Privy Council and this court prior to 1976 clearly indicated the scope
of interference u/s 100 C.P.C. by this Court. Even prior to
1976 amendment, the consistent position has been that
the courts should not interfere with the concurrent findE
ings of facts. [para 63] [ 97-F, G]
Pratap Chunder v. Mohandranath (1890) /LR 17 Calcutta
291 (PC.); Durga Chowdharani v. Jawahar Singh (1891) 18
Cal 23 (PC); Ramratan Shukul v. Mussumat Nandu (1892)
19 Cal 249 (252) (PC); Ram Gopal v. Shakshaton (1893) /LR
F
20 Calcutta 93 (PC.); Rudr Prasad v. Baij Nath (1893) ILR 15
Allahabad 367 - referred to.
1.3 After 1976 Amendment, the scope of s.100 has
been drastically curtailed and narrowed down. The effect G
of the amendment mainly is: (i) The High Court would be
..
justified in admitting the second appeal only when a substantial question of law is involved; (ii) substantial question of law to precisely state such question; (iii) a duty
has been cast on the High Court to formulate substantial
H
74
SUPREME COURT REPORTS
[2009] 2 S.C.R.
A question of law before hearing the appeal; (iv) the appeal shall be heard only on that question. The High Court
would not be justified in dealing with any second appeal
without first formulating substantial question of law. [para
64] [ 96-G, H; 97-A,B]
B
Kshitish. Chandra Purkait v. Santosh Kumar Purkait
(1997) 5 SCC 438; Dnyanoba Bhaurao Shemade v. Maroti
Bhaurao Mamor (1999) 2 SCC 471 - relied on.
1.4 The rationale behind allowing a second appeal
c on a question of law is, that there ought to be some tribunal having a jurisdiction that will enable it to maintain, and,
where necessary, re-establish, uniformity throughout the
State on important legal issues, so that within the area of
the State, the law, in so far as it is not enacted law, should
0 be laid down, or capable of being laid down, by one court
whose rulings will be binding on all courts, tribunals and
authorities within the area over which it has jurisdiction.
This is implicit in any legal system where the higher courts
have authority to make binding decisions on question of
E law. [para 57] [ 94-G, H; 97-A]
1.5 The fact that, in a series of cases, this Court was
compelled to interfere was because the true legislative
intendment and scope of s.100 C.P.C. have neither been
appreciated nor applied. A class of judges while adminisF tering law honestly believe that, if they are satisfied that
in any second appeal brought before them evidence has
been grossly mis-appreciated either by the lower appellate court or by both the courts below, it is their duty to
interfere, because they seem to feel that a decree followG ing upon a gross mis-appreciation of evidence involves
injustice and it is the duty of the High Court to redress
such injustice. It is reiterated that justice has to be administered in accordance with law. When s.100 C.P.C. is critically examined then, according to the legislative mandate,
H the interference by the High Court is permissible only in
\ ,
NARAYANAN RAJENDRAN & ANOTHER V.
75
LEKSHMY SAROJINI & OTHERS
cases involving substantial questions of law. [para 65-66]
A
"
[ 97-F, G, H; 98-A]
Deity Pattabhiramaswamy v. S. Hanymayya and Others
AIR 1959 SC 57; M. Ramappa v. M. Bojjappa (1963) SCR
673; and Bholaram vs. Amirchand (1981) 2 SCC 414 - relied
on.
Luchman v. Puna (1889) 16 Calcutta 753 (P.C.)- referred
to.
-t
1.6 It is a matter of common experience in this Court
B
that despite clear enunciation of law in a catena of cases c
of this court, in a large number of cases the High Courts
u/s 100 CPC are disturbing the concurrent findings of fact
without formulating the substantial question of law. Unfortunately, several years are lost in the process. Litigants
find it both extremely expensive and time consuming.
This is one of the main reasons of delay in the adminisD
t
tration of justice in civil matters. It is hoped that the High
Courts would refrain from interfering with the concurrent
findings of fact without formulating substantial question
otlaw. [para 71-72] [ 98-F, G, H; 99-A, B]
Gurdev Kaur and Others v. Kaki and Others (2007) 1 SCC
E
546 - relied on.
2. In the instant case, the High Court seriously erred
in interfering with the findings of facts arrived at by the
trial court and affirmed by the first appellate court. The
judgment of the High Court is wholly unsustainable in law
F
and is set aside. The findings of the trial court as upheld
by the first appellate court are restored.[paras 68 & 73]
[98-C, 99-C]
Radha Amma & Anr. Vs. C. Balaakrishnan Nair & Ors.
G
(2006) 8 sec 546 - referred to.
(2006) 8 sec 546
(2001) 1 sec 546
Case Law Reference
referred to
para 16
relied on
para 16
H
76
SUPREME COURT REPORTS
[2009] 2 S.C.R.
A (1889) 16 Calcutta 753 (P.C.)
referred to
para 19
(1890) ILR 17 Calcutta 291 (P.C.) referred to
para 20
(1891) 18 Cal 23 (PC)
referred to
para 21
(1892) 19 Cal 249 (252) (PC)
referred to
para 21
B
(1893) ILR 20 Calcutta 93 (P.C.)
referred
para 22
(1893) ILR 15 Allahabad 367
referred to
para 23
AIR 1959 SC 57
relied on
para 24
~·
-..
c
I
(1963) SCR 673
relied on
para 25
(1981) 2 sec 414
relied on
para 30
(1997) 5 sec 438
relied on
para 32
D (1999) 2 sec 471
relied on
para 32
· (1998) 6 sec 683
relied on
para 33
(1999) 6 sec 35
relied on
para 34
(1997) 4 sec 113
relied on
para 34
E c2001) 3 sec 119
relied on
para 34
c2001) 6 sec 219
relied on
para 34
c2000) 1 sec 434
relied on
para 35
-+
F c2000) 3 sec 108
relied on
para 36
(2001) 5 sec 311
relied on
para 38
(2004) s sec 762
relied on
para 39
(2005) 9 sec 232
relied on
para 41
G
(2005) 1 o sec 139
relied on
para 42
(2005) 1 o sec 553
relied on
para 43
(2005) 12 sec 210
relied on
para 44
H
'
NARAYANAN RAJENDRAN & ANOTHER V.
77
\
LEKSHMY SAROJINI & OTHERS
.
(2006) 2 sec 496
relied on
para 45
A
y
(2006) 12 sec 49
relied on
para 46
\
(2001) 1 sec 363
relied on
para 47
(2008) 3 sec 99
relied on
para 48
B
(2008) 8 sec 258
relied on
para 49
c2008) 3 sec 120
relied on
para 50
• • (2008) 9 sec 759
relied on
para 51
c
2008 (16) SCALE 122
relied on
para 52
2009 (1) SCALE 89
relied on
para 53
CIVIL APPELLATE JURISDICTION : Civil Appeal No.742
of 2001
D
t
From the Judgement and Order dated 23.03.2000 of the
High Court of Kerala at Ernakulam in S.A. No 518 of 1990-C
C.S. Ranjan, E.M.S. Anam, for the Petitioned.
E
P. Krishnamoorthy, Romy Chacko, for the Respondent.
The Judgement of the Court was delivered by
:.-
DALVEER BHANDARI, J.
1. This appeal is directed against the judgment dated 23rd
F
March, 2000 passed by the High Court of Kerala at Ernakulam
in Second Appeal No.518 of 1990.
2. The appellant is aggrieved by the order of the High Court
because the High Court in second appeal under section 100 of G
, Civil Procedure Code, 1908 reversed the concurrent findings
of the trial court and the first appellate court. According to the
appellant, the second appeal did not involve any question of
law much less any substantial question of law warranting interH
78
SUPREME COURT REPORTS
[2009] 2 S.C.R.
A ference by the High Court under section 100 of the Code of
Civil Procedure.
:v
3. The facts which are necessary to dispose of the appeal
are recapitulated as under:
s
The appellants were defendants in the suit and the respondents were the plaintiffs. The plaintiffs filed a suit contending
that the property in question is a subtarwad property of defendant no.1 and, therefore, the members of the subtarwad including the plaintiffs and defendants no.1 to 3 are entitled to 1/11
~
c share each for each member of the subtarwad under the customary law. Defendant nos.1 to 3 and defendant nos.4 and 5
who got assignment of the property for a valuable consideration
from defendant nos.1 to 3 contended that the suit property is
the personal property of defendant no.1 who has exclusive right
0 of title and possession ever since 1103 M.E. under registered
settlement deed executed by the grandfather and grandmother
of defendant no.1, therefore, the suit property is not partible.
,..
4. Both the trial court as well as the first appellate court
concurrently found that defendant no.1 has exclusive right and
E possession over the suit property and that the plaintiffs have
failed to prove that the suit property is subtarwad property or
that the parties are governed by the customary
marumakkathayam law. The court further held that the burden is
on the plaintiffs to prove the customary law is applicable which
-+
F the plaintiffs have failed to prove.
On the other hand, several
documents executed in the family of the parties prove that the
parties are governed by makkathayam law.
5. In the impugned judgment, the High Court on re-appreciation of the evidence in the case reversed the concurrent findG ings of the courts below and held that the suit property is the
subtarwad property and the parties are governed by ezhava
marumakkathayam customary law. According to the appellants,
the findings of the High Court are wholly unsustainable. The
burden of proof of the customary law is upon the person who
H alleges it. In the instant case, the respondents who were the
NARAYANAN RAJENDRAN & ANOTHER V. LEKSHMY
79
SAROJINI & OTHERS [DALVEER BHANDARI, J.]
plaintiffs before the trial court have clearly failed to prove the
A
customary law. On the other hand, the trial court and the first
appellate court on evidence found that the parties are following
makkathayam system and not marumakkathayam system. Under the marumakkathayam law, every member is entitled to one
share in the property. The law of succession and inheritance
B
followed by the parties is makkathayam law.
6. The trial court on the documents and evidence on record
framed the following issues:
i.
Whether the suit is maintainable?
ii.
Whether the Munsiff's Court has pecuniary
jurisdiction to try this suit?
iii.
Whether the plaintiffs have paid proper court fees?
c
iv.
Whether the plaint schedule property is the subtarwad
D
property of plaintiffs and defendants 1 to 3?
v.
Whether the plaintiffs are entitled to get share in the
plaint schedule property and if so, what is the share
due to the plaintiffs?
vi.
Whether defendants 4 and 5 have done any
improvements in the property and if so what is the
quantum thereof?
vii.
Whether the plaintiffs are entitled to get any mesne
profits and if so, what is its extent?
viii. Reliefs and Costs?
Additional
E
F
ix.
Are
plaintiffs
and
defendants
1
to
3
G
Marumakkathayee Ezhavas? Are they governed by
Marumakkathayam law?
7. According to the trial court, issues no.(iv), (v) and (ix)
were main issues and they were decided together. The trial court
came to the conclusion that the plaintiffs have not proved that
H
80
SUPREME COURT REPORTS
[2009] 2 S.C.R.
A they are Marumakkathayee ezhavas. The defendants have sueceeded Jn showing that the parties are governed ·by
~-
makkathayam law and that the plaint schedule property is not
the subtarwad property as claimed by the plaintiffs. This necessarily follows that the plaintiffs are not entitled to claim partition
B and get any share in the plaint property. The issues, therefore,
were found accordingly against the plaintiffs and in favour of the
defendants holding that the plaint schedule property is not the
subtarwad property of the plaintiffs and defendant nos.~ to 3
and they are not Marumakkathayee ezhavas and hence the
...
c plaintiffs are not entitled to get any share in the said property.
8. The first appellate court also comprehensively re-evaluated and re-examined the entire evidence on record and came
to the conclusion that the evidence led by the side of the plaintiffs is not convincing and reliable to uphold the case advanced
D by the plaintiffs and on the other hand, the evidence pointed out
by the defendants would lead to the inference that the parties
are makkathayee ezhavas. Therefore, there is no reason to interfere with the reasoning and findings of the lower court that
the parties are governed by makkathayam system of inherit-
-·
ance, that there exists no subtarwad property of plaintiffs and
,_
defendant nos.1 to 3 and as such the plaintiffs are not entitled
to get any share in the suit property. The first appellate court
upheld the judgment and decree passed by the trial court.
9. The appellants aggrieved by the judgment of the trial
F court and the first appellate court preferred second appeal before the High Court.
10. In the impugned judgment, while setting aside the concurrent findings of fact, the High Court observed that "parties to
G the suit being persons residing in Kallam District and the property over which they claim right also being situated in Kallam
District, they were following misravazhi system of inheritance
)r
which was essentially the principles of Marumakkathayam systern of inheritance with modifications recognized by judicial pronouncement".
H
NARAYANAN RAJENDRAN & ANOTHER V. LEKSHMY
81
SAROJINI & OTHERS [DALVEER BHANDARI, J.]
11. The entire basis of the aforesaid finding of the High
A
'
Court is without any basis and unsustainable in law. It is astonishing how the person residing in a particular district would be
governed by misravazhi system of inheritance. The customary.
laws cannot be applied on the yardstick as adopted by the High
Court.
B
12. The appellants submitted that it is the settled legal position thatthe burden of proof was on the plaintiffs to prove that
_j
they are governed by the customary law of marumakkathayam
law of inheritance which the plaintiffs have failed to prove.
c
13. The appellants are seriously aggrieved by the judgment of the High Court. According to them, the High Court was
in error in interfering with the findings of the fact of the courts
below, particularly when the second appeal did not involve any
question of law much less than any substantial question of law.
D
i"
14. The counsel for the plaintiffs placed reliance on the
judgment of this court in Radha Amma & Another v. C.
Ba/akrishnan Nair & Others (2006) 8 SCC 546 dealing with
marumakkathayam law. The court observed as under:
"12. So far as the first submission is concerned it is not
E
disputed before us that the question as to whether those
items, namely, Items 8 to 16 belonged to the
puthravakasam thavazhi, never arose for consideration in
the suit or in the appeal. Defendant 2 never raised such
a plea. No such issue was framed. Neither any evidence
F
was recorded on this aspect of the matter, nor were the
\.
'
courts called upon to record a finding on that question.
This position is not disputed by the counsel appearing for
the respondents. If such be the legal and factual position,
we find no justification for the High Court to interfere in
G
appeal and modify the decree of the courts below on a
question which did not arise for its consideration .... "
15. Similarly, in the instant case, the High Court set aside
the concurrent findings of fact of the courts below on the ground
H
82
SUPREME COURT REPORTS
[2009] 2 S.C.R.
A that the parties to the suit being persons residing in Kallam dis-
'.:'
trict and the property over which they claim right also being situ-
'.\
'f
ated in Kallam district, they were following misravazhi system
of inheritance which was essentially the principles of
marumakkathayam system of inheritance. This was not the case
B of either of the parties. No documents were filed. No evidence
was led. No issues were framed by the trial court. Therefore,
the High Court was clearly in error in setting aside the concurrent findings of fact on virtually non-existent material. According
to the appellants, the impugned judgment is liable to be set aside
~
c and the findings of the trial court and as affirmed by the first
appellate court are liable to be restored.
16. In Gurdev Kaur and Others v. Kaki and Others
(2007) 1 sec 546 in which one of us (Bhandari, J.) was party
to that judgment crystallized the entire legal position but unfortuD nately even thereafter in the number of cases it has come to our
notice that the law declared by this court is not fotlowed in a
"
large number of cases by the High Courts. Once again we are
making serious endeavour to recapitulate the legal position with
the fohd hope that the High Courts would keep in mind the legal
E position before interfering in a case of concurrent findings of
facts arrived at by the trial court and upheld by the first appellate
court.
17. Seytion 100 of the Code of Civil Procedure, 1908 (for·
short, C.P.C.) corresponds to Section 584 of the old Civil ProJj
F cedure Code of 1882. The Section 100 (prior to 1976 amendment) reads as under:
"100. Second appeal -
(1) "Save where otherwise
provided in the body of this Code or by any other law for
G
the time being in force, an appeal shall lie to the High
Court from every decree passed in appeal by any Court
subordinate to a High Court on any of the following
grounds, namely :
(a)
the decision being contrary to law or to some usage
H
having the force of law;
NARAYANAN RAJENDRAN & ANOTHER V. LEKSHMY 83
SAROJINI & OTHERS [DALVEER BHANDARI, J.]
(b)
the decision having failed to determine some material
A
issue of law or usage having the force of law;
(c)
a substantial error or defect in the procedure provided
by this Code or by any other law for the time being
in force. which may possibly
have produced error
or defect in the decision of the case upon the merits.
8
(2)
An appeal may lie under this section from an appellate
decree passed ex parte."
18. A reference of series of cases decided by the Privy
Council and this court would reveal true import, scope and ambit
C
of Section 100 C.P.C.
Cases decided prior tO 1976 amendment both by the Privy
Council and the Supreme Court dealing with the scope
of Section 100 C.P.C.
19. The Privy Council, in Luchman v. Puna [{1889) 16
Calcutta 753 {P.C.)], observed that a second appeal can lie only
on one or the other grounds specified in the present section.
D
20. The Privy Council, in another case Pratap Chunderv.
Mohandranath [(1890) ILR 17 Calcutta 291 (P.C.)], the limitaE
tion as to the power of the court imposed by sections 100 and
101 in a second appeal ought to be attended to, and an appellant ought not to be allowed to question the finding of the first
appellate court upon a matter of fact.
21. In Durga Chowdharaniv. JawaharSingh (1891) 18
Cal 23 (PC), the Privy Council held that the High Court had no
jurisdiction to entertain a second appeal on the ground of erro-
. neous finding of fact, however gross or inexcusable the error
F
may seem to be. The clear declaration of law was made in the
G
said judgment as early as in 1891. This judgment was follow~d
in the case of Ramratan Shukul v. Mussumat Nandu (1892)
19 Cal 249 (252) (PC) and many others. The court observed:
"It has now been conclusively settled that the third
court ... cannot entertain an appeal upon question as to the
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84
SUPREME COURT REPORTS
[2009] 2 S.C.R.
A
soundness of findings of fact by the second court, if there
is evidence to be considered, the decision of the second
court, however unsatisfactory it might be if examined, must
stand final."
22. In the case of Ram Gopal v. Shakshaton [(1893) ILR
8
20 Calcutta 93 (P.C.)], the court emphasized that a court of second appeal is not competent to entertain questions as to the
soundness of a finding of facts by the courts below.
23. The same Pfinciple has been reiterated in Rudr
c Prasad v. Baij Nath [(1893) ILR 15 Allahabad 36i7]. The court
observed that a judge to whom a memorandum of second appeal is presented for admission is entitled to consider whether
any of the grounds specified in this section exist and apply to
the case, and if they do not, to reject the appeal summarily.
D
24. Similarly, before amendment in 1976, this court also
had an occasion to examine the scope of Section 100 C.P.C ..
in Deity Pattabhiramaswamy v. S. Hanymayya and Others
[AIR 1959 SC 57], the High Court of Madras set aside the findings of the District Judge, Guntur, while deciding the second
E appeal. This court observed that notwithstanding the clear and
authoritative pronouncement of the Privy Council on the limits
and the scope of the High Court's jurisdiction under section 100,
Civil Procedure Code, "some learned Judges of the High Courts
are disposing of Second Appeals as if they were first appeals.
F This introduces, apart fromthe fact that the High Court assumes
and exercises a jurisdiction which it does not possess, a gambling element in the litigation and confusion in the mind of the
litigant public. This case affords a typical illustration of such interference by a Judge of the High Court in excess of his juris-
., diction under Section 100, Civil Procedure Code. We have,
therefore, no alternative but to set aside the judgment of the
High Court Which had no jurisdiction to interfere in second appeal with the findings of fact arrived at by the first appellate court
based upon an appreciation of the relevant evidence.
H
25. In M. Ramappa v. M. ·Bojjappa [(1963) SCR 673], the
'f
NARAYANAN RAJENDRAN & ANOTHER V. LEKSHMY 85
SAROJINI & OTHERS [DALVEER BHANDARI, J.]
Andhra Pradesh High Court interfered with the finding recorded
A
by the Appellate Court which, in turn, had itself reversed the trial
court's finding on the same question of fact. While setting aside
the decree of the second Appellate Court, this court observed:
"It may be that in some cases, the High Court dealing
B
with the second appeal is inclined to take the view that
what it regards to be justice or equity of the case has not
been served by the findings of fact recorded by courts of
fact, but on such occasions it is necessary to remember
that what is administered in courts is justice according to
law and considerations of fair play and equity however c
important they may be, must yield to clear and express
provisions of the law. If in reaching its decisions in second
appeals, the High Court contravenes the express
provisions of section 100, it would inevitably introduce in
such decisions an element of disconcerting unpredictability
D
which is usually associated with gambling; and that is a
reproach which judicial process must constantly and
scrupulously endeavour to avoid."
26. It may be pertinent to mention that as early as in 1890
E
the Judicial Committee of the Privy Council stated that there is
no jurisdiction to entertain a second appeal on the ground of an
erroneous finding of fact, however, gross or inexcusable the error
may seem to be and they added a note.of warning that no Court
in India has power to add, or enlarge, the grounds specified in
F
Section 100 of the Code of Civil Procedure.
27. Even before the amendment, interference under Section 100 C.P.C. was limited, whi'ch has now been further curtailed, which we would be dealing in cases decided by this court
after the amendment.
G
"!
28. We have given reference of a large number of cases
decided by the Privy Council and this court to clearly understand the ambit and scope of Section 100 before amendment.
29. The Amendment Act of 1976 has introduced drastic
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SUPREME COURT REPORTS.
[2009] 2 S.C.R.
A changes in the scope and ambit of Section 100 C.P.C. A second appeal under Section 100 C. P.C. is now confined to cases
where a question of law is involved and such question must be
a substantial one. Section 100, as amended, reads as under:
B
"100. Second Appeal:
(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
c
to the High Court, if the High Court is satisfied that
the case involves a substantial question of law.
(2)
An appeal may lie under this section from an appellate
decree passed ex parte.
D
(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
E
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
F
does not involve such question:
Provided 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
G
formulated by it, if it is satisfied that the case involves
such question."
Cases decided after 1976 amendment
30. In Bholaram v. Amirchand(1981) 2 SCC 414 a threeH Judge Bench of this court reiterated the statement of law. The
•
.,.
NARAYANAN RAJENDRAN & ANOTHER V. LEKSHMY
87
SAROJINI & OTHERS [DALVEER BHANDARI, J.]
High Court, however, seems to have justified its interference in
A
"-
second appeal mainly on the ground that the judgments of the
courts below were perverse and were given in utter disregard
of the important materials on the record particularly misconstruetion of the rent note. Even if we accept the main reason given by
the High Court the utmost that could be said was that the findB
ings of fact by the courts below were wrong or grossly inexcusable but that by itself would not entitle the High Court to interfere
in the absence of a clear error of law.
31. In Kshitish Chandra Purkait v. Santosh Kumar
Purkait [(1997) 5 SCC 438], a three judge Bench of this court c
held: (a) that the High Court should be satisfied that the case
involved a substantial question of law and not mere question of
law; (p) reasons for permitting the plea to be raised should also
be recorded; (c) it has the duty to formulate the substantial questions of law and to put the opposite party on notice and give fair
D
and proper opportunity to meet the point. The court also held
that it is the duty cast upon the High Court to formulate substantial question of law involved in the case even at the initial stage.
32. This court had occasion to determine the same issue
in Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor E
(1999) 2 sec 471. 1:'he court stated.that the High.Court can
exercise its jurisdiction under Section 100 C.P.C. only on the
basis of substantial questions of law which are to be framed at
·the time of admission of the .. second appeal and the second
appeal has to be heard and decided only on the basis of the
F
such duly framed substantial questions of law.
33. A mere look at the said provision shows that the High
Court can exercise its jurisdiction under Section 100 C.P.C. only
on the basis of substantial questions of law which are to be
G
~
framed at the time of admission of the second appeal and the
.second appeal has to be heard and decided only on the basis
of such duly framed substantial questions of law. The impugned
judgment shows that no such procedure was followed by the
\
learned Single Judge. It is held by a catena of judgments by this
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SUPREME COURT REPORTS
[2009) 2 S.C.R.
A court, some of them being, Kshitish Chandra Purkait v .. Santosh
Kumar Purkait (1997) 5 SCC 438 and Sheel Chand v. Prakash
Chand (1998) 6 SCC 683 that the judgment rendered by the
High Court under Section 100 C.P.C. without following the aforesaid procedure cannot be sustained. On this short ground alone,
e this appeal Is requfred to be allowed.
34. In Kanai l_al Garari v. Murari Ganguly (1999) 6 SCC
35 the court has observed that it is mandatory to formulate the
substantial question of law while entertaining the appeal in absence of which the judgment is to be set aside. In Panchugopal
-C Barua v. Urnesh Chandra Goswami (1997) 4 SCC 713 and
Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 the
court reiterated the statement of law that the High Court cannot
proceed to hear a second appeal without formulating the substantial question of law. These judgments have been referred to
D in the later judgment of K. Raj and Anr. v. Muthamma (2001) 6
,
SCC 279. A statement of law has been reiterated regarding the
scope ano interference of the court in second appeal under
Section 100 of the Code of Civil Procedure.
35. In lshwar Dass Jain v. Sohan Lal (2000) 1 SCC
E 434, this court In para 10, has stated:
F
G
H
"Now under Section 100 CPC, after the 1976 Amendment, ·
it is essential for the High Court to formulate a substantial
question of law and it is not permissible to reverse the
judgment of the first appellate court with.out doing so."
36, Again in Roop Singh v. Ram Singh (2000) 3 SCC
708, this eourt has expressed that the jurisdiction of a High Court
is confined to appeals involving substantial question of law. Para
7 of the 6t:iid judgment reads:
"7. It is to be ralteri:1ted that under Sectign 100 CPC
jurisdiction of the High Court to entertain a second appeal
is confined only to such appeals which involve a substantial
question of law and it does not confer any jurisdiction on
the High Court to interfere with pure questions of fact while
I
'
NARAYANAN RAJENDRAN & ANOTHER V. LEKSHMY
89
SAROJINI & OTHERS [DALVEER BHANDARI, J,]
exercising its jurisdiction under Section 100 CPC. That A
apart, at the time of disposing of the matter the High Court
did not even notice the question of law formulated by it at
the time of admission of the second appeal as there is no
reference of it in the impugned judgment ... ,"
37. Again in Santosh Hazarl v. Puru$hottam Tiwarl (deB
ceased) by LRs. (2001) 3 sec 179, another three-Judge
Bench of this court correctly delineated the scope of Section
100 C.P.C .. The court observed that an obligation is cast on the
appellant to precisely state in the memorandum of appeal the
substantial question of law involved In the appeal and which the C
appellant proposes to urge before the court. In the said judgment, it was further mentioned that the High Court must b~ satisfied that a substantial question of law is involved in the case
and such question has then to be formulated by the High Court.
According to the court the word substantial, as qualifying "quesD
tion of law", means - of having substance, e:.:;$ential, 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 "subE
stantial 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 of Article 133(1) (a) of the Constitution.
38. In Kamti Devi (Smt.) and Anr. v. Poshi Ram (2001)
F
5 sec 311 the court came to the conclusion that the finding
thus reached by the first appellate court cannot be interfered
with in a second appeal as no substantial question of law would
have flowed out of such a finding.
39. In Thiagarajan v. Sri Venugopalaswamy B. Koil
((2004) 5 SCC 762], this court has held that the High Court in its
jurisdiction under Section 100 C.P.C, was not justified in interfering with the findings of fact. The court observed the\t to say
the least the approach of the High Court was not proper. It is the
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90
SUPREME COURT REPORTS
[2009] 2 S.C.R.
A obligation of the courts of law to further the clear intendment of
the legislature and not frustrate it by excluding the same. This
"'
court in a catena of decisions held that where findings of fact by
the lower appellate Court are based on evidence, the High Court
in second appeal cannot substitute its own findings on
B reappreciation of evidence merely on the ground that another
view was possible.
40, In the same case, this court observed that in a case
where special leave· petition was filed against a judgment of the
..\..
High Court interfering with findings of fact of the lower appellate
c court. This court observed that to say the least the approach of
the High Court was not proper. It is the obligation of the courts
of law. to further the clear intendment of the legislature and not
frustrate it by excluding the same. This court further observed
that the High Court in second appeal cannot substitute its own
D findings on reappreciation of evidence merely on the ground
that another view was possible.
41: This court again reminded the High Courts in Commissioner, Hindu Religious & Charitable Endowments v.
E
P. Shanmugama [(2005) 9 SCC 232) that the High Court has
no jurisdiction in second appe~I to interfere with the finding of
facts.
42. Again, this court in the case of State of Kera/av. Mohd.
Kunhi [(2005) 10 SCC 139) has reiterated the same principle
1'
F that the High Court is not justified in interfering with the concurrent findings of fact. This court observed that, in doing so, the
High Court has gone beyond the scope of Section 100 of the
Code of Civil Procedure.
43. Again, in the case of Madhavan Nairv. Bhaskar Pillai
G [(2005) 1 o sec 553), this court observed that the High Court
was not justified in interfering with the concurrent findings of fact.
)oo
This court observed th.at it is well settled that even if the first
appellate court commits an error in recording a finding of fact,
that itself will not be a ground for the High Court to upset the
H same.
NARAYANAN RAJENDRAN & ANOTHER V. LEKSHMY
91
SAROJINI & OTHERS [DALVEER BHANDARI, J.]
44. Again, in the case of Harjeet Singh v. Amrik Singh A
[(2005) 12 sec 270], this court with anguish has mentioned
that the High Court has no jurisdiction to interfere with the findings of fact arrived at by the first appellate court. In this case,
the findings of the trial court and the lower appellate court regarding readiness and willingness to perform their part of conB
tract was set aside by the High Court in its jurisdiction under
Section 100 C.P.C. This court, while setting aside the judgment
of the High Court, observed that the High Court was not justified
~
in interfering with the c?ncurrent findings of fact arrived at by the
courts below.
c
45. In the case of H.P. Pyarejan v. Dasappa [(2006) 2
sec 496] delivered on 6.2.2006, this court found serious infirmity in the judgment of the High Court. This court observed that
it suffers from the vice of exercise of jurisdiction which did not
vest in the High Court. Under Section 100 of the Code (as
D
..
amended in 1976) the jurisdiction of the court to interfere with
the judgments of the courts below is confined ttJ hearing of substantial questions of law. Interference with the finding of fact by
the High Court is not warranted if it invokes reappreciation of
evidence. This court found that the impugned judgment of the E
'
High Court was vulnerable and needed to be set aside.
.....
46. In Chandrika Singh (Dead) by LRS & Another v.
Sarjug Singh & Another (2006) 12 SCC 49, this court again
reiterated legal position that the High Court under section 100
CPC has limited jurisdiction. To deal with cases having a subF
stantial question of law, this court observed as under:
"12 .... While exercising its jurisdiction under Section 100
of the Code of Civil Procedure, the High Court is required
to formulate a substantial question of law in relation to a G
finding of fact. The High Court exercises a limited
'\
jurisdiction in that behalf. Ordinarily uniess there exists a
sufficient and cogent reason, the findings of fact arrived at
by the courts below are binding on the High Court ... "
>
47. In Chacko & Another v.