IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 102 OF 2013
(Arising out of S.L.P. (C) No. 35271 of 2011)
Hardevinder Singh ... Appellant
Versus
Paramjit Singh & others ...Respondents
J U D G M E N T
Dipak Misra, J.
Leave granted.
2. One Sarabjit Singh filed Civil Suit No. 29 of 1995 for possession of
the suit land to the extent of his share treating the will alleged to
have been executed in favour of the defendant Nos. 1 to 4 as null and
void with the consequential prayer for restraining them from
alienating the suit property in any manner.
It was set forth in the plaint that the suit land in the hands of his father, Shiv Singh, was ancestral coparcenary and Joint Hindu Family property
and
he, along with his brothers, the defendant Nos. 5 and 6, constituted a Joint Hindu Family with the father and mother.
It was alleged that the
defendant Nos. 1 to 4, on the basis of a forged will, forcibly took
possession of the land.
It was set forth that by virtue of the will,
the plaintiff and the defendant Nos. 5 and 6, the co-owners, have been
deprived of the legal rights in the suit land.
It was the case of the
plaintiff that the will was not executed voluntarily by his father,
Shiv Singh, and it was a forged one and, therefore, no right could
flow in favour of the said defendants.
3. The defendant Nos. 1 to 4 entered contest and supported the execution
of the will on the basis that it was voluntary and without any
pressure or coercion.
That apart, it was contended that the rights of
defendant No. 5 had not been affected as a registered gift was
executed on 31.3.1980 by late Shiv Singh.
The claim of the plaintiff
was strongly disputed on the ground that the will had already been
worked out since the revenue records had been corrected.
The
defendant No. 6 resisted the stand of the plaintiff contending, inter
alia, that the property was self-acquired and the execution of the
will was absolutely voluntary.
The defendant No. 5 filed an
independent written statement admitting the claim of the plaintiff.
It was set forth by him that the suit land was ancestral,
a Joint Hindu Coparcenary property and his father Shiv Singh, being the Karta, had no right to bequeath the same in favour of defendant Nos. 1 to 4 to the exclusion of the other rightful owners.
That apart, it was
contended that the will was vitiated by fraud. A prayer was made to
put him in possession of the suit land after carving out his share.
4. The learned trial Judge framed as many as four issues. The plaintiff
examined himself as PW-1 and tendered number of documents in evidence
which were marked as Exts. P-1 to P-17. The defendant Nos. 1 to 4
examined number of witnesses and got seven documents exhibited. The
defendant No.5 supported the evidence led by the plaintiff. In
rebuttal, the plaintiff examined the Record Keeper of Medical College
Rohtak as PW-2 and Dr. A.K. Verma as PW-3 and brought on record four
forms, Exts. P-18 to P-19A. The learned trial Judge, on appreciation
of the evidence brought on record, came to hold that the suit land was
a Joint Hindu Family property; that defendant Nos. 1 to 4 had failed
to dispel the suspicious circumstances in the execution of the will in
favour of defendant Nos. 1 to 4 and, hence, the will was null and
void; that the mutation did not create any impediment on the rights of
the plaintiff and other natural heirs of the testator; and that they
are entitled to get joint possession of the suit land as per their
shares in accordance with the law of natural succession.
5. On an appeal being preferred by the three beneficiaries of the will
(as the original defendant No. 1 had died),
the learned appellate Judge came to hold that
the property held by Shiv Singh, the predecessor-in-interest of the parties to the suit, was not ancestral,but self-acquired and, hence, he was competent to alienate the same in any manner as he liked;
that the will dated 6.7.1989, Exh. D-2, in
favour of original defendant No. 1, his wife who had expired by the
time the appeal was filed and the defendant Nos. 2 to 4, his
grandsons, was validly executed and that the finding recorded by the
learned trial Judge on that score was unsustainable.
Be it noted, the
learned appellate Judge took note of the fact that Sarabjit Singh had
challenged the said will but, on account of settlement with the
appellants before the appellate court, had practically withdrawn from
the litigation. Being of this view, he set aside the judgment and
decree passed by the learned trial Judge and dismissed the suit with
costs.
6. The defendant No. 5 preferred R.S.A. No. 85 of 2007 before the High
Court. The learned single Judge, upon hearing the learned counsel for
the parties and placing reliance on Smt. Ganga Bai v. Vijay Kumar and
others[1] and Banarsi and others v. Ram Phal[2], came to hold that the
appeal was not maintainable at the instance of defendant No. 5 under Section 100 of the Code of Civil Procedure, 1908 (for short “the Code”).
7. We have heard Mr. Vipin Gogia, learned counsel for the appellant, and
Mr. K.K. Mohan, learned counsel appearing for the respondents.
8. At the very outset, we must state that the High Court has accepted the
preliminary objections raised by the respondents as regards the
maintainability of the appeal. While accepting the preliminary
objection, the High Court has opined that the plaintiff and the
defendant Nos. 1 to 4 and 6 had accepted the judgment and decree; that
the defendant No. 5 cannot be regarded as an aggrieved party to assail
the impugned decree invoking the jurisdiction of the High Court under
Section 100 of the Code;
that appeal being a creature of the statute,
the right to appeal inheres in one and it stands in a distinct
position than that of a suit and, hence, no appeal could lie against a
mere finding for the simple reason that the Code does not provide for
such an appeal; and that the suit having been dismissed by virtue of
the dislodging of the decree by the first appellate court, the regular
second appeal could not be filed by the defendant No. 5. Hence, the
present appeal by the said defendant-appellant.
9. As indicated earlier, to arrive at such a conclusion, reliance was
placed on the decision in Smt. Ganga Bai v. Vijay Kumar and others
(supra) wherein a distinction was drawn between the inherent right to
file a suit unless the suit is statutorily barred and the limitations
in maintaining an appeal.
In that case, the defendant Nos. 2 and 3
had preferred an appeal before the High Court challenging the finding
recorded by the trial court. Thereafter, a challenge was made partly
to the preliminary decree. This Court took note of the fact that the
appeal preferred by the said defendants was directed originally not
against any part of the preliminary decree but against a mere finding
recorded by the trial court that the partition was not genuine. It
was observed by this Court that to maintain an appeal, it requires
authority of law. After referring to Sections 96(1), 100, 104(1) and
105 of the Code, the Bench observed as follows: -
“17. These provisions show that under the Code of Civil
Procedure, an appeal lies only as against a decree or as against
an order passed under rules from which an appeal is expressly
allowed by Order 43, Rule 1. No appeal can lie against a mere
finding for the simple reason that the Code does not provide for
any such appeal. It must follow that First Appeal No. 72 of
1959 filed by defendants 2 and 3 was not maintainable as it was
directed against a mere finding recorded by the trial court.”
10. Thereafter, the Court opined that the High Court mixed up two distinct
issues, namely, (i) whether the defendants 2 and 3 were competent to
file an appeal if they were aggrieved by the preliminary decree and
(ii) whether the appeal as filed by them was maintainable. It was
opined that if the defendants 2 and 3 could be said to have been
aggrieved by the preliminary decree, it was certainly competent for
them to challenge that decree in appeal, but as they had not filed an
appeal against the preliminary decree, the question whether they were
aggrieved by that decree and could file an appeal therefrom was
irrelevant. The Bench held that the appeal was directed against the
finding given by the trial court which was against them, hence, it was
not maintainable. Be it noted, this Court also addressed with regard
to the issue whether defendant Nos. 2 and 3 were aggrieved by the
preliminary decree and opined that the appeal was against a mere
finding and the preliminary decree, in fact, remained unchallenged for
a long period.
11. Another aspect which was addressed by the Bench was whether the
finding would operate as res judicata in the subsequent proceeding.
This Court observed that the finding recorded by the trial court that
the partition was a colourable transaction was unnecessary for the
decision of the suit because even if the court were to find that the
partition was genuine, the mortgage would only have bound the interest
of the father as the debt was not of a character which, under the
Hindu Law, would bind the interest of the sons. That apart, the
matter relating to the partition being not directly and substantially
in issue in the suit, the finding that the partition was sham could
not operate as res judicata so as to preclude a party aggrieved by the
finding from agitating the question covered by the finding in any
other proceeding.
12. On a keen scrutiny of the facts of the aforesaid case and the dictum
laid down therein, in our considered opinion, it does not really apply
to the case at hand, regard being had to the obtaining factual matrix
and further, the decision was rendered before the amendment was
brought into the Code prior to 1976. Therefore, we have no hesitation
in saying that the High Court has fallen into error in placing
reliance on the said pronouncement.
13. Presently, it is apt to note that Sections 96 and 100 of the Code make
provisions for preferring an appeal from any original appeal or from a
decree in an appeal respectively. The aforesaid provisions do not
enumerate the categories of persons who can file an appeal. If a
judgment and decree prejudicially affects a person, needless to
emphasize, he can prefer an appeal. In this context, a passage from
Smt. Jatan Kanwar Golcha v. M/s. Golcha Properties Private Ltd.[3] is
worth noting: -
“It is well settled that a person who is not a party to the suit
may prefer an appeal with the leave of the appellate Court and
such leave should be granted if he would be prejudicially
affected by the judgment.”
14. In State of Punjab v. Amar Singh and another[4], Sarkaria, J., while
dealing with the maintainability of an appeal by a person who is not a
party to a decree or order, has stated thus: -
“84. Firstly there is a catena of authorities which, following
the doctrine of Lindley, L.J., in re Securities Insurance Co.,
(1894) 2 Ch 410 have laid down the rule that a person who is not
a party to a decree or order may with the leave of the Court,
prefer an appeal from such decree or order if he is either bound
by the order or is aggrieved by it or is prejudicially affected
by it. As a rule, leave to appeal will not be refused to a
person who might have been made ex nominee a party – see
Province of Bombay v. W.I. Automobile Association, AIR 1949 Bom
141; Heera Singh v. Veerka, AIR 1958 Raj 181 and Shivaraya v.
Siddamma, AIR 1963 Mys 127; Executive Officer v. Raghavan
Pillai, AIR 1961 Ker 114. In re B, an Infant (1958) QB 12;
Govinda Menon v. Madhavan Nair, AIR 1964 Ker 235.”
15. In Baldev Singh v. Surinder Mohan Sharma and others[5], a three Judge-
Bench opined that an appeal under Section 96 of the Code would be
maintainable only at the instance of a person aggrieved by and
dissatisfied with the judgment and decree. In the said case, while
dealing with the concept of ‘person aggrieved’, the Bench observed
thus:-
“A person aggrieved to file an appeal must be one whose right is
affected by reason or the judgment and decree sought to be
impugned. It is not the contention of Respondent 1 that in the
event the said judgment and decree is allowed to stand, the same
will cause any personal injury to him or shall affect his
interest otherwise.”
16. Be it noted, in the said case, the challenge in appeal was to the
dissolution of marriage of the appellant therein and his first wife
which, this Court held, would have no repercussion on the property in
the suit and, therefore, the High Court was not justified in disposing
of the civil revision with the observation that the revisionist could
prefer an appeal.
17. In Sahadu Gangaram Bhagade v. Special Deputy Collector, Ahmednagar and
another[6], it was observed that the right given to a respondent in an
appeal is to challenge the order under appeal to the extent he is
aggrieved by that order. The memorandum of cross-objection is but one
form of appeal. It takes the place of a cross appeal. In the said
decision, emphasis was laid on the term ‘decree’.
18. After the 1976 amendment of Order 41 Rule 22, the insertion made in
sub-rule (1) makes it permissible to file a cross-objection against a
finding. The difference is basically that a respondent may defend
himself without taking recourse to file a cross-objection to the
extent the decree stands in his favour, but if he intends to assail
any part of the decree, it is obligatory on his part to file the cross-
objection. In Banarsi and Others v. Ram Phal (supra), it has been
observed that the amendment inserted in 1976 is clarificatory and
three situations have been adverted to therein. Category No. 1 deals
with the impugned decree which is partly in favour of the appellant
and partly in favour of the respondent. Dealing with such a
situation, the Bench observed that in such a case, it is necessary for
the respondent to file an appeal or take cross-objection against that
part of the decree which is against him if he seeks to get rid of the
same though he is entitled to support that part of the decree which is
in his favour without taking any cross-objection. In respect of two
other categories which deal with a decree entirely in favour of the
respondent though an issue had been decided against him or a decree
entirely in favour of the respondent where all the issues had been
answered in his favour but there is a finding in the judgment which
goes against him, in the pre-amendment stage, he could not take any
cross-objection as he was not a person aggrieved by the decree. But
post-amendment, read in the light of explanation to sub-rule (1),
though it is still not necessary for the respondent to take any cross-
objection laying challenge to any finding adverse to him as the decree
is entirely in his favour, yet he may support the decree without cross-
objection. It gives him the right to take cross-objection to a
finding recorded against him either while answering an issue or while
dealing with an issue. It is apt to note that after the amendment in
the Code, if the appeal stands withdrawn or dismissed for default, the
cross-objection taken to a finding by the respondent would still be
adjudicated upon on merits which remedy was not available to the
respondent under the unamended Code.
19. At this juncture, we may usefully reproduce a passage from Banarsi and
others (supra) wherein it has been stated thus: -
“Sections 96 and 100 CPC make provision for an appeal being
preferred from every original decree or from every decree passed
in appeal respectively; none of the provisions enumerates the
person who can file an appeal. However, it is settled by a long
catena of decisions that to be entitled to file an appeal the
person must be one aggrieved by the decree. Unless a person is
prejudicially or adversely affected by the decree he is not
entitled to file an appeal. See Phoolchand v. Gopal Lal[7],
Jatan Kumar Golcha v. Golcha Properties (P) Ltd. (supra) and
Ganga Bai v. Vijay Kumar (supra).) No appeal lies against a
mere finding. It is significant to note that both Sections 96
and 100 CPC provide for an appeal against decree and not against
judgment.”
20. Though the High Court has referred to the said pronouncement, yet it
has not applied the ratio correctly to the facts.
This Court has
clearly stated that if a person is prejudicially or adversely affected
by the decree, he can maintain an appeal.
In the present case, as we
find, the plaintiff claiming to be a co-sharer filed the suit and
challenged the will. The defendant No. 5, the brother of the
plaintiff, supported his case. In an appeal at the instance of the
defendant Nos. 1 to 4, the judgment and decree was overturned. The
plaintiff entered into a settlement with the contesting defendants who
had preferred the appeal. Such a decree, we are disposed to think,
prejudicially affects the defendant No. 5 and, therefore, he could
have preferred an appeal. It is worthy to note that the grievance
pertained to the nature and character of the property and the trial
court had decreed the suit. He stood benefited by such a decree. The
same having been unsettled, the benefit accrued in his favour became
extinct. It needs no special emphasis to state that he had suffered a
legal injury by virtue of the over turning of the decree. His legal
right has been affected. In this context, we may refer to a recent
pronouncement in Ayaaubkhan Noorkhan Pathan v. The State of
Maharashtra & ors.[8] wherein this Court has held thus: -
“A “legal right”, means an entitlement arising out of legal
rules. Thus, it may be defined as an advantage, or a benefit
conferred upon a person by the rule of law. The expression,
“person aggrieved” does not include a person who suffers from a
psychological or an imaginary injury; a person aggrieved must
therefore, necessarily be one, whose right or interest has been
adversely affected or jeopardized. (Vide: Shanti Kumar R. Chanji
v. Home Insurance Co. of New York, AIR 1974 SC 1719; and State
of Rajasthan & Ors. v. Union of India & ors., AIR 1977 SC
1361).”
21. Though the said judgment was delivered in a different context, yet it
is applicable to the obtaining factual matrix regard being had to the
conception of legal injury. Thus, indubitably, the present appellant
was a person aggrieved and was prejudicially affected by the decree
and, hence, the appeal could not have been thrown overboard treating
as not maintainable.
22. In view of the aforesaid premised reasons, we allow the appeal, set
aside the judgment of the High Court, treat the second appeal
preferred by the present appellant to be maintainable in law and remit
the matter to the High Court with a request to decide the appeal
within a period of six months. Needless to say, we have not expressed
any opinion on any of the aspects which pertain to the merits of the
case. In the facts and circumstances of the case, the parties shall
bear their respective costs.
……………………………….J.
[K. S. Radhakrishnan]
……………………………….J.
[Dipak Misra]
New Delhi;
January 07, 2013
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[1] AIR 1974 SC 1126
[2] AIR 2003 SC 1989
[3] AIR 1971 SC 374
[4] AIR 1974 SC 994
[5] (2003) 1 SCC 34
[6] (1970) 1 SCC 685
[7] AIR 1967 SC 1470
[8] 2012 (11) SCALE 39
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