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Thursday, January 10, 2013

“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.


                        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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