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Friday, January 16, 2015

CIVIL APPEAL No. 324 OF 2015 (ARISING OUT OF SLP(C) No.14024/2013) Shasidhar & Others Appellant(s) VERSUS Smt. Ashwini Uma Mathad & Anr. Respondent(s)


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELALTE JURISDICTION

                        CIVIL APPEAL No. 324 OF 2015
                    (ARISING OUT OF SLP(C) No.14024/2013)

      Shasidhar & Others                                 Appellant(s)


Smt. Ashwini Uma Mathad & Anr.          Respondent(s)

                               J U D G M E N T

Abhay Manohar Sapre, J.
1.    Leave granted.
2.    This appeal is filed by the defendants against the judgment and  order
dated 06.12.2012  passed  by  the  Division  Bench  of  the  High  Court  of
Karnataka Circuit Bench at Dharwad in  Regular  First  Appeal  No.  3052  of
2010, which in turn arises out of the judgment and decree  dated  10.02.2010
passed by the  Ist  Additional  Civil  Judge  (Sr.  Division)  at  Hubli  in
Original Suit No. 73 of 2004.
3.    In order to appreciate the short issue involved in this appeal, it  is
necessary to state a few relevant facts:
4.    One Basavantayya Revanayya Mathad  was  married  to  Shantakka  Mathad
(defendant no. 2). Out of this wedlock, three children were born -  one  son
Shashidhar (defendant no.1) and two daughters - Rajeshwari  (Died  in  2003)
and - Gayatri (Died in 2004) - defendant no.3.  Shashidhar  was  married  to
Uma and out of this wedlock, three daughters were born - Ashwini  (plaintiff
no. 1), Nivedita (plaintiff no.2) and Puja who  was  given  in  adoption  to
Uma's  sister.  Shashidhar  divorced  to  Uma  and  re-married  to   Manjula
(defendant no.4). Out of this second marriage, two  daughters  were  born  -
Aishwarya (defendant no.5) and Vaishnavi (defendant no.6).
5.    Basavantayya had extensive properties.   On  21.07.1991,  Basavantayya
died leaving behind him the aforementioned members of  his  family.  On  his
death and also on the  death  of  his  one  unmarried  daughter  Rajeshwari,
disputes arose between his legal representatives regarding their  respective
shares in the properties and also regarding ownership  of  some  members  of
his family in relation  to  certain  properties  standing  in  the  name  of
members of his family. The  disputes  unfortunately  could  not  be  settled
amicably which led to filing of civil suit by  the  daughters  of  defendant
No.1 from his first wife-Uma (deceased)  against the other  members  of  the
family, i.e., their father, step-mother and step-sisters  for  determination
of their respective shares, partition  by  meets  and  bounds  and  separate
possession in the suit properties held and possessed by the members  of  the
family of late Basavantayya . The defendants contested  the  civil  suit  by
denying the plaintiffs' claim.  The  trial  Court  framed  issues.   Parties
adduced evidence.
6.    By judgment and  decree  dated  10.02.2010,  the  trial  Court  partly
decreed the plaintiffs' suit and accordingly passed  preliminary  decree  in
relation to the suit properties. It was held that  plaintiffs  are  entitled
for partition and separate possession of their  1/6th  share  each  in  some
properties specified in the decree whereas 1/10th share each in  other  suit
properties as specified in the decree.
7.    Dissatisfied with the preliminary decree,  the defendants filed  first
appeal being R.F.A.  No.  3052  of  2010  and  the  plaintiffs  filed  cross
objections being R.F.A. CROB No. 103 of 2011 under Order XLI Rule 22 of  the
Civil Procedure Code, 1908 (in short "the Code").  This is  how  the  entire
preliminary decree became the subject-matter of first appeal  filed  by  the
8.    By impugned judgment and order dated 06.12.2012,  the  Division  Bench
of the High Court disposed of the appeal and cross objections  and  modified
the judgment and  decree  of  the  trial  court  to  the  detriment  of  the
defendants. It is against this  judgment  and  order,  the  defendants  have
filed this appeal by way of special leave.
9.    Learned Counsel for the appellants, while assailing the  legality  and
correctness of the impugned judgment, contended that the High Court  without
adverting to all the factual details  and  various  grounds  raised  in  the
first appeal, disposed of  the  same  in  a  cryptic  manner.  According  to
learned  counsel,  the  High  Court  neither  dealt  with  any   issue   nor
appreciated the ocular and documentary evidence adduced by the  parties  nor
examined the legal principles applicable to the issues arising in the   case
and nor rendered its findings on any contentious issues though urged by  the
appellants  herein  in  support  of  the  appeal.  Learned  counsel  further
contended that it was the duty of the High Court being the  first  appellate
Court exercising its appellate power under Section 96 read  with  Order  XLI
Rule 31 of the Code  to have dealt with the submissions,  which  were  urged
by  the  appellants  after  appreciating  the  entire  evidence  on   facts,
independent of the findings recorded by the  trial  Court  and  should  have
come to its own conclusion keeping in view the  legal  principles  governing
the issues and since it was  not  done  by  the  High  Court,  the  impugned
judgment is not legally sustainable. Lastly, the learned counsel urged  that
in case his arguments are accepted, the remand  of  the  case  to  the  High
Court to decide the appeal on merits afresh is inevitable.
10.    In  contra,  learned  counsel  for   the   respondents   (plaintiffs)
vehemently urged that no interference in the  impugned  judgment  is  called
for because firstly, the first appellate Court rendered the judgment on  the
appellants' concession and hence, it was not necessary for  the  High  Court
to record any elaborate finding on any of the issues; secondly, the suit  is
pending since two decades with no end and lastly, the determination  of  the
shares of the suit properties made by the High Court, if examined on  merits
by this Court, would be found to be in accordance with law.
11.   Having heard learned counsel for the parties and  on  perusal  of  the
record of the case and examining the issue arising in this appeal,  we  find
force in the submissions of the learned counsel for the appellants.
12.   The powers of the first appellate  Court,  while  deciding  the  first
appeal under Section 96 read with Order XLI Rule 31 of the Code, are  indeed
well defined by various judicial  pronouncements  of  this  Court  and  are,
therefore, no more res integra.
13.   As far back in 1969, the learned Judge - V.R. Krishna Iyer, J (as  His
Lordship then was the judge of Kerala High Court) while deciding  the  first
appeal under Section 96 of the CPC in Kurian Chacko vs. Varkey  Ouseph,  AIR
1969 Kerala 316, reminded the first appellate Court of its duty  as  to  how
the first appeal under Section 96 should  be  decided.  In  his  distinctive
style of writing and subtle power of expression, the learned judge  held  as
"1. The plaintiff, unsuccessful in two Courts, has come  up  here  aggrieved
by the dismissal of his suit which was one  for  declaration  of  title  and
recovery of possession. The defendant disputed the plaintiff's title to  the
property as also his possession and claimed both  in  himself.  The  learned
Munsif, who tried the suit, recorded findings against the plaintiff both  on
title  and  possession.  But,  in  appeal,  the  learned  Subordinate  Judge
disposed of the whole matter glibly and briefly, in a few sentences.
2. An appellate court is the final Court of fact ordinarily and therefore  a
litigant is entitled to a full and fair  and  independent  consideration  of
the evidence at the appellate stage. Anything less than this  is  unjust  to
him and I have no doubt that in the present  case  the  learned  Subordinate
Judge has fallen far short of what  is  expected  of  him  as  an  appellate
Court. Although there  is  furious  contest  between  the  counsel  for  the
appellant and for the respondent, they appear  to  agree  with  me  in  this
                              (Emphasis supplied)

14.   This Court in a number of cases while affirming and  then  reiterating
the aforesaid principle  has laid down the scope and  powers  of  the  first
appellate Court under Section 96 of the Code.
15.   We consider it apposite to refer to some of the decisions.
16.   In  Santosh Hazari vs. Purushottam Tiwari (Deceased) by  L.Rs.  (2001)
3 SCC 179, this Court held (at pages 188-189) as under:
".........the appellate court has jurisdiction  to  reverse  or  affirm  the
findings of the trial court.  First  appeal  is  a  valuable  right  of  the
parties and unless restricted by law, the whole case  is  therein  open  for
rehearing both on questions of fact and law. The judgment of  the  appellate
court must, therefore, reflect its conscious application of mind and  record
findings supported by reasons, on all the  issues  arising  along  with  the
contentions put forth, and pressed  by  the  parties  for  decision  of  the
appellate court......while reversing a finding of fact the  appellate  court
must come into close quarters with  the  reasoning  assigned  by  the  trial
court and then assign its own reasons for arriving at a  different  finding.
This would satisfy the  court  hearing  a  further  appeal  that  the  first
appellate court had discharged the duty expected of it............"

17.   The above view has been followed by a three-Judge  Bench  decision  of
this Court in Madhukar & Ors. v. Sangram & Ors.,(2001) 4  SCC  756,  wherein
it was reiterated that sitting as a court of first appeal, it  is  the  duty
of the High Court to deal with all the issues and the evidence  led  by  the
parties before recording its findings.
18.   In H.K.N. Swami v. Irshad Basith,(2005) 10 SCC 243, this Court (at  p.
244) stated as under:
"3. The first appeal has to be decided on facts as well as on  law.  In  the
first appeal parties have the right to be heard both on questions of law  as
also on facts and the first appellate court is required  to  address  itself
to all issues and decide the case  by  giving  reasons.  Unfortunately,  the
High Court, in the present case has  not  recorded  any  finding  either  on
facts or on law. Sitting as the first appellate court it  was  the  duty  of
the High Court to deal with all the issues  and  the  evidence  led  by  the
parties before recording the finding regarding title."

19.   Again in Jagannath v. Arulappa  &  Anr.,  (2005)  12  SCC  303,  while
considering the scope of Section 96 of the Code  this Court (at pp.  303-04)
observed as follows:
"2. A court of first appeal can reappreciate the entire  evidence  and  come
to a different conclusion........."

20.   Again in B.V Nagesh & Anr. vs. H.V. Sreenivasa Murthy, (2010)  13  SCC
530, this Court taking note of all  the  earlier  judgments  of  this  Court
reiterated the aforementioned principle with these words:
"3. How the regular first appeal is to  be  disposed  of  by  the  appellate
court/High Court has been considered by this  Court  in  various  decisions.
Order 41 CPC deals with appeals from original  decrees.  Among  the  various
rules, Rule 31 mandates that the  judgment  of  the  appellate  court  shall
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed  or  varied,  the  relief  to
which the appellant is entitled.
4. The appellate court has jurisdiction to reverse or  affirm  the  findings
of the trial court. The first appeal is a valuable right of the parties  and
unless restricted by law, the whole case is therein open for rehearing  both
on questions of fact and law. The judgment  of  the  appellate  court  must,
therefore, reflect its conscious application of  mind  and  record  findings
supported by reasons, on all the issues arising along with  the  contentions
put forth, and pressed by the parties for decision of the  appellate  court.
Sitting as a court of first appeal, it was the duty of  the  High  Court  to
deal with all the  issues  and  the  evidence  led  by  the  parties  before
recording its findings. The  first  appeal  is  a  valuable  right  and  the
parties have a right to be heard both on questions of law and on  facts  and
the judgment in the first appeal must address itself to all  the  issues  of
law and fact and decide it by giving reasons in  support  of  the  findings.
(Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3  SCC  179  at  p.  188,
para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 at p. 758, para 5.)
5. In view of the above salutary principles, on going through  the  impugned
judgment,  we  feel  that  the  High  Court  has  failed  to  discharge  the
obligation placed on it as  a  first  appellate  court.  In  our  view,  the
judgment under appeal is cryptic and none of the relevant aspects have  even
been noticed. The appeal has been decided in an unsatisfactory  manner.  Our
careful perusal of the judgment in the regular first appeal  shows  that  it
falls short of considerations which are expected from  the  court  of  first
appeal. Accordingly, without going into the merits  of  the  claim  of  both
parties, we set aside the impugned judgment and decree  of  the  High  Court
and remand the regular  first  appeal  to  the  High  Court  for  its  fresh
disposal in accordance with law."

21.   The  aforementioned  cases  were  relied  upon  by  this  Court  while
reiterating the same principle in State Bank of India  &  Anr.  vs.  Emmsons
International Ltd. & Anr., (2011) 12  SCC  174.   This  Court  has  recently
taken the same view on similar facts arising in Vinod Kumar  vs.  Gangadhar,
2014(12) Scale 171.
22.   Applying the aforesaid principle to the facts of  the  case,  we  find
that the High Court while deciding the  first  appeal  failed  to  keep  the
aforesaid principle in consideration and  rendered  the  impugned  decision.
Indeed, it is clear by mere reading of the impugned order quoted below:
"The appellants  are  defendants  in  the  suit.   The  plaintiffs  are  the
respondents.  The respondents are the children of 1st appellant born in  the
wedlock between 1st appellant and his divorced wife Smt. Uma Mathad.  It  is
admitted fact that the 1st appellant has married the  2nd  respondent  after
the divorce and in the wedlock he has two children and  they  are  appellant
Nos.3 and 4.  The suit properties at item Nos.1 and 4  are  admitted  to  be
the ancestral properties.  Item Nos.2 and 3 are the properties belonging  to
the mother of the 1st appellant and after her  demise  the  said  properties
are bequeathed to 1st appellant.  Therefore, the  said  properties  acquired
the status of self-acquired properties.

The respondents filed a suit for partition.  The  parties  are  governed  by
Bombay School of Hindu Law.  In view of the provisions of  Hindu  Succession
Amendment Act of 2005, the respondent Nos. 1 and 2 are entitled to  a  share
as  co-parceners in the ancestral properties.  The wife who  is  the  second
appellant also would be entitled to a  share  in  the  partition.   In  that
view, the appellant Nos. 1 and 2 and respondent Nos.1 and 2 will have  1/4th
share each in item Nos.1 and 4 of the suit properties.

The learned counsel for the appellants submitted that the appellants 2 to  4
would not claim any independent share in  item  Nos.1  and  4  of  the  suit
properties, but they would take share in the 1/4th share allotted  to  their

In view of the said submissions, the appellant Nos.1 and  2  and  respondent
Nos.1 and 2 would be entitled to 1/4th share in item  Nos.1  and  4  of  the
suit properties.

Accordingly, a preliminary decree to be  drawn  and  the  appeal  and  cross
objections are disposed of in the terms indicated above."

23.   In our considered opinion, the High Court did not  deal  with  any  of
the submissions urged by the appellants and/or respondents nor it took  note
of the grounds taken by the appellants in grounds of appeal  nor  took  note
of cross objections filed by plaintiffs under Order XLI Rule 22 of the  Code
and nor made any attempt to appreciate the evidence adduced by  the  parties
in the  light  of  the  settled  legal  principles  and  decided  case  laws
applicable to the issues arising in the case with a view to find out  as  to
whether the judgment of the trial Court can be sustained or not and  if  so,
how, and if not, why?
24.   We may consider it apposite to state being a  well  settled  principle
of law that in a suit filed by a co-sharerer, coparcener, co-owner or  joint
owner, as the case may be, for partition and separate possession of  his/her
share qua others, it is necessary for the Court to  examine,  in  the  first
instance, the nature and character of the properties in  suit  such  as  who
was the original owner of the suit  properties,  how  and  by  which  source
he/she acquired  such  properties,  whether  it  was  his/her  self-acquired
property or ancestral property, or joint property  or  coparcenery  property
in his/her hand and, if so, who are/were the coparceners  or   joint  owners
with him/her as the case may be.  Secondly, how the  devolution  of  his/her
interest in the  property  took  place  consequent  upon  his/her  death  on
surviving members of the family and in what proportion, whether he/she  died
intestate or left behind  any  testamentary  succession  in  favour  of  any
family member or outsider to inherit his/her share in properties and if  so,
its effect.   Thirdly whether the properties in suit are  capable  of  being
partitioned effectively and if so, in  what  manner?   Lastly,  whether  all
properties are included in the suit and all co-sharerers,  coparceners,  co-
owners or joint-owners, as the case may be, are made parties  to  the  suit?
These issues, being material for proper  disposal  of  the  partition  suit,
have to be answered by the Court on the  basis  of  family  tree,  inter  se
relations of family members, evidence adduced  and  the  principles  of  law
applicable to the case. (see "Hindu Law" by Mulla 17th Edition, Chapter  XVI
Partition and Reunion - Mitakshara Law pages 493-547).
25.   Being the first appellate Court, it was, therefore, the  duty  of  the
High Court to decide the first appeal keeping in view the scope  and  powers
conferred on it under Section 96 read with Order XLI Rule  31  of  the  Code
mentioned above. It was unfortunately not done, thereby,  causing  prejudice
to the appellants whose valuable right to  prosecute  the  first  appeal  on
facts and law was adversely affected which, in  turn,  deprived  them  of  a
hearing in the appeal in accordance with law.
26.   We are not inclined to accept the submission of  the  learned  counsel
for the respondents when he urged that the impugned  judgment  is  based  on
concession given by the appellants and hence no discussion on merits on  any
of the issues was called for. In the first place,  the  appellants  did  not
make any application for settlement of the dispute in  relation  to  any  of
the suit property in writing and secondly, there is  nothing  on  record  to
show that the appellants wanted to give up  their  claim  or/and  wished  to
settle the matter in relation to some properties.  In the light of this,  we
are of the view that the High Court ought to have gone into  the  merits  of
the claim of the respective parties  in  its  proper  perspective  and  then
recorded  a  finding  regarding  extent   of   shares   received   by   each
coparcener/co-owner keeping  in  view  the  nature  of  properties  such  as
whether it was self acquired property or ancestral property and, if  so,  in
whose hands, its source  of  acquisition  by  such  person,  the  manner  of
devolution on the legal representatives of such  person  etc.   As  observed
supra, these findings were required to be recorded  after  appreciating  the
evidence keeping in view the provisions of  the  Hindu  Succession  Act  and
other related laws applicable to the issues arising in the case.
27.   It is for  these  reasons,  we  are  unable  to  uphold  the  impugned
judgment of the High Court.
28.   The appeal thus succeeds and is, accordingly, allowed.   The  impugned
judgment is set aside and the  case  is  remanded  to  the  High  Court  for
deciding the first appeal and cross-objections afresh, keeping in  view  the
principle of law laid down by this Court as mentioned above.
29.   However, we make it clear that we have not applied  our  mind  to  the
merits of the issues involved in the case and hence, the  High  Court  would
decide the appeal strictly in accordance with law on merits uninfluenced  by
any of our observations, which we have  refrained  from  making  on  merits.
Needless  to  observe,  the  High  Court  will  do  so  after  affording  an
opportunity of hearing to all the parties.
30.   Since the case is quite old, we request the  High  Court  to  expedite
its hearing and dispose of the case preferably within six months.


                       [ABHAY MANOHAR SAPRE]

      New Delhi;
      January 13, 2015.

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