No finding has been arrived at that any evidence had been admitted contrary to the law or that a finding was based on no evidence only in which circumstance the High Court could have interfered in the second appeal = When both the courts arrived at concurrent findings of facts that the plaintiffs had failed to prove that Ramchandrarao Ingole had contributed to the purchase of the suit property or that at any time he had been a beneficiary of the purchase by residence or possession and the house had been constructed exclusively by Trimbakrao Ingole from his own funds and who remained in exclusive possession of the same relying on the admissions of PW1 in his evidence. Ramchandrarao Ingole was held not to be a vendee of the suit property.
The suit property consists of 7011 sq. ft. of lands, with a house constructed in 1974 75 thereupon leaving substantial vacant lands, was purchased jointly in the name of the two brothers by sale deed dated 29.03.1957.
Trimbakrao Ingole expired in 1980 and Ramchandrarao Ingole also passed away on 22.03.1995.
The plaintiffs as legal heirs of Ramchandrarao Ingole, relying on the sale deed filed Special Civil Suit No.268 of 1995 seeking partition and possession of their half share in the suit property.
Both the courts arrived at concurrent findings of facts that the plaintiffs had failed to prove that Ramchandrarao Ingole had contributed to the purchase of the suit property or that at any time he had been a beneficiary of the purchase by residence or possession.
The house had been constructed exclusively by Trimbakrao Ingole from his own funds and who remained in exclusive possession of the same relying on the admissions of PW1 in his evidence. Ramchandrarao Ingole was held not to be a vendee of the suit property.
High court reversed the same in second appeal
Apex court held that
We have considered the submissions on behalf of the parties, perused the respective pleadings and the evidence on record.The plaintiffs acknowledged the construction of a house on the suit property, seeking a share in the vacant lands fully aware of the nature of the construction which could not be partitioned.
The defendants in their additional written statement had stated that originally both the brothers proposed to purchase the property together.
Subsequently Ramchandrarao Ingole retracted and was not interested in purchasing the property due to funds crunch. Trimbakrao Ingole therefore alone paid the entire consideration.
Since the stamp papers had already been purchased and the sale deed drafted in name of both the brothers, registration followed without any change.
It is very important to notice that no rejoinder or replication was filed by the plaintiffs to this additional written statement.
The High Court invoked the presumption under Sec.45 of TP Act, without proper consideration and appreciation of the facts considered and dealt with by two courts holding by reasoned conclusions why the presumption stood rebutted on the facts. The High Court also committed an error of record by holding that there was no evidence that Trimbakrao Ingole alone had constructed the house, a finding patently contrary to the admission of PW1 in his evidence. The fact that mutation also was done in the name of Trimbakrao Ingole alone which remain unchallenged at any time was also not noticed.
The conclusion of the High Court that improper appreciation of evidence amounted to perversity is completely unsustainable. No finding has been arrived at that any evidence had been admitted contrary to the law or that a finding was based on no evidence only in which circumstance the High Court could have interfered in the second appeal.
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s).8859 OF 2019
(arising out of SLP (Civil) No(s). 16697 of 2018)
NARESH AND OTHERS ...APPELLANT(S)
VERSUS
HEMANT AND OTHERS ...RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
Leave granted.
2. The appellants who were the original defendants in the Suit
are aggrieved by the order of the High Court allowing the
respondentsplaintiffs’ Second Appeal, upsetting the concurrent
findings of facts by two courts. The parties shall be referred to by
their respective positions in the Suit for better appreciation and
convenience.
3. The predecessors of the plaintiffs and the defendants were
brothers namely, Ramchandrarao Ingole and Trimbakrao Ingole.
1
They partitioned among themselves in 1952. The suit property
consists of 7011 sq. ft. of lands, with a house constructed in 1974
75 thereupon leaving substantial vacant lands, was purchased
jointly in the name of the two brothers by sale deed dated
29.03.1957. Trimbakrao Ingole expired in 1980 and Ramchandrarao
Ingole also passed away on 22.03.1995. The plaintiffs as legal heirs
of Ramchandrarao Ingole, relying on the sale deed filed Special Civil
Suit No.268 of 1995 seeking partition and possession of their half
share in the suit property.
4. The suit was dismissed by the Trial Court. The first appeal
preferred by the plaintiffs was also dismissed. Both the courts
arrived at concurrent findings of facts that the plaintiffs had failed
to prove that Ramchandrarao Ingole had contributed to the
purchase of the suit property or that at any time he had been a
beneficiary of the purchase by residence or possession. The house
had been constructed exclusively by Trimbakrao Ingole from his
own funds and who remained in exclusive possession of the same
relying on the admissions of PW1 in his evidence. Ramchandrarao
Ingole was held not to be a vendee of the suit property.
2
5. Shri V.C. Daga, learned senior counsel appearing for the
appellants, submitted that the High Court in a Second Appeal under
Section 100 of the Civil Procedure Code should not have interfered
with the concurrent findings of facts by two courts that
Ramchandrarao Ingole was not and was never intended to be a
beneficiary of the purchase. The presumption under Section 45 of
the Transfer of Property Act (hereinafter referred to as ‘the Act’), by
reason of his name being mentioned in the sale deed as a vendee
also was rebuttable and not absolute. Two courts on appreciation of
the oral evidence, were satisfied for reasons recorded that
Ramchandrarao Ingole was never a beneficiary or in joint ownership
of the suit property. Trimbakrao Ingole alone was present at the
time of registration and the stamp papers were also purchased by
him. The construction was also raised by him alone from his own
funds, acknowledged by PW1 in his evidence. Ramchandrarao
Ingole never raised any claim for share in the property either during
the life time of Trimbakrao Ingole or for fifteen years thereafter till
his own death. It is only after the passing away of Ramchandrarao
Ingole that his legal heirs staked claim for partition based merely on
3
the recitals in the sale deed. Section 92 of the Indian Evidence Act
has no application in the facts of the case as it is applicable only in
case of a bilateral document relying on Bai Hira Devi and others
vs. Official Assignee of Bombay, AIR 1958 SC 448. The present
sale deed was a unilateral document executed by the vendor alone.
It was lastly submitted that the house was built in ‘L’ shape and by
design was incapable of being divided. The plaintiffs, as evident from
their own pleadings were indulging in speculative litigation, eyeing
the vacant area of the suit property.
6. Shri Pallav Sisodiya, learned senior counsel appearing for the
respondents, submitted that the suit property was purchased by
both the brothers together in view of their cordial relations. The
cordiality ended with the death of Ramchandrarao Ingole. Thus, the
suit came to be filed after his death. Relying on the recitals in the
sale deed, reading the same in conjunction with Section 45 of the
Act, it was submitted that Ramchandrarao Ingole was coowner by
operation of law. The fact that he may not have been in possession
does not raise any estoppel precluding him or his legal heirs from
asserting their rights, relying upon Suraj Rattan Thirani and
4
others vs. Azamabad Tea Co. Ltd. And others, (1964) 6 SCR 192.
Signature of the vendee on the sale deed was not mandatory, as
held in Aloka Bose vs. Parmatma Devi and others, (2009) 2 SCC
582. The fact that Trimbakrao Ingole may have signed at the time
of registration on the reverse of the deed or that his name may have
been mentioned as the purchaser of the stamp papers does not
make him and his legal heirs the exclusive owners of the property.
The oral evidence by both sides was insufficient to exclude the
rights of the plaintiffs. The appellants were unable to lead any
evidence under the second and third proviso to Section 92 for
rebutting the presumption in the law in favour of the plaintiffs
under Section 45 of the Act. The fact that the original sale deed
may have been produced by the defendants cannot be proof of
exclusive ownership. The findings in favour of the defendants by
the Trial Court and the First Appellate Court are only in the realm of
probabilities. The High Court rightly held in the nature of the
evidence, that the conclusions arrived at by the two courts below
were, therefore, perverse.
5
7. We have considered the submissions on behalf of the parties,
perused the respective pleadings and the evidence on record. The
plaintiffs acknowledged the construction of a house on the suit
property, seeking a share in the vacant lands fully aware of the
nature of the construction which could not be partitioned. The
defendants in their additional written statement had stated that
originally both the brothers proposed to purchase the property
together. Subsequently Ramchandrarao Ingole retracted and was
not interested in purchasing the property due to funds crunch.
Trimbakrao Ingole therefore alone paid the entire consideration.
Since the stamp papers had already been purchased and the sale
deed drafted in name of both the brothers, registration followed
without any change. It is very important to notice that no rejoinder
or replication was filed by the plaintiffs to this additional written
statement.
8. The evidence was in the nature of oath versus oath by the legal
heirs of the two brothers. No documentary evidence except for the
sale deed was led. The Trial Court correctly noticed the gap of 36
days between the preparation of the sale deed on 29.03.1957 and its
6
subsequent registration on 03.05.1957 as a circumstance to accept
the contention of the defendants that Ramchandrarao Ingole
retracted from any contribution and his status as a vendee or
beneficiary of the purchase. Since registration on 03.05.1957 till the
institution of the suit by the legal heirs of Ramchandrarao Ingole,
38 years later, he did not prefer any claim since 03.05.1957 till his
brothers death in 1980, including for 15 long years till his own
death on 23.03.1995. Thereafter, PW1 in his evidence admitted
that the construction of the house had been made by Trimbakrao
Ingole alone. There is no evidence that this construction was made
from joint family funds. It is an undisputed fact that the plaintiffs
at no point of time ever since purchase resided in the house or upon
the suit lands or enjoyed the same in any manner let alone incurred
any expenditure on the same.
9. The claim for a presumption under Section 45 of the Act in
favour of the plaintiffs was raised for the first time before the First
Appellate Court but was negated in light of the factual findings.
Importantly, it was held that mere failure of the defendants to
adduce satisfactory evidence that Trimbakrao Ingole had paid the
7
entire consideration did not absolve the plaintiffs of their duty to
establish their own claim in accordance with law by satisfactory
evidence to substantiate the presumption sought to be relied upon.
In other words, the appellate court correctly held that the weakness
of the defence could not become the strength of the plaintiff,
especially when the defendants were disputing their claims.
10. Section 45 of the Transfer of Property Act read as follows:
“45. Joint transfer for consideration.—Where
immoveable property is transferred for consideration
to two or more persons and such consideration is paid
out of a fund belonging to them in common, they are,
in the absence of a contract to the contrary,
respectively entitled to interests in such property
identical, as nearly as may be, with the interests to
which they were respectively entitled in the fund; and,
where such consideration is paid out of separate
funds belonging to them respectively, they are, in the
absence of a contract to the contrary, respectively
entitled to interests in such property in proportion to
the shares of the consideration which they
respectively advanced.
In the absence of evidence as to the interests in the
fund to which they were respectively entitled, or as to
the shares which they respectively advanced, such
persons shall be presumed to be equally interested in
the property.”
8
11. The High Court invoked the presumption without proper
consideration and appreciation of the facts considered and dealt
with by two courts holding by reasoned conclusions why the
presumption stood rebutted on the facts. The High Court also
committed an error of record by holding that there was no evidence
that Trimbakrao Ingole alone had constructed the house, a finding
patently contrary to the admission of PW1 in his evidence. The fact
that mutation also was done in the name of Trimbakrao Ingole alone
which remain unchallenged at any time was also not noticed. The
conclusion of the High Court that improper appreciation of evidence
amounted to perversity is completely unsustainable. No finding has
been arrived at that any evidence had been admitted contrary to the
law or that a finding was based on no evidence only in which
circumstance the High Court could have interfered in the second
appeal.
12. The High Court therefore manifestly erred by interfering with
the concurrent findings on facts by two courts below in exercise of
powers under Section 100, Civil Procedure Code, a jurisdiction
9
confined to substantial questions of law only. Merely because the
High Court may have been of the opinion that the inferences and
conclusions on the evidence were erroneous, and that another
conclusion to its satisfaction could be drawn, cannot be justification
for the High Court to have interfered.
13. In Madamanchi Ramappa vs. Muthaluru Bojappa, (1964) 2
SCR 673, this court with regard to the scope for interference in a
second appeal with facts under Section 100 of the Civil Procedure
Code observed as follows:
“12. ….The admissibility of evidence is no doubt a
point of law, but once it is shown that the evidence
on which courts of fact have acted was admissible
and relevant, it is not open to a party feeling
aggrieved by the findings recorded by the courts of
fact to contend before the High Court in second
appeal that the said evidence is not sufficient to
justify the findings of fact in question. It has been
always recognised that the sufficiency or adequacy
of evidence to support a finding of fact is a matter
for decision of the court of facts and cannot be
agitated in a second appeal. Sometimes, this
position is expressed by saying that like all
questions of fact, sufficiency or adequacy of
evidence in support of a case is also left to the jury
for its verdict. This position has always been
accepted without dissent and it can be stated
without any doubt that it enunciates what can be
10
properly characterised as an elementary
proposition. Therefore, whenever this Court is
satisfied that in dealing with a second appeal, the
High Court has, either unwittingly and in a casual
manner, or deliberately as in this case,
contravened the limits prescribed by s. 100, it
becomes the duty of this Court to intervene and
give effect to the said provisions. It may be that in
some cases, the High Court dealing 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
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 which is
usually associated with gambling; and that is a
reproach which judicial process must constantly
and scrupulously endeavour to avoid.”
14. Though precedents abound on this settled principle of law, we
do not consider it necessary to burden our discussion unnecessarily
except to rely further on Gurdev Kaur and others vs. Kaki and
others, (2007) 1 SCC 546, holding as follows:
“71. The fact that, in a series of cases, this Court
was compelled to interfere was because the true
legislative intendment and scope of Section 100 CPC
11
have neither been appreciated nor applied. A class
of judges while administering law honestly believe
that, if they are satisfied that, in any second appeal
brought before them evidence has been grossly
misappreciated 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
following upon a gross misappreciation of evidence
involves injustice and it is the duty of the High
Court to redress such injustice. We would like to
reiterate that the justice has to be administered in
accordance with law.
xxxx
73. The Judicial Committee of the Privy Council as
early as in 1890 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 to, or enlarge, the grounds specified in
Section 100.
xxxx
81. Despite repeated declarations of law by the
judgments of this Court and the Privy Council for
over a century, still the scope of Section 100 has not
been correctly appreciated and applied by the High
Courts in a large number of cases. In the facts and
circumstances of this case the High Court interfered
with the pure findings of fact even after the
amendment of Section 100 CPC in 1976. The High
Court would not have been justified in interfering
with the concurrent findings of fact in this case even
prior to the amendment of Section 100 CPC. The
judgment of the High Court is clearly against the
provisions of Section 100 and in no uncertain terms
clearly violates the legislative intention.
12
82. In view of the clear legislative mandate
crystallised by a series of judgments of the Privy
Council and this Court ranging from 1890 to 2006,
the High Court in law could not have interfered with
pure findings of facts arrived at by the courts below.
Consequently, the impugned judgment is set aside
and this appeal is allowed with costs.”
15. The order of the High Court interfering with concurrent
findings of facts by two courts is, therefore, held to be
unsustainable in exercise of the powers under Section 100 of the
Civil Procedure Code. The order of the High Court is consequently
set aside. The orders dated 06.03.1998 and 13.06.2002 of the Trial
Court and the First Appellate Court are restored. The suit of the
plaintiffs is dismissed. The present appeal is allowed.
.……………………….J.
(Ashok Bhushan)
………………………..J.
(Navin Sinha)
New Delhi,
November 19, 2019.
13
The suit property consists of 7011 sq. ft. of lands, with a house constructed in 1974 75 thereupon leaving substantial vacant lands, was purchased jointly in the name of the two brothers by sale deed dated 29.03.1957.
Trimbakrao Ingole expired in 1980 and Ramchandrarao Ingole also passed away on 22.03.1995.
The plaintiffs as legal heirs of Ramchandrarao Ingole, relying on the sale deed filed Special Civil Suit No.268 of 1995 seeking partition and possession of their half share in the suit property.
Both the courts arrived at concurrent findings of facts that the plaintiffs had failed to prove that Ramchandrarao Ingole had contributed to the purchase of the suit property or that at any time he had been a beneficiary of the purchase by residence or possession.
The house had been constructed exclusively by Trimbakrao Ingole from his own funds and who remained in exclusive possession of the same relying on the admissions of PW1 in his evidence. Ramchandrarao Ingole was held not to be a vendee of the suit property.
High court reversed the same in second appeal
Apex court held that
We have considered the submissions on behalf of the parties, perused the respective pleadings and the evidence on record.The plaintiffs acknowledged the construction of a house on the suit property, seeking a share in the vacant lands fully aware of the nature of the construction which could not be partitioned.
The defendants in their additional written statement had stated that originally both the brothers proposed to purchase the property together.
Subsequently Ramchandrarao Ingole retracted and was not interested in purchasing the property due to funds crunch. Trimbakrao Ingole therefore alone paid the entire consideration.
Since the stamp papers had already been purchased and the sale deed drafted in name of both the brothers, registration followed without any change.
It is very important to notice that no rejoinder or replication was filed by the plaintiffs to this additional written statement.
The High Court invoked the presumption under Sec.45 of TP Act, without proper consideration and appreciation of the facts considered and dealt with by two courts holding by reasoned conclusions why the presumption stood rebutted on the facts. The High Court also committed an error of record by holding that there was no evidence that Trimbakrao Ingole alone had constructed the house, a finding patently contrary to the admission of PW1 in his evidence. The fact that mutation also was done in the name of Trimbakrao Ingole alone which remain unchallenged at any time was also not noticed.
The conclusion of the High Court that improper appreciation of evidence amounted to perversity is completely unsustainable. No finding has been arrived at that any evidence had been admitted contrary to the law or that a finding was based on no evidence only in which circumstance the High Court could have interfered in the second appeal.
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s).8859 OF 2019
(arising out of SLP (Civil) No(s). 16697 of 2018)
NARESH AND OTHERS ...APPELLANT(S)
VERSUS
HEMANT AND OTHERS ...RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
Leave granted.
2. The appellants who were the original defendants in the Suit
are aggrieved by the order of the High Court allowing the
respondentsplaintiffs’ Second Appeal, upsetting the concurrent
findings of facts by two courts. The parties shall be referred to by
their respective positions in the Suit for better appreciation and
convenience.
3. The predecessors of the plaintiffs and the defendants were
brothers namely, Ramchandrarao Ingole and Trimbakrao Ingole.
1
They partitioned among themselves in 1952. The suit property
consists of 7011 sq. ft. of lands, with a house constructed in 1974
75 thereupon leaving substantial vacant lands, was purchased
jointly in the name of the two brothers by sale deed dated
29.03.1957. Trimbakrao Ingole expired in 1980 and Ramchandrarao
Ingole also passed away on 22.03.1995. The plaintiffs as legal heirs
of Ramchandrarao Ingole, relying on the sale deed filed Special Civil
Suit No.268 of 1995 seeking partition and possession of their half
share in the suit property.
4. The suit was dismissed by the Trial Court. The first appeal
preferred by the plaintiffs was also dismissed. Both the courts
arrived at concurrent findings of facts that the plaintiffs had failed
to prove that Ramchandrarao Ingole had contributed to the
purchase of the suit property or that at any time he had been a
beneficiary of the purchase by residence or possession. The house
had been constructed exclusively by Trimbakrao Ingole from his
own funds and who remained in exclusive possession of the same
relying on the admissions of PW1 in his evidence. Ramchandrarao
Ingole was held not to be a vendee of the suit property.
2
5. Shri V.C. Daga, learned senior counsel appearing for the
appellants, submitted that the High Court in a Second Appeal under
Section 100 of the Civil Procedure Code should not have interfered
with the concurrent findings of facts by two courts that
Ramchandrarao Ingole was not and was never intended to be a
beneficiary of the purchase. The presumption under Section 45 of
the Transfer of Property Act (hereinafter referred to as ‘the Act’), by
reason of his name being mentioned in the sale deed as a vendee
also was rebuttable and not absolute. Two courts on appreciation of
the oral evidence, were satisfied for reasons recorded that
Ramchandrarao Ingole was never a beneficiary or in joint ownership
of the suit property. Trimbakrao Ingole alone was present at the
time of registration and the stamp papers were also purchased by
him. The construction was also raised by him alone from his own
funds, acknowledged by PW1 in his evidence. Ramchandrarao
Ingole never raised any claim for share in the property either during
the life time of Trimbakrao Ingole or for fifteen years thereafter till
his own death. It is only after the passing away of Ramchandrarao
Ingole that his legal heirs staked claim for partition based merely on
3
the recitals in the sale deed. Section 92 of the Indian Evidence Act
has no application in the facts of the case as it is applicable only in
case of a bilateral document relying on Bai Hira Devi and others
vs. Official Assignee of Bombay, AIR 1958 SC 448. The present
sale deed was a unilateral document executed by the vendor alone.
It was lastly submitted that the house was built in ‘L’ shape and by
design was incapable of being divided. The plaintiffs, as evident from
their own pleadings were indulging in speculative litigation, eyeing
the vacant area of the suit property.
6. Shri Pallav Sisodiya, learned senior counsel appearing for the
respondents, submitted that the suit property was purchased by
both the brothers together in view of their cordial relations. The
cordiality ended with the death of Ramchandrarao Ingole. Thus, the
suit came to be filed after his death. Relying on the recitals in the
sale deed, reading the same in conjunction with Section 45 of the
Act, it was submitted that Ramchandrarao Ingole was coowner by
operation of law. The fact that he may not have been in possession
does not raise any estoppel precluding him or his legal heirs from
asserting their rights, relying upon Suraj Rattan Thirani and
4
others vs. Azamabad Tea Co. Ltd. And others, (1964) 6 SCR 192.
Signature of the vendee on the sale deed was not mandatory, as
held in Aloka Bose vs. Parmatma Devi and others, (2009) 2 SCC
582. The fact that Trimbakrao Ingole may have signed at the time
of registration on the reverse of the deed or that his name may have
been mentioned as the purchaser of the stamp papers does not
make him and his legal heirs the exclusive owners of the property.
The oral evidence by both sides was insufficient to exclude the
rights of the plaintiffs. The appellants were unable to lead any
evidence under the second and third proviso to Section 92 for
rebutting the presumption in the law in favour of the plaintiffs
under Section 45 of the Act. The fact that the original sale deed
may have been produced by the defendants cannot be proof of
exclusive ownership. The findings in favour of the defendants by
the Trial Court and the First Appellate Court are only in the realm of
probabilities. The High Court rightly held in the nature of the
evidence, that the conclusions arrived at by the two courts below
were, therefore, perverse.
5
7. We have considered the submissions on behalf of the parties,
perused the respective pleadings and the evidence on record. The
plaintiffs acknowledged the construction of a house on the suit
property, seeking a share in the vacant lands fully aware of the
nature of the construction which could not be partitioned. The
defendants in their additional written statement had stated that
originally both the brothers proposed to purchase the property
together. Subsequently Ramchandrarao Ingole retracted and was
not interested in purchasing the property due to funds crunch.
Trimbakrao Ingole therefore alone paid the entire consideration.
Since the stamp papers had already been purchased and the sale
deed drafted in name of both the brothers, registration followed
without any change. It is very important to notice that no rejoinder
or replication was filed by the plaintiffs to this additional written
statement.
8. The evidence was in the nature of oath versus oath by the legal
heirs of the two brothers. No documentary evidence except for the
sale deed was led. The Trial Court correctly noticed the gap of 36
days between the preparation of the sale deed on 29.03.1957 and its
6
subsequent registration on 03.05.1957 as a circumstance to accept
the contention of the defendants that Ramchandrarao Ingole
retracted from any contribution and his status as a vendee or
beneficiary of the purchase. Since registration on 03.05.1957 till the
institution of the suit by the legal heirs of Ramchandrarao Ingole,
38 years later, he did not prefer any claim since 03.05.1957 till his
brothers death in 1980, including for 15 long years till his own
death on 23.03.1995. Thereafter, PW1 in his evidence admitted
that the construction of the house had been made by Trimbakrao
Ingole alone. There is no evidence that this construction was made
from joint family funds. It is an undisputed fact that the plaintiffs
at no point of time ever since purchase resided in the house or upon
the suit lands or enjoyed the same in any manner let alone incurred
any expenditure on the same.
9. The claim for a presumption under Section 45 of the Act in
favour of the plaintiffs was raised for the first time before the First
Appellate Court but was negated in light of the factual findings.
Importantly, it was held that mere failure of the defendants to
adduce satisfactory evidence that Trimbakrao Ingole had paid the
7
entire consideration did not absolve the plaintiffs of their duty to
establish their own claim in accordance with law by satisfactory
evidence to substantiate the presumption sought to be relied upon.
In other words, the appellate court correctly held that the weakness
of the defence could not become the strength of the plaintiff,
especially when the defendants were disputing their claims.
10. Section 45 of the Transfer of Property Act read as follows:
“45. Joint transfer for consideration.—Where
immoveable property is transferred for consideration
to two or more persons and such consideration is paid
out of a fund belonging to them in common, they are,
in the absence of a contract to the contrary,
respectively entitled to interests in such property
identical, as nearly as may be, with the interests to
which they were respectively entitled in the fund; and,
where such consideration is paid out of separate
funds belonging to them respectively, they are, in the
absence of a contract to the contrary, respectively
entitled to interests in such property in proportion to
the shares of the consideration which they
respectively advanced.
In the absence of evidence as to the interests in the
fund to which they were respectively entitled, or as to
the shares which they respectively advanced, such
persons shall be presumed to be equally interested in
the property.”
8
11. The High Court invoked the presumption without proper
consideration and appreciation of the facts considered and dealt
with by two courts holding by reasoned conclusions why the
presumption stood rebutted on the facts. The High Court also
committed an error of record by holding that there was no evidence
that Trimbakrao Ingole alone had constructed the house, a finding
patently contrary to the admission of PW1 in his evidence. The fact
that mutation also was done in the name of Trimbakrao Ingole alone
which remain unchallenged at any time was also not noticed. The
conclusion of the High Court that improper appreciation of evidence
amounted to perversity is completely unsustainable. No finding has
been arrived at that any evidence had been admitted contrary to the
law or that a finding was based on no evidence only in which
circumstance the High Court could have interfered in the second
appeal.
12. The High Court therefore manifestly erred by interfering with
the concurrent findings on facts by two courts below in exercise of
powers under Section 100, Civil Procedure Code, a jurisdiction
9
confined to substantial questions of law only. Merely because the
High Court may have been of the opinion that the inferences and
conclusions on the evidence were erroneous, and that another
conclusion to its satisfaction could be drawn, cannot be justification
for the High Court to have interfered.
13. In Madamanchi Ramappa vs. Muthaluru Bojappa, (1964) 2
SCR 673, this court with regard to the scope for interference in a
second appeal with facts under Section 100 of the Civil Procedure
Code observed as follows:
“12. ….The admissibility of evidence is no doubt a
point of law, but once it is shown that the evidence
on which courts of fact have acted was admissible
and relevant, it is not open to a party feeling
aggrieved by the findings recorded by the courts of
fact to contend before the High Court in second
appeal that the said evidence is not sufficient to
justify the findings of fact in question. It has been
always recognised that the sufficiency or adequacy
of evidence to support a finding of fact is a matter
for decision of the court of facts and cannot be
agitated in a second appeal. Sometimes, this
position is expressed by saying that like all
questions of fact, sufficiency or adequacy of
evidence in support of a case is also left to the jury
for its verdict. This position has always been
accepted without dissent and it can be stated
without any doubt that it enunciates what can be
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properly characterised as an elementary
proposition. Therefore, whenever this Court is
satisfied that in dealing with a second appeal, the
High Court has, either unwittingly and in a casual
manner, or deliberately as in this case,
contravened the limits prescribed by s. 100, it
becomes the duty of this Court to intervene and
give effect to the said provisions. It may be that in
some cases, the High Court dealing 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
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 which is
usually associated with gambling; and that is a
reproach which judicial process must constantly
and scrupulously endeavour to avoid.”
14. Though precedents abound on this settled principle of law, we
do not consider it necessary to burden our discussion unnecessarily
except to rely further on Gurdev Kaur and others vs. Kaki and
others, (2007) 1 SCC 546, holding as follows:
“71. The fact that, in a series of cases, this Court
was compelled to interfere was because the true
legislative intendment and scope of Section 100 CPC
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have neither been appreciated nor applied. A class
of judges while administering law honestly believe
that, if they are satisfied that, in any second appeal
brought before them evidence has been grossly
misappreciated 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
following upon a gross misappreciation of evidence
involves injustice and it is the duty of the High
Court to redress such injustice. We would like to
reiterate that the justice has to be administered in
accordance with law.
xxxx
73. The Judicial Committee of the Privy Council as
early as in 1890 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 to, or enlarge, the grounds specified in
Section 100.
xxxx
81. Despite repeated declarations of law by the
judgments of this Court and the Privy Council for
over a century, still the scope of Section 100 has not
been correctly appreciated and applied by the High
Courts in a large number of cases. In the facts and
circumstances of this case the High Court interfered
with the pure findings of fact even after the
amendment of Section 100 CPC in 1976. The High
Court would not have been justified in interfering
with the concurrent findings of fact in this case even
prior to the amendment of Section 100 CPC. The
judgment of the High Court is clearly against the
provisions of Section 100 and in no uncertain terms
clearly violates the legislative intention.
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82. In view of the clear legislative mandate
crystallised by a series of judgments of the Privy
Council and this Court ranging from 1890 to 2006,
the High Court in law could not have interfered with
pure findings of facts arrived at by the courts below.
Consequently, the impugned judgment is set aside
and this appeal is allowed with costs.”
15. The order of the High Court interfering with concurrent
findings of facts by two courts is, therefore, held to be
unsustainable in exercise of the powers under Section 100 of the
Civil Procedure Code. The order of the High Court is consequently
set aside. The orders dated 06.03.1998 and 13.06.2002 of the Trial
Court and the First Appellate Court are restored. The suit of the
plaintiffs is dismissed. The present appeal is allowed.
.……………………….J.
(Ashok Bhushan)
………………………..J.
(Navin Sinha)
New Delhi,
November 19, 2019.
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