Hardial Singh vs Balbir Kaur .

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1925 OF 2022 (Arising out of SLP (C)No. 36332 of 2016)

HARDIAL SINGH Appellant(s)

VERSUS

BALBIR KAUR & ANR. Respondent(s)

J U D G M E N T

K. M. JOSEPH, J.

Leave granted.

(1) Respondent Nos. 1 and 2, who are plaintiffs, filed the

suit seeking declaration of title and prohibitory

injunction. The first defendant was the mother-in-law of

the first plaintiff and the paternal grandmother of the

second plaintiff. The appellant is the brother-in-law of

the first plaintiff that is he is the brother of Sucha

Singh.

(2) The suit was laid on the following basis.

Shri Sucha Singh, who was the husband of the first Signature Not Verified plaintiff and the father of the second plaintiff, passed Digitally signed by Nidhi Ahuja Date: 2022.03.14

away on 21.04.1998. The case was set-up against the 17:32:10 IST Reason:

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mutation which was allegedly illegally carried out and as a

result of which, in regard to the 1/3 right, the name of the

defendants were entered.

The case of the plaintiffs is that Sucha Singh has

left behind a will dated 19.04.1998 before he died on

21.04.1998 which was registered on 18.06.1998. Under the

will, the plaintiffs were bequeathed all his rights. The

appellant and the other defendants contested the suit and

contended that the will dated 19.4.1998 was forged. It was

their case that since Sucha Singh died intestate, the

plaintiffs and the mother of Sucha Singh being Class I heirs

inherited 1/3 right each. On the strength of the said

succession, the mother executed a will dated 16.07.1998 (D1)

in favour of her two other sons of whom the appellant is

one. The matter went to trial. The trial Court decreed the

suit. The trial Court found that plaintiffs succeeded and

declared them the owners in view of will dated 19.04.1998.

(3) The defendants appealed. In the first appeal, the

appellate Court reversed the decree of the trial Court. The

appellate Court on appreciation of the evidence has found

that there were suspicious circumstances surrounding the

will dated 19.04.1998. It was inter alia found that the

mother of Sucha Singh was living with him and there was

nothing to indicate as to why he would exclude his own

mother. It was further found that there were certain other

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circumstances including the registration of the will after

the death of the testator which were considered by the first

appellate Court in concluding that the will dated 19.04.1998

could not be accepted as genuine. It was also found that D1

will was valid. On the strength of the appreciation of the

evidence the fist appellate Court set aside the judgment of

the trial Court and the mother of Sucha Singh was found to

have legal right with the plaintiffs.

(4) It was now the turn of the plaintiffs to appeal by

purporting to invoke Section 100 of the Code of Civil

Procedure, 1908. It is in the said second appeal that the

judgment which is impugned before us came to be passed.

The High Court in the impugned judgment has restored

the decree of the trial Court. In the course of the

judgment, the High Court has proceeded to find that the

trial Court was right in finding that the will dated

19.04.1998 could be acted upon.

(5) We have heard Mr. Rakesh K. Khanna, learned senior

counsel appearing for the appellant and Mr. Partha Sil,

learned counsel appearing for the plaintiffs.

At the time when notice was issued in this case on

06.03.2017, we notice that what was projected before this

Court was that substantial questions of law were not framed

and without that the second appeal has been allowed by the

High Court. It was on this premise that this Court issued

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notice. Mr.Rakesh K. Khanna, learned senior counsel, would,

in fact, point out that this Court had already taken a view

regarding the provisions of law applicable as regards the

High Court of Punjab and Haryana in a second appeal in the

decision reported in Pankajakshi (Dead) Through Legal

Representatives and Others v. Chandrika and Others (2016) 6

SCC 157. This judgment was rendered on 25.02.2016. In

fact, learned senior counsel would point out that at the

time when notice was issued by this Court noticing that

substantial question of law was not framed, the judgment in

Pankajakshi (Dead) Through Legal Representatives and Others

(supra) had not been reported. This Court in Pankajakshi

(Dead) Through Legal Representatives and Others (supra)

which is, in fact, a Constitution Bench judgment has found

that as far as Punjab and Haryana High Court is concerned,

in a second appeal, the law which would be applicable would

be Section 41 of Punjab Courts Act, 1918. Therein, this

Court inter alia held as follows:

“The judgment in Kulwant Kaur case [Kulwant Kaur v. Gurdial Singh Mann, (2001) 4 SCC 262] raised a question which arose on an application of Section 41 of the Punjab Courts Act, 1918. This section was couched in language similar to Section 100 of the Code of Civil Procedure as it existed before the Code of Civil Procedure (Amendment) Act, 1976, which amended Section 100 to make it more restrictive so that a second appeal could only be filed if there was a substantial question of law involved in the matter.”

(6) This Court took the view that it is Section 41 of the

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Punjab Courts Act, 1918, which would continue to govern the

fate of a second appeal in the Punjab High Court. Thus, on

the one hand, as far as in Punjab and Haryana is concerned,

in a second appeal, the Court need not frame substantial

questions of law in a second appeal, that is different from

saying that it can exercise its jurisdiction de hors the

boundaries of its powers located in Section 41 of the Punjab

Courts Act, 1918.

(7) Considering the effect of Pankajakshi (Dead) Through

Legal Representatives and Others (supra), this Court has in

Randhir Kaur v. Prithvi Pal Singh and Others (2019) 17 SCC

71 inter alia, held as follows:

“15. A perusal of the aforesaid judgments would show that the jurisdiction in second appeal is not to interfere with the findings of fact on the ground that findings are erroneous, however, gross or inexcusable the error may seem to be. The findings of fact will also include the findings on the basis of documentary evidence. The jurisdiction to interfere in the second appeal is only where there is an error in law or procedure and not merely an error on a question of fact.

16. In view of the above, we find that the High Court could not interfere with the findings of fact recorded after appreciation of evidence merely because the High Court thought that another view would be a better view. The learned first appellate court has considered the absence of clause in the first power of attorney to purchase land on behalf of the plaintiff; the fact that the plaintiff has not appeared as witness.”

(8) Still further, this Court in judgment reported in

Avtar Singh & Ors. v. Bimla Devi & Ors. 2021 SCC Online SC

827 again the scope of the jurisdiction which is available

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to the High Court of Punjab and Haryana in the matter of the

second appeal has explained as follows:

“20. It is thus evident, therefore, that mere findings of fact cannot be interfered with in exercise of second appellate jurisdiction given the three limbs of jurisdiction available under Section 41 of the Punjab Courts Act. Findings of fact which are unreasonable, or which are rendered by overlooking the record, therefore, per se do not appear to fall within the scope of second appellate review by the High Court. In these circumstances, the High Court's findings - which are based entirely on the reappreciation of the record

- and consequent interference with the concurrent findings of the lower courts, cannot be upheld.”

(9) A perusal of the impugned judgment which was, in fact,

rendered on 02.02.2013 which is prior to the judgment in

Pankajakshi (Dead) Through Legal Representatives and Others

(supra) would, undoubtedly, appear to bear the appellant out

in his complaint at the stage when the Court considered it

on the first occasion, namely, that the learned Judge has

proceeded to deal with the second appeal even without

formulating a substantial question of law as would have been

the requirement as it was understood in law in the year 2013

in the absence of the judgment in Pankajakshi (Dead) Through

Legal Representatives and Others (supra). We would notice

that the High Court has proceeded in the matter without even

carefully attending to the evidence which is available on

record. It is another matter that in a second appeal

jurisdiction of the Court as understood by this Court is

very narrow. We would think that the findings which have

been rendered and the approach of the Court would make it

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incompatible with the power available to the Court within

the four walls of its jurisdiction in a second appeal as

laid down by this Court.

(10) But then, the learned counsel for the respondent,

would submit that this Court may remit the matter back so

that the Court may consider the second appeal strictly

within the ambit of the provision as applicable to the

Punjab and Haryana High Court. We would think that the said

request merits acceptance.

(11) Accordingly, the upshot of the above judgment is that

we set aside the impugned judgment. We remand the case back

to the High Court. The High Court will consider the matter

as early as possible keeping in mind the fact that the suit

is of the year 1998. We would request the High Court to

consider taking up the second appeal on a priority basis.

We make it, however, clear that we have not expressed any

view on the merits of the contentions of either side. The

appeal is allowed as above.

Parties will bear their respective costs.

…………………………………………………………………., J.

[ K.M. JOSEPH ]

…………………………………………………………………., J.

[ HRISHIKESH ROY ] New Delhi;

March 10, 2022.

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