GURDEV KAUR AND ORS. v. KAKI AND ORS

Citation: [2006] SUPP. 1 S.C.R. 27

Court: Supreme Court of India

Bench: RUMA PAL, DALVEER BHANDARI

Case summary

GURDEV KAUR AND ORS. v. KAKI AND ORS.pdf

Judgment text

GURDEV KAUR AND ORS. 11. KAKI AND ORS. APRIL 18, 2006 [RUMA PAL AND DALVEER BHANDARI, JJ.

] Code of Civil Procedure, J908: 'j Section JOO (as ii stood after the J976 Amendment)-Second appeal- Substantial question of law-Scope of interference-Legislative intention and ambit-Validity of Will-Dispute regarding-Deceased-testator had two wives-Firs/ wife died before the deceased and plaintiffi were the daughters ofthe deceasedfrom his first wife-Deceased executed a Will bequeathing his entire property in favour of the defendant-second wife-Defendant got sanctioned the mutation of inheritance of the deceased on the basis of the alleged Will-According to the plaintiffi, the deceased did not execute any Will out ofhis free will-The trial court held that the Will was duly executed by the deceased infavour ofhis second wife and was a natural document- " The first appellate court upheld the findings of the trial court-The High Court, in second appeal, set aside the concurrent findings offacts arrived at by the courts below on the ground that, in the normal circumstances, a .

prudent man would have bequeathed the property infavour ofhis legal heirs and would not have disinherited the plaintiffs-Correctness of-Held: Interference in ·second appeal under s, JOO in cases where there is no substantial question of law is against'1he legislative intention-The High Courts would have jurisdiction ofinterfering under Section JOO C. P. C. only in a case where substantial questions oflaw are involved and those questions have been clearly formulated in the memorandum of appeal-High Court bound to formulate substantial question oflaw before hearing the appeal- In the instant case, the High Court has notformulated the substantial question oflaw before hearing the appeal-The judgment ofthe High Court is clearly against the provisions of Section l00 and in no uncertain terms clearly violates the legislative intention-The Court does not sit in appeal over the right or wrong of the testator's decision-High Court judgment set aside- - Hindu Succession Act, J956. ..

Words & Phrases: "Substantial question of law"·-Meaning of-In the con/ext of S. 100 of the Code of Civil Procedure, 190/J. The deceased-testator had two wives. The first wife died before the deceased. The respondents-plaintiffs were the daughters of the deceased from his first wifo. The appellants-defendants were the second wife and daughters of the deceased. The deceased executed a Will bequeathing his entire property in favour of his second wife on the basis of which the defendant-wife got the mutation of inheritance of the deceased sanctioned on the basis of the alleged • Will. According to the respondents-plaintiffs, the deceased did not execute any Will out of his free will. The trial court held that the Will was duly executed by the deceased in favour of his second wife and was a natural document. The first appellate court upheld the findings of the trial court.

Being aggrieved, the respondents-plaintiffs preferred a second appeal under Section 100 of the Code ofCivil Procedure, 1908 before the High Court. The High Court set aside the concurrent findings of facts arrived at by the courts below on the ground that, in the normal circumstances, a prudent man would have bequeathed the property in favour of his legal heirs am! would not have disinherited the respondents-plaintiffs. Hence the appeal. The following question arose before the Court:- Whether, according to the true delineated scope of Section 100 of the Code of Civil Procedure, 1908, was the High Court justified in interfering with the concurrent findings of fact? Allowing the appeal, the Court HELD: 1. 1.

Indiscriminate and frequent interference under Section 100 of the Code of Civil Procedure, 1908 in cases which are totally devoid of any substantial question law is not only against the legislative intention but is also the main cause of huge pendency of second appeals in the High Courts leading to a colossal delay in the administration of justice in civil cases in our country. (32-EJ 1. 2. Despite declaration of law in numerous judgments, it is evident that the scope and ambit ofSection 100 C. P. C. has not been properly appreciated and applied in a large number of cases. A serious endeavour to discern ' legislative intention, ambit and scope of interference under Section I00 C. P. C ,_ GURDEV KAUR v. KAKI 29 ,is being made. [32-FI 2. The primary cause of the accumulation of arrears ofsecond appeal in the High Court is the laxity with which second appeals are admitted without serious scrutiny of the provisions of Sectiori 100 C. P. C.

It is the bounden duty of the High Court to entertain second appeal within the ambit and scope of Section 100 C. P. C. 148-B-CI 3. The question which is often asked that why a litigant should have the right oftwo appeals even on questions of law. The answer to this query is that l ~ in every State there are a number of District Courts and courts in the District cannot be final arbiters on questions of law. If th. e law is to be uniformly inte~preted and applied, questions of law must bC decide. d by the highest Court in the State whose decisions are binding on alfsubordinate courts. (48-C-DI -· 4. The rationale behind allowing a second appeal on a question of law is that there ought to be some tribunal having a jurisdiction that will enable it to maintain, and, where necessary, reestablish, uniformity throughout the State on important legal issues, so that within the area of the State, the law, .

, insofar as it is not enacted law, should be laid down, or capable of being laid down, by one court whose rulings will be binding on all courts, tribunals and authorities within the area over which it has jurisdiction. This is implicit in any legal system where the higher courts have authority to make binding decisions on question of. law. (48-E-FI Diety Pattabhiramas\1'. a1ny v. S. Hnaymayya, AIR (1959) SC 57, M. Ramappa v. M. Bojjappa, (19631SCR673, Sheet Chand v. Prakash Chand, [1998( 6 SCC 683, Luchman v. Puna (1889) 16 Cal 753 PC, Pratap Chunder v. Mohandranath, (1890) ILR Cal 291 PC, Durga Chowdharani v. Jawahar i Singh, (1891) 18 Cal 23 PC, Ramratan Shuku/ v. Mussumat Nandu, (1892) 19 Cal 249 PC, Ram Gopal v. Shakshaton, (1893) ILR 20 Cal 93 PC and Rudra Prasadv. Bai) Nath, (1893) ILR 15 All 367, referred to.. 5. Now, after the 1976 Amendment to Section 100 C. P. C. , the scope of Section 100 has been drastically curtailed and narrowed down.

The High Courts would have jurisdiction of interfering under Section 100 C. P. C. only in a ~ase where substantial questions of law are involved and those questions have been clearly formulated in the. memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the -f High Court to formulate substantial questions of law and then only the high ..... Court is permitted to proceed with the case to decide those questions of law, the language used in the amended Section specifically incorporates the words . _ as "substantial question of law" which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become "third trial on facts" or "one more dice in the gamble".

The effect ofthe amendment, mainly, according to the amended Section was: (i) The High Court would be _justified in admitting the second appeal only when a substantial question of law is involved; (ii) The substantial question of law to precisely state such question; , (iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; ... (iv) Another part ofthe Section is that the appeal shall be heard only on that question. (48-H; 49-A-E] Bhularam v. Amirchand (1981) 2 sec 414, Kshitish Chandra Purkait v. Santosh Kumar Purkait, (1997( 5 SCC 438, Dnyanuba Bhaurau Shemade v. Maroti Bhaurao Marnor, (199912SCC471, Kanai Lal Garari v. Murari Ganguly, (1999) 6 SCC 35, Santosh Ha::ari v. Purushuttam Tiwari, (2001( 3 SCC 179, Kamti Devi v. Pushi Ram, (20011 5 SCC 311, Thiagarajan v. Sri Venugupalaswamy B. Kail, (2004( 5 SCC 762, Commissioner, Hindu Religious & Charitable Endowments v. P. Shanmugama, (2005( 9 SCC 232, State of Kera/av. Mohd.

Kunhi, (2005] IO SCC 139, Madhavan Nair v. Bhaskar Pillai, (2005( IO SCC 553, Harjeet Singh v. Amrik Singh. (2005( 12 SCC ro and H. P. Pyarejan v. Dasappa, (2006( 2 SCC 496, relied on. 6. The fact that, in a series of cases, this Court was compelled to interfere was because the true legislative intend ment and scope of Section 100 C. P. C. 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. It is reiterated that the justice has to be administered in accordance with law. (49-E-F( 7. When Section I00 C. P. C.

is critically examined then, according to GURDEV KAUR v. KAKl 31 1 the legislative mandate, the interference by the High Court is permissible only in cases involving substantial questions of law. (49-G( 8. 1. The High Court has clearly deviated from the settled principle of interpretation of the Will. The Court does not sit in appeal over the right or wrong of the testator's decision. The Court's role is limited to examining whether the instrument propounded as the last Will of the deceased is or is not that by the testator and whether it is the product of the free and sound disposing mind. It is only for the purpose of examining the authenticity or otherwise of the instrument propounded as the last Will, that the Court looks 1 into the nature of the bequest. [50-D-E) .. 8. 2. The High Court has not even properly appreciated the context of the circumstances.

The contents of the Will have to be appreciated in the context of the circumstances, and not vis-a-vis the rules for intestate succession. It is only for this limited purpose that the Court examines the nature of bequest. The Court does not substitute its own opinion for what was the testator's Will or intention as manifested from a reading of the written instrument. After all, a Will is meant to be an expression of his desire and, ~ therefore, may result in disinheritance ofsome and grant to another. In the instant case, wife of the testator alone had lived with the deceased and only she had looked after him throughout his life. The other daughters were all happily married a long time ago and in their weddings the testator had spent huge amount of money. In his own words, he had spent more than what they would have got in their respective shares out of testator's property. (50-E-G) 8. 3. Ifa Will appears on the face of it to have been duly executed and ..

; attested in accordance with the requirements of the Statute, a presumption of due execution and attestation applies. (50-H; 51-A) ~ 9. It may be pertinent to mention that in the memorandum of second appeal filed before the High Court no substantial question of law was formulated. Similarly, the High Court in its judgment has not formulated the question oflaw before hearing the appeal. (51-A-B( IO. 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 ofSection 100 C. P. C. in 1976. The High Court would not have bee'n justified in interfering with the concurrent findings of fact in this case even prior to the amendment ofSection 100 C. P. C.

The judgment of the High Court is clearly against the provisions of Section 100 and in no uncertain terms clearly violates the legislative intention. 151-B-DI CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2083 of 2006. From the Order dated 1. 8. 2003 of the High Court of Punjab and Haryana at Chandigarh in C. R. S. A. No. 885/1983. A. S. Jattana, Dinesh Verma and A. P. Mohanty for the Appellants. Sudhir Walia and Mahinder Singh Dahiya for the Respondents. The Judgment of the Court was delivered by DALVEER BHANDARI, J. Leave granted. - Judges must administer law according to the provisions of law. lt is the bounden duty of judges to discern legislative intention in the process of adjudication. Justice administered according to individual's whim, desire, inclination and notion ofjustice would lead to confusion, disorder and chaos. Indiscriminate and frequent interference under Section I00 C. P. C.

in cases which are totally devoid of any substantial question of law is not only against the legislative intention but is also the main cause of huge pendency of second appeals in the High Courts leading to colossal delay in the administration of justice in civil cases in our country. Despite declaration of law in numerous judgments, it is evident that the scope and ambit of Section I00 C. P. C. has not been properly appreciated and applied in a large number of cases. We are, once again making a serious endeavour to discern legislative intention, ambit and scope of interference under Section 100 C. P. C.. We plan to carry out this exercise by critically examining important judgments decided before and after 1976 amendment in the Section I00 C. P. C.. This ions of Section I00 C. P. C. It is the bounden duty of the High Court to entertain second appeal within the ambit and scope of Section 100 C. P. C.

The question which is often asked that why a litigant should have the right of two appeals even on questions of law. The answer to this query is that in every State there are number of District Courts and courts in the District cannot be final arbiters on questions of law. If the law is to be uniformly interpreted and applied, questions of law must be decided by the highest Court in the State whose decisions are binding on all subordinate courts.

Rationale behind permitting second appeal on question of law The rationale behind allowing a second appeal on a question of law is, that there ought to be some tribunal having a jurisdiction that will enable it to maintain, and, where necessary, re-establish, uniformity throughout the State on important legal issues, so that within the area of the State, the law, in so far as it is not enacted law, should be laid down, or capable of being laid down, by one court whose rulings will be binding on all courts, tribunals and authorities within the area over which it has jurisdiction. This is implicit in any legal system where the higher courts have authority to make binding decisions on question of law. The analysis of cases decided by the Privy Council and this Court prior to 1976 clearly indicated the scope of interference under Section I00 C. P. C. by this Court.

Even prior to amendment, the consistent position has been that the Courts should not interfere with the concurrent findings of facts. Now, after 1976 Amendment, the scope ofSection 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 C. P. C. only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal:· At the time of admission of the secorid appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of faw and then only the High Court is permitted tc, proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the. words as "substantial question of law" which is indicative of the legislative intention.

It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become "third trial on facts" or "one more dice in the gamble". The effect of the amendment mainly, according to the amended section, was: (i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii) The substantial question of law to precisely state such question; (iii) A duty has been cast on. the High Court to formulate substantial question of law before hearing the appeal; . (iv) Another part of the Section is that the appeal shall be heard. only on that question. The fact that, in a series of cases, this Court was compelled to interfere was because the true legislative iiitendment and scope of Section 100 C. P. C.

have neither been appreciated nor applied: A class ofjudges while administering law honestly believe that, if they are ~atisfied that, in any second appeal ~rought before them evidence has been grossly misappreciated either by the lower appellate court or by both the courts below, it is their d\)ty to interfere, because they seem to feel thl! t l! decree following upon a gross misappreciation of evidence involv. es inj_ustice and it is the duty of the High Court to redr~ss su. ch injustice. We would like to reiterate that the justice has to be adniinistered in accordance with law. When Section 100 C. P. C. is critically examined then, according to the legislative mandate, the interference by the High Court is permissible only in cases involving substantial questions of law.

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 I00. The High Court seriously erred in interfering with the findings of facts arrived at by the Trial Court and affirmed by the first Appellate Court. The High Court in the impugned judgment has observed as under :- "In the normal circumstances a prudent man would have bequeathed ,. the property in favour of his legal heirs. However, in the present case, the testator has disinherited the plaintiffs. " The High Comt also observed that "no father in normal circumstances would like to disinherit the daughters. " The High Court has clearly deviated from the settled principle of interpretation of the Will.

The Court does not sit in appeal over the right or wrong of the testator's decision. The Court's role is limited to examining whether the instrument propounded as the last Will of the deceased is or is not that by the testator and whether it is the product of the free and sound • disposing mind. It is only for the purpose of examining the authenticity or otherwise of the instrument propounded as the last Will, that the Court looks into the nature of the bequest. The learned Single Judge of the High Court has not even properly appreciated the context of the circumstances. The contents of the Will have to be appreciated in the context of his circumstances, and not vis-a-vis the rules for intestate succession. It is only for this limited purpose that the Court examines the nature of bequest. The Court does not substitute its own opinion for what was the testator's Will or intention as manifested from a reading of the written instrument.

After all, a Will is meant to be an expression of his desire and therefore, may result in disinheritance of some and grant to another. In the instant case, wife of the testator Bhagwan Kaur alone had lived with the deceased and only she had looked after him throughout his life. ( .. ,J The other daughters were all happily married a long time ago and in their weddings the testator had spent huge amount of money. In his own words, he had spent more than what they would have got in their respective shares out of testator's property. If a Will appears on the face of it to have been duly executed and ' GURDEVKAUR v. KAKI (DALVEERBHANDARl,J. ] 51 attested in accordance with the requirements of the Statute, a presumption of due execution and attestation applies. It may be pertinent to mention that in the memorandum of second appeal filed before the High Court no substantial question of law was formulated.

Similarly, the High Court in its judgment has not formulated question of law before hearing the appeal. 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 ev! '. n after the amendment ofSection 100 C. P. C. 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 I00 C. P. C.. The judgment of the High Court is clearly against the provisions of Section I00 and in no uncertain terms clearly violates the legislative intention.

In view of the clear legislative mandate crystallized 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. v. s. s. Appeal allowed.