HON’BLE SRI JUSTICE G.V. SEETHAPATHY SECOND APPEAL No.1073 of 2006 JUDGMENT: This second appeal is directed against the judgment dated 28.07.2006 in A.S.No.106 of 2005, on the file of the Principal District Judge, Eluru, wherein the said appeal filed by the respondents herein, was allowed, setting aside the judgment and decree dated 14.2.2005 in O.S.No.680 of 2005, on the file of the Principal Junior Civil Judge, Eluru. Heard learned counsel for the appellant and learned counsel for the respondents. Perused the records. The appellant herein filed the suit for partition of the plaint schedule property into three equal shares and to allot one such share to the plaintiff with separate possession thereof and also for mesne profits. D1 is the mother of plaintiff and D2. Y. Mahalakshmamma who is the maternal grand mother of the plaintiff and mother of D1 was the original owner of the property situate in T.S.Nos.875 and 879 of Eluru Municipality and she executed a registered settlement deed dated 02.06.1972 in favour of the plaintiff, settling a shop room. She also executed a Will dated 17.07.1972 bequeathing her properties to her daughter D1 with the right to enjoy till her lifetime and, with vested remainder to the sons of D1 i.e. plaintiff, D2 and D3 and one Pilli Prabhakar Rao. The said Pilli Prabhakar Rao died in February, 1973. Thereafter, Mahalakshmamma executed a codicil dated 14.04.1974, in a sound and disposing state of mind, making certain modifications to the earlier Will dated 17.07.1972. As per the codicil, the vested right that has been given to Pilli Prabhakar Rao to the shop room was modified to the effect that it shall be devolved on her grand sons, i.e. plaintiff, D2 and D3, with equal rights. In the said codicil, no right or interest is given to D1. Therefore, D1 and D2 have no right or title or interest in the said shop room. D1 and D2, with a view to cause loss to the plaintiff, suppressed the codicil executed by Mahalakshmamma, by keeping the same in the custody of D3, and created a sale deed as if D1 got absolute title to the shop room and she sold the same to D2. The plaintiff is entitled for 1/3rd share in the said shop room by virtue of the codicil. Hence, the suit for partition and separate possession of plaintiff’s 1/3rd share. D1 and D2 filed a written statement contending that Mahalakshmamma has not executed any codicil on 14.04.1974 or on any other date and it is a forged document. It is further contended that D1 is the absolute owner as per the registered Will executed by Yarlagadda Kotayya, father of D1, and D1’s mother Mahalakshmamma also executed the Will in favour of D1. It is further alleged that D3 and plaintiff colluded and filed this suit. D1 further contended that as she was indebted to several persons for meeting her medical expenses, she sold away the property to her son D2 in 1991, after the plaintiff and D3 refused to purchase. D3 also filed a separate written statement contending that, as per the Will dated 17.07.1972 executed by Mahalakshmamma, the property was bequeathed to D1 to enjoy for her lifetime and thereafter, the vested remainder was given to plaintiff, D2 and D3. D3 filed a written statement in support of his claim and submitted that he has no objection for partition of the schedule property. D4 is only a tenant and he also filed a written statement to the effect that his father used to pay the rents to Mahalakshmamma during her lifetime and after her death, to D1; and sometimes D2 used to collect the monthly rents on behalf of D1. D4 is a protected tenant under the provisions of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 and is not a proper and necessary party to the suit. Based on the above pleadings, the trial Court framed the following issues:- i. Whether the plaintiff is entitled to the partition? If so, to what share? ii. Whether the Codicil dated 14.04.1974 is true, valid and binding on the parties? iii. To what relief? PWs.1 to 3 were examined and Exs.A1 to A6 were marked on behalf of the plaintiffs and, DWs.1 to 6 were examined and Exs.B1 to B18 were marked on behalf of the defendants. On a consideration of the evidence available on record, the trial Court held that the codicil dated 14.04.1974 is true, valid and binding and, therefore, the plaintiff is entitled for partition and separate possession of 1/3rd share as claimed. Accordingly, the suit was decreed. Aggrieved by the same, the defendants preferred an appeal A.S.No.106 of 2005. By the impugned judgment dated 28.07.2006, the learned District Judge, allowed the appeal, setting aside the judgment and decree of the trial court, holding that Ex.A1-codicil is a fabricated document brought into existence to defeat the rights of the defendants and in order to get over the sale deed executed by D1 in favour of D2. Assailing the same, the present second appeal is filed by the plaintiff. The main contention of the learned counsel for the appellant is that the lower appellate court erred in recording the finding that Ex.A1-codicil is fabricated, based on its own examination and without obtaining the opinion from the handwriting expert, and also erred in holding that there are suspicious circumstances, without there being any proof in that regard. The learned counsel for the respondent, on the other hand, would contend that the admissions of PW1 himself in the evidence, particularly, the absence of any reference to the codicil in the partition deed executed in 1979, wherein it was stated that the Will dated 17.07.1972 was the last Will and Testament, would cut at the root of the appellant’s claim and the lower appellate court had discarded the evidence of PWs.2 and 3, the attestors of the codicil, by giving valid reasons. He would further contend that the matter pertains to appreciation of evidence as to the truth or otherwise of Ex.A1-codicil and the same does not give rise to any question of law, much less substantial question of law, to be considered in this second appeal. It is not disputed that the whole dispute revolves around the question as to whether or not Ex.A1-codicil dated 14.04.1974, said to have been executed by D1’s mother Mahalakshmamma in modification of the Will dated 17.07.1972, is true. The claim of the plaintiff for 1/3rd share in the property is based only on the alleged modification of the earlier Will-Ex.B17 executed by Mahalakshmamma under the codicil-Ex.A1. The defendants categorically deny the genuineness of the said document codicil- Ex.A1, contending that it is a fabricated document, brought into existence to defeat the alienation made by D1 in favour of D2 under a registered sale deed. The burden was, therefore, cast upon the plaintiff to prove the genuineness of Ex.A1-codicil. In discharge of the said burden, the plaintiff examined PWs.2 and 3, who are said to be the attestors of Ex.A1. The trial Court, relying upon the testimony of PWs.2 and 3, upheld the truth and validity of Ex.A1-codicil. The appellate Court, while reversing the said finding, has discarded the evidence of PWs.2 and 3. In the impugned judgment, the appellate Court noted that PW2 has not specifically stated in his evidence that he witnessed Mahalakshmamma executing the codicil-Ex.A1 and likewise Mahalakshmamma witnessed PW2 signing Ex.A1 as attestor. PW3, the other attestor, deposed as if it was a registered document whereas it was said to have been written on a plain paper and, admittedly, not registered. The lower appellate Court has furnished reasons for discarding the evidence of PWs.2 and 3 and held that their testimony does not prove the execution of Ex.A1-codicil by Mahalakshmamma and, coupled with other circumstances, the plaintiff’s claim based on the said codicil, remains unsubstantiated. The lower appellate Court has also rightly observed that the trial Court proceeded as if Ex.A1-codicil is a registered document when, admittedly, it was not a registered one; and the lower court erred in holding that Ex.A1 being an ancient document, requires no formal proof. The most important circumstance relied upon by the lower appellate Court in negating the claim of the plaintiff based on Ex.A1-codicil is that, PW1, in his evidence, admitted that himself and his brothers executed a partition deed dated 26.06.1979 (Ex.B6) in respect of the suit property and, in the said partition deed, it was mentioned that the Will executed by Mahalakshmamma on 17.07.1972 was the last Will and Testament. He also admitted that, subsequently, several transactions of sale have taken place and he himself executed the sale deed-Ex.B17 in favour of one K. Ratnamala, wherein also the Will dated 17.07.1972 executed by Mahalakshmamma was referred to as the last Will and Testament. He also admitted that in the sale deed dated 12.08.2003 executed in favour of Mutyalamma by his brother D3 in which he figured as an attestor, it was stated that the Will dated 17.07.1972 was the last Will and Testament executed by Mahalakshmamma. Even in the legal notice issued on 17.05.1995, PW1 admitted that the Will dated 17.07.1972 was referred to as last Will and Testament. Thus, though the Will dated 17.07.1972 is said to have been modified by way of codicil-Ex.A1 dated 14.04.1974, in the above documents including the partition deed-Ex.B6 executed on 26.06.1979 to which PW1 was a party, no reference was made to Ex.A1 and, on the other hand, the earlier Will dated 17.07.1972 was referred to as the last Will and Testament executed by Mahalakshmamma. D3 who is an attestor stated that the plaintiff executed the registered sale deed-Ex.B3 dated 12.08.2003 in favour of Mutyalamma in respect of his share which he got under Ex.B6- partition deed and in the said sale deed also, the Will dated 17.07.1972 was referred to as the last Will of Mahalakshmamma. The alienation by D1 in favour of D2 was in 1991 under Ex.B12 and, the suit was filed nine years later i.e. in 2000 for the first time basing the claim on the codicil-Ex.A1. If really such a codicil was in existence since 1974 and, if it was kept in the custody of D3 by Mahalakshmamma as alleged, there is absolutely no reason as to why it has not seen the light of the day till the filing of the suit and, on the other hand, in the partition deed-Ex.B6 and the sale deeds executed in pursuance of the said partition deed to which PW1 was a party, no reference was made to the said codicil, but on the other hand, the Will dated 17.07.1972 was referred to as the last Will and Testament executed by Mahalakshmamma. The lower appellate Court has, on proper re-appraisal of the evidence available on record, rightly held that the plaintiff failed to establish the truth of execution of Ex.A1-codicil by Mahalakshmamma, and therefore, his claim based on the said codicil stands defeated. As rightly contended by the learned counsel for the respondents, the matter pertains to appreciation of evidence on record regarding the execution or otherwise of the codicil-Ex.A1. Such aspects pertaining to appreciation of evidence based on which, a finding is recorded on a question of fact, does not give rise to any question of law, much less a substantial question of law, to be considered in a Second Appeal. In BHOLARAM V. AMIRCHAND[1] a three-Judge Bench of the Apex Court reiterated the statement of law pertaining to the scope of interference by the High Court in a second appeal under Section 100 CPC. It held as under: “The High Court, however, seems to have justified its interference in second appeal mainly on the ground that the judgments of the Courts below are perverse and were given in utter disregard of the important materials on record particularly misconstruction of the rent note. Even if we accept the main reason given by the High Court the utmost that could be said was that the findings of fact by the Courts below were wrong or grossly inexcusable but that by itself would not entitle the High Court to interfere in the absence of a clear error of law”. In KSHITISH CHANDRA PURKAIT V. SANTOSH KUMAR PURKAIT[2] the Apex Court held that the High Court should be satisfied that the case involved a substantial question of law and not mere question of law. I n THIAGARAJAN V. SRI VENUGOPALASWAMY B.KOIL[3], the Apex Court reiterated that the High Court in exercise of its jurisdiction under Section 100 CPC was not justified in interfering with the findings of fact. It was further observed that this Court in a catena of decisions held that where findings of fact by the lower appellate Court are based on evidence, the High Court in second appeal cannot substitute its own findings on re- appreciation of evidence merely on the ground that another view was possible. It was also observed that it is the obligation of the Courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. In COMMISSIONER, HINDU RELIGIOUS & CHARITABLE ENDOWMENTS V. P.SHANMUGAMA[4], the Apex Court held that the High Court had no jurisdiction in second appeal to interfere with the finding of facts. In MADHAVAN NAIR V. BHASKAR PILLAI[5] the Apex Court observed that it is well settled that even if the first appellate Court commits an error in recording a finding of fact, that itself will not be a ground for the High Court to upset the same. In H.P.PYAREJAN V. DASAPPA[6], the Apex Court held that the jurisdiction of the Court to interfere with the judgments of the Courts below is confined to hearing of substantial questions of law under Section 100 CPC. Interference with the finding of fact by the High Court is not warranted if it invokes re-appreciation of evidence. I n CHANDRIKA SING (dead) BY LRS & ANOTHER V. SARJUG SINGH & ANOTHER[7], the Apex Court held as under: “……While exercising its jurisdiction under Section 100 of the Code of Civil Procedure, the High Court is required to formulate a substantial question of law in relation to a finding of fact. The High Court exercises a limited jurisdiction in that behalf. Ordinarily unless there exists a sufficient and cogent reason, the findings of fact arrived at by the Courts below are binding on the High Court…..” In CHACKO & ANOTHER v. MAHADEVAN[8] while dealing with the jurisdiction of Sections 96 and 100 CPC, the Apex Court laid down as under: “It may be mentioned that in a first appeal filed under Section 96 CPC, the appellate Court can go into questions of fact, whereas in a second appeal filed under Section 100 CPC the High Court cannot interfere with the findings of fact of the first appellate court, and it is confined only to questions of law.” In the light of the principles laid down in the above decisions, in the present case also, the impugned judgment of the lower appellate Court regarding the finding on question of fact based on appreciation of evidence pertaining to the codicil-Ex.A1, does not pose any question of law, much less a substantial question of law, to be considered in exercise of jurisdiction under Section 100 CPC. (RESULT PORTION TO BE DICTATED) _______________________ G.V. SEETHAPATHY, J November, 2011 KSM Citations pertaining to finding of question of fact does not give rise to substantial question of law even for appellate court , error on question of fact the same being final court on the question of law. 100 cpc is very limited does not call for interference in SA [1] (1981) 2 SCC 414 [2] (1997) 5 SCC 438 [3] (2004) 5 SCC 762 [4] (2005) 9 SCC 232 [5] (2005) 10 SCC 553 [6] (2006) 2 SCC 496 [7] (2006) 12 SCC 49 [8] (2007) 7 SCC 363