*HON'BLE SRI JUSTICE G. BHAVANI PRASAD +Second Appeal Nos.888 and 1458 of 2004 % 09/12/2011 # Jahangirji and others ..... APPELLANTS Vs. $ K. Kumar .....RESPONDENT ! COUNSEL FOR THE APPELLANTS: Sri N. Ashok Kumar ^ COUNSEL FOR THE RESPONDENT: Sri K. Pandu Ranga Rao < Gist : Ø Head Note: ? CITATIONS: 1. JT 1995 (5) SC 163 2. (2001) 10 Supreme Court Cases 764 3. (2002) 6 Supreme Court Cases 375 4. (2003) 10 Supreme Court Cases 653 5. AIR 2004 SC 1913 (1) 6. (2008) 2 Supreme Court Cases 741 7. AIR 2001 Supreme Court 1273 8. AIR 1994 Andhra Pradesh 72 9. AIR 1923 Madras 337 10.AIR 1931 Privy Council 229 11.1956 Travancore Cochin 181 12.AIR 1965 Supreme Court 271 13.2010 (5) ALD 339 COMMON JUDGMENT: These two second appeals are directed against the common judgment in A.S.Nos.80 of 1998 and 83 of 2001 on the file of III Additional District Judge, Ranga Reddy District dated 29-11-2003 and hence, they are heard and decided together. The parties are referred to herein as they are arrayed before the trial Court. The plaintiff filed the suit for partition of the plaint schedule properties items 1 to 8 and allotment of 1/7th share to him and to restrain the defendants and any others claiming through them from alienating or making any constructions in the plaint schedule properties. The plaintiff, who is the son of defendants 1 and 7 and brother of defendants 2 to 6, claimed that they constituted a joint Hindu family of which the 1st defendant was the Kartha. He claimed the suit schedule properties to have been purchased in the name of the 1st defendant with the earnings of the entire family including the joint exertions of the plaintiff and others. The entire family was enjoying the properties and when the 1st defendant became bed ridden due to paralysis, he started neglecting the plaintiff and showing more affection towards defendants 2 to 6. On learning that the 1st defendant was trying to transfer some properties to defendants 2 to 6 and sell other properties to third parties, the plaintiff made demands for partition, but in vain. Hence, the suit. The 1st defendant died after filing of the suit and the 7th defendant, his wife, was brought on record as his legal representative. The defendants 2 to 7 denied the allegations in the plaint, which are not specifically admitted and the plaintiff was stated to be living separately with his wife and children at Hydershakote village having nothing to do with the family affairs of defendants 1 to 7. The suit schedule properties are the self-acquired exclusive properties of the 1st defendant and enjoyed as such. When the 1st defendant was ill, the plaintiff never visited him and the 1st defendant died after this false suit for partition, on deterioration of his health. The plaintiff was never in joint possession of any property and the 1st defendant, who acquired the properties in items-1 to 3 under registered sale deeds, executed the registered Wills dated 18-03-1989 and 5-10-1989 in favour of defendants 2 and 5 respectively concerning items 1 and 3 and the 1st defendant also sold away Ac.2.00 of land in item-2 to his son-in-law under a registered deed dated 5-6-1989, while the remaining Ac.1.13 guntas were given to the 1st defendant’s daughter Urmila (Rani) Bai, wife of Satyanarayana towards Pasupukumkuma. While the 1st defendant had nothing to do with items 4 to 7 of the plaint schedule, an open plot of 400 square yards in item-7 belonged to Indira Bai, the daughter of the 1st defendant. The 1st defendant was the owner of the house in item-8, but it was not measuring about 100 square yards as stated in the plaint schedule. The plaintiff separated more than 15 years earlier from the defendants and was living with his wife and children at House No.2-24, Hydershakote village, whereas the defendants were living at Kanukunta village. The plaintiff was, hence, contended to be not entitled to any share and to have not paid the court fee as per the market value of the properties being out of possession. The suit was also liable to be dismissed for mis-joinder of proper and necessary parties to the suit and hence, the defendants 2 to 7 desired that the suit be dismissed with costs. On such pleadings, the following issues were framed for trial. 1) Whether the plaintiff is entitled for partition and separate possession of the suit properties as prayed for? 2) Whether the suit is to be dismissed for mis-joinder or (of) parties? 3) Whether the court fee paid is not correct? 4) To what relief the plaintiff is entitled to? During trial, PWs.1 and 2 and DWs.1 to 4 were examined and Exs.A.1 to A.5 and B.1 to B.7 were marked. The trial Court rendered its judgment dated 29-12-1997 noting that admittedly there was no ancestral nucleus for the family. PW.1, the plaintiff, admitted that after his marriage in 1976, the defendants 1 to 6 left for Lingampally within few months leaving him alone in the ancestral house at Hydershakote. PW.1 also admitted that his father gave him 11 cycles in 1976 for running a cycle taxy shop since his separate living and he did not contribute anything for the purchase of the properties after 1976. The trial Court found that when the purchase of part of item-1 was made under Ex.B.1 in 1968, PW.1 was 12 years old and when the remaining properties were purchased, the plaintiff was already living separately. The sale of Ac.2.00 of land out of item-2 by the 1st defendant under the original of Ex.B.3 was also admitted and hence, the trial Court concluded that the properties are the self- acquired properties of the 1st defendant. Dealing with Exs.B.4 to B.7, the copies of the two Wills, said to have been executed by the 1st defendant, the trial Court took an adverse note of the non- production of the originals and notwithstanding the examination of DWs.3 and 4 in support of the Wills, the trial Court found the second Will to have been executed on 5-10-1989 after the suit before the death of the 1st defendant on 29-10-1989. The 1st defendant was noted to be suffering from paralysis since 4 years prior to the first Will and defendants 2 to 6 were noted to be in a dominating position over the 1st defendant. The youngest son and the wife were excluded from properties and what movables were given to the wife was also not elaborated. The Wills were, therefore, considered to be shrouded by suspicious circumstances. While the plaintiff was otherwise considered entitled to a share as a son on the death of the 1st defendant, the trial Court observed that admittedly the 1st defendant has two daughters and they are necessary parties to the suit being entitled to claim shares in the self-acquired properties of the 1st defendant along with their brothers and mother. Referring to the precedents cited before it, the trial Court concluded that all the sharers are necessary parties and as the daughters of the 1st defendant were not impleaded after his death, the suit was bad for non-joinder of necessary parties. The trial Court also noted that the ancestral house in which the plaintiff is living with his wife and children also should have been included in the suit schedule and the plaintiff also ought to pay the court fee on the market value of the properties as he was not in joint possession of the properties by the time of the suit. However, after the death of the 1st defendant, the plaintiff need not have paid court fee on the market value and concluded that the suit was dismissed without costs in the light of the suit being held to be bad for non-joinder of necessary parties. In A.S.No.80 of 1998 and A.S.No.83 of 2001 against the said judgment, on the death of the 7th defendant during the pendency of the appeals, the two daughters of the defendants 1 and 7 were impleaded as respondents 8 and 9. The First Appellate Court in the common judgment considered whether the suit schedule properties are the joint family properties or the self-acquired properties of the 1st defendant and whether the findings in the judgment of the lower Court are liable to be set aside. Exs.B.8 and B.9, the original Wills said to have been executed by the 1st defendant were received in evidence in the appeals. The First Appellate Court noted that PW.1, the plaintiff, admitted sale of Ac.2.00 of land in item-2 by the 1st defendant to Satyanarayana. The First Appellate Court also noted that PW.1 admitted that his father gave 11 cycles to him with which he did cycle taxi business for three months. While observing that PW.1 did not succeed in proving his contribution for the purchase of the suit properties, the plaintiff was considered entitled to a share in the self-acquired properties of his father along with other children of the 1st defendant. The First Appellate Court noted DW.3 to be a friend of 4th defendant and the interpolations in Ex.B.5 were taken adverse note of. DW.3 was noted to have not spoken about the executant of the Will being in a sound and disposing state of mind and though the original Wills were admitted into evidence in appeals as Exs.B.8 and B.9, the First Appellate Court noted that pages 1 to 3 of Ex.B.8 were peculiarly torn and Ex.B.8 was considered to be appearing as being fabricated on blank papers with the signatures of the 1st defendant. DW.4 was noted to be supplying milk to the 1st defendant and none of the neighbours or villagers being chosen as witnesses was also noted. No provision being made to the wife or the younger son was also considered unnatural and the dominating position of defendants 2 to 6 was also considered probable. Hence, the First Appellate Court also considered both the Wills to be shrouded by suspicious circumstances and not acceptable. The First Appellate Court opined that as the daughters of the 1st defendant were brought on record during the pendency of the appeal on the death of the 7th defendant, the ground of dismissal of the suit due to non-joinder of the daughters of the 1st defendant was of no consequence. The First Appellate Court excluded Ac.2.00 guntas in item-2 sold to the son-in-law by the 1st defendant under a registered sale deed and considered the other plaint schedule properties to be available for partition with all the sons and daughters being equally entitled to a share. The First Appellate Court considered A.S.No.83 of 2001 to have not been filed within limitation to be treated as cross objections and to be liable for dismissal even on merits in view of the findings in A.S.No.80 of 1998. Consequently, the judgment and decree of the trial Court were set aside and a preliminary decree was passed for partition of the suit properties into 8 equal shares and allotment of one share to the plaintiff, while relegating the determination of mesne profits to a separate application in the final decree proceedings. Costs were also awarded to the plaintiff in the appeal. Both the second appeals are filed by all the respondents to A.S.No.80 of 1998 contending that the 1st defendant having earned all the suit properties got every right to alienate the same and the plaintiff did not take any plea concerning the mental condition of the 1st defendant while executing Exs.B.8 and B.9. The plaintiff did not produce any evidence to show any suspicious circumstance surrounding Exs.B.8 and B.9 and had in fact admitted their execution. The First Appellate Court should have noted that there is no Sub-Registrar’s office at Ramachandrapuram and the District Registrar’s office was located only at Mehdipatnam at the relevant time. When the wife and younger son have not objected to being deprived, the Courts below could not have disbelieved the Wills on that ground and the evidence of DWs.3 and 4 about the execution of the Wills ought to have been accepted. The inherent defect in the suit due to non- joinder of parties at the time of its institution cannot be cured by impleading the necessary parties during the pendency of the appeal and the dismissal of A.S.No.83 of 2001 as barred by limitation is against the legal position under Order-XLI Rule 22 of the Code of Civil Procedure. The copy of the grounds of appeal was given to the respondents in A.S.No.80 of 1998 only in the first week of December 1998 and the cross appeal was filed on 17-12- 1998 without any delay. The appellants, therefore, contended that substantial questions of law arise about the impact of impleading the necessary parties in the appeal and the bar of limitation for A.S.No.83 of 2001. Both the second appeals were admitted by a learned Judge of this Court on 10-2-2005 on the following substantial question of law. “Whether the legal representatives of the 7th defendant can be impleaded at appellate stage, who died pending the suit and whether it will cure the defect or not and whether the order impleading them as legal representatives without there being any finding as to the delay condonation at appellate stage is proper or not”. Sri N. Ashok Kumar, learned counsel for the appellants in both the second appeals and Sri K. Pandu Ranga Rao, learned counsel for the respondent in both the second appeals are heard. The point for consideration is the substantial question of law formulated at the time of admission of the second appeals. The conclusions of the trial and First Appellate Courts regarding the properties in the name of the 1st defendant being his self-acquired properties are not challenged by the respondent herein. Both the trial and First Appellate Courts concluded the execution of Exs.B.8 and B.9-Wills by the 1st defendant to be shrouded by suspicious circumstances and to be not acceptable. The concurrent findings of fact on this aspect were not made the subject of the substantial questions of law suggested by the appellants in the grounds of appeal in both the second appeals though much was attempted to be stated about the same in the grounds. The analysis of the evidence and the probabilities arising out of the same by the trial and First Appellate Courts regarding the execution of Exs.B.8 and B.9-Wills was not divorced from the material on record and what best can be stated from the grounds raised in the grounds of the second appeals is that there is a possibility of taking a second view on the said questions. The First Appellate Court being the final court of fact finding and the trial Court having the benefit of observing the demeanour of the witnesses, any remote possibility of a contrary view cannot be a ground for interference in the second appeal. For that reason, S.A.No.1458 of 2004 against the dismissal of A.S.No.83 of 2001 on the ground of limitation is untenable even without going into the question of limitation for A.S.No.83 of 2001 as a cross appeal or cross-objections, A.S.No.83 of 2001 having been filed only against the adverse findings regarding Exs.B.8 and B.9. If the findings of the trial and First Appellate Courts concerning the unacceptability of Exs.B.8 and B.9 are concerning a pure question of fact and do not involve any question of law, S.A.No.1458 of 2004 should, hence, fail. The decision reported in PPK Gopalan Nambiar v. PPK Balakrishnan Nambiar and others[1] relied on by Sri N. Ashok Kumar, learned counsel for the appellants about considerations that governed the appreciation of the genuineness of a Will, hence, needs no further reference. Items-1 to 3 of the plaint schedule being in the name of the 1st defendant and Ac.2.00 guntas of land out of item-2 being sold to the son-in-law by the 1st defendant are admitted, while the remaining property in item-2 and 400 square yards in item-7 are claimed to be with the daughters of the 1st defendant and the trial Court observed that whether the properties were available or not for partition in the light of the defence concerning items 4 to 7 can be determined during the final decree proceedings and the First Appellate Court also practically did not indulge in any determination concerning the claims of the daughters over the portions of items-2 and 7 or the non-availability of items 4 to 7 except accepting the sale of Ac.2.00 guntas of land in item-2 by the 1st defendant to his son-in-law. The trial and First Appellate Courts, thus, leaving open the determination of the availability of part of item-2 and items-4 to 7 for partition was not challenged by either party. The plaintiff as PW.1 admitted about Urmila Bai and Indira Bai being his sisters. The 2nd defendant as DW.1 spoke about a portion of item-2 being given to Urmila Bai towards Pasupukumkuma and item-7 being given to Indira Bai. The defendants 2 to 7, who filed their written statements after the death of the 1st defendant, specifically pleaded the properties in the name of the 1st defendant to be his exclusive self-acquired properties. They also pleaded about the interest of Urmila Bai and Indira Bai in portions of items-2 and 7 of the plaint schedule and they further pleaded that the suit is liable to be dismissed for mis- joinder of proper and necessary parties to the suit. A specific issue was framed by the trial Court in issue No.2 as to whether the suit is to be dismissed for mis-joinder of parties. The trial Court specifically noted that on the plea that the suit properties were joint family properties of the plaintiff and defendants 2 to 6, the wife and daughters of the 1st defendant were not necessary parties, but subsequent to the death of the 1st defendant after filing of the suit, the widow, sons and daughters of the 1st defendant are equally entitled to claim shares, and hence, the daughters of the 1st defendant were necessary parties to the suit. It was due to not impleading the daughters of the 1st defendant that the suit was held to be bad for non-joinder of necessary parties and dismissed. The contentions and grounds in A.S.No.80 of 1998 by the plaintiff did not specifically deal with the impact of the failure to implead the daughters in the suit on the death of the 1st defendant though in the written arguments, it was contended that the issue of non-joinder of necessary parties was not framed and that in the appeal, on the death of the 7th defendant, the mother, the daughters were brought on record as respondents 8 and 9, but they remained ex parte, and hence, the plaintiff stated in the written arguments that all the legal heirs of the defendants 1 and 7 were on record and the suit, hence, cannot fail due to non-joinder of necessary parties. The plaintiff, hence, stated that even assuming the properties to be the self-acquired properties of the 1st defendant, the 1/8th share of the plaintiff may be declared since all the legal heirs entitled to shares in the properties of the 1st defendant were brought on record. In the impugned judgment, the First Appellate Court accepted the same in observing that the only ground on which the lower Court dismissed the suit for non-joinder of the daughters of the 1st defendant is of no consequence in view of impleading the daughters of the 1st defendant after the death of the 7th defendant as parties to the suit. The substantial question of law framed by this Court, while admitting the two second appeals, is concerning the impact of impleading the daughters of defendants 1 and 7 at the appellate stage on curing any defect in the institution of the suit. The learned counsel for the parties referred to various precedents on this question. In A.H. Pinto v. V. Chaniyappa and others[2], the Apex Court held that the scope of a second appeal cannot go beyond the issues decided in the trial Court and first Appellate Court. While the judgment of the trial Court answered the specific issue about the liability of the suit for dismissal for mis-joinder of parties, the First Appellate judgment, notwithstanding that a specific point was not framed on the issue, had considered and decided the question in para-26 of the impugned judgment, the question having been specifically adverted to in the written arguments of the plaintiff/ appellant. It is true that the specific issue was referring to mis- joinder of parties and not non-joinder of parties, obviously due to the written statement of defendants 2 to 7 pleading that the suit is liable to be dismissed for mis-joinder of proper and necessary parties to the suit. Inartistic drafting of the plea might have led to the use of the word “mis-joinder” but the specific reference to the liability of the suit for dismissal with reference to proper and necessary parties makes the intention in taking the plea clearly to be about non-joinder of proper and necessary parties. At any rate, both the parties were put on notice by issue No.2 in the suit about the Court adjudicating the question of joinder of parties and its impact on the suit and when the question was raised and decided, both in the trial Court and in the first Appellate Court, dealing with the said question in the second appeal is within the ambit of the principle laid down by the Apex Court. In Ram Khilona and others v. Sardar and others[3] also, the Apex Court was considering a situation where the High Court has decided the second appeal on a question neither taken in the memorandum of appeal nor taken in that form before the Courts below and had upset the concurrent decisions of the Courts on a finding recorded by it, which approach was held to be clearly against the law and spirit of Section 100 of the Code of Civil Procedure. In the present case, the question was specifically taken in the memoranda of second appeals and was also taken before and considered by both the Courts bellow. The pleading and the issue were specific though inaccurate in describing the question as of mis-joinder and the trail Court specifically adjudicated the effect of not impleading necessary parties and the plaintiff understood the question involved as such, and attempted to answer the same in the written arguments in A.S.No.80 of 1998. Further, the Courts below did not concur in their findings on the question with the First Appellate Court upsetting the conclusion of the trial Court due to impleading of the daughters in the first appeal as respondents 8 and 9 as the legal representatives of their deceased mother, the 7th defendant. The question thus specifically arising for consideration on the substantial question of law framed at the time of admission has to be decided within the law and spirit of Section 100 of the Code of Civil Procedure. Similarly, in Rajgopal v. Kishan Gopal and another[4], the Supreme Court was dealing with interference by the High Court on a finding of fact recorded by the First Appellate Court, which was the final court of fact. A pure finding of fact without involving any question of law much less a substantial one could not have been interfered with by the High Court in exercise of powers conferred upon it under Section 100 of the Code of Civil Procedure and the Supreme Court found even on fact that there was no ground whatsoever to interfere with the said finding recorded by the final court of fact. In this Case, there is no dispute about the facts involved and the defendants 1 and 7 admittedly have two daughters, impleaded as respondents 8 and 9 in the first appeal. The finding that the properties are the self-acquired properties of the 1st defendant is concurrent and the death of the 1st defendant