IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:23.03.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.1420 of 2007 and M.P.No.1 of 2007 S.Srinivasan .. Appellant/Defendant vs 1. V.Subramanian 2. S.Padma @ Padmavathy .. Respondents/Plaintiff This second appeal is filed against the decree and judgment passed in A.S.No.24 of 2003 on the file of the Subordinate Court, Ponneri dated 29.11.2006 confirming the decree and judgment passed in O.S.1217 of 1997 dated 30.9.2003 on the file of the District Munsif cum Judicial Magistrate Court, Thiruvottiyur. For Appellant : M/s Paul & Paul For Respondents : Mr.J.R.K.Bhavanantham J U D G M E N T This second appeal is focussed by the original defendant, animadverting upon the judgement and decree dated 29.11.2006 passed in A.S.No.24 of 2003 by the Subordinate Court, Ponneri, confirming the judgement and decree of the trial Court, namely, District Munsif cum Judicial Magistrate Court, Thiruvottiyur, in O.S.No.1217 of 1997. For convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court. 2. The respondents/plaintiffs filed the suit O.S.No.1217 of 1997 seeking the following reliefs: "a) directing the defendant to quit and deliver vacant possession of 'B' Schedule hut in first floor of 35, Janagiammal Estate (Sannathi Street) Kaladipet, Chennai 19 and more particularly described in 'B' Schedule hereunder to the plaintiffs; https://hcservices.ecourts.gov.in/hcservices/ b) for a consequential permanent injunction to restrain the defendant from repairing, dismantling 'B' Schedule hut or otherwise putting up any construction either permanent or temporary in the 1st floor of premises No.35, Janagiammal Estate, Kaladipet, Chennai 19. c) directing him to pay Rs.760/- being the past damages from 22.3.97 to 5.6.97 (76 days) and further direct him to pay future damages at Rs.10/- per day from 6.6.97 till delivery of vacant possession of 'B' schedule of property, to the plaintiffs. ..." on the ground that the suit property described in the schedule of the plaint was purchased by the first plaintiff in the name of his wife/second plaintiff and also effected additional construction; while so, the defendant, second son of the plaintiff was asked to occupy with his family the first floor of the said house, in a thatched structure put up by the plaintiffs which is the 'B' schedule property; the plaintiffs are reeling under penurious and impecunious circumstances as already their two sons including the defendant was given in marriage and they are duty bound to get their daughter in marriage for which they want to sell away the 'A' schedule property. However, the defendant despite the licence granted in his favour to occupy 'A' schedule, was revoked by the plaintiffs, he has not chosen to vacate it. Hence the suit. 3. Per contra, remonstrating and refuting, gainsaying and impugning the averments/allegations in the plaint, the defendant filed the written statement, the gist and kernel of it would be to the effect that the said 'A' schedule property was purchased from out of the joint family funds; the defendant also contributed along with his one other brother for raising construction in the suit plot and he is entitled to 1/4 share in the suit property. 4. During enquiry, the plaintiffs examined themselves as P.W.1 and P.W.2 and Exs.A1 to A14 were marked. On the side of the respondent, the defendant examined himself as D.W.1 and Ex.B1 was marked. 5. Ultimately, the trial Court dismissed the suit, as against which the appeal was filed, for nothing but to be dismissed by the First Appellate Court, confirming the judgment and decree of the trial Court. 6. Being disconcerted and aggrieved by the judgments and decrees of both the Courts below, this Second Appeal has been filed on various grounds as found set out in the memorandum of appeal and also suggesting the following alleged substantial questions of law: https://hcservices.ecourts.gov.in/hcservices/ 1. Whether the learned lower appellate judge was right in law in proceeding as if the onus is on the defendant to prove that the property was the self-earned property of the plaintiff? 2) Whether the lower appellate judge was right in law in dismissing the appeal even though no documents had been filed by the plaintiff to substantiate that the suit property including the thatched hut in the occupation of the defendant had been purchased/constructed from out of the plaintiff's earnings? 3) Whether the lower appellate judge was right in law in rejecting the evidence of D.W.1 to the effect that he had contributed to the purchase of the property and had put up the thatched hut towards his own finances even though the same had not been controverted in the cross examination? 4) Whether the lower appellate judge is entitled to place reliance on the tax receipts filed by the plaintiff which would not in any way confirm the case of the plaintiff that he had purchased the suit property and constructed the thatched shed on his own funds?" 7. Heard the learned counsel for the appellant. Despite printing the names concerned, none appeared for the respondents. 8. A plain poring over and perusal of the typed set of papers including the judgments and decrees of both the Courts below would display and demonstrate, evince and expatiate that both the Courts below based on the oral and documentary evidence gave a categorical finding that the suit property was purchased by the first plaintiff from out of his own income in the name of his wife, the second plaintiff and that the defendant did not contribute any money, either for the purchase of the property or for raising construction thereon and he should be evicted. 9. At this juncture, my mind is redolent and reminscent of the following decisions of the Hon'ble Apex Court: (i) (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL, certain excerpts from its would run thus:- "17. After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the https://hcservices.ecourts.gov.in/hcservices/ substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. . . . . . . ." 18. . . . . . It has to be kept in mind that the right of appeal is neither a natural nor an inherenth right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. . . . . . 21. . . . . However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by sufficing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta the phrase "substantial question of law' as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sir Chunilal case the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju(Sir Chunilal case, SCR p.557) "When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to https://hcservices.ecourts.gov.in/hcservices/ the particular fact of the case it would not be a substantial question of law." This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:(Sir Chunilal case, SCR pp.557-58) "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or call for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." 23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law his a substantial one and involved in the case or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.(See Santosh Hazari v. Purushottam Tiwari). 24. . . . (iii) The general rule is that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well- recognised exceptions are where (i) the Courts below have https://hcservices.ecourts.gov.in/hcservices/ ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." (ii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER, an excerpt from it would run thus- 9. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the Code. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this Section in several cases, the findings of fact of the first appellate Court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this Section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal v. Mehta and Sons Ltd.v. Century Spg.& Mfg.Co.Ltd.(AIR 1962 SC 1314) held that: "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the https://hcservices.ecourts.gov.in/hcservices/ question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." It is therefore crystal clear that unless there is substantial question of law, the Second Appeal cannot be entertained. But in this case, the proposed Substantial question of law Nos.1 and 3 would be to the effect that both the Courts below have not understood the concept onus of proof but simply decided the lis. 10. The gist and kernel of the contention of the defendant is that the suit property is the joint family property in view of the fact that it was purchased from out of the joint family income and that the defendant also along with his brother contributed for construction of superstructure. At this context, I call up and recollect the following decisions: (i) AIR 1954 SC 379 (Srinivas Krishnarao Kango vs. Narayan Devji Kango and others). An excerpt from it would run thus: "8. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. 10. Whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleus. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which may well form the foundation of the subsequent acquisitions. These are not abstract questions of law, but questions of fact to be determined on the evidence in the case. https://hcservices.ecourts.gov.in/hcservices/ Where the finding of the Courts is that the income from the ancestral lands was not sufficient even for the maintenance of the members, and the houses in dispute are substantial, burden is on the plaintiff who alleges the houses to have been acquired out of joint family funds, to establish it. Held that if the contention that on proof of the existence of the Watan lands the burden had shifted on to the defendants to prove that the acquisitions were made without the aid of joint family funds,that burden had been discharged. Likewise, it was held that since the ancestral Watan lands are intact, and were available for partition, and the small income derived from them must have been utilised for the maintenance of the members of the family, whether it were held that the plaintiff had failed to discharge the burden which lay on him of establishing sufficient nucleus, or that the defendants had discharged the burden of establishing that the acquisitions were made without the aid of joint family funds, the result was the same." (ii) AIR 1960 SC 335 (Rukhmabai vs. Lala Laxminarayan and others) and an excerpt from it would run thus: "5. There is a presumption in Hindu law that a family is joint. There can be a division in status among the members of a joint Hindu family by refinement of shares which is technically called “division in status”, or an actual division among them by allotment of specific property to each one of them which is described as “division by metes and bounds”. A member need not receive any share in the joint estate but may renounce his interest therein, his renunciation merely extinguishes his interest in the estate but does not affect the status of the remaining members vis-a-vis the family property. A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be expressed by any process. Though primafacie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property, whether movable or immovable, held by a member of a joint Hindu family, is https://hcservices.ecourts.gov.in/hcservices/ joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property." 11. A bare perusal of those decisions would unambiguously highlight and spotlight the fact that the onus of proof is on the person who pleads that even though the document of title stand in the name of a co-sharer, nonetheless, it is a joint family property. In this case, the defendant by examining himself as D.W.1 reiterated what were set out in the written statement and it remains only his ipse dixit. Absolutely, there is no iota or shred, shard or miniscule, molecular or scintilla of evidence to demonstrate that there was a joint family nucleus. It is a trite proposition of law that the defendant in order to substantiate his theory should have pointed out that the first plaintiff was in possession of the joint family nucleus and from out of the income generated from such joint family property, the suit property was purchased in the name of his wife, the second plaintiff. As such, the very contention of the defendant itself is as vague as vagueness could be and by no stretch of imagination his contention should be upheld in the wake of those decisions set out supra. Both the Courts below correctly au fait with law and au courant with facts decided the issue warranting no interference by this Court. A fortiori, the proposed substantial questions of law Nos.1 and 3 does not arise at all. 12. Regarding the proposed substantial question of law No.2, both the Courts below taking into consideration the available records rendered the verdict regarding the ownership of the property. The defendant being the son of the plaintiffs on whom the burden of proof lies to prove that it is a joint family property, miserably failed to do so. As such, the proposed substantial question of law No.2 does not arise at all. 13. The proposed substantial question of law No.4 is relating to tax receipts. On the side of the plaintiffs, by way of buttressing and fortifying their claim, marked the tax receipts as Ex.A8 series as well as Ex.A9 and in no way that could be found fault with. In fact, Exs.A8 and A9 bespeak that the defendant is not the owner of the suit property and it is the plaintiffs who are the owners of it and it is in concinnity and consonance with their plea that the defendant is having no right and the second plaintiff is the owner of the suit property. As such, the proposed substantial question of law No.3 does not arise. https://hcservices.ecourts.gov.in/hcservices/ As such, I could see no merit in this Second Appeal and it is dismissed. No costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gms To 1. The Subordinate Court, Ponneri. 2. The District Munsif cum Judicial Magistrate Court, Thiruvottiyur. 3. The Section Officer, V.R.Section, High Court, Madras. 1 cc To M/s.Paul & Paul, Advocate, SR.8981. S.A.No.1420 of 2007 GV(CO) RVL 11.05.2009 https://hcservices.ecourts.gov.in/hcservices/