TaxTMI 
TaxTMI 
2022 (9) TMI 1590
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....perty. 3. Sambhaji, grandfather of the Original Plaintiff, Chandrabhan had two sons, Baliram and Rambhau. Baliram was the elder of the two sons of Sambhaji. The Original Defendant No. 1 Yamunabai, was the wife of Baliram. 4. Baliram and Yamunabai (Original Defendant No. 1) were childless, Rambhau, younger brother of Baliram however had two sons, Digamber and Chandrabhan (Original Plaintiff). 5. Since Baliram and Yamunabai were childless, Baliram decided to adopt his nephew, Chandrabhan (Original Plaintiff). Chandrabhan (Original Plaintiff) was Baliram's younger brother Rambhau's son, as noted above. It is stated that Baliram and Rambhau had mutually agreed that Baliram would adopt Rambhau's son, Chandrabhan (Original Plaintiff). 6. In the plaint, it was pleaded that the Original Plaintiff, Chandrabhan was adopted by his uncle Baliram, in accordance with the rites and customs of the community, in a ceremony attended by relatives, neighbours and friends. According to the Appellants, the Original Plaintiff Chandrabhan was about 14 years of age at the time of his adoption by his paternal uncle Baliram, who became his adoptive father. 7. Baliram died intestate....
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....l Suit No. 198 of 1979 had been dismissed. 13. The First Appellate Court, after considering the evidence on record, concluded that the Original Plaintiff had been adopted by Baliram and thus entitled to succeed the property of Baliram after his death. 14. The Respondent Nos. 1 to 4, being the Original Defendant Nos. 3 to 6, in the suit, who were purchasers pendente lite of the suit property filed a Second Appeal No. 45 of 1995 in the High Court of Judicature at Bombay (Aurangabad Bench). The Original Defendant No. 1 and the Original Defendant No. 2 did not challenge the order passed by the First Appellate Court. 15. The High Court admitted the Second Appeal, which was heard at length and allowed by a judgment and order dated 11th January 2016, which is impugned in this appeal before us. 16. The High Court considered the following questions. (I) Whether the first appellate Court has committed error in not considering the circumstance that other transactions of sale made by the Defendant No. 1 in respect of three agricultural lands like Survey Nos. 86/1, 100/3 and 109/2 which were left behind by Baliram are not challenged by the Plaintiff in the suit? (I....
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.... Thereby, some inconsistencies were only natural. 21. The finding of the First Appellate Court that the Original Plaintiff, Chandrabhan was the adopted son of Baliram was based on: (i) The evidence of Trivenibai (PW-2), wife of the Original Plaintiff, Chandrabhan's elder brother Digambar, (ii) The evidence of the priest, Prabhu Yogiraj Swami who conducted the ceremony of adoption. (PW-6). (iii) The admission that PW-6 was the family priest who performed rituals of the community to which the parties belonged. (iv) Evidence that the Original Plaintiff, Chandrabhan had been residing in the house of Baliram. (v) The Original Plaintiff Chandrabhan's name shown as Chandrabhan Baliram in registers and documents dating back 1960-61. (vi) The fact that Champabai, the first wife of the Original Plaintiff was residing with Original Defendant No. 1, Yamunabhai. (vii) The properties of Rambhau were inherited by Digamber alone - the Original Plaintiff did not get any share in the properties. (viii) Evidence of PW-7, Bansi Hajare who had been Secretary of the Ghargaon society for the period from 1961 to 1963, menti....
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....s treated as a Second Appeal Under Section 100 Code of Civil Procedure, the restrictions prescribed in the said Section would come into play. The High Court could and ought to have dealt with the matter as a Second Appeal and found out whether a substantial question of law arose for consideration. Unless there was a substantial question of law, the High Court had no jurisdiction to entertain the Second Appeal and consider the merits." 25. In Kshitish Chandra Purkait v. Santosh Kumar Purkait and Ors. (1997) 5 SCC 438, this Court held that existence of substantial question of law was the sine qua non for the exercise of jurisdiction Under Section 100 of the Code of Civil Procedure. 26. In Kshitish Chandra Purkait (supra), this Court held: 10. We would only add that (a) it is the duty cast upon the High Court to formulate the substantial question of law involved in the case even at the initial stage; and (b) that in (exceptional) cases, at a later point of time, when the Court exercises its jurisdiction under the proviso to Sub-section (5) of Section 100 Code of Civil Procedure in formulating the substantial question of law, the opposite party should be put on notice th....
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....stitution. 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 55 IA 235 : AIR 1928 PC 172] the phrase "substantial question of law" as it was employed in the last Clause of the then existing Section 100 Code of Civil Procedure (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 [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] 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 [AIR 1951 Mad 969 : (1951) 2 MLJ 222 (FB)] : (Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314], SCR p. 557) [W]hen 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 t....
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....question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents and involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material qu....