The defendants are in appeal aggrieved against an order passed by the High Court of Karnataka on 14th June, 2005 whereby the appeal filed by the plaintiff – C. Jayarama Reddy was allowed by setting aside the concurrent findings of facts recorded by two courts below. The High Court answered the following substantial question of law:
“Whether the judgment and decree passed by the Courts below suffer from illegality on account of improper consideration of Ex.P1, i.e., school leaving certificate?”
The plaintiff filed a suit for partition and separate possession of 1/4th share in the Suit schedule property between himself and his three brothers who are defendant Nos. 1, 2 and 3. Defendant Nos. 4 to 17 are the persons who have purchased the property from the defendant Nos. 1 to 3, the brothers. The plaintiff claimed that he was minor at the time of death of his father in the year 1963 and that he continued as a member of the joint Hindu family in joint possession and enjoyment of the property of joint Hindu family. The plaintiff asserted that his signatures were obtained on a few documents and that he was not aware of the contents of the same nor did he execute any document thereof and understood what they were. Para 6 of the plaint reads thus:
“6. The plaintiff was kept in the dark about the family affairs and implicitly obeyed the dictates of the other defendants and did whatever he was asked to do. In fact, his signatures were taken on few documents and the plaintiff is not aware of the contents nor did he execute any document thereof or understands what they were.”
In the written statement filed, it was asserted that the plaintiff and defendant Nos. 1 to 3 and their father were members of joint Hindu family till 15th June, 1963. The plaintiff demanded and wished to separate himself from the joint Hindu family and executed a release deed on 15th June, 1963 and severed all the connections from the joint Hindu family when he received consideration of Rs.5,000/- for his share and relinquished all his rights in the family. The plaintiff went away from the family after execution of the release deed and lived at Kempapura village since 1963 in his father-in-law’s house. It was denied that the plaintiff was minor at the time of death of his father. It was further pleaded that he married one Mamjamma d/o Nanjundappa of Kempapura on 29th June, 1964.
On the basis of respective pleadings of the parties, the trial court framed as many as 16 issues. However, the relevant issues are Issue Nos. 1 and 2 at this stage, which read as under: “1. Whether the plaintiff was a minor in 1963? 2. Whether the plaintiff separated from the joint family and executed a release deed dated 15.06.1963? If so, is the same valid and is the plaintiff entitled to a share?”
The plaintiff in order to prove that he was minor produced School Leaving Certificate Ex. P/1 and also examined his brother PW.2 C. Ramaswamy Reddy. The brother did not depose about the age of the plaintiff at the time of death of his father. The plaintiff has not produced any official from the school to prove that such certificate was from the record of the school nor did he examine Head Master who has issued such certificate. The plaintiff has also not examined his mother who was available at the time when the evidence of the plaintiff was being recorded.
The learned trial court on Issue No. 1 found that the registered release deed (Ex.D/1) dated 15th June, 1963 mentions the age of the plaintiff as about 22 years and subsequent to the execution of the release deed the plaintiff married Nanjamma on 29th June, 1964. The registered marriage deed Ex D-2, produced by the defendants, also proves that the age of the plaintiff was 24 years. The trial court did not rely on the date of birth of the plaintiff mentioned in the School Leaving Certificate (Ex.P/1) as the same was not put by the Head Master of the School and the plaintiff did not examine the Head Master of the School to prove the contents of the School Leaving Certificate. Thus, the learned trial court held that the plaintiff was not a minor at the time of execution of release deed in favour of his brothers and his father.
Learned trial court further held that the plaintiff has stated that some of his signatures were taken by his father on few documents and he was not aware of the contents of those documents. The defendants have proved the execution of the release deed by the plaintiff. The plaintiff admitted that he executed a release deed on 15th June, 1963 and has been residing with his father-in-law in Kempapura because a dispute arose between his father and brothers and himself. He admitted that his father died on 30th June, 1963 and that his brothers are residing separately since 1964. The trial court further held that the plaintiff has not pleaded any fraud or coercion in respect of release deed, thus, the Court came to the conclusion that the release deed is valid and the plaintiff is not entitled to any share in the suit schedule properties.
Aggrieved, plaintiff filed appeal before the learned First Appellate Court. The learned First Appellate Court examined the questions as to whether on the date of execution of the release deed, the plaintiff was a major or not and whether the release deed obtained by undue influence or coercion etc. The Court held that the plaintiff had not pleaded at any time that the release deed was obtained by fraud or coercion or that he had not received any consideration thereunder. After discussing the statements of witnesses and the documents produced by the parties, the First Appellate Court held that plaintiff was not a minor at the time of execution of release deed and, thus, dismissed the appeal of the plaintiff and that the order of dismissal of suit of the learned trial court was upheld.
In second appeal, the substantial question framed by the High Court was whether the judgment and decree passed by the courts below suffers from illegality on account of improper consideration of Ex.P/1, i.e., School Leaving Certificate. The High Court returned a finding that Ex.P/1 is a transfer certificate and, thus, the plaintiff was minor and such certificate is admissible as proof of age under Section 35 of the Evidence Act. It was held that since the plaintiff was minor on the date when the release deed was executed on 15th June, 1963, therefore, such deed is null and void and incapable for raising a plea of estoppel. The reliance was placed upon Nawab Sadiq Ali Khan & Ors. v. Jai Kishori & Ors. 1 . After returning such finding, the High Court held that release deed is null and void and not binding, though the High Court returned finding that the plaintiff has received a consideration of Rs.5,000/- at that time.
Learned counsel for the plaintiff relied upon the judgment of this Court reported as Wali Singh v. Sohan Singh 2 wherein the relinquishment by one Kirpal Singh as a guardian of Wali Singh was found to be infructuous in law.
The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported as Karnataka Board of Wakf v. Anjuman-EIsmail Madris-Un-Niswan 8 , it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under:
“12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.
13. In Ramanuja Naidu v. V. Kanniah Naidu (1996 3 SCC 392), this Court held:
“It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did.”
In Navaneethammal v. Arjuna Chetty (1996 6 SCC 166), this Court held :
“Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. … Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material.”
And again in Secy., Taliparamba Education Society v. Moothedath Mallisseri Illath M.N. (1997 4 SCC 484), this Court held: (SCC p. 486, para 5)
“The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact which is impermissible.”
In a judgment reported as Kondiba Dagadu Kadam v. Savitkibai Sopan Gujar & Ors .9, this Court held that from a given set of circumstances if two inferences are possible then the one drawn by the lower appellate court is binding on the High Court. In the said case, the First Appellate Court set aside the judgment of the trial court. It was held that the High Court can interfere if the conclusion drawn by the lower court was erroneous being contrary to mandatory provisions of law applicable or if it is a settled position on the basis of a pronouncement made by the court or based upon inadmissible evidence or arrived at without evidence. This Court held as under:
“5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence.”
In another judgment reported as Santosh Hazari v. Purushottam Tiwari 10 , this Court held as under:
“14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. 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, in so far 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 is 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.”
Recently in another judgment reported as State of Rajasthan v. Shiv Dayal 11 , it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded dehors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:
“When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose,J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43).”
The learned High Court has not satisfied the tests laid down in the aforesaid judgements. Both the courts, the trial court and the learned First Appellate Court, have examined the School Leaving Certificate and returned a finding that the date of birth does not stand proved from such certificate. May be the High Court could have taken a different view acting as a trial court but once, two courts have returned a finding which is not based upon any misreading of material documents, nor is recorded against any provision of law, and neither can it be said that any judge acting judicially and reasonably could not have reached such a finding, then, the High Court cannot be said to have erred. Resultantly, no substantial question of law arose for consideration before the High Court.
Thus, we find that the High Court erred in law in interfering with the finding of fact recorded by the trial court as affirmed by the First Appellate Court. The findings of fact cannot be interfered with in a second appeal unless, the findings are perverse. The High Court could not have interfered with the findings of the fact.
In view of the aforesaid enunciation of law and the facts of the present case, we find that the High Court committed grave error in law in setting aside the concurrent findings of facts recorded by the First Appellate Court and the Trial Court. Consequently, the appeal is allowed and the suit is dismissed with no order as to cost.
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