2008 (12) TMI 800 - SC - Indian Laws

Substantial question of law - suit for partition claiming share - Whether the High Court while exercising its jurisdiction u/s 100 of the Code of Civil Procedure could while dictating the judgment frame an additional question of law and allow the same without even referring to the questions of law formulated at the time of admission - HELD THAT - Principal contention raised on behalf of the defendant-respondent in their written statement as noticed hereinbefore was non-existence of any relationship between the parties. We however do not mean to suggest that defendants cannot raise inconsistent pleas but the same should have been kept in mind by the High Court. It might or might not have been possible for the High Court to consider the question of law raised on the basis of the facts found by the courts below but indisputably the High Court without recording sufficient reasons could not allow the appellant to raise absolutely a new contention which was beyond the pleadings of the parties. The High Court furthermore proceeded on the presumption that the plaintiff and the defendants belong to the fourth generation of Nanjappa. In holding so the High Court wrongly included the propositors as the first generation. The plaintiff and the defendants were the third generation of the propositors. The High Court did not deal with the substantial questions of law formulated at the time of admission at all. We therefore are of the opinion that the impugned judgment cannot be sustained. It is set aside accordingly and the matter is remitted to the High Court for consideration of the matter afresh. In the event the High Court opines that any substantial question of law should be framed suo motu or at the instance of the appellant before it viz. respondent herein it shall give an opportunity of hearing to appellant. Appeal is allowed on the aforementioned terms. In the facts and circumstance of the case however there shall be no order as to costs.

Issues Involved:

1. Whether the High Court could frame an additional question of law while dictating the judgment u/s 100 of the Code of Civil Procedure.
2. Whether the plaintiff proved the suit schedule properties as ancestral and joint family properties.
3. Whether the defendant unlawfully got the revenue entries of the suit schedule property in his name.
4. Whether the plaintiff is entitled to a half share in the suit schedule property and mesne profits.

Summary:

Issue 1: Framing of Additional Question of Law by High Court

The primary issue was whether the High Court, while exercising its jurisdiction u/s 100 of the Code of Civil Procedure, could frame an additional question of law during the judgment dictation without referring to the initially formulated questions of law. The Supreme Court held that the High Court must formulate a substantial question of law at the time of admission and should not frame a new question without assigning reasons and giving a reasonable opportunity to the parties. The High Court's action of framing a new question of law during judgment dictation without notice and declining the appellant's request for time was deemed impermissible.

Issue 2: Ancestral and Joint Family Properties

The plaintiff claimed that the suit schedule properties were ancestral and joint family properties. The Trial Court and the First Appellate Court found that the plaintiff failed to prove the properties continued to be joint family properties. The High Court, however, framed a new question of law regarding the existence of a joint family and the nature of the properties, which was not initially raised.

Issue 3: Revenue Entries and Defendant's Actions

The plaintiff alleged that the defendant unlawfully got the revenue entries of the suit schedule property in his name. The defendant contended that the properties had been in their possession since time immemorial and that the plaintiff had no relationship with them. The High Court did not address this issue in its judgment, focusing instead on the new question of law it framed.

Issue 4: Plaintiff's Entitlement to Half Share and Mesne Profits

The Trial Court opined that the plaintiff was entitled to a decree for partition except for the property mortgaged by his father. The First Appellate Court dismissed the appeal, holding that the plaintiff could not prove the properties were joint family properties. The High Court's new question of law did not address the plaintiff's entitlement to a half share and mesne profits directly.

Conclusion:

The Supreme Court set aside the High Court's judgment, stating that the High Court did not deal with the substantial questions of law formulated at the time of admission. The matter was remitted to the High Court for fresh consideration, with instructions to give an opportunity of hearing to the appellant if any new substantial question of law is to be framed. The appeal was allowed with no order as to costs.

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