Ancy Jacob; Bloomy Jacob; Chacko v. Siby; KJ Prasad

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ## **`THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 RSA NO. 77 OF 2024`** ## **`AGAINST THE ORDER/JUDGMENT OS 57/2011 OF SUB COURT, MUVATTUPUZHA AS 174/2019 OF ADDITIONAL DISTRICT COURT - VIII, ERNAKULAM`** ## **`APPELLANTS/PLAINTIFFS:`** ``` 1ANCY JACOB AGED 39 YEARS W/O. ABLE KUTTATTUTHOTTATHIL HOUSE, NORTH PIRAMADOM P.O MARADY VILLAGE, MUVATTUPUZHA TALUK, PIN - 686667 2BLOOMY JACOB AGED 36 YEARS W/O. ROBBIN KUTTATTUTHOTTATHIL HOUSE, NORTH PIRAMADOM P.O MARADY VILLAGE, MUVATTUPUZHA TALUK, PIN - 686667 3CHACKO AGED 68 YEARS S/O. PATHROSE KUTTATTUTHOTTATHIL HOUSE NORTH PIRAMADOM P.O, MARADY VILLAGE MUVATTUPUZHA TALUK, PIN - 686667 BY ADVS. ALIAS M.CHERIAN K.M.RAPHY AMEERA JOJO BRISTO S PARIYARAM MINNU DARWIN ``` ## **`RESPONDENTS/DEFENDANTS:`** ``` 1SIBY AGED 53 YEARS W/O. LATE SABU ORUPPOOPPIL HOUSE, KANINADU KARA NOW RESIDING AT PANKODU KARA PUTHENKUREZ, KUNNATHUNADU TALUK, PIN - 682018 2KJ PRASAD AGED 58 YEARS S/O. JACOB NJARAKATTIL HOUSE, KALANAKUDYIL NORTH PIRAMADAOM KARA ONAKKOOR VILLAGE MUVATTUPUZHA TALUK, PIN - 686667 ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` R.S.A No.77 of 2024 ``` ``` - 2 - ``` ## **`J U D G M E N T`** ``` This appeal has been filed under Section 100 read with order 42 Rule II of Code of Civil Procedure (for short, ‘the CPC’ hereinafter). The appellants are the plaintiffs in O.S.No.57/2011 on the files of Sub Court Muvattupuzha. They assail the decree and judgment in the above case dated 28.06.2019 and decree and judgment in AS No.174/2019 dated 31.03.2023 on the files of Additional District Judge, Ernakulam. ``` ``` 2.Heard the learned counsel for the appellant on admission. Perused the copies of pleadings and documents placed by the learned counsel for the appellant. Gone through the verdicts impugned. ``` ``` 3.This suit was filed for the declaration of Will Deed No.146/111/2010 of S.R.O., Muvattupuzha as null and void and for partition and separate possession of the plaint schedule ``` ``` R.S.A No.77 of 2024 ``` ``` - 3 - ``` ``` properties. Relief of injunction was also sought for. ``` ``` 4.According to plaintiff, the plaint schedule properties originally belonged to Mathai, father of late Sisly and the 1[st] defendant. He obtained the said properties as per document No. 13381/1951 of SRO, Puthencruez and release deed No 1692/1992 No. of S.R.O. Piravom. Mathai and his wife Saramma died on 02.08.10 and 28.07.10, respectively. Late Mathai transferred certain extent of properties covered by the said document, during his life time. But plaint A and B schedule properties are available for partition at present and the plaintiffs and 1[st] defendant are the legal heirs of late Mathai. Late Mathai had no capacity to understand things in sense and to act accordingly. He was bed ridden and under the control of the 1[st] defendant, just two months before his death. He was admitted in different hospitals on various occasions. ``` ``` R.S.A No.77 of 2024 ``` ``` - 4 - ``` ``` 5.Later due to undue influence and force on the part of the 1[st] respondent, Mathai executed Will Deed No. 146/III/2010 of S.R.O, Muvattupuzha, in favour of the 1[st] defendant and Mathai never intended to execute such a Will. It was contended that, on the strength of the alleged Will, the 1[st] defendant sold 65 cents, to the 2[nd] defendant as per document No. 200/11 of S.R.O., Muvattupuzha that sale deed is also void. Plaint A schedule properties are in joint possession of the plaintiffs and 1[st] defendant. In the circumstance, the plaintiffs are entitled to get a decree for declaration that Will No.146/10 of S.R.O, Muvattupuzha is not binding up on plaint schedule properties and also entitled for 1/6th share each of the plaint schedule properties. So also the relief of injunction. ``` ``` 6.The defendants entered appearance and resisted the suit mainly relying on the ``` ``` R.S.A No.77 of 2024 ``` ``` - 5 - ``` ``` genuineness of the Will which was sought to be declared as null and void. ``` ``` 7.The Trial Court ventured the matter and examined PW1 to 5 and marked Ext.A1 to A12, on the side of the plaintiff. DW1 to DW2 examined and Ext.B1 to B7 marked on the side of the defendants. Exhibits C1, C1(a), X1 and X1(a) also marked as Court exhibits. ``` ``` 8.The learned counsel for the appellant submitted that 28 cents of property not covered by the Ext.B1 Will, do form part of the plaint A Schedule property is available for partition, which was originally belonged to Mathai. But the Trial Court and the Appellate Court disallowed the said plea. Therefore, this appeal would require admission by raising the same as a substantial question of law. ``` ``` 9.Although claim over 28 cents of property was strongly raised by the learned counsel for the appellants, he has not substantiated anything to ``` ``` R.S.A No.77 of 2024 ``` ``` - 6 - ``` ``` upset the genuineness of the Ext.B1 Will, as found by the Trial Court and the Appellate Court, wherein the profounder examined DW1 and DW2 as mandated under Sec.66 of the Evidence Act read with Sec.66(3) of the Succession Act, and removed the doubtful circumstances, surrounding the Will. ``` ``` 10.But the learned counsel for the appellant argued at length to convince this Court that 28 cents, form part of plaint A schedule, which was not covered by Ext.B1 will and originally jointly ownedbyMathai,Aliyamma,Mariakutty, Chinnakutty, Leela is available for partition. According to him, 1/5[th] share over the said 28 cents of property in Sy.1076/1B belonged to Mathai ``` ``` being sharer and in view of the Ext. A3 Release Deed executed by Aliyamma, Mariakutty, Chinnakutty and Leela relinquishing their right over the same, Mathai became absolute owner of the entire extend of 28 cents of property. The learned counsel for the appellant placed reliance on Ext.A1 to A5 ``` ``` R.S.A No.77 of 2024 ``` ``` - 7 - ``` ``` marked in this case to substantiate the said point. ``` ``` 11.In Para No.23 of the Trial Court judgment, the Trial Court addressed this contention and found that Mathai succeeded only 1/5th share out of 28 cents of property in Sy.1076/1B as per Ext.A1 and Ext.A3 release deed relied on Mathai to prove relinquishment of shares of Aliyamma, Mariakutty, Chinnakutty & Leela did not include any property covered by Sy.1076/1B. It is also noted by the Trial Court that, even though Mathai had only 1/5th of share in 28 cents in Sy.1076/1B, had sold 9.5 cents (in excess of Mathai’s 1/5th share) from the said item as per A5 document. Therefore it was found by the Trial Court, that no property of Mathai is available to be partitioned. The said observation as extracted in para 23 found to be absolutely correct on perusal of Ext.A1 to A5. Therefore the contention raised by the learned counsel for the appellant ``` ``` R.S.A No.77 of 2024 ``` ``` - 8 - ``` ``` canvassing partition of 28 cents of property in Sy.1076/1B found to be without any merits. ``` ``` 12.Summarising the discussion, it is held that excluding 28 cents of property in Sy.1076/1B, the other items of plaint schedule are properties covered by Ext.B1 which is proved in accordance with law removing the suspicious circumstances surrounded therein and therefore the properties covered by Ext.B1 are not partiable. Similarly 28 cents of property in Sy.1076/1B is concerned, Mathai left no right over the same. Therefore, the said 28 cents of property also not liable to be partitioned among the plaintiffs and 1[st] defendant, as rightly found by the Trial Court and the First Appellate Court. Thus, the concurrent verdicts of the trial court and Appellate Court do not require any interference at the hands of this Court. ``` ``` 13.In view of the above discussion, no substantial question of law emerges in this matter ``` ``` R.S.A No.77 of 2024 ``` ``` - 9 - ``` ``` to be formulated to maintain and admit this regular second appeal. Order XLII Rule 2 of CPC provides thus: ``` ``` “2. Power of Court to direct that the appeal be heard on the question formulated by it.-At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.” ``` ``` 14.Section 100 of CPC provides that,(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ``` ``` R.S.A No.77 of 2024 ``` ``` - 10 - ``` ``` ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso stipulates that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. ``` ``` 15.In the decision reported in[2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168] Nazir Mohamed v. J. Kamala and Others, the Apex Court held that: ``` ``` R.S.A No.77 of 2024 ``` ``` - 11 - ``` ``` The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law. InKondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722]. ``` ``` 16.In a latest decision of the Apex Court in Government of Kerala v. Joseph, reported in [2023 (5) KHC 264 : 2023 (5) KLT 74 SC], it was held, after referringSantosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179](three – Judge Bench), as under: ``` ``` For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well – established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court. ``` ``` R.S.A No.77 of 2024 ``` ``` - 12 - ``` ``` 17.The legal position is no more res-integra on the point that in order to admit and maintain a second appeal under Section 100 of CPC, the Court shall formulate substantial question/s of law, and the said procedure is mandatory. Although the phrase 'substantial question of law' is not defined in the Code, 'substantial question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Art.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. As such, second appeal cannot be decided on equitable ``` ``` R.S.A No.77 of 2024 ``` ``` - 13 - ``` ``` grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of CPC must be complied to admit and maintain a second appeal. ``` ``` 18.In the instant case, it appears that the concurrent verdicts entered into by the trail court as well as by the Appellate Court, based on the facts and evidence, are found to be in order. Therefore, the same does not require any interference at the hands of this Court. ``` ``` 19.In this matter, no substantial question of law arises for consideration so as to admit this second appeal. It is the well settled law that a second appeal involving no substantial question of law cannot be admitted. Therefore, the decree and judgment under challenge do not require any interference and no substantial question of law to be formulated to adjudicate in this regular second appeal. ``` ``` R.S.A No.77 of 2024 ``` ``` - 14 - ``` ``` 20.Accordingly, this regular second appeal stands dismissed, without being admitted, as indicated above. ``` ``` All interlocutory applications pending in this second appeal, stand dismissed. ``` ``` Registry shall inform this matter to the Trial Court as well as the Appellate Court, forthwith. ``` ``` Sd/- ``` ## **`A. BADHARUDEEN`** ``` JUDGE ``` ``` SM ```