Mariyam @ Beatrice v. Fr. Joseph Mattam (deceased) and Others

**CR** # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` WEDNESDAY, THE 7[TH] DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945 RSA NO. 62 OF 2024 ``` ``` AGAINST THE ORDER/JUDGMENT OS 213/2019 OF MUNSIFF COURT, ``` ## **`PALA`** ## **`AS 8/2022 OF ASSISTANT SESSIONS COURT/SUB COURT, PALA`** ## **`APPELLANT/S:`** ``` MARIYAM @ BEATRICE, REP. BY POWER OF ATTORNEY HOLDER BOBY KURIAN, AGED 87 YEARS ``` ``` MATTATHIL @VALYAPARAMBIL HOUSE, KEZHUVAMKULAM P.O, PULIYANNOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT NOW RESIDING AT ST JOSEPH CONVENT, ST. THOMAS HOSPITAL, ST THOMAS MOUNT CHENNAI, REP. BY POWER OF ATTORNEY HOLDER BOBY KURIAN, S/O C K. KURIAN AGED 40, CHERUVIL HOUSE, KEZHUVAMKULAM P.O, PULIYANNOOR VILLAGE, PIN - 686584 ``` ``` BY ADVS. C.S.BISSIMON DENNY VARGHESE ``` ## **`RESPONDENT/S:`** - `1 FR. JOSEPH MATTAM (DIED), MATTATHIL HOUSE , KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, PIN - 686584` - `2 MARYKUTTY CHACKO, AGED 89 YEARS MATTATHIL HOUSE , KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, PIN - 686584` - `3 ALVIN MATTATHIL, S/O SUNNY MATTATHIL @ SONY MATTATHIL MATTATHIL @ VALYAPARAMBIL , KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE NOW RESIDING AT GASSERGASSE 19/2/7/1050. VIENNA AUSTRIA EUROPE REPRESENTED BY` -2- R.S.A.No. 62 of 2024 - `NOHA THOMAS S/O THOMAS PULLATTU HOUSE KADAVANTHARA P.O, ERNAKULAM VILLAGE, PIN - 682020` - `4 ANAND MATTATHIL S/O SUNNY MATTATHIL @ SONY MATTATHIL MATTATHIL @ VALYAPARAMBIL , KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE NOW RESIDING AT GASSERGASSE 19/2/7/1050. VIENNA AUSTRIA EUROPE REPRESENTED BY NOHA THOMAS S/O THOMAS PULLATTU HOUSE KADAVANTHARA P.O, ERNAKULAM VILLAGE, PIN - 682020` - `5 ANJALY, D/O SUNNY MATTATHIL @ SONY MATTATHIL , MATTATHIL HOUSE , KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE NOW RESIDING AT GASSERGASSE 19/2/7/1050. VIENNA AUSTRIA EUROPE REPRESENTED BY NOHA THOMAS S/O THOMAS PULLATTU HOUSE KADAVANTHARA P.O ERNAKULAM VILLAGE, PIN - 682020` - `6 SR. MARY SIVILLIA@ ALEY D/O CHACKO, MATTATHIL HOUSE , KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK , KOTTAYAM DISTRICT, NOW RESIDING AT ST. MARY'S CONVENT KADALOOR P O, TAMILNADU STATE., PIN - 686584` - `7 CHACKO MATTAM , S/O MANI, MATTATHIL HOUSE, KEZHUVAMKULM P.O, KEZHUVAMKULAM KARA PULIYANNOOR VILLAGE, MEENACHIL TALUK KOTTAYAM DISTRICT., PIN - 686584` - `8 ALEYAMMA JOY , W/O JOY, KUMPALAPPALLIL HOUSE, MANAKKADAVU P.O, MANAKADAVU KARA UDAYAGIRI VILLAGE TALIPPARAMBU TALUK KANNUR DISTRICT., PIN - 670571` - `9 EMMANUEL @ OUSEPACHEN S/O MANI, MATTATHIL HOUSE, KEZHUVAMKULAM KARA, KEZHAUVAMKULAM PO, PULIYANNOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT., PIN - 686584` - `10 M.M. JOSE , S/O MANI MATTATHIL HOUSE, MUTHOLY P.O, 686573 MUTHOLY KARA PULIYANNOOR VILLAGE MEENACHIL TALUK, PIN - 686573` - `11 M.M. THOMAS , MATTATHIL HOUSE, MUTHOLY P.O, MUTHOLY KARA PULIYANNOOR VILLAGE MEENACHIL TALUK, PIN - 686573` - `12 SCARIA, S/O ULAHANNAN ANNIEKAMATTATHIL HOUSE, PUNNATHARA WEST P.O, ETTUMANOOR VILLAGE, KOTTAYAM TALUK, PIN - 686631` - `13 ELSAMMA PAUL, W/O PAUL, ANNIEKAMATTATHIL HOUSE, PUNNATHARA WEST P.O, ETTUMANOOR VILLAGE, KOTTAYAM` -3- R.S.A.No. 62 of 2024 ``` TALUK, PIN - 686631 ``` - `14 ANNIE SCARIA, D/O SCARIA, ANNIEKAMATTATHIL HOUSE, PUNNATHARA WEST P.O, ETTUMANOOR VILLAGE, KOTTAYAM TALUK, PIN - 686631` - `15 SIBY SCARIA, ANNIEKAMATTATHIL HOUSE, PUNNATHARA WEST P.O, ETTUMANOOR VILLAGE, KOTTAYAM TALUK, PIN - 686631` - `16 RANI JOSE , VEGINTEKALPARAMBIL NEEZHOOR PO, NEEZHOOR KARA NEEZHOOR VILLAGE KOTTAYAM DISTRICT, PIN - 686612` - `17 THRESSIAMMA SCARIA , W/O SCARIA, VATHALLOOR HOUSE, KONGANDOOR P.O, KONGANDOOR KARA AYARKUNNAM VILLAGE, KOTTAYAM TALUK, PIN - 686564` - `18 MARY GEORGE , W/O GEORGE THONDICAKAL HOUSE, KADAPLAMATTOAM P.O, KADAPLAMATTOM KARA KADAPLAMATTOM VILLAGE MEENACHIL TALUK, PIN - 686571` - `19 JAMES THOMAS , S/O THOMAS , MATTATHIL HOUSE, KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK, PIN - 686584` - `20 JOSEPH THOMAS, S/O THOMAS MATTATHIL HOUSE , KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK, PIN - 686584` - `21 ROSAMMA THOMAS , D/O THOMAS, MATTATHIL HOUSE, KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK, PIN - 686584` - `22 MANUEL MATTOM, S/O THOMAS, MATTATHIL HOUSE, KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK., PIN - 686584` - `23 SIBY THOMAS, S/O THOMAS , MATTATHIL HOUSE, KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK, PIN - 686584` - `24 JOHN MATTAM THOMAS, S/O THOMAS MATTATHIL HOUSE, KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK NOW RESIDING AT D 24, SHIVADHARA APTS, THALTE SILAJ ROAD AHMEDABAD, PIN - 380059` - `25 SR. STANTLEY, D/O CHACHO, MATTATHIL HOUSE, KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK C/O JAMES` -4- R.S.A.No. 62 of 2024 ``` CHACKO AGED 58 S/O CHACKO MATTATHIL HOUSE, KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK, PIN - 686584 ``` - `26 MARY, D/O CHACKO MATTATHIL HOUSE, KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK C/O JAMES CHACKO AGED 58 S/O CHACKO MATTATHIL HOUSE, KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK, PIN - 686584` - `27 ALEYAMMA JOY , S/O JOY, MULAVELIKKUNNEL HOUSE, KURUMALLOOR P.O, VEDAGIRI KURUMALLOOR KARA , KANAKKARI VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT., PIN - 686632` - `28 JAMES CHACKO , S/O CHACKO MATTATHIL HOUSE, KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK, PIN - 686584` - `29 ANEY,D/O CHACKO MATTATHIL HOUSE, KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK, C/O JAMES CHACKO AGED 58 S/O CHACKO MATTATHIL HOUSE, KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK, PIN - 686584` - `30 KATHRIKKUTTY, W/O JOSEPH MATTATHIL HOUSEMANIKKADAVU P.O, SANTHINAGAR KARA, PAYYAVOOR VILLAGE, KANNUR DISTRCTI, PIN - 670633` - `31 BIJU JOSEPH, S/O JOSEPH MATTATHIL HOUSE ULIKKAL P.O, KOKKADU KARA VYTHIRI VILLAGE KANNUR DISTRICT, PIN - 670705` - `32 BINU JOSEPH , S/O JOSEPH MATTATHIL HOUSE MANIKADVU P.O, SANTHINAGAR KARA, PAYYAVOOR VILLAGE KANNUR DISTRICT, PIN - 670633` - `33 BLESSY JOSEPH , D/O JOSEPH MATTATHIL HOUSE MANIKADVU P.O, SANTHINAGAR KARA, PAYYAVOOR VILLAGE KANNUR DISTRICT, PIN - 670633` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -5- R.S.A.No. 62 of 2024 ## **CR** ## **A.BADHARUDEEN, J.** ====================================================== R.S.A.No.62 of 2024 ============================================================= Dated this the 7[th] day of February, 2024 ## **J U D G M E N T** This appeal is at the instance of the plaintiff in O.S.No.213/2019 on the files of Munsiff Court, Pala. The respondents are the defendants in the suit. 2. Heard the learned counsel for the appellant/plaintiff on admission. I shall refer the parties as plaintiff and defendants. 3. The plaintiff filed the suit contending that the parties are Christians and are governed by the Indian Succession Act, 1925. According to the plaintiff, plaint A and B schedule properties belonged to the father of the plaintiff by name Chacko, S/o. Mattathilaya Valiyaparambil Chacko. It is the further contention that Chacko obtained absolute ownership over the property covered by partition deed No.339/1100 and sale deed No.3482/1103 of Meenachil SRO. The contention of the plaintiff further is that Chacko died intestate and his mother also died. -6- R.S.A.No. 62 of 2024 Therefore, the plaintiff, who is governed by the Indian Succession Act, is entitled for 1/5[th] share over the plaint schedule property. 4. Defendants 1 to 5, 17, 18, 19, 20, 27 and 23 filed written statement and the crux of their contentions is that Chacko died in the year 1938 and therefore, in the matter of succession, the parties are governed by Travancore Succession Act, 1092 and Indian Succession Act has no application in the instant case. 5. The trial court raised necessary issues and recorded evidence. During trial PW1 and PW2 were examined and Exts.A1 to A7 were marked. DW1 to DW7 were examined and Exts.B1 to B25 were marked. Exts.X1 and X2 were also marked. Finally the trial court found that Chacko died in the year 1938 and relying on Exts.X1 and X2 held that the parties are governed by the Travancore Succession Act, 1092. Accordingly, suit was dismissed. The trial court verdict was assailed in A.S No.8/2022 -7- R.S.A.No. 62 of 2024 before the Sub Court, Pala, but the appellate court also concurred the finding of the trial court and dismissed the appeal. 6. Even though the learned counsel for the plaintiff submitted that Chacko died in the year 1953 and, therefore, Indian Succession Act, 1925 would apply in this matter, it is discernible from the verdicts of the trial court that the plaintiff never raised pleadings in the plaint that Chacko died in the year 1953 and no evidence also let in, in this regard. 7. The trial court as well as the appellate court relied on Exts.X1 and X2, copies of the death register and the details of Almayar of Cherpunkal Church, to hold that Chacko died in the year 1938. In the decision reported in [AIR 1986 SC 1011], _as_ _**Mary Roy v. State of Kerala & Ors.**_ the Apex Court held _under :_ “So far as Indian Christian are concerned, Chapter II of Part V contains rules relating to intestate succession and a fortiori on the extension of the Indian Succession Act, 1925 to Part B State of Travancore Cochin, the rule relating to intestate -8- R.S.A.No. 62 of 2024 succession enacted in Chapter II of Part V would be applicable equally to Indian Christians in the territories of the former State of Travancore. It cannot be said that S.29, sub-sec. (2) of the Indian Succession Act, 1925 saved the provisions of the Travancore Christian Succession Act, 1092 and that therefore despite the extension of the Indian Succession Act, 1925 to Part B State of Travancore Cochin, the Travancore Christan Succession Act, 1092 continued to apply to Indian Christians in the territories of the erstwhile State of Travancore. S.6 cannot be overlooked in such a case. The Indian Succession Act, 1925 was extended to Part B State of Travancore-Cochin by virtue of S.3 of PartB States (Laws) Act, 1951 and if therefore, there was in force in Part B State of TravancoreCochin any law corresponding to the Indian Succession Act, 1925 immediately prior to 1[st] April, 1951, such law would stand wholly repealed. In such a case, the continuance of Travancore Act cannot be justified on the ground that, the Travancore Christian Succession Act, 1092 was not a law corresponding to the Indian Succession Act, 1925 since the latter Act had a much wider coverage in that it dealt not only with rules relating to intestate succession among Indian Christian but also laid down rules of intestate succession among Parsis as also rules relating to testate succession, while the travancore Christian succession Act, 1092 was confined only to laying down rules of intestate succession among Indian Christians. When the Indian Succession Act, 1925 was extended to Part-B -9- R.S.A.No. 62 of 2024 state of Travancore-Cochin every part of that Act was so extended including Chapter II of Part V and the Travancore Christians Succession Act, 1092 was a law corresponding to Chapter II of Part V, since both dealt with the same subject matter, namely, intestate succession among Indian Christian and covered the same field. And if that be so, it is difficult to resist the conclusion that by S.6 of part B states (Laws) Act, 1951 the Travancore Christian succession Act, 1092 stood repealed in its entirety. When S.6 of part B States (Laws) Act, 1951 provided in clear and unequivocal terms that the Travancore Christian Succession Act, 1092 which was a law in force in part B States of Travancore Cochin corresponding to Chapter II of part V of the Indian Succession Act, 1925 shall stand repealed, it would be nothing short of subversion of the langislative intend to hold that the Travancore Christian succession act, 1092 did not stand repealed but was saved by S.29, sub-sec.(2 of the Indian Succession Act, 1925. Moreover, there is nothing in part B States (Laws) Act, 1951 expressly saving the Travancore Christian succession Act, 1092. It cannot be said in such a case, that by reason of S.29, sub-sec. (2), the Indian Succession Act, 1925 must be deemed to have adopted by reference all laws for the time being in force relating to intestate succession including the Travancore Christian Succession Act, 1092 so far as Indian Christians in Travancore are concerned. The Legislative device of incorporation by reference is a well known device where the legislature instead of repating the provisions of a particular -10- R.S.A.No. 62 of 2024 statute in another statute incorporates such provisions in the latter statute by reference to the earlier statute. It is a legislative device adopted for the sake of convenience in order to avoid verbatim reproduction of the provisions of an earlier statute in a later statute. But when the legislature intends to adopt this legislative device the language used by it is entirely distinct and different from the one employed in S.29, sub-sec. (2) of the Indian Succession Act, 1925. The opening part of S.29, sub-sec. (2) is intended to be a qualificatory or excepting provision and not a provision for incorporation by reference.” 8. In view of the declaration of law by the Apex Court, it is emphatically clear that by the introduction of the Indian Succession Act, 1925 which was extended to Part-B State of Travancore-Cochin by virtue of Section 6 of Part B States (Laws) Act, 1951 w.e.f 01.04.1951, the Travancore Christian Succession Act, 1092 stood repealed. Thus it is clear in the present case that Chacko died in the year 1938 as evident from Exts.X1 and X2 and the parties are governed by the Travancore-Christian Succession Act and not by the Indian Succession Act, which came into force w.e.f 01.04.1951. -11- R.S.A.No. 62 of 2024 9. The trial court observed that as per Section 28 of the Travancore Succession Act, male heirs mentioned in Section 25(1) shall be entitled to have the whole of the intestate’s property divided equally among themselves subject to the claims of the daughters for Streedhanom. It is also mentioned that Streedhanom due to a daughter shall be fixed at 1/4[th] of the value of the share of a son or Rs.5,000/-, whichever is less. Further as per Section 28, any female heir of an intestate to whom Streedhanom was paid or promised by the intestate shall not be entitled to have any further claim in the property of the intestate when any of her brother or lineal descendant of any such deceased brother shall survive the intestate. The trial court relied on a decision of this Court reported in [ **1993 KHC 424], Sosa v. Varghese** , wherein it was held that Streedhanom due to a daughter shall be fixed at ¼ of the value of share of his son, or Rs.5,000/- whichever is less. It was also held that Section 25(1) also makes the position clear that any Streedhanam promised but not paid shall be a charge upon the property and when Streedhanam not paid, the Statute does not in -12- R.S.A.No. 62 of 2024 any way indicate that the unpaid streedhanam amount would have the character of a trust. In this matter, the trial court as well as the appellate court finally found that the parties are governed by the provisions of Travancore Succession Act, 1092 and, therefore, the daughter would not get any share on the property left by Chacko, who died in the year 1938. 10. Another contention raised before the trial court was that a Christian priest or nun could not succeed the property in his personal capacity. In this connection, the trial court relied on a decision of a Division Bench of this Court reported in [2017 (2) KLT 1072], _**Mesgr. Xavier Chullickal v. Raphael**_ and held that the said contention is not sustainable. Relevant paragraphs are as under: “We are in perfect agreement with the decisions of the Karnataka High Court and Madras High Court that Indian Succession Act, 1925 that Indian Succession Act, 1925 does not make a departure in the case of a Christian priest or nun. There is absolutely no statutory prohibition for a Christian -13- R.S.A.No. 62 of 2024 priest or nun in the matter of intestate or testamentary succession of property of course in his/her personal capacity. There cannot be any automatic deprivation of of intestate or property acquired by way testamentary succession by the mere fact that one has entered into the religious order and renounced his worldly pleasures. However property obtained by a Hindu ascetic or a Christian priest on behalf of a Mutt or a Monastery stand on a different footing and the same would devolve on the successor administrator. [AIR 1954 SC 606], **Sital Das v. Sant Ram & Ors.** And [(1981) 3 SCC 689], **Shri Krishna Singh v. Mathura Ahir & Ors.** are cases delaing with the right over Mutt property only. Sital Das was rendered before the coming into force of the Hindu Succession Act, 1956 and Shri Krishna Singh essentially dealt with the Mahantship and Mutt property which are of little application here. Unfortunately **Sital Das** has been relied on heavily in [1977 KLT 303 (D.B)], **Mother Superior v. D.E.O, Kottayam and Ors.** to hold that Canon Law is the rule of thumb. [1994 (1) KLT 868 (D.B)], **Oriental Insurance Company v.** -14- R.S.A.No. 62 of 2024 **Mother Superior** and [2004 (2) KLT 783 (D.B)], **v. Krishnan Nair** follows **Mother Varghese Superior** (supra) and nothing more. We have no hesitation to hold that the above decisions of the Division Bench on the right of a Christian priest or nun over his/her personal property are no longer good law and binding. This is so in view of the unequivocal pronouncement in **Mary Roy v. State.”** 11. Thus it was found that the plaintiff only entitled for Streedhanom as per Section 28 and, therefore, claim for partition under Section 28 of the Travancore Succession Act could not succeed, as rightly pointed out by the trial court as well as the appellate court. Therefore, no substantial question of law arises to admit and maintain this appeal. 12. In order to admit and maintain a Second Appeal, substantial question of law necessarily to be formulated by the High Court within the mandate of Order XLII Rule 2 Read with Section 100 of C.P.C. -15- R.S.A.No. 62 of 2024 13. In this case, the learned counsel for the appellant failed to raise any substantial question of law warranting admission of the Second Appeals. Order XLII Rule 2 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 defendant 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 the C.P.C. 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 ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the -16- R.S.A.No. 62 of 2024 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 says 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 in [2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168], _**Nazir Mohamed v. J. Kamala and Others**_ reported in the Apex Court held that: _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 referring_ _**Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722.**_ -17- R.S.A.No. 62 of 2024 16. In a latest decision of the Apex Court reported in [2023 (5) KHC 264 : 2023 (5) KLT 74 SC], _**Government of Kerala v. Joseph**_ , it was held 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._ 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 the C.P.C, 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 -18- R.S.A.No. 62 of 2024 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 grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal. 18. In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal. In the result, the appeal is found to be meritless and the same is dismissed without being admitted. All pending Interlocutory Applications stand dismissed. _Sd/-_ ## **A.BADHARUDEEN, JUDGE** das