Sandhya d/o Ponnamma v. P.G. Sanal Kumar and P.G. Sajith Kumar

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 8[TH] DAY OF NOVEMBER 2023/17TH KARTHIKA, 1945** **RSA NO. 1081 OF 2018** **AGAINST THE JUDGMENT AND DECREE DATED 25.04.2014 IN OS 428/2007 OF ADDITIONAL SUB COURT, KOLLAM JUDGMENT AND DECREE DATED 30.06.2018 IN AS 117/2014 OF ADDITIONAL** **DISTRICT COURT -V, KOLLAM** ## **APPELLANT/APPELLANT/DEFENDANT:** **SANDHYA D/O PONNAMMA, AGED 60 YEARS, PATHIVILAYIL, PALACE WARD, OLAYIL, THEVALLY, KOLLAM** **BY ADVS. C.UNNIKRISHNAN (KOLLAM) JOHNSON GOMEZ S.BIJU (KIZHAKKANELA) A.V.INDIRA** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:** **1 P.G.SANAL KUMAR S/O GANGADHARAN, AGED 55 YEARS, RESIDING AT ANANDAM, KOTTACKKAKOM, PERINAD, KOLLAM REPRESENTED BY POWER OF ATTORNEY, MAYA DEVI, W/O SANAL KUMAR, AGED 47 YEARS, -DO-PIN 689 002** **2 P.G. SAJITH KUMAR, S/O.GANGADHARAN, AGED 47 YEARS, RESIDING AT FLAT NO.A1, JAWAHAR JWEL APARTMENT, JAWAHAR NAGAR, KADAVANTHRA, ERNAKULAM-692020 REPRESENTED BY POWER OF ATTORNEY LEKHA SAJITH KUMAR W/O. SAJITH KUMAR AGED 45 YEARS – DO-PIN 689 002** **BY ADVS. SRI.G.P.SHINOD SRI.GOVIND PADMANAABHAN SHRI.AJIT G ANJARLEKAR** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA NO. 1081 OF 2018** **2** ## **JUDGMENT** Dated this the 8[th] day of November, 2023 This regular second appeal has been filed under Section 100 r/w Order XLII Rule 1 to 3 of the Code of Civil Procedure, 1908. The defendant in O.S.No.428/2007 on the files of the Additional Sub Court, Kollam, is the appellant herein and she impugns decree and judgment dated 30.06.2018 in A.S.No.117/2014 on the files of the Additional District Court-V, Kollam, arose out of decree and judgment dated 25.04.2014 in O.S.No.428/2007. The respondents herein are the plaintiffs in the above Suit. 2. Heard the learned counsel for the appellant as well as the learned counsel for the respondents. Perused the lower court records and the pleadings. 3. I shall refer the parties in this regular second appeal as 'plaintiffs' and 'defendant' for convenience. **RSA NO. 1081 OF 2018** **3** 4. The plaintiffs filed the Suit seeking partition of the plaint schedule property, having an extent of 12 cents, on the assertion that the property originally belonged to K.Ponnamma, the mother of the plaintiffs and the defendant, as per partition deed No.3309 of 1955 and sale deed No.1621 of 1975. According to the plaintiffs, the plaint schedule property is liable to be partitioned and 1/3[rd] share each out of the same to be given to the plaintiffs and 1/3[rd] share to be given to the defendant. 5. The sole defendant filed written statement. According to the defendant, 8 cents out of 12 cents was given in favour of the defendant by way of an oral will at the time of her marriage and had been residing in the house situated therein. The further contention raised by the defendant was that the plaintiffs obtained consent letter from the defendant for getting retirement benefits of the father. Accordingly, the defendant raised contention that the property is not partiable. **RSA NO. 1081 OF 2018** **4** 6. The court below raised necessary issues and tried the case. PW1 examined and Exts.A1 to A8 were marked on the side of the plaintiffs. DW1 examined and Ext.B1 was marked on the side of the defendant. Finally, the trial court found that the property is partiable and accordingly, 1/3[rd] share each allotted in favour of the plaintiffs and the defendant. 7. Although appeal was preferred before the District Court, as per decree and judgment dated 30.06.2018 delivered in A.S.No.117/2014, the appellate court also concurred the finding. 8. While canvassing admission of this appeal, the learned counsel for the defendant would submit that the decree and judgment in favour of the plaintiffs, now under challenge, are the outcome of fraud played by the plaintiffs by suppressing material facts with regard to the real mother of the plaintiffs. According to the learned counsel, P.Gangadharan married one K.Ponnamma and the defendant was born out of P.Gangadharan and K.Ponnamma. Thereafter, Ponnamma **RSA NO. 1081 OF 2018** **5** died. It is submitted that the plaintiffs in the suit are children born out of the wedlock between P.Gangadharan and Radhadevi, the second wife of P.Gangadharan. In order to address this contention, the learned counsel has given much emphasis to a copy of passport relating to the first plaintiff, produced as Annexure A1 document. The plank on which the learned counsel asserts fraud in the matter of getting the verdicts under challenge is that the plaintiffs have suppressed the fact that they are children born out of the wedlock between P.Gangadharan and K.Radhadevi. It is argued that the name of the mother of the first plaintiff as per Annexure A1 is shown as 'Late K.Radhadevi'. It is submitted further that if the plaintiffs are children born out of K.Radhadevi, they won't get 1/3[rd] share in the plaint schedule property, though they would get 1/2 share inherited by P.Gangadharan, after the death of K.Ponnamma. 9. Refuting this contention, the learned counsel for the plaintiffs submitted that the name of the mother of the first **RSA NO. 1081 OF 2018** **6** plaintiff shown in Annexure A1 as 'late K.Radhadevi is the alias name of K.Ponnamma. In support of this contention, he has placed Annexure A, copy of marriage invitation letter in relation to the first plaintiff, showing the marriage as on 23.031989 as well as Annexure B, copy of a letter alleged to have been given by P.Gangadharan to the Captain Bureau of Sailors (Pension) dated 18.02.1989 to contend that the plaintiffs are children of P.Gangadharan born out of the wedlock of P.Gangadharan and K.Ponnamma. 10. Before addressing the documents placed by both sides as Annexure A1 (by the defendant) and Annexure A and B (by the plaintiffs), it has to be observed that those documents, in fact, were not tendered in evidence by adopting the procedure provided under the Evidence Act. It is more surprising to see that the above documents were not produced before this Court as provided under Order XLI Rule 27 with explanation as provided under Order XLI Rule 27 (aa) of the **RSA NO. 1081 OF 2018** **7** CPC. However, the specific case of the defendant is that decree and judgment impugned herein are the outcome of fraud and fraud vitiates everything. In view of the submission, I am inclined to address as to whether there is fraud, which would go to the route of the matter in the present case on the basis of available materials. 11. The learned counsel for the defendant placed decision of the Apex Court in **S.P.Chengalvaraya Naidu v. Jagannath and Others** reported in **1995 KHC 182 SC** to contend that when litigants deceives the court by withholding documents that are decisive to the case at hand to gain an unfair advantage, they are guilty of playing fraud on the court as well as on the opposite party. Such decree/judgment to be treated as a nullity by every court, whether superior or inferior. In this case, the Apex Court considered a case, wherein one Jagannath purchased the plaint schedule property therein by court sale. Thereafter, he obtained the decree debt and in turn, he executed the release deed and relinquished his right **RSA NO. 1081 OF 2018** **8** over the plaint schedule property. Suppressing the material fact, he had filed a suit for partition and obtained a decree in his favour. In the said case, though the Hon'ble High Court also confirmed the judgment of the appellate court, reversing the judgment of the trial court, the Apex Court held that the decree granted in the said case is the outcome of fraud and fraud vitiates everything. Therefore, the Apex Court set aside the judgment of the High Court and restored the judgment of the trial court. 12. As far as the law in regard to allegation of fraud is concerned, fraud once pleaded and proved, the same would go to the route of the matter. Fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. In **S.P.Chengalvaraya Naidu's** case ( _supra),_ the facts of the case was as under: _Jagannath was working as a clerk with Chunilal Sowcar._ **RSA NO. 1081 OF 2018** **9** _He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Exhibit B-15) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non production and even non mentioning of the release deed at the trial tantamounts to playing fraud on the court. We do not agree with the observations of the High Court that the appellants-defendants could have easily produced the certified registered copy of Exhibit B-15 and nonsuited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side than he would be guilty of playing fraud on the court as well as on the opposite_ **RSA NO. 1081 OF 2018** **10** _party._ 13. Coming back to the factual aspects, the plaintiffs filed a suit specifically alleging that the plaint schedule property was left by K. Ponnamma, the mother of the plaintiffs and the defendant. Going by the cause title of the plaint, it is discernible that the first plaintiff was aged 48 years and the second plaintiff was aged 40 years at the time of filing the suit. The age of the defendant was not shown in the cause title. But in the first appellate judgment, the age of the defendant was shown as 57 years during 2014. Thus, it is discernible that the defendant is the elder among the plaintiffs and the defendant. In the written statement, there is no mention or whisper to hold that the plaintiffs were born to K.Radhadevi and the defendant was born to K.Ponnamma. On the said premise, the trial court as well as the appellate court proceeded with the matter and delivered the verdicts under challenge. As per Ext.A5, the extract of death register issued from Quilon Municipality dated 11.01.1990, it has been certified that K.Ponnamma died on **RSA NO. 1081 OF 2018** **11** 27.12.1980. In Annexure A1 passport, the name of the mother of the first plaintiff is shown as 'Radhadevi'. The said fact is not disputed by the plaintiffs also and the case of the plaintiffs is that Radhadevi is another name of K.Ponnamma. It is argued by the learned counsel for the plaintiffs that the first wife of P.Gangadharan is K.Radhadevi and he got married to K.Krishnamma, the sister of K.Radhadevi, after the death of K. Radhadevi. He also argued that in Annexure B, P.Gangadharan disclosed the fact that the defendant and plaintiffs 1 and 2 are the children born out of the first marriage. In Annexure A, the marriage invitation letter of the first plaintiff, the name of the mother is shown as 'K.Ponnamma'. In Exts.A3 and A4 documents, whereby K.Ponnamma obtained title over the plaint schedule property, the name is shown as Ponnamma without a whisper that she has another name by 'K.Radhadevi'. 14. The crucial aspect in this case is whether the plaintiffs and defendant were born to K. Ponnamma, who **RSA NO. 1081 OF 2018** **12** obtained property as per Exts.A3 and A4 title deeds, to succeed upon the property, left by her by inheritance. As I have already pointed out, before the trial court as well as the appellate court, both sides contested the case on the premise that K.Ponnamma is the mother of all. But during the second appellate stage, relying on Annexure A1 document, it has been pointed out that K.Ponnamma is not the mother of the plaintiffs and the name of the plaintiffs' mother is K.Radhadevi. This is the trumpcard on which the defendant would assert that the plaintiffs suppressed material facts before the court and played fraud on the court without disclosing the fact that the mother of the plaintiffs is K.Radhadevi instead of K.Ponnamma. According to the learned counsel for the plaintiffs, in fact, there is no dispute between the parties throughout the proceedings, except before the second appellate stage, that the plaintiffs are the children of K.Radhadevi and K.Ponnamma gave birth to the defendant alone. The said contention has been raised at the second **RSA NO. 1081 OF 2018** **13** appellate stage, for the first time. 15. In this context, the relevant aspect to be considered is the nature of relationship between the parties. Undisputedly, the defendant is the elder sister of the plaintiffs and there is no dispute that they are the children of P.Gangadharan. The dispute is with regard to maternity. It is relevant to note that in the written statement, no contention raised to the effect that the plaintiffs are not children born to K.Ponnamma. It is relevant to note that 'Kunjipillai' is the father of K.krishnamma and K.Ponnamma. K.Krishnamma is the elder sister of K.Ponnamma and the plaintiffs and the defendant are the children of K.Ponnamma. During cross-examination, DW1 (defendant) admitted this fact. The relevant portion is as under: "കഞ�പ�ള അമ എന� പറയനത� കഷമയട�യ� . ടപ�നമയട�യ� അമയ�ണ� കഷമ ടപ�നമയട� . ജ�ഷസജ��ദര�യ�ണ� വ�ദ�കള� ഞ�ന� ടപ�നമയട� � ” മകള�ണ. 16. It is discernible that when the defendant herself **RSA NO. 1081 OF 2018** **14** admits the fact that plaintiffs and defendant are the children of K.Ponnamma in clear terms, merely because of the fact that the name of the mother is shown in the passport as late K.Radhadevi by itself could not be held as suppression of any material facts by the plaintiffs and the probability to be inferred is that K.Ponnamma and K.Radhadevi are one and the same person, who was the 1[st] wife of P.Gangadharan. Also, it is difficult to hold that the plaintiffs in any way approached the court with unclean hands by suppressing material facts by playing fraud. In view of the matter, even though fraud vitiates everything, going by the available materials, as discussed herein above, I am of the view that fraud, as contended, could not be found and therefore, the challenge against the impugned verdicts, on the ground of fraud, cannot be found, so as to see that the verdicts under challenge are a nullity, or else the case shall be remanded to the trial court for deciding the said issue afresh. In view of the above, the appeal fails and the same is dismissed accordingly. **RSA NO. 1081 OF 2018** **15** 17. Moreover, in this case, the learned counsel for the defendant/appellant failed to justify any substantial question of law warranting admission of the second appeal. 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 appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.”_ 18. 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, **RSA NO. 1081 OF 2018** **16** 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 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. 19. In the decision in **Nazir Mohamed v. J. Kamala and Others** reported in **[2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168]** , 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_ **RSA NO. 1081 OF 2018** **17** _question of facts, it also has to show that the question is a substantial question of law. In_ _**Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722]** , the Apex Court held that:_ _"After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of the hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence."_ _"It has been noticed time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under S.100 of the Code of Civil Procedure. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is_ **RSA NO. 1081 OF 2018** **18** _neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this section. The substantial question of law has to be distinguished from a substantial question of fact."_ _"If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal."_ _When no substantial question of law is_ **RSA NO. 1081 OF 2018** **19** _formulated, but a Second Appeal is decided by the High Court, the judgment of the High Court is vitiated in law, as held by this Court in Biswanath Ghosh v. Gobinda Ghose, AIR 2014 SC 152. Formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal can not satisfy the mandate of S.100 of the CPC._ 20. 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 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. We may only refer to_ _**Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179]** (three – Judge Bench) wherein this Court observed as follows:_ _12. The phrase “substantial question of law”, as occurring in the amended S.100 is not defined in the Code. The word substantial, as qualifying “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_ **RSA NO. 1081 OF 2018** **20** _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._ 21. 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 question of law” by suffixing the words “of general importance” as has been done in many other provisions such **RSA NO. 1081 OF 2018** **21** 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. 22. At the time of admission, nothing suggested in this matter in the form of substantial question of law to admit the second appeal. Therefore, this second appeal cannot be admitted without formulating substantial question of law and the same is liable to be dismissed. In the result, this appeal is dismissed without being admitted. All interlocutory orders stand dismissed and all interlocutory applications pending in this regular second appeal stand dismissed. **RSA NO. 1081 OF 2018** **22** Registry shall inform this matter to the trial court as well as the appellate court forthwith. **Sd/A. BADHARUDEEN JUDGE** nkr **RSA NO. 1081 OF 2018** **23** ## **APPENDIX OF RSA 1081/2018** **PETITIONER ANNEXURES** **ANNEXURE A1 TRUE COPY OF THE INDIAN PASSPORT COPY HAVING NO. E 3154689 OF THE 1ST PLAINTIFF**