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What are the powers of Court while acting under Section 96 of the Code of Civil
Procedure, 1908 (CPC) or in other words powers of first Appellate Court deciding
an appeal on issue relating to partition of shares in property was the question
before the Supreme Court.
It was held that in a suit filed by a co-sharerer, coparcener, co-owner or joint
owner or as the case may be, for partition and separate possession of his/her s
hare qua others, it is necessary for the Court to examine, in the first instance
:
Nature and character of the properties in suit such as who was the original o
wner of the suit properties, how and by which source he/she acquired such proper
ties, whether it was his/her self-acquired property or ancestral property, or jo
int property or coparcenery property in his/her hand and, if so, who are/were th
e coparceners or joint owners with him/her as the case may be.
How the devolution of his/her interest in the property took place consequent
upon his/her death on surviving members of the family and in what proportion, wh
ether he/she died intestate or left behind any testamentary succession in favour
of any family member or outsider to inherit his/her share in properties and if
so, its effect.
Whether the properties in suit are capable of being partitioned effectively a
nd if so, in what manner?
Whether all properties are included in the suit and all co-sharerers, coparce
ners, co-owners or joint-owners, as the case may be, are made parties to the sui
t?
The above are material issues for proper disposal of the partition suit and same
have to be answered by the Court on the basis of family tree, inter se relation
s of family members, evidence adduced and the principles of law applicable to th
e case.
The Court is required to go through the merits of the claim of the respective pa
rties in proper perspective and then to record a finding regarding extent of sha
res received by each coparcener/co-owner keeping in view the nature of propertie
s such as whether it was self acquired property or ancestral property and, if so
, in whose hands, its source of acquisition by such person, the manner of devolu
tion on the legal representatives of such person etc., after due appreciation of
evidence keeping as per the provisions of Hindu Succession Act and other relate
d laws applicable to the issues arising in the case.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELALTE JURISDICTION
CIVIL APPEAL No. 324 OF 2015
(ARISING OUT OF SLP(C) No.14024/2013)
Shasidhar & Others
Vs
Smt. Ashwini Uma Mathad & Anr.
Abhay Manohar Sapre, J.
Dated;January 13, 2015.
12. This appeal is filed by the defendants against
the judgment and order dated 06.12.2012 passed
Page 1
by the Division Bench of the High Court of
Karnataka Circuit Bench at Dharwad in Regular
First Appeal No. 3052 of 2010, which in turn arises
out of the judgment and decree dated 10.02.2010
passed by the Ist Additional Civil Judge (Sr.
Division) at Hubli in Original Suit No. 73 of 2004.
3.
In
order
to
appreciate
the
short
issue
involved in this appeal, it is necessary to state a
few relevant facts:
4.
One Basavantayya Revanayya Mathad was
married to Shantakka Mathad (defendant no. 2).
Out of this wedlock, three children were born - one
son
Shashidhar
(defendant
no.1)
and
two
daughters - Rajeshwari (Died in 2003) and Gayatri
(Died
in
2004)
defendant
no.3.
Shashidhar was married to Uma and out of this
wedlock, three daughters were born - Ashwini
(plaintiff no. 1), Nivedita (plaintiff no.2) and Puja
who was given in adoption to Uma's sister.
2
Page 2
Shashidhar divorced to Uma and re-married to
Manjula (defendant no.4). Out of this second
claim.
suit
the Code ).
V.R.
Code.
15. We consider it apposite to refer to some of
the decisions.
16. In
Santosh Hazari vs. Purushottam Tiwari
(Deceased) by L.Rs. (2001) 3 SCC 179, this Court
9
Page 9
held (at pages 188-189) as under:
.........the appellate court has jurisdiction
to reverse or affirm the findings of the
trial court. First appeal is a valuable right
of the parties and unless restricted by
law, the whole case is therein open for
rehearing both on questions of fact and
law. The judgment of the appellate court
must, therefore, reflect its conscious
application of mind and record findings
supported by reasons, on all the issues
arising along with the contentions put
forth, and pressed by the parties for
decision of the appellate court......while
reversing a finding of fact the appellate
court must come into close quarters with
the reasoning assigned by the trial court
and then assign its own reasons for
arriving at a different finding. This would
satisfy the court hearing a further appeal
that the first appellate court had
discharged
the
duty
expected
of
it............
17. The above view has been followed by a threeJudge Bench decision of this Court in Madhukar &
Ors. v. Sangram & Ors.,(2001) 4 SCC 756,
wherein it was reiterated that sitting as a court of
first appeal, it is the duty of the High Court to deal
with all the issues and the evidence led by the
parties before recording its findings.
18. In H.K.N. Swami v. Irshad Basith,(2005)
10
Page 10
10 SCC 243, this Court (at p. 244) stated as under:
3. The first appeal has to be decided
on facts as well as on law. In the first
appeal parties have the right to be heard
both on questions of law as also on facts
and the first appellate court is required to
address itself to all issues and decide the
case by giving reasons. Unfortunately,
the High Court, in the present case has
not recorded any finding either on facts
or on law. Sitting as the first appellate
court it was the duty of the High Court to
deal with all the issues and the evidence
led by the parties before recording the
finding regarding title.
Our
careful
perusal of the judgment in the regular
first appeal shows that it falls short of
considerations which are expected from
the court of first appeal. Accordingly,
without going into the merits of the claim
of both parties, we set aside the
impugned judgment and decree of the
High Court and remand the regular first
appeal to the High Court for its fresh
disposal in accordance with law.
21. The aforementioned cases were relied upon
by this Court while reiterating the same principle
in State Bank of India & Anr. vs. Emmsons
International Ltd. & Anr., (2011) 12 SCC 174.
This Court has recently taken the same view on
similar
facts
arising
in
Vinod
Kumar
vs.
Gangadhar, 2014(12) Scale 171.
22. Applying the aforesaid principle to the facts
of the case, we find that the High Court while
deciding the first appeal failed to keep the
aforesaid principle in consideration and rendered
the impugned decision. Indeed, it is clear by mere
13
Page 13
reading of the impugned order quoted below:
The appellants are defendants in the
suit. The plaintiffs are the respondents.
The respondents are the children of 1 st
appellant born in the wedlock between 1 st
appellant and his divorced wife Smt. Uma
Mathad. It is admitted fact that the 1 st
appellant has married the 2nd respondent
after the divorce and in the wedlock he
has two children and they are appellant
Nos.3 and 4. The suit properties at item
Nos.1 and 4 are admitted to be the
ancestral properties. Item Nos.2 and 3
are the properties belonging to the
mother of the 1st appellant and after her
demise
the
said
properties
are
bequeathed to 1st appellant. Therefore,
the said properties acquired the status of
self-acquired properties.
The respondents filed a suit for partition.
The parties are governed by Bombay
School of Hindu Law.
In view of the
provisions
of
Hindu
Succession
Amendment Act of 2005, the respondent
Nos. 1 and 2 are entitled to a share as
co-parceners in the ancestral properties.
The wife who is the second appellant also
would be entitled to a share in the
partition. In that view, the appellant Nos.
1 and 2 and respondent Nos.1 and 2 will
have 1/4th share each in item Nos.1 and 4
of the suit properties.
The learned counsel for the appellants
submitted that the appellants 2 to 4
would not claim any independent share in
item Nos.1 and 4 of the suit properties,
but they would take share in the 1/4 th
share allotted to their father.
In view of the said submissions, the
appellant Nos.1 and 2 and respondent
Nos.1 and 2 would be entitled to 1/4 th
14
Page 14
share in item Nos.1 and 4 of the suit
properties.
Accordingly, a preliminary decree to be
drawn
and
the
appeal
and
cross
objections are disposed of in the terms
indicated above.
23. In our considered opinion, the High Court did
not deal with any of the submissions urged by the
appellants and/or respondents nor it took note of
the grounds taken by the appellants in grounds of
appeal nor took note of cross objections filed by
plaintiffs under Order XLI Rule 22 of the Code and
nor made any attempt to appreciate the evidence
adduced by the parties in the light of the settled
legal principles and decided case laws applicable
to the issues arising in the case with a view to find
out as to whether the judgment of the trial Court
can be sustained or not and if so, how, and if not,
why?
24. We may consider it apposite to state being a
well settled principle of law that in a suit filed by a
co-sharerer, coparcener, co-owner or joint owner,
15
Page 15
as the case may be, for partition and separate
possession of his/her share qua others, it is
necessary for the Court to examine, in the first
instance,
the
nature
and
character
of
the
properties in suit such as who was the original
owner of the suit properties, how and by which
source he/she acquired such properties, whether it
was his/her self-acquired property or ancestral
property, or joint property or coparcenery property
in his/her hand and, if so, who are/were the
coparceners or joint owners with him/her as the
case may be.
his/her
Secondly, how the devolution of
interest
consequent
upon
in
the property
his/her death
took
on
place
surviving
members of the family and in what proportion,
whether he/she died intestate or left behind any
testamentary succession in favour of any family
member or outsider to inherit his/her share in
properties and if so, its effect.
Thirdly whether
16
Page 16
Hindu Law
Chapter
XVI
Partition
and
Reunion
17
Page 17
to
the
appellants
whose
valuable
right
to
prosecute the first appeal on facts and law was
adversely affected which, in turn, deprived them
of a hearing in the appeal in accordance with law.
26. We are not inclined to accept the submission
of the learned counsel for the respondents when
he urged that the impugned judgment is based on
concession given by the appellants and hence no
discussion on merits on any of the issues was
called for. In the first place, the appellants did not
make any application for settlement of the dispute
in relation to any of the suit property in writing
and secondly, there is nothing on record to show
that the appellants wanted to give up their claim
or/and wished to settle the matter in relation to
some properties. In the light of this, we are of the
view that the High Court ought to have gone into
the merits of the claim of the respective parties in
its proper perspective and then recorded a finding
18
Page 18
regarding extent of shares received by each
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