In a second appeal regarding partition of property among legal heirs, the High Court dismissed the appeal without admitting it. The court held that no substantial question of law arose based on the facts presented, particularly concerning property rights and division of shares between the parties.
The regular second appeal stood dismissed without being admitted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 8TH DAY OF NOVEMBER 2023 / 17TH KARTHIKA, 1945
RSA NO. 663 OF 2023
AGAINST THE JUDGMENT AND DECREE DATED 26.02.2022 IN OS 1226/2017 OF II
ADDITIONAL MUNSIFF COURT, ERNAKULAM,
AGAINST THE JUDGMENT AND DECREE DATED 07.06.2023 IN
AS 64/2022 OF VI ADDITIONAL DISTRICT COURT, ERNAKULAM
APPELLANT/APPELLANT/DEFENDANT:
DHANYA OPPATH
AGED 39 YEARS
W/O LATE RAJESH, FLAT NO.7A ROYAL ENCLAVE EAST, ELAMANA JETTY,
AMBILI NAGAR, THRIPUNITHURA, ERNAKULAM DISTRICT, PIN - 682301
BY ADVS.
MEENA.A.
VINOD RAVINDRANATH
K.C.KIRAN
M.R.MINI
M.DEVESH
ANISH ANTONY ANATHAZHATH
THAREEQ ANVER K.
NIVEDHITHA PREM.V
RESPONDENTS /RESPONDENTS/PLAINTIFFS:
1BABY GIRIJA
AGED 71 YEARS
W/O LATE BALAKRISHNAN NAIR, VELLAYATH VEEDU, KOCHUKADAVU,
ERAVATHOOR PO, KUZHUR VIA, THRISSUR, PIN - 680734
2HARI VARAD
AGED 16 YEARS
S/O LATE RAJESH, AGED 16 YEARS (MINOR), RESIDING AT POORNASREE,
CHAITHANYA NAGAR, LANE-5, EROOR (W), THRIPUNITHURA, REPRESENTED BY
HIS MATERNAL GRANDMOTHER SMT. USHA P.R, W/O GOPALAKRISHNAN NAIR,
AGED 61, POORNASREE, CHAITHANYA NAGAR LANE-5, EROOR WEST,
TRIPUNITHURA, ERNAKULAM DISTRICT, PIN - 682306
3VEDASREE
AGED 11 YEARS
S/O LATE RAJESH, AGED 11 YEARS (MINOR), RESIDING AT POORNASREE,
CHAITHANYA NAGAR, LANE-5, EROOR (W), THRIPUNITHURA, REPRESENTED BY
MATERNAL GRANDMOTHER SMT. USHA P.R, W/O GOPALAKRISHNAN NAIR, AGED
61, POORNASREE, CHAITHANYA NAGAR LANE-5, EROOR WEST, TRIPUNITHURA,
ERNAKULAM DISTRICT, PIN - 682306
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08.11.2023, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
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A. BADHARUDEEN J.
=====================
RSA No. 663 of 2023
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J U D G M E N T
Dated this the 08th day of November, 2023
This Regular Second Appeal has been filed under Section
100 r/w Order XLII, Rule 1 of the Civil Procedure Code, 1908 (hereinafter referred to as ‘CPC’ for short). The appellant is aggrieved by the decree and judgment dated 07.06.2023 in O.S. No. 1226/2017 on the files of the Additional Munsiff’s Court-II, Ernakulam as well as decree and judgment in A.S. No. 64/2022 dated 07.06.2023 on the files of the Additional District Court-VI, Ernakulam. The appellant herein is the defendant and the respondents are the plaintiffs in the above suit.
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‘ plaintiffs ’ and ‘ defendant ’ for convenience.
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decree of partition granted by the trial court and confirmed by the appellate court is perfectly in order and in such view of the matter, no substantial question of law arises warranting admission and maintenance of this appeal. Therefore, the same deserves to be dismissed.
“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.”
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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 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.
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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 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
RSA No. 663 of 2023
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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 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
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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
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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 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.
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
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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 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.
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
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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 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.
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r/w Order 42 Rule 1 of the Civil Procedure Code to admit and
adjudicate this appeal. Accordingly, this regular second appeal stands dismissed, without being admitted.
All Interlocutory orders stand vacated and all interlocutory applications pending in this matter stand dismissed.
Registry shall inform this matter to the trial court as well as the appellate court forthwith.
Sd/-
A. BADHARUDEEN JUDGE
RMV
TRUE COPY
P.A.TO JUDGE
3 issues framed by the court
Whether a substantial question of law arises warranting the admission of the second appeal.
Whether the appeal involves a question of law or mere question of facts regarding partition of property.
Whether the non-formulation of a substantial question of law vitiates the judgment of the High Court.
Colour shows how this judgement treated each authority
Nazir Mohamed v. J. KamalaExplained¶42
Nazir Mohamed v. J. Kamala others reported in [ 2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168 ] · Who else cites this
Kondiba Dagadu Kadam v. Savitribai Sopan GujarExplained¶46
Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [ (1999) 3 SCC 722 ] · Who else cites this
Biswanath Ghosh v. Gobinda GhoseExplained¶58
Biswanath Ghosh v. Gobinda Ghose, AIR 2014 SC 152 · Who else cites this
Government of Kerala v. JosephExplained¶59
Government of Kerala v. Joseph, reported in [ 2023 (5) KHC 264 : 2023 (5) KLT 74 SC ]
Santosh Hazari v. Purushottam TiwariExplained¶65
Santosh Hazari v. Purushottam Tiwari, [ 2001 (3) SCC 179 ] · Who else cites this
2 provisions across 1 enactments
DHANYA OPPATH
BABY GIRIJA
HARI VARAD
VEDASREE
A. BADHARUDEEN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court