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CIVIL APPEAL No. 324 OF 2015 (ARISING OUT OF SLP(C) No.14024/2013) Shasidhar & Others Appellant(s) VERSUS Smt. Ashwini Uma Mathad & Anr. Respondent(s)

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 Appellant(s)
VERSUS
Smt. Ashwini Uma Mathad & Anr. Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is filed by the defendants against the judgment and order
dated 06.12.2012 passed 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. Shashidhar divorced to Uma and re-married to Manjula
(defendant no.4). Out of this second marriage, two daughters were born –
Aishwarya (defendant no.5) and Vaishnavi (defendant no.6).
5. Basavantayya had extensive properties. On 21.07.1991, Basavantayya
died leaving behind him the aforementioned members of his family. On his
death and also on the death of his one unmarried daughter Rajeshwari,
disputes arose between his legal representatives regarding their respective
shares in the properties and also regarding ownership of some members of
his family in relation to certain properties standing in the name of
members of his family. The disputes unfortunately could not be settled
amicably which led to filing of civil suit by the daughters of defendant
No.1 from his first wife-Uma (deceased) against the other members of the
family, i.e., their father, step-mother and step-sisters for determination
of their respective shares, partition by meets and bounds and separate
possession in the suit properties held and possessed by the members of the
family of late Basavantayya . The defendants contested the civil suit by
denying the plaintiffs’ claim. The trial Court framed issues. Parties
adduced evidence.
6. By judgment and decree dated 10.02.2010, the trial Court partly
decreed the plaintiffs’ suit and accordingly passed preliminary decree in
relation to the suit properties. It was held that plaintiffs are entitled
for partition and separate possession of their 1/6th share each in some
properties specified in the decree whereas 1/10th share each in other suit
properties as specified in the decree.
7. Dissatisfied with the preliminary decree, the defendants filed first
appeal being R.F.A. No. 3052 of 2010 and the plaintiffs filed cross
objections being R.F.A. CROB No. 103 of 2011 under Order XLI Rule 22 of the
Civil Procedure Code, 1908 (in short “the Code”). This is how the entire
preliminary decree became the subject-matter of first appeal filed by the
defendants.
8. By impugned judgment and order dated 06.12.2012, the Division Bench
of the High Court disposed of the appeal and cross objections and modified
the judgment and decree of the trial court to the detriment of the
defendants. It is against this judgment and order, the defendants have
filed this appeal by way of special leave.
9. Learned Counsel for the appellants, while assailing the legality and
correctness of the impugned judgment, contended that the High Court without
adverting to all the factual details and various grounds raised in the
first appeal, disposed of the same in a cryptic manner. According to
learned counsel, the High Court neither dealt with any issue nor
appreciated the ocular and documentary evidence adduced by the parties nor
examined the legal principles applicable to the issues arising in the case
and nor rendered its findings on any contentious issues though urged by the
appellants herein in support of the appeal. Learned counsel further
contended that it was the duty of the High Court being the first appellate
Court exercising its appellate power under Section 96 read with Order XLI
Rule 31 of the Code to have dealt with the submissions, which were urged
by the appellants after appreciating the entire evidence on facts,
independent of the findings recorded by the trial Court and should have
come to its own conclusion keeping in view the legal principles governing
the issues and since it was not done by the High Court, the impugned
judgment is not legally sustainable. Lastly, the learned counsel urged that
in case his arguments are accepted, the remand of the case to the High
Court to decide the appeal on merits afresh is inevitable.
10. In contra, learned counsel for the respondents (plaintiffs)
vehemently urged that no interference in the impugned judgment is called
for because firstly, the first appellate Court rendered the judgment on the
appellants’ concession and hence, it was not necessary for the High Court
to record any elaborate finding on any of the issues; secondly, the suit is
pending since two decades with no end and lastly, the determination of the
shares of the suit properties made by the High Court, if examined on merits
by this Court, would be found to be in accordance with law.
11. Having heard learned counsel for the parties and on perusal of the
record of the case and examining the issue arising in this appeal, we find
force in the submissions of the learned counsel for the appellants.
12. The powers of the first appellate Court, while deciding the first
appeal under Section 96 read with Order XLI Rule 31 of the Code, are indeed
well defined by various judicial pronouncements of this Court and are,
therefore, no more res integra.
13. As far back in 1969, the learned Judge – V.R. Krishna Iyer, J (as His
Lordship then was the judge of Kerala High Court) while deciding the first
appeal under Section 96 of the CPC in Kurian Chacko vs. Varkey Ouseph, AIR
1969 Kerala 316, reminded the first appellate Court of its duty as to how
the first appeal under Section 96 should be decided. In his distinctive
style of writing and subtle power of expression, the learned judge held as
under:
“1. The plaintiff, unsuccessful in two Courts, has come up here aggrieved
by the dismissal of his suit which was one for declaration of title and
recovery of possession. The defendant disputed the plaintiff’s title to the
property as also his possession and claimed both in himself. The learned
Munsif, who tried the suit, recorded findings against the plaintiff both on
title and possession. But, in appeal, the learned Subordinate Judge
disposed of the whole matter glibly and briefly, in a few sentences.
2. An appellate court is the final Court of fact ordinarily and therefore a
litigant is entitled to a full and fair and independent consideration of
the evidence at the appellate stage. Anything less than this is unjust to
him and I have no doubt that in the present case the learned Subordinate
Judge has fallen far short of what is expected of him as an appellate
Court. Although there is furious contest between the counsel for the
appellant and for the respondent, they appear to agree with me in this
observation…..”
(Emphasis supplied)

14. This Court in a number of cases while affirming and then reiterating
the aforesaid principle has laid down the scope and powers of the first
appellate Court under Section 96 of the 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 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 three-Judge 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 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.”

19. Again in Jagannath v. Arulappa & Anr., (2005) 12 SCC 303, while
considering the scope of Section 96 of the Code this Court (at pp. 303-04)
observed as follows:
“2. A court of first appeal can reappreciate the entire evidence and come
to a different conclusion………”

20. Again in B.V Nagesh & Anr. vs. H.V. Sreenivasa Murthy, (2010) 13 SCC
530, this Court taking note of all the earlier judgments of this Court
reiterated the aforementioned principle with these words:
“3. How the regular first appeal is to be disposed of by the appellate
court/High Court has been considered by this Court in various decisions.
Order 41 CPC deals with appeals from original decrees. Among the various
rules, Rule 31 mandates that the judgment of the appellate court shall
state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to
which the appellant is entitled.
4. The appellate court has jurisdiction to reverse or affirm the findings
of the trial court. The 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.
Sitting as a court of first appeal, it was the duty of the High Court to
deal with all the issues and the evidence led by the parties before
recording its findings. The first appeal is a valuable right and the
parties have a right to be heard both on questions of law and on facts and
the judgment in the first appeal must address itself to all the issues of
law and fact and decide it by giving reasons in support of the findings.
(Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 at p. 188,
para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 at p. 758, para 5.)
5. In view of the above salutary principles, on going through the impugned
judgment, we feel that the High Court has failed to discharge the
obligation placed on it as a first appellate court. In our view, the
judgment under appeal is cryptic and none of the relevant aspects have even
been noticed. The appeal has been decided in an unsatisfactory manner. 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 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 1st appellant born in the
wedlock between 1st appellant and his divorced wife Smt. Uma Mathad. It is
admitted fact that the 1st 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 1/4th 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 1/4th 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, 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. Secondly, 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, 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 the properties in suit are capable of being
partitioned effectively and if so, in what manner? Lastly, whether all
properties are included in the suit and all co-sharerers, coparceners, co-
owners or joint-owners, as the case may be, are made parties to the suit?
These issues, being material for proper disposal of the partition suit,
have to be answered by the Court on the basis of family tree, inter se
relations of family members, evidence adduced and the principles of law
applicable to the case. (see “Hindu Law” by Mulla 17th Edition, Chapter XVI
Partition and Reunion – Mitakshara Law pages 493-547).
25. Being the first appellate Court, it was, therefore, the duty of the
High Court to decide the first appeal keeping in view the scope and powers
conferred on it under Section 96 read with Order XLI Rule 31 of the Code
mentioned above. It was unfortunately not done, thereby, causing prejudice
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 regarding extent of shares received by each
coparcener/co-owner keeping in view the nature of properties 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
devolution on the legal representatives of such person etc. As observed
supra, these findings were required to be recorded after appreciating the
evidence keeping in view the provisions of the Hindu Succession Act and
other related laws applicable to the issues arising in the case.
27. It is for these reasons, we are unable to uphold the impugned
judgment of the High Court.
28. The appeal thus succeeds and is, accordingly, allowed. The impugned
judgment is set aside and the case is remanded to the High Court for
deciding the first appeal and cross-objections afresh, keeping in view the
principle of law laid down by this Court as mentioned above.
29. However, we make it clear that we have not applied our mind to the
merits of the issues involved in the case and hence, the High Court would
decide the appeal strictly in accordance with law on merits uninfluenced by
any of our observations, which we have refrained from making on merits.
Needless to observe, the High Court will do so after affording an
opportunity of hearing to all the parties.
30. Since the case is quite old, we request the High Court to expedite
its hearing and dispose of the case preferably within six months.

…………………………………………………….J.
[FAKKIR MOHAMED IBRAHIM KALIFULLA]
………………………………………………………J.
[ABHAY MANOHAR SAPRE]
New Delhi;
January 13, 2015.
———————–
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