Summary
The Supreme Court recalled its earlier judgment dated 03.01.2024 for want of service on the respondents, reheard the appeal and allowed it. The Madras High Court in second appeal had exceeded the scope of Section 100 CPC by reversing concurrent findings that an oral partition and a will were not proved, relying only on two sale deeds and a mortgage deed relating to different land.
Issues
- Whether the High Court, in a second appeal under Section 100 CPC, could reverse the concurrent findings of the trial court and first appellate court that the pleaded oral partition was not proved.
- Whether sale deeds and a mortgage deed that merely mention boundaries, and relate to different parcels of land, could establish an oral partition of the suit survey number.
- Whether the plaintiffs' claim founded on a will not proved in accordance with law could sustain a decree.
Provisions considered
- Section 100, Code of Civil Procedure, 1908The High Court's judgment did not conform to the scope of a second appeal: it reversed concurrent findings of fact by relying on three documents relating to different parcels of land, ignored the oral and documentary evidence considered by the courts below, did not deal with their other findings, and recorded a perverse finding that an oral partition had taken place. (¶¶ 10, 12, 13, 14)
- Section 68, Indian Evidence Act, 1872The trial court found that the plaintiffs failed to prove the will dated 16.07.2003 in accordance with Section 68 (proof of execution of a document required by law to be attested, by calling at least one attesting witness); the first appellate court affirmed, and the Supreme Court accepted that the will, which was the basis of the claim, had not been proved in accordance with law. (¶¶ 6, 12)
- Section 63, Indian Succession Act (referred to in the judgment as the Indian Succession Act, 1956)Cited by the trial court, along with Section 68 of the Evidence Act, as the statutory requirement for proving execution of the will which the plaintiffs failed to satisfy; this finding stood undisturbed. (¶¶ 6, 12)
Held
- A High Court in second appeal cannot reverse concurrent findings of fact on an oral partition by relying solely on sale deeds and a mortgage deed that relate to different parcels of land and were considered only because they mention boundaries; such a finding is perverse and the judgment falls outside the scope of Section 100 CPC. (¶¶ 12, 13, 14)
- Where the suit property was never recorded in the name of the plaintiffs or their predecessor, the pattas on record showed that the survey number was allotted jointly to plaintiff no. 1 and eight others without partition (as admitted in the plaintiffs' deposition), and the will relied on was not proved in accordance with law, the concurrent dismissal of the suit was correct and had to be restored. (¶¶ 12, 13, 15)
- A judgment passed in the appeal without service on the respondents was recalled on their application (recall order, separately numbered paragraphs 1 to 3) and the appeal was taken on board and reheard.
Result
Miscellaneous application allowed; judgment dated 03.01.2024 recalled; appeal reheard and allowed; High Court judgment in Second Appeal No. 351/2021 set aside; judgments of the trial court and first appellate court dismissing the suit confirmed; no order as to costs.