IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 3048 OF 2017
(ARISING OUT OF SLP (C) No.27887/2010)
S/o Sk. Noor Mohd. ….Appellant(s)
w/o Sk. Afzal & Ors. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal is filed against the final judgment and order dated
09.02.2010 passed by the High Court of Judicature at Bombay Bench at
Aurangabad in Second Appeal No. 875 of 2009 whereby the second appeal filed
by the appellant herein was dismissed at the admission stage.
3) We herein set out the facts, in brief, to appreciate the issue
involved in this appeal.
4) The appellant herein is the first defendant and respondent No. 1
herein is the plaintiff whereas respondent Nos. 2 to 8 herein are defendant
Nos. 2 to 8 in the suit.
5) The dispute in the appeal arises between the members (brother and
sister) of one Muslim family. It relates to landed and house properties
situated at village Satara, District Aurangabad (Maharashtra) as detailed
in Para 1 of the plaint (hereinafter referred to as the “suit property”).
6) Respondent No. 1 is the real sister of the appellant. She filed a
civil suit against the appellant and respondent Nos. 2 to 8 (proforma
defendants) in the Court of IInd Jt. Civil Judge (J.D.) at Aurangabad being
Civil Suit No. 120 of 1994 and prayed therein the relief of partition by
meets and bounds of the suit property and, in consequence, also claimed her
separate possession in the suit property qua the appellant.
7) According to respondent No. 1 (plaintiff), the suit property was
owned by their late father Sheikh Noor Mohd. and on his death, respondent
No. 1, by virtue of inheritance and being one of his legal heirs, got share
in the suit property as per the shares defined in the Mohammedan Law.
Respondent No.1 alleged that since her father died intestate leaving behind
respondent No.1 and the appellant being sister and brother, she is entitled
to claim partition of the suit property and its separate possession as
tenant in common as against her brother (appellant herein).
8) The appellant denied the case set up by respondent No.1 and
contended, inter alia, in his written statement that the suit property is
his self-acquired property because he purchased the same by his own efforts
by a registered sale deed (Ex.P-1) and hence neither his late father had
any right, title or interest in the said property and, in consequence
thereof, nor respondent No.1 could inherit any right, title or interest in
the suit property through her father as his legal heir. The appellant also
set up a title by alleging his adverse possession over the suit property to
the exclusion of all including respondent No.1.
9) The Trial Court framed issues and parties adduced their evidence. By
a judgment/decree dated 24.12.1999, the Trial Court dismissed the suit
filed by respondent No.1. Respondent No.1 (plaintiff), felt aggrieved,
filed first appeal being R.C.A. No. 59 of 2000 before the District Judge,
Aurangabad. By a judgment/decree dated 30.11.2001, the District Judge
allowed the appeal and decreed the plaintiff’s suit and accordingly passed
a decree for partition and separate possession of the suit property in
favour of respondent No.1.
10) Felt aggrieved, appellant (defendant No. 1) filed second appeal being
S.A. No.875 of 2009 before the High Court. By impugned order, the High
Court dismissed the second appeal in limine observing that the appeal does
not involve any substantial question of law.
11) Felt aggrieved, defendant No.1 has filed this appeal by way of
special leave before this Court.
12) Heard Mr. Shyam Divan, learned senior counsel for the appellant and
Mr. Makarand D. Adkar, learned counsel for the respondents.
13) Having heard the learned counsel for the parties and on perusal of
the record of the case, we are inclined to allow the appeal and remand the
case to the High Court for deciding the second appeal afresh on merits in
accordance with law.
14) Learned Single Judge while dismissing the appeal passed the following
“1) The appeal is filed mainly against the findings recorded by the first
appeal Court that the respondent-plaintiff was entitled to 1/3rd share in
the suit property being the daughter of Noor Mohammed who is also the
father of the appellant. The fact that Noor Mohammed, the father of the
parties held the suit properties at the time of his death is not in dispute
so also Noor Mohammed died without leaving a testament is also an admitted
fact. Thus, the appellant and the respondent being the brother and sister
would take the property, left behind by their father as per provisions of
the Mohammedan Law. The appellant, thus would get two parts of the suit
property, whereas the third part would go to the respondent no.1-original
2) The findings recorded by the learned Judge of the first appeal Court
are cogent. No interference in them is called for. There is no
substantial question of law, arising in this appeal. The second appeal
stands dismissed. Consequently, Civil Application Nos. 4980 of 2005 and
9547 of 2003 also stand dismissed.”
15) As observed supra, we do not agree with the reasoning and the
conclusion arrived at by the High Court in the impugned order. In our
considered view, the appeal did involve the substantial questions of law
and, therefore, the High Court should have admitted the appeal by first
framing substantial questions of law arising in the case and then after
giving notice to the respondents for its final hearing as provided under
Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to
as “the Code”) decided the appeal on merits.
16) As a matter of fact, in our view, having regard to the nature of
controversy and the issues involved regarding ownership based on
interpretation of documents (exhibits), the questions did constitute
substantial questions of law.
17) The questions as to whether the suit property is self-acquired
property of late Sk. Noor Mohammad and, if so, whether respondent No.1 was
entitled to inherit the same as his legal representative in accordance with
the shares defined in the Mohammedan Law and secondly, whether the suit
property is self-acquired property of the appellant (defendant No.1) on the
strength of documents filed by him and, if so, whether it has resulted in
excluding respondent No.1 to claim any share in such property as an heir
of Sk. Noor Mohammad, was required to be decided by framing substantial
questions of law in the light of proved documents filed by defendant No.1
because it was his case that the suit property was his self-acquired
property. The High Court unfortunately did not examine any document for
deciding the ownership issue in relation to the suit property.
18) When the Court is called upon to interpret the documents and examine
its effect, it involves questions of law. It is, therefore, obligatory
upon the High Court to decide such questions on merits. In this case, the
High Court could do so after framing substantial questions of law as
required under Section 100 of the Code. It was, however, not done.
19) The High Court thus, in our view, committed jurisdictional error when
it dismissed the second appeal in limine. We cannot countenance the
approach of the High Court.
20) In view of foregoing discussion, the appeal succeeds and is allowed.
The impugned order is set aside. The case is now remanded to the High Court
for deciding the appeal on merits in accordance with law.
21) We, however, request the High Court to admit the second appeal, frame
appropriate substantial questions of law as required under Section 100 of
the Code, keeping in view the pleadings, findings of the two courts below
and the documents (exhibits). Needless to say, the questions to be framed
should be specific with reference to exhibits and the findings of the two
22) Before parting, we consider it proper to mention here that we have
not expressed any opinion on the merits of the controversy and confined our
inquiry only to examine whether the second appeal involved any substantial
question of law within the meaning of Section 100 of the Code? 23) We have
noticed that the dispute is between the members of one family. It would,
therefore, be in the interest of family that efforts should be made to
settle the dispute amicably. Indeed, it was also stated by learned counsel
for the parties before us by giving some offer to each other. We grant
this liberty to renew their respective offers before the High Court and
explore the possibility for amicable settlement before finally hearing the
appeal preferably within six months.
24) Record of the case, if requisitioned, be sent back to the High Court
forthwith by the Registry.
[ABHAY MANOHAR SAPRE] New Delhi;
February 20, 2017