CIVIL PROCEDURE CODE, 1908 — Section 100 — Second Appeal — Scope of interference — Concurrent findings of fact by Courts below — When High Court can interfere.
High Court, while exercising jurisdiction under Section 100 CPC, cannot re-appreciate evidence or disturb concurrent findings of fact unless the findings are shown to be perverse, based on misreading of evidence or contrary to record. Existence of a substantial question of law is sine qua non for entertaining a second appeal. In the absence of such question of law, the High Court cannot substitute its own opinion for the conclusions reached by the Courts below. (Paras 34, 35)
HINDU LAW — Partition — Suit for partition — Non-joinder of necessary parties — Daughters/coparceners not impleaded — Effect — Suit not maintainable.
In a suit for partition, all persons having a share in the joint family property must be impleaded as parties. After the Hindu Succession (Amendment) Act, 2005, daughters are coparceners and entitled to equal share along with sons. Failure to implead daughters who are coparceners renders the suit bad for non-joinder of necessary parties and such defect is fatal to the suit. (Paras 17, 21, 23)
HINDU LAW — Partition — Suit for partial partition — Omission to include all joint family properties — Maintainability.
Where the plaintiff omits certain joint family properties from the plaint schedule and seeks partition of only some properties, the suit amounts to one for partial partition and is not maintainable unless valid justification is shown. (Paras 30, 31)
HINDU LAW — Joint family property — Property standing in the name of female member — Presumption — Burden of proof.
Where properties stand in the name of a female member of the family, there is a presumption that they are her self-acquired properties. The burden lies on the person asserting that such properties are joint family properties to establish that they were purchased from the joint family nucleus. Mere pleading without cogent evidence is insufficient to rebut the presumption. (Paras 24–27)
EVIDENCE ACT, 1872 — Unregistered partition deed — Admissibility.
An unregistered partition deed cannot be received in evidence to prove the terms of partition. However, it may be looked into for collateral purposes such as proving severance of status or nature of possession, but not for enforcing rights arising out of the partition itself. (Para 32)
HINDU LAW — Benami plea in family property — Requirement of proof.
Where property stands in the name of the mother, the plaintiff alleging that the father purchased the property in her name from joint family funds must establish the existence of sufficient joint family nucleus and the source of funds. In absence of such evidence, the property must be treated as self-acquired property of the person in whose name it stands. (Paras 25–28)
SECOND APPEAL — Dismissal at admission stage.
Where the Courts below, upon appreciation of oral and documentary evidence, recorded concurrent findings that (i) certain properties are self-acquired properties of the mother, (ii) suit is bad for non-joinder of daughters who are coparceners, and (iii) the suit is for partial partition, and the appellant failed to raise any substantial question of law, the second appeal is liable to be dismissed at the admission stage. (Paras 33–36)
Result:
Second Appeal dismissed. No costs. Pending miscellaneous applications closed. (Para 36)
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