HARDEVINDER SINGHversusPARAMJIT SINGH & OTHERS

                     [2013] 1 S.C.R. 903


                    HARDEVINDER SINGH                              A
                                v.
                PARAMJIT SINGH & OTHERS
                (Civil Appeal No. 102 of 2013)

                      JANUARY 7, 2013
                                                                   B
    [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

        Code of Civil Procedure, 1908 - ss. 96 and 100 -
  Second appeal - Person aggrieved - Legal injury - Plaintiff
  claiming to be a co-sharer in respect of the property in C
  question filed suit challenging a Will- Defendant no.5, brother
  of the plaintiff, supported his case - In appeal at the instance
  of defendant nos. 1 to 4, the plaintiff entered into a settlement
  with the contesting defendants who had preferred the appeal
  and the appellate court set aside the decree passed by the D
  trial court - Second appeal filed by defendant no.5 held not
  maintainable by the High Court - Held: If a person is
  prejudicially or adversely affected by the decree, he can
  maintain an appeal - On facts, the decree prejudicially affects
  the defendant No.5 and, therefore, he could have preferred E
  an appeal - The grievance pertained to the nature and
  character of the property and the trial court had decreed the
  suit - He stood benefited by such a decree - The same
  having been unsettled, the benefit accrued in his favour
  became extinct - He had suffered a legal injury by virtue of F
  the overturning of the decree - His legal right was affected -
  Indubitably, appellant was a person aggrieved and was
  prejudicially affected by the decree and, hence, the appeal
  could not have been thrown overboard treating as not
  maintainable - Matter remitted to High Court.
                                                                    G
        The plaintiff claiming to be a co-sharer in respect of
. the property in question filed suit challenging a Will. The
  defendant no.5, the brother of the plaintiff, supported his

                              903                                  H
    904      SUPREME COURT REPORTS             [2013] 1 S.C.R.

A case. In an appeal at the instance of defendant nos. 1 to
  4, the plaintiff entered into a settlement with the
  contesting defendants who had preferred the appeal and
  the appellate court set aside the judgment and decree
  passed by the trial court and dismissed the suit. The
B second appeal filed by defendant no.5 was held not
  maintainable by the High Court, and therefore the present
  appeal.

          Allowing the appeal, the Court

C     HELD: 1.1. Sections 96 and 100 of the Code of Civil
  Procedure, 1908 make provisions for preferring an appeal
  from any original appeal or from a decree in an appeal
  respectively. The aforesaid provisions do not enumerate
  the categories of persons who can file an appeal. If a
D judgment and decree prejudicially affects a person,
  needless to emphasize, he can prefer an appeal. [Para 13]
  [911-C-D]

       1.2. If a person is prejudicially or adversely affected
E by the decree, he can maintain an appeal. In the present
  case, the plaintiff claiming to be a co-sharer filed the suit
  and challenged the will. The defendant No.5, the brother
  of the plaintiff, supported his case. In an appeal at the
  instance of the defendant Nos. 1 to 4, the judgment and
  decree was overturned. The plaintiff entered into a
F settlement with the contesting defendants who had
  preferred the appeal. Such a decree prejudicially affects
  the defendant No. 5 and, therefore, he could have
  preferred an appeal. The grievance pertained to the
  nature and character of the property and the trial court
G had decreed the suit. He stood benefited by such a
  decree. The same having been unsettled, the benefit
  accrued in his favour became extinct. He had suffered a
  legal injury by virtue of the over turning of the decree. His
  legal right has been affected. [Para 20] [914-E-H; 915-A]
H
  HARDEVINDER SINGH v. PARAMJIT SINGH & ORS. 905

      1.3. Indubitably, the appellant was a person A
. aggrieved and was prejudicially affected by the decree
  and, hence, the appeal could not have been thrown
  overboard treating as not maintainable. The judgment of
  the High Court is set aside, the second appeal preferred
  by the appellant is treated to be maintainable in law and B
  the matter is remitted to the High Court. [Paras 21, 22)
  [915-E-F]

      Smt. Jatan Kanwar Go/cha v. Mis. Go/cha Properties
 Private Ltd. AIR 1971 SC 374: 1971 (3) SCR 247; State of C
 Punjab v. Amar Singh and Another AIR 1974 SC 994: 1974
 (2) SCC 70; Baldev Singh v. Surinder Mohan Sharma and
 Others (2003) 1 SCC 34: 2002 (4) Suppl. SCR 43; Sahadu
 Gangaram Bhagade v. Special Deputy Collector,
 Ahmednagar and Another (1970) 1 SCC 685: 1971 (1) SCR
 146; Banarsi and Others v. Ram Phal AIR 2003 SC 1989: D
 2003 (2) SCR 22 and Phoo/chand v. Gopal Lal AIR (1967)
 SC 1470: 1967 SCR 153 - relied on.

    Ayaaubkhan Noorkhan Pathan v. The State of
 Maharashtra & ors. 2012 (11) SCALE 39 - held applicable. E

     Smt. Ganga Bai v. Vijay Kumar and Others AIR 1974 SC
 1126: 1974 (3) SCR 882 - referred to.

                     Case Law Reference:
                                                            F
   1974 (3) SCR 882         referred to    Para 6, 9
   2003 (2) SCR 22          relied on      Para 6, 18, 19
   1971 (3) SCR 247         relied on      Para 13
   1974 (2) sec 10          relied on      Para 14          G

   (2003) 1 sec 34          relied on      Para 15
   2002 (4) Suppl. SCR 43 relied on        Para 17
   1971 (1) SCR 146         relied on-     Para 20          H
    906       SUPREME COURT REPORTS                  [2013] 1 S.C.R.

A      1967 SCR 153                 relied on        Para 19
       2012 (11) SCALE 39           held applicable       Para 20

         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 102
    of 2013.
B
        From the Judgment & Order dated 28. 7.2011 of the High
    Court of Punjab & Haryana at Chandigarh in RSA No. 85 of
    2007.
C       Vipin Gogia, Jaspreet Gogia, Brijendra Singh for the
    Appellant.

        K.K. Mohan, Anand Mishra, Amrender K. Singh, Dr. Vipin
    Gupta, for the Respondents.

D         The Judgment of the Court was delivered by

          DIPAK MISRA, J. 1. Leave granted.

       2. One Sarabjit Singh filed Civil Suit No. 29 of 1995 for
  possession of the suit land to the extent of his share treating
E the will alleged to have been executed in favour of the defendant
  Nos. 1 to 4 as null and void with the consequential prayer for
  restraining them from alienating the suit property in any manner.
  It was set forth in the plaint that the suit land in the hands of his
  father, Shiv Singh, was ancestral coparcenary and Joint Hindu
F Family property and he, along with his brothers, the defendant
  Nos. 5 and 6, constituted a Joint Hindu Family with the father
  and mother. It was alleged that the defendant Nos. 1 to 4, on
  the basis of a forged will, forcibly took possession of the land.
  It was set forth that by virtue of the will, the plaintiff and the
G defendant Nos. 5 and 6, the co-owners, have been deprived
  of the legal rights in the suit land. It was the case of the plaintiff
  that the will was not executed voluntarily by his father, Shiv
  Singh, and it was a forged one and, therefore, no right could
  flow in favour of the said defendants.
H
 HARDEVINDER SINGH v. PARAMJIT SINGH & ORS. 907
              [DIPAK MISRA, J.]
     3. The defendant Nos. 1 to 4 entered contest and supported        A
the execution of the will on the basis that it was voluntary and
without any pressure or coercion. That apart, it was contended
that the rights of defendant No. 5 had not been affected as a
registered gift was executed on 31.3.1980 by late Shiv Singh.
The claim of the plaintiff was strongly disputed on the ground         B
that the will had already been worked out since the revenue
records had been corrected. The defendant No. 6 resisted the
stand of the plaintiff contending, inter alia, that the property was
self-acquired and the execution of the will was absolutely
voluntary. The defendant No. 5 filed an independent written            c
statement admitting the claim of the plaintiff. It was set forth by
him that the suit land was ancestral, a Joint Hindu Coparcenary
property and his father Shiv Singh, being the Karta, had no right
to bequeath the same in favour of defendant Nos. 1 to 4 to the
exclusion of the other rightful owners. That apart, it was
                                                                       0
contended that the will was vitiated by fraud. A prayer was made
to put him in possession of the suit land after carving out his
share.

      4. The learned trial Judge framed as many as four issues.
The plaintiff examined himself as PW-1 and tendered number E
of documents in evidence which were marked as Exts. P-1 to
P-17. The defendant Nos. 1 to 4 examined number of
witnesses and got seven documents exhibited. The defendant
No.5 supported the evidence led by the plaintiff. In rebuttal, the
plaintiff examined the Record Keeper of Medical College F
Rohtak as PW-2 and Dr. AK. Verma as PW-3 and brought on
record four forms, Exts. P-18 to P-19A. The learned trial Judge,
on appreciation of the evidence brought on record, came to
hold that the suit land was a Joint Hindu Family property; that
defendant Nos. 1 to 4 had failed to dispel the suspicious G
circumstances in the execution of the will in favour of defendant
Nos. 1 to 4 and, hence, the will was null and void; that the
mutation did not create any impediment on the rights of the
plaintiff and other natural heirs of the testator; and that they are
entitled to get joint possession of the suit land as per their H
    908        SUPREME COURT REPORTS                [2013] 1 S.C.R.


A   shares in accordance with the law of natural succession.

       5. On an appeal being preferred by the three beneficiaries
  of the will (as the original defendant No. 1 had died), the learned
  appellate Judge came to hold that the property held by Shiv
B Singh, the predecessor-in-interest of the parties to the suit, was
  not ancestral, but self-acquired and, hence, he was competent
  to alienate the same in any manner as he liked; that the will
  dated 6. 7.1989, Exh. D-2, in favour of original defendant No.
  1, his wife who had expired by the time the appeal was filed
C and the defendant Nos. 2 to 4, his grandsons, was validly
  executed and that the finding recorded by the learned trial
  Judge on that score was unsustainable. Be it noted, the learned
  appellate Judge took note of the fact that Sarabjit Singh had
  challenged the said will but, on account of settlement with the
  appellants before the appellate court, had practically withdrawn
D from the litigation. Being of this view, he set aside the judgment
  and decree passed by the learned trial Judge and dismissed
  the suit with costs.

       6. The defendant No. 5 preferred R.S.A. No. 85 of 2007
E before the High Court. The learned single Judge, upon hearing
  the learned counsel for the parties and placing reliance on Smt.
  Ganga Bai v. Vijay Kumar and Others 1 and Banarsi and
  Others v. Ram Pha/2, came to hold that the appeal was not
  maintainable at the instance of defendant No. 5 under Section
F 100 of the Code of Civil Procedure, 1908 (for short "the Code").

         7. We have heard Mr. Vipin Gogia, learned counsel for the
    appellant, and Mr. K.K. Mohan, learned counsel appearing for
    the respondents.
G         8. At the very outset, we must state that the High Court has
     accepted the preliminary objections raised by the respondents
    -as regards the maintainability of the appeal. While accepting

    1.    AIR 1974 SC 1126.
H   2.    AIR 2003 SC 1989.
  HARDEVINDER SINGH v. PARAMJIT SINGH & ORS. 909
               [DIPAK MISRA, J.]
  the preliminary objection, the High Court has opined that the A
  plaintiff and the defendant Nos. 1 to 4 and 6 had accepted the
  judgment and decree; that the defendant No. 5 cannot be
  regarded as an aggrieved party to assail the impugned decree
  invoking the jurisdiction of the High Court under Section 100
  of the Code; that appeal being a creature of the statute, the · B
  right to appeal inheres in one and it stands in a distinct position
  than that of a suit and, hence, no appeal could lie against a
  mere finding for the simple reason that the Code does not
  provide for such an appeal; and that the suit having been
  dismissed by virtue of the dislodging of the decree by the first   c
  appellate court, the regular second appeal could not be filed
· by the defendant No. 5. Hence, the present appeal by the said
  defendant-appellant.

      9. As indicated earlier, to arrive at such a conclusion,
 reliance was placed on the decision in Smt. Ganga Bai v. Vijay      D
 Kumar and Others (supra) wherein a distinction was drawn
 between the inherent right to file a suit unless the suit is
 statutorily barred and the limitations in maintaining an appeal.
 In that case, the defendant Nos. 2 and 3 had preferred an
 appeal before the High Court challenging the finding recorded       E
 by the trial court. Thereafter, a challenge was made partly to
 the preliminary decree. This Court took note of the fact.that the
 appeal preferred by the said defendants was directed originally
 not against any part of the preliminary decree but against a
 mere finding recorded by the trial court that the partition was     F
 not genuine. It was observed by this Court that to maintain an
 appeal, it requires authority of law. After referring to Sections
 96(1), 100, 104(1) and 105 of the Code, the Bench observed
 as follows: -
                                                                     G
      "17. These provisions show that under the Code of Civil
      Procedure, an appeal lies only as against a decree or as
      against an order passed under rules from which an appeal
      is expressly allowed by Order 43, Rule 1. No appeal can
      lie against a mere finding for the simple reason that the      H
      Code does not provide for any such appeal. It must follow
    910       SUPREME COURT REPORTS                 [2013] 1 S.C.R.

A         that First Appeal No. 72of1959 filed by defendants 2 and
          3 was not maintainable as it was directed against a mere
          finding recorded by the trial court."

        10. Thereafter, the Court opined that the High Court mixed
B up two distinct issues, namely, (i) whether the defendants 2 and
  3 were competent to file an appeal if they were aggrieved by
  the preliminary decree and (ii) whether the appeal as filed by
  them was maintainable. It was opined that if the defendants 2
  and 3 could be said to have been aggrieved by the preliminary
C decree, it was certainly competent for them to challenge that
  decree in appeal, but as they had not filed an appeal against
  the preliminary decree, the question whether they were
  aggrieved by that decree and could file an appeal therefrom
  was irrelevant. The Bench held that the appeal was directed
  against the finding given by the trial court which was against
D them, hence, it was not maintainable. Be it noted, this Court
  also addressed with regard to the issue whether defendant
   Nos. 2 and 3 were aggrieved by the preliminary decree and ·
  opined that the appeal was against a mere finding and the
   preliminary decree, in fact, remained unchallenged for a long
E period.

       11. Another aspect which was addressed by the Bench
  was whether the finding would operate as res judicata in the
  subsequent proceeding. This Court observed that the finding
F recorded by the trial court that the partition was a colourable
  transaction was unnecessary for the decision of the suit
  because even if the court were to find that the partition was
  genuine, the mortgage would only have bound the interest of
  the father as the debt was not of a character which, under the
G Hindu Law, would bind the interest of the sons. That apart, the
  matter relating to the partition being not directly and
  substantially in issue in the suit, the finding that the partition was
  sham could not operate as res judicata so as to preclude a
  party aggrieved by the finding from agitating the question
H covered by the finding in any other proceeding.
 HARDEVINDER SINGH v. PARAMJIT SINGH & ORS. 911
              [DIPAK MISRA, J.]
     12. On a keen scrutiny of the facts of the aforesaid case A
and the dictum laid down therein, in our considered opinion, it
does not really apply to the case at hand, regard being had to
the obtaining factual matrix and further, the decision was
rendered before the amendment was brought into the Code
prior to 1976. Therefore, we have no hesitation in saying that B
the High Court has fallen into error in placing reliance on the
said pronouncement.

      13. Presently, it is apt to note that Sections 96 and 100 of
the Code make provisions for preferring an appeal from any
original appeal or from a decree in an appeal respectively. The C
aforesaid provisions do not enumerate the categories of
persons who can file an appeal. If a judgment and decree
prejudicially affects a person, needless to emphasize, he can
prefer an appeal. In this context, a passage from Smt. Jatan
Kanwar Gotcha v. Mis. Gotcha Properties Private Ltd. 3 is worth D
noting: -

      "It is well settled that a person who is not a party to the suit
      may prefer an appeal with the leave of the appellate Court
     .and such leave should be granted if he would be E
      prejudicially affected by the judgment."

     14. In State of Punjab v. Amar Singh and Another4,
Sarkaria, J., while dealing with the maintainability of an appeal
by a person who is not a party to a decree or order, has stated     F
thus: -
      "84. Firstly there is a catena of authorities which, following
      the doctrine of Lindley, L.J., in re Securities Insurance Co.,
      (1894) 2 Ch 410 have laid down the rule that a person who
      is not a party to a decree or order may with the leave of G
      the Court, prefer an appeal from such decree or order if
      he is either bound by the order or is aggrieved by it or is
      prejudicially affected by it. As a rule, leave to appeal will
3.   AIR 1971 SC 374.
4.   AIR 1974 SC 994.                                               H
    912        SUPREME COURT REPORTS                  [2013] 1 S.C.R.


A         not be refused to a person who might have been made
          ex nominee a party - see Province of Bombay v. WI.
          Automobile Association, Al R 1949 Born 141 ; Heera Singh
          v. Veerka, AIR 1958 Raj 181 and Shivaraya v.
          Siddamma, AIR 1963 Mys 127; Executive Officer v.
B         Raghavan Pillai, AIR 1961 Ker 114. In re B, an Infant
          (1958) QB 12; Govinda Menon v. Madhavan Nair, AIR
          1964 Ker 235."
       15. In Baldev Singh v. Surinder Mohan Sharma and
  Others5 , a three Judge-Bench opined that an appeal under
C Section 96 of the Code would be maintainable only at the
  instance of a person aggrieved by and dissatisfied with the
  judgment and decree. In the said case, while dealing with the
  concept of 'person aggrieved', the Bench observed thus:-
          "A person aggrieved to file an appeal must be one whose
D         right is affected by reason or the judgment and decree
          sought to be impugned. It is not the contention of
          Respondent 1 that in the event the said judgment and
          decree is allowed to stand, the same will cause any
          personal injury to him or shall affect his interest otherwise."
E
          16. Be it noted, in the said case, the challenge in appeal
    was to the dissolution of marriage of the appellant therein and
    his first wife which, this Court held, would have no repercussion
    on the property in the suit and, therefore, the High Court was
F   not justified in disposing of the civil revision with the observation
    that the revisionist could prefer an appeal.
       17. In Sahadu Gangaram Bhagade v. Special Deputy
  Collector, Ahmednagar and Another, 6 it was observed that the
  right given to a respondent in an appeal is to challenge the
G order under appeal to the extent he is aggrieved by that order.
  The memorandum of cross-objection is but one form of appeal.
  It takes the place of a cross appeal. In the said decision,
  emphasis was laid on the term 'decree'.
    5.   c2003) 1 sec 34.
H   6.   (1970) 1 sec 685.
  HARDEVINDER SINGH v. PARAMJIT SINGH & ORS. 913
               [DIPAK MISRA, J.]
        18. After the 1976 amendment of Order 41 Rule 22, the            A
· insertion made in sub-rule (1) makes it permissible to file a
  cross-objection against a finding. The difference is basically that
  a respondent may defend himself without taking recourse to file
  a cross-objection to the extent the decree stands in his favour,
  but if he intends to assail any part of the decree, it is obligatory   B
  on his part to file the cross-objection. In Banarsi and Others v.
  Ram Pha/ (supra), it has been observed that the amendment
  inserted in 1976 is clarificatory and three situations have been
  adverted to therein. Category No. 1 deals with the impugned
  decree which is partly in favour of the appellant and partly in        c
  favour of the respondent. Dealing with such a situation, the
  Bench observed that in such a case, it is necessary for the
  respondent to file an appeal or take cross-objection against tliat
  part of the decree which is against him if he seeks to get rid of
  the same though he is entitled to support that part of the decree
                                                                         0
  which is in his favour without taking any cross-objection. In
  respect of two other categories which deal with a decree
  entirely in favour of the respondent though an issue had been
  decided against him or a decree entirely in favour" of the
  responde_nt where all the issues had been answered in his
  favour but there is a finding in the judgment which goes against       E
  him, in the pre-amendment stage, he could not take any cross-
  objection as he was not a person aggrieved by the decree. But
  post-amendment, read in the light of explanation to sub-rule (1 ),
  though it is still not necessary for the respondent to take any
  cross-objection laying challenge to any finding adverse to him         F
  as the decree is entirely in his favour, yet he may support the
  decree without cross-objection. It gives him the right to take
  cross-objection to a finding recorded against him either while
   answering an issue or while dealing with an issue. It is apt to
   note that after the amendment in the Code, if the appeal stands       G
  withdrawn or dismissed for default, the cross-objection taken
  to a finding by the respondent would still be adjudicated upon
   on merits which remedy was not available to the respondent
   under the unamended Code.
                                                                         H
     914       SUPREME COURT REPORTS                 [2013] 1 S.C.R.

A        19. At this juncture, we may usefully reproduce a passage
    from Banarsi and Others (supra) wherein it has been stated
    thus: -

           "Sections 96 and 100 CPC make provision for an appeal
           being preferred from every original decree or from every
B
           decree passed in appeal respectively; none of the
           provisions enumerates the person who can file an appeal.
           However, it is settled by a long catena of decisions that to
           be entitled to file an appeal the person must be one
           aggrieved by the decree. Unless a person is prejudicially
c          or adversely affected by the decree he is not entitled to
           file an appeal. See Phoolchand v. Gopal Laf, Jatan
           Kumar Go/cha v. Go/cha Properties (P) Ltd. (supra) and
           Ganga Bai v. Vijay Kumar (supra).) No appeal lies
           against a mere finding. It is significant to note that both
D          Sections 96 and 100 CPC provide for an appeal against
           decree and not against judgment."

       20. Though the High Court has referred to the said
  pronouncement, yet it has not applied the ratio correctly to the
E facts. This Court has clearly stated that if a person is
  prejudicially or adversely affected by the decree, he can
  maintain an appeal. In the present case, as we find, the plaintiff
  claiming to be a co-sharer filed the suit and challenged the will.
  The defendant No. 5, the brother of the plaintiff, supported his
F case. In an appeal at the instance of the defendant Nos. 1 to
  4, the judgment and decree was overturned. The plaintiff
  entered into a settlement with the contesting defendants who
  had preferred the appeal. Such a decree, we are disposed to
  think, prejudicially affects the defendant No. 5 and, therefore,
G he could have preferred an appeal. It is worthy to note that the
  grievance pertained to the nature and character of the property
  and the trial court had decreed the suit. He stood benefited by
  such a decree. The same having been unsettled, the benefit
  accrued in his favour became extinct. It needs no special
H   7.   AIR 1967 SC 1470.
 HARDEVINDER SINGH v. PARAMJIT SINGH & ORS. 915
              [DIPAK MISRA, J.]
emphasis to state that he had suffered a legal injury by virtue A
of the over turning of the decree. His legal right has been
affected. In this context, we may refer to a recent
pronouncement in Ayaaubkhan Noorkhan Pathan v. The State
of Maharashtra & Ors. 8 wherein this Court has held thus: -
                                                                       8
      "A "legal right", means an entitlement arising out of legal
      rules. Thus, it may be defined as an advantage, or a
      benefit conferred upon a person by the rule of law. The
      expression, "person aggrieved" does not include a person
      who suffers from a psychological or an imaginary injury; a C
      person aggrieved must therefore, necessarily be one,
      whose right or interest has been adversely affected or
      jeopardized. (Vide: Shanti Kumar R. Chanji v. Home
      Insurance Co. ofNew York, AIR 1974 SC 1719; and State
      of Rajasthan & Ors. v. Union of India & Ors., AIR 1977
      SC 1361)."                                                  D

     21. Though the said judgment was delivered in a different
context, yet it is applicable to the obtaining factual matrix regard
being had to the conception of legal injury. Thus, indubitably,
the present appellant was a person aggrieved and was                   E
prejudicially affected by the decree and, hence, the appeal
could not have been thrown overboard treating as not
maintainable.
     22. In view of the aforesaid premised reasons, we allow
the appeal, set aside the judgment of the High Court, treat the F
second appeal preferred by the present appellant to be
maintainable in law and remit the matter to the High Court with
a request to decide the appeal within a period of six months.
Needless to say, we have not expressed any opinion on any
of the aspects which pertain to the merits of the case. In the G
facts and circumstances of the case, the parties shall bear their
respective costs.
8.8.8.                                           Appeal allowed.

8.   2012 (11) SCALE 39.                                               H