Holding

The High Court erred in interfering with factual findings as there was no substantial question of law, and the decree of the First Appellate Court stands.

Summary

The plaintiff, a son of Ramchandra, claimed that Survey No.71, allotted to his father in a 1918 partition, was ancestral joint‑family property and that other suit properties were bought with its income. The defendants, other children of Ramchandra, contended that those properties were self‑acquired from the gold‑smithing income of Ramchandra and not joint‑family assets. The trial court ruled for the plaintiff, but the First Appellate Court reversed the decision, holding only the two ancestral houses belonged to the joint family and the remaining properties were self‑acquired. The Bombay High Court, in a second appeal, interfered with these factual findings, deeming Survey No.71 ancestral and the gold‑smithing business ancestral, thereby converting the other properties into joint‑family assets. The Supreme Court held that the High Court erred by interfering with pure factual findings without a substantial question of law, violating Section 100 of the CPC, and restored the First Appellate Court’s decree.

Issues considered

Whether the High Court could interfere with the factual findings of the First Appellate Court in a second appeal.
Whether Survey No.71 was an ancestral joint‑family property or a self‑acquired property of Ramchandra.
Whether the other suit properties were purchased with income from an ancestral property or from self‑acquired earnings.

Legislation cited

Code of Civil Procedure, 1908s. 100

Subjects

partitionancestral propertyjoint family propertyself‑acquired propertysecond appealSection 100 CPCfactual findingscivil procedure

Judgment

RAMCHANDRA PANDURANG SONAR (DECEASED)
THROUGH HIS HEIRS AND LEGAL REPRE- A
SENTATIVES AND ORS.
v.
MURLIDHAR RAMCHANDRA SONAR AND ORS.

JULY 19, 1990 B

[P.B. SAWANT AND N.M. KASLIWAL, JJ.]

y Code of Civil Procedure, 1908: Section JOO-Second appeal-
Finding of fact-High Court not to interfere unless question of law is
involved and such question is formulated by it.
c
S and R were brothers who carried on the business of gold
smithery, and a partition took place between them In 1918. R got 2
houses and land in Survey No. 71. Later on, one of the' sons of R
Ji>- instituted a suit claiming that Survey No. 71 was an ancestral property
and that some of the suit properties were purchased by R out of the D
income, and subsequently the sale proceeds, of the land. The defen-
dants,, v~.; the other children of R contended that Survey No. 71 was
purcJiased by S and R with the income they derived from gold smithery
and the suit properties except the two houses which were admittedly the
ancestrat'properties, were not the joint family properties In which the
plaintiff could claim his share. E
-~·
The Trial Court decreed the suit In favour of the plaintiff. On
appeal by the defendants, the First Appellate Court reappreciated the
evidence, found infirmities In the conclusions arrived at by the Trial
Court and dismissed the suit except to the extent of plaintiff's share In
the two ancestral houses, on the basis of its finding that the other F
properties were self-acquired properties of R.

During the pendency of the suit R died. By virtue of his will the
self-acquired properties of R went to the defendants and the plaintiff
was left out.
G
The plaintiff preferred an appeal before the High Court against
the order of the First Appellate Court. The High Court lnterefered with
the said findings of facts and held that since Survey No. 71 had come to
the share of R in general partition, it was ancestral property. It further
observed that since the said property was yielding income with the help
of which the other properties could have been purchased and since H

435
436 SUPREME COURT REPORTS [1990] 3 S.C.R.

further the gold smithery business was au ancestral business, the pro-
A
perties purchased with the help of such income should be held to be
joint family properties.

Aggrieved, the defendants have tiled this appeal. Allowing the
appeal,
B
HELD: I. There was, iio quesilon dflaw irivolved in the second
appeal. Yet the High Court chose to interfere with the finding ignoring
>-
the mandatory provisions of Section 100 of the Civil Procedure Code
that unless it was satisfied that the case involved substantial question of
law it could not entertain it and that before it could entertain it, the
Court had to formulate such question. l440F]
c
2.1 It was not disputed at any time that the property in Survey
No. 71 had all along stood in the name of Supadu and, therefore, the
presumption drawn by the First Appellate Court that this showed that
in all probability the property was purchased after the death of his
D father cannot be said to be unreasonable. There is no evidence brought
on record by the plaintiff with regard to the quantum of income from
Survey No. 71. In fact, the uncontroverted evidence on record shows
that Ramchandra had no implements and bullocks for cultivating the
land and the land was always cultivated with the help of the labourers
who brought their own implements and bullocks. This shows that the
E family derived less than normal income from the said land. It was
admitted by the plaintiff that Ramchandra was a skilled goldsmith and
was well-known in the locality as such, and was doing his business as
goldsmith and earning sufficient income. [440A-D]

2.2 The High Court ignoring the fact that it was not the case of
F the plaintiff that goldsmithery was an ancestral Jmsiness and' that it was
not his case that the suit properties were purch.ised with the help of the 1. .
income from the said business held that it was so. What is further, the
plaintiff's case was that the suit properties were purchased with the
income from Survey No. 71. Thus it is obvious that the conclusions
which were arrived at by the First Appellate Court were reasonable and
G legal besides being conclusions of facts. [4400-E]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3704
~~- ~

From the Judgment and Order dated 11.3.1987 of the Bombay
H High Court in Second Appeal No. 725 of 1980.
R.P. SONAR v. M.R. SONAR ISAWANT, J.] 437

U.R. Lalit, G.A. Shah, V.N. Ganpule for the Appellants.
A
D.A. Dave, R. Karanjawala, Ms. M. Karanjawala and Jatinder
Sethi for the Respondents.

The Judgment of the Court was delivered by
B
SAWANT, J.· Tni~ is a case wllere tlie High' COiJit in seoond·
appeal has interefered with a pure finding of fact recorded by the First
Appellate Court for no worthwhile reason, and ignoring the man·
datory provisions of Section 100 of the Civil Procedure Code.

2. The only question which was inv_olved in the suit was whether
the suit properties in which the plaintiff claimed one·fifth share, were C
the ancestral joint family properties or whether they were the self·
acquired properties of his father, Ramchandra. The relevant facts are:
defendant No. 1, Ramcliandra had four sons includfug the plaintiff; and
a daughter. The three other sons and the daughter are defendants Nos.
2 to 5. One of the sons, defendant No. 3 appears to support the D
plaintiff. During the pendencv of the suit, Ramcliandra died and his
sons including the plaintiff have been brought on record as his heirs
and legal representatives. The suit properties consisted of lands being
(i) Survey No. 21/l admeasuring 14 acres 3 gunthas, (ii) Survey No.
20/2 admeasuring 2 acres 36 gunthas, (iii) Survey No. 20/l admeasur· I
ing 3 acres 30 gunthas and two houses all situated at Nizampur, Taluka E
Saaki, District Dhulia. It was the case of the plaintiff in his plaint that a
joint family consisting of his father Ramchandra and his brother,

r Supadu owned several houses, and a land comprised IG'$urvey No. 71
adineasuring abou( 14 acres. In the partition between Ramchandra
and Supadu, two houses and Survey No. 71 came to the share of
Ramchandra. The said two houses are included in the suit properties F
and it is not disputed on behalf of the respondent-defendants that they
are ancestral properties and the plaintiff has one·fifth share in the
same. However, the case of the plaintiff that Survey No. 71 was the
ancestral property was vehemently disputed and that has been the
sheet·anchor of contention of both the parties while the plaintiff claims
that rest of the suit properties were purchased by Ramchandra out of G
the income and subsequently the sale proceed•rnf the said land (since
admittedly the said land was sold by Ramchandra in 1953), it is the
case of the defendants that the said land was in fact purchased jointly
by Ramchandra and his brother, Supadu out of their own earnings,
and in the partition between Ramchandra and Supadu that land came
to the share of Ramchandra. Hence, according to the defendants, even H
438 SUPREME COURT REPORTS [1990] 3 S.C.R.

A assuming that the rest of the suit properties were purchased with the
help of the income from Survey No. 71, they were the self-acquired
properties of Ramchandra.

3. In support of his case that Survey No. 71 was the ancestral
property, the plaintiff relied upon the fact that the said survey no. had
B come to the share. of Ramchandra in a general partition between him
and his brother, Supadu in 1918. As against this, the defendants
contended that Ramt:handra's father Pandu died in 1904 and since the
property all along stood in the name of Supadu it showed that it was
purchased after Pandu's death in 1904. They also relied upon the fact
that Ramchandra was a skilled goldsmith and was well known for his
C artisanship and commanded good business. His brother was also a
goldsmith and both of them had purchased the said land with the
earning in goldsmithery. It was also their case that Ramchandra's
father, Pan du had only two houses and no other property nor did he
carry on any business even of goldsmithery. Hence, there was no
qustion of purchasing Survey No. 71 out of the income from the
D ancestral property by Ramchandra and Supadu and the purchase was
with the help of the income which they had earned from the business
which they were carrying on by their own skill. It was also shown by
the defendants that when Survey No. 71 was sold in 1953, no objection
whatsoever was taken to the sale nor permission of any of the sons
including that of the plaintiff was deemed necessary for the same.
E They further contended that they had hardly any income from Survey
No. 71 and the properties which were purchased prior to 1953 could
not have been purchased with the help of any such income assuming
that it was an ancestral land. According to them, therefore, the suit
properties were purchased only from the income from the business of
goldsmithery. The three of the properties were purchased prior to
F 1953 while the rest were purchased long after 1953, i.e. in 1961, 1965
and 1967. Hence, their purchase had no relation to the sale of Survey
No. 71 in 1953, again assuming that it was an ancestral property. It is
for these reasons, according to them, that the suit properties except
the two houses which were admittedly the ancestral properties were
not the joint family properties in which the plaintiff could claim his
G share.

4. The relevant issues were framed including the issue as to
whether defendants proved that the suit properties were self-acquired
and plaintiff had no share in it. The Trial Court answered the said issue
in favour of the plaintiff and decreed the suit against the defendants.
H Against the said decision, the defendants appealed and the First
R.P. SONAR v. M.R. SONAR [SAWANT, J.) 439

Appellate Court after reappreciating the evidence and pointing out the
A
infirmities in the conclusions arrived at by the Trial Court, dismissed
" the suit except to the extent of the plaintiffs share in the two ancestral
houses.' It may be mentioned here that although Ramchandra, defen-
dant No. 1 died during the pendency of the suit, he had willed out his
properties in favour of the defendants and, therefore, the plaintiff had
no share in the self-acquired properties of Ramchandra which could B
-A:' have been granted to him otherwise.
'y.
5. The First Appellate Court held that the following circum-
stances showed that the suit properties except the ancestral houses
were the self-acquired properties of Ramchandra. The first circum-
stance was that Survey No. 71 was purchased in the name of
Supadu which showed that in all probability the property was c
purchased after the death of Ramchandra's father, Pandu. Secondly,
since there was no record to show that Pandu had any lands or was
~
carrying on any business, Survey No. 71 must have been purchased by
Ramchandra and Supadu with the help of their earnings. It was not
disputed and in fact it was admitted that Ramchandra was a skilled D
goldsmith and was carrying on business of goldsmithery along with his
brother, Supadu and was earning sufficient income with the help of
which he could purchase the properties. Survey No. 71 further was
sold in 1953 without obtaining the consent of the other members of the
family. Had it been the joint family property the vendee would have
.,..,.....,.... insisted upon such consent. E

, 6. The High Court interfered with these findings on grounds
which were not even made out by the plaintiff either in the plaint or in
his evidence and which were contrary to the admissions of the plaintiff
himself. The High Court held that since the property had come to the
share of Ramchandra in general partition, it must be held that it was an F

~
ancestral property. The High Court further held that Survey No. 71
was yielding sufficient income with the help of which the other proper-
ties would have been purchased and further the goldsmithery business
was an ancestral business and, therefore, the properties purchased
with the help of such income should also be held to be joint family
properties. G

It may be stated here that the learned counsel appearing for the
-~ appellant-defendants wanted to produce Detore us documents to show
that in fact Survey No. 71 was purchased in the year 1907 by
Ramchandra and his brother Supadu after the death of their father,
Pandu in !904, and that in the Revenue records the property always H
440 SUPREME COURT REPORTS [1990] 3 S.C.R.

A stood in the name of Supadu. We did not permit him to produce the
said documents since no explanation whatsoever was available as to
why the documents were not produced before the courts below. How-
t
ever; it was not disputed at any time that the property had all along
stood in the name of Supadu and, therefore, the presumption drawn
by the First Appellate Court that this showed that in all probability the
B property was purchased after the death of Pandu cannot be said to be
unreasonable. Secondly, there is no evidence brought oil record by the
plaintiff with regard to the quantum of income from Survey No: 71. In
·y
fact, the uncontroverted evidence on record shows that Ramchandra
who had entered the witness box had no implements and bullocks for
cultivating the land and the land was always cultivated with the help of
c the labourers who brought their own inlplements and bullocks. This
shows that the family derived less than normal income from the said
land. Secondly, it was admitted by the plaintiff that Ramchandra was a
skilled goldsmith and was well-known in the locality as such, and was
doing his business as goldsmith and earning sufficient income. It was
not his case further that the goldsmithery was the ancestral business.
D However, the High Court ignoring the fact that it was not the case of
the plaintiff that goldsmithery was an ancestral business and that it was
not his case that the suit properties were purchase<i_with the help of the
income from the said business held that it was so. What is further, the
plaintiff's case was that the suit properties were purchased with ihe
income from Survey No. 71. Thus it is obvious that the conclusions'
E which were arrived at by the first Appellate Court were reasonable and
legal besides being conclusions of facts. There was, therefoe, no ques-
tion of law involved in the second appeal. Yet the High Court chose to
interfere with the finding ignoring the mandatory provisions of Section
100 of the Civil Procedure Code that unless it was satisfied that the
case involved a substantial question of law it could not entertain it and
F that before it could entertain it, the Court had to formulate such
question.

7. We are, therefore, more than satisfied that the High Court
has erred in law in interfering with the decree passed by the First
Appellate Court. We, therefore, allow the· appeal, set aside the deci-
G sion of the High Court and restore the decree passed by the First
Appellate Court. Since the parties belong to one family we pass no
order as to costs.

G.N. Appeal allowed.