SHASIDHAR & OTHERSversusSMT.ASHWINI UMA MATHAD &ANR.

                      [2015] 2 S.C.R. 1


                  SHASIDHAR & OTHERS                              A
                               V.
           SMT.ASHWINI UMAMATHAD &ANR.
             (Civil Appeal No. 324 of 2015)
                   JANUARY 13, 2015
                                                                  B
       [FAKKIR MOHAMED IBRAHIM KALIFULLA
          AND ABHAY MANOHAR SAPRE, JJ.]

     Code of Civil Procedure, 1908 - s. 96 rlw. Or. 41 r. 31 -
First appeal - Scope of- Suit for partition by coparcener/co-
owner - Partially allowed by trial court in preliminary decree C
- High Court order in first appeal was detriment to the
defendants - On appeal, held: The High Court should have
answered the issues which were material for proper disposal
of the partition suit by going into merits of the claims - Being
the first appellate court, it was duty of the High Court to decide D
the appeal, keeping in view the scope and powers conferred
u/s. 96 rlw. Or. 41 r. 31 - Suit- Partition suit.
   Allowing the appeal and remitting the matter to High
Court, the Court                                                  E
    HELD: 1. In a suit filed by a co-sharerer, coparcener,.
co-owner or joint owner, as the case may be, for partition
and separate possession of his/her share qua others,. it
is necessary for the Court to examine, in the first F .
instance, the nature and character of the· properties in
suit such as who was the original owner of the suit
properties, how and by which source he/she acquired
such properties, whether it was his/her self-acquired
property or ancestral property, or joint property or G
coparcenery property in his/her hand and, if so, who are/
were the coparceners or joint owners· with him/her as
the case may be. Secondly, how the devolution of his/

                               1                                  H
2        SUPREME COURT REPORTS                [2015] 2 S.C.R.


A her interest in the property took place consequent upon
  his/her death on surviving members of the family and in
  what proportion, whether he/she died intestate or left
  behind any testamentary succession in favour of any
  family member or outsider to inherit his/her share in
B properties and if so, its effect. Thirdly whether the
  properties in suit are capable of being partitioned
  effectively and if so, in what manner? Lastly, whether all
  properties are included in the suit and all co-sharerers,
  coparceners, co-owners or joint-owners, as the case
C may be, are made parties to the suit? These issues, being
  material for proper disposal of the partition suit, have to
  be answered by the Court on the basis of family tree,
  inter se relations of family members, evidence adduced
  and the principles of law applicable to the case. [Para
D 24] [13-D-H; 14-A-B]

        "Hindu Law" 17th Edition, Chapter XVI Partition and
    Reunion - Mitakshara Law by Mui/a - referred to.
       2. The High Court ought to have gone into the merits
E of the claim of the respective parties in its proper
  perspective and then recorded a finding regarding extent
  of shares received by each coparcener/co-owner
  keeping in view the nature of properties such as whether
F it was self acquired property or ancestral property and,
  if so, in whose hands, its source of acquisition by such
  person, the manner of devolution on the legal
  representatives of such person etc. These findings were
  required to be recorded after appreciating the evidence
G keeping in view the provisions of the Hindu Succession
  Act and other related laws applicable to the issues arising
  in the case. [Para 26] [14-F-H; 15-A]
      3. Being the first appellate Court, it was, therefore,
  the duty of the High Court to decide the first appeal
H keeping in view the scope and powers conferred on it
        SHASIDHAR v.ASHWINI UMAMATHAD                      3



under Section 96 read with Order XLI Rule 31 CPC. The      A
High Court having not done, thereby, caused prejudice
to the appellants whose valuable right to prosecute the
first appeal on facts and law was adversely affected
which, in turn, deprived them of a hearing in the appeal
in accordance with law. [Para 25] [14-C-E]                 8

         Santosh Hazari vs. Purushottam Tiwari (Deceased)
    by L.Rs. (2001) 3 sec 179: 2001 (1) scR 948;
    Madhukar &Ors. v. Sangram &Ors. (2001) 4 SCC 756:
    2001 (3) SCR 138; H.K.N. Swami v. lrshad Basith (2005) c
    10 SCC 243; Jagannath v. Arulappa & Anr. (2005) 12
    SCC 303; B. V Nagesh & Anr. vs. H. V Sreenivasa Murthy
    (2010) 13 SCC 530: 2010 (11) SCR 784 State Bank of
    India & Anr. vs. Emmsons International Ltd. & Anr. (2011)
    12 SCC 174: 2011 (10) SCR 436 Vinod Kumar vs. O
    Gangadhar2014(12) Scale 171 - relied on.

    Kurian Chacko vs. Varkey Ouseph AIR 1969 Kerala 316
    - referred to.

                 Case Law Reference                        E

    AIR 1969 Kerala 316       referred to    Para 13
    2001 (1) SCR 948          relied on      Para 16
    2001 (3) SCR 138          relied on      Para 17       F
            o
    (2005) 1 sec 243          relied on      Para 18
    (2005) 12 sec 303         relied on      Para 19
    2010 (11) SCR 784         relied on      Para 20
                                                           G
    2011 (10) SCR 436         relied on      Para 21

    2014(12) Scale 171        relied on      Para 21

    CIVIL APPELLATE JURISDICTION: Civil Appeal No. 324
of2015                                                     H
4         SUPREME COURT REPORTS                    [2015] 2 S.C.R.


A       From the Judgment and Order dated 06.12.2012 of the
    High Court of Karnataka Circuit Bench at Dharwad in R. F. A.
    No. 3052 of 2010.
     Basava Prabhu S. Patil, B. Subrahmanya Prasad, Anirudh
B Sanganeria, Chinmay Deshpande, Amjid Maqbool for the
  Appellants.

        S. N. Bhat for the Respondents.
        The Judgment of the Court was delivered by
c       ABHAY MANOHAR SAPRE, J. 1. Leave granted.
       2. This appeal is filed by the defendants against the
  judgment and order dated 06.12.2012 passed by the Division
  Bench of the High Court of Karnataka Circuit Bench at Dharwad
D in Regular First Appeal No. 3052 of 2010, which in turn arises
  out of the judgment and decree dated 10.02.2010 passed by
  the 1st Additional Civil Judge (Sr. Division) at Hubli in Original
  Suit No. 73 of 2004.
E      3. In order to appreciate the short issue involved in this
    appeal, it is necessary to state a few relevant facts:
       4. One Basavantayya Revanayya Math.ad was married to
  Shantakka Mathad (defendant no. 2). Out of this wedlock, three
  children were born - one son Shashidhar (defendant no.1) and
F two daughters - Rajeshwari (Died in 2003) and - Gayatri (Died
  in 2004) - defendant no.3. Shashidhar was married to Uma
  and out of this wedlock, three daughters were born -Ashwini
  (plaintiff no. 1), Nivedita (plaintiff no.2) and Puja who was given
G in adoption to Uma's sister. Shashidhar divorced to Uma and
  re-married to Manjula (defendant no.4). Out of this second
  marriage, two daughters were born -Aishwarya (defendant
  no.5) and Vaishnavi (defendant no.6).
      5. Basavantayya had extensive properties. On
H 21.07.1991, Basavantayya died leaving behind him the
         SHASIDHAR v.ASHWINI UMAMATHAD                          5
            [~BHAY MANOHAR SAPRE, J.]


aforementioned members of his family. On his death and A
also on the death of his one unmarried daughter Rajeshwari,
disputes arose between his legal representatives regarding
their respective shares in the properties and also regarding
ownership of some members of his family in relation to
certain properties standing in the name of members of his B
family. The disputes unfortunately could not be settled
amicably which led to filing of civil suit by the daughters of
defendant No.1 from his first wife-Uma (deceased) against
the other members of the family, i.e., their father, step-mother
and step-sisters for determination of their respective shares, C
partition by meets and bounds and separate possession in
the suit properties held and possessed by the members of
the family of late Basavantayya . The defendants contested
the civil suit by denying the plaintiffs' claim. The trial Court
framed issues. Parties adduced evidence.                         D

    6. By judgment and decree dated 10.02.2010, the trial
Court partly decreed the plaintiffs' suit and accordingly
passed preliminary decree in relation to the suit properties.
It was held that plaintiffs are entitled for partition and      E
separate possession of their 1/6th share each in some
properties specified in the decree whereas 1/10th share
each in other suit properties as specified in the decree.

      7. Dissatisfied with the preliminary decree, the F
defendants filed first appeal being R.F.A. No. 3052 of 2010
and the plaintiffs filed cross objections being RF.A. CROB
No. 103 of 2011 under Order XLI Rule 22 of the Civil
Procedure Code, 1908 (in short "the Code"). This is how.
the entire preliminary decree became the subject-matter of G
first appeal filed by the defendants.

    8. By impugned judgment and order dated 06.12.2012,
the Division Bench of the High Court disposed of the appeal
and cross objections and modified the judgment and decree       H·
6         SUPREME COURT REPORTS                      [2015] 2 S.C.R.



A   of the trial court to the detriment of the defendants. It is against
    this judgment and order, the defendants have filed this appeal
    by way of special leave.

        9. Learned Counsel for the appellants, while assailing the
8 legality and correctness of the impugned judgment, contended
  that the High Court without adverting to all the factual details
  and various grounds raised in the first appeal, disposed of the
  same in a cryptic manner. According to learned counsel, the
  High Court neither dealt with any issue nor appreciated the
c ocular and documentary evidence adduced by the parties nor
  examined the legal principles applicable to the issues arising
  in the case and nor rendered its findings on any contentious
  issues though urged by the appellants herein in support of the
  appeal. Learned counsel further contended that it was the duty
D of the High Court being the first appellate Court exercising its
  appellate power under Section 96 read with Order XLI Rule
   31 of the Code to have dealt with the submissions, which were
  urged by the appellants after appreciating the entire evidence
   on facts, independent of the findings recorded by the trial Court
E and should have come to its own conclusion keeping in view
  the legal principles governing the issues and since it was not
   done by the High Court, the impugned judgment is not legally
   sustainable. Lastly, the learned counsel urged that in case his
F arguments are accepted, the remand of the case to the High
   Court to decide the appeal on merits afresh is inevitable.

       10. In contra, learned counsel for the respondents
  (plaintiffs) vehemently urged that no interference in the
  impugned judgment is called for because firstly, the first
G appellate Court rendered the judgment on the appellants'
  concession and hence, it was not necessary for the High Court
  to record any elaborate finding on any of the issues; secondly,
  the suit is pending since two decades with no end and lastly,
  the determination of the shares of the suit properties made by
H the High Court, if examined on merits by this Court, would be
         SHASIDHAR v.ASHWINI UMAMATHAD                           7
            [ABHAY MANOHAR SAPRE, J.]

found to be in accordance with law.                              A
     11. Having heard learned counsel for the parties and on
perusal of the record of the case and examining the issue
arising in this appeal, we find force in the submissions of the
learned counsel for the appellants.                             B
      12. The powers of the first appellate Court, while deciding
the first appeal under Section 96 read with Order XLI Rule 31
of the Code, are indeed well defined by various judicial
pronouncements of this Court and are, therefore, no more res
integra.                                                          C
      13. As far back in 1969, the learned Judge-V.R. Krishna
Iyer, J (as His Lordship then was the judge of Kera la High Court)
while deciding the first appeal under Section 96 of the CPC in
Kurian Chacko vs. Varkey Ouseph, Al R 1969 Kera la 316, D
reminded the first appellate Court of its duty as to how the first
appeal under Section 96 should be decided. In his distinctive
style of writing and subtle power of expression, the learned
judge held as under:
                                                                   E
      "1. The plaintiff, unsuccessful in two Courts, has
come up here aggrieved by the dismissal of his suit
which was one for declaration of title and recovery of
possession. The defendant disputed the plaintiff's title
to the property as also his possession and claimed both F
in himself. The learned Munsif, who tried the suit,
recorded findings against the plaintiff both on title and
possession. But, in appeal, the learned Subordinate
Judge disposed of the whole matter glibly and briefly, in
a few sentences.                                                   G
    2. An appellate court is the final Court of fact
    ordinarily and therefore a litigant is entitled to a
    full and fair and independent consideration of
    the evidence at the appellate stage. Anything
    less than this is unjust to him and I have no                 H
8         SUPREME COURT REPORTS                  [2015] 2 S.C.R.


A       doubt that in the present case the learned
        Subordinate Judge has fallen far short of what
        is expected of him as an appellate Court.
        Although there is furious contest between the
        counsel for the appellant and for the respondent,
B       they appear to agree with me in this
        observation ..... "

                                      (Emphasis supplied)
       14. This Court in a number of cases while affirming and
C then reiterating the aforesaid principle has laid down the scope
  and powers of the first appellate Court under Section 96 of the
  Code.
      15. We consider it apposite to refer to some of the
D decisions.
        16. In Santosh Hazari vs. Purushottam Tiwari
    (Deceased) by L.Rs. (2001) 3 SCC 179, this Court held (at
    pages 188-189) as under:
E       " ......... the appellate court has jurisdiction to
        reverse or affirm the findings of the trial court.
        First appeal is a valuable right of the parties a.nd
        unless restricted by law, the whole case is
        therein open for rehearing both on questions of
F       fact and law. The judgment of the appellate court
        must, therefore, reflect its conscious application
        of mind and record findings supported by
        reasons, on all the issues arising along with the
        contentions put forth, and pressed by the parties
G       for decision· of the appellate court ...... while
        reversing a finding of fact the appellate court
        must come into close quarters with the
        reasoning assigned by the trial court and then
        assign its own reasons for arriving at a different
H       finding. This would satisfy the court hearing a
          SHASIDHAR v.ASHWINI UMAMATHAD                                9
             [ABHAY MANOHAR SAPRE, J.]

    further appeal that the first appellate court had                  A
    discharged the duty expected of it. ........... "
     17. The above view has been followed by a three-Judge
Bench decision of this Court in Madhukar& Ors. v. Sangram
& Ors.,(2001) 4 SCC 756, wherein it was reiterated that sitting        B
as a court of first appeal, it is the duty of the High Court to deal
with all the issues and the evidence led by the parties before
recording its findings.

     18. In H.K.N. Swami v. lrshad Basith,(2005) 10 SCC
243, this Court (at p. 244) stated as under:                           C

     "3. The first appeal has to be decided on facts
     as well as on law. In the first appeal parties have
     the right to be heard both on questions of law
     as also on facts and the first appellate court is                 D
     required to address itself to all issues and decide
     the case by giving reasons. Unfortunately, the
     High Court, in the present case has not recorded
     any finding either on facts or on law. Sitting as
     the first appellate court it was the duty of the High             E
     Court to deal with all the issues and the evidence
     led by the parties before recording the finding
     regarding title."
   19. Again in Jagannath v. Arulappa & Anr., (2005) 12                F
sec 303, while considering the scope of Section 96 of the
Code this Court (at pp. 303-04) observed as follows:
     "2. A court of first appeal can reappreciate the
     entire evidence and come to a differen,t
     conclusion ......... "                                            G

     20. Again in B. V Nagesh & Anr. vs. H. V. Sreenivasa
Murthy, (2010) 13 SCC 530, this Court taking note of all the
earlier judgments of this Court reiterated the aforementioned
principle with these words:                                            H
10     SUPREME COURT REPORTS                 [2015] 2 S.C.R.


A     "3. How the regular first appeal is to be disposed
      of by the appellate court/High Court has been
      considered by this Court in various decisions.
      Order 41 CPC deals with appeals from original
      decrees. Among the various rules, Rule 31
B     mandates that the judgment of the appellate
      court shall state:
        {a) the points for determination;
        (b) the decision thereon;
c
        {c) the reasons for the decision; and
        {d) where the decree appealed from is
      reversed or varied, the relief to which the
      appellant is entitled.
D
      4. The appellate court has jurisdiction to reverse
      or affirm the findings of the trial court. The first
      appeal is a valuable right of the parties and
      unless restricted by law, the whole case is
E     therein open for rehearing both on questions of
      fact and law. The judgment of the appellate court
      must, therefore, reflect its conscious application
      of mind and record findings supported by
      reasons, on all the issues arising along with the
F     contentions put forth, and pressed by the parties
      for decision of the appellate court. Sitting as a
      court of first appeal, it was the duty of the High
      Court to deal with all the issues and the evidence
      led by the parties before recording its findings.
G     The first appeal is a valuable right and the parties
      have a right to be heard both on questions of
      law and on facts and the judgment in the first
      appeal must address itself to all the issues of
      law and fact and decide it by giving reasons in
1-1   support of the findings. {Vi de Santosh Hazari v.
         SHASIDHAR v.ASHWINI UMAMATHAD                         11
            [ABHAY MANOHAR SAPRE, J.]

    Purushottam Tiwari, (2001) 3 SCC 179 at p. 188,             A
    Para 15 and Madhukarv. Sangram, (2001) 4 SCC
    756 at p. 758, Para 5.)

    5. In view of the above salutary principles, on
    going through the impugned judgment, we feel                8
    that the High Court has failed to discharge the
    obligation placed on it as a first appellate court.
    In our view, the judgment under appeal is cryptic
    and none of the relevant aspects have even
    been noticed. The appeal has bl:ien decided in              c
    an unsatisfactory manner. Our careful perusal
    ofthe judgment in the regular first appeal shows
    that it falls short of considerations which are
    expected from the court of first appeal.
    Accordingly, without going into the merits of the            o
    claim of both parties, we set aside the impugned
    judgment and decree of the High Court and
    remand the regular first appeal to the High Court
    for its fresh disposal in accordance with law."
                                                            E
    21. The aforementioned case? were relied upon by this
Court while reiterating the same principle in State Bank of
India &Anr. vs. Emmsons International Ltd. & Anr., (2011)
12 sec 174. This Court has recently taken the same view on
similar facts arising in Vinod_ Kumar vs. Gangadhar, F
2014(12) Scale 171.

     22. Applying the aforesaid principle to the facts of the case,
we find that the High Court while deciding the first appeal failed
to keep the aforesaid principle in consideration and rendered
the impugned decision. Indeed, it is clear by mere reading of G
the impugned order quoted below:

    "The appellants are defendants in the suit. The
    plaintiffs are the respondents. The respondents
    are the children of 1st appellant born in the                H
12       SUPREME COURT REPORTS                 [2015] 2 S.C.R.


·A·     wedlock between 1st appellant and his divorced
        wife Smt. Uma Mathad. It is admitted fact that the
        1st appellant has married the 2nd respondent
        after the divorce and in the wedlock he has two
        children and they are appellant Nos.3 and 4. The
 B      suit properties at item Nos.1 and 4 are admitted
        to be the ancestral properties. Item Nos.2 and 3
        are the properties belonging to the mother of the
        1stappellant and after her demise the said
        properties are bequeathed to 1st appellant.
 C      Ther~fore, the said properties acquired the
      · status of self-acquired properties.
        The respondents filed a suit for partition. The
        parties are governed by Bombay School of
 o      Hindu Law.. In view of the provisions of Hindu
        Succession Amendment Act of 2005, the
        respondent Nos. f and 2 are entitled to a share
        as co-parceners in the ancestral properties. The
      . wife who is the second appellant also would be
·E    · entitled to a share in the partition. In that view,
        the appellant Nos. 1 and 2 and respondent Nos.1
        and 2 will have 1/4th share each in item Nos.1
        and 4 of the suit pro.perties.
       The learned counsel for the appellants submitted
 F
       that the appellants 2 to 4 would not claim any
       independent share in item Nos.1 and 4 of the suit
       properties, but they would take share in the 1/
       4th share allotted to their father.
 G        In view of the said submissions, the appellant
        · Nos.1 and 2 and respondent Nos.1 and 2 would
      . · be entitled to 1/4th share in item Nos.1 and 4 of
          the suit properties.
 H      Accordingly, a preliminary decree to be drawn
          SHASIDHAR v.ASHWINI UMAMATHAD                               13
             [ABHAY MANOHAR SAPRE, J.]

    and the appeal and cross objections are                            A
    disposed of in the terms indicated above."

      23. In our considered opinion, the High Court did not deal
with any of the submissions urged by the appellants and/or
respondents nor it took note of the grounds taken by the               8
appellants in grounds of appeal nor took note of cross
objections filed by plaintiffs under Order XLI Rule 22 of the
Code and nor made any attempt to appreciate the evidence
adduced by the parties in the light of the settled legal principles
and decided case laws applicable to the issues arising in the          c
case with a view to find out as to whether the judgment of the
trial Court can be sustained or not and if so, how, and if not,
why?

      24. We may consider it apposite to state being a well
settled principle of law that in a suit filed by a co-sharerer, D
coparcener, co-owner or joint owner, as the case may be, for
partition and separate possession of his/her share qua others,
it is necessary for the Court to examine, in the first instance,
the nature and character of the properties in suit such as who
was the original owner of the suit properties, how and by which E
source he/she acquired such properties, whether it was his/
her self-acquired property or ancestral property, or joint
property or coparcenery property in his/her hand and, if so,
who are/were the coparceners or joint owners with him/her as F
the case may be. Secondly, how the devolution of his/her
interest in the property took place consequent upon his/her
death on surviving members of the family and in what
proportion, whether he/she died intestate or left behind any
testamentary succession in favour of any family member or G
outsider to inherit his/her share in properties and if so, its effect.
Thirdly whether the properties in suit are capable of being
partitioned effectively and if so, in what manner? Lastly, whether
all properties are included in the suit and all co-sharerers,
coparceners, co-owners or joint-owners, as the case may be, H
14         SUPREME COURT REPORTS                    [2015] 2 S.C.R.


A are made parties to the suit? These issues, being material for
  proper disposal of the partition suit, have to be answered by
  the Court on the basis of family tree, inter se relations of family
  members, evidence adduced and the principles of law
  applicable to the case. (see "Hindu Law" by Mulla 17th
B Edition, Chapter XVI Partition and Reunion - Mitakshara
     Law pages 493-547).

          25. Being the first appellate Court, it was, therefore, the
     duty of the High Court to decide the first appeal keeping in
c    view the scope and powers conferred on it under Section 96
     read with Order XU Rule 31 of the Code mentioned above. It
     was unfortunately not done, thereby, causing prejudice to the
     appellants whose valuable right to prosecute the first appeal
     on facts and law was adversely affected which, in turn, deprived
o    them of a hearing in the appeal in accordance with law.
          26. We are not inclined to accept the submission of the
     learned counsel for the respondents when he urged that the
     impugned judgment is based on concession given by the
     appellants and hence no discussion on merits on any of the
E    issues was called for. In the first place, the appellants did not
     make any application for settlement of the dispute in relation
     to any of the suit property in writing and secondly, there is
     nothing on record to show that the appellants wanted to give
F    up their claim or/and wished to settle the matter in relation to
     some properties. In the light of this, we are of the view thatthe
     High Court ought to have gone into the merits of the claim of
     the respective parties in its proper perspective and then
     recorded a finding regarding extent of shares received by each
G    coparcener/co-owner keeping in view the nature of properties
     such as whether it was self acquired property or ancestral
     property and, if so, in whose hands, its source of acquisition
     by such person, the manner of devolution on the legal
     representatives of such person etc. As observed supra, these
H    findings were required to be recorded after appreciating the
          SHASIDHAR v.ASHWINI UMAMATHAD                              15
             [ABHAY MANOHAR SAPRE, J.]

evidence keeping in view the provisions of the Hindu A
Succession Act and other related laws applicable to the issues
arising in the case.
    27. It is for these reasons, we are unable to uphold the
impugned judgment of the High Court.                                  8
     28. The appeal thus succeeds and is, accordingly, allowed.
The impugned judgment is set aside and the case is remanded
to the High Cqurt for deciding the first appeal and cross-
objections afresh, keeping in view the principle of law laid down
by this Court as mentioned above.                                 C
    29. However, we make it clear that we have not applied
our mind to the merits of the issues involved in the case and
hence, the High Court would decide the appeal strictly in
accordance with law on merits uninfluenced by any of our D
observations, which we have refrained from making on merits.
Needless to observe, the High Court will do so after affording
an opportunity of hearing to all the parties.
     30. Since the case is quite old, we request the High Court E
to expedite its hearing and dispose of the case preferably
within six months.
Kalpana K. Tripathy                           Appeal allowed and
                                     matter remitted to High Court