Case Note & Summary
The case involves a second appeal arising from a partition suit. The appellants, legal representatives of the original plaintiff Shankar Ganpati Jagtap, challenged the concurrent findings of the trial court and the first appellate court which had dismissed the suit for partition. The suit was filed seeking partition of joint family properties. The courts below had recorded a finding that there was an oral partition in the year 1958, which the appellants contended was perverse. The High Court admitted the second appeal on the ground that a substantial question of law was involved. After hearing the parties, the court framed two substantial questions of law: (1) whether the finding on oral partition of 1958 was perverse, and (2) whether the Appellate Court erred in assuming that during the lifetime of Ganpati, the Defendant No.1 must have acted as Karta or Manager of the joint family. The court exercised its power under the proviso to sub-section (5) of Section 100 of the Code of Civil Procedure, 1908 to frame these questions. The judgment sets aside the concurrent findings and allows the appeal, indicating that the findings were perverse and the assumption regarding Karta was erroneous.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100, Code of Civil Procedure, 1908 - The court framed substantial questions of law under proviso to sub-section (5) of Section 100 CPC, regarding perversity of finding on oral partition and assumption of Karta status during father's lifetime. (Paras 1-2) B) Hindu Law - Partition - Oral Partition - Perverse Finding - The court examined whether the finding of oral partition in 1958 was perverse, considering the evidence and circumstances. (Para 2) C) Hindu Law - Joint Family - Karta - Manager - The Appellate Court's assumption that during the lifetime of Ganpati, the Defendant No.1 must have acted as Karta or Manager of the joint family was erroneous. (Para 2)
Issue of Consideration
Whether the finding of oral partition in 1958 recorded by the courts below is perverse, and whether the Appellate Court erred in assuming that during the lifetime of Ganpati, the Defendant No.1 must have acted as Karta or Manager of the joint family.
Final Decision
The Second Appeal is allowed. The concurrent findings of the courts below are set aside. The matter is remanded for fresh consideration in light of the substantial questions of law framed.
Law Points
- Perverse finding
- oral partition
- Karta
- manager of joint family
- substantial question of law
- Section 100 CPC
- partition suit
