Case Note & Summary
This second appeal arose from a suit for possession of a house property based on title. The original plaintiff, Anna Mahadgonda Patil, had filed Regular Civil Suit No. 321 of 1977 against the legal heirs of Ramu Krishna Karale, seeking vacant possession of the suit house property. The plaintiff traced his title through a chain of documents: one Krishna Bhosale died in 1940 leaving his widow Rajjubai and two daughters Akkubai and Tanubai. Rajjubai executed a registered gift deed in 1946 in favor of Akkubai, excluding Tanubai. Akkubai sold the property to the plaintiff by a registered sale deed dated 30 July 1976. The plaintiff alleged that he was dispossessed by the defendants in October 1976. The defendants contested the suit, contending that the sale deed was bogus, fraudulent, and without consideration, but they did not challenge the earlier gift deed. The trial court, after considering the evidence and registered documents, decreed the suit on 30 March 1992, holding that the plaintiff had proved ownership and that the defendants failed to prove fraud. The defendants’ appeal, Regular Civil Appeal No. 387 of 1999, was dismissed by the District Judge-1, Sangli on 3 March 2011, which concurred with the trial court’s findings and rejected a prayer for remand to lead evidence on an alleged Will. In the second appeal, the appellant raised a new plea based on Hindu law, arguing that the widow Rajjubai had limited power to alienate her husband’s property and could not make a valid gift. He relied on Smt. Kamala Devi & Anr. v. Bachulal Gupta and Ors., AIR 1957 SC 434. The High Court noted that the defendant had never challenged the 1946 gift deed in the lower courts, either in pleadings or evidence, and had based their defence solely on the alleged fraud in the sale deed. The court held that no substantial question of law arose under Section 100 CPC, as the concurrent findings of fact were based on appreciation of registered documents and the defendants’ failure to prove their case. The court emphasized that a new plea not pleaded or proved cannot be entertained in a second appeal, and that concurrent findings of fact are not to be disturbed. Consequently, the second appeal was dismissed, affirming the decree for possession in favor of the plaintiff. The civil application was also dismissed, and a stay of eight weeks was granted on the operation of the order.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Code of Civil Procedure, 1908, Section 100 - The court held that a second appeal must involve a substantial question of law; without such question, the appeal is not maintainable. (Paras 4, 5, 6) B) Civil Procedure - Second Appeal - Interference with Concurrent Findings - Code of Civil Procedure, 1908, Section 100 - Where trial court and first appellate court have concurrently found on facts based on evidence, the High Court in second appeal will not interfere. (Paras 4, 5, 6) C) Civil Procedure - Pleadings - New Plea in Second Appeal - Code of Civil Procedure, 1908 - A plea not raised in the trial court or first appellate court cannot be allowed to be raised for the first time in second appeal. (Paras 4, 5) D) Evidence - Burden of Proof - Fraud and Illegality - Indian Evidence Act, 1872, Sections 101-103 - The burden lies on the party alleging fraud or illegality of a registered sale deed to prove such plea; failure to lead evidence results in adverse finding. (Paras 3, 4) E) Property Law - Transfer of Property - Registered Gift Deed and Sale Deed - Transfer of Property Act, 1882 - A registered gift deed executed in 1946 and subsequent registered sale deed in 1976 were held to validly confer title, as the defendant failed to prove any defect. (Paras 3, 4) F) Hindu Law - Limited Estate of Widow - Alienation Power - Hindu Succession Act, 1956 - The principle that a Hindu widow's power to alienate property is limited and not absolute, as argued based on Smt. Kamala Devi v. Bachulal Gupta, AIR 1957 SC 434, was held inapplicable because the defendant did not challenge the gift deed in pleadings or evidence. (Paras 4, 5)
Issue of Consideration
Whether the second appeal raises any substantial question of law when concurrent findings of fact were recorded by the trial court and first appellate court regarding the plaintiff's title to the suit property based on registered gift deed and sale deed, and whether the defendant's plea of limited power of a Hindu widow to alienate property can be raised for the first time in second appeal.
Final Decision
The Second Appeal was dismissed. The court held that no substantial question of law arose, and concurrent findings of fact based on evidence and registered documents could not be disturbed. The appellant's new plea regarding Hindu widow's limited estate was rejected as not pleaded or proved. The decree for possession in favor of the plaintiff was affirmed. The Civil Application was disposed of. Stay was granted for eight weeks on the operation of the order.
Law Points
- Second appeal under Section 100 CPC requires a substantial question of law
- concurrent findings of fact not interfered with in second appeal
- new plea not raised in lower courts not allowed
- registered sale deed establishes title
- burden to prove fraud on party alleging
- Hindu widow's limited estate not applicable when not pleaded
- right of appeal is statutory and must fulfill conditions
